Victorian WorkCover Authority v Wang
[2015] VCC 1970
•7 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-03034
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| ANGELA WONG LAY YENG | First Defendant |
| and | |
| PETER WANG | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28-30 September 2015 inclusive, 1, 5-6 October 2015 | |
DATE OF JUDGMENT: | 7 October 2015 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Wang & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1970 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Occupiers’ liability
Legislation Cited: Accident Compensation Act 1985, s138; Wrongs Act 1958, s14B
Cases Cited: Kondis v State Transport Authority (1985) 55 ALR 225; Northern Sandblasting Pty Ltd v Harris (1997) 146 ALR 572; Victorian YMCA Community Programming Pty Ltd v Nillumbik Shire Council & Victorian WorkCover Authority [2014] VSCA 197
Judgment: Factor X – 30 per cent.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L Glass | Russell Kennedy |
| For the Defendants | Mr D McWilliams | Moray Agnew |
HIS HONOUR:
1 The single issue for determination is Factor X, or the extent, if any, expressed as a percentage whereby the defendants’ act, default or negligence caused or contributed to the worker’s injury.[1] The proceedings commenced not only against the owners and occupiers of a retail premises at 640 Sydney Road, Brunswick (“the occupiers”), who are the first and second defendants (D1 and D2), but also against a third defendant, Optus Mobile Pty Ltd (“Optus”) (D3).
[1]Accident Compensation Act 1995, s138(3) (“the Act”)
2 The occupiers own and operate a large ground-level retail shop at that address. They are the owners of the whole building. They use the first floor mainly as a large storage area. Optus have a small, locked control room on that first floor as part of its mobile phone transmission operation. That room is called “the hut” by workers. On the next level up, which is in effect the second floor, is a plant room which is also occupied by D1 and D2. Optus has 24-hour access through it to get to the roof of the premises. There is a very small access door referred to as “the hatch” that leads out onto the roof where Optus have three mobile phone poles and some other equipment. This has more or less been the position since 2000 when lease arrangements were made and then renewed in 2005.[2] Optus paid a rent of about $30,000 per annum in 2005 plus GST with a 5 per cent CPI increase each year since for the rented portions and access to the premises including the roof. Optus really only use the plant room and the hatch as a transit route to their poles on the roof.
[2]Exhibit 5
3 On the morning of the first day of this trial a Notice of Discontinuance of the proceeding against Optus, D3, was filed. The proceedings then only required a determination of Factor X in relation to the occupiers.
4 In some ways a s138 determination of the occupiers’ liability in terms of a percentage is unsatisfactory. Other tortfeasors that the parties point the finger at are not represented. The statutory plaintiff is the insurer of the employer, but apart from calling a couple of witnesses, including the worker who was injured (the worker), there is limited evidence from the employer about his role in terms of instructions, training, supervision, risk assessment or inspection of the premises in the way evidence would usually be led at a common law trial on behalf of an employer. Mr Burns, from the employer company, gave evidence but again appeared as a witness rather than a party in his own right. He had never been to the premises before receiving a claim by the worker post accident. The worker and another tradesman at the site, Mr Higuera, gave evidence but nothing like the full picture emerged as to precisely what was taking place on the day of the accident, 25 July 2015.
5 Similarly Optus, who have been let out of the proceedings, are not legally represented and any evidence with respect to their involvement is to some extent a one-way street, as presented by the occupiers. A Mr Reeves from Optus was called as a witness but he holds a management type position with little or no direct knowledge of the premises or the job. In any event, I can only act on the evidence before me in such proceedings but it is stating the obvious to say there is a lot less than what would be found in a common law trial where contribution proceedings are fully litigated. At such a trial there is the more complete evidentiary picture as well as submissions from legally represented parties that assist a court at a common law trial to determine respective percentage liabilities.
6 Even regarding the allegation by the occupiers as to the worker’s contributory negligence, that worker, Mr Allen Groh, is not represented. In the end, he is called only as a witness for the statutory plaintiff, so there is no-one representing his interests as would occur in a trial, making submissions and calling the evidence of his choosing on an issue involving alleged contributory negligence for a mobile phone technician working in these circumstances. Notwithstanding these substantial limitations, a decision has to be made about Factor X, the liability of the occupiers who are also the owners of these premises.
