Victorian WorkCover Authority v Direxa Engineering Australia Pty Ltd (No 1)
[2013] VCC 1039
•23 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02961
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| DIREXA ENGINEERING AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15, 16, 19, 20, 21, 22 August 2013 | |
DATE OF JUDGMENT: | 23 September 2013 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Direxa Engineering Australia Pty Ltd (No 1) | |
| MEDIUM NEUTRAL CITATION: | [2013] VCC 1039 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Recovery proceedings pursuant to s138 of Accident Compensation Act 1985 relating to injury suffered by worker, Matthew Davey – employment by labour hire company – ‘host’ employer – nature and extent of health and safety steps taken and protocols in place – premises owned by third party – host employer an ‘occupier’ of premises and responsible for construction works – part of temporary timber walkway left protruding – worker tripped and fell – injury to wrist – vicarious liability of direct employer and host employer for acts of employees – whether system of work adequate – whether breach of duty to provide a safe place of work by various parties involved at workplace – apportionment of liability – consideration of pain and suffering and economic loss damages, medical and like expenses
Legislation Cited: Accident Compensation Act 1985, s138; Wrongs Act 1958; Occupational Health & Safety Act 2004; Evidence Act 2008
Cases Cited:Victorian WorkCover Authority v Jones Lang La Salle (Vic) Pty Ltd [2012] VSC 412; Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2012] VSC 412; TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1; Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173; Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) [1947] AC 1; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 185; McLean v Tedman (1984) 155 CLR 306; Victorian Stevedoring Pty Ltd v Farlowe [1963] VR 594; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley QC with Ms L Glass | Wisewould Mahony |
| For the Defendant | Mr M Titshall QC with Ms G Cooper | Lander & Rogers |
HIS HONOUR:
Preliminary
1 The plaintiff (“VWA”) brings this proceeding seeking an indemnity in respect of compensation paid, alternatively damages calculated in accordance with s138(3)(b) of the Accident Compensation Act 1985 (“the Act”), from the defendant (“Direxa”).
2 Austral Bricks Victoria Pty Ltd (“Austral”) owned and operated a brick kiln at premises at Wollert, Victoria. In approximately 2010, it determined to construct a new brick kiln (“the kiln”) alongside the existing kiln at the same premises.
3 Austral engaged Direxa to construct the new kiln. Direxa retained IRP Pty Ltd (“IRP”), a labour-hire company, to provide construction workers, in particular trades assistants, boilermakers and welders, to carry out the necessary work in the construction of the kiln. One of the workers so employed was Mr Matthew Davey (“Mr Davey”), who was employed as a trade assistant, but who had experience and knowledge of welding. He commenced work at the premises in February 2011. For a short time, he worked as a trade assistant, but because of his skills, then worked as a welder. There were other workers on site, employed by other specialist contracting companies, for example crane operators, electricians, roofers and machine operators.
4 On 15 March 2011, Mr Davey was walking on the roof of the newly constructed kiln, carrying welding equipment over his right shoulder. The kiln was a rectangular structure, approximately 200 metres long and housed within a large warehouse or shed. It was higher and wider in the middle than at either end. There was a temporary timber walkway along each side of the roof of the kiln to enable the workers access to the various areas before a permanent steel checker-plated walkway was installed. As he walked along the timber walkway, at a point where there was an incline in the timber walkway, one of the timber boards protruded out a distance of 20 to 40 millimetres, and Mr Davey caught his toe under the overhanging lip. He fell heavily forward, taking the weight of the fall on his left wrist and arm.
5 He remained at work for a period and was eventually terminated, as he was not able to carry out his usual welding duties. He suffered an injury to his left wrist, in particular, a tear to the triangular fibrocartilage (“TFC”) and de Quervain’s tenosynovitis.
6 According to its Statement of Claim, the VWA alleged against Direxa, that the injury to Mr Davey was caused by its negligence; alternatively, breach of occupier’s duty pursuant to the Wrongs Act 1958 by, in particular:
· Failing to provide and maintain a safe system of work
· Allowing a piece of timber plank to protrude over the edge of a step
· Failing to carry out any proper risk assessment or hazard identification
· Failing to provide any appropriate warning or sign of the hazard
· Failing to provide proper instructions to Mr Davey
· Failing to comply with the provisions of the Occupational Health & Safety Act 2004, and the regulations made thereunder (this allegation was not pursued).
7 By its Defence, Direxa denied that it was negligent or in breach of duty. It admitted that:
· it was an engineering company specialising in the construction material industry;
· it was engaged to construct the kiln;
· it was responsible for things done or omitted to be done in relation to the engineering, construction and/or building activities carried out at the kiln;
· it was an occupier of the premises where the kiln was being constructed, and
· Mr Davey was working under its supervision, direction, care and control.
8 It says that Mr Davey’s injury was attributable to his own negligence in failing to keep a proper lookout.
9 It alleged against IRP, negligence or breach of duty in:
· failing to maintain a safe place of work
· failing to inspect the premises
· failing to provide proper training, induction or supervision.
10 It alleged against Austral:
· failing to provide a safe system of work
· failing to carry out proper training or induction
· failing to provide adequate supervision of Mr Davey.
11 It also made similar allegations against two other companies, SCR Engineering Pty Ltd (“SCR”) and DSR Engineering Pty Ltd (“DSR”), although these allegations were not pursued. Those were two small, private companies, the directors of which were, respectively, Mr David Reid and Mr Steve Russo. Those companies were involved in various aspects of the supervision of workers and construction at the premises.
12 A list of the names of persons mentioned in the course of evidence and the companies they worked for is appended to this judgment.
Evidence as to liability
Matthew Davey
13 Evidence was given by Matthew Davey. He described his education, training and experience as set out in his curriculum vitae.[1] He said he had a long interest in welding and metalwork. He came to Australia in November 2009 from the United Kingdom. There were a number of reasons. He had had a break up with his wife and she had come to Australia to study. They decided to get back together. He also decided to turn his hobby of welding into a career. He had been made redundant in his job in information technology (“IT”). Australia seemed a good place to start again. He thought to become a permanent resident and possibly apply for citizenship. It was difficult to get a permanent visa and welding was a career on the Skilled Occupations List.[2]
[1]exhibit C
[2]Apparently a list of occupations and skills of which there was a shortage or need in Australia and in respect of which non resident persons who had those skills or occupation had a better prospect for permanent residence.
14 The incident occurred on 15 March 2011. Mr Davey had been working at the kiln for four to six weeks. He was employed as a trades assistant, but when it was discovered that he could weld, his job description and rate of pay changed. At the time, he was paid $38 gross per hour plus a weekly shift allowance of $327.50, plus overtime of about 14 hours per week, amounting to $788.
15 He was working on the roof of the kiln, welding supports to upright steel structures. The kiln was being built and was a long rectangular shape more than 100 metres long. There were walkways on the roof of the kiln made up of particle or chipboard planks (“boards”). He had been told to walk on these boards. He was walking along the boards going from one job to another with a small portable welder over his right shoulder. He also had cords, rods, gloves, safety gear and a helmet over that shoulder. His evidence of what occurred is as follows:
“… There were a temporary walkway on top of the kiln for making your way along. Now, the way the kiln is constructed, the kiln gets fatter and taller as you get to the centre of the kiln ‘cos that’s the hottest part of the kiln and therefore obviously as you travel along the length of the kiln it gets slightly higher at intervals. And I was making my way along the kiln, I came to one of these intervals and stepped up. The planks of wood had – I don’t know what – I don’t know why they were in this position, but instead of being sort of sloped down and along to make it safe, they were laid with an overlap of I guess 30, 40 centimetres. I never really saw it. As I stepped up, I caught my foot underneath that overlap and fell forward. And because I had such a weight of welding equipment on my right hand side, I – I couldn’t put my right hand out to – to stop me from falling. … .”[3]
(sic)
[3]Transcript (“T”) 107, L25
16 He fell heavily with his left hand outstretched.
17 Further, in the course of cross-examination, he said:
Q:“And insofar as what you saw, Mr Davey – you didn’t see any overlap, but rather just a step, as the steps had been all the time you’d been using them?---
A:No, that is not correct.
Q:You say there must have been an overlap but you didn’t really see it, is that right?---
A:Well, you know, I was just walking along the top of the roof. I stepped up. I caught my toe under the edge of the plank. I turned around to see what on earth I had fallen over, because as you quite rightly said – I had walked along that area many, many, many times before, and I’d never fallen before. And therefore I was like, you know, ‘what on earth is going on here? And I looked and I could see that the metal bit was here, and the plank was overlapping like that. … .”[4]
[4]T148, L4-18
18 Further, in answer to questions by me:
“The planks of wood were laid as a walkway perpendicular to those crossbeams along the length because those crossbeams go across the width of the kiln and the walkway was along the length of the kiln. As the height in the top of the kiln changed, those steel crossbeams – the next one along would be 30, 40 centimetres higher than the previous one to accommodate the increasing steepness of the kiln. The wood that I tripped over was laid perpendicular to those steel crossbeams and was sticking out past the end of the steel crossbeam by I would guess 20 to 30 centimetres, something like that.”[5]
[5]T153, L31 et seq
19 There was no requirement that he hold onto the safety rail. It was a safety rail rather than a handrail because they were working at heights. It was not used by anyone as a handrail. The timber walkways were a temporary measure and ultimately steel checker plates were laid. This was an ongoing process and at the time of the injury, only about 50 or 60 per cent of the checker plate had been completed. After the incident, he returned the tools to the toolshed. He said the wooden planks were haphazardly laid out, as seen in the photographs he took three to five days later.[6] He said “everything up there was a bit haphazard. The planks of wood that were supposed to be the walkway were very haphazard, yes”.[7]
[6]exhibit D, 5 photographs – Plaintiff’s Court Book (“PCB”) page 112A-D; T111
[7]T111
20 After placing the tools away, he went to the safety representative’s office. That was David Wrout, known as “Safety Dave”.
