Victorian WorkCover Authority v Crestwood Developments Pty Ltd
[2014] VSC 372
•14 AUGUST 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2012 4644
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| V | |
| CRESTWOOD DEVELOPMENTS PTY LTD (ACN 079 702 828) | Defendant |
| JUDGE: | DIXON J | |
| WHERE HELD: | MELBOURNE | |
| DATES OF HEARING: | 27-28 MAY 2014 | |
| DATE OF JUDGMENT: | 14 AUGUST 2014 | |
| CASE MAY BE CITED AS: | VICTORIAN WORKCOVER AUTHORITY v CRESTWOOD DEVELOPMENTS PTY LTD | |
| MEDIUM NEUTRAL CITATION: | [2014] VSC 372 | |
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ACCIDENT COMPENSATION — Workers compensation paid— Claim for indemnity — Whether injury was caused under circumstances creating a liability in the defendant to pay damages — Factor X — Extent, expressed as a percentage, whereby defendant’s act, default or negligence caused or contributed to worker’s injury – s 138 Accident Compensation Act 1985.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Middleton | Hall & Wilcox Lawyers |
| For the Defendant | Mr S Carson | Norris Coates Lawyers |
HIS HONOUR:
On 13 October 2009, Damian Bulovic, a construction labourer, fell three metres from an unguarded scaffold to the ground in an uncovered stairwell at a construction site in Geelong. Mr Bulovic’s employer, Summit Formwork Pty Ltd, was a formwork sub-contractor. Mr Bulovic sustained fractures to his right elbow and left wrist, requiring surgery, a fractured nose, and multi-level lumbar disc injuries in his lower back with pain transferring into his right leg. The injuries have caused ongoing pain and prevented him from working as a labourer. The Victorian WorkCover Authority has been paying compensation to Mr Bulovic pursuant to the Accident Compensation Act 1985.
Mr Bulovic claimed damages in negligence from three defendants - his employer, the occupier of the site and head contractor, Crestwood Developments Pty Ltd, and the concrete panelling contractor on site at the time of his injury, Sheer Construction Pty Ltd. On the morning of the fourth day of a jury trial, Mr Bulovic settled his claims without adjudication on the merits, and the jury was discharged.
The VWA now seeks a third party indemnity from the defendant, Crestwood, pursuant to s 138 of the Accident Compensation Act claiming that the worker’s injury was caused by its negligence. The VWA makes its claim in common law negligence and under statute, pursuant to s 14B of the Wrongs Act 1958. Initially, the VWA also claimed indemnity from Sheer Construction, but that claim was compromised and the claim for statutory indemnity proceeded only against Crestwood.
Section 138 of the Accident Compensation Act
Section 138(1) requires that the VWA, to be entitled to be indemnified by a third party, establish that Mr Bulovic’s injuries were caused under circumstances creating a liability in the defendant to pay damages. Section 138(2) provides that in determining this issue, Divisions 8A and 9 of Part IV of the Act must not be taken into account.
Section 138(3) provides the formula which determines the amount to be paid by the defendant —
The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a) the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b) the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
[A − (B + C)] × X∕100
where—
X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
A is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non-pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
B is the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
C is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.
As the parties have agreed on the values of factors A and C, and factor B is zero, the only issue to be determined is the value of factor X, that is, the extent to which the act, default, or negligence of Crestwood caused or contributed to Mr Bulovic’s injury. In this assessment, I am also to consider whether any apportionment of liability should be made to other parties, whose negligence caused Mr Bulovic’s injury, including Sheer Construction and the worker himself.
To determine the value of factor X the following issues must be resolved. Was there negligence on the part of -
(a) the employer, Summit Formwork;
(b) the head contractor/occupier, Crestwood;
(c) the concrete panel contractor, Sheer Construction; and/or
(d) the worker himself;
that was causative of Mr Bulovic’s injuries?
The role of Summit Formwork was to erect formwork for the construction of suspended concrete slabs and edge beams while concrete was poured. Scaffolding, called H frames, supported the formwork. It was part of Summit’s work to install the scaffolding and formwork prior to concrete pours. The formwork was dismantled once the concrete had cured to its design strength. Mr Bulovic was mainly involved in dismantling the formwork, a role in which he worked overhead, stripping away all the wood and panelling to reveal the concrete floors.
Crestwood was in possession of the site under a contract with the principal, Argyle Street Central Pty Ltd. Crestwood’s site manager gave directions to Summit about the sequencing of formwork from time to time. Mr Bulovic received induction and training when he commenced work at the site, and the scaffold from which he fell had been inspected and approved when first erected.
