Victorian WorkCover Authority v Shepparton Terrazzo Works Pty Ltd
[2011] VSC 464
•29 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT BENDIGO
COMMON LAW DIVISION
S CI 2011 01641
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| V | |
| SHEPPARTON TERRAZZO WORKS PTY LTD | Defendant |
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JUDGE OF THE COURT: | T FORREST J | |
WHERE HELD: | Shepparton | |
DATES OF HEARING: | 2 and 5 September 2011 | |
DATE OF JUDGMENT: | 29 September 2011 | |
CASE MAY BE CITED AS: | Victorian Workcover Authority v Shepparton Terrazzo Works Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 464 | |
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ACCIDENT COMPENSATION ACT1985 – Section 138 recovery action – Labour hire company employer – Apportionment of liability.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F O’Brien SC and Ms R Boyce | Wisewould Mahony |
| For the Defendant | Mr G Lewis QC and Mr A Ramsey | Hunt & Hunt |
HIS HONOUR:
Background
Richard Dart has suffered from asthma and eczema since infancy. Up until 2003 both conditions had been reasonably well controlled. He had never been hospitalised for asthma[1] and used a Ventolin puffer as needed. He would also take Becotide[2] - a corticosteroid medication prescribed by his G.P. Typically, he would inhale Becotide in the morning and evening. On these occasions he would also inhale Ventolin, and he also used Ventolin during the day as required. Until 2003, his eczema was largely confined to his inner joints (the elbows and knees), came on in hot sweaty conditions and was well controlled by various creams.
[1]He attended hospital on occasions in 2002 when his Ventolin supply was depleted.
[2] T75. Also described by the plaintiff as Becloforte. T118
Mr Dart was employed by Workforce Extensions[3] on 11 July 2003. Workforce is a labour-hire company. His services were immediately hired out to Shepparton Terrazzo Works Pty Ltd. [4] Mr Dart performed duties at STW from 11 July 2003 to 15 August 2003. During the course of performing those duties, Mr Dart alleged he suffered significant exacerbations to both his asthma and eczema conditions. He sued both Workforce and STW for personal injury alleging both negligence and statutory breaches against both defendants. This matter was listed before me in these sittings for trial by jury. The parties agreed to settle the matter during the second defendant’s (STW) cross-examination of Mr Dart.
This proceeding
[3]Global Traffic Management Pty Ltd (formerly Sportiff Management Pty Ltd) trading as Workforce Extensions (“Workforce”).
[4](“STW”).
The plaintiff in the current proceeding, Victorian Workcover Authority,[5] claims pursuant to s 138 Accident Compensation Act 1985 (Vic) to be indemnified by STW in respect of payments made by VWA to and on behalf of Mr Dart. The amount of payments made to Mr Dart has been agreed between the parties. Relevantly, s 138 (1) of the Act reads as follows:
Where an injury…for which compensation has been paid by the Authority...was caused under circumstances creating a liability in a third party to pay damages…the Authority…is entitled to be indemnified by the third party in accordance with this section.
[5](“VWA”)
Thus, the first issue is whether the injuries sustained by Mr Dart occurred in circumstances creating a liability in STW to pay damages to him.
There is relatively little evidence in this matter. Mr Dart’s evidence-in-chief and cross-examination[6] in his Common Law Action was agreed by consent to be evidence in these proceedings. This was supplemented by a little further cross-examination of Mr Dart in this hearing.[7] VWA called no evidence from Workforce but called evidence from Michael Beale, Occupational Hygienist[8] and tendered his report.[9] STW called Mr Gulianni,[10] a director of STW in 2003. A view of STW was conducted at the jury trial and various exhibits were tendered in both proceedings which I will refer to where necessary. On the basis of that evidence, I make the following findings relevant to STW’s liability.
STW’s Liability
[6]T68-T152.
[7]T201-T206.
[8]T210-T249.
[9]Exhibit P1.