21 Mr Davey was cross-examined. He said that of the time he was on the job, about half of the time he was on the roof. Towards the end of the job, he might be on the roof of the kiln ten times a day. He did not recall that the walkway was joined by tongue and groove joints. He thought there were probably four height changes on the way up to the centre of the kiln, and four on the way down on the other side. He regularly walked up and down those steps, and was well aware of them. He did not see the overhang on this particular plank before he caught his toe under it.
22 He did not photograph the place where it happened when he returned several days later, as photographs on the site were banned and he thought possibly when he returned to take the photographs, other workers or a foreman might have been there.
23 He agreed there was pink luminous paint on the edges of various things in the area. He did not use the handrail because he was never told to use it. He was not told of any “three point contact”; that is, to have one hand on the rail and contact with the roof with each foot. He never received any such instruction from Mr Spark. He attended safety and toolbox meetings. The toolbox meetings were every morning. They were a pep talk and safety was discussed.
24 Safety Dave was very hot on safety at work. He explained to Safety Dave what had happened. He also told Andrew, who helped him fill out the accident report. He thought the problem with wooden planks was raised in the safety meeting. All the IRP employees on site were at the meetings. There was discussion at the safety meetings about the timber walkways, he thought after the accident. He could not recall whether his particular incident was discussed.
25 He received strict instructions to walk on the wooden planks as a walkway.
26 In the past, the planks had been laid in such a way as to represent a gentle incline rather than a step. If there were planks laid in that fashion, there was no tripping hazard.
Peter Spark
27 Evidence was given by Peter Sparke, the managing director of IRP. It is a Western Australian labour-hire company which was responsible for hiring labour at the Austral kiln project. He was originally approached by Darren Hare (known as “Daz”). IRP employed both Matthew Davey and David Wrout. They were both employed as trade assistants. IRP employed most of the labour on site, although there were some other contractors. At the outset, there were one or two on site, and at its peak in 2011, there were about 30 IRP employees.
28 He was first approached in July 2010 and went to the site about a week later. He attended the site regularly to, amongst other things, assess safety. Safety was an important issue. He spoke to Bruce Little, the Direxa health and safety officer. There was a site safety audit completed and signed in September 2010[8] that set out various details as to the safety systems on site. Also, a job assessment form was also completed.[9] This form looked at the tasks that the various trade assistants had to undertake, and included reference to the safety system in place in respect of those tasks.
[8]exhibit A
[9]exhibit B
29 Austral were very “tight” about safety. Direxa were in charge of the site at the kiln construction area. Direxa were responsible for housekeeping matters concerning the kiln construction. Direxa had been contracted by Austral to construct the kiln.
30 There were various documents relating to safety including Safe Work Process (“SWP”) and Safe Work Method Statements (“SWMS”). There were hundreds of SWMS relating to all of the various jobs to be conducted, including manual handling.
31 IRP had a continuing presence on site through one or other employee, including Mr Sparke. They were there regularly several times per week. One person was there each week at least for a couple of days.
32 IRP had a duty to ensure the site was safe. The safety meetings and toolbox meetings were conducted by Direxa. IRP attended them. If there were safety concerns, the reporting protocol was first to speak to Darren Hare and he would investigate the matter. Also, Bruce Little was the health and safety person. Darren was in charge of the day-to-day safety management at the kiln. Also, Bruce Little to some extent. The SWMS were developed by Bruce Little, and he ensured they were implemented. Direxa was ultimately responsible for the safe completion of the work.[10]
[10]T71 L28
33 In cross-examination, Mr Spark said he was the main person from IRP to negotiate with Direxa. He was concerned as to the statutory obligations of IRP under Victorian legislation. He recalled that Mr Davey was employed as a trades assistant. He was always a trades assistant, although his tasks changed when it was found out that he had welding experience. He thought he got an increased rate of pay.
34 Harold Crampton was a representative of Austral. Mr Spark and Mr Crampton did walks of the site on a regular basis. He could enforce the SWMS and if the safety was not followed, he could suspend or re-induct IRP employees.
35 The documentation showed Mr Davey started on 25 February 2011. He would have had a safety induction on site. He also had to answer questions on the application form as to safety. Mr Davey knew that he had to walk along the walkway and knew, where possible, to use the handrail. He recalled Mr Davey and others were told to use the handrail. Initially there were no handrails and they were built later. The walkways initially were of plywood or chipboard and had a tongue and groove. There was “a three point approach”: one hand on the handrail and two feet on the ground. He would have expected there was an SWMS written on the point. If he saw someone not using the handrail, he would tell them to use it. He thought the instruction was well known.
36 He could not recall if the boards were level and flush. He felt the environment that his employees were working in was safe. If he saw a safety hazard, he would address it or speak to Darren Hare.
37 He vaguely recalled steps on the walkway. He vaguely recalled that where there was a step, it was painted with pink paint.
38 The work at Austral finished in about August 2011. At that time, there were only about four to six IRP employees left. That was the last job that was undertaken in Victoria.
39 David Wrout was active in site walks and toolbox meetings and generally in safety matters. At one point, for example, he was concerned about dust on site. The safety meetings took place on a Tuesday and Mr Spark was involved in some. Austral was involved in safety site induction.[11] Mr Davey would have been through that induction and signed the form. David Wrout had some experience in safety matters. IRP had some input into the SWMS documents. There were other IRP personnel on site regularly. These included Allan Warne, the IRP health and safety representative; Michael Rosario, a director of IRP and account manager; Andrew Dessman, who came on site later and was account manager and also health and safety representative, and Denise Baljeu, a recruitment services officer. When Mr Davey was injured and filled out the form, it would have been through Mr Dessman.
[11]exhibit 2 – site induction plan, exhibit 3 – site induction form
40 Austral participated in health and safety on site. Mr Crampton was the Austral occupational health and safety manager for the project which was known as “Wollert Number 2”. He was responsible for the induction process at the outset. Generally, Austral controlled the site. He was their main man. There was also Peter Cadish and Shane Crompton (Simpson), the head project engineer from Austral. They were both involved in safety. On one occasion, two IRP workers were dismissed by Mr Crampton for occupational health and safety breaches. He was very firm. He did a daily walk of the site and was rarely in his office. Mr Spark went on a couple of walks. He would address safety matters at contractors’ meetings.
41 There were hundreds of SWMS. Every time there was a new task, Mr Little would write a new SWMS.
42 In answer to questions asked by me,[12] Mr Spark said that the safety issue of holding onto the rail was when there were gaps in the walkway and people had to cross the steel beams or where there was an unstable surface. It was not as if every time someone was on the walkway, they had to hold onto the rail.
[12]Transcript (“T”) 196 et seq
43 In re-examination, Mr Spark said that the person in charge of health and safety at the kiln was Darren Hare. There was also Dave Wrout. Mr Spark was taken to various SWMS documents[13] which made reference to Terry Schmitt as the person responsible for supervision, inspection, risk control on the site, and Darren Hare as being responsible for training.
[13]Exhibits E, F, G
David Reid
44 Evidence was given by Mr David Reid. He is a trained fitter and turner and ran his own business, DSR Engineering. He is involved in structural steel fabrication and installation. He was on the Austral site from January 2011 until about October of that year. He was contacted by Claude Lambert of Austral to assist with supervision of the tradespersons on site. He had known Claude Lambert and Murray Anderson of Direxa for 30 years.
45 Steve Russo was involved in the construction of the dryers at the site. Mr Reid was involved in the kiln. He knew Mr Davey as a welder. The site usually started at 7.00 am until 5.00 pm on weekdays and 7.00 am till 12.00 or 1.00 pm on Saturdays. He recalled the chipboard walkway on the roof. From the photographs,[14] it was necessary for the welders to weld a seam running alongside the inside of the beams to ensure that the kiln underneath was airtight. When doing this, it was necessary to move the timber walkways to gain access to the area. From order documents, the timber walkway was “yellow tongue” 19 millimetre thick board. The sheets were 3.6 metres long by 900 millimetres wide.
[14]PCB 112C and D
46 The yellow tongue ran along the length side of the particle board. When Mr Reid started work at the site, there were all temporary timber walkways. Eventually, they were all replaced with steel grating. This took place over a number of months. At the toolbox meetings in the morning, all the labourers attended, including Mr Davey and other IRP and Direxa people. They were conducted by Darren Hare. Thierry Schmitt and Darren Hare from Direxa were at each of the meetings. Claude Lebbe was there occasionally. The purpose of the meetings was so everyone knew what was being done on the site, for example where a crane was positioned or a hole placed. It also involved safety issues.
