VWA v A.C.N 125 830 015 Pty Ltd (Previously known as Asixa)
[2019] VSC 607
•13 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
Common Law Division
PERSONAL INJURIES LIST
S CI 2017 05054
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| A.C.N 125 830 015 Pty Ltd (Previously known as ASIXA LOGICAL OUTCOMES PTY LTD) (and others according to the attached Schedule) | Defendants |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7-9, and 14 August 2019 |
DATE OF JUDGMENT: | 13 September 2019 |
CASE MAY BE CITED AS: | VWA v A.C.N 125 830 015 Pty Ltd (Previously known as Asixa) & Anor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 607 |
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NEGLIGENCE – Workplace accident – Duty to maintain safe system of work – Indemnity claim pursuant to s 138(1) of the Accident Compensation Act 1985 - Employer’s non-delegable duty of care - Duty of care owed by occupier and subcontractor – Principal and independent contractors - Stevens v Brodribb (1986) 160 CLR 16 , Leighton Contractors v Fox (2009) 240 CLR 1 - Duty of care determined by reasonable foreseeability and proximity in the relationship between the parties - Content of duty of care - Apportionment of damages between defendants - Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley | IDP Lawyers |
| For the First Defendant | Mr C J Blanden QC with Ms R Matson | Barry Nilsson |
| For the Second Defendant | Mr B Walters QC with Mr N Dubrow | Thomson Geer |
HER HONOUR:
Mr Damon was employed as a truck driver for Kokoszko Nominees Pty Ltd (‘Kokoszko’). The first defendant, a company formerly known as Asixa Logical Outcomes Pty Ltd (‘Asixa’), contracted with Kokoszko to take freight from its warehouse at Pakenham to Bronzewing Freighters Pty Ltd (‘Bronzewing’) in Horsham and to other depots. Asixa contracted with Bronzewing to unload the freight from Kokoszko’s truck and transport it onwards to other parties. On 8 February 2011, Mr Damon was injured in the course of his employment when assisting a Bronzewing employee (‘Mick’) to unload large tractor tyres from the trailer of the truck at the Bronzewing depot. He suffered an injury to his lower back which has required surgical interventions and the implant of two neuromodulation systems.
Mr Damon made a WorkCover claim on his employer and has been in receipt of compensation payments pursuant to the Accident Compensation Act 1985 (Vic) (‘the Act’). He also claimed damages from three defendants: his employer, Asixa who loaded the truck at Pakenham, and Bronzewing as occupier of the site where he suffered the injury. On the morning that his trial was due to commence Mr Damon settled his claims with all defendants. As a result of that settlement, ongoing liability of the Victorian WorkCover Authority (‘VWA’) is for medical and like expenses only.
The VWA brings this proceeding claiming an indemnity against Asixa and Bronzewing pursuant to s 138(1) of the Act on the basis that the injury sustained by Mr Damon (‘the worker’) occurred in circumstances which created a legal liability in Asixa and in Bronzewing to pay damages to him. This proceeding was to be heard with the worker’s claim for damages. Upon settlement of that claim, the indemnity claim proceeded before me as a cause.
Section 138 indemnity
Section 138(3) of the Act provides the method for calculating the indemnity where a legal liability to pay damages by a third party is established. It provides:
…
(3)The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
where—
Xis the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
Ais the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non-pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
Bis the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
Cis the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.
…
The parties have agreed that the compensation that has been paid is $586,936.14.
The parties have agreed for the purpose of the formula in subparagraph (b), that the worker’s notional common law damages, factor A, is $1.7 million. Factor B is zero and the parties have advised of the relevant figures applicable to each defendant paid in settlement by them of the worker’s claim for factor C.
It remains for me to determine factor X. Once factor X is known it can be calculated whether the lesser amount is arrived at by the formula or by the compensation ‘paid or payable’. This in turn will determine the amount and form of the indemnity.[1]
[1]Victorian Workcover Authority v Esso Australia Ltd (2001) (Cth) 207 CLR 520.
To determine factor X, the following issues require resolution:
1.Does Asixa have a legal liability to pay damages to Mr Damon? This issue has two parts. First, Asixa contends it owes no duty of care to the worker. Second, if it is determined that a duty is owed, Asixa says it was not in breach of its duty.
2.Was there negligence or breach of statutory duty by Bronzewing?
3.The extent to which each defendant’s’ act, default or negligence caused or contributed to the worker’s injury. The extent is to be expressed as a percentage thereby determining Factor X. In determining Factor X, the contribution of all tortfeasors falls for consideration. Here it is alleged that Kokoszko as the employer was in breach of its common law and statutory duties and the worker’s own contributory negligence have both caused or contributed to the injury. Any negligence by these parties are relevant to the percentage liability of the defendants expressed by factor X.
The evidence
The plaintiff called Mr Damon to give evidence and he was cross-examined. Asixa called evidence from a director of the company, Mr Stuart Brown, and opinion evidence from an ergonomist, Mr Brendan Grimes. Bronzewing called opinion evidence from an engineer, Mr Edward Dohrmann. On liability, documentary evidence was tendered by all parties; a number of photographs, selected answers to interrogatories in the worker’s damages proceeding[2], a serious injury affidavit, claim forms and manual handling regulations were tendered. Medical reports were tendered by the plaintiff but, with subsequent agreement of factor A, it is not necessary to set out details of the medical evidence.
[2]Terry Damon v Kokoszko Nominees Pty Ltd (Trustee for Kokoszko Family Trust) & Ors. S CI 2017 02913.
