Victorian WorkCover Authority v Moorabool Shire Council
[2011] VCC 133
•1 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-00711
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| MOORABOOL SHIRE COUNCIL | Defendant |
| and | |
| ELKEN AMBER PTY LTD | Third Party |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 November, 1, 2, 6 and 7 December 2010 | |
DATE OF JUDGMENT: | 1 February 2011 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Moorabool Shire Council & Anor | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 133 | |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – recovery proceeding pursuant to s.138 – defendant contracted with a third party to collect recyclable rubbish – employee of the third party injured in the course of his employment – whether the defendant owed the employee a duty of care – the content of the duty of care – whether there was a breach of the duty of care – is the breach the basis of assessment of damages: s.138.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley QC with Ms P Cefai-Talbot | Russell Kennedy |
| For the Defendant | Mr P Riordan SC with Mr B McTaggart | DLA Phillips Fox |
HIS HONOUR:
Introduction
1 Before the Court is a proceeding brought by the plaintiff pursuant to section 138 of the Accident Compensation Act 1985 (“the Act”).
2 The proceeding concerns a contractual relationship between the defendant and Elken Amber Pty Ltd (“Elken”). Elken contracted to collect recyclable rubbish within the municipal district governed by the defendant.
3 Elken employed Roy May (“May”) to drive a truck on which was situated a large dumpster style bin. He was required to alight from the truck, collect recyclable rubbish (“recyclables”) deposited in 60-litre crates provided to ratepayers by the defendant, and to empty the contents of the crates into the dumpster.
4 In late November or early December 2003, May suffered a serious injury to his lower back in the course of and within the scope of his employment with Elken. He made a claim pursuant to the Act which was accepted. He was paid worker’s compensation benefits. He made a common law claim which was settled.
5 Essentially, the plaintiff pleaded a case against the defendant that it owed May a duty of care; that the content of the duty of care was to take reasonable care in all of the circumstances; that it was in breach of the duty of care, and as a consequence the plaintiff is entitled to recover from the defendant the damages to which it is entitled pursuant to section 138 of the Act.
6 The defendant denies the basis of the plaintiff’s claim on essentially every critical issue of fact and law raised by the plaintiff.
7 The proceeding based upon section 138 of the Act puts the plaintiff in the shoes of May, as it were, for the purpose of establishing a legal liability on the part of the defendant to May to pay damages for his injury, loss and damage.
The Contract
8 The defendant is a municipal authority. It had the responsibility to ratepayers within its municipal boundaries to provide rubbish removal services.
9 Elken is a company which provided rubbish removal services. Its principal director was Mr John Brooks (“Brooks”).
10 The collection of recyclables became an issue for the defendant in 1998. The State Government, instrumentality known as EcoRecycle Victoria (“Eco”), promoted a program for the collection of recyclables by municipalities.
11 The defendant entered into an agreement with Eco dated 16 December 1998 by which it embraced Eco’s program that municipalities establish kerbside recycling collections adopting best practice elements in consideration of Eco providing a grant to assist the defendant in implementing the program.[1]
[1]Exhibit 18
12 The defendant subsequently developed a draft waste collection and recycling plan described as “Waste Management Plan”, which bears the date March 2000. The plan was part of the business of the defendant at a council meeting held at its Council Chamber in Ballan on 15 March 2000.[2] The defendant was one of six municipalities concerned with regional waste management which joined together and formed the “Highlands Regional Management Group”.[3]
[2]Exhibit 19 at page 80 and following
[3]The plan created by the Highlands Regional Waste Management Group is also contained in the minutes of Exhibit 19 at pages 103-242
13 The minutes of the meeting just referred to record that the contract the defendant had entered into was with a firm known as Melton Recycling[4] to collect recyclables from three zones within the defendant’s municipality. They also refer to the provision by the defendant to its ratepayers of a 60-litre plastic crate into which recyclables would be placed by the ratepayers for collection.