47 The roof of the kiln had a gradual slope towards the centre. The temporary timber walkways were placed so that there was a gradual incline towards the centre. Generally, there were not steps. If Mr Reid came across a step that was protruding, he would regard it as a hazard and change it. He thought the timber walkways were placed there by the labourers. There were angle brackets welded onto the steel beams to hold the timber walkways in place (as seen in the photograph at PCB 112B).[15] He could not recall the ends of the boards being screwed together.
[15]exhibit D
48 He was taken to the Toolbox Minutes of 2 December 2010 and 22 November 2010.[16] He was unable to say whether the reference to walkways was the steel plate or the timber.
[16]PCB 114-115
49 He did not regard the railing along the edge of the roof as something that had to be taken hold of. He did not use it for that purpose. He did not receive any direction that he hold onto it when on the roof.
50 He was taken to the photograph at PCB 112. A pink paint line can be seen on the steel step. He thought that when there were timber walkways, there was no step, although agreed at one end of a timber plank at Photograph PCB 112D, there was pink or orange paint.
51 He said everyone had the Austral induction, conducted by Harrold Crampton, who was a “sergeant major” about safety. He was taken to his statement made 24 August 2012.[17] He acknowledged as part of that statement, he said:
“When I arrived at the worksite the kiln had been constructed about 75 per cent and there were handrails and yellow tongue board that you walk along on top of the kiln. There were different height levels along the top of the kiln. The height changes were sprayed yellow and there was a handrail that extended across the roof to prevent workers going past in areas that were unsafe and still under construction.”
[17]exhibit 6
52 Further, according to his statement:
“The workers would in the course of their work need to lift a board up, and this was why the boards were not bolted down. If the board was lifted up, it was marked with yellow and black striped safety tape, and a temporary walkway put around it. … Red plastic bollards were also put in place to make workers aware the walkway had been changed.”
Mr Reid accepted that when there was a change to the structure of the walkway, it was highlighted with red and black safety tape.[18]
[18]T244
53 He acknowledged that statement was correct. He did not recall seeing any protruding timber on the roof of the kiln. He walked over the area on the roof of the kiln regularly. He said the “3-point contact” was to do with going up and down the stairs leading to the roof.
David Wrout
54 Evidence was given by Mr David Wrout. He was employed by IRP at the kiln site in January 2011, as a trades assistant. He had a background of work upon construction sites. He had an initial induction at the site conducted by Austral. He worked there until he suffered a back injury on 18 April 2011. He said site management was controlled by Darren Hare of Direxa[19]. There were other persons from Direxa who had supervisory roles, including Claude Lebbe and Thierry Schmitt. They were French. He would see them if something had to be purchased or constructed.
[19]T279
55 Mr Wrout was the elected health and safety site representative. His only authority was as to safety issues. He could stop the work for safety issues. He reported to Darren Hare and would pass on problems to be fixed, to him. He recalled something of Mr Davey’s injury. He thought he assisted in filling out a form. He recalled that some walkway boards were not fixed in place and created a hazard, before the steel floor was installed. He was asked:
Q:What is your recollection as to the condition of the timber walkway, how it was affixed?---
A:Haphazardly. It was just some boards were laid there, other boards had – were up against the actual edge of the hand railing. Some had kickboards, some didn’t. They weren’t properly affixed to anything, they weren’t properly affixed to each other, and, as I said, they didn’t complete the whole walkway. It just stopped somewhere along the line and might continue ’cause the kiln was so big – the kiln was over 200 odd metres long, so there were parts of it that weren’t covered but people still had to work there and you had to access that.”[20]
[20]T283, L30 et seq
56 Generally, as the height of the steel beams increased around the centre part of the kiln, the timber walkway sloped at a gradual angle. He said that if he had seen a timber plank protruding 6 inches or thereabouts, that was not a safe situation and he would have done something about it. He said the timber planks needed to be flush.
57 He produced minutes of various safety meetings. He said there were the following meetings:
· The Monday meetings on the site which were conducted by Austral and which were attended by the heads of the various contracting companies. The labourers did not attend. These meetings were run by Austral (“the Monday meetings”).
· Each week on a Tuesday morning there was a “toolbox” meeting. He was involved in these meetings and these involved various representatives, including IRP personnel, Direxa personnel, including Daz Hare, Bruce Little and, on occasions, Harold Crampton. Also present were various trades assistants and labourers from IRP whose names were recorded on an attendance sheet (“the Tuesday meetings”).
· Each morning he would make a tour of the site with Harold Crampton from Austral. Immediately following, there would be a daily start-up or toolbox meeting (“daily toolbox meetings”).
58 Mr Wrout produced minutes of various of the Tuesday morning meetings, and the Monday meetings.[21] In the minutes of the Tuesday meeting of 29 March 2011, the following appeared:
“Matt Davey brought up a safety issue regarding the walkway on top of kiln. The walkway on top of kiln has gaps between the structure and a piece of wood has been used to cover gap, causing a trip hazard.”
[21]exhibit L, exhibits 7, 8 and 9
59 Aside from that reference, he could not locate anything in the minutes to record Mr Davey’s tripping incident.
60 In relation to the temporary timber walkways, in some areas they were good and some areas not.[22] If, on the morning walks Mr Crampton pointed out a safety issue, he would sometimes take it up with Darren Hare, or if it was a small matter, he would undertake to do it himself. Generally, if a worker suffered a work incident, he would normally take it up with Darren Hare. Sometimes he might go up to Harold Crampton or down to someone at IRP. He was not present at the meeting of 29 March 2011.
[22]T319, L13
Darren Hare
61 The only witness called to give evidence by the defendant was Mr Darren Hare. In 2010, he was the construction site supervisor for Direxa at the Wollert kiln construction site. He was responsible for overseeing the day-to-day running of the kiln site. Thierry Schmitt assisted him. The rest of the workforce in the construction area was employed by IRP.
62 All new workers to the site underwent an induction conducted by Austral. Harold Crampton was the occupational health and safety manager for Austral. The occupational health and safety procedures were initiated by Direxa. Direxa produced the SWMS. Harold Crampton read them. When a new worker was appointed, he underwent induction by Austral and then was sent to Mr Hare to be inducted by Direxa and told of the site rules, including going through policies and procedures. Each worker had to sign off on the SWMS in his area.
63 The first thing done on a working day was that Mr Hare and Harold Crampton would walk the site at 6.30am. Work would not be allowed to start until that walk took place. David Wrout was involved in the process later. The whole site was covered, including on the roof of the kiln. Safety issues were identified and Harold Crampton would direct Mr Hare to fix them immediately. He was strict and demanding in that regard. There were other contractors on site, including concreters, electricians, roofers, builders and machine operators. They were all contracted to different companies.
64 The next thing that occurred was the morning toolbox meeting. That involved only the IRP personnel and Mr Hare, although Harold Crampton attended occasionally. Concerns about safety issues were discussed and dealt with. Daily procedures such as where a crane might be operating were discussed so that everyone knew what was happening on the site. In addition, there were Monday meetings with all the contractors. Mr Hare went to these. Sometimes there were IRP personnel. There were safety aspects discussed at the Monday meetings. They were conducted by Mr Crampton. He did not so much tell the contractors how to do things in a safe fashion, but would carry out “audits” and give his findings.
65 Mr Crampton was on the site all day every day and would observe safety procedures and policies. If there was a problem in an area related to Direxa workers, Mr Crampton would ring him and demand something be done.
66 In addition, there were Tuesday meetings which Mr Hare attended. They were specifically for the IRP employees. There was general conversation about safety issues and concerns. Topics would be picked for particular discussion, such as manual handling. If a safety issue was raised, it was taken seriously, discussed and implemented.
67 Mr Hare worked as a general supervisor and was around the site, including on the roof, to ensure safety matters were observed.
68 On the roof, the welders did seam welding between the steel beams. It took about three months. The temporary timber walkway was not screwed down, but was clamped or held with brackets on the side. These brackets did not go along all of the walkways. There were about three height changes representing an increase in the height of the steel beams. On the timber walkways, one board was meant to be butted up against another so it represented a sloping incline, and not a step. At the point where the beams rose, there was a height rise of about 200 millimetres. At each rise, the boards were clamped. There was meant to be no overlap between the boards. There were never steps on the temporary walkways.
69 He was aware Mr Davey tripped and fell, although he could not recall who told him. He recalled he immediately went to see the area and spoke to Mr Davey. He asked him if he was okay and needed medical help. He said “no”. Mr Davey told him that he tripped, although did not say what he tripped on. He continued to work. Subsequently, he saw him with a compression sleeve on his wrist, and asked him what happened. He said Mr Davey said he had been playing the guitar all weekend and his wrist was sore.
70 The kiln was approximately 200 metres long. There was a handrail along the sides. There was a written SWMS that, when walking up the stairway to get to the roof, both hands had to be on the rail on the stairs. That was not the case with the rail on the roof. There was no safety direction about holding onto the rail, whether the employee was carrying something in his hands or not. Mr Hare never saw a gap between the two pieces of board in the temporary walkway.
71 In cross-examination, he was taken to the Direxa safety system for Wollert No 2.[23] He agreed with the contents, in particular paragraphs 2, 5.3, 5.4 and 10.