7 Before any evidence was led and at the request of both parties, a view was conducted at the premises on 28 September 2015. It went for close to an hour. The view was of great assistance. It added to the evidence as well as helped an understanding of the evidence. The entrance on the southern side of the ground floor of the large retail premises was accessed from the street and the worker used it on the day in question. It consisted of stairs up to the first floor. The first floor was a large area which was used by the occupiers mainly for storage of goods. There were also several offices on that floor. On that floor is the enclosed locked Optus control room, “the hut”. A narrow stairway then leads up to the plant room. A switch at the foot of that stairway operates a light at the top of the flight of steps.
8 A door then to the right at the top of the stairway led into the plant room. There are fluorescent light bulbs in the roof of the plant room. They are poorly positioned. The light is blocked in areas by large plant and equipment. Areas are in direct light, others are in shaded light and moving through the room even with the lights on is to move through different degrees of illumination. At the view all areas were inspected with lights on and off.
9 It is no exaggeration to say that with the poorly positioned artificial lighting, on or off, it becomes something of an obstacle course to get to the hatch that leads to the roof. Hazards exist on the floor, from wall fixtures as well as overhead for a pedestrian. Two sets of steel steps in shadows have to be negotiated. It is even more of an obstacle course to get under the air conditioning duct which is positioned immediately before one enters through the small, low hatch opening to the roof.[3] The hatch is small and inevitably directs one’s gaze downwards. If you are 180 centimetres or more, the worker’s height, and as solid a build as he is, the plant room is a confined area requiring awkward movements and dexterity to get out onto the roof. I went out through the hatch and inspected the roof area at the view.
[3]Exhibit C
10 There are not only tripping and stumbling hazards to negotiate in the plant room but the steps that have to be climbed have no suitably positioned electric lighting. Screwed to the wall of a large machine is a black wire basket containing a black plastic liquid container of some 4 to 5 litres in size. It is only held by a couple of easily removed screws. It blocks vision, is not easy to see and juts out into the area the worker had to walk through at about shoulder height. Flags or rope have been placed there.[4] To add to the problem, sunlight streaming through the hatch would make the journey out onto the roof even more difficult. For a person exiting the hatch, it was clear from the view that once on the roof there is no immediate or realistic danger from falling objects from men working at or around the three Optus poles. The nearest pole is metres away and a falling object could not in my opinion pose any realistic danger. There was no foreseeable risk in that regard for a person on the roof near the hatch. The hatch the worker had to get through is only 1004 millimeters x 760 millimetres. Counsel for the defendants referred to it as a manhole. There is no artificial lighting positioned above the hatch or on or near the air conditioning duct to make the distances and dimensions clear.
[4]Exhibit 6
11 The various photographs tendered show a number of the features I have described that were obvious at the view.[5] The photographs however do not do justice to the real situation. They do not illustrate for example the problems the poor lighting presents in terms of judging distances, depths and plain visibility. The photographs do not adequately illustrate the distance in metres from the poles in the background to the hatch. The photographs make the poles look much closer than they are.[6] It was clear from the view that on the roof there are a number of pieces of equipment that Optus and its subcontractors have nothing to do with. This equipment is all owned by the occupiers. I do not need evidence that it would need to be attended to from time to time. For example, there are two air conditioning units situated on the roof at the far north-west corner.[7] There is extensive roof plumbing in the nature of box guttering and downpipes as well as guttering around the perimeter of the large roof. [8] There are various outlets for ducts up on the roof.[9] These are entirely the responsibility of the occupier. They can only be accessed via the plant room and hatch.
[5]Exhibit C, D, 1, 3, 4, 6, 7
[6]Exhibit 3A, 3B
[7]Exhibit 3C
[8]Exhibit 3B
[9]Exhibit 3B
12 In the end, the view demonstrated that there are a number of risks and features of the plant room about which quite simple inexpensive steps could be taken to make it reasonably safe. Not least of the problems is that until fully out on the roof, the whole time one is in the plant room there are deceptive shades and strengths of light. It makes safe movement very difficult. Approaching the small hatch visual focus is downwards.