[10]T251-273.
STW was the owner and occupier of a concrete fabrication plant in Shepparton. One of the activities carried out at that plant was to create rectangular concrete slabs using poured concrete and metal formwork. Concrete is made from a combination of sand, cement powder, lime and water.[11] Once dried, the formwork is removed from the concrete. Residual dried concrete adheres to the formwork and this needs to be removed before the formwork can be used again. The plaintiff was instructed to use an angle grinder fitted with a circular wire brush to clean up the formwork. This process released large quantities of cement dust into the atmosphere.[12] At the start of a shift the plaintiff was also required to clean the factory floor using a broom. This also would disturb dust on the floor and cause it to become airborne. The plaintiff’s shift began in the evening at about 5pm and extended until 11p.m. or midnight.
[11]See Exhibit P1. Report of Michael Beale Occupational Hygienist page 8.
[12]T87.
On July 11 2003 Mr Dart was directed by Workforce to STW. No one accompanied him. At STW he met “a bloke called Mario”[13] who gave him “the rough low down” of what he had to do.[14] It was explained to Mr Dart that he had to remove the formwork from the concrete slabs, stack it in a particular location and then start cleaning it using the angle grinder. Work would conclude when the formwork was clean.[15] Mario worked with Mr Dart. Art smocks and paper masks were provided. The formwork would be placed on a steel table for cleaning.[16] This table was in the middle of the factory near to an unused (and apparently unserviceable) formwork cleaning machine. There were no doors in the immediate vicinity of this table.
[13]T78. Mario was never identified by surname.
[14]T78.
[15]T78-80.
[16]T81.
The formwork to be cleaned would be at approximately hip height. Mr Dart’s head would be approximately 50cm from the angle grinder. The cleaning process generated a very large quantity of cement dust. Mr Dart would be covered in it.[17] He would perspire doing his work. As I have observed, his duties would commence with sweeping the floor of the factory. This also created “heaps” of dust.[18] He would then begin the formwork cleaning.
[17]T87. “Heaps”. T88 “all over me. Covered.” “In my ears, eyes, hair, down me neck”.
[18]T87.
A supply of masks was purchased by STW in May 2003. This supply was exhausted within a few days of Mr Dart’s commencement.[19] He was told by Mario (also the Safety Officer) that he was using too many of them[20] after alerting Mario to that fact. Mario, himself, did not wear a mask. The next supply of masks did not arrive until 30 August 2003, 15 days after Mr Dart was laid off.
[19]T87.
[20]T88.
No one from STW, apart from Mario, gave Mr Dart any instruction, information, induction or advice about his duties and any risks attached. No one brought to his attention the presence of any Material Safety Data Sheets relating to cement, sand or lime. No one from STW asked him whether he suffered from asthma or any other breathing related difficulties before setting Mr Dart to work on the duties and in the environment I have outlined. Similarly, no one asked him whether he suffered from any skin irritations or allergies.
Mr Dart’s eczema and breathing difficulties became progressively worse during his time at STW. His breathing became wheezy, although his eczema was initially the more acute condition and the focus of the medical treatment he sought. This changed on 7 September 2003[21] when Mr Dart’s breathing difficulties took a dramatic downturn. He was admitted to the Intensive Care Unit of the Goulburn Valley Hospital and remained hospitalised for nine days. As I have already noted, this was the first time he had been hospitalised for asthma.
[21]T91. Three weeks approximately after Mr Dart was laid off by STW.
Mr Dart complained to Mario. This was at a time when he was “itchy” and had “a rash all over….(his)…body”. “I told Mario about it and he sort of, you know, what do you want me to do about it”.[22]
STW’s Liability Conclusions
[22]T 90.