[23]PCB 129-133, Exhibit AA
72 He agreed he was responsible for management of site safety and was responsible for supervision of IRP employees in relation to safety. He agreed he had the obligation to take all reasonable care for the safety of the IRP workers.
73 If Harold Crampton raised a matter at a safety meeting, Mr Hare would undertake to do it. The temporary walkway was laid under the supervision of Direxa. Ultimate responsibility for it was with Direxa. Proper construction for the timber walkway was that the edges be butted together. There were no steps on the timber walkway, but rather an incline. It ought to have been maintained so that there was no gap or lip. It would have been a trip hazard to have steps. If there had been even a 9-millimetre raise, that would have been a tripping hazard. If one board had protruded 6 inches or so over another, it would be dangerous and should have been attended to. The boards lying one on top of the other as depicted in the photograph at Plaintiff’s Court Book 112A, was not satisfactory nor appropriate. Direxa employees were responsible for placing the timber planking on the roof in the first place. IRP employees removed the boards to undertake the welding, and then replaced them. Direxa oversaw this process, making sure it was safely and properly undertaken.
74 Mr Hare was taken to various of the photographs[24] and agreed that on some of the photographs the clamps holding the boards in place were not evident. In terms of the overlapping boards shown in the photograph at PCB 112A, he accepted that that was inappropriate as a walkway, as there was a definite overlap. He said the board may have been pulled out for work to be carried out underneath. Other boards depicted in various other photographs might have been used by tradesmen to place tools or materials upon.
[24]PCB 102-3, 107, 109, part of exhibit D
75 He said that the boards were put in place not by Direxa employees, but IRP employees originally.
Evidence as to damages
76 Mr Davey gave evidence that his wrist was painful the next day, although he thought it would heal. He went to his general practitioner and an x‑ray showed no fracture. He continued at work for about a week although with difficulty and was sent to a doctor, Dr Dayasagar, from a local clinic. A CT scan was done and he was then sent to a hand surgeon, Mr Thomas. He also had physiotherapy and a hand splint. He received an injection, which helped. He eventually ceased work on 11 May 2011. He could not handle the heavier tools which required the use of both hands. He was told by Mr Thomas he had a tear of the TFC cartilage. Physiotherapy was not helping. He was told not much could be done. He was prepared to go back to work on reduced duties, but was laid off. It was not possible to work as a welder on reduced duties.
77 He was referred by the insurer to HealthE Work. He wrote to a number of companies seeking jobs, including Harvey Norman and Dick Smith, hoping that his IT background might help him get a job in sales. He struggled to find work. Eventually he found a part-time job with “Sanity”, teaching computer use to older people. He gets three to five jobs a week at people’s homes and is paid $30 per job. It is not a living wage.
78 He had always been interested in locks, and in February 2013, commenced a course at the North Melbourne Institute of TAFE as a Certificate III in Locksmith and Security. It was two-and-a-half days a week. Mr Davey intended to qualify in the course and then look for work as a locksmith. He thought this would enable him to remain in Australia and gain permanent residence.
79 He left Australia on 9 July 2013 to attend his father’s seventieth birthday in the United Kingdom. It was his intention to return on 25 or 26 July 2013. He contracted pneumonia in the United Kingdom and was in hospital. He was advised he could not fly for six or eight weeks. He communicated with the TAFE but was dismissed from the course. According to his visa, he has to leave Australia by December 2013 and thought that it was unlikely he would be able to remain in Australia or obtain employment. The economy in the United Kingdom is ‘down the drain’.
80 Absent the incident, he would have continued work as a welder and that job would have enabled him to stay in Australia permanently. He loved the welding.
81 At the present time, if he rests his wrist, there is not much pain. Jobs such as washing up or opening bottles or jars are difficult. He cannot play the bass guitar, which was a passion for 25 or 30 years. If he does much with the wrist, it aches for hours.
82 He was cross-examined. He said he was right-handed and the injury was to his left wrist. He was asked about other work, and said that he had two jobs as background crowd in television shows. Aside from the jobs with Harvey Norman and Dick Smith, he applied for a large range of jobs and had the details if required. They were all advertised jobs, and mainly full time. He admitted he thought that there was a range of jobs he could do.
83 He is selling his house in the United Kingdom because of the shortage of funds. He read an email which he had received from the North Melbourne Institute of TAFE saying they had reported him to the Department of Immigration for not attending the course. He was very upset about this. He had completed one semester of the locksmith’s course and had passed the exams. He was going to be a week late for the second semester, but the tutors were happy with that.
84 He said that his current visa was as part of his wife’s 457 Visa. He was “on it”. Initially he had a student visa, which expired after he completed the Holmesglen TAFE course. His wife’s studies at La Trobe University finished at the end of 2010. She was sponsored by Austin Health. She now had a recent graduate visa and was able to work and study for eighteen months until December 2013. Neither he nor his wife were eligible to remain in Australia beyond that time. It looked like he would have to leave Australia in December 2013.
85 He said he physically could do IT work, but because he had been out of the industry for a period, and was over forty, the chances of him getting a job in that area were negligible. There was no point in even applying. He said there is a vast difference between teaching elderly people home computer and running a computer system in a large company.
86 He really only had treatment for six months after the injury. He currently receives $933 per week on WorkCover, which is due to end next month. He denied he did not have an incentive to find work.
87 Evidence was given by Dr Leon Le Leu, an occupational physician. He examined Mr Davey on one occasion on 8 March 2012. He received a history of Mr Davey’s injury on 15 March 2011, including that he tripped over a plank which was sticking out 6 inches, and caught his toe under the plank, falling forward on his outstretched left hand. To Dr Le Leu, he gave a history of treatment for a period of six months after the incident and it was noted that he was unemployed at the time of examination. Mr Davey complained that if he was gentle with his left wrist and did not use it very much, he suffered a dull ache, but when he used the wrist a lot, particularly in strenuous activities, it became painful. An MRI scan indicated that there was capsular thickening on the dorsal part of the palm, together with a tear at the TFC. Mr Davey complained that he was unable to use heavier work equipment, including an angle grinder and welding equipment. He was able to drive for less than an hour and could carry light bags in his left hand. He was able to do most of his housework and complete self care tasks. He was unable to play the bass guitar and had difficulty holding a camera.
88 Upon examination, there was reduced radial movement of the left wrist as compared to the right, and a significantly lesser grip strength. Dr Le Leu concluded Mr Davey was suffering from a ligamentous injury to the left wrist, including the development of a ganglion and a tear to the TFC. He recommended no change to Mr Davey’s treatment and said that he was incapacitated for all work which required heavy or stressful use of the left wrist, in particular for welding and work in the construction industry.
89 Dr Le Leu said that eventually the area of the wrist would degenerate further and it was likely that Mr Davey would develop osteoarthritis in the wrist, more speedily in the left than would otherwise be the case.
90 Various reports of Dr Deviprasad Dayasagar were tendered into evidence.[25] He noted that after the incident, Mr Davey developed de Quervain’s tenosynovitis in the left wrist which he said settled with corticosteroid injections. He noted the MRI revealed a TFC tear. Dr Dayasagar said Mr Davey had the capacity for work, given his intermittent pain symptoms, in an area where he would not suffer discomfort or pain in the left wrist. He thought Mr Davey should try returning to work as a welder and that there were no future training options.
[25]exhibit M
91 Reports of Mr James Thomas, hand surgeon, were tendered.[26] He diagnosed Mr Davey as suffering de Quervain’s tenosynovitis which, to some extent, had settled with cortisone injection. Upon review in September 2011, Mr Davey complained of minimal discomfort with day-to-day activities but difficulties with lifting or gripping with his left hand. Mr Thomas thought the symptoms would settle over time. On the last review of February 2012, Mr Davey was still complaining of similar symptoms, unchanged from the previous examinations. Mr Thomas said he was not able to comment on work capacity.
[26]exhibit N
92 Mr Davey was examined by Mr Peter Scott, surgeon, on 5 February 2013, and his report was tendered into evidence.[27] To Mr Scott, Mr Davey complained of mild persistent ache in the left wrist, with symptoms worse upon repetitive or forceful movements such as cutting the grass, washing dishes, carrying a vacuum or playing the guitar. On examination, Mr Scott noticed a reduced range of movement in the left wrist. He diagnosed a soft-tissue injury to the wrist with a minor tear to the TFC and a small ganglion. He noted that the condition was stable and Mr Davey had not made a full recovery from the incident.
[27]exhibit O
93 A medical report of Dr Clive Kenna of 26 April 2013 was tendered.[28] Dr Kenna is a consultant in musculoskeletal pain management. He noted Mr Davey had undertaken a locksmith course which had cost $13,000 for one year. Upon physical examination, Dr Kenna noted fairly marked and significantly reduced power in the left wrist. Dr Kenna considered that Mr Davey’s previous work as a welder would be too arduous given his injured left wrist. He diagnosed Mr Davey as suffering a soft-tissue injury to the left wrist, in particular to the TFC. He noted Mr Davey had quite good wrist movement and that the injury had stabilised. He thought he was fit for modified duties of a lighter or less physical type than he previously undertook. He had the capacity to do work, say, as a sales representative, certainly on a part-time basis.
