Victorian WorkCover Authority v Goodman Fielder Consumer Foods Pty Ltd

[2014] VCC 1223

IN THE COUNTY COURT OF VICTORIA  Revised

Suitable for Publication

AT MELBOURNE

DAMAGES/COMPENSATION LIST - GENERAL DIVISION

Case No. CI-13-03966

VICTORIAN WORKCOVER AUTHORITY  Plaintiff V

GOODMAN FIELDER CONSUMER FOODS PTY LTD  Defendant

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JUDGE:  HIS HONOUR JUDGE MURPHY

WHERE HELD:  Melbourne

DATE OF HEARING:  29, 30 and 31 July 2014

DATE OF JUDGMENT:  22 August 2014

CASE MAY BE CITED AS:                Victorian    WorkCover    Authority     v    Goodman    Fielder Consumer Foods Pty Ltd

MEDIUM NEUTRAL CITATION:         [2014] VCC 1223

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION- Accident Compensation Act- Recovery action- compensation paid to contractor employee as a result of injury sustained while examining malfunctioning plant machinery. Whether the defendant host employer had in place adequate safety procedures and met obligation to provide a safe system of work. Claim dismissed. Assessment of damages-general damages for hand injury (non-dominant) requiring multiple procedures – past and future economic loss and medical expense.

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APPEARANCES:	Counsel	Solicitors
ForthePlaintiff	Ms A M Sheehan	Russell Kennedy
FortheDefendant	Mr S A Smith	Sparke Helmore

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

HIS HONOUR:

Introduction

1The plaintiff, standing in the shoes of a labour-hire company, Adecco Industrial Pty Ltd, seeks an indemnity under s138 of the Accident Compensation Act 1985 following an injury to an Adecco worker, Mr Fiorenzo (called Lorenzo) Lazzarotto, which occurred when he was working as a maintenance fitter at the defendant’s Pampas factory in Footscray. Aside from determining the statutory quantum of the worker’s loss and damage, the issues were:

a.   whether the worker’s injury was caused as a result of a breach of the defendant’s safe system of work duty to its borrowed employee; and

b.    if the defendant had breached its duty, whether Adecco and/or the worker himself had also contributed to the loss and damage; and

c.   if so, what was the proportionate share of any liability.

2The  defendant,  as  host  employer,  disputed  that  the  worker’s  injury  was caused by any breach of its duty to the worker, maintaining that it had a safe system of work for the relevant activity and that the worker was fully aware of and trained in that system. The plaintiff’s position was that when the wider circumstances of the incident were considered, there were defects in the defendant’s system of work that were a cause of the worker’s injury.

3In order to determine the case it is necessary to make findings as to how the incident occurred, and to resolve on the basis of contested evidence, whether the defendant’s system of work fell below that required of a reasonable host employer in the circumstances.

4For the reasons set out below I find that the defendant’s system of work was adequate, and that the plaintiff has not satisfied its onus that any deficiency in

the defendant’s system of work was a cause of the injury suffered by the worker.

A maintenance worker suffers a nip injury

5The immediate circumstances of the occurrence of the injury were not, save as to one matter, really in dispute.

6The worker is of Italian extraction and had trained in motor mechanics before arriving in Australia in 1961. He did some work in that field upon arrival but he had been employed at the defendant’s site for some 28 years as a maintenance fitter as at 31 March 2012, and at that stage was aged 69 and one half. While he was originally employed by the defendant, in August 2003, under a “Friday to Monday” contracting out arrangement, his employment, along with that of a handful of other maintenance fitters, was transmitted to Adecco. Thereafter his contact with his employer was relatively limited, and he continued doing his same duties.

7For the previous nine years he had been  working  on  night  shift  which commenced at 11pm and ended at 7am. He was  working as  a casual maintenance fitter working about 48 hours per week over six days. Although the  defendant had about 100 production workers on its site, on night shift, there were  only about ten employees, including Mr Lazzarotto as the only maintenance fitter. However, for a period of about four months prior to this event another fitter,  Mr Mark Davy, was also working on night shift. They were the only employees of Adecco.

8On the night shift only  one  production  line,  the  Food  Service  Line,  was operating. The system of the work of the maintenance fitters was that they would carry a pager to be called when there was a problem.  On that evening Mr Lazzarotto was not carrying the pager.