The VWA’s allegations against Crestwood centred around two circumstances; a missing cross brace on the H frame on which Mr Bulovic was working and the failure to ensure the stairwell into which Mr Bulovic fell was covered or sufficiently guarded by barriers, or a railing. The VWA alleges that Crestwood negligently, and in breach of its duties as occupier, failed to acknowledge, assess, and rectify the hazards posed by the unguarded and uncovered stairwell adjacent to scaffolding. Crestwood claims Mr Bulovic and Summit were each negligent in failing to inspect the scaffold and take reasonable care for his safety.
The allegations against Sheer Construction in the worker’s proceeding surrounded the possible removal of the cross brace by one of their employees. Push pulls, which are adjustable steel props, protruded through the perimeter of the H frames on the site, and were used to stabilise vertical wall panels prior to concrete floors being poured. Sheer Construction employees positioned, and then later removed, the push pulls. The worker stated that he had on prior occasions seen employees of Sheer Construction remove cross braces from the H frames to remove the push pulls, and he said that in the case of the H frame he fell from, they probably had not put the cross braces back. The absence of this cross brace on one side of the H frame left the space through which Mr Bulovic fell, and, according to the worker, also prevented him from having something to grasp as he sought to regain his balance.
The evidence
The defendant called evidence from two witnesses in this proceeding, and the evidence in the worker’s proceeding was evidence in this proceeding. The only relevant evidence given before the jury was that of Mr Bulovic on liability issues.
Mr Bulovic’s evidence before the jury
Mr Bulovic began working as a construction labourer for Summit Formwork in September 2008 and had 11 months’ experience prior to the incident. Mr Bulovic had been working at the Geelong Private Medical Centre site for two or three months prior to the incident. He worked under his supervisor, Adrian Cassidy, along with two or three others who also stripped formwork. Mr Bulovic said that he had been rushed during his work on the Geelong site. He said –
[I]t was always pressure, we were always pushed to rush, rush, rush. There was never a day that I could say easy, it was always go, go, push.
After lunch on the day of the incident, Mr Cassidy directed Mr Bulovic and another colleague, Charlie Longo, to ‘rush down’ to another section of the site that needed clearing ‘really quickly’ because another trade needed to access that part of the site. Mr Bulovic said –
Well he took us up there and said, "Guys, we really need to do this", so it was pretty much you need to do this today within a certain amount of time. They need to use this section, it needs to be cleared. Pretty much the whole job was always like that, always rushed, always this needs to be cleared because they need to get in another, you know, trade or something, so it's constant pressure all the time.
Summit directed Mr Bulovic to strip the formwork between the ground and the first floor. To strip the formwork on the ceiling overhead, he placed 3 planks of wood across the lower brace bar of the H frames, providing a raised platform approximately 60cm from the ground. On two sides of the H frame, there should have been two cross braces to stabilise the frame, but on the frame the worker fell from, there was a cross brace only on one side, leaving the other side open. Mr Bulovic estimated that the centre of the cross on a brace, if present, would have been at about his knee height, or lower, when he was standing and working on the planks.
There was also a cement perimeter wall around the border of the stairwell void, and Mr Bulovic estimated that when standing on the floor slab, the wall was his hip height, but when standing on the planks, the wall was about knee height.
Mr Bulovic placed 3 planks across the lower horizontal bars of the H frames to create a platform to stand on to reach the formwork to be stripped. He had to climb over the cross brace to mount the platform and he was then working above his head and was alone on the platform. Mr Longo was on another H frame. Mr Bulovic agreed there was a fair bit of concern about safety at the site and that he had received general safety instructions. Mr Bulovic understood that the cross bars held the H frames together and served as a safety rail if a worker was to lose his footing whilst working. He had previously erected scaffolding on this job. He knew there should have been crossbars at both ends of the H frame on which he was working, but he did not notice that on this occasion there was no crossbar at the stairway end of the H frame. He said had he noticed he would have fitted a crossbar in place. There is a fixed point where a crossbar fits onto the frame.
Mr Bulovic described the fall during examination in chief–
So you put the planks on the H-frames so you can stand on the planks?‑‑-That's right, like a walkway pretty much.
How high off the ground would the planks be?‑‑-Probably a good half a metre, probably a little bit more.
So you do that, then what?‑‑-I had all my gear on, all my tools prepared, what I need so I don't have to go on and off all the time and I started working.
So you get onto the H-frame?‑‑-I get on the H-frame.
By working, what do you do when you're on the H-frame?‑‑-So I start pretty much with the claws at the beginning, you've probably seen the photos, the claws that are holding up the big joists because they can be wound down so I need to release them with a hammer of course so that I can let loose the load. So then the timber becomes a bit more freer so then I can get my pinch bar or crowbar into it so I can start pulling the timber down.
