Victorian WorkCover Authority v Total Engineering Systems Pty Ltd
[2015] VCC 741
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-13-00516
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| TOTAL ENGINEERING SYSTEMS PTY LTD (ACN 058 536 575) | First Defendant |
| and | |
| ALEX FRASER PTY LTD (ACN 004 056 204) | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10, 11 and 12 February 2015 | |
DATE OF JUDGMENT: | 26 June 2015 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Total Engineering Systems Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 741 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Recovery proceeding pursuant to s138 – knee injury suffered by worker – worker employed by labour-hire company – first defendant contracted with labour-hire company for the worker to install weighing machines to conveyer belts – whether there was negligence on the part of the first defendant that was a cause of the worker’s injury – duty of care akin to that owed by an employer to a worker – appropriate system of work at the premises – failure to prove causation
Legislation Cited: Accident Compensation Act 1985, s138
Cases Cited:Czatyrko v Edith Cowan University (2005) 214 ALR 349; Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63; McLean v Tedman (1984) 155 CLR 306; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Judgment: Plaintiff’s claim against the first defendant dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A M Magee | Wisewould Mahony |
| For the First Defendant | Mr J P Brett | HWL Ebsworth Lawyers |
| For the Second Defendant | No appearance | Wotton + Kearney |
HIS HONOUR:
Introduction
1 This proceeding is brought by the plaintiff pursuant to s138 of the Accident Compensation Act 1985 (“the Act”).
2 In 2009, Michael James Brown (“the worker”) was employed by Chelgrave Contracting Australia Pty Ltd (“Chelgrave”), a labour-hire company. Mr Brown was a mechanical fitter of thirty years’ experience in the industry.
3 Alex Fraser Pty Ltd (“the occupier”) conducted a materials recycling business at a quarry situated at Doherty’s Road, Laverton in the State of Victoria (“the premises”). The occupier contracted with Total Engineering Systems Pty Ltd (the first defendant) to install weighing devices to the underside of conveyor belts that were in use at the premises.
4 In July 2009, the first defendant contracted with Chelgrave for the worker to attend at the premises and install the weighing machines to the conveyor belts. The workplace was in effect a construction site. The worker had performed work for the first defendant at the premises on a number of days prior to the accident that is the subject of this proceeding.
5 On 22 July 2009, in the course of his work with the first defendant at the premises, the worker stepped down from the structure which supported the conveyor belts and twisted his knee. The worker continued to work for the remainder of that day.
6 The injury to the worker’s knee progressed to numerous surgeries and ongoing medical treatment.
7 The claim by the plaintiff is a statutory cause of action to recover damages from the first defendant to be calculated according to the formula set out in s138 of the Act.
8 The claim against the second defendant in this proceeding has been resolved prior to the commencement of the hearing. The second defendant took no part in this hearing of the claim by the plaintiff against the first defendant.
9 At the conclusion of the evidence and submissions in this proceeding, the questions the Court needs to answer were agreed as follows:
(i) Was there negligence on the part of the first defendant that was a cause of the right knee injury to the worker?
(ii) If yes to Question 1, what percentage of liability (the X factor in the formula) is attributable to the first defendant?
(iii) If yes to Question 1, what is the amount of damages for pecuniary loss or non-pecuniary loss (factor A in the formula) which the third party is liable to pay in respect of the injury to the worker?
10 I will deal with these questions in sequential order. The evidence on the question of negligence and causation in this case was from Mr Brown for the plaintiff and Mr Saul for the first defendant.
(a)Was there negligence on the part of the first defendant that was a cause of the right knee injury to the worker?
The duty of care owed by the first defendant to the worker
11 It was not in dispute at this hearing that the first defendant owed a duty of care to the worker, Mr Brown. It was also common ground between the parties that the duty of care was akin to that owed by an employer to a worker.
12 The duty of care owed by the first defendant is set out in the case of Czatyrko v Edith Cowan University[1] as follows:
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”[2]
[1](2005) 214 ALR 349
[2]Paragraph [12]
13 The duty of care of the first defendant includes the provision of a safe system of work; a safe place of work; proper plant, equipment and appliances. It also includes instructing a worker in the performance of his work where instructions might reasonably be thought to be required to secure the worker from danger or injury.[3]
[3]Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63
14 The first defendant’s duty to provide a safe system of work is not discharged by leaving it up to the worker to devise a system of work.