9Shortly before 2am on 31 March 2012, he was walking through the plant when he was called to the production line by the production leading hand Mr Liem

Biu. Mr Biu asked him to have a “look” at the machine. The machine itself was responsible for making and folding the pastry. After being folded it was delivered to a conveyor to be rolled. From the photos the machine appears about 1.5 metres wide, about shoulder height and a number of metres long. Part of its function was to fold the pastry, and for this purpose a steel arm moved back and forth, driven by swivel. The amplitude of the arm can be adjusted on the swivel and there is a sensor that stops the machine when the swivel or retractor travels beyond the sensor.

10The arm that was driven by a swivel, is in turn powered by an electric motor driving a shaft by means of a narrow rubber belt. The distance between the six-inch motor pulley and the shaft appears about twelve inches.

11The swivel and motor were underneath the production plane of the machine and at  the rear of the machine were protected by a rectangular removable metal guard  covering the width of the machine, measuring about 1.5 x .75 metres. The guard is fixed in place by the use of a special screw removable by an Allen key.   Immediately to the left of the guard at around knee height affixed to a vertical metal column abutting the machine was an isolation switch for the machine. Around 30  metres away was a master switch that would isolate the entire production line.

12When Mr Lazzarotto was called to the machine it was not working. He knew, however, that it remained under power. The guard was off. The inescapable inference, supported by the subsequent statement of Mr Bui is that it was removed by the other fitter employed by Adecco that evening given that he had the pager, and the subsequent report indicates that the machine had been playing up.

13As the guard was off, in undertaking his “look” Mr Lazzarotto was in a position to  access the workings of the machine including the swivel and pulley. He then pulled on the belt. In evidence he said he did it twice. He said he moved

the arm about a foot. On the second occasion the machine started and the tip of his left index finger was caught between the rubber belt and the pulley tearing the flesh.

14Mr Lazzarotto was challenged in his evidence as to whether when he pulled on the belt the swivel arm was beyond the sensor that stopped the machine. Although his evidence was somewhat confusing and at times difficult to follow, he denied that it  was. He was unable to explain what was wrong with the machine when he took the action he did in attempting to move the swivel by pulling on the belt. He stated that if the retractor arm was in fact on the sensor it would have been different. He accepted that moving the belt would move the swivel, but denied that it was beyond the sensor.

Contemporaneous material

15In his own Register of Injury report of the event he states that the injury occurred due to a malfunctioning machine. In the workers’ injury claim form signed by Mr Lazzarotto on 2 April 2012 he stated that the injury happened:

“Attending a breakdown in Plant 1. Went to reset pulley on conveyor/as he pulled down on pulley the belt snapped back and caught left index finger in pulley and belt taking the tip off his finger.”

16In terms of the task, it was described as “checking machine that was not working”.

17In the defendant’s incident report the account given was:

“At approximately 2am Lorenzo was called to attend jam/breakdown on food-service line. There had been an increase of jam-ups on this conveyor of late and the electronic control system was identified as requiring an upgrade. A business capex is being developed however isolation LOTO procedure is to be followed at all times when working on this machine, regardless of proposed upgrade.

Lorenzo chose not to isolate and lockout machine, put his hand underneath to release the belt and retract the conveyor started. Left index finger nipped between belt and pulley.”

18Another account of the problem that he was addressing is that given in a statement by Mr Biu, where he states that there had been a problem of the

arm tripping the sensor. In a statement dated 11 April 2011 he stated that an alarm had occurred on the screen indicating that the retractor had overrun:

“This is not something I can fix so I contacted Mark the fitter, he came over to the line and he attempted to fix the problem by pushing the retractor back. The line was then able to run, but only for a few minutes (around two minutes) and then it overran again and went into alarm. I tried to call Mark again, but he was busy at the ready-roll line. I then saw  Lorenzo  walk  past  the  food-service  line,  so  I  called  him  over. I explained to him what happened, he then manually pulled the timing belt on the retractor and suddenly the conveyor went back  by itself before Lorenzo had finished adjusting the belt. As it went back it caught his finger. Lorenzo then pulled his finger out of the timing belt. I saw blood and gave him some towels ...”

19In an email dated 2 April 2012 from an electrical contractor, Mr John Taylor, who was called to the site after the incident to investigate the malfunction in the machine, he states that he was told that the problem that Mr Lazzarotto was looking at when he was injured was that the retractor had travelled over the travel switch. He witnessed that indeed it was in that position and sought to correct the fault. It faulted again. He made a further adjustment and then the machine operated correctly in the “clean mode”. He was then unable to replicate the fault in any mode.