Yes, then what?‑‑-As it happens sometimes, you know, because it gets stuck with all the concrete and everything, so I jam my pinch bar in to pull a piece of wood off and slipped. It happens, I slipped lost my balance and the pinch bar fell out of my hand because of the force I used to try to lodge the timber out and I lost my balance. I went to grab onto a hand rail, a cross-brace and there was nothing there so I started back-pedalling, tried to regain my balance but I was going too far forward and then I just fell in head first into the stairwell.
Mr Bulovic described a head first dive into the stair void with his hands extended, a ‘Superman pose’. The H frame that he was working on abutted the edge of the stairwell, known as a ‘live’ edge, as there was an unprotected open space bordering that edge that was a fall hazard. The cross brace that was missing was the brace fitted closest to the stairwell. Had a crossbar been fitted, Mr Bulovic presumed that he would have been able to grab onto it to stop his fall.
Mr Cassidy did not inspect the scaffolding where he instructed Mr Bulovic to start stripping. He did not point out that the brace was missing. Mr Bulovic was in such a rush that he did not notice the absence of the cross brace. Had he been working at his own pace, he said he would have noticed its absence and replaced it.
Mr Bulovic had seen push-pulls protruding through the perimeter of H frames in other places on the site. He said:
Did you see before this accident generally, I don't mean specifically in relation to the H-frame you were on, did you see push-pulls that had protruded through the perimeter of an H-frame?---Yes I have.
Did you when you were on this site ever see representatives of the third defendant removing those push-pulls?---Yes I did, yes.
What did you see when they removed them?---Well, they'd remove cross-braces and probably not put them back.
Crestwood employed an occupational health and safety representative who was a union member. With the Crestwood management, he would conduct ‘safety walks’ around the site. Crestwood raised any issues to be communicated to workers at toolbox meetings. Mr Bulovic stated that the absence of bracing from some H frames had been discussed with the health and safety representative on the site. Concerns were expressed that the push pulls were not being safely left on the site after being taken down. Mr Bulovic expressed in answers to interrogatories a belief that the company that was removing push-pulls (Sheer Construction) did not return the cross-brace or the guard railing on the stairwell after removing a push-pull.
While awaiting the ambulance, Mr Bulovic lay on the ground, and saw a Crestwood employee put the cross brace on the H frame where it should have been before the fall. Mr Bulovic thought this occurred within 5 minutes of the fall. While Mr Bulovic acknowledged that Crestwood employees did not wear uniforms, and therefore could not be recognised by their clothing, Mr Bulovic could recall the man’s face and knew him to be a Crestwood employee.
Mr Bulovic stated that there were two stairwells to the level below, and it was not necessary for access purposes that the stair well bordering the scaffold where he was working be left uncovered. I prefer the evidence of Mr Grace on this point.
When cross-examined by counsel for Crestwood, Mr Bulovic disagreed with a suggestion that there was a fence or a perimeter railing of steel tubing around the stairwell that was about 1.1 metres high, stating that there was nothing there. Although the H frame abutted a concrete perimeter wall, the top of which was at about hip height, when standing on the planks, the top of the abutting wall was below knee level and the stair landing that he fell to was about 2½ - 3 metres below that edge. Mr Bulovic agreed that H frames would be positioned adjacent to a live edge when needed. He did not agree with counsel’s suggestion that the cross brace alone provides little fall protection stating that if the cross brace had been there he probably would have been able to hold onto it.
When he started at Geelong, Mr Bulovic received a site induction lasting about an hour but did not recall whether any Crestwood employee participated. The H frames and cross braces were Summit property. When asked about work pressure, Mr Bulovic agreed that Mr Cassidy was his work supervisor and he did not receive any instruction from Crestwood employees. He understood the work pressure to come ‘from above’ and stated that systems were bypassed because of pressure, giving the example of the want of a cover over the stairwell and the lack of an opportunity to inspect the scaffolding from which he fell in a detailed way before he started working on it.
Pressed in cross-examination that he could not identify the worker whom he saw fitting the cross brace after his fall, he nominated a young carpenter that worked for Crestwood called ‘Dave or David’. I am satisfied that this incident occurred as Mr Bulovic described it.
When cross-examined by counsel for Sheer Construction, Mr Bulovic agreed that when standing on the planks, the crossing part of the cross brace would be low down in relation to his body, around the knee or even lower. He agreed that the purpose of the cross brace was not to prevent falls; it was to stabilise the H frame. Had a cross brace been fitted, it would have been only a little higher than the top of the concrete perimeter wall. When counsel suggested to Mr Bulovic that, having regard to the mechanics of his fall, an off-balance diving motion, the cross brace, had one been fitted, and the concrete perimeter wall would not have prevented his fall into the stair void, he said, ‘We’ll never know’.