The only evidence of circumstances of injury and the method of work that the worker undertook was his own account. He was not challenged about the events of the day of his injury. His evidence was consistent with that set out in his affidavit and claim form.[3] To a large extent therefore the factual circumstances are not in dispute. The worker gave evidence that his job was to collect the trailer of Kokoszko each evening where it had been parked at the Asixa premises at Pakenham. He would check that the load which had been loaded by Asixa was secured, close the gates and curtains, and hook up the trailer to the truck. He would then drive overnight to the Bronzewing premises in Horsham. He said that he carried freight that was largely palletised but included some material that was not palletised. The freight generally included tyres of various sizes, including large tractor tyres, and whitegoods. He did not participate in the loading of the truck. He would on occasion observe the loading of trucks by Asixa including the truck he drove. He saw goods loaded by Asixa using a forklift fitted with a grabber attachment.[4]
[3]Bronzewing Exhibit ‘D2(1)’, Affidavit in support of application pursuant to s.134AB of the Accident Compensation Act 1985 (Affidavit, 29 September 2016); Kokoszko Exhibit ‘P4’, Worker’s Injury Claim Form and Employer’s Injury Claim Form (Claim Form, 15 February 2011). Although it was submitted that these exhibits did not identify any fault on the part of Bronzewing.
[4]Transcript of Proceedings, Victorian Workcover Authority v Asixa Logical Outcomes Pty Ltd & Ors. (Supreme Court of Victoria, Forbes J, 7 August 2019) (‘Transcript 7 August 2019’) 56.
The worker said that on arrival at Bronzewing the next morning, he would park the truck in the yard as directed and assist with unloading the freight. The task of unloading was performed by him in the trailer and by Mick on the ground and in a forklift. Some loose and small items such as car tyres would be handed from the worker in the back of the truck to Mick on the ground. Much of the load was palletised and this would be removed by Mick using a forklift with tines. The forklift at Bronzewing did not have a grabber attachment.
The worker said that frequently, including on the date he was injured, the freight included large tractor tyres which were stacked horizontally about five tyres high.[5] On the day he was injured that stack of large tractor tyres was not on a pallet.
[5]Ibid 46, 58.
The way in which the tractor tyres generally were unloaded when stacked horizontally and not on a pallet was described by the worker as follows:
I had to slide the tyres off and drop them down so the forklift could come in and pick them up.[6]
[6]Transcript 7 August 2019 46-47.
I had to lift the tyre a little bit and slide it and drop them down onto the deck of the truck and then Mick could come in and pick that tyre up and take it away.[7]
[7]Ibid 47.
The forklift would then pick up the tractor tyre in a vertical position with the outside tread resting on the tines and angled back so the sidewall of the tyre rested on the mast of the forklift.
On 8 February 2011 at the time of his injury, the worker described what he was doing as follows:
I got the top one and I slid it forward, dropped it to the deck. Mick come underneath, picked it up. We kept going down until the second-last one where I had to lift, and as I was lifting it up, um, it twisted, I twisted, and there was a lot of made up words after that…As I was lifting the tyre I felt a pop in the bottom of me back.[8]
[8]Ibid 58-59.
As can be seen from the worker’s description, what was involved did not require him to lift the entire tyre, but to lift at one side and lever it from horizontal to vertical.
To this point the facts as described by the worker were not challenged and I accept his evidence.
The tractor tyres weighed over 150 kilograms, perhaps as much as 200 kilograms or even more. There was some confusion in the evidence as to the size of the tyres. The worker agreed with an estimate that they were about 6 feet in diameter.[9] Mr Grimes was asked by Asixa’s lawyers to assume a diameter of 3.5 metres[10] but in evidence assumed a 1.5 metre diameter. Mr Dohrmann proceeds on an assumption that they were of a diameter less than 2 metres.[11] In any event nothing really turns on this as the weight, rather than the size of the tyres, was central to the difficulty that presented in the unloading.
[9]Ibid 80.
[10]A.C.N 125 830 015 Pty Ltd (Previously known as Asixa) Exhibit ‘D1(1)’, Mr Brendan Grimes, Asixa Logical Outcomes P/L ats Terry Damon (Expert Report, 18 July 2019) (‘Grimes report’) Appendix 2, [3]1.13.
[11]Bronzewing Exhibit ‘D2(2)’, Mr Ted Dohrmann, Report on Terry Damon v Kokoszko Nominees Pty Ltd (trustee for Kokoszko Family Trust) and A.C.N 125 830 015 Pty Ltd (Previously trading as ASIXA Logical Outcomes Pty Ltd) and Bronzewing Freighters Pty Ltd) (Expert Report, 17 July 2019) (‘Mr Dohrmann report’) 19 [7.13].
The worker also said that about six months before his injury, Asixa changed the way it loaded the tractor tyres.[12] He said previously they were stacked on a pallet. Transported in this way they could be and were unloaded at Bronzewing by a forklift with tines. Unloading the tractor tyres this way involved no manual handling by the worker.[13] He said that he had learnt from Mick that there was a problem because the edges of the pallet were damaging the bead of the bottom tyre. The bead is where the sidewall of the tyre is sealed with the rim. It is important to protect the integrity of the tyre that the bead in particular is not damaged. As a result of this problem the tractor tyres were no longer loaded for transport on a pallet.
[12]Transcript 7 August 2019 (n 4) 45.
[13]Ibid 45.
This aspect of the worker’s evidence was challenged by Asixa who denied that there was a period of time when it transported large agricultural tyres horizontal on pallets. Asixa instructed the expert retained by it, Mr Grimes, on the basis that the defendant denied this allegation made by the plaintiff and denied that they were advised that the tyres were too large for the pallets and were causing damage to the tyre beads.[14]
[14]Grimes report (n 10) Appendix 2, 2[1.8].
Asixa led no evidence as to its practice in transporting tractor tyres in the period between 2007 and 2011. The evidence called from Mr Brown, who purchased Asixa in November 2016 was that when he purchased Asixa it was receiving ‘about 200 pallet spacers worth of tyre freight… made up of truck tyres on pallets;…truck tyres in stillages;... car tyres loose stowed and secured, and large ag [agriculture] tyres, tractor tyres, flat down on deck’.[15] He described that they would collect tyres from many manufacturers or distributors in bulk and stage them – that is match them to orders to be transported to on-forwarders. Tyre freighting was a significant part of the business when he took over and had been growing for some years. Mr Brown said that in his time from 2016 onwards, large tractor tyres were loaded on to Asixa trucks by manufacturers using grabbers and were handled at Asixa using grabbers. He was not aware of large tractor tyres being loaded on pallets. The use of grabbers described by him in 2016 was as the worker had observed loading prior to his injury.