[4]Melton Recycling is later described as Melton Recycling Centre. It is a business conducted by Mr Brooks and is the same business he conducts through Elken: Transcript 222
14 The plan created by the Highlands Regional Waste Management Group is encapsulated in clause 5.6.11 under the heading of “Kerbside Collections”:
“The implementation of recycling collection systems, utilising a 60 L hard container crate (minimum) will be consistent with ‘Best Practice’ elements of EcoRecycle Victoria’s Kerbside Support Program.”[5]
[5]Exhibit 19 at page 112
15 Elken tendered for the contract to collect recyclables. It was successful in its tender. It was advised by letter dated 6 January 2000 that the defendant had accepted the tender. It was informed that the commencement date of the contract was 1 February 2000, and the period of the contract was five years.[6]
[6]Exhibit 19 page 111
16 The defendant prepared a formal Instrument of Agreement dated 19 January 2000 relevant to the acceptance of the tender. It was executed by officers of the defendant and by Mrs Cheryl Brooks, a director of Elken.[7]
[7]Exhibit 19 on pages 241-242
17 The tender made by Elken was based upon a document variously headed, but for convenience sake I will refer to it by its short title: “Contract No. 3 – 1999/00”. The document contained the terms and specifications which bound Elken upon its tender being accepted, and the execution of the formal Instrument of Agreement.[8]
[8]Exhibit G
18 It was on the foregoing basis that Elken commenced the collection of recyclables within designated areas of the municipal district governed by the defendant.
19 During the life of the contract, the defendant published a document headed “Occupational Health & Safety Contract to Management Guidelines” which had a sub-heading “For the information of Council Contractors”. It is dated October 2002. In short its introduction is sufficient to describe its purpose:
“Moorabool Shire Council is committed to the management of risk and to providing and maintaining a safe and healthy environment for employees, contractors and the community.”[9]
[9]Exhibit T
20 It is a document which Mr Stanley expended a considerable degree of effort in analysing for the purpose of submitting that it was an important document, if not a central document, in establishing that the defendant owed May a duty of care and had breached that duty of care.
21 However, it was not a document which constituted part of the contract between the defendant and Elken. Brooks said that from the date when the contract was entered into there were no variations of the contract of any kind.[10]
[10]Transcript 232
Elken’s System of Work
22 It is sufficient to focus in on the system of work employed by Elken at around the time when May was injured in late November/early December 2003.
23 Elken owned an Isuzu tray truck. A dumpster was placed on the back of the tray truck. A driver would drive the truck along designated routes. He would alight from the truck, pick up the 60-litre crate of recyclables, return to the truck and throw the contents of the crate into the dumpster. According to May, he would undertake the task just described between 200 to 250 times per day.
24 May described the recyclables deposited in the crates as varying in type and size, but they included typical recyclables, such as, cans, plastic, bottles and papers. The weight would vary. May was asked to estimate the weight of the crates. He did not do so, but described the system relevant to assessing the weight of the crates as follows:
“Q.What was the sort of weight of the crates - I suppose they varied?---
A. Yeah, varied quite a bit.
Q.What would be your best estimate as to the range - what would be the heavy ones, the heaviest?---
A. The heaviest?---
Q. Yes?
A.Okay, well some people would put like dark green spumante bottles in and they could be three bottles high and once you come up to them you'd stand there, you'd end up tossing them in - in the bins one at a time until you got it down to what you can handle.
Q. It would really be too heavy for you to handle would it?---
A.Yeah, well if you take one - one dark spumante or green spumante bottle, it's roughly - it'd have to getting on to about a pound-and-a-half, empty. So if you times that by 20 or 30, 20 or 30, 35 bottles that adds up. Then you've got the weight of the crate on top of it.
Q. So would the weights of each crate vary as I indicated?---
A Yes.
Q.Apart from just having a look, was there any other way you could decide or determine how heavy it was?---
A.Well I used to go up and give it a nudge; you tap it and then if it didn't feel too bad you'd take the weight with your hands.
Q.How - could you just explain to us how you would do the lifting and how you had to load the contents onto your truck?---
A.Well, well I'd get out the truck, walk around to the left-hand side, if there was only one or two crates and I - I'd walk up to the crate. If there was paper and cardboard I'd take that off first, walk back to the bin, put it in the bin or back to the crate and give it a tap, if it didn't feel too bad I'd get one hand on each end of it and start to take the weight.”[11]
[11]Transcript 22-23
25 Brooks did not defer from the description given by May regarding the manner in which he went about each of the tasks involved in collecting the recyclables. He described his business as a small one. At present he employs two drivers, and the only other employees are he and his wife.[12]
[12]Transcript 222
Duty of Care
26 Mr Stanley submitted that the starting point in determining whether a duty of care was owed by the defendant to May was the contract entered into by the defendant and Elken.[13]
[13]Exhibit G
27 Mr Stanley referred to a number of clauses in the contract which I will set out in full below. He firstly referred to part of clause 4.4.5:
“All Recyclables Containers supplied by the Contractor under clause 4.4.2 must:
(a)comply in all respects with the specification contained in Schedule 4 … .”[14]
[14]Exhibit G at page 177
28 The schedule deals with the specification for recyclable containers. It refers to the recyclable container being a 60-litre standard crate.[15]
[15]Exhibit G at page 219
29 Mr Stanley submitted that the mandatory use of a 60-litre crate involved manual handling, and more particularly, manual handling in a one-man operation; inevitable exposure to the risk of injury by bending and then lifting crates weighing up to 30 kilograms;[16] lifting crates to head height and throwing the contents into the dumpster on the back of the truck; undertaking the foregoing up to 250 times per day, and entering and exiting the truck up to 250 times per day.