20Mr David Breheny, the defendant’s electrical control technician, who gave evidence said that when he checked the machine on the Monday he too was unable to replicate the possible fault.

21In the Adecco OH&S coordinator’s investigation report as to the incident dated 31 March 2012, the major contributory factors were defined as:

“Failure to follow safe work procedures in relation to management and in relation to design, malfunction or defect in machine, tool or equipment.”

22In discussing the probable causes, the root cause of the incident was described as:

“Machinery is ten years old and worn and is the root cause as the timing belt is what needed to be jiggled. Reported there had been an increase in the number of jams on the belt. Capex being developed to resolve the issue.  Food service line.

Secondary cause: Fiorenzo failed to follow lockout-tagout procedure.”

In terms of remedial action, there was a reference to rectifying the problem with a timing belt and “Fiorenzo to re-sit induction with emphasis on lockout- tag out procedure.”

In the Adecco incident report dated 2 April 2012 the contributing factors were marked as, under ‘Design’: “Malfunction or defect in machine, tool or equipment”, under ‘Behaviour’: “Work method used”, and under ‘Management’: “Work method specified.”

The report records: “Has the employee confirmed that they understand instructions or procedure related to the incident?” “Yes”.

The main reason for the incident is described as: “Not lockout and tagout machine” (sic)

The preventative action is described as:

“Re-induction on site with an understanding how to lockout and tagout machine.”

23In the defendant’s incident report, the report of the Adecco interview with Mr Lazzarotto states:

“Sean advised that at interview, Lorenzo was asked what he would do to prevent the incident happening again? Lorenzo replied that an isolation procedure was needed. When advised that this procedure is in place and questioned as to why he did not lock out the machine and follow the procedure, Lorenzo became very edgy.”

24Counsel for the plaintiff noted that the author of this hearsay statement was not called to give evidence. I accept that, however, the observation could be regarded as an admission by conduct, and is consistent with Mr Lazzarotto’s demeanour under cross-examination when being pressed as to his knowledge of, and obligation to comply with, the defendant’s LOTO procedures.

25In the WorkSafe Entry Report dated 24 April 2012 the root cause of the incident was described:

“(1) That the control code for the conveyor line 1 system appears to have been faulty which has allowed the retractor table to overrun its limits.

(2)  That the injured person had not isolated the retractor section of the conveyor line prior to trying to move the retractor back from its limits.

(3)   The injured person had not used the procedure for isolating the equipment.

In regards to the incident I am of the belief that the employer has the safe management system in place to control the risk to employees and other person’s health and safety related to plant and the appropriate lockout-tagout system in place that would have prevented that incident if the injured person had used the procedure.” (emphasis added)

26The reference to LOTO is a reference to the defendant’s procedure for isolating a machine when it had to be the subject of maintenance. The fitters are allocated a series of identically keyed padlocks which are carried in their tool box. The procedure involves placing a lock on the power source, with a tag, and the completion of a form as to the action taken. According to Mr Breheny the procedures required that a log be kept when the lock-out procedure was applied. At the time of the accident this aspect was not occurring, but it has recently been reinstated.

Assessment

27Counsel for the plaintiff urged that little weight be placed on the investigation report and that it was inadequate. I do not accept this criticism. A retrospective analysis of the incident is to be avoided but the weight of the above contemporaneous accounts of the event is that the precipitating cause of Mr Lazzarotto being required to “look” at the machine was that there had been a malfunction regarding the retractor arm travel. This leads to the conclusion that I am unable to accept that part of the evidence of Mr Lazzarotto that when he looked at the machine, before suffering his injury, the arm was not beyond the sensor or trip.

28However, I am unable to see how this conflict in the evidence between him and Mr Bui’s statement makes any ultimate difference to the issue of the safety of the system of work. I am satisfied that for whatever reason, Mr Lazzarotto  was  called  to  the  machine  that  had  malfunctioned  and  in

attempting to investigate or troubleshoot that malfunction he pulled on the belt without first isolating the machine by either switching it off by the use of the isolator switch immediately to the left of where he would have been standing, or by isolating the machine at the main board.

29In doing what he did, Mr Lazzarotto failed to comply with the defendant’s LOTO procedures. He admitted as much under cross-examination, and as noted he admitted that he was aware of those procedures in his employer’s own investigation of the incident.