[15]Transcript of Proceedings, Victorian Workcover Authority v Asixa Logical Outcomes Pty Ltd & Ors. (Supreme Court of Victoria, Forbes J, 9 August 2019) (‘Transcript 9 August 2019’) 183.
Mr Brown also gave evidence of his observations as to the method of loading large agricultural tyres when working at Linfox between 1978 and 1993. In that time, Mr Brown said that Linfox transported large tractor tyres horizontally and not on pallets. Mr Brown did not give any evidence as to how large tractor tyres were loaded or unloaded in the horizontal position without pallets at Linfox. It was submitted by Asixa that from Mr Brown’s evidence of subsequent and prior observations that I should infer that the system at Asixa remained unchanged and that tractor tyres of the size being handled at the time of the worker’s injury were always loaded horizontally without pallets.[16] In the circumstances, given the very dated nature of the work practices at Linfox and the lack of detail, I found his evidence of little assistance in determining how the tractor tyres were transported by Asixa in and around 2011.
[16]Transcript of Proceedings, Victorian Workcover Authority v Asixa Logical Outcomes Pty Ltd & Ors. (Supreme Court of Victoria, Forbes J, 14 August 2019) (‘Transcript 14 August 2019’) 306 (Blanden QC).
I have direct evidence of the worker and also of Bronzewing both contradicting the inference that Asixa submits I should entertain. In various answers sworn in the worker’s proceeding, Bronzewing swore that it had been advised of complaints ‘that the bead of large tyres had been damaged in transit’[17] and had advised Asixa that the tractor tyres were too big for the pallets.[18]
[17]Kokoszko Exhibit ‘P7’, Answers of the Third Defendant (Bronzewing) to the First Defendant’s (Kokoszko) Interrogatories, (Extract of Interrogatories 7 June 2019) [11].
[18]Kokoszko Exhibit ‘P5’, Interrogatories delivered on behalf of the Plaintiff for the examination of the Third Defendant together with the thirdnamed defendant’s answers, (Extract of Interrogatories 7 June 2019) (‘Kokoszko’s Exhibit ‘P5’) 3.
I accept the sworn evidence of Bronzewing that it advised Asixa that tractor tyres were too big for the pallets and that complaints of damage to the bead had been made. I accept the evidence of the worker that about six months before his injury Asixa changed the method by which it loaded tractor tyres by removing the pallets but continued to load the tyres in a horizontal stack.
Both Mr Grimes and Mr Dohrmann agreed that the weight of the tyres meant that they should be moved by mechanical means and without requiring any degree of manual handling. When transported horizontally, if palletised, this could be achieved by a forklift with either tines or a grabber attachment. When not palletised the worker described that forklift tines could not be inserted between tyres on a horizontal stack or between the tyre and floor of the trailer without the risk of damaging the sidewall and the bead. Mr Grimes, called for Asixa, accepted that if using a forklift with tines, a method of separating tyres to make an opening to permit insertion of tines without causing undue damage to tyres was required.[19] Mr Dohrmann, called by Bronzewing, also gave evidence that it was ‘impractical (if not impossible) to use a forklift at Horsham to remove tyres from the trailer without still risking damage to the tyres’.[20] Mr Dohrmann was of the opinion that ‘the fact that the tyres remained stacked flat directly on the trailer meant that if forklift tines were inserted through and between tyres to break them apart prior to lifting, then the risk of tyre sidewall damage remained.’[21] Both experts gave evidence as to alternative methods of transporting tyres. That evidence is addressed below.
[19]See Transcript of Proceedings, Victorian Workcover Authority v Asixa Logical Outcomes Pty Ltd & Ors. (Supreme Court of Victoria, Forbes J, 8 August 2019) (‘Transcript 8 August 2019’) 121.
[20]Mr Dohrmann report (n 11) 19 [7.4]; Mr Dohrmann repeated this in viva voce evidence, see Transcript 14 August 2019 (n 16) 242 [26] – [29].
[21]Mr Dohrmann report (n 11) 19 [7.6]; Mr Dohrmann repeated this in viva voce evidence, see Transcript 8 August 2019 (n 19) 242.
Thus, the change in the way Asixa loaded tractor tyres onto the trucks meant that the method of unloading at Bronzewing, a system that was entirely mechanical and required no manual handling on the part ofworker, was no longer possible.
Duty of care owed to the worker
It was accepted by the parties that the worker’s employer owes him a duty of care. That duty is non-delegable. It is:
If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.[22] The employer must take into account the possibility of thoughtlessness or inadvertence or carelessness, particularly in the case of repetitive work.[23]
[22]Czartyrko v Edith Cowan University (2005) 214 ALR 349 (‘Czartyrko’), 353 [12] quoting Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337 342 (Taylor J).
[23]Czartyrko (n 22) 353 [12] quoting Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337, 342-3 (Taylor J); Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, 218 (Gibbs J); Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 500 [128] (Kirby J).
It was also accepted that the worker had to act with regard for his own safety and that if he acted negligently, then the liability of other tortfeasors is reduced by his contributory negligence.
Bronzewing accepted that it owes a duty as occupier to take reasonable care for the safety of persons on their premises, including the injured worker.[24]
[24]Bronzewing Freighters Pty Ltd, ‘Outline of Submissions on behalf of the Second Defendant’, Submission in Victorian Workcover Authority v Asixa Logical Outcomes Pty Ltd & Ors., S CI 2017 05054, 13 August 2019, 57.
Asixa submitted that it did not owe any duty of care to the injured worker. It submitted that the court should be careful not to commence the inquiry with consideration of what steps by Asixa might have been taken which could have prevented injury to the worker, because that would be to consider breach without first focusing on the existence of a duty of care or its content. In Kuhl v Zurich Financial Services Australia Ltd & Anor (‘Kuhl’) to which I was referred, French CJ and Gummow J said:
Two things must be said as to the formulation of a duty of care and its scope and content. First, there is an inherent danger in an action in negligence to look first to the cause of the damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content.[25]
…
The second point is that the formulated duty must neither be so broad as to be devoid of meaningful content[26] nor so narrow as to obscure the issues required for consideration.[27]
Does Asixa owe a duty of care?