STW owed a common law duty to Mr Dart to take reasonable care for his safety whilst he was carrying out duties in its factory. I consider STW breached this duty in a number of material respects, specifically:
· It failed to take any or any adequate steps to minimise the incidence of cement dust floating in the air in the vicinity of Mr Dart’s work duties. I consider that the relevant system of work implemented by STW paid almost no attention to the safety of workers in this regard. This system of work was devoted to the most effective method of cleaning the formwork and if this created cement dust in the atmosphere, then I consider the attitude of STW was “so be it”. The only attempt at reducing cement dust in the internal atmosphere was through the use of a small, ineffective extractor fan,[23] the output hose of which did not clear the factory door. Doors to the factory were either closed during these night time operations or left partially open. I accept Mr Dart’s account of the atmosphere in his immediate working vicinity and I conclude that leaving certain doors partially open did little to mitigate the levels of cement dust in that vicinity.
[23]T89.
· STW failed to take any step at all to ascertain Mr Dart’s general health and in particular whether he suffered from any skin irritations or pre-existing breathing difficulties before subjecting him to this cement dust laden environment.
· Mr Lewis submitted that the fact that Worksafe Victoria had carried out a field audit in May 2003 and issued a number of improvement notices, none of which related to cement dust in the atmosphere, was evidence that STW had not breached their duty to Mr Dart and was also evidence that the problems encountered by Mr Dart were not foreseeable. Mr Lewis relied on a number of cases in which the worker had some special susceptibility to injury[24] and advanced the contention STW could not have reasonably foreseen that Mr Dart would be injured in the way that he was. I am not persuaded by this submission. As I have observed, Mr Dart’s activities caused him to be covered in cement dust: “In my ears, eyes, hair, down me neck.” Mr Gulianni effectively conceded that STW should have foreseen that the nature of the formwork cleaning operations was potentially injurious to health in his answer to the sixth question in his evidence-in-chief.[25]
[24]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Tame v New South Wales [2002] 211 CLR 317; Goldsmith v SPC Ardmona Operations Ltd [2009] VSC 445.
[25]T251.17-20.
Had you been told that he had an asthmatic condition for life what would what would have been your reaction to his working at your premises? Well, he probably wouldn’t have been able to work there.
In answer to a question from me he expanded on this
Well if there’s dust in the air I suppose that’s going to be a problem if someone’s asthmatic.[26]
[26]T272. 4-6
Asthma is not some exotic condition known only to obscure branches of the medical profession. I consider that it is a sufficiently common condition that, given the conditions STW must have known Mr Dart’s work tasks entailed, it owed a duty to Mr Dart to enquire of his respiratory health before engaging him on those tasks. I also consider that even without knowledge of Mr Dart’s asthmatic condition or his eczema, STW should have foreseen that the nature of the formwork cleaning operations was potentially injurious to health. I consider that Mr Dart’s circumstances are comfortably distinguishable from the special or hidden susceptibility cases relied on by Mr Lewis, which are all cases where the special susceptibility was to psychiatric injury.
·Having created the dusty environment and then having taken no effective action to control it, I also find that STW failed to provide Mr Dart with any or any adequate protective clothing or equipment that would have minimised the risks to his health. The paper breathing masks ran out after a couple of days and were not replenished until 30 August 2003, nearly seven weeks after Mr Dart commenced work and two weeks after he finished.[27]
It follows from the above that I am satisfied that STW owed Mr Dart a common law duty of care and breached that duty in a number of material respects. I am also satisfied that the negligence of STW was a cause of the exacerbations of Mr Dart’s asthma and eczema.[28]
[27]Mr Lewis advised me of this August date in submissions.
[28]No submissions from STW were directed to the issue of causation. On the question of liability, STW’s submissions were confined to the ambit of the duty it owed to Mr Dart and whether that duty had been breached.