13 The worker gave evidence. He attended at the premises on 25 July 2012 as part of a three-man team to maintain the mobile phone equipment and ensure it was operational. I am satisfied that, while equipment had been installed previously and that involved rigging operations, the worker did not know of and did not anticipate there was any extensive rigging work to be done on that day. The documents show work had been ongoing for several days already in July before the accident. His duties involved working for several hours in the hut on the first floor. He gave evidence that he was then asked to come up on the roof but he could not recall what the reason for that was. He had never been up on that roof before. Two other men were performing some duties up on the roof in relation to the Optus equipment. The worker put his safety harness on with his hardhat clipped to the harness. I accept his evidence that the harness is heavy, awkward and has straps and attachments hanging from it that can snag.[10] He moved to the set of stairs leading up from the hut area to the plant room. The electric light switch at the foot of the stairs did not work. He proceeded up with the light not on.
[10]T58
14 I accept that this narrow, straight stairway is dimly lit, even when the light is operational. With no lights on, it is extremely poorly lit from other reflected artificial light. The worker went through an open door on the right at the top of the stairway. Before that he tried to switch on the lights in the plant room but again the lights did not work. He proceeded through the plant room toward the most distant back corner of the room where light was streaming in through the open hatch. It was a sunny day. It was morning. The hatch faced towards the north and the sun. I accept his evidence that the light coming in was more glary than the light on the day of the view. At the view it was cloudy, whereas on 25 July 2012, it was a bright, sunny day. This meant he could not see objects with as much detail.[11] It meant different silhouettes.[12] At the view it was clear that, even with the electric lights on in the plant room, it is a very poorly lit area with shadows cast by very large equipment such as heating plant, pipes, air conditioning equipment, ducts, a large water tank, PVC plumbing and other fittings. Some limited light also comes into the plant room via some slats on either side of the hatch opening.[13]
[11]T57
[12]T58
[13]Exhibit C and 7
15 I find that having observed the plant room at the view and having got through the small hatch to get out onto the roof and back in again, the light that the worker was using that streamed in through the hatch was both very inadequate and indeed deceptive, given it was a glaring type light. The hatch was measured at barely more than a metre high. For a man of the burly build of this worker who is 180 centimetres or more in height, it is a very small opening to accommodate. It is made even smaller by the fact that he was wearing a heavy, awkward harness with attachments. In my opinion it is an unsafe opening to a roof that the occupier knew was accommodating very regular traffic from workmen at least ten to twenty times per year. It was not an opening for rare or infrequent access, quite the contrary.[14]
[14]T228
16 Something more needs to be said of the plant room with or without lighting. The occupiers gave evidence through Mr Peter Wang, D2, that most, if not all of the large plant equipment in the plant room was non-operational, in other words, not in use since 2000.
17 For the worker to move through that plant room after entering from the unlit stairway, involved him having make a number of turns. Initially he had to go to his right through the door, then to his left to get around very large heating equipment, he then must turn left again, then right again and then finally right again to move towards the open hatch. He had to avoid several dangerous slipping and tripping hazards on the dimly lit floor in the way of PVC plumbing piping, as well as copper pipes and a hole in the floor.[15] He had to get around a black, wire basket with a large black plastic liquid container positioned in a bracket screwed to a piece of plant about level with his right shoulder and face. He had to avoid overheard dangers for a man of his height. As he got closer to the hatch, an air-conditioning duct runs across his path at a height where any person of average height was likely to have difficulty accommodating and getting under. All this had to be negotiated with the heavy harness and its attachments that can snag on objects. He had to accommodate two sets of chequer-plate steps.[16] The first led up to a concrete platform on which a large water tank sat. There would appear to be some metal plates on the floor to his left, adjacent to that tank that may or not may not have been near his left foot. He had to get under the overhead air-conditioning duct that I mentioned and then, get through the small hatch which requires a downwards visual focus. There was also a 25-millimetre metal ledge that he had to step over at the bottom of the hatch in order to get out onto the roof.
[15]Exhibit C
[16]Exhibit C
18 I accept a person of his size had to crouch extremely low or almost get down on his haunches or knees to get through this space, even without wearing the equipment that he had. The hatch then leads out onto a large, flat roof. Optus leased three small areas of that roof for their mobile phone poles.[17]
[17]Exhibit 5, Defendant’s Court Book (“DCB”) 86-87
19 After viewing both the plant room, the stairway of the premises and then getting out onto the roof and viewing it, I accept that the hatch leads on to a part of the roof that is nowhere near the edge. There is no danger of falling from the roof. There are elevated Juralco steel walkways to enable workers to get along the roof to the various phone poles. These poles are not particularly high. None are in the immediate vicinity of where a person exits the hatch onto the floor. The roof is at least the size of a large tennis court.