[16]The only estimate of the weight of a crate approaching 30 kilograms was given by Mr Lightfoot, consulting engineer, who filled a crate with empty wine bottles and then calculated that the maximum weight would be 28 to 30 kilograms - at Transcript 135
30 Mr Stanley placed particular reliance on the fact that it was the defendant which specified the weights which May was likely to be exposed to when lifting the crates because it required the use of a 60-litre crate. He submitted that the foregoing amounted to a system of work designed by the defendant which Elken was required to implement, and May was required to employ.
31 Mr Stanley submitted that there were a number of other clauses in the contract which reinforced his primary submission:
· Clause 4.5.1 imposed an obligation on Elken to undertake the collection of recyclables on specific days.[17]
[17]Exhibit G at page 179
· Clause 4.11.1 entitled the defendant to review Elken’s performance of its obligations under the contract by applying specific criteria. Mr Stanley specifically referred to paragraph (d), which is in the following terms:
“The performance of the Contract during the Contract term will be reviewed against the following criteria, with any additional criteria as agreed between the Principal and the Contractor:
…
(d)The Contractor’s commitment to maintain a high Occupational Health and Safety standard at the workplace … .”[18]
[18]Exhibit G at page 185
· Clause 5.3.6 imposed an obligation on Elken to clean, wash down and disinfect both the inside and outside of the trucks it used for the collection recyclables.[19]
[19]Exhibit G at page 190
· Clause 5.3.7 imposed an obligation on Elken to prepare, sign and deliver an inventory of its plant fourteen days prior to the anniversary of the commencement date of the contract.[20]
[20]Exhibit G at page 191
· Clause 5.6.1 imposed an obligation on Elken to investigate complaints, rectify the breaches of contract and advise the defendant of the results of its investigation into complaints within a very short period of time.[21]
· Clause 5.6.4 imposed an obligation on Elken to maintain records of complaints, investigations, breaches of the law, accidents or incidents, breaches of contract and the recyclables collected by collection vehicles.[22]
· Clause 5.8.1 imposed an obligation on Elken to have a site to accommodate its vehicles and to maintain its plant in good repair, order and condition and in a clean and sanitary state.[23]
[21]Exhibit G at page 193
[22]Exhibit G at page 194
[23]Exhibit G at page 196
32 Mr Stanley submitted that the clauses of the contract just referred to gave the defendant what he chose to describe as “an overriding and very extensive power” over the operations of Elken which marries up with his primary submission:
“Your Honour, that we say is the background to the question of duty of care. There is no doubt a duty was owed and we would say that it is a duty that for all practical purposes in this case is the same as that owed by an employer in the sense that it is a duty to take all reasonable care to avoid the risk of foreseeable injury. It does not need to involve the element of non-delegability.”[24]
[24]Transcript 390
33 The next part of the submissions made by Mr Stanley concentrated on parts of the contract which dealt with occupational health and safety:
· Clause 5.11.3 it is in the following terms:
“(a)The Contractor must establish and implement an OH & S management system which ensures compliance with all duties of an employer under the Occupational Health and Safety Act 1985 (‘the OH&S Management System’). The OH&S Management System must be:
i.submitted to the Supervisor for approval prior to the Commencement Date; and
ii.updated during each year of the Contract Term and the updated OH&S Management System submitted to the Supervisor for approval prior to each anniversary of the Commencement Date.
(a)The Contractor must make any amendments to the OH&S Management System, or any updated OH&S Management System, submitted for the approval of the Supervisor, which the Supervisor may direct.
(b)The Contractor must implement the OH&S Management System or updated OH&S Management System, as the case may be throughout the Contract Term.