Asixa entered contractual arrangements with Kokoszko and Bronzewing for freight transport. Because of those contractual arrangements it submitted that it had no ‘direct relationship’[28] with the worker, who was the employee of an independent contractor. Asixa submitted that the absence of a direct relationship meant that it did not owe a duty of care at all, or alternatively if it did then any duty was in no way similar to the duty owed by the employer or the occupier.[29]
[25]Kuhl v Zurich Financial Services Australia Ltd & Anor. (2011) 243 CLR 361 (‘Kuhl’) [19].
[26]Ibid citing Vairy v Wyong Shire Council (2005) 223 CLR 422, 577 [73].
[27]Ibid [21] citing Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 290 [103]; Fleming, The Law of Torts, 9th ed (1998), 99 117-118.
[28]Transcript 14 August 2019 (n 16) 296 (Blanden QC).
[29]A.C.N 125 830 015 Pty Ltd (Previously known as Asixa Logical Outcomes Pty Ltd), ‘Submissions on behalf of the First Defendant’, Submission in Victorian Workcover Authority v Asixa Logical Outcomes Pty Ltd & Ors., S CI 2017 05054, 14 August 2019, 12 [37].
Asixa had no employment relationship with people engaged by the companies with whom it contracted. However, the absence of a ‘direct relationship’ with the worker does not compel the conclusion that no duty arises. The existence of a duty of care is determined by the twin concepts of reasonable foreseeability and proximity in the relationship between the parties.[30] While much of the activity in transporting the freight was undertaken through the engagement of independent contractors, Asixa directly undertook some tasks associated with the freight transport that it arranged. In particular, it loaded the trucks for transport. In my view it is reasonably foreseeable that truck drivers transporting freight might be injured by their participation in Asixa’s commercial freight forwarding activity, if reasonable care was not taken by it in the manner of loading the truck that they are to drive. This much is clear regardless of who might employ the truck driver. On this basis a duty of care is owed to the worker.
[30]As outlined by Deane J in Jaensch v Coffey (1984) 155 CLR 549.
The next question is the content of that duty of care. Asixa does not owe the worker an employer’s duty to take reasonable care and to ensure that care is taken by others, even if it does owe this duty to any other drivers that it might employ. Asixa is not his employer at common law or for the purposes of the Occupational Health and Safety Regulations 2007. Nor is the duty formulated as that of an occupier because the duty does not arise because of the worker’s presence at the warehouse premises. The content of a duty to workers by those who arrange an enterprise through the use of subcontractors is discussed in Stevens v Brodribb[31] (‘Brodribb’) and considered in Leighton Contractors v Fox[32] (‘Leighton Contractors’). In part it is from principles set out in these authorities that the content of Asixa’s duty to the worker is identified.
[31](1986) 160 CLR 16 (‘Stevens’).
[32](2009) 240 CLR 1 (‘Leighton Contractors’).
The facts of Brodribb are often outlined. Brodribb’s logging operations on the Errinundra Plateau were conducted by the engagement of fellers, sniggers and truck drivers. Mr Stevens, a truck driver, was injured when struck by a log being pushed up a ramp by a snigger, Gray. By the time of the High Court appeal, the negligence of Gray was admitted. A number of issues fell for determination. The first issue was whether Stevens and Gray were employees of Brodribb or independent contractors. They were held to be independent contractors. This disposed of arguments that Brodribb was vicariously liable for Gray’s negligence. A second issue was whether a duty arose because of an exception to the rule that a principal is not liable for the negligence of his independent contractor. The court determined that an exception, applying to extra hazardous activities, had no place in law here. The final questions remaining were: whether Brodribb was under a general common law duty of care and, if so whether it was a personal (non-delegable) duty.
As to the existence of a duty, Mason J said:
It is plain that Brodribb could reasonably foresee that there was a real risk that a worker carrying out Stevens’ duties would sustain an injury of the kind that occurred. It is equally plain that a relationship of proximity existed between Brodribb and the individual worker sufficient to ground a common law duty of care.[33]
[33]Stevens (n 31) 30.
The content of that duty, described with reference to the way in which Brodribb managed the ‘interdependence of the activities’ of logging and the need for ‘co-ordination’[34] of those activities, called for the prescription and provision of a safe system of work by the independent contractors:
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 provide a safe system of work.[35]
Mason J found that the duty so described had not been breached because the system of work that Brodribb had devised - was not shown to have been negligent.
[34]Ibid 31.
[35]Stevens (n 31) 31.
Brennan J, agreeing with Mason J, described the existence of the duty of care in this way:
An 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 the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman) …
He continued, describing its content as:
…and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation 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.[36]
Brennan J found that Brodribb was not in breach of its duty to organise the activity of loading the logs by leaving problems associated with loading to the independent contractors to resolve.
[36]Ibid 47-48.
The High Court returned to this question of a principal’s liability to a person injured by the negligence of an independent subcontractor in Leighton Contractors. There, liability of the head contractor on a construction site was sought to be established for injuries sustained by one subcontractor as a result of negligence of another subcontractor. The court said:
The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees.[37] However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.[38]
It then set out the passage of Brennan J’s judgment set out above at paragraph 35.
[37]Leighton Contractors (n 22) 11 [20] citing Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.
[38]Ibid 11 [20].
It was not disputed that Leighton owed a general duty of care to Mr Fox. That duty did not arise because of the legal relationship between principal and contractor. It derived from the principal’s status as an occupier and required it to take reasonable care for the safety of persons coming on to the site. At issue was whether the content of the duty encompassed either vicarious liability for the negligence of a subcontractor, or a duty to provide training and safe work methods to all persons coming on to the site. In these ways Mr Fox sought to establish that he was owed a duty that was ‘akin to that of an employer.’ [39] It was in this context that the Court said:
The relationship between principal and independent contractor is not one which of itself gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken.[40]
[39]Ibid 13 [24].
[40]Ibid 22 [48].