[28]exhibit P
Conclusions from the evidence
94 The starting point is the credibility of Mr Davey. He gave evidence in a forthright and measured manner. I found him to be an impressive witness and a witness of truth. He answered questions in cross-examination in a manner I would expect of an honest witness. I detected no signs of embellishment nor exaggeration. There were no major credit issues put to him the in course of cross-examination, save Mr Titshall, for the defendant, submitted I should have significant reservations about his credibility as, when he returned to the site of the incident three or more days later and took various photographs, he did not take photographs of the precise place where the incident occurred. However, I do not see this as a significant credit issue. In evidence, Mr Davey said he could not recall why he had not taken photographs of the precise spot, but it may well have been because the piece of board had been repaired and replaced or, alternatively, he was concerned about taking photographs in the presence of supervisors.
95 Because of his clear description of the manner in which the incident occurred, I have little hesitation in accepting his evidence in that regard. It was not put to him that he had concocted the incident, nor was it put he had exaggerated how it had occurred, in particular, the extent to which the edge of the board protruded over the lip of the other. While in parts of his evidence he did refer to a “step”, I am satisfied he was referring to the rise between the steal beams at intervals, and not a step on the timber walkway.
96 Having accepted Mr Davey as a witness of truth, I accept his explanation of the circumstances in which the incident occurred. I accept that, in accordance with the evidence of almost all of the other witnesses who were present, that the temporary timber walkway was laid in such a manner that there were no steps, but rather a gradual incline as one walked towards the centre of the kiln, and a decline down the other side. In particular, it was clear from the evidence of Mr Hare, that the appropriate method of laying the wooden walkway was that the edge of one board or plank lay flush or “butted” against the edge of the next board, without any lip. This meant there was a smooth surface without any tripping hazard. I can well understand the need for a smooth surface in an area such as the roof of the kiln, where workmen were regularly moving about, attending to their construction duties, often carrying pieces of equipment.
97 Again, according to the evidence of Mr Hare, the timber planks were meant to be held in place by metal brackets or clamps, as can be seen from the photograph at PCB 112B. The clamps were intended to be placed at the joins of the boards so as to secure the join flush against the railing on the outside of the walkway. However, it is clear from a number of the other photographs[29] that the clamps were not placed at regular intervals, and at the joins of the boards along the temporary walkway. Mr Hare admitted this in the course of his evidence. The photograph at PCB 109, although probably reflecting the state of the roof of the kiln at an early time, shows the walkway clearly along the right-hand-side. It would appear there are not only no clamps visible in the foreground, but there are gaps between the boards, and at one place one of the boards or planks is considerably narrower, and incapable of being secured by clamps over the joins of the boards in front and behind.
[29]PCB 102, 103, 105, 109, 112A, 112C and 112E
98 Further, I accept the evidence of both Mr Davey and Mr Wrout that the planks of wood laid on the walkway were laid in a haphazard manner.[30] In particular, some planks were loose and not properly secured and in part the walkway was not completed.
[30]T111, L9; T283, L30
99 I accept that the work practice was to remove a wooden board when welding work was needed to be done to the seam between the steel beams immediately below. Once the work was completed, the temporary board ought to have been replaced.
100 As stated, I accept the evidence of Mr Davey that he was walking along the walkway carrying welding equipment over his right shoulder. Unexpectedly, he caught the toe of his boot under a timber plank which was protruding something between 20 and 40 centimetres above and out from the walkway. The likelihood is that one of the boards was placed on top of another, leaving one edge protruding. On any view, this was a significant tripping hazard. All of the witnesses called accepted that to be the case. It is impossible, from the evidence, to say how and in what circumstances the protruding board came to be in that position. It is possible it was not properly secured in the first place, or that it had been removed to allow welding work underneath, and then not securely replaced. It is also not possible to say for how long the protruding board was in that position. In any event, it was a hazard, not only because of the significant protrusion, but also because it was unexpected, in that the wooden walkway accommodated the rise in the steel beams by an incline rather than a step and so the workers were used to walking along an incline rather than expecting some protrusion.
101 It should be said that generally at this workplace, health and safety issues were treated seriously and a relatively comprehensive system of implementation and maintenance of health and safety systems and protocols were in place. These included the following:
· IRP, unlike many labour-hire employers, had a prominent presence on site. This included the managing director, Mr Sparke, Mr Dessman and Mr Rosario. Mr Wrout was the elected occupational health and safety representative. Those persons were present regularly during the course of a working week, and I accept the evidence of Mr Sparke that the health and safety of IRP workers was a matter of importance to the company.
· There were induction programs carried out both by Austral and Direxa in respect of all new workmen on site. These programs included occupational health and safety matters.
· IRP, at the outset, conducted a safety systems audit[31] which examined the safety systems on site. Further, IRP conducted a job assessment[32] which examined the tasks to be carried out, in particular by the trades assistants, and the safety system in place in respect of those tasks.
[31]exhibit A
[32]exhibit B
· When he was appointed health and safety officer, Mr Wrout took his duties seriously and enforced safety when he saw the need.
· Safety issues were of importance to Austral and enforced through Mr Harold Crampton, Austral’s health and safety manager for the site, who required strict compliance with occupational health and safety standards. On occasions, employees were dismissed or stood down for health and safety breaches.
· Direxa was responsible for the implementation of SWMS. There were hundreds of such documents in existence relating to a range of tasks to be carried out by employees on site. It is notable, however, that there was no evidence of any SWMS in relation to the task of laying or removing and replacing the timber walkway.
· Various safety meetings and toolbox meetings were conducted regularly. The Monday meetings, run by Austral, were held with the representatives of the various contracting companies and discussed the progress of the site, and included health and safety issues. The Tuesday meetings, involving IRP personnel and Messrs Hare and Little of Direxa, discussed what was happening on the site and included health and safety issues. Each morning, there was a tour of the site by Mr Crampton and Mr Wrout, followed by a daily toolbox meeting in which, amongst other things, safety issues were discussed. The minutes of these various meetings reflect safety issues which were raised from time to time.
· Mr Hare was responsible for safety management on the site and supervision of IRP employees in relation to safety. He took his duties seriously.
102 In these circumstances, it is somewhat surprising that the wooden planks were laid in the haphazard manner, which I accept was the case from the evidence of Mr Davey and Mr Wrout. Of significance, in my view, is that there was no SWMS presented into evidence in relation to the task of laying the temporary walkway, or replacing the boards in the correct position once they had been removed to enable work to be carried out. I infer that there was no SWMS undertaken for that task.
103 Further of significance is the evidence of Mr Reid that if boards of the walkway were moved, then yellow and black striped tape or bollards were placed into position to alert workers to the change. This would appear to be the system of work which ought to have been in place in respect of the situation which Mr Davey was confronted with at the time of the incident.
104 Given these matters, I am of the view the incident occurred because Mr Davey was not provided with a safe system of work. There was a want of reasonable care by failing to implement and maintain a system to ensure that the boards constituting the walkway were secured in position so that they did not protrude one upon the other as to cause a tripping hazard, and in the event they were removed to enable work to be carried out on the seam, that when they were removed, the area was appropriately cordoned off or clearly marked in such a manner that it was clear the area was not to be walked upon. I am satisfied that at the time of Mr Davey’s incident, either no such system was in place, or if it was, it was not followed.
105 Mr Titshall contended that there were three bases upon which it was clear that there was no neglect or default by any party which gave rise to the incident:
· I should not be satisfied that the incident occurred in the manner described by Mr Davey and that if he fell, he did not trip on a piece of board protruding in the manner described. For the reasons given, I am satisfied that the incident happened in the manner described by Mr Davey.
· Such was the extensive occupational and health and safety protocols implemented and maintained by all parties at the site, that no more could reasonably have been done to prevent the incident. While I accept generally, that safety was an important issue and proper safety procedures were in place, those protocols did not extend to the timber walkways, or if indeed they did, as described by Mr Reid, then they were not implemented when Mr Davey tripped.
· There was no evidence as to how long the board had been in that protruding position. On the evidence of all the witnesses, the roof of the kiln was walked extensively by the occupational health and safety representatives and no such hazard seen or reported. How then, postulated Mr Titshall, could Direxa, or any other party, take adequate steps if indeed the protrusion had only been there for a short time? However, in my view, the obligation to take steps to ameliorate what was undoubtedly a hazard, fell to be undertaken before the board was left protruding, even accepting it was in that position only for a very short time. The obligation was to have in place a system to ensure that either boards were not left protruding, or if they were to be removed to enable work to be done, that the area be appropriately cordoned off. Neither occurred in this instance.
106 In my view, the main question to be determined in this proceeding is not how the incident occurred, or even whether it occurred through the failure to provide a safe system of work, but rather the apportionment of responsibility as between Direxa, Austral, IRP, and the worker, Mr Davey himself.
The authorities
107 The VWA alleges, and Direxa admits, Direxa was the occupier of the premises at the time of the incident. The duty that an occupier owes is set forth in Part IIA of the Wrongs Act 1958. The duty in s14B(3), is:
“(3)… to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will 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.”
108 Consideration is then to be given to the various subparagraphs contained in s14B(4), relevantly, in this case:
“(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d)the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
…
(f)the ability of the person entering the premises to appreciate the danger;
… .”