I am satisfied that the proposition put by counsel for Sheer Construction is correct and I accept that the missing cross brace did not cause the plaintiff’s injuries. I do not accept that had the cross brace been present, properly fitted, it would have provided any reasonable opportunity for Mr Bulovic to have arrested his fall so as to avoid serious injury.
Counsel next suggested, and Mr Bulovic agreed, that there was no hand or guardrail on top of the concrete perimeter wall. He also agreed that a rail at a higher level than the cross over point of the cross brace could have prevented his fall and that Sheer Construction had no responsibility to ensure either that the stairwell was covered or that a guardrail was fixed around the live edge. Mr Bulovic agreed that he did not know whether a push pull that passed through the H frame with the missing brace had ever been fitted, or had been removed by Sheer Construction if originally fitted. All Mr Bulovic could say was that when he fell, the cross brace was missing. When he said earlier that he had seen push pulls removed by Sheer Construction workers, Mr Bulovic said that was only once or twice and at other locations on the site. He could not comment about evidence to be given for Sheer Construction that the push pulls were not removed until after the H frames had been dismantled.
Evidence of William Grace
Crestwood called Mr William Grace, a construction manager, who was on site on the day of the incident. Mr Grace had a contract with Crestwood to manage the project on its behalf, and he supervised all of the trades on site who were sub-contractors of Crestwood. Crestwood had few employees on the site, but employed a young man called David. Mr Grace was responsible for the programming, scheduling, and the supervision of the construction by the various sub-contractors. Mr Grace had a general responsibility to oversee the site and ensure its safety, and accepted that where workers were stripping formwork adjacent to a stairwell or live edge, any stairwell cover or edge protection should have been constructed and installed.
Mr Grace was responsible for directing Summit about where it should be working and what it should be doing from day to day. He explained the formwork is progressively reused as the building is constructed. Once a floor has been poured and the concrete has sufficiently set, he instructed Summit to strip the formwork out and set up for the next level to be poured. Although the standard curing time to design strength is 28 days, Mr Grace put an accelerant in the concrete so that it reached its design strength in 14 days, remarking that, for the extra dollars, the job flowed quicker. Mr Grace made the decisions about when Summit was to move to another level. I am satisfied that Mr Bulovic’s references to this job appearing to be rushed are related to the procedures that Mr Grace employed to ensure that the job was completed quickly and it is probable that the work of Summit was, on this job, being required to meet a more demanding schedule.
Mr Grace said that he walked around and inspected the site 3 or 4 times a day before lunchtime. On those inspections, Mr Grace observed all formwork and anything else that was progressing, because, in his words, ‘the big thing is safety, if you don't have a safe site then you won't meet any program dates’. Mr Grace said he kept the site spotless and employed a couple of sub-contractors to clean up the site every day.
Mr Grace said there was temporary metal fencing around the stairwell void and there was some scaffold as well because adjacent to the stairwell was a lift shaft. Asked about the hip height concrete perimeter wall around the stair void, Mr Grace said that the legal minimum height is 1 metre but he always made it 1200 mm. I take his answer as referring not to the concrete perimeter wall, but to the temporary metal fencing. I am satisfied that there was no temporary metal fencing extending 1200 mm above the top of the concrete perimeter wall and that the fencing that Mr Grace appears to be referring to related to the lift well void and is of no relevance to this proceeding.
Mr Grace arrived at the scene of the accident soon after it happened when others were already administering first aid. He said he observed the condition of the formwork and the surrounding area and ‘everything was satisfactory’.
The stair well was not covered because it was being used for access to parking and stored equipment at the level below. Mr Grace said that it was Summit’s obligation to construct a cover of bearers, joists and ply for the stair void if it was needed, and that the Safe Work Statement signed off by Summit required that it follow WorkSafe regulations. He said that it would take two workers three to four hours to make a cover for the stairwell, but that was not a practical solution. The sensible or reasonable choice in the circumstances would have been to look at fencing options. Mr Grace also said that from his perspective, he would have wanted access to that stairwell at all times, except when stripping work was being done immediately adjacent to the stairs, at which time their use would have been dangerous. I accept Mr Grace would not have permitted the stairwell to be blocked and that covering the stair void, like the missing cross brace, is not material to the issues.
Asked whether Crestwood had any opportunity to make safe the particular area where Mr Bulovic was working immediately before he fell, Mr Grace did not respond. He stated that –
[A]ll the areas were safe because before you were allowed to start work in a different area you have to follow the program and there's also a way how you strip formwork, which you start from the top down. So that's a standard procedure on all sites.