20 I accept on the probabilities that in the course of negotiating the hatch, the plaintiff has hit his head overhead on the duct. He probably struck his head and lurched or stumbled forward and he fell. He was knocked out. I do not have any medical evidence about his injuries but there is no contest that he suffered concussion. His evidence was he ended on his back out on the walkway adjacent to the hatch having probably staggered or stumbled through semi dazed.
21 Argument was made that the worker should have had his hardhat on because of the nature of the site, a toolbox meeting note and the general risk of being struck on the head from something dropped from overhead.[18] I do not agree. Where the worker was exiting the hatch, he was metres away from the nearest pole. The poles are not particularly high in any event, as the photographs demonstrate.[19] I accept that the worker would have to walk some metres in order to get within range of any possible problem from tools or items dropping from someone working on a pole. In spite of what the paperwork said the worker had to get out on the roof through the small hatch first. A worker is only required to act reasonably in the interests of his safety. There is no reason for him to wear the hardhat as he negotiated through this narrow hatch, in my opinion, taking in all the circumstances of this case and particularly the view.
[18]Exhibit 2, DCB 332
[19]Exhibit 3A, 3C
22 The heavily built worker was trying to negotiate under a low duct and then through a very low and narrow opening. To put a hardhat on would have made the very low space he had to get through even more difficult for a man of his height. The additional height and size of a hardhat perched on his head would have just added to the already very difficult task of getting through the only access open to him from the plant room. In addition, I accept his evidence that wearing a hardhat restricts your vision because of the visor-type aspect at the front of the hat.[20] This man was dealing with very inadequate lighting, something of an obstacle course moving through this plant room and getting through the hatch, as well as looking north into glaring sunlight streaming in. Visual focus was on the hatch ahead.[21] I accept his evidence that the electric light did not come on. Anything that would have restricted or added to the difficulties in terms of vision would have meant it was unwise, in my opinion, to wear the hat. In any event, the duty is only to act with reasonable care and the suggestion that he did not do so in not putting on the hardhat has no substance.
[20]T131
[21]T59
23 The worker had no way of knowing what the other workers were doing, but first he had to really get out on the roof in order to assess that situation and where they were. Heading out on the roof was not an easy task. At the view it is clear that he was in no danger from any falling or ricocheting objects in the area of the immediate exit from the hatch. The plaintiff was on a journey through hazards overhead, underfoot, in unfamiliar territory and wearing awkward, heavy gear in circumstances where the lighting was extremely inadequate as he progressed through the occupier’s plant room.
24 No doubt due to his concussive head injury, the worker had a blank period in his memory between approaching the hatch and then waking up lying on the ground. In spite of that, I found the worker a very reliable witness as to events otherwise than for a short period of understandable amnesia. He was a witness who was prepared to make concessions. I found him straightforward, honest and accurate as to the circumstances leading up to the accident.
25 A fellow workman, Mr H Higuera, was the second witness called. He needed an interpreter, although he exhibited annoyance when I insisted on him using the interpreter as there were some obvious language difficulties.[22] Even allowing for some language difficulties, his evidence was very vague and unsatisfactory. It was not even clear he remembered much about this particular day at all.[23] He had visited the site on about five days in July 2012 and it was not clear if he had an actual recollection of what the particular job was on that day, who was to do what and even who was there. Mr Higuera kept saying, in answer to a question that was specific to the day, that “normally” this would be done or that would occur.[24] It was obvious his recollection of the day in question was very limited. His evidence was not reliable. It was not certain he remembered who was actually on site on the day.[25]
[22]Transcript (“T”) 172, 180-181
[23]T137-139, 143, 150
[24]T135, 137, 139, 141, 143, 148-149
[25]T139, 153
26 On the first day of his evidence, he described where another or third workman on the roof was in relation to a pole when the worker (Mr Groh) appeared on the roof. Then on the second day, he had that other workman at another, entirely different pole. He said he could not remember if there was another workman up on the roof at all when I questioned him to clarify this issue.[26]
[26]T153
27 Mr Higuera gave a totally different account to Mr Groh of what occurred in the accident. He said Mr Groh was re-entering through the hatch when he struck his head on the overhead air-conditioning duct, where the tape is showing.[27] He said Mr Groh then ended up sitting on the floor inside the plant room. This account is totally at odds with Mr Groh’s account of how the accident occurred as he said it was while attempting to exit the plant room, not enter it. Mr Higuera did agree that negotiating the hatch, which he said “was a really small hole” required visual focus on it.[28] From the view it is clear that focus would be downwards and not on overhead structures
[27]Exhibit C – 207B
[28]T148
28 There were many inconsistencies in Mr Higuera’s evidence. His evidence also contained some remarkable gaps. He said nothing about what he or the worker did between that worker getting onto the roof and when the accident occurred. Mr Higuera did not describe how long the worker was up on the roof, he did not say why the worker came up there and he did not say what gear the worker was wearing or not wearing. He did not say how or why it was he came to be following the worker as he went to re-enter the plant room. Had they both knocked off work? Was it the end of the day? Why did he and the worker need to return to the plant room or exit the roof? On any view of the evidence, the hut on the first floor was where the worker’s duties were principally required and Mr Higuera really said nothing about why the worker was coming onto or had come to the roof.
