Victorian WorkCover Authority v Yarra City Council
[2014] VCC 1841
•14 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-04038
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| YARRA CITY COUNCIL | First Defendant |
| and | |
| CITY OF MELBOURNE | Second Defendant |
| and | |
| CAPITAL TRANSPORT ASSET MANAGEMENT PTY LTD | Third Party |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28, 29 and 30 October, 6 and 7 November 2014 | |
DATE OF JUDGMENT: | 14 November 2014 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Yarra City Council & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1841 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Section 138 Accident Compensation Act – Recovery action – injury suffered to worker’s lower spine in course of employment/contractual duties with employer/principal – worker a courier transporting library books to library premises operated by first and second defendants – payment by the Victorian WorkCover Authority of weekly compensation and medical and like expenses to the worker pursuant to the Accident Compensation Act 1985 – proceeding seeking indemnity pursuant to s138 of the Act – whether defendants owed a duty of care – whether defendants in ‘control’ of the system of work – whether a breach of the Occupational Health and Safety Act 2004 or the Regulations made thereunder.
Legislation Cited: Accident Compensation Act 1985; Occupational Health and Safety Act 2004; Occupational Health and Safety Regulations 2007; Code of Practice for Manual Handling 2000; Occupational Health and Safety (Manual Handling) Regulations 1999; Wrongs Act 1958 (Vic).
Cases Cited:Surf Coast Shire Council v Webb & Anor [2003] VSCA 162; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; McArdle v Andmac Roofing Co [1967] 1 All ER 583; Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd [2002] TASSC 115; Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132; Victorian WorkCover Authority v Moorabool Shire Council & Anor [2011] VCC 133; Hetherington v Mirvac Pty Ltd [1999] NSWSC 443; Victorian WorkCover Authority v Victorian Institute of Forensic Mental Health [2009] VCC 827; R v ACR Roofing Pty Ltd (2004) 11 VR 187; R v Associated Octel Co Ltd [1994] 4 All ER 1051; Stratton v Van Driel Ltd [1998] VSC 75; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199; Reilly v Devcon Australia Pty Ltd [2008] WASCA 84.
Judgment: No duty of care owed by the defendants – Plaintiff’s claim fails.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Simpson | Russell Kennedy |
| For the First Defendant | Mr P Riordan QC with Mr M K Clarke | DLA Piper |
| For the Second Defendant | Ms S Manova | Ligeti Partners |
| For the Third Party | Mr C Hanson | HWL Ebsworth Lawyers |
HIS HONOUR:
Preliminary
1 Mr Hancer Yelken (“Mr Yelken” or “the worker”) suffered injury to his lower spine while undertaking work duties at the behest of his employer or principal, Group Messengers Pty Ltd (“Group Messengers”), on 3 December 2007. His work involved collecting and returning crates of library books and related material to a number of libraries in and around Melbourne, owned and operated by the first and second defendants (respectively “Yarra City” and “Melbourne City”). He alleges many of the crates containing the books were overfilled and difficult to grasp as a result. Further, many of the crates weighed in the region of 20 to 30 kilograms and required considerable strain and exertion to lift onto a trolley.
2 In June 2007, Yarra City entered an agreement with the third party, Capital Transport Asset Management Pty Ltd (“Capital Transport”), for the provision of courier services for the pickup and delivery of the crates between the various libraries. Group Messengers was within the Capital Transport group of companies.
3 The worker suffered pain while unloading a crate of books from a trolley at the Melbourne City Library on 3 December 2007. He suffered an injury at the L4-5 and/or L5-S1 levels of his lower spine which resulted in surgery undertaken by an orthopaedic surgeon, Mr Xenos. He further alleges he has suffered injury to his left and right shoulders and a reactive depression.
4 The worker brought a proceeding (“the principal proceeding”) against:
· Group Messengers – alleging it was his employer;
· Yarra City;
· Capital Transport;
· Melbourne City
alleging breach of the common law duty of care, and breach of the provisions of the Occupational Health & Safety Act (“the OHS Act”) and the Occupational Health & Safety Manual Handling Regulations 2007 (“the Regulations”), seeking pain and suffering and economic loss damages. After several days’ hearing, the proceeding resolved following mediation on 27 October 2014.
5 I granted leave for the evidence in the principal proceeding to be used in this proceeding (“the recovery proceeding”).
6 The Victorian WorkCover Authority (“VWA”) has made payments of compensation to the worker pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”). It alleges Yarra City and Melbourne City, by their “act, default or negligence caused or contributed to”[1] the worker’s injury. It seeks an indemnity against Yarra City and Melbourne City in accordance with s138(3) of the Act. Yarra City has joined Capital Transport as a third party.
[1]Section 138(3)(b) of the Act
The pleadings
7 By its Second Further Amended Statement of Claim dated 7 November 2014,[2] the VWA alleges:
[2]Leave was granted on the 7 November 2014 for the VWA to file a Second Further Amended Statement of Claim
(a) The worker was employed by Group Messengers as a courier driver.
(b) Melbourne City and Yarra City engaged Group Messengers to provide courier services in relation to library materials.
(c) Melbourne City and Yarra City were the owners/occupiers and responsible for the conduct of various libraries around Melbourne.
(d) At all relevant times during the course of the courier duties from June 2007 to and including 3 December 2007, the worker was required to deliver crates filled with library materials to the defendants’ libraries.
(e) On 3 December 2007, the worker suffered injury in transporting 20 crates between libraries and while unloading those crates.
(f) While working at the libraries, the worker was the subject of the direction, control and supervision of Melbourne City, Yarra City and their servants or agents.
(g) Melbourne City and Yarra City owed the worker a duty to take reasonable care to avoid exposing him to an unreasonable[3] risk of injury.
[3]This should be ‘foreseeable’ risk of injury
(h) Melbourne City and Yarra City owed a duty to take such care as in all the circumstances was reasonable to see that the worker, whilst working at the libraries, did not suffer injury by reason of the state of the libraries.
(i) The worker’s injury was caused by the negligence of Melbourne City and Yarra City in, relevantly:
(i) failing to provide a safe place and system of work;
(ii) failing to have an adequate warning system in place to warn the worker that the crates could be overloaded;
(iii) failing to provide the worker with adequate assistance, mechanical or otherwise;
(iv) failing to provide the worker with appropriate training and hazard identification;
(v) failing to supervise the worker;
(vi) failing to ensure the weight of the crates was appropriate;
(vii) failing to have and implement a system to ensure the crates were not overfilled, in particular those crates required to be picked up from shelves under and around the libraries’ circulation desks;
(viii) failing to instruct the staff of the libraries not to overfill the crates, in particular those crates under the circulation desks;
(ix) failing to undertake a risk assessment of the tasks undertaken by the worker;
(x) failing to comply with the provisions of the OHS Act and the Regulations.
(j) Further, the defendants were occupiers of the libraries at all relevant times and failed to discharge the duty of care owed pursuant to s14B of Part IIA of the Wrongs Act 1958 (Vic).[4]
[4]In submissions, Mr Simpson, for the VWA, did not pursue this part of the claim
(k) As a result of the incident, the worker suffered injury, including an injury to his lower spine, left shoulder and psychological injury.
(l) As a result, the VWA made payments of compensation to the worker pursuant to the Act.
8 By its Defence, Yarra City relevantly said:
(a) It denied it entered any agreement with Group Messengers in relation to courier services. At all relevant times, it engaged Capital Transport to provide courier services.
(b) It did not admit it was the owner, occupier, nor was responsible for the conduct of the libraries.
(c) It denied it owed any common law or statutory duty, and, if it did, denied any breach thereof.
(d) It denied it owed any duty prescribed by s14B of Part IIA of the Wrongs Act 1958 to the worker and, if it did, denied any breach of that duty.
(d) It alleged that if the worker suffered injury, that injury was caused by the worker’s own negligence in:
(i) failing to seek assistance if assistance was required;
(ii) failing to inform the libraries if the task was too heavy or difficult;
(iii) failing to assess the weight of the crates;
(iv) failing to remove any excess books;
(v) failing to report that the crates were over-filled;
(vi) failing to report the matter to the libraries.
9 By its Defence, Melbourne City relevantly:
(a) Denied it engaged Group Messengers to provide courier services to its libraries.
(b) Admitted it was the operator of the City Library, East Melbourne Library and North Melbourne Library.
(c) Did not admit it owed the worker a duty of care.
(d) Denied the worker’s injury arose as a result of its breach of the common law duty of care, or breach of the OHS Act or the Regulations.
(e) Denied any breach of the duty imposed pursuant to Part IIA of the Wrongs Act 1958.
(f) Further, and alternatively, if Melbourne City was liable as alleged, then the worker’s injuries were caused or contributed to by the negligence of Group Messengers, Capital Transport, Yarra City and the worker.