Mr Grace knew exactly where Summit’s employees would be working each day because he told them where they could strip. Summit did not know the concrete strengths, so Mr Grace specified to them an area where they could work to strip the formwork that might have been 300 or 400 square metres, and no other trade would go in to that area. He agreed that Mr Cassidy might have sent Mr Bulovic and Mr Longo into the area where the accident happened following his direction to Summit.
Mr Grace’s system of work was to send Sheer Construction, the precast panel sub-contractor whose work he described as ‘A plus’, to a floor to remove their push pulls once the concrete had cured before he directed Summit to strip the formwork. This prevented falling timbers from damaging the push pulls.
When questioning returned to the edge protection around the stair void, Mr Grace stated that the scaffolding in that area, not just the scaffolding supporting the formwork, but also associated with safety around the stair void was Summit's responsibility, but it would have been Crestwood's responsibility as well because he had overall control of the site. However, Mr Grace maintained that Summit had to consider specifically the appropriate barriers in the immediate work site and what is usually used is a PVC mesh, a little like tennis net, which is flexible and readily tied into place. Further, he said –
It follows then, doesn't it, that at the edge up against the stair void, the safety fence was only effectively 600 above the platform, without worrying about the thickness of the - - -?---No, no. Totally. But then there was also another temporary fence above that when they were stripping. They weren't allowed - - -
What was that fence?---That would have been the orange plastic, or some mesh. They weren't allowed to strip - no one was allowed to strip if they had a fall of greater than a metre or 1200.
You're saying that's what should have been there?---That's what was there because I walked around the site all the time and anyone that went against anything like that, I would contact the things and have them removed off site, which I did on a couple of occasions.
Do you recall when you arrived at the site of the fall whether that fence was in place?---I - when I looked around there, I was first of all concerned about the injury to him.
Surely the thought was also going through your mind - - -?---Of course.
- - - how the hell did this happen?---I was seeing how did it happen.
Yes?---Yes. And I didn't see, in my - I didn't see anything that was inappropriate the way it had been done.
Despite this evidence, in re-examination, Mr Grace said that either Summit or Crestwood could have fitted mesh protective fencing, but the primary responsibility for it would have been with Summit.
Mr Grace speculated that Mr Bulovic had been wearing a neon vest, of a type recommended by the CFMEU that he considered to be a safety risk, and that it had snagged and caused him to lose his balance. This speculation, which was inconsistent with his evidence of an orange plastic mesh safety fence protecting the live edge, was but one aspect of Mr Grace’s evidence that persuaded me that his evidence of what occurred concerning Mr Bulovic’s fall and of precisely what was in place protecting the live edge was in many particulars reconstructed to align with what would have been Mr Grace’s and Crestwood’s ideal best practice. I do not consider Mr Grace’s evidence to have been reliably a recollection of the incident itself, but a representation of what he would have done, or would have seen, had all safety procedures been followed.
Mr Grace also suggested that there were two H frames, one on top of the other, at the site of the fall, and that each frame was cross-braced. If that was the H frame structure adjacent to the stair void that was in place at the time, it might have been that upper brace that Mr Bulovic had in contemplation as providing an opportunity for him to regain his balance. I do not accept that the frame structure was as Mr Grace described it. Mr Grace recollected that there was a push pull, which Sheer Construction would have removed, over the stair void. Its base was in the H frame from which Mr Bulovic fell. The issue of whether the removal of that push pull did or could have resulted in one or other of the cross braces being removed and not replaced was not explored with him. The existence of an upper brace was never put to Mr Bulovic, and his evidence was not consistent with an upper brace being what he had in mind. Mr Bulovic’s cross-examination by counsel for Sheer Construction did not assume that the frame structure involved two frames with upper and lower bracing required. Further, because the push pull sat diagonally from the wall to the slab as a support, the removal of a push pull might have explained the absence of a lower but not an upper brace. Because the issue was not raised with other witnesses, I am satisfied that it is Mr Grace’s reconstruction.
Increasingly as Mr Grace’s evidence continued, he described what he would have done or would have seen. Towards the end of his evidence, Mr Grace drew a sketch of how he believed Mr Bulovic fell that also suggested to me that his evidence was not recollection but reconstruction. I remain unpersuaded by Mr Grace’s evidence of his inspections of the area around the floor void. I am satisfied that there was no orange plastic mesh safety fence and that there was an unprotected live edge over which Mr Bulovic fell in a diving motion.
As I have already said, the absence of the cross brace, and I am satisfied that it was absent, was not causative of the injuries despite Mr Bulovic’s expression of hope that had it been there he might have been able to grasp it to check his loss of balance.