Given my findings on the issue of STW’s common law negligence, it is not strictly necessary for me to determine the issues of statutory breach pleaded by the plaintiff in the Amended Statement of Claim. I should indicate, however, that I consider STW to have been in breach of the Occupational Health and Safety (Hazardous Substances) Regulations 1999 Part 3, in that hazardous substances were not identified, a register of hazardous substances was not kept, risk assessments in relation to their use were not conducted nor were risks identified, atmospheric monitoring was not conducted at all and Mr Dart was neither informed nor instructed in relation to the risks associated with hazardous substances.[29] Implicit in these findings is the proposition that the cement dust was a hazardous substance thus engaging the 1999 regulations at the time of Mr Dart’s employment. The term “hazardous substance” is defined in Regulation 103 of the Regulations. The evidence of Dr Beale was that cement dust
[29]See Occupational Health and Safety (Hazardous Substances) Regulations 1999. Regulations 302, 306, 307, 308, 310, 312, 315, 316, 317, 321.
is a mixture of a number of ingredients
1.Sand
2.Cement
3.Lime
4.Additives to enhance the properties including the cure rate.
I have included in Attachment 3 a series of Material Safety Data Sheets for ingredients of concrete. These are all considered to be hazardous substances by criteria defined by Worksafe Australia or the Australia Safety and Compensation Commission and so should have been included in any Hazardous Substances Register.[30]
STW called no evidence on this issue. I accept this evidence from Dr Beale.
[30]Exhibit P1 page 13.
For the reasons expressed above, if it were necessary, I would also find that STW as occupier of the premises at 2/25 Hawkins Street Shepparton owed a duty to Mr Dart under s 14(b)(3) of the Wrongs Act 1958 and breached that duty, such breach amounting to a cause of Mr Dart’s injuries, loss and damage.
It follows from the above that I find that the injuries sustained by Mr Dart occurred in circumstances creating a liability in STW to pay damages to him.
Contribution
The only issue that remains for me to determine is my assessment of the extent expressed as a percentage “whereby the third party’s act, default or negligence caused or contributed to the injury…”[31] The actual amount to be paid by STW is to be calculated by the formula set out in s 138 (3)(b) of the Act.
[A-(B+C)]x
[31]S.138 (3) (b).
This analysis of the respective contributions of STW and Workforce requires that a figure for factor x in the above formula be determined. It is unnecessary to set out values for A, B and C as they have been agreed between the parties. Factor x will be my assessment in percentage terms of STW’s act default or negligence expressed as a proportion of all causes or contributions to the injury.
This examination requires that I measure the breach of duty of STW against any respective breaches of duty owed by Mr Dart to himself and by Workforce to Mr Dart as his employer. Any assessment that I make of STW’s contribution to Mr Dart’s injuries will necessarily be intuitive and without any mathematical precision. It must take into account, however, my equally intuitive evaluation of the contribution of Workforce and Mr Dart himself to the injury.
Mr Dart failed to complete year 9.[32] In July 2003 he was 26 years old. He had worked intermittently since leaving school in a variety of unskilled labouring jobs. He, probably accurately, described his academic abilities as “not too crash hot.” He described his reading as “not very good.” His employment before Workforce/STW consisted of jobs such as milking cows, a packing shed hand, hay carting, labouring at the SPC factory and labouring with a house re-stumping business. Mr Dart said he did this latter work for four years[33] from the age of about 18. This work was strenuous and at times dusty[34] but did not cause Mr Dart any great difficulties with his pre-existing eczema or asthma.[35] Mr Dart’s evidence was essentially that although these conditions were active throughout his pre-Workforce/STW employment, they were well controlled and did not prevent him from performing the sometimes heavy tasks required of him.
[32]T68.
[33]Although I suspect this work was intermittent and may have spanned a period of four years. It does not correspond to the information provided in Exhibit D1 A.
[34]T75.
[35]T76.