10 By a Third Party Notice dated 26 September 2012, Yarra City alleged, as against Capital Transport, a breach of the terms of an agreement between it and Capital Transport dated 18 June 2007 and further, that it was a term of the agreement Capital Transport would indemnify it against all actions, claims and losses consequent upon or occasioned by the performance of its obligations under the agreement.
Evidence as to liability
11 Mr Yelken gave evidence. He came to Australia from Cyprus in 1983. He worked in various areas of employment and in 1994, commenced a business manufacturing clothing. This closed down in 2001 after a fire.
12 In 2001, utilising a van he had used in the clothing manufacturing business, he commenced work as a courier with a company “Advanced Transport Services” (“Advanced”) whose head office was located at 75–85 Nantilla Drive, Clayton. Another company in the group was Group Messengers. He commenced working full time for Advanced and was provided with a red polo shirt with the insignia “Advanced Transport Services”. The run manager was Callum Smith. He was required to sign some papers. He continued in that employment until 2004. He did various courier “runs”, between fifteen and eighteen jobs per day, depending upon the distance to be travelled.
13 In 2004, he purchased a pizza franchise, “Pizza Haven”, in Frankston. It was not profitable and required both he and his wife to work, in particular, at night. While working in the pizza business in July 2005, he was contacted by a representative of a company, Gazal, who offered him work, again as a courier, transporting hospital uniforms. He did this work on weekdays between about 10.00am and 2.00pm. He left the Pizza Haven business in 2005.
14 In 2006, he spoke to Mr Callum Smith again and asked if there were any jobs available. Mr Smith told him that there was a permanent job and that he would need a one-tonne van. He leased a Toyota van and commenced work. He signed an agreement[5] which was prepared by another person in the company, George Dimopoulos, who worked with Mr Smith at the same premises at Nantilla Drive, Clayton. The company was Group Messengers, which he thought was the same company as Advanced. The only uniform he was given was a green fluoro vest.
[5]Exhibit 1
15 After he signed the documents, he started work straight away. He was advised that the work was a library run, collecting and delivering library books, and that the last person who operated the round would train him over a period of a week. He went out with that person for one run only but was then handed the keys and told that the run was “all yours”. The person who handed him the run said that some of the crates were full and it was difficult to reach the handles. The run involved picking up and delivering library books and associated materials to a number of libraries.
16 His first stop at around 3.00am was Richmond Library. Then followed East Melbourne, Collingwood, Collingwood Town Hall, North Fitzroy, Fitzroy, Carlton, North Melbourne and then Melbourne City. The books were placed in plastic milk crates with handles on each side. Sometimes the crates were overfilled and it was difficult to use the handles. In those circumstances, he had to grab the crates from the bottom.
17 Because he was not certain of the duties, he spoke to the permanent run manager, “Pat”, or “Patrick”, who said he would come with him on the second run. The next morning, the two went and completed the run. Pat showed Mr Yelken what to do and showed him what keys opened the various library doors. He then continued the run on the third day by himself. At first, the run took him six hours, but with practice, he was able to complete it in four-and-a-half hours. He was only paid for three hours. He started at 3.00am or 3.30am and was done by about 8.00am. There were nine libraries and the run involved going to each library twice, one to collect, then one to return, except for the City Library. He would start at the Richmond Library and pick up crates which were labelled with the names of other libraries to which the books were to be returned. He would then put all those crates in his van and go to the next library and so on after that. Different libraries had different numbers of crates. In the City Library, there were about sixteen to twenty crates; at Richmond, fourteen to sixteen, and at North Melbourne, ten to twelve. Some were lighter, including East Melbourne and Collingwood Town Hall, with six to eight.
18 The worker purchased a large trolley[6] upon which he could fit fifteen crates, three wide and five high. He received no induction as to how to lift the crates, nor any occupational or health and safety measures. There was no one to assist him. When the crates were full above the handles, he estimated their weight to be 20 to 30 kilograms and they were hard to lift and had to be grabbed from the bottom. Over the period he worked from mid-2006 to the end of 2007, on average about six out of every twenty crates was loaded over the handles, although it varied. When he was collecting books, some were in crates stacked against the wall, and some placed under a counter. If they were overfilled and under a counter, they were difficult to remove. Some libraries were worse than others with overfilling, in particular the City, North Melbourne, Richmond and sometimes Carlton. He made some adjustments to the books in the crates himself by moving those which were overfilled into others which were less filled. He had to work fast, which is why he used a large trolley.
[6]As depicted in Photographs – Exhibit 2
19 At one point, he had a discussion with Patrick Mochon[7] and told him there were too many crates, and the run was taking too long. He also mentioned that the crates were heavy and he could not get his hands into the handles if they were filled. Patrick said he would get back to him but did not. He telephoned again. Patrick said there was nothing he could do but a new contract was going to be entered.
[7]An employee of Capital Transport
20 Mr Yelken was paid by Group Messengers, which put the money into his account each fortnight. The account was in the name of a company he had previously registered, Yelken Pty Ltd. It was the only bank account he had. Invoices were prepared by Group Messengers and placed in his pigeonhole.[8]
[8]See exhibit 4, invoice for the period 1, 3 and 4 December 2007
21 He did the work from Monday to Saturday, and always had to complete his duties by going to all the libraries on each day.
22 Over this period, he was also doing the Gazal courier work, although this stopped two or three months before December 2007. He did this over his lunchbreaks.
23 About six to eight months after he commenced the library work, Group Messengers also offered him work as a courier delivering for a company, Vantex. That was the delivery of cash registers and paper rolls. This work was from 8.00am to 5.00pm, Monday to Friday. He would finish the library run at about 8.00am at the North Melbourne Library, which was closest to the Vantex premises. The Vantex articles were lighter, about 8 to 10 kilograms.
24 Each week he earned $1,500 to $1,600.
25 On 3 December 2007, he commenced work as usual at about 3.00am and went first to the Richmond Library, collected crates, and then went to the other libraries until he got to the City. At the City library, he was halfway through his round. There were about twenty crates to be unstacked from his van and taken into the City Library. He stacked fifteen on his trolley and went into the Library through the front glass doors.[9] The heavier crates which were filled at or to the top were on the bottom. He thought there were about six, and these filled the bottom two layers. He entered the library and took his trolley to the main counter. It was a straight counter.[10] Some of the crates had to be placed behind the counter under the shelving.
[9]As depicted on exhibit 5
[10]The counter was different from that depicted in the photograph at Worker’s Court Book (“WCB”) 567
26 He bent down to lift and carry a heavy crate and felt a pinch in his lower back. It was a sharp pain he had never felt before. The crate he was unloading was 20 to 30 kilograms and he could not use the handles, as it was overfilled. The pain remained but he completed the unloading of the crates. He then loaded the crates which had to be taken from the City Library to other libraries, and placed them on his trolley. There were about eighteen, and at least four to six were overloaded and he had to grab them under the bottom. He was not permitted to leave any behind. He finished the job and did all the other libraries. He did not do the Vantex run that day as he went to his son’s school Christmas party.
27 The pain in his lower back remained, although he thought it would pass. The next day, he did both the Library run and the Vantex run, and his pain increased. That day, he saw a local chiropractor. On 5 December 2007, his wife came to assist him as the pain had become worse. He was dragging his left leg. He wrote a note on a box of encyclopaedias at one of the libraries, saying they were too heavy to lift. Once every three months or so, he had lifted cardboard boxes containing books.
28 The worker was provided with an emergency telephone number by Group Messengers. He rang this number on two earlier occasions but on neither occasion was it answered.
29 The worker was cross-examined. He regarded himself as an employee of Group Messengers. He signed various documents headed “Sub-contractor” because he wanted to get the job. He said he was told to sign the documents by the representative of Group Messengers. He was questioned about the reference in various documents[11] that Goods and Services Tax (GST) was to be paid in addition to the amount he received. He said he did not understand GST. He was taken to an Activity Statement[12] of the company, Yelken Pty Ltd, for the period 1 July 2007 to 30 September 2007. The Activity Statement referred to GST.
[11]Exhibit 4
[12]Exhibit 14
30 He was taken to an agreement between Yelken Pty Ltd and Gazal Apparel.[13] In relation to his arrangement with Gazal, the worker said he regarded himself as a sub-contractor, because his company was involved.
[13]Exhibit 15
31 He did the work for Gazal after hours and when he had free time. He was taken to various invoices between Yelken Pty Ltd and Gazal[14] which showed that on various days in April 2007, he worked between two and eighteen hours on some days. He said he did that work with his wife and they worked together for Gazal. His wife did the courier work using her car.
[14]Exhibit 17
32 Mr Yelken confirmed:
· He used his own vehicle in undertaking the library courier work.