15 The duty owned by the first defendant to the worker also includes a situation where there is a possibility where the worker may act inadvertently in the performance of his work. The duty owed by the first defendant extends to taking steps to avoid such risk.[4]
[4]McLean v Tedman (1984) 155 CLR 306
Breach of duty – the law
16 The law in Victoria on the breach of duty and how it is determined is set out in Wyong Shire Council v Shirt.[5] This is sometimes referred to as the “Shirt calculus”. Mason J set it out in the following passage:
“… the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”[6]
[5][1980] HCA 12; (1980) 146 CLR 40
[6]Paragraphs [14]-[15]
17 The Shirt approach to determining a breach of duty requires an inquiry that does not focus only on how the particular injury happened to the worker. It requires looking forward to identify what a reasonable person would have done, not backward, to identify what would have avoided the injury to the worker.
18 The High Court of Australia considered the breach of duty in Vairy v Wyong Shire Council.[7] The Court stated:
“… The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.”[8]
[7][2005] HCA 62; (2005) 223 CLR 422 at 461
[8]Paragraph [124]
19 The inquiry into a breach of duty must consider “the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.[9]
[9]Wyong Shire Council v Shirt (supra) at paragraph [14]
The breach of duty in this case
20 The allegations of negligence by the plaintiff are set out in paragraph 13 of the Statement of Claim dated 6 February 2013. I will not recite them fully in this decision. The plaintiff’s case was conducted on the basis that the areas of the first defendant’s negligence were:
(a) The first defendant did not properly assess the work and workplace;
(b) The first defendant did not properly induct the worker for the work and workplace;
(c) The first defendant did not provide a ladder or other appropriate equipment for the access and egress from the work area at the premises.
(a) Did the First Defendant properly assess the work and the workplace?
21 The plaintiff relies on the evidence of the worker, Mr Brown, to establish that the first defendant failed to properly assess the work and the workplace. The worker stated that he had no recollection of attending an induction to the occupier’s premises.[10] The worker conceded that he had completed and signed the Induction Questionnaire dated 15 July 2009.[11]
[10]Transcript (“T”) 41
[11]Exhibit P3 and T41
22 The worker stated that he could not recall any instruction from the occupier regarding access to the conveyor area.[12] When asked whether Mr Saul, a director of the first defendant, had conducted a “walk-through” of the conveyor area, the worker stated:
[12]T43-44
Q:“If it is suggested that Mr Saul and you had a walk-through of the area prior to work commencing, do you have any recollection of that occurring?---
A:I don’t recall it, but - - -”
HIS HONOUR:
Q: “Excuse me, on this day or the earlier days?”
MS MAGEE:
Q: “Earlier, prior to the incident. I beg your pardon.
(To witness):
Q: Prior to the incident?---
A:I think we would have gone through where we were working at on that – when we first got there, probably after doing the – what’s the word?
Q:The induction?---
A:The induction, yeah, that’s the one. I do hundreds of them and I can’t even think of it. We would have probably gone down the job site and had a look at it and gone through and, like, this is where we’ve got to put this and that, this is what we’re going to do here and there, but nothing as specific as - that I actually recall, from any other jobs, type of thing.
Q:I’m sorry, I didn’t - - -?---
A:I didn’t – there’s nothing I recall directly involving any of that.”[13]
[13]T44, L6-24
23 This evidence was given in evidence-in-chief by the worker, Mr Brown.
24 The worker was cross-examined on the issue of discussion between Mr Saul and himself about the job to be performed. The following evidence was given by the worker:
Q:“You had been there with Nigel Saul before this day?---
A:Yes.
Q:And you had worked with him?---
A:Yes.
Q:And I think the induction records from about a week earlier show that you’d signed it at the same time, and we’ve been through those?---
A:Yes.