30In considering the overall documentary material before the Court I regard it as significant that the investigations do not expressly point  to  any  express deficiencies in the defendant’s system of work, as distinct from compliance with the system. It is also important to note that Mr Lazzarotto did not point to any deficiency in the defendants system of work in his own evidence.

31Rather, the plaintiff’s case relied heavily on evidence from Mr Lazzarotto in response to hypothetical questions as to what he would have done had the guard not been removed when he was called to the machine. I will return to this issue.

Need for interlock guard falls away

32In the face of Mr Lazzarotto’s own undisputed non-compliance with the LOTO procedure, the plaintiff opened the case on the basis that had there been a interlock guard on the machine, then the accident would not have occurred. This basis fell away following the evidence and on the following basis I find that the machine did not require an interlock guard on those parts that Mr Lazzarotto was accessing at the time of the incident.

33The plaintiff  filed  an  expert  report  by  Mr  Hennessy  who  opined  that  an interlock guard was required under the relevant Australian Standards. The expert report was challenged on an interlocutory argument on the grounds of failure to  meet the requirements of Makita (Australia) Pty Ltd v Sprowles

(2001) 52 NSWLR 707 per Heydon JA in relation to the lack of expertise of the author (he was an ergonomist), and the failure to properly identify first the facts, and then the reasoning upon those facts, leading to the conclusion. Without hearing from the author, I Ruled that the evidence be admitted.

34Mr Hennessy subsequently gave evidence and was the subject of sustained cross-examination directed at the factual basis upon which he concluded that on the risk calculus under the relevant Code and Australian Standards an interlock guard was required. On the basis of concessions made under cross- examination, I find that the basis upon which he reached his conclusion in his report was undermined. At the end of the cross-examination he effectively conceded that in the circumstances an interlock guard was not required on that machine, as the guard itself had to be removed by the maintenance fitter using a special tool. In this respect he endorsed an earlier assessment of the defendant’s plant undertaken by Mr Ern Millard.

35Mr Hennessy maintained however that a safe system still required strong supervision of adherence to LOTO, including a requirement that it be logged, and a disciplinary process be involved in the event of non-compliance.

36The defendant led evidence from another expert, Dr John Culvenor, consulting engineer. This witness had a strong engineering background and I find had expertise and experience closer to the industrial circumstances here than Mr Hennessy. He said, however, that he generally agreed with the evidence of Mr Hennessy, but disagreed with his earlier conclusion that an interlock guard was required under the Standards.

37In his report he opined that the implementation of the LOTO system would have avoided the injury. In noting that it had not occurred he said:

“The lock itself was irrelevant as locking of the switch in the ‘off’ position is to prevent another person mistakenly re-connecting the power. This did not happen and it is not the type of circumstance that would lend itself to that

mistake as the isolation switch is immediately next to where the person was working. Simply switching the control to off would have sufficed. That said, locking the switch in addition would have caused no harm.”

38He went on to say:

“The lock out tag out system including the physical isolator, its placement, and the accompanying training was reasonable.”

39He further opined  that  the  system  of  work  was  reasonable  in  the circumstances:

“The relevant circumstances are that: the level of danger could involve a permanent injury but not of the scale of a drive motor with continuous operation in the same direction; the access was required for maintenance rather than operation; the fixing of the guard required tools for removal; the signage indicated the access requirements; the isolator switch was readily accessible and visible; and the training in the use of isolation was provided.”

40Under cross-examination this witness was challenged as his report had been provided on the basis that it was Mr Lazzarotto who had removed the guard and then proceeded to pull the belt, whereas, the evidence was that the guard had been removed by the other fitter.

41Dr Culvenor maintained his conclusion that proximity of the isolator switch to the guard by and large superseded the training because given the proximity and the labelling on the guard:

“the information needed for the person approaching that situation is right before them and the methods by which they should isolate the machine are plain to the eye.”

42He emphasised that even with the guard off, there was no hazard created when  an employee has a “look”. The employee has to get as close to the damaging space to have a look as he does to operate the isolator switch.

43There   was a difference in emphasis between the two witnesses as to the issue of the comprehensiveness of safety procedures required, and their likely impact on  compliance. Dr Culvenor, who I find was alert to the industrial reality of over prescriptive procedures, and whose opinion I prefer, was of the opinion that the requirement to have a LOTO log for the use of the procedure

of using the isolator switch raised a risk that it would not be complied with. In this particular case, he emphasised that an isolation switch was right next to any person accessing the machine after the removal of the guard. Mr Breheny was of the opinion that under the LOTO system the isolator switch had to be locked. He was of the view that the requirement to complete a paper trail at the main switch in addition could bring complacency.