· He paid all his own expenses.
· He was given a jacket to wear which had no logo, but did not wear it because it was uncomfortable.
· He purchased and used his own trolley.
· Aside from the work having to be completed within certain hours, it was up to him when he was to start and conclude the work.
· He could take any route he wished in the journey between the libraries.
· He was not supervised by anyone from Group Messengers.
· There were no set instructions as to the way the work was to be done. He just had to do the job.
· For the Vantex work, he had to complete a “run sheet” which set out where he went and the goods he was taking.
33 It was suggested to him that the person who took over his run used a smaller hand trolley which could carry only five crates, and with that, was able to complete the work in around two-and-a-half hours. The worker said that he was unable to carry out the work within that time, in particular given the distances that had to be travelled between libraries.
34 He described how he would remove the crates from the shelves under the circulations desks, by sliding the crate forward to the edge of the shelf and putting his hands underneath. In relation to the crates stacked on the floor, he would tip them over so as to place both hands under the crate before lifting it. He disagreed that the crates weighed between 8 to 16 kilograms, with an average weight of 10 kilograms. He said, for him they were heavy.
35 Surveillance video film of the worker taken on a number of occasions from 2010 to 2014 was shown.[15] I shall not detail all of the observations of the worker over the various films. The films regularly showed him walking with a limp, sometimes a very pronounced limp. On one or two occasions, the worker appeared to move freely without any particular limp. He explained that some days were better than others, and on some occasions he kept Panadeine Forte in the car and took it, which, although not relieving the pain completely, helped.
[15]Exhibit 20
36 He said that he, his wife and his solicitor had obtained a library crate, with four handles, and placed books in it almost to the top.[16] It weighed 25 kilograms. He said that sometimes the crates he moved between the libraries were of a similar size, and filled in a similar way. He said the ones that were filled that high were hard to grip. He said six to eight out of twenty were filled in this manner.
[16]Exhibit 18
37 The worker was cross-examined as to the manner in which the crates were packed. He was unaware that the librarians placed books in the crates, and moved them around the libraries. It was put to him that the ones under the circulation desks were not the ones that were filled to the top. He said this was not so. Some were filled and some were not. There were books, DVDs and magazines placed in the crates. He accepted the purpose for the sample crate being filled and brought to Court was to show how heavy it was, and the manner in which the handles were obstructed. He said it was not difficult to pull the crates out from under the desk, but lifting them from that position was difficult when he had to grasp them from underneath. He accepted that the number of crates where the books were at such a level that all four handles were blocked from use, were only three or four per day out of all the libraries.
38 It was suggested to him that he ought to have sorted books from the crates which were heavily filled, into other crates. He said he did not have the time as his job was rushed and further, that he was scared to shift the books because he was uncertain as to the purpose for which they were placed in a particular crate. He was able to place the trolley conveniently alongside where the crates were stored.
39 In relation to the video surveillance of October 2014, the worker accepted that he, as shown in the video of that day, drove consistently over a period of about an hour-and-a-half.
40 He was questioned about the courier work he did for Gazal. Various of the invoices were put to him, including over a number of dates in December 2006, and January, April and July 2007.[17] On those dates, the invoices indicated that the courier work involved between five and up to eighteen hours per day. The worker admitted that his wife helped him, although he predominantly did the work. She was involved in collecting the uniforms for the hospitals, taking them home and sorting them, and then the worker was more usually involved in their delivery. He was paid about $50 an hour, which included collecting, sorting and delivering.
[17]Exhibit 17
41 In relation to the crate packed by the worker’s wife and his solicitor,[18] it was suggested it could be lifted by any two of the four handles. On about three occasions each day, there were crates where the worker could not get access to any two handles.
[18]Exhibit 18
42 He confirmed he had never received any documents from Melbourne City as to how to perform the courier work. He had no contact with the library staff of Melbourne City at its various libraries. The trolley he used was his own trolley and he decided what type of trolley to use. Mr Yelken, himself, decided how the crates were to be lifted onto his trolley and then into the van, where to park his van, where to place his trolley and how to load and unload the trolley. He denied that at the City Library the crates were all stacked up against a wall. He said that was not true, some were under the desk. He thought there were probably empty crates available near where the full crates were stacked. Some of the books had covers, some were small, some large and of different shapes. He was shown four photographs taken of a crate said to be stacked by a librarian from Melbourne City and to represent, typically, how full the crates were stacked.[19] Some crates had books placed vertically in the crates, thus effectively increasing the height to which the books could be loaded. Some crates were stacked four or five high against the wall and those with crates on top could not be overfilled. Mr Yelken had, when he ran a milk bar, lifted crates containing nine 2-litre containers of milk which weighed in total 18 kilograms. He knew from that experience what 18 or 20 kilograms was like to lift. However, he never weighed the crates he lifted at the libraries. Generally, he placed the heavier crates on the bottom of his trolley and the lighter ones on top. This provided stability when manoeuvring the trolley. On occasions, he took empty crates back to other libraries.
[19]Exhibit D2A
43 On about three occasions out of one hundred, the crates were filled to the point where only one handle was exposed. In those circumstances, he had to lift the crates from the bottom. In lifting the heavier crates, he used a lot of effort and felt a strain to his back and arms.
44 Mr Yelken said he did not control the loading, nor the weight of the crates, nor how high they were packed with books and other materials. He did not control where the crates were placed in order to be taken away, nor how many crates were required to be moved on any one occasion. All those matters were controlled by the libraries.
45 Evidence was given by Mr Ronald Cordingley, a certified ergonomist, with qualifications in occupational hazard management. His report, of 15 September 2014 was tendered.[20] He received various documents from the solicitors for the VWA. He did not interview the worker, nor attend any of the libraries to observe the work procedure. He received a description of the tasks undertaken by the worker. He was told the worker serviced eleven libraries and he was required to collect between six and twenty-two crates from each library per day. Mr Cordingley was advised the weight of these crates varied between 20 and 30 kilograms. Other information suggested the worker serviced nine libraries and the crates weighed from a few kilograms to 20 kilograms, with the most common weights between 8 and 16 kilograms. Mr Cordingley concluded that the worker would perform approximately 200 lifts of crates over the course of his daily shift.[21]
[20]Exhibit 25
[21]In the course of submissions, there was little dissent from the proposition that in the course of a normal day, the worker would make approximately 200 lifts of crates and then another 200 lowerings, a total of 400 movements.
46 Mr Cordingley utilised the Michigan 3D Static Strength Predication Program, which is an indicator of compressive forces exerted upon the lower spine during lifting operations. According to that program, compressive forces exceeding 6,400 newton were hazardous and beyond the permissible limit, and forces below 3,400 newton were safe for the majority of the population. Forces exerted in lifts between those two figures were unacceptable without administrative or engineering controls. He calculated that the compressive force on the L4-5 disc of lifting a crate of 20 kilograms, for a man of average height and weight, would be 3,832 newtons, thus above the lower limit.
47 Mr Cordingley utilised another biomechanical analysis, the “Guide to Manual Materials Handling”, which he said was a guide utilised to assess frequent lifts. The recommended weight for lifting six times per minute from the floor to 800 millimetres was 23 kilograms, and from the floor to 1,320 millimetres was 22.3 kilograms. For eight lifts per minute, the maximum was 18.6 kilograms from the floor to 800 millimetres, and 17.3 kilograms from the floor to 1,320 millimetres.
48 Mr Cordingley concluded that the repetitive lifting of crates of around 20 kilograms or heavier would exceed the safe lifting limits for a male of average height and weight. He concluded the lifting and handling of the crates in the manner described posed a risk of injury due to the weight, around 20 kilograms, combined with a stressful work posture and, to a lesser degree, the frequency of the lifting. He said there were steps available to the libraries to alleviate the risk. These included undertaking risk assessments, the provision of additional crates to prevent overloading, consultation with couriers, establishing a system for reporting and following up of matters raised by couriers, providing good access in the libraries to avoid bending and twisting and ensuring couriers had received appropriate instruction and training, together with monitoring the system.
49 Mr Cordingley was cross-examined. He was told the crates weighed between 20 and 30 kilograms. His analysis presumed that the lift undertaken was with the back bent at 90 degrees, and the knees only slightly bent. He further presumed that the worker’s feet were in front of the crate and not to either side of it. He said with bent knees and the feet to either side, the lift would be less risky. He accepted the Manual Handling Code of Practice suggested that photographs or videos of actual work postures be utilised in determining the risk. He said with proper posture and use of knees, it was possible that the newton forces exerted on the lower spine in the lifts undertaken by Mr Yelken would be less than the minimum 3,400 level.