Evidence of Philip Peeters
Philip Peeters, who was the OH&S representative on the site, also gave evidence. He described the main part of his job to be walking around the site making sure that the site was safe and that people were working safely. Mr Peters said he ‘would have’ gone through the area where the accident happened on the morning of the accident but did not notice anything ‘wrong or untoward’.
Mr Peeters went to the scene of the accident immediately after it happened when Mr Bulovic was lying on the landing in the stairwell. He looked up to where he appeared to have fallen from and saw that only one plank on the H frame on which Mr Bulovic had been working. He said that there should have been two planks side by side. I do not accept this observation and find that Mr Bulovic had lain, and was working on, three abutting planks. I am unpersuaded that Mr Peeters was in a position to make that observation when standing in the stairwell looking up to the H frame. Mr Peeters also observed that ‘the cross brace wasn’t there’. He was ‘pretty sure’ that it was fitted that morning when he did his walk through because ‘it was right next to the stairs and that's where I used to walk.’ There was one brace on either side of the frame. There was also in place a handrail for the stair void that he described as two staunchings bolted to the floor with a square sort of steel tube with two rails, the top rail being 1 metre above the floor. The witness seemed uncertain about the effectiveness of the railing agreeing that the lowest point of the opening in the cross braces, had they been present, could have been at about the same height as the rail. This evidence does not persuade me and I prefer Mr Bulovic’s account. I do not find that there was an effective guardrail fitted.
Findings
Negligence of the worker
Crestwood raises, in its defence, the issue of Mr Bulovic’s negligence by three particulars, failing to adopt a safe system of work, failing to inspect the scaffold and failing to take reasonable care for his own safety. In The Commissioner of Railways v Ruprecht,[1] a moving railway wagon hit the employee, who did not look along the railway line before he stepped on it because he did not expect the wagon (which was moving quietly) and he was preoccupied with his duties. By majority, the Court concluded there was no contributory negligence. Gibbs J said:
However, in deciding whether the respondent [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention borne of familiarity and repetition, and the man’s preoccupation with the matter in hand, with a view to deciding ‘whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man’. (citations omitted)
[1][1979] HCA 37; (1979) 142 CLR 563, 568.
In Czatyrko v Edith Cowan University,[2] the employee was required to load and stack boxes on the back of a truck fitted with a mechanical lifting platform. The employee was injured when fell approximately one metre to the ground as he stepped backwards from the tray of the truck to where he expected the platform to be. One of the employee’s co-workers had lowered the platform without informing the employee. The High Court in a joint judgment said:
In the present case, the appellant [worker] did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping onto it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent [employer]. This it failed to do in this case. The appellant’s attempt to step onto the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than ‘mere inadvertence, inattention or misjudgement’. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. (citations omitted)
[2][2005] HCA 14; (2005) 79 ALJR 839, [18].
As the Court of Appeal observed in Mayhew v Lewington’s Transport Pty Ltd:[3]
In personal injury in the course of employment cases, the law has long recognised the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other hand. In Podrebersek v Australian Iron and Steel Pty Ltd, the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:
It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligations to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant’s conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence. (citations omitted)
[3][2010] VSCA 202, [29].
In the circumstances disclosed by the evidence, it would not be appropriate to find negligence against an employee who suffered injury following the employer’s system of work, even though that system involved apparent dangers, and even though Mr Bulovic knew that what he was doing was dangerous. Mr Bulovic, when injured, was undertaking the work of stripping formwork in accordance with Summit’s system of work that permitted the work to be done as it was, and he was following his employer’s specific direction to complete the work as a matter of some urgency.
I make no finding of contributory negligence against Mr Bulovic for the purposes of calculating factor X. Mr Bulovic was instructed to work on an H Frame that had been erected earlier and used for establishing the formwork. That scaffold had previously been safely used. Mr Bulovic had no reason to suspect that other workers had interfered with the H frame or the edge to the stair void. I am satisfied that Mr Bulovic would have checked the set-up of the H frame on which he was instructed to work but for the insistence of Mr Cassidy that he strip the formwork out quickly.
Negligence of others
The claim against Sheer Construction was resolved by compromise, but that fact does not preclude the plaintiff from contending that negligence on the part of Sheer Construction is relevant to the value of factor X. I make no finding of negligence against Sheer Construction for the purposes of calculating factor X. Although I am persuaded that there was not a cross brace on the H frame adjacent to the stair void, I am unpersuaded on the evidence that the want of a cross brace deprived Mr Bulovic of the opportunity of regaining his balance and avoiding the fall that he suffered. For that reason, it in unnecessary to make a finding whether the cross brace was removed by Sheer Constructions. I would add that neither the evidence adduced before the jury in the worker’s proceeding nor that adduced in this proceeding by the plaintiff permits a finding to be made that the cross brace was removed by Sheer Construction.