109 In Victorian WorkCover Authority v Jones Lang La Salle (Vic) Pty Ltd,[33] Beach J said:
“… the Wrongs Act does not create a statutory duty the breach of which sounds in damages at the suit of an injured person. Part IIA redefines the common law duty owed by an occupier of premises, setting out matters to be taken into account in determining the scope of the duty and whether the duty has or has not been discharged in a particular case.”[34]
[33][2012] VSC 412
[34]at paragraph [5]
110 His Honour then went on to consider whether Part X of the Wrongs Act had application. He concluded, despite the reference in s138(3)(b) that the calculation referred to in that subsection was to be made without reference to Parts VB, VBA and X of the Wrongs Act, Part X had application when considering the provisions of s138(1) and (2).[35] Further, the reference in s45(b) of the Wrongs Act to that part having no application to a claim for damages under Part IV of the Act was not relevant, because a recovery claim under s138 of the Act was not a “claim for damages”.
[35]at paragraphs [36]-[37]
111 I therefore accept the provisions of Part X of the Wrongs Act have application in determining the extent to which the act, default or negligence of any of the relevant parties caused or contributed to Mr Davey’s injury.
112 In considering the general principles set forth in s48 of the Wrongs Act, I consider the risk of harm to Mr Davey was foreseeable, that it was not an insignificant risk and that a reasonable person charged with the duty of taking reasonable steps ought to have taken precautions against that particular injury. Further, in considering s48(2), I am satisfied there was reasonable prospect that harm would occur if care was not taken, and that there was a likely prospect of the harm being significant. Further, the burden of taking precautions was not substantial.
113 In considering whether the risk posed to Mr Davey was obvious, as set forth in Division 4 of Part X of the Wrongs Act, I am not satisfied that the tripping risk posed by the protruding board was an obvious risk. In considering whether the worker, Mr Davey, himself was negligent, I bear in mind the matters referred to in s62 and s63 of the Act.
114 Section 61 has no application, as this recovery proceeding is not “a claim for damages in tort”.
115 In Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd,[36] the Court of Appeal considered the nature of the relationship between a “host” employer and a worker provided by a labour-hire company. Ashley JA described that duty as “akin to that owed by an employer to a worker”. However, in that case, the labour-hire company did not have the same presence on the premises, nor the same involvement in matters of health and safety, as was the case with IRP.
[36][2006] VSCA 63
116 In TNT Australia Pty Ltd v Christie & Ors,[37] a worker employed by an employment or labour-hire company was assigned to a brewery operated by TNT. He was injured when a forklift malfunctioned and ran over his foot. The warehouse where the accident occurred was owned and operated by TNT. The forklift was owned and serviced by another company, Crown, and leased to TNT. The labour-hire company had no presence on site, and the worker was the only casual outside employee there. His duties were the same as other TNT workers, and he received directions as to the work to be undertaken, by the TNT supervisors. A representative of the labour-hire company attended the brewery once a week but the visits were concerned with administrative matters. TNT exercised day-to-day control over the worker’s activities, treating him to all intents and purposes as its own employee. The New South Wales Court of Appeal confirmed the findings of the trial judge that TNT owed a duty to the worker analogous to that of an employer in relation to the daily control and supervision of the worker. That duty extended to a “non-delegable” duty carried by an employer. Mr Stanley submitted that in the circumstances, Direxa did have that same non-delegable duty, akin to that of an employer and, consequently, anything done or omitted to be done by IRP’s employees, in particular the trade assistants working on the roof, led Direxa to be vicariously liable if those acts or omissions caused injury.
[37](2003) 65 NSWLR 1
117 In this case, it is not suggested by Mr Titshall that Direxa did not owe a duty of care to Mr Davey. Clearly, in the circumstances, it did. The duty owed was a duty to take reasonable care that Mr Davey was not injured at the kiln site by things done or omitted to be done at or in relation to the premises. For reasons which I shall shortly give, Direxa had extensive control, not only in respect of the worksite, but of the system of work implemented and maintained there. This case is not so much concerned with whether or not Direxa’s duty to the worker was non-delegable, as it is not suggested that Direxa attempted to delegate the duty it owed. To that extent, whether Direxa had a non-delegable duty is not an issue of significance. The extent to which a host employer’s duty is akin to that of an employer will depend upon the circumstances of each case.
118 There are distinct differences between the facts of this case, and those of Christie.[38] IRP had a significant presence on the site and had certain obligations in relation to health and safety. It was not a situation where a labour-hire company provided employees, and took no part in the role they played on the worksite or the health and safety issues affecting them. To the contrary in this case, it did have a presence, had an elected health and safety representative, and the issue of safety was one very much addressed by IRP.
[38]TNT Australia Pty Ltd v Christie & Ors (supra)
119 The issue of the shift in vicarious liability from a general to a temporary employer was considered in Deutz Australia Pty Ltd v Skilled Engineering Ltd.[39] Ashley J (as he then was), said:
“… a general employer which seeks to shift vicarious responsibility for the negligence of its servant onto another bears a heavy onus, which can only be discharged in quite exceptional circumstances.”[40]
[39](2001) 162 FLR 173. See further Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) [1947] AC 1 at 10
[40]at paragraph [109]
120 The circumstances under which a transfer may be discerned included:
“• Where the hirer can direct not only what the workman is to do, but how he is to do it.
• Where the hirer is entitled to tell the employee the way in which he is to do the work.
• Where the complete dominion and custody over the servant has passed from the one to the other.
…
• Where it can be said that the hirer has such authority to control the manner in which the worker does his work that it can be said that the worker is serving the hirer, not merely serving the interests of the hirer.
… .”[41]
[41]at paragraph [113]
121 I am satisfied that in order for Direxa to be vicariously liable for the acts or omissions of IRP workers, the circumstances need to be exceptional. While it is clear Mr Davey was “hired” to Direxa by IRP to provide his specialist welding services, IRP did retain some elements of control, particularly in relation to matters of health and safety. It had its own induction program, its own safety systems audit[42] and its own job assessment.[43] Through its personnel, including Mr Sparke and Mr Dessman, it was involved in matters relating to operations at the site, in particular, health and safety issues. It had elected, from amongst its employees, Mr Wrout as the health and safety representative. Further, it was IRP which selected its various employees for the tasks which they were to undertake.[44] In those circumstances, I am not satisfied that vicarious liability for the actions of the IRP workers was transferred to or adopted by Direxa.
[42]exhibit A
[43]exhibit B
[44]Fleming, The Law of Torts (ninth edition) page 421
122 A clear and helpful statement on the law is set forth in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2).[45] The Court said:
“At common law, as under that Act [the Occupational Health and Safety Act 2004], the question of greatest importance concerns the content of the labour hire employer’s duty of care. The critical difference between the labour hire firm and the host employer, of course, is that the host controls the workplace and the conduct of the operations which take place there during the work day.
… It is nevertheless clear from the case law that the labour hire firm has a duty to take reasonable care to ensure a number of things. These include taking reasonable care to ensure that the host workplace is safe, that the host employer has in place appropriate safety systems, that the task for which the labour hire employee is being supplied is clearly defined and that the labour hire employee is properly trained for that task. The grey area relevantly concerns the extent to which it is (to adopt the language of the Occupational Health and Safety Act 2004) ‘reasonably practicable’ for a labour hire firm to monitor and supervise what goes on in the host workplace while the employee is working there.”[46]
[45][2005] VSCA 185
[46]at paragraphs [10]-[11]
123 In my view, this statement has application to the present case. For reasons which I shall shortly provide, Direxa controlled the workplace, and the conduct of the operations there. Nonetheless, a duty remained with IRP to take reasonable care to ensure that the workplace was safe, bearing in mind the extent to which it was reasonably practicable for IRP to monitor and supervise what went on there. These matters are relevant in determining the scope of the duty and whether there was a breach.
124 I shall now consider whether and to what extent the act, default or negligence of the various parties caused or contributed to Mr Davey’s injury.
Contributory negligence by the worker, Mr Davey
125 Mr Titshall submitted that Mr Davey ought bear 25 per cent liability because of his own contributory negligence on the following bases:
· In the circumstances that prevailed, particularly that the light in the area was adequate, and that the board protruded something between 20 and 40 centimetres, the incident occurred because he failed to keep a proper lookout.
· At the time, he ought to have kept one or other hand on the handrail which would have significantly reduced the risk of him tripping.
126 In the course of evidence, Mr Spark suggested that it was an enforced safety requirement that workers on the roof have one hand on the railing. However, as the evidence progressed, it was clear that that was not the case. The only requirement was that a worker have a hand on each rail as he ascended or descended the stairs leading to the roof. There was no reason why a worker should be expected to place one hand upon the handrail when walking along the wooden pathway. That was particularly so if a worker was carrying equipment, as was Mr Davey in this case.
127 There was no reason for him to suspect there would by any protruding timber, as he had not encountered that before. Because of his prior experience, he expected the walkway would provide an even surface. Even if it could be said that he had an obligation to walk along, keeping an eye out for a tripping hazard, his failure to do so was at most mere inattention or inadvertence.[47]
[47]McLean v Tedman (1984) 155 CLR 306
128 Mr Davey was not negligent in the circumstances.
Liability of Austral
129 It is never an easy matter to asses the liability of a party in a recovery action when that party is not represented.