(c)The OH&S Management System must at least include:
i.the Contractor’s OH&S policy and objectives;
ii.the Contractor’s organisational structure and responsibilities;
iii.details of safe work practices and procedures to be implemented by the Contractor.
iv.the Contractor’s OH&S training and induction;
v.the Contractor’s OH&S auditing and inspection procedures;
vi.the Contractor’s OH&S consultation procedures;
vii.the Contractor’s OH&S performance monitoring; and
viii.the Contractor’s assessment of all risks arising from its performance of its obligations under this Contract.”[25]
· Clause 5.11.6 obliged Elken to promptly remedy any breach of the contract notified to it by the Supervisor relevant to non-performance of its obligations under the contract or performance which endangered the health and safety of Elken’s employees or subcontractors, the defendant’s employees or the public. It also empowered the Supervisor to suspend Elken’s performance of its obligations in certain circumstances.[26]
[25]Exhibit G at page 198-199. The “Supervisor” referred to in the contract is defined at page 158, and is essentially an employee of the defendant nominated to exercise certain powers on behalf of the defendant
[26]Exhibit G at page 200
34 Mr Stanley then referred me to the Occupational Health & Safety Contract Management Guidelines,[27] and submitted that its contents reinforced the position that if an unsafe system of work was imposed upon Elken by the contract which involved a foreseeable risk of injury to employees such as Mr May, then that would give rise to a general common law duty of care on the part of the defendant.
[27]Exhibit T
35 The Guidelines are not part of the contract quite clearly. I can only assume by the date which the Guidelines bear of October 2002 that it was not distributed to the defendant’s contractors until after that date.
36 Mr Stanley emphasised that the introductory statement in the Guidelines was essentially recognition by the defendant that the tasks undertaken by May involved a foreseeable risk of injury and that the system of work he was required to employ was unsafe.[28]
[28]The introductory statement is referred to in paragraph 19 above
37 I was referred specifically to the following:
“In accordance with Council policy, Moorabool Shire Council will only engage contractors who:
· are competent to perform duties specified in the contract in a safe manner;
· have appropriate qualifications and experience;
· display an ability and willingness to comply with Moorabool Shire Council’s safety standards.
All contractors must be able to demonstrate that they:
· are able to carry out their work in safe manner and environment, using proper and safe plant and substances;
· employ systems of work that are safe; and
· provide and receive adequate instruction, training and supervision.”[29]
[29]Exhibit T at page 325
38 Furthermore, I was referred to the emphasis in the Guidelines that they were to provide an overview of the defendant’s requirements relevant to the occupational health and safety contract.[30]
[30]Exhibit T at page 325
39 Mr Stanley also referred me to the following:
“Moorabool Shire Council staff will manage occupational health and safety at the following points in the contract management process:
· Contract Specification;
· Tenders;
· Tender Evaluation;
· Contract Acceptance;
· Commencement of Contract;
· Contract Monitoring;
· Completion of Contract.”[31]
[31]Exhibit T at page 329
40 Mr Stanley particularly emphasised that the Guidelines placed the defendant in a position of managing the process of contract specification and contract monitoring. He then referred me to a part of the Guidelines dealing with arrangements for the management of existing contracts, which necessarily must have involved the contract with Elken. It is in the following terms:
“Responsibility:
It is the responsibility of the OH&S Co-ordinator to ensure that Contract staff and contractors are train[ed] and informed of the relevant OH&S issues.”[32]
[32]Exhibit T at page 353. I assume that the word “training” should be read as “trained”.
41 I was also referred to the scope of the Guidelines relevant to contractors:
“This procedure applies to all contractors engaged by the Council, including:
· All employees;
· Sub-contractors; and
· Persons appointed by all representing the Contractor.”[33]
[33]Exhibit T at page 355
42 Mr Stanley then drew the threads of the foregoing together, ultimately submitting that the defendant established guidelines to ensure a safe work environment for employees or contractors engaged upon work for the defendant.
43 Mr Stanley cross-examined all of the defendant’s witnesses for the purpose of establishing the degree of relationship between the defendant and contractors, and in particular, employees of the contractors, to reinforce the thesis which he submitted I should accept, that all of the foregoing established that the defendant owed a duty of care to May.