Q:He will say that his recollection is that either on the day of your injury or the day before, he was talking to you about the job of aligning the rollers and that the two of you were looking at it and working out how best to access it. Do you have any recollection of that?---
A:No.
Q:Do you dispute it or you simply have no recollection?---
A:I don’t recall it.
Q:We have to be a bit clear. When you say you don’t recall, does that mean you would recall if it had happened or you just don't recall?---
A:We probably did have a number of discussions over the period of time, but I don't recall every - that was six years ago. I don’t remember what happened. It wasn’t important enough to lodge in my tiny little brain, I’m afraid.
Q:He will say that you agreed that the way to access it was to climb up on the steel?---
A:Well, that’s the way we did it, yeah.
Q:Which is called the stringer, is that right, the conveyor stringer?---
A:Yeah, it sounds familiar.
Q:And he’ll say that you discussed it and agreed that that was the best and safest method of doing the job, do you agree with that?---
A:I don’t recall it, but I agree with that statement.
Q:So you would agree it was the best and safest method of doing the job?”
MS MAGEE:
“That isnot what he said.”
MR BRETT:
“Hesaid he’d agree with the statement. I’m clarifying.
(Towitness):
Q:Do you agree it was the best and safest method of accessing that job?---
You’ve got to recall in the industry that we’re in, if you make too many waves, you don’t get the work, so you tend to agree with what is put in front of you and just get on with the job.
ButI’m asking you do you agree with the statement, and I appreciate that you’ve hurt your knee and I don’t dispute that for a moment, but at the time, your belief was that that was the best and safest way of accessing the job?---
A:At that time, yeah, but in hindsight, which we haven’t got, have we, we probably should have built a scaffold around it and made sure it was safe.”[14]
[14]T101, L17 – T102, L28
25 The evidence of the worker is consistent with Mr Saul that there was a verbal instruction or assessment between them in the method of installation to the belt weighers and the alignment of them to each conveyor.[15]
[15]T242
26 Mr Saul conceded there was no job safety analysis prepared by him for the installation of the conveyor belt weighers.[16] Mr Saul’s evidence was that he discussed the job with the worker and they agreed to access the work area by climbing up on the “stringer” for the conveyor known as CV27.[17]
[16]T242
[17]T242-243
27 At the time of his injury, the worker was aligning the belt weighers on the conveyor known as CV26.[18] CV26 was situated above conveyor CV27.
[18]T217
28 The conveyors CV27 and CV26 were set up on steel cross-beams. The cross-beam at the bottom was approximately 300 millimetres above the concrete pad forming the foundations for the hopper legs. The “stringer” for CV27 was approximately 600 millimetres from the concrete pad on ground level.[19] The stringer ran at right angles to the lower cross-beam and was supported by it. Photograph 9 of exhibit D1 gives a clear view of the relevant beams. The method of access to align the belt weighers to CV26 was to step up onto the cross-beam and then onto the “stringer” for CV27. The working height for the belt weighers was then at 1,200 millimetres for a person standing on the CV27 stringer. The method of leaving the work area was to step from the “stringer” to the cross-beam and then to the ground level. The evidence is that the ground level at the time of the accident for the worker had gravel over the concrete slab foundations.[20]
[19]T281
[20]T224 and T292
29 I find that there was an adequate and reasonable assessment of the workplace and the work to be performed at the premises by the first defendant. The occupier had conducted an induction process to the premises and the worker had participated in that process. I accept that Mr Saul and the worker had undertaken a “walk-through” of the area around CV27 and CV26 in particular, and had agreed the best and safest way to approach the task of installing and aligning the conveyor belt weighers. I accept and they agreed to approach the work area by stepping up onto the cross-beam and then to the stringer beam for CV27 in order to use it as a platform whilst doing the work on CV26.[21] The stepping distances were approximately 300 millimetres between each beam. The proximity and relative distances of the two beams and the ground level are clearly shown in Photograph 9 of exhibit D1.
[21]T283
30 The submission on behalf of the plaintiff that the first defendant failed to perform a job safety analysis or other written assessment indicates a failure to assess the workplace, does not have force in the context of this case. The worker does not remember the written induction process he took part in with the occupier of the premises.[22] He does remember a discussion with Mr Saul about how they would do the job on a “walk-through”. The worker could not recall the detail of his discussions with Mr Saul.