Leighton Contractors specifically said of a duty to workers who are not employees that the law does not impose a duty ‘of the kind which they owe their employees.’[41] It also recognised that specific circumstances, such as those identified in Stevens, might give rise to a duty to use reasonable care to ensure that system of work for one or more of the contractors is safe. In those circumstances it described a duty that would then be ‘akin to that of an employer’.[42] In Leighton Contractors the trial judge’s finding that the activity of line cleaning following concrete pumping was a self-contained activity that did not require co-ordination with other activities on site was not disturbed on appeal. Therefore no Brodribb described duty of care arose.
[41]Ibid 11 [20].
[42]Ibid 13 [24].
Similarly in Kuhl, the injured worker sued two contractors engaged by his employer (Transfield) for injury. Mr Kuhl’s arm was sucked into a hose as it was passed to him. The hose was supplied by one contractor (WOMA) and handled by the employee of the other contractor. He established at trial that WOMA owed him a duty of care, but failed to establish breach or causation. On appeal the majority accepted a narrow formulation of duty, holding that it did not include a duty to provide Mr Kuhl with a safe system of work. The High Court unanimously found that a duty existed because it was reasonably foreseeable that different workers whether employed by Transfield or the contractors might work on the type of task that the injured worker was performing and so had a duty to provide the hose, truck and associated vacuuming facility that would not subject foreseeable users of the hose to an unreasonable risk of injury.
I was also referred to Miljus v WatpowConstructions[43] (‘Miljus’). In that case Watpow as head contractor of a building site was said to owe a duty of care as occupier. The duty was said to include that the occupier provide and maintain the roadway leading to the building site as a safe means of access to the premises. The claim was brought by a worker injured when the concrete truck that he was driving overturned on the road leading to the construction site. The case did not extend an occupier’s duty owed to an independent contractor delivering goods to one in respect of the safety and maintenance of a public road. The trial judge held that neither the injured worker nor his employer could be described as independent contractors of Watpow and so no duty as contemplated by Brodribb arose. In considering the application of the test of an entrepreneur posed by Brodribb on appeal, it was concluded that if application of that test did not give rise to responsibilities involved in the system of work by subcontractors on site, then it could not give rise to such a duty in relation to activities away from the site. Miljus was an unusual set of facts to which the principles of Brodribb were applied in an orthodox fashion.
[43](2012) 82 NSWLR 597.
What is the content of Asixa’s duty?
Asixa did not entirely organise the freight transportation activity into the hands of independent contractors. It took it upon itself to load the trucks. Asixa’s duty required it to take reasonable care in its own acts or omissions. The fact that the worker is also owed a duty by his employer, does not negate a duty of care owed by others who interact with the worker only because of their contractual arrangements with his employer. Asixa has a duty to load trucks taking reasonable care that in so doing it avoided exposing the worker to unnecessary risk of injury and it minimised other risks of injury.
Asixa was in the business of organising freight transportation. In one sense this activity might be described as that of an ‘entrepreneur’ as the word was used by Mason and Brennan JJ in Brodribb. The content of it’s duty then may be determined in part by looking at whether the activities associated with freight transportation were interdependent or involved any retained supervision or co-ordination, or otherwise prescribed respective areas of responsibility of the contractors it engaged. Without some of these elements being present, the duty to the worker with respect to the safe work practices of other contractors would be discharged by organising the activity into the hands of competent independent contractors.
In my opinion the transportation of freight is an activity requiring interdependence. Loading cannot be done in isolation. It is part of a chain of events where loading, transit and unloading all form parts of an interconnected activity. The evidence demonstrated that Asixa used a forklift with grabbers to move both palletised and unpalletised goods. The placing of goods on pallets served no purpose in the method of loading that it employed. However the presence of pallets recognised that some of the freight might be unloaded by others using a forklift with tines. In palletising parts of the load, Asixa acted in a way consistent with having in mind considerations associated with transit and unloading but without prescribing any particular systems.
Asixa prescribed the manner of loading doing so directly and not by engagement of a subcontractor. All the evidence pointed to the conclusion that manual handling of the tractor tyres was to be avoided and the only safe way to handle them was by mechanical means. So long as Asixa was loading the tractor tyres in a manner that permitted mechanical unloading then its duty to take reasonable care was discharged. When loaded on pallets, this duty was not dependent on Asixa knowing of, much less imposing upon its contractors, particular systems using tines or grabbers or indeed any other method to unload. It does not impose an obligation to organise or direct the work systems of others so that it is made liable for the negligence of those contractors. The content of Asixa’s duty of care is informed by its own actions engaged in the interconnected activity that it arranged. The duty does require that it have regard for whether the freight that it loads is able to be unloaded appropriately by those with whom it contracts.
Breach of Duty
A finding about breach is a finding of fact as to whether or not reasonable care has been taken. It is a prospective not a retrospective inquiry. As was said by Hayne J in Vairy:
When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.[44]
The adequacy of the response required to meet the duty of care is measured by reasonableness not by whether it would prevent injury.
[44]Vairy v Wyong Shire Council (2005) 223 CLR 422, 461 [126].
Kokoszko
All parties before me submit that Kokoszko is a party who is or would have been liable in respect of the injury. The worker’s evidence was that he told Marian, his boss, of the way in which he was manually handling the tyres to assist in unloading them once they were no longer palletised. He also said that Marian on occasion, when the worker took holidays, would stand in and drive the truck so would have known about the methods of unloading. He said he received no training in methods of manual handling. He said in response to informing his boss of the problem presented by the way he was assisting with the unloading he was told ‘Terry, I’m not there; you are. Deal with it’.[45] The worker accepted that he was required by his employer to provide help in the unloading of the freight and he could see no other way of getting the tyres off the stack.[46] While the employer had no control over either the system of loading or unloading, it had a non-delegable duty to provide a safe place of work, system of work and equipment for performing the work. That duty involved two elements: to take reasonable care itself, and to ensure that reasonable care was taken by others including Bronzewing and Asixa.
[45]Transcript 7 August 2019 (n 4) 72.
[46]Ibid 95,103.