44 One of the witnesses was Mr Stewart, who was the Manager of Works of the defendant from 11 August 1987 to 11 September 2009. He was responsible for contracts relevant to the collection of recyclables, and therefore, the contract relevant to Elken.[34]
[34]Transcript 281
45 The other relevant witness was Mr Spence, who is the Chief Executive Officer of the Municipal Association Victoria. It is a position he has held since 1997.[35]
[35]Transcript 254
46 It was my strong impression from the evidence of both Mr Stewart and Mr Spence that there was nothing particularly controversial adduced during the cross-examination. Rather, Mr Stewart, in particular, accepted that the contract between the defendant and Elken established a relationship between the defendant and Elken, as contended for by Mr Stanley, and that the Guidelines established safety requirements expected from contractors by the defendant.
The Defendant’s Answer
47 The duty of care owed by an employer to an employee is a non-delegable duty to take reasonable steps to protect the employee from the foreseeable risk of injury by ensuring that a system of work, place of work, and plant and equipment are safe for the use of the employee.
48 There is no doubt that a party in the position of the defendant, if found to owe a duty of care, owes an ordinary duty of care to prevent personal injury to May.
49 Both Mr Riordan and Mr Stanley referred to a number of authorities relevant to the identification of a duty of care and its content.
50 In Stevens v Brodribb Sawmilling Co Pty Ltd,[36] Brodribb operated a sawmill. It engaged Stevens to cart logs to the mill. Stevens was to use his own truck. It engaged Gray to snig and load the logs onto Stevens' truck using his own tractor. While Gray was undertaking the task of snigging and loading logs onto Stevens’ truck, he dislodged a log which rolled onto Stevens, resulting in him suffering injury.
[36](1986) 160 CLR 16
51 The High Court held that Brodribb owed Stevens a duty of care because the logging operations were conducted for its benefit. It had the overall responsibility for co-ordinating and organising the work which was undertaken by the independent contractors, and because those involved in the logging operations relied on Brodribb to organise and co-ordinate their work. For those reasons, it was held that it was reasonably foreseeable that there was a risk of injury to a worker if reasonable care was not taken by Brodribb in the performance of its organisational role.
52 Mr Riordan referred to a passage in the judgment of Brennan J, which he submitted was relevant to the relationship between the defendant and Elken:
“… The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility. [37]
[37]at 47-48
53 Mr Riordan submitted that the defendant had organised the operation of the collection of recyclables evidenced by the contract and the Guidelines; had selected a competent independent contractor in Elken to undertake the collection of recyclables, and had designed and implemented the use of the 60-litre crate which was a safe means of collection of recyclables.
54 By taking each of the foregoing steps, and applying the principle enunciated by Brennan J, Mr Riordan submitted that the defendant could not be found to owe a duty of care and to be responsible for the negligent failure by Elken to adopt or follow a safe system of work in its area of responsibility, that is, the day-to-day work of the collection of recyclables.
55 Mr Riordan then referred me to a number of provisions in the contract which he submitted established that the defendant did not have a duty to generally supervise Elken relevant to the system of work employed in the collection of recyclables.
56 The first clause of the contract he referred me to was Clause 5.11.1 which is in the following terms:
“(a)The Principal is obliged to provide and maintain a working environment for its employees and members of the public that is safe and without risk to health. The Contractor must itself, and must ensure that any subcontractors of the Contractor will also, at all times identify and take all necessary precautions for the health and safety of all persons, including the Contractor’s employees, employees of the Principal and members of the public, who may be affected by the performance of the service.
(b)The Contractor must inform itself of all OH&S policies, procedures or measures implemented or adopted by the Principle. The Contractor must comply with all such policies, procedures or measures.
(c) The Contractor must immediately comply with any and all directions by the Supervisor relating to OH&S.”
57 The next clause was Clause 5.12.2 which is in the following terms:
“The Contractor must comply with, and ensure that its employees, subcontractors and agents comply with, any Acts, regulations, local laws, codes of practice and Australian Standards which are in any way applicable to OH&S in the performance of the Waste and/or Recycling service.”
58 The last clause was Clause 5.11.3:
“(a)the Contractor must establish and implement an OH&S management system which ensures compliance with all duties of an employer under the Occupational Health and Safety Act 1985 (‘the OH&S Management System'). The OH&S Management System must be:
(i) submitted to the Supervisor for approval prior to the Commencement Day; and
(ii) updated during each year of the Contract Term and the updated OH&S Management System submitted to the Supervisor for approval prior to each anniversary of the Commencement Date.