44Mr Hennessy’s view was that the changed LOTO procedures implemented since   the accident  which  involved  a  register  at  the  main  switch  was appropriate.  Mr  Hennessy  grudgingly  accepted  that  the  machine  did  not require   an   interlock   guard.   He   maintained,   however,   that   in   those circumstances LOTO procedures had to be rigorously enforced, and that the defendant’s  concession in its Answers to Interrogatories that they were not complied with at all times showed a failure in the system of work at the time of the accident.

45In relation to whether Mr Lazzarotto was properly trained in the LOTO procedures, Mr Hennessy was taken to his evidence as to the defendant’s requirements on its employees in relation to LOTO. He accepted that if Mr Lazzarotto’s level of understanding was as he had testified to, then indeed, the training and instruction had been sufficient to do what he should do.

46There was a volume of material in evidence that supported the evidence of Mr Breheny as to the safety culture of the defendant and that the issue of LOTO and safety had been brought home to Mr Lazzarotto in meetings attended by him and also by his employer’s supervisor. Mr Breheny emphasised the safety culture  and  the use of “safety walks” by those in authority  to  monitor compliance. The evidence of compliance reinforcement also included minutes of a team meeting on 23 February 2012 which records that LOTO procedures were discussed, and:

“Do not rely on safety switches for isolation.  Testing of isolation must be

`happening.”

47There was also a maintenance department induction dated 16 February 2012 that referred to LOTO procedures. There was also a “hand safety” tool box talk questionnaire dated 4 August 2011 and an earlier induction dated 7 April 2011. The report also records that LOTO training attended by Mr Lazzarotto dated 26 March 2010.

48I regard the concession by Mr Hennessy in the light of the evidence as important. It was made before the evidence of Mr Breheny who gave cogent evidence as to his conduct of the tool box meetings and his emphasis on LOTO procedures. In the light of Mr Breheny’s evidence the concession by Mr Hennessy was proper and when put with Mr Lazzarotto’s evidence was not surprising.

49Mr Lazzarotto was cross-examined as to whether, in attempting to move the belt or troubleshoot the machine in the way he did, he was taking a short cut. He would not accede to that proposition. I am unable to accept his evidence on that point. It is a clear inference that I draw that given his awareness of the LOTO system, and his  safety training  as set out in the evidence  of  Mr Breheny, and his own admission that on previous occasions, he had not used the LOTO procedure when having a “look” at a machine, then in this instance he was in fact taking a short cut.

50Mr Lazzarotto’s own evidence that he was aware of the requirement to use the  LOTO procedure in my view leads to a conclusion that the system of training and reinforcement by the defendant was adequate.

51The evidence of Mr Breheny I regard as very important and reinforces this conclusion.

52The evidence supports and I find that the injury occurred in the face of knowledge by Mr Lazzarotto  that he  was required  to  comply with  LOTO procedures, and that the machine was under power, and that his training was

that he was not to place his hand into an unguarded machine or powered machine.

Was the system of LOTO compliance deficient? The wider context argument

53The second basis of a breach of duty put by the plaintiff was that even though Mr Lazzarotto was trained in the LOTO procedure, as the event unfolded, the system of work was deficient due to the failure of both the worker himself and others to comply with LOTO and running the machine with the guard off. The plaintiff also alleged that the defendant’s procedure for isolating the machine when it was under repair was inadequate.

54The plaintiff submitted that the cause  of  the  worker’s  injury  had  to  be considered in a wider context than in the particular action of the worker in attempting to move the belt when the machine still was under power. It was submitted this was because the worker was facing an unusual circumstance in dealing with the machine, wherein the guard had already been removed by someone else.

55When the worker was required to look at the machine, as requested by the production leading hand, the guard had been removed and neither the machine itself had been locked off nor had the line been locked off. Further, the machine had previously been run with the guard off.

Was the system of enforcement adequate?

56The plaintiff thus submitted that the defendant’s system was not the subject of adequate enforcement.  It was submitted that this was at least indicated by the fact that the guard had been left off that night by, presumably, the other fitter.  Further, it was submitted that it could be concluded that the system was not properly enforced by changes in the system subsequently. Those changes include the establishment of a lockout register next to the main switchboard. Such a register was also mandated, but not complied with in the defendants procedure manual at the time.