Given the weight of the tyres and the evidence that there was no safe way of manually unloading them, the employer could discharge its duty to take reasonable care itself by either adequately instructing the worker that he was not to provide any manual assistance with unloading such items or simply prohibiting him from providing any assistance to the forklift driver. To do so would not have removed the problem of unloading the tyres, but would have substantially removed the risk of injury to its employee. The obvious nature of the risk of injury posed and the simple response of instruction not to perform the task means that the employer has clearly breached its duty of care. Further, the duty to ensure that reasonable care was taken by others required communication with Asixa and Bronzewing of the fact that their systems of loading and unloading were now causing the worker to manually handle items that should be handled by mechanical means.
The employer’s duty is discharged by taking reasonable steps. In this case the evidence discloses that the employer took no step either to prohibit manual handling or to communicate any instructions given to the worker of the risk of injury. Nor was anything said by the employer to Asixa with whom it contracted or Bronzewing where it delivered to. In my view, ensuring reasonable care was taken by others did require the employer to take some action beyond instruction to its employee. Reasonable steps required, at the very least, communicating that the systems posed an unacceptable involvement by its employee in manual handling and/or communicating that it had prohibited its employee from undertaking any manual handling of tractor tyres where such systems are continuing. A reasonable response might also be informed by any contractual terms although the relevant contracts were not in evidence before me. In discharging the onus to ensure that reasonable care was taken any instruction or prohibition to the worker should also have been communicated to Asixa and Bronzewing. I find Kokoszko in breach of its duty to the worker.
Asixa
As outlined above, Asixa owed a duty to truck drivers to ensure that it loaded their trucks in a manner that permitted unloading methods that minimised the risk of injury. The duty did not involve prescribing the system of work to be used when unloading. There was no evidence that Asixa had any knowledge of the arrangements for unloading prior to the complaints made. However, once Asixa became aware that the method of loading it now used no longer permitted mechanical unloading and required the intervention of some manual handling, then it acquired knowledge of a risk of injury created by its own method of loading. Therefore it had to ensure that its method of loading still minimised or removed the risk of manual handling associated with unloading. At the very least that involved assessing whether its change of system to protect the tyres from damage created a risk of injury to truck drivers.
By removing the pallet Asixa removed one method of mechanical handling for unloading. The change was directed as removing the risk of damage to the tyre bead but had no regard for the mechanical handling consequences that might result from that change. For its own loading practices, the change made no difference to mechanical loading, but it ought to have known and ultimately did know that removing the pallet narrowed the available methods for mechanical unloading. It did not require any intrusion into or supervision of the work practices of its independent contractors, or any assumption of responsibility for them. Rather questions of breach direct attention to its own work practices.
It was not incumbent on Asixa to load vertically as requested by Bronzewing and the worker, but if it determined that horizontal transport was a safer method of transport, then it had to contemplate that means of mechanical unloading without a pallet were nevertheless still available to its contractors. The fact that it did not owe a duty ‘akin to an employer’ in the sense contemplated by Leighton Contractors meant it could not for example prescribe for its contractors its own system of use of a forklift with grabbers. Given the existence of the duty, it could not simply ignore complaint. I accept the evidence of the worker that Joe, the production manager at Asixa was told of the problem unloading and agreed that either vertical transport or keeping use of the pallet but placing a plywood sheet on it were alternative ways of addressing the problem of tyre damage.[47] Both of these methods would have retained the ability for tyres to still be unloaded as well as loaded by existing mechanical means.
[47]Transcript 7 August 2019 (n 4) 50.
The evidence disclosed that Asixa took no action in the face of reports and complaints. Certainly on becoming aware that its actions created a risk of injury where none existed previously, taking no action was not a reasonable response. I find Asixa was in breach of its duty to the worker.
Bronzewing
Bronzewing concedes that it was aware of the system of work implemented by the employer that required the worker to assist with unloading. It was aware that this assistance included manual handling of the tractor tyres once the pallet was removed. It also concedes breach by them, insofar as it was open to them on becoming aware of the unsafe work being carried out to refuse to unload the goods at all. Bronzewing did raise with Asixa that delivering the tractor tyres vertically would permit it to mechanically unload using existing equipment. Without reaching an agreement about this, it nevertheless had a continuing obligation to devise a safe method of continuing to unload at the premises or refuse to unload the goods. The method it devised or allowed to continue, required no substantial manual handling by its employee and was effective only because it permitted the unsafe manual assistance provided by the worker.
The evidence of Bronzewing in the workers’ proceeding in answers to interrogatories was that its manager,
…Darren Fenwick, telephoned an employee of …[Asixa] requesting that the large tractor and similar tyres too large for loading onto a pallet be stacked vertically so they could be unloaded by forklift without damaging the tyres. Further, prior to the incident ….[Bronzewing’s] forklift driver had made requests to …[Mr Damon] for him to convey to …..[Kokoszko and/or Asixa] that the tyres should be loaded so they were standing vertically, rather than on top of each other. [48]
[48]Kokoszko Exhibit ‘P5’ (n 18) 1; See also Kokoszko Exhibit ‘P6’, Interrogatories delivered on behalf of the Second Defendant for the examination of the Third Defendant together with the third defendant’s answers, (Extract of Interrogatories) 27 July 2019.
In light of the fact that the unloading was a contractual matter between Bronzewing and Asixa a reasonable response required more than asking the worker to request a change in the system of work used to load the trailer. It was in my view incumbent upon Bronzewing to make its own requests of the entity with whom it contracted. Although Bronzewing did make one such request, a reasonable response required more intervention. Absent a response or agreement being forthcoming, a reasonable response was to turn its mind to an alternative safe method of how mechanical unloading could be achieved that would allow continued delivery. I find Bronzewing was in breach of its duty to the worker. The breach lay by permitting the continued practice of unloading by forklift and manual handling without either making adequate representations to Asixa that its change presented unsafe unloading conditions at its premises and, failing agreement with Asixa, by taking no steps to implement an alternative safe method of unloading.
The worker – contributory negligence
The allegations of contributory negligence by the worker were only faintly pressed. If I accept as I do, that he was following the instruction of his employer to assist in the unloading, and that the occupier permitted a system requiring manual handling by him to assist in unloading the tractor tyres, then it was submitted that I should be slow to find contributory negligence by the worker.