29 Mr Higuera’s version was that the worker ended up in a sitting position on the small concrete platform inside the plant room after hitting his head and being concussed. That is hard to follow. The view indicated the small space under the duct and the edge of a concrete platform would make it much more probable that a man who was knocked out from that beam re-entering the plant room would not have ended up in a sitting position on the concrete platform.
30 Mr Higuera was a very compliant witness when it came to him being asked whether he followed toolbox instructions.[29] It was clear to me he never even really remembered the toolbox that took place on that day at all, or what anyone had said and what really had occurred in that regard. He too readily agreed to his adherence with the written toolbox notes and that readiness was not matched by reliability or any real attempt on his part to remember.
[29]Exhibit 2, page 232
31 A Mr Jackson from Huawei, was suggested to him as being at a toolbox meeting on another day at the premises.[30] Mr Higuera agreed with that. It was soon quite obvious, that he had really no idea who Mr Jackson was, let alone what company he represented.[31] At times Mr Higuera answered questions without seemingly to understand the question. He would say something like “if the question is” and then provide an answer.
[30]Exhibit 2, page 315
[31]T187
32 In the end I found Mr Higuera a very unreliable witness. I do not accept his evidence about the events or circumstances on that day. I accept he was probably there as part of a team that worked on tasks over four or five days around July 2012, but other than that his recollection of that day cannot be relied on. In contrast, the worker’s evidence I found was clear and reliable. I accept Mr Groh’s account of 25 July 2012. I reject Mr Higuera’s account.
33 Doing the best I can on the probabilities the worker hit his head on the duct overhead close to the hatch.[32] After getting up the first set of metal steps with understandable concentration on those poorly lit steps, the overhead duct is a hazard that is really something of a hidden trap. All visual focus is on the steps and then on the small hatch in front of him.[33] Sunlight is glaring into his face through the hatch and that added significantly to the difficulty of seeing where he was going and how to proceed safely. Mr Higuera had also hit his head on the duct a couple of times and he had worked up on the roof over a number of days.[34] The worker’s accident occurred on his first trip to the roof. In my opinion, exercising reasonable care in the circumstances should have included the inexpensive step of cutting and removing a metre or so length of that disused duct that comprises structure in the occupiers’ plant room. Alternatively, heavy padding of some type could have been added and the risk of injury diminished. Lighting should have been improved.
[32]T62-63, 133
[33]T133
[34]T143-144
34 The first witness called by the occupiers was Mr Peter Wang (“D2”). It was clear from his evidence that the plant room that he occupied had attracted very scant, if any attention from him over the twelve years since 2000. He had a commercial arrangement whereby Optus leased the hut and the three rooftop pole areas. Mr Wang indicated that virtually all the equipment in the plant room he and his wife occupied was not functioning. It was also clear from his evidence that the occupiers had done nothing in terms of making the place safer in terms of the journey that he knew workmen had to make regularly carrying tools and equipment and wearing harnesses.