50 Evidence was given by Ms Mia Mikin, called on behalf of Yarra City. She is a librarian and currently works at the Richmond Library, and is employed by Yarra City. She has been a librarian for twenty years. She has been working at the Richmond Library for twelve years.
51 In 2007, the system for the transfer of books between the various libraries was that when the staff arrived at work, there would be 10 to 15 crates to unpack. These were books and other materials coming to Richmond from other libraries. Each of the crates would be lifted and taken to the circulation desk. The crates would be emptied of the books and other materials and then the empty crates would be placed under the circulation desks.
52 Then, during the course of the day, crates placed under the desk would be filled with books and other materials to go to particular libraries, then removed from under the desk and placed in stacks in the same area as those which were left by the courier the night before. The distance between the crates and the circulation desk was about 3 metres. In the morning, the crates were stacked three high in a row. During the day, library staff would put books to go to other libraries in the empty crates under the circulation desk. They would have signs and specified positions for the crates to go to other libraries. For example, Carlton crates would always be in the same place. The crates were filled quickly on a busy day and were later repacked more efficiently. Those crates were restacked because, when that was done, more books and materials could be placed in the crates.
53 Ms Mikin said that, over the years, she had worked at all the libraries in the group and they all had the same system. It was known not to fill the crates above the handle line. There were reminder emails every eighteen months or two years to that effect. She could not recall ever seeing a crate stacked above the handle line. If it was too full, she would move material to another crate. She was shown exhibit D1A which she packed some weeks ago. She demonstrated picking up the crate with bended knees. She said this was a relatively heavy crate because it was only books and not CDs, DVDs and other material. It was therefore heavier than normal. She was shown exhibit 18, the crate loaded by the worker weighing 25 kilograms. She said the crate should not be stacked that high and it was ridiculous to lift it; far too heavy. She had never been confronted with a crate like that. She was shown exhibit D1D, a crate with books weighing 19 kilograms. She said that was overloaded and it was not usual to have that many hardcover books. She attempted to lift that crate, and although able to lift it, she said she would not lift it as it was too heavy.
She and other work colleagues had an OH&S Committee and they were well aware of lifting guidelines. She and others were mindful to stack crates carefully, so as not to prove a hazard to their colleagues. There was never an occasion where she was unable to lift a crate because she could not grip two of the handles.
54 In relation to books received from other libraries including Richmond, were packed in the same way and not overloaded nor too heavy.
55 In cross-examination, Ms Mikin said she was familiar with the system that couriers would collect and deliver the crates overnight. She accepted that each library had sole control over:
· what went into the crates;
· how they were packed;
· whether they were filled correctly;
· whether the weight was acceptable;
· where they were placed within the library for collection; and
· the number of crates involved.
56 She said, at present, eight to fifteen crates arrived in the morning. In 2007, she thought it would have been smaller. She did not think it was fifteen to twenty. She said she would be surprised if there were 100 to 130 crates in respect of all of the libraries moved each day. She denied that the crates were packed beyond the handles. Even if they were fully loaded, someone would go back and check they were properly packed. She agreed there was no sticker on the crates to the effect: “Do not fill crates beyond handholds”. She was not aware of any issue over time where overfilling of the crates was a problem at Richmond or other libraries. She thought the email from Anita Morris of 4 May 2010[22] was a reminder about OH&S matters. There were plenty of crates at the library and there was no need to overfill them. There was a stack out the back. She said it was impossible for there to be six out of twenty crates overfilled. She said with absolute confidence that staff members checked the crates. There was no tendency to overfill. She was unaware of any documentation relating to the direction not to overfill. She had not seen completed forms, being exhibits 28, 29, 30 and 31, before.
[22]Exhibit 27
57 Evidence was given by Ms Marcia McGinley, also a librarian. She is employed at Collingwood Library and has been there for ten years. She was employed at Collingwood in 2007 and was aware of the system for distributing the books amongst the libraries. The materials included books, DVDs, talking books, magazines, kits, brochures, and sometimes newspapers. She arrived first in the mornings at Collingwood and would go to the stack of crates left by the courier. Usually there were nine to ten crates. In 2007, there were more, up to twelve crates. The crates were stacked near a desk. If she was using the computer closest to the stack of crates, she would simply lift the books out of the top crate and then process them through that computer. If she used another computer, she would pick up the crate and carry it to the desk next to the computer, a distance of about 2 metres. The books would then be processed and the empty crates placed under the desk in a designated spot for each library. Under the desk, the crates were placed on trolleys, six or seven inches off the ground. Each could hold two crates.
58 Those empty crates would then be filled during the course of the day, counted and the number written on a form. There was a known procedure not to fill the crates beyond the handles. It had been the procedure for at least twelve to fifteen years. Occasionally if there was an oversized item, it would protrude from the top of the crate but not otherwise. It did not happen that crates were stacked which were overfilled and left for the couriers. She was shown exhibit D1A and said it was unusual to have a crate with only books, otherwise the crate was typical, although one book too many. She said the crate, as per exhibit 18, was completely unacceptable and over-packed. It was far too heavy to lift and she could not lift it. In relation to exhibit D1D, she could probably lift that crate but would not want to. She had not confronted a crate of that weight.
59 In 2007, about half the staff were male and half were female at Collingwood Library.
60 In cross-examination, Ms McGinley denied she knew of any crates that were overfilled. She was the supervisor of the staff and if she had seen a 25-kilogram crate, she would not have permitted it. If a crate was overfilled, the books would be rearranged. She agreed there might be ten to fifteen crates per day in 2007 at Collingwood. The library staff were responsible for controlling the manner in which the crates were packed, the material placed in them and the number of crates. She had never seen a courier, as they worked out of hours. She was shown a photograph (exhibit D2A) where only one handle was exposed. She said she had not seen that. She said occupational health and safety matters were taken very seriously. In relation to the email of May 2010 from Anita Morris,[23] she would have likely received that document which she thought was a reminder to staff. She accepted labels could have been placed on crates about overfilling but it was not necessary. She said crates were collected by the couriers from under the desk, as well as from the stack.
[23]Exhibit 27
61 Evidence was given by Ms Allison Newman, a librarian employed by the City of Yarra. She worked at the Carlton and Richmond Libraries respectively over the last fourteen and twenty-seven years. She worked several days at each. The system for sharing books was the same now as 2007. At Carlton each morning there would be eight to ten crates, and at Richmond, about ten to fourteen. She or others would lift them from a pile where they were left on the floor and take them to the circulation desk, a distance of about three or four metres. At Carlton, crates were placed on a shelf below the desk, and also behind the desk. She was instructed not to fill the crates beyond the handles. She could not lift the crate, exhibit 18, and had never seen crates of that weight. In relation to the crate, exhibit D1D, she could only lift it slightly and crates were never like that. In relation to the crate, exhibit D1A, she would have rearranged it but was able to lift it to waist height. She said it was rare crates would weigh that much.
62 In cross-examination, it was put to Ms Newman that she might be wrong about the numbers of crates per day. If the document shown, exhibit 31, was correct, then her estimate of the number of crates would be out. She recalled no written instruction about not filling crates beyond the handholds but it was discussed at staff meetings. An email, such as exhibit 27, might be forwarded to give directions and to inform new staff members.
63 Evidence was given by Ms Melissa Gilmore, another librarian of the City of Yarra. She started at the Yarra Libraries in 1991 and was now at Richmond. In 2007, she was at Richmond.
64 In the mornings, there would be a stack of crates delivered overnight by the courier. They had to be checked in and distributed. She would pick up a crate and put it on the circulation desk and there unpack it. Once unpacked, the empty crates would go under the desk. Those crates were then filled up during the course of a day and then move to be stacked on the floor. They would be lifted a distance of a metre or two. The stack was two or three high.
65 There are instructions that crates were to be stacked no higher than the height of the handles. Those instructions had been about since 1991. She could not recall who first told her that. She never saw a crate stacked above the handles. She was shown the three exhibited crates, and, in relation to exhibit 18, said that she thought it looked overfilled. She would not be able to lift it as it was too heavy; she had never seen a crate of that weight. As to exhibit D1D, it was filled too high and usually crates were not filled with all books, but included DVDs, CDs and other material. She was reluctant to lift the crate, it was too heavy, and could not recall one at that weight. In relation to exhibit D1A, the contents were fairly typical, except there were no DVDs nor CDs. The weight was more like that which she would usually deal with, although at the heavier end.
66 In cross-examination, Ms Gilmore said she would not have thought that there would be as many as fifteen crates delivered in the mornings. If that was so, it seemed a lot. She agreed that the library staff controlled how the crates were filled, their contents and weight, the number of crates placed out for collection and where they were placed. She agreed there was no written direction nor occupational health and safety guidelines about filling the crates. She may have received the email from Anita Morris but could not recall that overfilling of the crates was a recurring problem.