(b)The Contractor must make any amendments to the OH&S Management System, or any updated OH&S Management System, submitted for the approval of the Supervisor, which the Supervisor may direct.
(c)The Contractor must implement OH&S Management System or updated OH&S Management System, as the case may be, throughout the Contract Term.
(d) The OH&S Management System must always include:
Ithe Contractor’s OH&S policy and objectives;
iithe Contractor’s organisational structure and responsibilities;
iii details of safe work practices and procedures implemented by the Contractor;
ivthe Contractor’s OH&S training and induction;
vthe Contractor’s OH&S auditing and inspection procedures;
vithe Contractor’s OH&S consultation procedures;
viithe Contractor’s OH&S performance monitoring; and
viiithe Contractor’s assessment of all risks arising from its performance of its obligations under this Contract.”
59 Mr Riordan submitted that the foregoing established the enterprise on which the defendant embarked. Having imposed contractual obligations upon Elken of the kind just referred to, it was for Elken to design and implement the system of work for the collection of recyclables using the crate, and not the defendant.
60 It seems to me that the terms of the contract and the Guidelines achieve the result that the defendant had organised the activity of the collection of recyclables to be undertaken by a contractor. More particularly, the terms of the contract referred to by Mr Riordan make it very clear that whilst the defendant had organised the activity, it was for Elken to design and implement a system of work to successfully meet its obligations under the contract, and, indeed, the Guidelines.
61 Just as it was the case in Stevens v Brodribb Sawmilling Co Pty Ltd, so it is here that in the circumstances the duty to take reasonable care on the part of the defendant does not import the duty to retain control of the systems of work if it is reasonable to engage the services of an independent contractor like Elken, where Elken is competent to control its own system of work without supervision from the defendant.
62 The defendant was satisfied that Elken’s tender for the contract demonstrated that it was capable of discharging the obligations which were imposed upon it by the contract.
63 There seems to be little doubt that Elken was a competent independent contractor in discharging the responsibility imposed upon it by the terms of the contract. Indeed, there was no cross-examination of Mr Brooks to suggest that the business which he conducted through Elken was other than competent.
64 The only real attack made upon Elken was with reference to Schedule 6 attached to the contract. Brooks was obliged to complete the schedule which is headed “OH&S MANAGEMENT QUESTIONNAIRE”. Mr Stanley raised issue with reference to the negative answers given to a number of the questions: whether Elken had an OH&S Management System certificate; any permits to work systems; a documented incident investigation procedure; procedures for identifying, assessing and controlling risks associated with manual handling; a record maintained of training and induction programs; a standard workplace inspection checklist to conduct health and safety inspections and a workplace health and safety committee.[38]
[38]Exhibit G at pages 266-267
65 The answers given by Brooks can only go to the issue of whether Elken was a suitable contractor to undertake the collection of recyclables. There was nothing in the evidence of Brooks or the evidence of the defendant which suggested that Elken was unsuitable or incapable of designing and implementing a system for the collection of recyclables.
Elken’s Responsibility
66 To the extent that criticisms have been made of Elken being a competent contractor, I reject those criticisms because they are unsupported by evidence. What is abundantly clear is that Elken was in the business, among other things, of collecting recyclables. It had a vehicle set up for that purpose and employed workers to undertake the physical work involved in picking up the 60-litre crates and emptying their contents into the dumpster situated on the back of its truck.
67 What the submissions made by Mr Stanley fail to recognise is a distinction between the contractual obligations which Elken was required to meet as the successful tenderer, and the means by which it was expected to meet those contractual obligations.
68 The means by which it met those contractual obligations were ultimately up to Elken. It was for it to acquire a suitable truck, and other necessary plant and equipment; to design and implement a system of work for the operator of the truck to undertake the physical work involved as described above; and, of course, to ensure that the workers engaged to undertake that physical work were physically capable of undertaking the work.
69 Furthermore, it was for Elken to undertake risk assessments of the physical aspects of the work in order to ensure that its system of work was safe, and if not, that risks were identified and eliminated in so far as was practicable. So much is the obvious content of the duty of care owed by an employer to an employee.
70 Elken knew that May would be exiting and re-entering the truck repeatedly in the course of undertaking a round, and would be required to bend in order to physically take hold of the 60-litre crates; carry them to the truck and then lift the 60-litre crates to a sufficient height in order to empty their contents into the bin on the back of the truck.