[22]T41
31 I accept Mr Saul and the worker both made independent assessments of the work area and how the installation of the conveyor weighers was to be performed.
(b)Did the First Defendant properly induct the worker for the work and workplace?
32 The assessment of the workplace by the first defendant and the induction of the worker to the workplace overlap in this case.
33 The worker was a participant in an induction program conducted by the occupier of the premises on 15 July 2009. The relevant document is exhibit P3. The worker had no memory of attending that induction session.[23] On the same date, the worker completed a Westmain Safe Work Method Statement dated 15 July 2009.[24] The worker had no memory of this document.[25] The worker did not recall that he and Mr Saul had walked through the area of the conveyors and inspected the site and discussed what they were going to do “here and there”.[26] The worker agreed he did undergo a workplace induction with Mr Saul.[27] The worker also stated that he had discussed the method of accessing the conveyors and agreed it was the best and safest method.[28]
[23]T41
[24]Exhibit P4
[25]T42
[26]T44
[27]T97
[28]T102
34 Mr Saul stated that whilst he and the worker attended the occupier’s induction, they attended the conveyor area and “as we progressed through the belt weighers, we’d discuss each belt weigher and how we’d approach it and then do the work”.[29]
[29]T232
35 Mr Saul said that he and the worker deemed the appropriate way to get to the stringer was to use the horizontal beam and step up onto the stringer without using a ladder.[30] The agreement between the worker and Mr Saul was to climb up on the steel.[31] Mr Saul said he discussed the method of accessing the conveyors to fit the belt weighers with the worker and they believed they could do the job safely with the steelwork that was there at the worksite.[32]
[30]T252
[31]T272
[32]T283
36 I accept that there was a full and inclusive induction process undertaken by Mr Saul, for the first defendant, with the worker prior to any work being commenced on the installation of the belt weighers to the conveyors at the occupier’s premises. All of the evidence from the worker and Mr Saul supports this conclusion.
(c)Did the First Defendant provide a ladder or other appropriate equipment for the access and egress from the work area at the premises?
37 The plaintiff submitted that the first defendant should have supplied a ladder or scaffolding to allow safer access and egress from the work area near the conveyors.
38 The worker stated that a cherry picker would not have been suitable for use in the circumstances of this job.[33] It is clear from the relatively low height of the work area and the confined space of the work area that a cherry picker would be impractical as an assistance to workers on the conveyors.
[33]T96-97
39 The plaintiff relied upon the evidence from the worker to support the proposition that a scaffold ought to have been erected at the worksite. His evidence was:
Q:“But I’m asking you do you agree with the statement, and I appreciate that you've hurt your knee and I don’t dispute that for a moment, but at the time, your belief was that that was the best and safest way of accessing the job?---
A:At that time, yeah, but in hindsight, which we haven’t got, have we, we probably should have built a scaffold around it and made sure it was safe.
Q:If you built a scaffold around it, you’d have to build scaffolds around eight separate sections of rollers, wouldn’t you?---
A:Yeah.
Q:And the scaffold itself would have to somehow be supported on the uneven ground?---
A:That is not a problem with scaffold.
Q:And even then, if you were on scaffold, sooner or later you’d have to climb down off the scaffold?---
A:You’d have a supporting ladder, proper access to get in here.
Q:So what you’re suggesting is that there should be a supporting ladder with scaffold being built and that you climb up the ladder on to the scaffold, is that what you’re suggesting?---
A:If that is what it takes, yeah.