67 Evidence was given by Mr Ivan Gilbert, the executive manager of the Chief Executive’s Office of Yarra City. In 2007, he was employed by Yarra City as manager of governance. He was one of the two persons who oversaw and made recommendations as a result of the tender process by which Capital Transport tendered for the courier work between the various libraries.
68 Mr Gilbert was taken through the various tender documents, the response documents from Capital Transport and the subsequent contract established between Capital Transport and Yarra City.[24] The documents included:
[24]See Yarra City tender file – exhibit D1E
· Yarra City Council specifications for tender;[25]
[25]Part of exhibit D1E, Defendants’ 1 and 2 Court Book (“D12 CB”) 152
· Unsigned Minor Contract (Services) No C942;[26]
[26]Part of exhibit D1E, D12 CB 159–165
· Yarra City Council Occupational Health and Safety General Conditions for Contract No C942;[27]
[27]Part of exhibit D1E, D12 CB 166–182
· Capital Transport tender for courier services;[28]
[28]Part of exhibit D1E, D12 CB 41–61
· Further Capital Transport tender document;[29]
[29]Part of exhibit D1E, D12 CB 62–99
· Document headed “Quotations” with recommendation for Capital Transport as preferred contractor, and approval dated 10 May 2007;[30]
[30]Part of exhibit D1E, D12 CB 22
· Tender evaluation document;[31]
· Capital Transport tender document.[32]
[31]Part of exhibit D1E, D12 CB 26–28
[32]Part of exhibit D1E, D12 CB 42 and following
69 Mr Gilbert said the tender process was overseen and recommendations made by himself and Mr Darren Ryan. In accordance with the tender evaluation form,[33] various criteria were examined in the tender process to evaluate the tenders from Capital Transport, and another courier company, Link. The evaluation had five criteria, including price, quality of service, relevant experience, capacity and occupational health and safety management system. Capital Transport rated slightly higher than Link, and was offered the contract, which was subsequently executed. He said matters relating to occupational health and safety were very important in determining which contractor to appoint. Capital Transport, in its application, referred to various occupational health and safety standards and policies, including:
[33]Part of exhibit D1E, D12 CB 26
· Quality and safety[34]
[34]D12 CB 47
· Key performance indicators[35]
· Operator training.[36]
[35]D12 CB 55
[36]D12 CB 58
70 Mr Gilbert said, unless the tender documents paid attention to matters of occupational health and safety, the tenderer was unlikely to be afforded the contract. If there was no reference to occupational health and safety or risk management in the tender, then the tenderer would have been taken out and not considered.
71 Mr Gilbert said Ms Anita Morris commenced work with the City of Yarra in about April 2010.
72 In cross-examination, Mr Gilbert said Mr Darren Ryan was the responsible library officer in relation to the Capital Transport contract. Mr Gilbert said he would have read the specifications for the contract. It was pointed out to him that, as part of the tender or contractual material, the courier work was referred to as involving an average of 131 crates being moved each night and said to be physically demanding.[37]
[37]Victorian WorkCover Authority Court Book – (“VWA CB”) 62.29
73 Mr Gilbert said he expected both employees of Yarra City and the contractor to comply with occupational health and safety issues. It was a requirement that contractors comply with those issues. He accepted Yarra City required the contractor to prepare and submit a risk assessment prior to the commencement of the contract.[38] Further, the contractor was required to submit a health and safety plan.[39] He would have expected these documents to have been completed. Further, the contractor ought to have submitted a risk assessment which identified hazards associated with contract activities and risk control measures.[40] He had seen the “risk assessment form” and would have expected one of these to have been completed by the contractor.[41] Likewise, a job safety analysis form.[42] He was not familiar with a “moving crates within technical services” document.[43]
[38]VWA CB 72.3
[39]VWA CB 72.3
[40]VWA CB 72.12
[41]VWA CB 72.8
[42]VWA CB 72.16
[43]VWA CB 74.34
74 By consent, a statement of Mr Kim Chua was tendered on behalf of Yarra City. According to that statement, Mr Chua is employed by the City of Yarra, and in 2007, worked in the finance area. He recalled signing a document “account-credit application” around July 2007. It was necessary to sign that application in order to arrange for payments to be made by the City of Yarra to Capital Transport in payment for services provided. He was not given authority to enter contracts on behalf of Yarra City, nor to vary any existing contracts.
Credibility of the witnesses and conclusions from the evidence
75 Generally, I found the worker a reasonable witness attempting to responsively answer questions in examination and cross-examination. There were a number of credit issues put to him and it was suggested I should have significant reservations in accepting parts of his evidence.
76 Surveillance video taken on a number of occasions between 2010 and 2014 was tendered into evidence. As earlier stated, on some occasions, the worker moved with a pronounced limp and on other occasions, even on the same day, with barely any limp. I did not regard the video surveillance as substantially impacting upon the worker’s credit. True it is his limp changed, sometimes significantly, but I am of the view that those changes can be explained by fluctuations in his lower back condition, the effect of medication, and the variability of his symptoms.
77 Further, the worker was cross-examined as to his income, and that of the company, Yelken Pty Ltd, over the years before injury. His taxation documents, and those of the company, revealed he earned very little, if any, income over those years. I do not view this issue so much as a matter affecting the worker’s credit, but rather a matter to be taken into account in determining any loss of income that it is said the worker may have incurred. He said repeatedly that he left his taxation affairs in the hands of his accountant. In addition, it was put to Mr Yelken that, despite his evidence that his wife provided only limited assistance in relation to the courier work for Gazel, an examination of the invoices revealed that on some occasions, he or his company billed Gazel for up to eighteen hours’ work per day. It is clear that his wife must have been far more involved than he would admit. In any event, I do not regard this as an issue significantly affecting his credit.
78 A significant area of contention between the evidence of the worker, and the various librarians called by Yarra City, was as to the weight of the crates, and the extent to which they were filled up to and over the handholds. The worker contended that if they were filled above the handholds, that would make lifting the crates difficult and awkward. This was particularly so in relation to the crates collected from under the circulation desks. He said that about six out of twenty were overfilled and were thus heavy.[44] He would deliver approximately 100 crates a night from one or other library.[45] Those which were filled past the handholds weighed between 20 to 30 kilograms.[46] The worker said that he was required to work very quickly.[47]
[44]Transcript (“T”) 121
[45]T122
[46]T121
[47]T125
79 On the date of injury, he delivered about twenty crates to the City Library. He said about six to eight on that particular run were over-filled.[48] They were thus difficult to handle and he had to grab the crates from the bottom rather than with the aid of the handholds.[49] As he was unloading one of these crates from the trolley in the City Library, he suffered injury.[50] The crate he lifted was between 20 and 30 kilograms. He could not use the handles of that particular crate.
[48]T138
[49]T139
[50]T142-3
80 The worker, his wife and his solicitor prepared a crate with various books similar both as to weight and the level to which it was filled as the crate he was lifting when he hurt his back.[51] Mr Yelken denied that the crates he collected weighed between 8 and 16 kilograms with an average weight of 10 kilograms.[52] Possibly two, three or four times a day, all four handles of a crate were blocked, making it difficult to lift.[53]
[51]Exhibit 18
[52]T221
[53]T278
81 This evidence stands in clear contrast to the evidence given by the various librarians called on behalf of Yarra City. All of those witnesses were impressive. I found their evidence measured and convincing. I did not perceive them as attempting to protect the libraries for which they worked. They were responsive in cross-examination. They gave concise evidence as to the weight of the crates they encountered, and as to the number which were over-filled. Generally, their evidence was to the effect that the crates weighed significantly less than the 20 to 30 kilograms suggested by the worker. Most said that the crate, being exhibit D1A, weighing 12 kilograms, was at the heavier end of the weight of crates usually moved within the libraries. They said there were strict occupational health and safety guidelines observed as to the weight of the crates. None recalled the crates being filled above the handles, thus making them difficult to move. All strenuously denied that crates weighing 25 kilograms (as in exhibit 18), or even 19.3 kilograms (as in exhibit D1D) were present in any of the libraries where they had worked.
82 As stated, all of the librarians were impressive witnesses. I prefer their evidence to the evidence of the worker on the issues of the weights of the crates and whether they were overfilled. While it was possible in 2007 there were occasionally heavy crates which were not observed by the librarians, I conclude that the evidence of the worker that six to eight out of twenty were over-filled and weighed between 20 and 30 kilograms is not accurate. I prefer the evidence that they were much lighter, and while it is possible occasionally crates were over-filled, making it difficult to secure a handhold, this would be a relatively rare event.