57Further, evidence of a lack of compliance was also manifest: the Answers to Interrogatories where the defendant admitted that prior to the incident LOTO procedure had not been complied with. Mr Lazzarotto himself in his evidence had admitted that. The plaintiff submitted that the investigation following Mr Lazzarotto’s injury was inadequate as it failed to identify the earlier non- compliance.

58In closing address, counsel for the plaintiff articulated the case against the defendant as a failure to have in place a rigorous system that ensured that the LOTO procedure was followed by contractors on site. It was submitted that what was required was for the defendant to have a rigorous system wherein the culture of  the workplace was that people do follow LOTO, and, in the event that they  do  not,  there  would  be  consequences  and  a  paper  trail created.  If that safe system of work had been in place, then the earlier fitter would not have removed the guard without invoking LOTO, and the operator would not have run the machine with the guard off.  This left the worker, when requested by the leading hand to have a look at the machine, being faced with an unusual situation wherein what had happened was completely contrary to procedure.  It meant that he was unable to go through his usual procedure, which would have involved getting his tool box  and then following LOTO before removing the guard and working on the machine.

Consideration

59The plaintiff’s attack on the defendant’s system of work fails on two bases.

First, the worker himself acknowledged under cross-examination that he was aware that the machine was powered. This is a critical matter, as he was not at risk to his own safety in those circumstances unless a part of his body actually entered the machine. Thus his action in “looking” at the problem while the machine remained powered only placed him at risk when he used his hand to attempt to move the belt. That point was emphasised in the evidence of Dr Culvenor and I accept his evidence on that matter.

60That addresses the first prong of the plaintiff’s critique of the system of work as it  was faced that night by Mr Lazzarotto. Although he was faced with a position that evidenced non-compliance by Mr Davy, his own training, on his own admission and  reinforced by the evidence of Mr Breheny, adequately prepared him and would have prevented any injury. The fact that the machine was either running or stopped with the guard off did not present any hazard to any person until they moved beyond the act of looking at the machine. On the facts here, even if it could be said that the defendant’s system of work had broken down, Mr Lazzarotto only put himself at risk of injury when he failed to comply with procedures that had been put in place to allow him to undertake his duties, and of which he acknowledged he was fully trained in and aware of.

61Further, the worker’s own evidence, supported by the records of the defendant and the  evidence  of  Mr  Breheny,  addresses  the  criticism  of Mr Hennessy as to the defendant’s system of work. Mr Lazzarotto accepted that he had been trained in the “golden rules” and in the LOTO system. The uncontradicted evidence of Mr Breheny supports a conclusion that the defendant had a good safety culture and that Mr Lazzarotto was regularly reminded  of  safety  procedures  at  tool  box  meetings.   In  this  respect Mr Lazzarotto downplayed the extent of the emphasis on safety in the tool box meetings in his own evidence, and in so far as there is an inconsistency between his evidence on  that  point  and  that  of  Mr  Breheny  I  accept Mr Breheny’s evidence. Further, under cross-examination Mr Lazzarotto accepted that he knew the machine was powered and knew that LOTO procedures ought to have been followed.

62On the facts here I do not accept the plaintiff’s submission that the prior failure by Mr Davy constituted a breach of the defendant’s duty to Mr Lazzarotto that was a cause of the injury. While the failure of Mr Davy to either replace the guard, or apply the LOTO procedure was a failure of the defendant’s system

of work, I do not accept it was a cause of the workers injury. On his own account all he was asked to do was to “look” at the machine. It follows that I also do not accept that Mr Lazzarotto was effectively required to devise his own system of work in the face of the earlier actions by Mr Davy and/or Mr Bui.

63The matters just considered also address the plaintiff’s submission that the conduct of Mr Bui in either running the machine without the guard, or not stopping Mr Lazzarotto from investigating the fault  with  the  power  on contributed to a breach of duty by the defendant and was a cause of the injury.

64Mr Lazzarotto was an experienced and skilled maintenance fitter. He was not a production worker, yet Mr Bui was. As was made clear by Dr Culvenor, the location of the isolator switch, in the context of the prior training of the defendant, and the fact that he knew that the power was still on, gave Mr Lazzarotto all the information he needed to avoid any risk of injury. It is also not clear where Mr Bui was at the time that Mr Lazzarotto was undertaking his “look”.

65In those circumstances I again accept the evidence of Dr Culvenor that the location of the isolation switch is such that Mr Lazzarotto had the information and means to safely conduct his troubleshoot.