I have recited this history in some detail because it bears upon Mr Dart’s understanding of what types of employment he was suited to. On 11 July 2003 Centrelink directed Mr Dart to Workforce Extensions’ office in Shepparton. “…[I had] better go and get a job or they’re going to cut me dole off…”.[36] When he arrived at the Workforce office he was told that a job had been lined up for him at STW.[37] They said it was a labouring job and gave him no further detail[38] (my emphasis). He was asked to complete a “Candidate Form” which he “filled out as best as …(he)…could.”[39] That form became Exhibit D1 A in the Common Law Trial. It is apparent two different handwritings are present on the form. On page 1 of this form a total of four questions are asked under the hearing Workcover Information. The second reads as follows
Do you have any existing ailments that may effect (sic) your ability to perform normal duties in the workplace?
The “no” answer was circled. On balance, I accept that Mr Dart either circled this answer or provided the information to whomever did circle it. Mr Dart signed the form at the bottom of the second page.
[36]T77.
[37]T77.
[38]T77.
[39]T77.
No further questions were asked of Mr Dart and at no stage was he told by Workforce the nature of the duties expected of him at STW. They simply said it was a labouring job. I can discern no failure on the plaintiff’s part in this regard to take reasonable care for his own safety. He had worked heavy, hot and dusty labouring jobs before. He was given no indication by Workforce of the true nature of the labouring duties expected of him. In particular, he had no information from Workforce about the expected presence of large quantities of cement dust in the working atmosphere at STW. I regard the failure by Workforce to provide him with this information and make more searching enquiries about his health as evidence of serious shortcomings in Workforce’s procedures. Mr Dart’s failure to provide fulsome responses to Workforce’s inadequate enquiries can hardly now be held against him.
Similarly, STW made no enquiries at all of Mr Dart before setting him off on his formwork cleaning duties. Mr Lewis sought to make something of this[40] submitting that Mr Dart never told STW of his eczema or asthma problems, and therefore “failed to have due regard for his own safety.” I am not attracted to this submission. Had STW asked him whether he had ever suffered from asthma or breathing difficulties (a not unreasonable question given the nature of the duties they were seeking of him) no doubt they would have received an answer. As I have observed earlier, Mr Dart had worked in hot, dusty environments before without any significant health problems. His uncontradicted evidence is that initially the eczema was the more acute of his problems, he advised Mario, the Safety Officer, of those problems and he received a response to the effect “what do you want me to do about it.” When Mr Dart advised Mario that there were no paper masks left, Mario who performed the same duties and who worked without a mask himself, told Mr Dart he was using too many. Mario, the Safety Officer, was not called as a witness.
[40]T296.
I am unable to find that Mr Dart breached the duty he owed to himself to take reasonable care for his own safety.
Workforce v STW
Workforce, as Mr Dart’s employer, owed him a non-delegable duty of care. It owed him this duty because Workforce had the “exclusive responsibility for the safety of the appliances, the premises, and the system of work to which it exposed (its) employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters…”[41] If the employer “requires his employee to work according to an unsafe system, he should bear the consequences.”[42] It is a special duty of a “more stringent kind”[43] than the normal common law duty of care. In the labour-hire context where the employee’s services are hired out to a third party, the employer still has an independent obligation to satisfy itself of the safety of the system of work in which its employees are engaged.[44] Factors relevant to the issue of whether an employer has breached that ‘special duty’ include the opportunity an employer has to inspect the third party premises where the employee will perform his duties, and the measures taken by the employer to ensure that a safe system of work is established, maintained and enforced.
[41]Kondis v State Transport Authority (1984) 154 CLR 672 (at 687-688) per Mason J.
[42]Kondis v State Transport Authority (1984) 154 CLR 672 (688) per Mason J.
[43]Burnie Port Authority v General Jones Pty Ltd(1994) 179 CLR 520 (at 550) per Mason CJ, Deane, Dawson, Tooney and Gaudron JJ.
[44]Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 at [57].