83 In submissions, Mr Simpson, for the VWA, said that the four librarians called, although experienced, had not worked in all of the libraries which Mr Yelken would visit. AcCordingley, their evidence could not be said to be a fair representative sample of the work system adopted for the transfer of library materials at other libraries. However, Ms Mikin had worked at all of the libraries in the group at one time or another. Further, all of the librarians were able to observe crates packed at other libraries and transported to the libraries at which they worked. In my view, therefore, given crates were transported from other libraries each day, what they saw as a fair representative sample of the weight and presentation of those from other libraries. Further, it is difficult to accept that crates could have been carried with relative ease by these and other librarians (most of whom were women) if they weighed in the region of 20 to 30 kilograms.
84 I conclude, in accordance with the evidence of the librarians, the crates generally weighed something less than 12 kilograms, on average in the range of 10 kilograms and were only rarely filled to the point where the handles were covered thus making lifting difficult.
The tender process and the agreement between Yarra City and Capital Transport
85 Until June 2006, the operation of what is now the Melbourne City and Yarra City Libraries was undertaken and controlled by the Yarra Melbourne Regional Library Corporation (“the Corporation”). Up until that time, the transportation of library materials between the libraries was undertaken either by Group Messengers or Capital Transport at the behest of the Corporation. After June 2007, that task was administered by Yarra City on behalf of itself and Melbourne City. Little, if anything, changed in relation to the work undertaken by Mr Yelken on his courier rounds to the various libraries after June 2007.
86 The VWA’s Amended Statement of Claim pleads the cause of the worker’s injuries was the lifting and carrying work from June 2007 up to and, in particular, on 3 December 2007.
87 It is necessary to examine the circumstances under which Capital Transport tendered for the courier work and the agreement which resulted from that tender process.
88 The first relevant document is “Yarra City Specification for the Supply of Courier Services”.[54] That document listed the various libraries from which and to which the library materials were to be collected and delivered.[55] The document set forth the approximate number of crates to be collected from all of the libraries, that the pickup and deliveries were to occur six days per week, and the deliveries had to be made to all the relevant locations by 6.00am on any one day.[56] Although there was some debate on the issue, I am satisfied from the content of the document that the “Eight to ten crates … to be collected from East Melbourne and North Fitzroy” meant eight to ten crates to be collected from each of those libraries. Likewise, with the workload referred to for the other libraries.
[54]D12 CB 152-158, note – the closing date for tender was 24 April 2007, and not 24 April 2006.
[55]D12 CB 153
[56]D12 CB 155
89 The “responsible library officer”, Mr Darren Ryan, was said in the glossary to be:
“ … the officer nominated by the City of Yarra as being responsible for overseeing the effective and efficient provision of the courier service.”
90 Capital Transport made two responses to the application for tender.[57] Those responses noted:
[57]D12 CB 41-61, 62-99
· Capital Transport employed approximately 800 staff;[58]
[58]D12 CB 44
· It operated nationally in a range of areas, including logistics, transport operations and transport evaluation;[59]
[59]D12 CB 45
· Its operations employed various quality programs and industry standards including occupational health and safety;[60]
[60]D12 CB 47
· It employed safe work practices and housekeeping;[61]
[61]D12 CB 55
· All its operators would be inducted with correct procedures and product handling:
“This demands strict attention to detail and places strong emphasis on ensuring that the customer’s freight, their delivery windows, environmental and government legislation and OH&S requirements are treated with the highest priority and care …”;[62]
[62]D12 CB 58
· The cost of service delivery would be $181.72 per day;[63]
[63]D12 CB 72
· Under “Driver Procedures and Occupational Health and Safety Awareness For Contractors” (a document possibly originating from Yarra City but part of Capital Transport’s response material):
“[T]his is a physically demanding role with an average of 131 crates being moved each night. It is highly recommended that you warm up with some stretching prior to commencing the run. As the run progresses you will need to move the crates around in the van to ensure that the appropriate crates for each site remain grouped together …”;[64]
[64]D12 CB 90
· The runs could be commenced at any time after 8.30pm, and would generally take four hours to complete;[65]
[65]D12 CB 89
· Drivers are to ensure that they treat all persons with whom they come into contact with courtesy:
“Drivers not only represent themselves as independent contractors, but Capital Transport Group and Yarra City Council – Yarra Melbourne Libraries … Please ensure that any problems are address[ed] asap by contacting Darren Ryan for Yarra City Council on #### ### ### or a representative of Capital whose numbers are listed below … Where a driver will be absent and unable to perform the run, you must contact Pat Mochon on #### ### ### or Mike Newton on #### ### ### to arrange cover”;[66]
[66]D12 CB 92
· A further document, “Explanation of Sections of Courier Procedures”, provided details for the pickup and drop off of the crates. The document, which would again appear to have originated from Yarra City, provided a suggested run sequence;[67]
· A further document, “Courier Procedures – Overnight Run – Monday-Saturday”, would appear also to have originated from Yarra City. That document referred to the various libraries and gave information as to access and security, and referred to pick up points, including at various libraries, behind the circulation desks.[68]
[67]D12 CB 95
[68]D12 CB 97-99
91 Attached to the proposed contract for courier services, Yarra City provided an “Occupational Health and Safety – General Conditions” document.[69] According to that document:
[69]D12 CB 166
· Under “Risk Assessment”:
“The contractor must prepare and submit a risk assessment prior to the commencement date in accordance with Appendix 1. The risk assessment form must be used to record the risk assessment and risk control means to be employed by the contractor. The completed risk assessment must be submitted to the supervisor for review and approval prior to the commencement.”[70]
[70]D12 CB 168
· Under “Health and Safety Planning”:
“Prior to the commencement date, the contractor must submit to the supervisor a health and safety plan specific to the contract and the services … the health and safety plan must consider and respond to the specific OH&S hazards and the issues relevant to the services and must document the systems and methods to be implemented during the contract term.”[71]
[71]D12 CB 168
· The annexure to that document referred to various occupational health and safety legislation and regulations;[72]
[72]D12 CB 169-170
· A risk assessment form, and job safety analysis form were attached;[73]
[73]D12 CB 173-181
· According to an appendix “Guidelines for Preparing Health and Safety Plans”:
“OH&S legislation requires all employers to ensure that their employees have the skills and training required to carry out their work in a safe manner. The contractor must document its safety training program ensuring that it has appropriately skilled employees, suitable training programs and adequate supervision for the services.”[74]
[74]D12 CB 176
92 Two officers of Yarra City, Mr Darren Ryan and Mr Ivan Gilbert, evaluated tenders from Capital Transport and another transport company, Link. The tender was awarded to Capital Transport, weighing various criteria.[75] In the course of his evidence, Mr Gilbert observed that in the tender process, matters of occupational health and safety were very important to the awarding of the contract.
[75]D12 CB 26
93 A “minor contract (services)” was signed on or about 22 June 2007.[76] That document provided:
[76]D12 CB 34-40
· That the Council wished to purchase from Capital Transport “courier service for both Yarra and Melbourne Libraries”;[77]
· Capital Transport was to ensure its employees, subcontractors and agents “obey any Acts, regulations and local laws in any way applicable to the performance of this minor contract, including, without limitation, any occupational health and safety legislation”.[78]
[77]D12 CB 34
[78]D12 CB 37
94 It was thus clear that as a result of the tender process, and the execution of the agreement between Capital Transport and Yarra City, that Yarra City required Capital Transport to provide courier services for the transportation of library materials between its various libraries. The documents provided a detailed description of the work to be undertaken, the libraries involved and the number of crates expected to be transported. The work was described as “physically demanding”. It was clear from the tender process that Yarra City regarded matters relating to occupational health and safety as important, and required Capital Transport to properly induct and train its courier drivers and to ensure that the occupational health and safety legislation and regulations were observed.
95 On its part, Capital Transport held itself out to be a competent and experienced courier company with Australia-wide operation. In the tender process, it maintained occupational health and safety was an important aspect of its operation and that “strict attention” and “strong emphasis” would be paid to occupational health and safety requirements. It said those issues would be treated with “the highest priority and care”.
Did the libraries owe Mr Yelken a duty of care?
96 Mr Riordan, for Yarra City, and Ms Manova, for Melbourne City, submitted that in the circumstances, no duty of care was owed by the libraries to Mr Yelken. While undoubtedly Group Messengers and/or Capital Transport owed either a general common law duty to take reasonable steps against the risk of foreseeable injury, or an employer’s more extensive duty (depending upon whether Mr Yelken was determined as an employee or independent contractor), it was argued that, in the circumstances, that duty did not extend to the libraries. In particular, Mr Riordan and Ms Manova pointed to the fact that the libraries had retained Capital Transport, a competent courier company, to undertake the transfer of crates. That work was done out of normal hours when none of the library work staff were present, and the injury sustained by Mr Yelken occurred in the course of the very duties Capital Transport had been contracted to carry out.