71 The risks to which May was exposed are relatively obvious. Exiting and re-entering the truck exposed him to physical effort; lifting a 60-litre exposed him to physical effort, and in particular, to his spine, shoulders and arms, as did the physical effort involved in emptying the contents of it into the dumpster.
72 However, whether there were risks or not it is not a question of simply identifying an aspect of the work which might constitute a risk, but identifying whether the risks to which May was exposed were unreasonable in the circumstances.
73 One matter which struck me about the evidence of May was that he gave his evidence in a rather matter-of-fact fashion, and indeed, in a rather disarmingly straightforward fashion in the setting of obvious difficulty in recollecting events which occurred so long ago. He did not place any particular emphasis on any particular aspect of the work he was required to perform, suggesting that it was unreasonably physically arduous.
74 Indeed, the impression that I was left with was that May was not particularly troubled by the physical effort involved in exiting and re-entering the truck. The description he gave of the way in which he exited and then re-entered the truck did not strike me as being particularly physically arduous.
75 Furthermore, he had his own system for determining whether the 60-litre crates were likely to be too heavy for him to lift by giving it a nudge or tap which he considered was sufficient to demonstrate whether he could lift it safely or not. I infer that when he gave it a nudge or tap its reaction would inform him whether it contained a significant weight, and if so, that he would not lift it before removing sufficient of its contents to render it safe for him to lift.
76 I accept that a daily regime of the kind described by May undoubtedly exposed him to stresses and strains on his spine, particularly the bending to lift the crate and the effort involved in launching its contents into the dumpster on the back of the truck. As a matter of common sense, tasks of that kind could lead to the occurrence of spinal injury.
77 I think it is unarguable that the responsibility for the design and implementation of the system of work to be employed by May for the collection of recyclables lay with Elken and not with the defendant. I think it is an unreasonable proposition that in some way the contractual arrangements which existed between the defendant and Elken imposed upon the defendant an obligation to step into the shoes of Elken in designing and implementing the system of work and ensuring its compliance by May.
78 The submission made by Mr Stanley, which I quoted in paragraph 31 above, I think goes too far. It is very clear from what was said in Stevens v Brodribb Sawmilling Co Pty Ltd that the submission overstates the ambit of the duty of care owed by a head contractor to a worker employed by a subcontractor.
79 Surf Coast Shire Council v Webb & Anor; Webb v Norquay Nominees Pty Ltd & Anor[39] was an appeal heard by the Court of Appeal from the verdict of a jury in a common law damages claim based upon very similar facts to this proceeding.
[39][2003] VSCA 162
80 Mr and Mrs Webb were the shareholders and directors of a company known as Magic Chook Commercial Cleaners Pty Ltd which had entered into a contract with the Shire to, among other things, collect rubbish from public bins located throughout the municipality. Mr Webb undertook nearly all of the rubbish collection.
81 The bins were situated in a cradle. When full of rubbish they required significant effort in order to remove them from the cradle. When Mr Webb came to empty a bin outside the business premises of Norquay, he attempted to remove the bin from the cradle. It was jammed into the base of the cradle. He gave a violent jerk, with the result that he suffered injury to his right arm and shoulder.
82 Although the Shire conceded that it owed a duty of care, it denied that it had breached the duty of care given the ambit of the duty of care which applied. Chernov JA referred to the judgment of Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd from which I have quoted in paragraph 52 above, and other authorities, and made the following relevant observation of the thrust of the authorities:
“I now turn to the question of the ambit of the Shire's duty of care that it owed the plaintiff. In general terms, the cases that deal with the duty of care of a principal to an employee of an independent contractor who is engaged by the principal to do work for its benefit, seem to indicate that the principal owes a duty to such an employee to act reasonably in relation to such aspects of the project that remain under its control or supervision, where it is reasonably foreseeable that harm could be done to a person in the position of the employee if it failed to exercise due care and skill. But the ambit of that duty, it would appear, is not the same as that owed by an employer to an employee, although, depending on the circumstances, it may be similar. … .”[40]
[40]paragraph 17
83 Chernov JA referred to a number of passages in the judgment of the Court in Stevens v Brodribb Sawmilling Co Pty Ltd, and in particular, the following observation by Mason J:
“… If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”[41]
Therefore, it must be recognised that there is a basis upon which it can be said that the defendant might owe a duty of care to May in circumstances where it engaged Elken to do work which might readily be done by its own employees. However, what must also be recognised is that where the defendant has organised the activity of the collection of recyclables and has put that task into the hands of an independent contractor such as Elken, and there is no failure to take reasonable care in the employment of the independent contractor, then the defendant is not liable for the negligent failure of Elken to adopt or follow a safe system of work. “
[41]at 30-31
84 It seems to me that whether the defendant owed a duty of care to May hinges upon:
· whether the defendant retained a right to control the manner in which Elken carried out the collection of recyclables; and
· even if that was the case, whether the activity of the collection of recyclables had been organised by the defendant and was put in the hands of a competent independent contractor, being Elken; and
· the injury to May was caused merely by the negligent failure of Elken to adopt or follow a safe system of work within its area of responsibility or in an area of shared responsibility with the defendant.[42]
[42]The principles enunciated by Brennan and Mason JJ stated in a very similar way by other members of the Court
85 It seems to me that the defendant was very careful to formulate a contract which organised the activity of the collection of recyclables, with a particular emphasis on safety relevant to Elken and the workers it employed to undertake the physical work involved in the collection of recyclables.