66The issue of the location of the isolator switch and the evidence of Mr Lazzarotto that he knew the machine was powered also addresses the plaintiff’s argument in final address, relying on the duty of an employer articulated in McLean v Tedman (1984) 155 CLR 306 at 311 that an employer had a duty to devise a proactive system of work that addressed the possibility of negligence or inadvertence by employees. It was further the obligation of an employer to maintain and enforce such a system.

67It was put that the conduct of Mr Lazzarotto could be characterised as inadvertence or misjudgment, and the system did not protect him against that risk. This applied particularly where there were three people involved: Mr Davy, Mr Bui and Mr Lazzarotto.

68I have referred above that I do not accept Mr Lazzarotto’s denial that he was taking a “short cut” in his actions that early morning. From this it could be concluded that he was misjudging whether he could successfully look at or troubleshoot the machine without exposing himself to a risk of injury.

69The question of fact is whether the systems of work that the defendant had in place  for him were reasonable and did not fall below that required by a reasonable host employer in the circumstances.

70Here, as counsel put it in closing address there was something of a contrast between the two expert witnesses as to the role of human agency in any industrial system. Thus, as noted, Dr Culvenor regarded the location of the isolator switch in the present matter as being central to the proposition that the employer was discharging its duty to Mr Lazzarott. By contrast, Mr Hennessy was more critical and would have mandated a log system to ensure a paper trail, with disciplinary consequences for non-compliance, and in its absence, the defendant had breached its duty.

71In addressing the plaintiff’s submission as to whether it had discharged its obligations to have a proactive safe system that takes into account the risk of inadvertence or misjudgement by a worker, I prefer the opinion of Dr Culvenor. The hazard faced by Mr Lazzarotto was obvious given that he had to take a positive action to place himself at risk. I am unable to accept that the defendant failed in its duty to him in the light of his admitted knowledge of the LOTO procedures, and his knowledge that the machine was powered. He admitted that on a limited number of previous occasions he had had a look

without turning off the power. The actions of Mr Lazzarotto were deliberate, and as I have earlier found, were effectively a short cut.

72This leads to the issue as to whether the defendant was aware that Mr Lazzarotto had been non-compliant with LOTO procedures. He said he had had a quick look without powering off “not many times”. In his evidence Mr Lazzarotto did not indicate that anyone in authority at the defendant was aware that on an undefined limited number of previous occasions he had not complied with the LOTO requirements. Mr Breheny gave evidence that he had seen Mr Lazzarotto complying with LOTO in relation to both the line and an individual machine.

73Again I regard this evidence as important.  It  undermines  the  plaintiff’s submission that Mr Lazzarotto was faced in an unusual situation that night. He said in his evidence that it “may” have been different had the guard been on the machine.  He then stated that his practice would have been to turn the power off at the  main board. This was contradicted by the aforementioned evidence of  Mr   Breheny and has a  self-serving  element  about  it.  Mr Lazzarotto accepted that the machine could also be switched off by use of the isolator switch.

74The second basis of the plaintiff’s case was that the defendant had failed to ensure that it had a system that ensured compliance with the LOTO system.

75This argument is addressed by the evidence of Mr Breheny as to compliance activity. As submitted in final address the admission of non-compliance in the Answers is non-specific. From that admission it could not be said that there was a culture of non-compliance. The fact that Mr Lazzarroto participated in an induction program just over a month prior to the incident, and his own evidence as to his knowledge shows that even if there had been occasions of non-compliance by other employees, Mr Lazzarotto knew the requirements

and there was no evidence that either the employer nor the defendant was aware of prior non-compliance by Mr Lazzarotto.

76In those circumstances, I am of the view that the suggestion of Mr Hennessy that  the defendant ought to have had a more formal disciplinary process where there was non-compliance would not have avoided the event, nor could it  be  said  to be  a breach of duty that was a cause of the injury in the circumstances.

77The plaintiff also relied on a lack of supervision of Mr Lazzarotto. This was on the basis that he was on night shift and there was no direct supervisor, and in contrast to the position for most of the previous nine years, was working with a fellow worker. It was implicit in the submission that he had developed his own culture of non-compliance due to lack of supervision.

78Obviously it is in the nature of the job of a specialist maintenance fitter that the work   cannot be directly supervised. On night shift, Mr Lazzarotto was ultimately supervised by the night shift supervisor.