35 He really just sought to fully delegate his duty to Optus and others, in terms of the state of the plant room and the hatch exit and it could be said he really did no more than “sit on his hands”.[35] In my opinion, the statutory duty expressed in s14B of the Wrongs Act 1958 (“Wrongs Act”) requires more than that of an occupier in the circumstances here. This is even more so in this case of an owner-occupier receiving not inconsiderable regular rent for allowing these tradesmen through the owners’ plant room when improvements would be relatively inexpensive. In effect, the occupiers have adopted a position that just relied on others, Optus and its trade subcontractors, to report or complain about hazards was reasonable. Further, in the absence of any such reports or complaints the occupiers really felt it was reasonable to simply do nothing. I do not agree.
[35]T200, 246, 256, 265
36 Yet Mr Wang well knew the low position of the overhead duct and the problems in getting past it:
“…you’ve got to duck under it or crouch under it or crawl under it or whatever to lower your height to get under it.”[36]
[36]T256
37 In spite of that he seemed to think everyone was 100 per cent comfortable with the situation.[37] I have only heard from two tradesmen, Mr Groh and Mr Higuera. They both hit their heads on it. The discharge of the duty to take reasonable care required some positive action by the occupiers in the circumstances of this plant room. Reasonableness required some proper inspection, some proper assessment of the room and its set up against the background knowledge there will be men moving in and out of it with equipment, tools, harnesses and what Mr Wang said were heavy bags.
[37]T272
38 I do not accept the suggestion that any OH&S or trade qualifications are required to appreciate the danger and risks for people in the plant room. The hazards are obvious to any lay person. Some steps could have been taken to improve the plant room with minimal expense. The view made it clear that even the hatch could be easily enlarged without alteration of weight bearing structures. The many hazards included pipes across one’s path, a hole in the floor, a black coloured basket fixed at shoulder level, steps to be negotiated in poor lighting circumstances, a duct to get under and a metal piece of some 25mm that could have been cut from the bottom of the hatch.[38] A reasonable occupier would have made a proper assessment of the path through the plant room to the hatch.
[38]Exhibit C, D, 6
39 The major use of the hatch was really for the transit of tradesmen. The plant room is not operating as a functioning plant room. It was thus not being used as a plant room. Its main use was as a passage to the roof for tradesmen with tools, equipment and wearing awkward heavy harnesses. This created a greater risk and in my opinion special care should have been taken in terms of the use the occupiers gave to Optus in return for payment of rent. This is also relevant to it being a non delegable duty in all the circumstances. From the outset the occupier at all times really thought the premises were safe.[39] I find they were not.
[39]T265
40 Mr Reeves from Optus was called. He gave little evidence that was really relevant to the occupiers’ duty to act reasonably. He spoke about the Optus procedures and paperwork practices. He had no personal knowledge of the site. He had never viewed it. I have already said I reject the occupiers’ defence that they complied with their responsibilities pursuant to s14B of the Wrongs Act by relying on Optus and other companies and seeking to totally delegate the duty to them.
41 Mr Brett Burns, the managing director of BASE, the worker’s employer, gave evidence that a hardhat should be worn even in the plant room. Even walking in the front door a hardhat should be worn according to his evidence. Reasonableness is the test of the duty to take care. Mr Burns did not visit the site before the accident
42 In my view he was a motivated witness. He gave evidence with the benefit of the hindsight of receiving the claim against his company as employer. He did say there were hazards in the plant room but he did not consider they were hazards sufficient to report to other companies involved in the work. He agreed there were trip hazards from open vent shafts and duct work.
43 In my view his evidence was defensive of his position as an employer and was not objective. For example he suggested the worker should have been wearing a hardhat inside the plant room because something could fall on the roof and injure him while inside. Having seen the heavy ridged steel roof and the frame supporting it in the plant room at the view, this suggestion is little more than fanciful. On any view this was never a heavy construction site where overhead cranes, girders, large equipment were being swung and by 25 July 2012 the work was nearing completion on the evidence. The poles were already up and an unattached tool or a roll of copper wire were suggested as possible free falling objects. I am satisfied there was no danger within the plant room under the steel roof from any such objects so piercing the roof as to injure someone in there.
44 In any event, his opinion about what he was required to do or not do as an employer is different to the issue for determination in this case. It is the s14B Wrongs Act occupiers’ duty I must consider. This case concerns not only the occupiers of the premises including the plant room, but the actual owners of the plant room. They own the pipes, the overhead ducts, the electric lights and the hatch for example and that can bear on matters pursuant to s14B(4)(b), (c) and (g) of the Wrongs Act.