Q:But that is not what you thought at the time?---
A:No.”[34]
[34]T102, L22 – T103, L10
40 Mr Saul dismissed the proposition of using a cherry picker at this part of the worksite where the worker was injured. Mr Saul stated you could not get a cherry picker into that area.[35] He went on to state that the method used by the worker and himself allowed each of them to maintain three-point contact.[36]
[35]T225
[36]T225- 226
41 Mr Saul stated that the occupier’s policy was that workers were not allowed to work from ladders.[37]
[37]T226
42 Mr Saul went on to say that a ladder would not have been suitable for access to the stringer, because it would sink into the ground.[38] Mr Saul also stated the ladder would be an obstacle to climb around in order to get onto the stringer.[39]
[38]T227
[39]T253
43 As to the use of a scaffold at the conveyor worksite, Mr Saul said:
MS MAGEE:
Q:“It is nice that there is such agreement. The worker has given evidence that perhaps a scaffold could have been used - this is at 102 to 103 - to assist in the access to the area where the work was being undertaken. What do you say about that?---
A:In hindsight we could do that, but at the time we discussed what was there and both Mick was comfortable and I was comfortable to use the steelwork that was there to do the job.”[40]
[40]T283, L6-13
44 The concession made by Mr Saul in this regard has two aspects to it. First, he agrees with the worker that with the benefit of hindsight, scaffolding could have been an alternative method to access the conveyors to install the weighers. The second aspect is that the access to and from the scaffold platform would still require the use of a ladder.
45 I accept that the first defendant has done all that was reasonably practical to give its workers, and particularly the worker, a safe system of access to and from the conveyor-belt area.
46 I do not accept that it was necessary or appropriate to use cherry pickers, ladders or scaffolding to access the area.
47 Furthermore, there was no expert evidence called by the plaintiff to establish a more appropriate method of doing the work required by the first defendant from the worker. I accept the first defendant had an appropriate system of work at the premises on the day of injury.
Causation
48 The worker could not explain precisely how he injured his knee when he was stepping down from the steel framework at the conveyor area of the workplace. His evidence was:
Q:“And did something happen to you on 22 July when you were at the premises of Alex Fraser?---
A:Yeah, I hurt me (sic) knee.
Q:We’re talking about your right knee?---
A:Yes.
Q:Could you explain, as best you can to His Honour, what happened?---
A:Well, I just climbed down, like I’d done probably 20 times that morning, felt a jar, twisted it on something - I don’t know - at the time I just shook me leg and thought, ‘Gee, that hurt,’ I didn't think much of it, and then just kept working the rest of the day out and when I got home that night, it swelled up and it was quite painful, so I rang my office to let them know - - -.”[41]
[41]T58, L18-28
49 The worker told his general practitioner, Dr Vaughan, on 27 July 2009, that he was climbing down from the conveyor 22/7 and put his right foot on a rock accidentally and twisted his right knee.[42] The worker confirmed he told his general practitioner that history but he never fell over.[43] He could not remember telling Dr Louise Barberis, an occupational physician sent by WorkCover, that he placed his right foot on the edge of uneven concrete and twisted his right knee in the process.[44] The worker signed a WorkCover form stating that he twisted his right knee when he stepped on “unstable ground”.[45]
[42]Exhibit D5
[43]T105
[44]T106
[45]Joint Court Book page 275
50 The evidence of the worker about how he injured his right knee is best summarised by his evidence:
Q:“But in terms of what actually caused your knee to twist, you don’t actually know that, do you?---
A:No.”[46]
[46]T104, L23-24
51 I accept that the worker was honest in his evidence. He does not know what the cause was for his right knee to twist, resulting in injury.
52 The plaintiff has failed to prove what caused the injury to the worker’s right knee. The plaintiff has failed to establish that negligence on the part of the first defendant was a cause of injury to the worker’s knee.
53 I have taken into consideration the evidence of Mr Brown and Mr Saul on the state of the ground level surface under and near the crossbeam. I conclude that the concrete slab foundations probably had a gravel and dust covering in the area of the crossbeam near conveyor C26 and C27. I am not satisfied that this ground level surface is a cause of the injury to the workers right knee.
Conclusion
54 In conclusion, I am not satisfied that the plaintiff has proved on the balance of probabilities that the first defendant has breached its duty of care to the worker.
55 I also am not satisfied on the balance of probabilities that the first defendant’s system of work has caused, or was a cause of, the injury to the worker’s right knee on 22 July 2009.
56 I dismiss the claim by the plaintiff against the first defendant.
57 I will hear the parties on costs.
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