In Pollard v Baulderstone Hornibrook Engineering Pty Ltd[45] McColl JA (with whom Mason P and Beazley JA agreed) conducted a most helpful and accessible review of the authorities in this area. Her Honour noted (at paragraph 43) various cases where a labour hire firm had done little to familiarise themselves with the conditions of the proposed workplace. For example in Victorian Workcover Authority v Carrier Air Conditioning Pty Ltd[46] a labour hire firm had showed no real concern for an employee’s safety whilst he worked at Carrier. That employer was held to be 35 percent responsible for the worker’s injury and the occupier/host 65 percent. In Glynn v Challenge Recruitment Australia Pty Ltd[47] where a labour hire service similarly did nothing to ensure safe working conditions, it was held at trial to be 40 percent responsible and the occupier/host to bear 60 percent responsibility.
[45][2008] NSWCA 99.
[46][2006] VSCA 63.
[47][2010] NSWCA 203.
Ms O’Brien SC for the plaintiff in this action took me to a range of cases where certain percentage apportionments have been determined as between labour hire companies and occupiers of workplaces. Whilst helpful, I consider that the infinite combination of variables means that there can never be a standard tariff for this type of case and Ms O’Brien accepted as much.[48]
[48] As did McColl JA in Pollard at [62].
In this case, I regard the features of Workforce’s conduct that bear upon the apportionment to be as follows. It owed a non-delegable duty to its employee Mr Dart. In breach of this duty:
· It failed to make any reasonable enquiry of Mr Dart as to his existing health when employing him.
· It failed to provide him with any reasonable information about the duties expected of him at STW.
· It failed to conduct any regular inspections of the workplace. I find, on the evidence, it had attended STW once and then more than 12 months prior to its employment of Mr Dart.[49]
[49]See evidence of Mr Gulianni T272. Workforce may have attended STW on other occasions after Mr Dart’s employment ended.
· Both Workforce and STW were in the metropolitan area of Greater Shepparton and STW was very easily accessible to Workforce.
· It failed to make any effort whatsoever to establish, maintain or enforce a safe system of work for its employee Mr Dart and did not visit the premises at any time when Mr Dart was engaged in work duties there.
· It made no effort to ascertain whether Mr Dart would be working with hazardous substances or whether Material Safety Data Sheets were kept recording the presence of those substances.
I regard the features of STW’s conduct that bear upon the apportionment to be as follows. It owed a duty to Mr Dart to take reasonable care for his safety. In breach of this duty:
· It failed to make any enquiry about his existing state of health, in particular about any skin or breathing disorders in circumstances where it knew that he would be working in a cement dust laden environment.
· It took inadequate, if any, measures at all to minimise the cement dust in Mr Dart’s working environment.
· It failed to supply P2 paper breathing masks for most of Mr Dart’s employment.
· It failed to warn Mr Dart of the risks of performing his work duties.
· It failed to heed Mr Dart’s complaints to Mario of his increasing skin irritation.
· It failed to carry out any or any reasonable risk assessment of Mr Dart’s duties.
· It failed to comply with the Occupational Health & Safety (Hazardous Substances) Regulations 1999 and, in particular, failed to identify hazardous substances, keep a register of hazardous substances, identify risks in relation to those hazardous substances, conduct atmospheric monitoring to ensure exposure standards were not exceeded and inform Mr Dart at all of the risks of working with hazardous substances.[50]
[50]Occupation Health and Safety (Hazardous Substances) Regulations 1999 Part 3. Regulations 302, 306, 307, 308, 310, 312, 313, 315, 316, 317, 321.
I take the view that STW must shoulder the primary responsibility for Mr Dart’s injuries. It was STW’s factory. It was STW’s system of work and STW’s cement dust that was the immediate cause of Mr Dart’s injuries, loss and damage. That having been said, Workforce demonstrated a frank disinterest in the circumstances of Mr Dart’s duties in the way that I have identified and I consider that it breached its non-delegable duty to Mr Dart in a significant way. I assess STW’s contribution at 65 percent and Workforce’s contribution at 35 percent. Factor x in the s 138 (3)(b) equation is therefore 65.
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