45 Not surprisingly, Mr Burns said he cannot make alterations to the site when you are there to perform work. As an employer he said you could “down tools” but could not change structures. That is obvious. It is within the province of the owner who is also occupier who can do that.[40] The owners- occupiers can remove obstacles, install lights, remove ducts not in use for twelve years, repair holes in the floor, enlarge the hatch or do anything else that involves the structures of the plant room. In this case, the occupiers chose to do nothing of that sort.
[40]T335
46 The contractual documents as between the occupiers and Optus confer a lease of the hut and the poles on the roof as well as a right to use, really meaning access, referred to as a licence by counsel in regards to the plant room and the hatch.[41]
[41]Exhibit 5
47 I do not on all the evidence find the occupiers’ duty is delegable in spite of the contractual arrangements between the parties. The evidence indicates a dual occupancy situation with respect to the plant room and access but the occupancy by Optus and its contractors is really in the nature of an access right. Optus added some tape as changes it made but it removed none of the structures plant or equipment. All those objects belonged to the occupier. They have the effective occupancy of those structural items.
48 I have been referred to a number of authorities on occupiers’ duty of care and the question of whether it is delegable. The High Court cases indicate it is not necessarily a non delegable duty but depending on the circumstances it may be.[42] The central feature seems to me to be control. The hazards here are structural in nature. Also defects that were present when the occupiers first leased the premises is relevant. All the hazards were there from the start.[43] They were untouched in so far as action by the occupiers in the twelve years Optus was accessing the plant room up until 25 July 2012. In effect, from the outset the occupiers simply thought it was reasonable enough not to act.[44]
[42]Kondis v State Transport Authority (1985) 55 ALR 225, Northern Sandblasting Pty Ltd v Harris (1997) 146 ALR 572
[43]T239
[44]T246
49 In the circumstances of this case the common law occupiers’ duty was not delegable. It is a duty enshrined in statute but that does not decide its delegability. The Wrongs Act does not establish a new regime and it seems the common law approach still applies.[45] I do not have to determine the question of what if any difference it makes being enshrined in statute, as in all the circumstances, as a fact I find it was non-delegable in this case. I do not agree with the defendants’ submission that the contractual arrangements mean the duty had been delegated to Optus and associated companies.
[45]Victorian YMCA Community Programming Pty Ltd v Nillumbik Shire Council and Victorian WorkCover Authority [2014] VSCA 197
50 Given my finding that the duty remained with the occupiers, there were a number of inexpensive structural changes some of which have been mentioned, that would have avoided or reduced the risk of injury to the worker. The removal of a metre or so of the old “broken”, “not working” disused duct would have been what a reasonable occupier could have easily removed.[46] It did not involve anything like moving all the equipment and the $100,000 price tag Mr Wang mentioned that might be involved. I find the occupiers had never really thought of attending to the specific hazards at all and certainly not to just cutting out a piece of the duct. Mr Wang agreed the duct was useless. To install an overhead light at the duct and the hatch would be a minor cost when, even back in 2005, he was receiving $30,000 per annum plus GST for Optus accessing the premises. The rent increased by 5 per cent over seven years to 2012. To put heavy foam or rubber padding and tape it to the duct would have cost next to nothing. In my view the occupier breached the duty of care they owed.
[46]T233
51 If I am mistaken and the duty was delegated, there was still an onus in all the circumstances on these owners and occupiers of the plant room and its structures. They did not properly check or assess whether what Optus or other companies did in the plant room was appropriate for the use given to the tenant. No real enquiry was made. This contrasts with Optus which looked over the shoulder of Huawei, another company, to ensure occupational and safety issues were properly addressed in the context of contractual obligations.[47]
[47]Exhibit 8, T280
52 I am satisfied the occupiers breached their duty. I am not satisfied any contributory negligence by the worker has been proved. I accept it was “a judgment call” he had to make about a hardhat.[48] In the circumstances he made the right call. He only had to act reasonably. Also, no medical witness has been called and no medical reports have been tendered. What the exact nature of the head injury was I have no real idea. I have no evidence that the wearing of a hardhat would have reduced the head injuries that were suffered. Concussion injury can be from a closed head injury or trauma of other types. Whether wearing a hardhat would have prevented or lessened the injury is just not the subject of evidence. I cannot speculate.
[48]T131
53 For the reasons given I find Factor X is 30 per cent.
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