97 In Surf Coast Shire Council v Webb & Anor,[79] Chernov JA referred to what was said by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd.[80] Brodribb operated a large sawmilling operation. It engaged Stevens to carry logs away from its logging area. Others were engaged in various other activities related to the sawmilling operation. One such party negligently dislodged a log which struck Stevens, causing him severe injury. Brodribb was found not to be the employer of Stevens, although it did owe him a general duty of care. The Court concluded that Brodribb had overall responsibility for coordinating and organising the work to be performed at the logging site and that Stevens relied upon Brodribb for that organisation and coordination. Mason J said:[81]
“While individual fellers, sniggers and truck drivers may have been responsible for their own safety with regard to carrying out their own functions, they had little choice but to rely on the care and skill of Brodribb in the arrangements which it made for the disposition of the work, and on the care and skill of the persons engaged by Brodribb in the execution of the work.
The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”
[79][2003] VSCA 162 at paragraph [17]
[80](1986) 160 CLR 16
[81]At paragraphs [30]-[31]
98 As was pointed out by Chernov JA, the duty was to exercise reasonable care in the coordination of the activities of the various contractors. As Brennan J said:
“[A]n entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising that activity to avoid or minimise that risk.”
99 His Honour referred to what Brennan J said[82] as to the nature of that duty:
“The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”
[82]At paragraphs [47]-[48]
100 Chernov JA went on to consider a number of cases where a duty of care was owed to the employee of a subcontractor.[83] All those cases involved circumstances where there was either a latent defect in premises upon which the activity was being conducted, or where the duty of care arose because of the control of the worksite, and the work undertaken, by the party in respect of whom the duty was said to be owed.[84]
[83]McArdle v Andmac Roofing Co [1967] 1 All ER 583; Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd [2002] TASSC 115; Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
[84]See further Hetherington v Mirvac Pty Ltd [1999] NSWSC 443 where no duty was found to be owed as the principals were not “directly involved in the coordination, supervision or direction of the work undertaken by the various subcontractors”.
101 In Surf Coast Shire, the Shire accepted it owed the employee of the contractor a general duty to take reasonable care. Chernov JA noted the Shire retained control in respect of large commercial rubbish bins which, on an occasion of being overloaded, caused the employee injury when he attempted to lift one out of its cradle. The Shire was responsible for the design of the bin, and the cradle upon which it sat. It could also constrain the amount of rubbish which was placed in the bins, as it had a right of enforcement action against those who contravened the local by-laws by placing heavy commercial rubbish in the bins.[85]
[85]At paragraphs [21]-[22]
102 I was taken to a decision of his Honour Judge Misso in Victorian WorkCover Authority v Moorabool Shire Council & Anor.[86] In that case, a worker suffered significant injury when attempting to lift and manoeuvre a 60-litre crate. The Shire had retained a competent contractor to collect recyclables, including from 60-litre crates. This case bears significant factual similarities to the present proceeding. His Honour considered that the factors relevant to whether a duty of care was owed to the worker hinged upon three aspects:
[86][2011] VCC 133
· Whether the Shire had a right to control the manner in which the contractor carried out the collection of recyclables;
· Whether the activity had been placed in the hands of a competent independent contractor;
· Whether the injury was caused by the failure of that contractor to follow a safe system within the area of its responsibility.[87]
[87]At paragraph [84]
103 Like the present case, the contractor was the subject of a contractual arrangement by which the Shire required it to take all reasonable steps for the health and safety of its employees and in the performance of its contracted duties. His Honour found that the contractor had failed to undertake a risk assessment to guard its employee, the worker, against the risk of injury in failing to provide him with appropriate instructions and training.
104 On behalf of the VWA, Mr Simpson contended that Yarra City was responsible for the control, management and direction of the system of work which it devised for the transportation of the library materials. He noted that Mr Darren Ryan, according to the specification document, was the “responsible library officer” and “… responsible for overseeing the effective and efficient provision of the courier service”. However, I am not satisfied from the relevant documentation and the nature of the arrangement between the parties, that Mr Ryan was anything more than a contact point for Capital Transport and its workers in the event there was a need to communicate with the libraries in order to give effect to the provision of courier services.
105 Mr Simpson contended that as Mr Ryan had not been called to give evidence, it was open to draw an inference that he was responsible for overseeing the efficient provision of services and that I could more readily accept the evidence of Mr Yelken as to the weight and difficulty in handling the various crates. I am of the view that no such inference is open. There was no evidence to suggest that Mr Ryan was involved in the transportation of the books; rather, he was one of the tender assessment officers, and was a point of contact for Capital Transport.
106 Mr Simpson pointed further to various provisions in the specifications document, including:
· That the courier service was to be carried out to the satisfaction of the libraries in accordance with good commercial practice and legislative requirements;
· That the libraries required Capital Transport to provide accurate and timely delivery of materials;
· That the libraries specified the approximate number of crates to be transported;
· They prescribed various key performance indicators;
· They dictated the places within the various libraries where the crates were to be collected, and further suggested an efficient route;
· They prescribed the times during which the courier run was to be undertaken, that is between 8.30pm and 6.30am, and that the run would take approximately four hours;
· Noted that the work was physically demanding.
107 In all these circumstances, Mr Simpson submitted that control of the system for delivery of the books was very much within the control of Yarra City and Melbourne City. Their employees loaded the crates and controlled the level to which they were filled. They regulated the number of crates the worker had to lift and manoeuver. He further noted that, despite the contractual requirements, when Capital Transport failed to provide a health and safety plan and a risk assessment, Yarra City did nothing to enforce those obligations. This, he contended, led Mr Yelken along a path to an unregulated and unsafe work system.
108 Mr Simpson referred to the text “The Liability of Employers in Damages for Personal Injury”:[88]
“What constitutes a system of work will vary from case to case. Speaking generally, it includes the arrangement of the organisation of the operation or process, the sequence in which the various steps in the operation are carried out, the coordination of different parts of the operation, and the methods of using particular equipment or machines or carrying out particular processes, the supply of suitable appliances and adequate manpower, the provision of proper instructions, warnings and notices before, during or after the operation or process in question. The system of work is, therefore, the usual method of carrying out the operation of which the employee is engaged. It is the method of doing work which, expressly or impliedly, the employer must have taken to have approved.”
[88]Glass, McHugh and Douglas (2nd edition, 1979), page 20
109 The extent of control by Yarra City over the courier operation requires an analysis of the tasks which Yarra City required Capital Transport respectively had to undertake:
· First there was the preparation by the library staff in the course of the working day of the crates of books and materials which were to be distributed to other libraries in the group. This involved those librarians to organise and fill the crates and to place them in a designated area, or under the circulation desks, for later collection by Mr Yelken.
· Then there was the physical collection by Mr Yelken of the filled crates upon his trolley, the unloading of those crates into his van, and their delivery to the relevant libraries.
110 In respect of the first part, undoubtedly Yarra City and Melbourne City controlled what occurred. The librarians from those libraries were responsible for what went into the crates, the manner in which they were packed and their weight, where they were placed for collection and the number of crates involved. The second part, and in my view the real ‘system of work’ was entirely within the control of Capital Transport and Mr Yelken. While a particular route was suggested as efficient, it was up to Mr Yelken as to which route he took. It was up to him when the work was to be undertaken, providing it was completed by 6.30 in the morning. Precisely how the crates were to be collected, transferred to a vehicle and then unloaded, was a matter for him. For example, either Capital Transport or Mr Yelken could have engaged others to help with the work. He or Capital Transport could have used some form of mechanical assistance. It was up to him how he was to transport the crates to and from his vehicle and what type of trolley was appropriate for the task. In all respects Yarra City was contracting out this work to an outside courier company which had the expertise for the task.
111 Given my factual findings, I am not satisfied that Mr Yelken was dealing with heavy crates where every six or eight out of twenty weighed between 20 and 30 kilograms. If any of the crates he dealt with were overloaded, it was an exception. I am satisfied that generally the crates he was dealing with were less than 12 kilograms. Further, I am not satisfied that the crates were packed in such a manner so as to make access to the handholds difficult. To that extent, there was no latent danger in the movement of the crates. I am satisfied there was nothing to suggest to the library staff the crates were other than within the capacity of a courier to lift and manoeuvre, including those which were placed onto the circulation desks.
112 Mr Simpson submitted that in respect of those crates which were placed under the circulation desks, it was open to infer that they would be heavier than the crates which had been stacked and removed to another area for a collection, their movement thus placing significant stress on Mr Yelken’s spine. However, in my view, it is more likely that the crates left under the circulation desks were those crates which had not yet been filled by the library staff. An inference is more easily drawn that in those circumstances, those crates would have been lighter and less difficult to remove.