Negligence of Summit Formwork
I am satisfied that Summit was negligent. It breached its obligation to provide a reasonably safe system of work and reasonably safe plant and equipment. It did not properly, or at all, inspect the scaffolding before assigning Mr Bulovic the task of using it to strip formwork and Mr Cassidy did not instruct Mr Bulovic to himself take the time to ensure that the scaffolding was safe. The pressure coming from Mr Grace was no reason for Mr Cassidy not to have ensured that the live edge that ought to have been apparent to him was appropriately guarded. Summit did not submit that it was not negligent.
Negligence of Crestwood Developments
It was not in issue that Crestwood, as the head contractor and occupier of the site, owed Mr Bulovic a duty to take such care as in all the circumstances of the case was reasonable to see that when on the premises he would not be injured or damaged by reason of the state of the premises, or of things done or omitted to be done in relation to the state of the premises.
The plaintiff alleged many particulars of breach of that duty, and I am persuaded that breach in the following respects has been proved.
(a) Failing to ensure that the stairwell was sufficiently guarded by barriers or a railing.
(b) Permitting the stairwell to remain insufficiently guarded.
(c) Failing to warn Mr Bulovic of the dangers of working around the unguarded stairwell.
(d) Failing to acknowledge, assess and rectify the hazards posed by the unguarded stairwell.
(e) Requiring, allowing or permitting Mr Bulovic to work on scaffold when it was unsafe to do so.
(f) Failing to ensure the scaffolding was safe prior to allowing Mr Bulovic to use it.
(g) Failing to have any or any adequate barriers or guard rails for Mr Bulovic to hold on to.
(h) Requiring Mr Bulovic to work under unsafe conditions at the premises.
(i) Failing to prescribe or enforce a safe system of work at the premises.
(j) Failing to conduct properly or at all any or any proper risk assessment of the tasks required of Summit employees on that day at that location.
(k) Permitting the continuance of a situation of danger on the premises.
Principles
In Podrebersek v Australian Iron & Steel Pty Ltd[4] , the High Court said –
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 (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre [1958] TAS StRp 11; (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. 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.
[4][1985] HCA 34; 59 ALJR 492, [10], see also Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 868, Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25, 29, Moore v Scolaro's Concrete Constructions Pty Ltd (in liq)& Ors [2004] VSCA 152, [8]-[9], Alcoa Portland Aluminium Pty Ltd v Husson & Anor [2007] VSCA 209; (2007) 18 VR 112, 136-137 [86].
This is also the proper approach when apportioning responsibility for workers compensation payments on a statutory claim for indemnity pursuant to s 138 of the Accident Compensation Act.[5] There was no dispute between the parties as to the applicable principles of law, nor was there any dispute that the plaintiff was owed a duty of care by each of his employer and the defendant, as occupier of the site.
[5]Metron Medical Australia Pty Ltd v Windahl; Metron Medical Australia Pty Ltd v Victorian WorkCover Authority; Australian Hospital Care (Ringwood) Pty Ltd v Metron Medical Australia Pty Ltd [2007] VSCA 40, [139].
Conclusion
On considering the causation/culpability matrix, I am satisfied that on each consideration the greater weight of responsibility should be attributed to Summit as Mr Bulovic’s employer but that Crestwood, as occupier, carries a substantial responsibility. In the immediate circumstances, Summit exercised control over Mr Bulovic’s working conditions and had the opportunity, through Mr Cassidy, from whom I did not hear, to inspect the area, to warn Mr Bulovic and to take preventative measures that would have taken little time and been effective in preventing the accident. I am referring to the use of a PVC webbing barrier across the side of the H frame adjacent to the stair void to protect the live edge. More broadly, I accept that Summit had the primary contractual responsibility to install safe H frames. The live edge risk was an obvious one and the degree to which Summit, as an employer with a non-delegable duty, has departed from a proper and reasonable response to the risk is substantial. Summit fell well short of the expected standard. Counsel for the plaintiff did not suggest otherwise.
Crestwood, on the other hand, exercised control over the working conditions on the site and, it would seem, clearly understood its obligations to look at the state of the premises and at the activities that were taking place on the premises. Despite regular inspections, or ‘walk throughs’, the live edge that was a primary cause of the accident was not appropriately protected and Crestwood gave no warning about its presence. I am unable to say when or how that risk was actually created but I am satisfied that it was no later than the preceding day and each of Mr Grace and Mr Peeters inspected the stair void on the day of the accident. For that reason, I am satisfied that Crestwood also exercised control over the risk and also had the opportunity to, and did, inspect the area, the opportunity to warn Summit of the hazard and the opportunity to take or direct preventative measures that would have taken little time, and been effective in preventing the accident.