86 On my analysis of the contract, and in particular, the parts of the contract to which both Mr Stanley and Mr Riordan took me, it seems to me that the draughtsman of the contract perhaps had in mind the very principles of law enunciated by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd in organising the activity for the collection of recyclables and imposing upon Elken the contractual obligation to meet extensive and sophisticated conditions regarding safety.
87 I do not accept that Elken was other than a competent sub-contractor capable of undertaking the task of the collection of recyclables. The defendant was satisfied that it had a satisfactory level of competence. It was my very strong impression from the evidence of Brooks that he considered that Elken was also competent to meet its contractual obligations, and to undertake the work of the collection of recyclables to the standard imposed upon it by the contract.
88 The injury suffered by May appears to me to come within the range of the observation made by Brennan J of being damage caused merely by the negligent failure of Elken to adopt or follow a safe system of work within its area of responsibility.
89 Once Elken was awarded the contract, it was for it to design and implement a safe system of work. It is clear from the evidence of May and Brooks that following the occurrence of the injury to May, and on May’s return to work, that May was assigned the task of driving the truck and a truck jockey was employed to physically empty the 60-litre crates. It was a system which was always available to Elken upon an examination of the risks of May suffering injury when undertaking the tasks involved in the collection of recyclables.
90 The alternative system removed the necessity for May to exit and re-enter the truck, and to physically handle the 60-litre crates. It essentially obviated the risks of injury to which May was otherwise exposed before the alternative system was employed. It was also open to Elken to rotate May and the truck jockey to alternate between driving and being the truck jockey.
91 Mr Stanley emphasised that the element of control which the defendant retained was its insistence through the contract that the collection of recyclables be undertaken using a 60-litre crate, and that it could be loaded with recyclables of significant weight and up to 30 kilograms.
92 I do not accept that the use of a 60-litre crate carried with it an inherent risk that the worker lifting it would be exposed to the risk of injury. It is abundantly clear to me that May was aware that the crate might be loaded with bottles. He developed a sensible system to deal with that likelihood. If he observed that the crate was loaded with bottles, he said he would pass them into the dumpster one at a time until he reduced the number of bottles in the crate to a level that he could handle. He would also nudge or tap the crate as part of his assessment of whether he could safely lift it.
93 Again, as I see it, the system for assessing whether the crates were capable of being lifted safely or not was the responsibility of Elken, and even if it was a matter of shared responsibility between Elken and the defendant, it still amounts to merely the negligent failure of Elken to make a risk assessment and to guard May against that risk (if one existed) by giving him instructions and training regarding the safest way to lift and handle the crates.
94 It seems to me that the foregoing was always the responsibility of Elken and not the defendant, and I repeat that the occurrence of the injury to May occurred within the area of responsibility which was that of Elken and not the defendant.
Conclusion
95 The foregoing analysis of the case put by the plaintiff when tested against the background of the relevant principles of law leads me to conclude that the defendant did not owe May duty of care.
96 Although the question of whether there was a breach of duty of care now becomes unnecessary for me to consider, I should say that even if a duty of care was owed, the analysis I have made of the contractual arrangements between the defendant and Elken, and their areas of responsibility relevant to the collection of recyclables, supports the conclusion that there was no breach by the defendant in any event.
97 It is for the foregoing reasons, findings and conclusions that the plaintiff’s case must be dismissed.
- - -