113 I was taken to my decision in Victorian WorkCover Authority v Victorian Institute of Forensic Mental Health.[89] That case concerned a worker who suffered injury in collecting and removing wet towels and transporting them to a sally port area within the defendant Institute’s premises. The evidence revealed that the weight of the bags into which the towels were placed was approximately 25 kilograms. In that case, I found the institution at which the work was carried out did owe a duty of care. However, the factual circumstances were significantly different. The institute did have control over a number of aspects of the work process. It controlled the number of towels that were allocated to a shower area and had the ability to install mats which would have reduced the need for the use of towels. Further, the worker made complaints to a representative of the institute who told him he would look into the matter. Nothing came of those complaints. There was no evidence as to any part of the contractual arrangement between the institute and the cleaning company, that the company would be responsible for the occupational health and safety of workers while carrying out the cleaning duties.
[89][2009] VCC 827
114 The question of control of a workplace was considered in R v ACR Roofing Pty Ltd.[90] Nettle JA referred to R v Associated Octel Co Ltd:[91]
“… the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person — that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor’s workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.
But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken. … .
The question of what is reasonably practicable is a matter of fact and degree in each case. It will depend on a number of factors so far as concerns operations carried out by independent contractors; what is reasonably practicable for a large organisation employing safety officers or engineers contracting for the services of a small contractor on routine operations may differ markedly from what is reasonably practicable for a small shopkeeper employing a local builder on activities on which he has not expertise. The nature and gravity of the risk, the competence and experience of the workmen, the nature of the precautions to be taken are all relevant considerations.”
[90](2004) 11 VR 187
[91][1994] 4 All ER 1051 at 1063
115 I have concluded that in the circumstances which prevailed in the period from June 2007 to 3 December 2007, neither Yarra City nor Melbourne City owed the worker a duty of care. I say that for the following reasons:
(i) Yarra City, and, through it, Melbourne City, retained Capital Transport, a competent and experienced courier company, to carry out the precise work for which they claimed expertise, that is the transfer of materials between various libraries;
(ii) Yarra City prescribed, and relied upon assurances from Capital Transport, as to matters of occupational health and safety which were of significance to Yarra City in awarding the contract. Capital Transport said occupational health and safety requirements would be observed and treated with the highest priority and care;
(iii) There was no latent hazard in the weight of the crates nor manner in which they were packed. The injury occurred in the course of courier activities in respect of which there was, to Yarra City and its employees, no obvious risk of injury, given that the lifting and movement of crates had been carried out by library employees without incident over a considerable period. The nature and gravity of the risk was low. The experience and competence of the courier was high;
(iv) The control of the activity with which the worker was engaged at the time of injury, and over the previous months, was in the hands of Capital Transport, or Mr Yelken. It was not up to the libraries to determine how the crates were to be lifted and transported. That part of the system in which the libraries were involved, that is the filling and stacking of the crates, was not that which gave rise to the worker’s injury;
(v) Yarra City, and, through it, Melbourne City, professed no expertise in the courier activities. They relied upon the expertise and experience of Capital Transport and its workers, who were autonomous as to the manner in which the crates of books were to be moved. The situation was akin to a company contracting with a courier to move any piece of equipment, be it large or small, heavy or light, and leaving it as a matter for the courier company to determine how the item was to be transported;
(vi) Yarra City had specified in considerable detail the precise nature of the work that was to be undertaken, and the items to be transported. It was entitled to rely upon the expertise of the courier company to undertake that work safely;
(vii) The work occurred outside library hours, early of the morning, and in circumstances where it could not reasonably be expected that the libraries, or their employees, would have any ability to control the manner in which the courier work was to be undertaken;
(viii) It could not be expected, even if library personnel were present during the time the courier activities took place, to instruct the couriers as to how to carry out their task. That would have led to an inappropriate interference by the libraries in matters for which they professed no expertise nor competence;
(ix) If there was default or negligence which led to the worker’s injury, it lay with Capital Transport. It failed to undertake the risk assessment of the tasks the worker was required to perform and submit a safety plan which it had contracted to do. Capital comprehensively failed to comply with its own pronouncements on occupational health and safety.
The duty owed pursuant to the OHS Act and the Regulations
116 The VWA pleads that the injury to the worker arose as a result of the “act, default or negligence” of Yarra City and Melbourne City. It alleges that Yarra City and Melbourne City failed to comply with the OHS Act and the Regulations, in particular Regulations 3.1.3, 3.1.2 and 3.1.3. The VWA alleges that the defendants’ failure to comply with the Regulations was a measure of their default or negligence.
117 The objects of the Act include:
“(a)To secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety and welfare of employees and other persons at work; and
… .” [92]
[92]Section 2
118 Section 21(3) provides:
“(3) For the purposes of sub-sections (1) and (2)—
(a) a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b)the duties of an employer under those sub-sections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.”
(emphasis added)
Regulation 1.1.8 is in terms similar to s21(3)(a).
119 Setting aside whether Yarra City or Melbourne City are “employers” or “independent contractors” for the purposes of the OHS Act and Regulations, regulations apply “in relation to matters over which the employer has control …”. It is reasonable to presume, for the purposes of the application of the Regulations, that the work undertaken by Mr Yelken, over the period from June 2007 up to and including 3 December 2007, was “hazardous manual handling” as defined in Regulation 1.1.5.
120 It is clear from the evidence that neither Yarra City nor Melbourne City undertook a hazard identification in accordance with Regulation 3.1.1, nor undertook any risk control measures as required by Regulation 3.1.2 or 3.1.3. Thus, if the work undertaken by Mr Yelken could be said to be “matters over which [it] has control”, those institutions would be in breach of the Regulations.
121 In Stratton v Van Driel Ltd,[93] Byrne J said, in the context of OH&S legislation:
“The word ‘matters’ adopted by parliament to describe the subject matter of the duty has a very wide meaning. It is wide enough to cover any activity or thing in the working environment which might involve risk to the safety and health of a worker. … .”
[93][1998] VSC 75
122 Further:
“I approach the task of construing this statute conscious that it is social legislation intended to secure the safety and welfare of persons at work and to protect them against the risks of this: s6. It should, therefore, be construed generously with this object in mind. … .”[94]
[94]At paragraph [15]
123 In Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd,[95] Doyle CJ said:
“’Control’ in s4(2) of the OHSW Act should be read as referring to actual control, that is to things which the deemed employer is managing or organising. Unless s4(2) is limited in this way, its reach would be very great. … .”
[95][2001] SASC 199
124 In Reilly v Devcon Australia Pty Ltd,[96] the Court of Appeal of Western Australia said:
“Looked at in its overall context, s 19 is designed to ensure that those who are most directly responsible for the safety of workers (their employers and principals who have contracted with their employers and who have actual control over matters affecting their safety) should be held liable for default in exercising that responsibility. That the control must be actual control (encompassing a right of actual control, whether exercised or not) over the particular matter affecting safety seems to us to be evident from the words used, read in their context.
It is significant that s 19(4) is directed to 'matters' over which the principal has control, unlike s 22(1) which is directed to a person who has, to any extent, control of 'a workplace' … That reinforces the notion that the legislature did not intend to impose upon a principal who has engaged a specialist contractor (who is not ordinarily susceptible to direction as to how to perform its work …) a general obligation to supervise the manner in which the contractor (having an expertise that the principal lacks) goes about the performance of the work entrusted to it.
A construction that imposed such a far-reaching obligation on a principal would produce unworkable consequences. There is no real scope for a principal (lacking the requisite expertise) to exercise actual control over the detailed manner of performance of work by a specialist subcontractor. If it endeavoured to do so, this would be more likely to lead to hazards than to avoid them … .”
[96][2008] WASCA 84 at paragraphs [34]-[36]
125 The authorities refer to the matter of control to be dealt with in a practicable sense. For all the reasons referred to in considering whether the libraries are owed a duty of care, I am not satisfied the libraries had “control” over the activities which caused or contributed to the worker’s injuries. Again, Yarra City contracted out the courier work to a company professing expertise and experience in the area. As was said in Reilly, had the libraries attempted to exercise control over the manner in which Mr Yelken performed the removal of the library books, even accepting it had been on the premises at the time those activities were undertaken, it would be likely it would be interfering in a process which was within the special expertise of Capital Transport and not it. It is more likely that that interference would lead to more hazards than the avoidance of them.
126 For all of the reasons referred to in considering whether a duty of care was owed, I am not satisfied Yarra City or Melbourne City had the relevant control over the activity which the Regulations require.
127 In these circumstances, the claim of the Victorian WorkCover Authority fails. There is no cause to consider the third party proceeding.
128 I shall hear from the parties as to costs.
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