Counsel for Crestwood contended that a principle drawn from Leighton Contractors v Fox[6] was determinative. Counsel relied on the following passage from the joint judgment of the court.
If Leighton owed a duty to Mr Fox and Mr Stewart to provide induction training to them in the safe method of line cleaning, it owed a duty to provide training in the safe method of carrying on every trade and conducting every specialised activity carried out on the site to every worker on the site. There is no reason in principle to impose a duty having this scope on a principal contractor. The latter is unlikely to possess detailed knowledge of safe work methods across the spectrum of trades involved in construction work. And a duty to provide training in the safe method of carrying out the contractor's specialised task is inconsistent with maintenance of the distinction that the common law draws between the obligations of employers to their employees and of principals to independent contractors. (citation omitted)
[6][2009] HCA 35, [52].
I bear in mind that Fox was a case where the worker suffered injury resulting from negligent conduct of a co-subcontractor’s employee. The issue was whether induction training would have avoided the conduct that caused the injury and whether the principal contractor for the construction work owed a duty to provide, or be satisfied of the prior provision of, training in safe work methods to independent contractors working on the construction site. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.[7] The High Court rejected the conclusion of the Court of Appeal that Leighton was negligent because of an assumed failure to provide Occupational Health and Safety induction training to Mr Fox and Mr Stewart.
[7]Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, 47-48, Leighton Contractors v Fox, ibid, [20].
While the principles are of general application, the circumstances here are different to those analysed in Fox. The activity that caused Fox’s injury was a self-contained operation that did not require co-ordination with other activities on the site and there was nothing unreasonable about subcontracting the work of concrete pumping. Here, I am satisfied that general induction training was provided to Mr Bulovic and Occupational Health and Safety procedures, such as a Management Plan and a Safe Working Method Statement, were agreed and in place between Summit and Crestwood. Further, Mr Grace explained that the safety of the scaffolding on the site, particularly at the live edge around the stair void, was an activity that involved the scaffolding contractor as well as the formwork contractor and the concrete panels contractor. In Stevens v Brodribb Sawmilling Co Pty Ltd,[8] Mason J explained that if an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them of injury arising from the nature of the work, and where there is a need for direction and co-ordination of the various activities being undertaken, the entrepreneur will come under a duty to prescribe a safe system of work. Finally, and importantly, Crestwood was under a statutory duty as occupier of the premises in terms set out above.
[8]Ibid, 31.
I am satisfied that Crestwood recognised and accepted its duty.
I accept that Crestwood made an effort towards achieving safe premises, which is not an easy task when those premises are a construction site, nonetheless the degree to which Crestwood has departed from the proper and reasonable response of an occupier to the risk is substantial. Crestwood too fell well short of the expected standard. I am satisfied that it was obvious that there was neither the guard rail nor the PVC webbing barrier described by Mr Grace, present that morning when Mr Grace or Mr Peeters inspected the stairwell. I am not persuaded that it was Summit’s responsibility to fit a guard rail to the stair void and the primary responsibility for its absence rests with Crestwood as it supervised the scaffold contractors and was responsible for the safety of the premises. That responsibility is particularly onerous at the intersection between areas that are the responsibility of a particular trade, such as the H frames for Summit, and areas that are outside of the formwork sub-contract such as a stair void.
I am satisfied that Crestwood contributed to the pressure that was directed at Mr Bulovic to strip out the formwork that afternoon. I am not suggesting that Crestwood was not entitled to demand expedition from its sub-contractors in completion of scheduled work under their contract, but, in my view, it is incumbent on an occupier making a demand that others work expeditiously that it not place any unreasonable impediment or unacceptable risk on sub-contractors arising from dangerous conditions on the premises of which it ought to have been aware.
It is difficult to split the causal potency of each particular breach. It was not in issue that it was well understood that a formwork labourer stripping out formwork is required to apply considerable physical force to a pinch bar working above his head with gross, as opposed to fine materials – form ply, concrete, and nails. Sudden give in the materials or slippage between the pinch-bar and the materials is to be expected and results in the worker losing balance while standing on a makeshift platform. As the H frame abutted the stair void, the risk, being that of a fall from the makeshift platform on the H frame into the stair void, was avoided by proper barrier protection with an obvious alternative solution suggested, namely an effective PVC webbing barrier. That is what Mr Grace expected would be fitted and I am satisfied that it was not fitted by either Summit or Crestwood.
Taking into account all of the evidence and balancing the comparisons of culpability and causal potency as best I can, I am satisfied that Summit should bear a greater responsibility for the accident than Crestwood, but the latter’s contribution remains significant.
Accordingly, I will declare that the value of factor X is 40%.
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