Consideration of contributory negligence proceeds on the basis that a defendant has been found negligent. Where contributory negligence of an employee is alleged then it is relevant to consider the circumstances in which he or she is required to perform duties and the employer’s obligation to provide and maintain a safe system of work including a system that takes account of inadvertence, misjudgement. As was said in McLean v Tedman:
The issue of contributory negligence has now to be approached on the footing that Brambles failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorists’ negligence and the employee’s failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterised as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognised distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account.[49]
[49](1984) 155 CLR 306 315 (‘McLean’).
Typically, the possibility of ‘mere inadvertence, inattention or misjudgement’[50] by workers are to be recognised in devising and enforcing a safe system of work. In this case the worker seemed to be neither inadvertent nor lacking attention to the task. Rather, left without any direction or system by his employer and unable to contemplate any way of completing the unloading other than that which Bronzewing tolerated, his action moving such a heavy object in my view was a clear misjudgement on his part. As he said in evidence when it was put to him that he knew before he moved it that there was a significant risk that he could hurt himself by moving it, he answered, ‘No because I wasn’t lifting the whole tyre’.[51] He said that while he appreciated a risk, had he thought about it clearly and carefully he disagreed with the suggestion that he wouldn’t have tried to do it, saying ‘I probably still would have done it, because it had to be done.’[52]
[50]Ibid 315.
[51]Transcript 7 August 2019 (n 4) 70.
[52]Transcript 7 August 2019 (n 4) 71.
I find that the worker’s conduct in adopting the system of levering the tyres off the stack into a vertical position does not amount to a negligent lack of care for his own safety. First, he did not appreciate that the increasing difficulty as he moved lower down the stack posed an increased risk of injury.[53] Second, he said and I accept that he did not appreciate the extent of the risk, despite the weight involved, because he was not attempting to lift the full weight. Third, he said that he could not think of any other way of unloading the tyres.[54] Fourth, he did raise his concerns and complained about the manner of unloading with three entities, all of which owed him a duty to respond in a reasonable way to the risk of injury to him that now existed, and none of them responded to him adequately or at all. In all the circumstances I would fairly characterise his actions as a misjudgement while working to the system devised or tolerated by the employer and Bronzewing, not as a failure to have reasonable regard for his own safety.
[53]Ibid 72.
[54]Ibid 103.
Apportionment of Responsibility
Having determined that each of the employer, Asixa and Bronzewing are in breach of their respective duties of care to the worker, it remains to consider the extent to which the act, default or negligence of each caused or contributed to the injury sustained by the worker..
The principle for determining relative responsibility is set out in Podrebersek v Australian Iron & Steel Pty Ltd[55] (‘Podrebersek’). It is:
…a finding upon a ‘question, not of principle, or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’.[56]
[55](1985) 59 ALR 529 (‘Podrebersek’).
[56]Ibid 532 quoting British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201.
Although Podrebersek concerned an apportionment between a negligent defendant and a contributorily negligent employee, it is equally relevant in determining an apportionment as between defendants. It was said that the making of an apportionment of respective share in the responsibility for damage involves two elements:
a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage….It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.[57]
[57]Podrebersek (n 55) 532 - 533 [50].
The duty of care of the three identified tortfeasors in this case each arose out of different relationships with the worker. Each duty differed as to what reasonable care required in all the circumstances. Once breach is established, culpability is measured by the level of departure from the relevant standard of care, and the causal importance of the negligent conduct in the accident circumstances.
The employer’s departure from the standard of care is significant. It encompasses a failure to provide adequate instruction or impose a system of work so as to preclude manual handling assistance to freight that could only safely be managed mechanically. A prohibition was a relatively simple and straightforward means of discharging this duty. Where the work involves driving and working at sites remote from employer supervision, proper instruction is vitally important. Wider considerations of culpability arising by reason of the non-delegable nature of the duty to ensure that care is taken by others, is more difficult. Beyond the power to prohibit the worker’s participation in unsafe activity created by Asixa or Bronzewing, the employer’s reasonable steps to ensure care is taken by them is likely to be limited to the registering of complaints or discussion with third parties. It cannot impose a broader solution. Although the employer did not take any such step,[58] complaints by others to Asixa fell on deaf ears and the worker’s complaints to Bronzewing also lead to inaction by it. In those circumstances the level of causal potency of the employer’s breach of its duty to ensure that reasonable care is taken is lessened. In all the circumstances I would apportion 30% to the employer.
[58]Transcript 7 August 2019 (n 4) 94.
The culpability of both Asixa and Bronzewing is also direct inaction in the face of specific complaint. Each of Asixa and Bronzewing have acted in a way that contributes significant causal potency to the injury. As was described by Mr Dohrmann, the decision of Asixa to load tractor tyres horizontally but not on pallets was the ‘root cause’ of the events leading to the worker’s injury. Asixa knew of the manual handling problem that arose with unloading but took a view that, although a problem of its making, it had no responsibility to address the problem. Bronzewing was aware through both observation and report of the situation since Asixa’s changed loading procedure. It knew that the forklift driver could not unload the tractor tyres without manual handling assistance provided to him by the worker on the back of the truck. It permitted the worker coming on to the premises to participate in the unloading work it was responsible for undertaking. It was in a position to supervise the work performed by its employees and those assisting them. Asixa and Bronzewing both had knowledge that their actions created or maintained a risk of injury to the worker. The knowledge required a response by them but none was forthcoming. Bronzewing’s immediate supervision and direction of the unloading operation and permitting it to continue, in my view places apportionment of its responsibility at 35%.
There was expert evidence as to various ways that the tyres could be transported, loaded and unloaded without recourse to manual handling of the tyres. These alternatives canvassed six options: forklift with grabber attachment, forklift with long tines and a double pallet, a plywood sheet over pallet to extend the surface area on which the tyres sat, the ‘chock’ method, stillage or cages, or vertical stack restrained.