130 It was not contended by Mr Stanley that Austral did not owe a duty to Mr Davey. Although the evidence was not clear, it would appear likely Austral was also the occupier of the premises. Indeed it owned the site, and was responsible for contracting with Direxa to build the new kiln. It had a considerable presence on site, in particular, through Mr Crampton, its health and safety manager. His capacity to direct not so much the work that was being undertaken, but issues of health and safety, was considerable. Austral conducted an induction of new workers.[48] The induction included various safety rules, with the direction that persons breaching the rules were liable for dismissal from the site. Mr Davey completed Austral’s site induction.[49]
[48]exhibit 2
[49]exhibit 3
131 However, for reasons which I shall shortly provide, it was Direxa which established and controlled the system of work carried out. It controlled the construction site and was primarily responsible for health and safety upon it. In particular, the materials for the construction of the walkway were obtained by Direxa, it supervised the building of the walkway and directed how the work was to be done. In my view, responsibility for taking appropriate steps to ensure the walkway provided safe passage and for it to be appropriately cordoned off when necessary, lay with Direxa and not with Austral.
132 In submissions, Mr Titshall did not point to any particular act or omission of Austral which would have reduced the risk of injury. In my view, there was no negligence or breach of duty by Austral.
Liability of Direxa
133 I have concluded that a significant proportion of responsibility for the injury suffered by Mr Davey lies with Direxa. I say that for the following reasons:
· Austral contracted with Direxa to construct the new kiln. By its Defence, it admitted:
§ it was the occupier of the site
§ it was responsible for things done or omitted to be done in relation to construction and building activities carried out
§ it was responsible for the system of work for which Mr Davey was subjected while at the site
§ Mr Davey was working under its supervision, care and control.
· It was responsible for the establishment and maintenance of the system of work at the site, and matters relating to the occupational health and safety there.
· It provided the plant and equipment, in particular the timber boards which made up the walkway, and was responsible for establishing and creating the walkway and supervising activities which were carried out upon it, including the removal and replacement of the timber boards. It was responsible for the creation and maintenance of the SWMS in respect of the majority of tasks and activities carried on at the site. Of note is that it failed to establish and maintain a SWMS in respect of the maintenance of the timber walkway.
· According to the “Direxa Safety System” document,[50] Direxa:
[50]exhibit AA
§ was to ensure any risks to health and safety were eliminated (clause 1)
§ was to meet the contractual obligations to a high standard of occupational health and safety (clause 2)
§ was to carry out site induction and training (clause 5.3)
§ was to supervise all works on site (clause 5.4)
§ was to coordinate safety orders, be represented at weekly site meetings and to carry out safety corrective action (clause 10.4).
· According to the evidence of Mr Hare:
§ he was the person on site to manage health and safety matters[51]
[51]T372, L4
§ he assumed the obligation in respect of safe premises and safe systems[52]
[52]T372, L8
§ the IRP employees were under his day-to-day care and control[53]
[53]T372, L12
§ he, on behalf of Direxa, had the obligation to take all reasonable care to ensure the site was safe[54]
§ Direxa assumed responsibility for making sure the premises were safe.[55]
[54]T372, L16
[55]T373, L9
134 In all respects, Direxa had the practical obligation to implement a safe system of work on the walkway. In looking at the injury suffered by Mr Davey, it is appropriate to pose the question, which entity at the site would reasonably be expected to establish and maintain a system to ensure a tripping hazard was not placed in his path on the walkway, or if one had been established, to enforce it by cordoning off the area, or alerting workers if boards were removed and not replaced? The answer is principally Direxa.
135 In my view, Direxa ought bear major responsibility for the incident.
Liability of IRP
136 The liability of IRP for the injury suffered by Mr Davey is to be considered in two contexts. The first is whether it failed in its duty to provide a safe workplace by ensuring there was a safe system was in place in relation to laying the boards on the timber walkway; alternatively, to ensure that if there was a system in place, that it was properly enforced. Secondly, if it can be inferred that either the removal of the boards, or their replacement in the manner which led to Mr Davey’s injury, was undertaken by IRP employees, ought IRP be vicariously liable for the acts or omissions of those employees?
137 As stated, it is clear IRP, through its various officers, had a significant presence at the worksite, and an involvement in mattes of health and safety to which I have earlier referred.
138 Posing again the question, given the failures which led to Mr Davey’s fall, which entities were responsible for taking steps to have in place a safe system of work or to enforce an existing system, then, in my view, some liability ought to attach to IRP. It held a non-delegable duty to ensure the workplace was safe for its workers. Its management personnel, including Messrs Sparke, Dessman and Rosario, were regularly on site. While it could not be said its obligations extended to ensure every aspect of the work being performed by its employees was the subject of a safe system of work, nonetheless, given the somewhat haphazard manner in which the boards were laid as described by various of the witnesses, and the fact that there was either no system prescribed for the removal of the boards, or if there was a system, that it was not properly enforced, IRP, given its presence, ought to have been alert to those issues and taken steps to rectify them. Given the extent to which senior personnel of IRP were present on the site, there was the opportunity to observe the state of the boards and to take steps to rectify the manner in which they were used to form the walkway. However, as stated, the principal responsibility lay with Direxa.
139 Further, as the laying of the boards and their removal to enable access to the seams for welding was undertaken by IRP workers, those workers, in failing to ensure the boards were securely laid, one flush against the next, without a protruding step, ought bear some responsibility. IRP is vicariously liable for those failures. However, it must be said that primarily the responsibility was to implement and enforce a safe system of work. If the workers were doing no more than carrying out their duties either without any system being implemented, alternatively, failing to ensure any existing system was properly enforced, then their overall responsibility was modest. Principally, Direxa, and, to a lesser extent, IRP, had the obligation to ensure the workplace was safe by the implementation and enforcement of safe systems. Any error by the workers was largely a failure of that system.
140 Bearing in mind all of the matters to which I have referred, in my view, it is appropriate to apportion liability as to 75 per cent to Direxa, and 25 per cent to IRP.
Damages
141 Section 138 of the Act entitles the VWA to be indemnified by third parties in accordance with s138(3). The indemnity is the lesser of the amount of compensation paid or payable under the Act, and the amount of damages calculated in accordance with the formula prescribed by s138(3)(b). It is common ground that Factor B is irrelevant, and Factor C is zero. Thus the relevant amount 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 … .”
142 It is thus necessary to assess the entitlement of Mr Davey to damages at common law for both pecuniary and non pecuniary loss, and reduce that sum by 25 per cent, reflecting the liability of IRP.
Pain and suffering damages
143 I accept the medical evidence of the treating and consultant practitioners that Mr Davey suffered de Quervain’s tenosynovitis to the left wrist as a result of the fall. He had a range of treatment within the first six months after the injury, including cortisone injections which reduced an aspect of his pain in the left arm. The more significant aspect of the injury, however, is a tear to the inner third of the TFC. While not the subject of extensive treatment nor surgical intervention, the damage to that area of Mr Davey’s left wrist has led to a number of significant consequences. The injury is to his non-dominant hand and providing the hand is rested, he does not suffer significant pain nor limitation. However, when he engages in moderately strenuous activity involving the left wrist, he suffers an exacerbation of the pain with significant restrictions. I accept that he finds activities which involve stressing of the wrist, including washing up and opening bottles or jars painful and difficult. I accept that he is unable to enjoy playing the bass guitar in the manner he has done for 25 or 30 years. While he did not play publicly, I accept that this was a source of enjoyment and satisfaction which is now effectively lost to him.
144 I further accept that it is unlikely that he will have any treatment in the future and that the injury is now stable. I accept the evidence of Dr Le Leu:
“I think he’s going to continue to have symptoms of the type he is having for the foreseeable future. And although there is no degeneration on this particular MRI, I think because of (sic) the dynamics of the wrist have been altered by the damage to the TFC, he will – this area will eventually degenerate and he will probably develop osteoarthritis more rapidly on that side of the joint than would otherwise have occurred had he not had the accident.”[56]
[56]T270, L19
145 I further accept the evidence of most practitioners that he is unable to operate heavier tools and equipment which require the use of both hands. I accept that this precludes him from undertaking heavy manual work, and particularly work as a welder. I accept that the loss of his capacities in this regard, both in respect of employment, and as a hobby, is significant to him, and sounds in damages.
146 I accept that the injury has caused a loss of dexterity in the wrist, although he is able to undertake most of his activities of daily living. He has suffered a significant reduction in grip strength.
147 It is put by Mr Stanley that a significant aspect of general damages is that because of his injury, his prospects of becoming a permanent resident in Australia are significantly reduced, if not lost completely. The issue of Mr Davey’s prospects for permanent residency is complex. It would appear that when he came to Australia, he held a student visa which enabled him to study for a certain limited period of time. At some time after that, according to his evidence, his visa status changed, and he became “part” of his wife’s 457 Visa.
148 With the assistance of a vocational assessment company, HealthE Work, in 2013, he commenced a two-year part-time course to become a locksmith. I accept his evidence that after the first semester, he travelled to the United Kingdom to attend a family celebration and contracted pneumonia. This required him to extend his stay, and prevented him from returning to resume the course. I accept his evidence that when he communicated the delay to the Institute of Technology, rather extraordinarily, he was summarily terminated, despite his explanation as to why he was delayed. Given he is unable to return to the course, he will be unable to become qualified as a locksmith. He said because work in that area is in a category of employment considered by the Department of Immigration to be available to be taken up by non-Australian residents (presumably because there are not sufficient qualified Australian residents to take up the available jobs), his prospects of obtaining permanent status in Australia are very significantly reduced if not lost.