79Mr Breheny gave evidence that he would commence work at 6am and was thus in a position to supervise for the changeover period, and discuss the events of the shift. He also supervised Mr Davy when he worked on a Saturday. He had conducted “safety walks” involving Mr Lazzarotto. He referred to his own passion for LOTO given that he was an electrician. While this was not expressly put to him, the tenor of his evidence was that had he became aware of any lack of compliance with LOTO then the matter would have been addressed.

Conclusion

80For all the above reasons I am satisfied that the defendant has satisfied its obligations to have a safe system of work as articulated in McLean v Tedman. Further, even accepting that the actions of Mr Davy and/or Mr Bui constituted

a breach of the defendant’s system, I do not accept the plaintiff’s arguments that those breaches were a cause of the injury to Mr Lazzarotto.

S 138 factors

81In the event that I am wrong on the issue of liability, it is appropriate to assess the s 138 factors. First, the issue of amount of medical expenses incurred as a result of the injury was not in dispute. I fix that amount as $19,817.

82The question of loss of earnings and pain and suffering damages can be addressed together. It was not in dispute that Mr Lazzarotto suffered a nasty injury to the final joint of his index finger to his non dominant left hand. After the initial surgery he contacted an infection which required further surgery and ultimately a second skin graft on 28 May 2012. He had required a number of courses of antibiotics prior to that. He remained under the care of the Western Hospital until 23 October 2012 when the notes indicate that he was unable to work due to hypersensitivity and he was referred to the Hand Therapist. He was under the care of his local doctor over the entire period from the date of the accident until 27 November 2012 when the report states that the wound had adequately healed and he attempted to return to work, “unfortunately he found work quite difficult as he states that his left index finger was still quite stiff and sore to use. He decided to retire from all work.” The notes from the clinic indicate that he continues to experience some discomfort in his injured finger and it is stiff and he is unable to bend his finger properly and there is a loss of full movement.

83In evidence was a medical certificate dated 23 October 2012 clearing him for normal duties but with work restrictions “Unable to use left hand due to hypersensitivity” from 30 October 2012.

84Mr Lazzarotto gave evidence that he intended to retire at age 70. He reached that age on 23 November 2012. He did not look for work after he resigned his

employment soon after the injury when his employer sought to activate a disciplinary process alleging gross misconduct.

85The plaintiff claimed loss of earnings for the worker up until age 70. The defendant submitted that any claim for loss of earning ought cease following the issuing of the light duties medical certificate, which was about three weeks short of that date. I allow the plaintiff’s claim as given Mr Lazzarotto’s age, his narrow occupational history, and the period out of the workforce at that stage, it is unrealistic to accept that he would have been about to obtain other employment that he would be able to discharge with still limited use of his left index finger. I would allow the loss of earnings claimed by the plaintiff of

$60,060.

86The above conclusion is supported by the evidence of Mr Lazzarotto as to his restrictions as a result of the injury. He presented as a stoical character who perhaps downplayed his problems. He has had an infection and two procedures. He is not taking medication. His finger is painful when knocked, and is painful in the cold. He does not have full use of the finger, and has had to modify how he uses cutlery.

87He does not have full grip strength of his left hand due to inability to fully use the index finger. Under cross-examination he conceded that he was able to mow the lawns and do most of the things that he had done previously with the limited use of his finger. He is however restricted in heavy two handed manual activities, such as working on cars.

88Before the Court was a detailed report from Mr John Buntine, plastic and hand surgeon. In it he notes there is redness of the graft site, that there is some scarring due to the graft, and the nail is curved. The slow healing “further seriously impaired function by aggravating stiffness.” He further notes that what he describes as a considerable abnormality of the finger impacts upon his occupational and daily living. He notes that he was able to achieve almost

a full range of movement, but that inspection of the hand indicates that only the first two joints of the finger are being used.

89The plaintiff submitted that an appropriate figure for general damages was

$100,000, whilst the defendant submitted $30,000. I was referred to three interstate cases where there had been assessments for what I regard as more serious hand injuries. Each case turns  on its own fact but they  provide something of a benchmark.

90Ultimately the quantum is a matter of impression and judgment. Here there was a considerable period before the wound healed, two procedures were required and there is some continuing restriction in full use of that finger, and consequently the non-dominant hand. Weighing the competing matters put by the parties I would fix a sum of $40,000 for past and future pain and suffering.

Conclusion

91For all the above reasons I propose to dismiss the plaintiff’s claim and will hear the parties on any consequential orders.