The worker gave evidence of alternate ways of transporting the tyres that he had requested or suggested; either stacked vertically and restrained, or by using a sheet of plywood between the pallet and bottom tyre stacked horizontally. He said that he had observed tractor tyres loaded vertically at Asixa.[59] Bronzewing swore in answer to interrogatories that ‘For a short time prior to …..[Asixa] ceasing trading, it loaded some of the large tractor tyres onto 2 pallets across the truck enabling the load to be unloaded by forklift with an extension to the tynes.’[60] I accept the evidence of his observations. It demonstrates that alternative methods of transport were feasible. It does not take matters any further than that.
[59]Transcript 7 August 2019 (n 4) 52; 53; 62.
[60]Kokozsko Exhibit ‘P5’ (n 18) 4.
Mr Grimes and Mr Dohrmann each gave evidence of their opinion as to alternative methods of loading. Both agreed that a mechanical means of loading that eliminated manual handling was preferable and possible.
Mr Grimes in his first report expressed the view that:
…unloading and loading should be performed using mechanical means (such as forklifts) and be performed with care and control. Lifting and carrying tyres via the inner rim need [sic] to be avoided as this is likely to damage the beads. Tyre handling attachments such as the rubber-coated grabber attachment (like a bale clamp) used by Asixa should be used on forklifts to handle these tyres.[61]
[61]Grimes Report (n 10) 4 [7.5].
The difficulty I have with Mr Grimes’ opinion is that it is based on the facts he was asked to assume: that Asixa always transported tractor tyres horizontally and that it always did so without pallets. As a result, his first report fails to grapple with the fact that the tyres, when transported on a pallet could be loaded and unloaded by a forklift with tines just as easily as with a grab attachment.
Mr Dohrmann expressed the view that double pallets, which are common in industry, could have been used, eliminating the problem of tyre damage and permitting unloading by forklift with suitably long tines. Mr Grimes agreed that double pallets as proposed by Mr Dohrmann might be appropriate. I do not accept Mr Grimes’ reservation about weight and size, as they are not informed by the simple fact that the weight of the tyre stack had been adequately catered for by an ordinary pallet, albeit causing damage to the tyre bead. Once it is accepted that the weight of the tyre stack had been accommodated by an ordinary pallet, then Mr Grimes’ adoption of the opinions expressed to him by Mr Brown (that steel fabricated pallets of 2.2 metres would be required), cannot be accepted. Much of Mr Grimes’ evidence was in truth no more than a repetition of the views expressed to him by Mr Brown in conference. For example it was Mr Brown who suggested a ‘chock method’ of removing tyres stacked horizontally without a pallet. Mr Brown’s suggestion involved closing the tines so they were together and ‘nudging’ them between the stacked tyres in order to place a ‘chock’ between each tyre to create a space in order to insert the tines and lift the tyre. There was no evidence that such a method was used by anyone in the industry. The worker was not aware of such a method[62] and could not see how such a method would work.
[62]Transcript 7 August 2019 (n 4) 78.
Mr Dohrmann’s opinion was based on the assumed fact that the tractor tyres had been transported on standard pallets and that Asixa removed the pallet and continued to stack horizontally but directly onto the floor of the trailer. His evidence was that double pallets could have been used and double pallets are very common in the industry. He accepted that a grabber attachment would be an appropriate tool but that vertical stacking with proper restraint was also a reasonable alternative.
I accept Mr Dohrmann’s opinion that there were reasonable alternatives that would permit tyres to be stacked horizontally – by plywood extension or by double pallets both of which would have permitted mechanical unloading with or without a grabber attachment. I also accept that vertical loading with proper restraint was a method that could be employed with a lower risk of injury. I have noted above, the worker’s observations regarding vertical stacking by Asixa and note that Bronzewing transported the tractor tyres to their forward destination, stacked vertically and restrained.
It was submitted that the purchase of a grabber attachment by Bronzewing would have been a reasonable course for it to adopt. The evidence about this was far from satisfactory. Both Mr Grimes and Mr Dohrmann expressed an opinion about the likely cost. Both initially estimated figures at about $3,000.00. Ultimately Mr Grimes’ estimate was simply based on what he was told by Handling Systems Australia, a distributor in response to a fairly general inquiry. He assumed that the cost he was given was for an attachment similar to the photograph he was provided with.[63] Mr Dohrmann resiled from his original estimate after making late inquiries with Handling Systems Australia. His evidence was that he had been told that attachments with specifications provided by him would cost between $40,000 to $45,000. Asixa provided no evidence of the make and model or the cost of the grabber attachment used by it. Ultimately the disparity in the evidence as to cost and the perilous foundation for the costs estimates don’t permit me to be satisfied that purchase of a grabber attachment was a reasonable response for Bronzewing in response to the risk of injury.
[63]Bronzewing Exhibit ‘D2,2’, Brendan Grimes, Asixa Logical Outcomes P/L ats Terry Damon, (Expert Report, 1 July 2019) 3 [1.12].
Asixa submitted that horizontal stacking was safer than vertical as it was more stable based upon the evidence of Mr Stuart Brown.[64] Given that Asixa determined to continue transporting horizontally and given that there were reasonably simple, practical and commonly used methods of doing so which would result in no changes to the available methods of mechanical unloading, the causal potency of Asixa is, in my view of significance. I apportion Asixa’s liability at 35%.
[64]A.C.N 125 830 015 Pty Ltd (Previously known as Asixa Logical Outcomes Pty Ltd), ‘Submissions on behalf of the first defendant’, Submission in Victorian Workcover Authority v Asixa Logical Outcomes Pty Ltd & Ors., S CI 2017 05054, 13 August 2019, 15[48].
I have been informed that Factor C for Asixa is $170,000 and for Bronzewing Factor C is $286,875. Therefore the application of the formula for Asixa’s liability is $1,700,000 -$170,000 x 35% . Application of the formula for Bronzewing’s liability is $1,700,000 - $286,875 x 35%.
I will hear the parties on the appropriate form of orders and as to costs.
SCHEDULE OF PARTIES
S CI 2017 05054
VICTORIAN WORKCOVER AUTHORITY Plaintiff
- and -
A.C.N 125 830 015 Pty Ltd
(Previously known as ASIXA LOGICAL OUTCOMES PTY LTD) First Defendant
BRONZEWING FREIGHTERS PTY LTD Second Defendant
0
6
0