149 According to Mr Davey, his wife’s visa expires in December 2013 and because he has no employment within an appropriate category, both he and his wife are likely to be required to leave the country and not obtain permanent resident status.
150 From my own experience, the obtaining of permanent resident visas is a complex process. I have not had the benefit of any expert evidence on the point. While I accept that the summary dismissal from his locksmith course is likely to have had an impact on Mr Davey’s capacity to remain permanently in Australia, I am not satisfied on the basis of the evidence, that other prospects that he might have, including to continue the course when he returns to Australia, undertake a course as a locksmith with another institution or find some other area of work in an appropriate category is not available to him. I am satisfied that the injury has had some affect upon his capacity to remain in Australia but has not excluded that possibility completely. I accept that to some extent, that loss sounds in damages, but not to a significant degree.
151 In all these circumstances, I assess general damages in the sum of $90,000.00 (Ninety Thousand Dollars).
Past medical and like expenses
152 The VWA seeks medical and like expenses assessed in the sum of $13,166.77, based upon the s239A Certificate tendered into evidence. In addition, it says payment by Mr Davey of $13,000.00, being the cost of the first year of the locksmith’s course, is assessable. The only evidence of that is contained in the medical report of Dr Kenna[57] where, in taking a history, Dr Kenna reports:
“He found, via the North Melbourne Institute of Technology, a two year part-time course in becoming a locksmith. He, in actual fact, has to pay $13,000 per year and he is halfway through the first semester (which he is thoroughly enjoying).”
[57]exhibit P
153 Mr Davey gave no evidence on the issue. While under the provisions of the Evidence Act 2008, that statement is admissible as to the truth of the fact, in my view, it does not carry a great deal of weight. I would have expected Mr Davey to give evidence on the matter. Doing the best I can, I will allow an amount of $6,500.00 (Six-Thousand-Five-Hundred-Dollars) in respect of this item.
154 I accept that all the other medical, occupational, rehabilitation and allied health providers’ expenses were appropriately incurred, and will allow the claim for $13,166.77 (Thirteen-Thousand-One-Hundred-and-Sixty-Six-Dollars-Seventy-Seven-Cents).
Past economic loss
155 The VWA claims $204,780.24 is assessable for past loss of wages. This figure is calculated upon assessing Mr Davey’s net annual income from June 2011 to date, based upon the amount he was earning when he left employment in May 2011. Further, the calculations allow for a 3 per cent increase over the years and makes provision for superannuation. Mr Titshall submits that an appropriate allowance is $30,000 for past loss of earnings, being lost employment for a period up until September 2011, accepting that the plaintiff would have worked up to then in his employment with IRP. Thereafter, according to Mr Titshall, the plaintiff had a capacity for full-time employment in a range of areas, including as an IT consultant, retail sales, and a variety of other areas to which he was suited, given his experience and training.
156 As I have said, the plaintiff was an impressive witness. I accept his evidence that he enjoyed working as a welder, and that he intended to stay working in that area in Australia. He has made commendable attempts to obtain alternative employment given the restrictions of his injury. I accept that he has applied for a wide range of jobs, including as a salesman with Harvey Norman and Dick Smith. He was not successful. I was impressed with his evidence about his attempts to retrain as a locksmith. He has been working part time teaching computer technology to elderly persons and undertaking his course. He has, in my view, made every reasonable endeavour to rehabilitate himself and resume employment. The calculation as to past economic loss proffered by the VWA is to be preferred. However, as Mr Titshall points out, those calculations make no allowance for the following:
· That Mr Davey would have continued to have uninterrupted employment as a welder
· That he would have been able to earn the same amount of money that he earned with IRP with another employer
· That he was able to obtain the same site allowances, and in particular overtime, which was something in excess of $700 per week.
157 The submissions by Mr Titshall in this area are persuasive. There was no expert or other evidence to the effect of the amount welders are able to earn in the current marketplace, and whether there is constant employment. Commonsense indicates that with the downturn in the economy over recent years, work in the construction industry was unlikely to be constant. In fact, Mr Davey was employed on a short-term contract with IRP for this particular project. At the conclusion of the project, IRP ceased operation in Victoria and returned to Western Australia. However, on the other hand, Mr Davey impressed me as an intelligent person, well motivated and with a particular passion for welding. He would have been an attractive employee to a prospective employer.
158 In all these circumstances, the figure proffered by the Victorian WorkCover Authority, $204,780.24 should be significantly reduced. In my view, an appropriate reduction is 40 per cent. This leaves a net past economic loss of $122,868.14 (One-Hundred-and-Twenty-Two-Thousand-Eight-Hundred-and-Sixty-Eight-Dollars-Fourteen-Cents).
Future economic loss
159 Mr Titshall submitted an amount of $50,000 was appropriate as an assessment of future economic loss, on the basis of a ‘Farlowe’ calculation.[58] According to the VWA, the future economic loss is a figure between $646,464.00 and $846,708.00, before discount for vicissitudes. These calculations are based upon assessing the current net weekly income Mr Davey could be said to earn as a welder, $1,647.31 per week (based upon what he was earning in 2011 with CPI increases), and deducting the amount he would be earning by now, either as a locksmith, or, alternatively, as a worker in general or electrical retail. According to the figures provided, the average net weekly earnings for a locksmith is $915.80, and the average net weekly earnings for a worker in electrical or general retail is $680.05. The loss then is said to be the difference between these two figures and $1,647.31. Mr Stanley accepted that the plaintiff did have a capacity for employment on a full-time basis from now until retirement. The future loss calculations are appropriately based upon the 3 per cent multiplier tables.
[58]Victorian Stevedoring Pty Ltd v Farlowe [1963] VR 594. See further Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
160 In my view, it is appropriate to accept that at the present time, Mr Davey has a capacity for full-time employment. Such is his intellectual capacity, drive and endeavour, I am satisfied that it is likely be will obtain employment either as a locksmith, or in some other equivalent area with the capacity to earn something of the order of $915.80 per week. His present loss is thus $721.51 per week, leading, with the addition of superannuation, to a total loss of $646,464.07. Again, this assessment should be considered in the light of the factors referred to in calculating past economic loss; that is, whether Mr Davey could have expected the same wage, entitlements and overtime and continuity of employment had he remained a welder. On the other hand, he is not presently employed and will face some difficulties obtaining full-time employment either in the United Kingdom or Australia. Any employment that he may obtain may not be continuous and he might be subject to the same vagaries of employment as if he were a welder. Doing the best I am able, in my view, it is appropriate to discount this figure by 25 per cent. This leaves a net allowance for future economic loss at $484,848.05 (Four-Hundred-and-Eight-Four-Thousand-Eight-Hundred-and-Forty-Eight-Dollars-Five-Cents.
161 Thus the total damages calculated in accordance with the formula expressed in s138(3)(b) of the Act is $720,382.96 (Seven-Hundred-and-Twenty-Thousand-Three-Hundred-and-Eighty-Two-Dollars-Ninety-Six-Cents.
162 Mr Titshall finally submitted that looking at the calculation of compensation actually paid by the Victorian WorkCover Authority pursuant to s138(3)(a) of the Act, I ought not accept the actual payments made, totaling $191,622.94, in accordance with the s239A Certificate.[59] He submitted the words “paid or payable” meant that what the VWA was entitled to recover was not what had actually been paid, but rather what was reasonable to pay in the circumstances.
[59]exhibit U
163 Section 239A of the Act provides:
“A certificate purporting to be signed by an officer or employee of the Authority certifying as to any of the prescribed particulars specified in the certificate relating to amounts (including amounts of compensation) paid or payable by the Authority under this Act or the Accident Compensation (WorkCover Insurance) Act 1993 is evidence of the matters stated in the certificate and, in the absence of evidence to the contrary, is proof of those matters.”
164 There is no evidence to the contrary that those payments were made. For the reasons referred to above, I am satisfied that the payments made were appropriate in the circumstances and the amounts referred to in the Certificate evidence not only what was paid, but that it was appropriate to be paid.
165 I shall hear from the parties as to the appropriate orders.
Annexure 1
NAMES AND DETAILS OF PERSONS REFERRED TO IN EVIDENCE
AUSTRAL BRICKS VICTORIA PTY LTD personnel
Harold Crampton Health and safety manager for kiln site
Shane Simpson Head project engineerDIREXA ENGINEERING AUSTRALIA PTY LTD personnel
Claude Lebbe Project manager
Murray Anderson Director
Darren (‘Dazza’) Hare Construction site supervisor at kiln site
Bruce Little Project safety adviser
Thierry Schmitt Health and safety officerIRP PTY LTD personnel
Peter Sparke Managing Director
David (‘Safety Dave’) Wrout Trades Assistant and elected occupational health and safety representative
Allan Warne Health and safety officer
Michael Rosario Director and account manager
Andrew Dessman Account manager and health and safety officer
Denise Baljeu Recruitment officer
Matthew Davey Trades assistant and welderSRC ENGINEERING PTY LTD personnel
David Reid Director – fitter and turner
DSR ENGINEERING PTY LTD personnel
Steve Russo Director – fabricator
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