VWA v Boral
[2020] VCC 121
•31 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-01056
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| BORAL LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5-6 September 2019, 10-11 September 2019 and 28 October 2019 | |
DATE OF JUDGMENT: | 31 March 2020 | |
CASE MAY BE CITED AS: | VWA v Boral | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 121 | |
REASONS FOR JUDGMENT
---
Subject: RECOVERY PROCEEDINGS
Catchwords:
Legislation Cited: Accident CompensationAct1985; Wrongs Act1958
Cases Cited:VWA v Kenman Kandy Pty Ltd [2002] VSCA 190; VWA v AV Jennings Ltd [2002] VSCA 190; Esso Australia v VWA & Anor [2000] 1 VR 246; VWA v Carrier Air Conditioning Pty Ltd [2006] VSCA 63; Hazeldene’s Chicken Farm Pty Ltd v VWA [2005] VSCA 185; Jones v Dunkel (1959) 101 CLR 298; Sagacious Legal Pty Ltd v Wesfarmers General Insurance Limited [2011] FCAFC 53.
Judgment: Proceeding dismissed
---
APPEARANCES: | Counsel | Solicitors | |||
| For the Plaintiff | Ms C Willshire | IDP Lawyers | |||
| For the Defendant | Mr D Masel SC with Ms K Gladman | Lander & Rogers |
HIS HONOUR:
Introduction
1 Schiavello Constructions (“Schiavello”) was the builder of a boutique apartment complex on the corner of Millswyn Street and Domain Road, South Yarra (“the site”). Schiavello engaged a company called Meridian Concrete Australia (“Meridian”) to look after all of the concreting works[1] including responsibility to arrange the supply of the concrete to the site from the defendant Boral Limited (“Boral”).[2] Meridian was responsible for arranging the pumping of the concrete which they did from Concrete Pumps Australia (“CPS”).[3] Meridian was charged with the general supervisory responsibility to look after the site while the concreting activities were taking place.[4] CPS supplied the pump and hopper through which the concrete passed.
[1]Transcript (“T”) T 37
[2]T37
[3]T37
[4]T37
2 Mr Aset Dharda (“the worker”) was employed on the site. He was employed as a concrete foreman by Meridian.
3 By April 2012 the worker had been on the site for approximately three months.[5]
[5]T11
4 On 4 April 2012 the worker suffered injury on the site when struck by a concrete pump hose that “whipped” during the course of a pour of concrete.
The injury
5 The worker suffered an aggravation of his degenerative cervical spine and underwent a cervical discectomy in 2013 and a severe psychological injury.
Common law proceedings
6 A common law trial was commenced by the worker against three defendants, Meridian, CPS and Boral.
7 The common law proceedings resolved.
The recovery proceeding
8 The plaintiff, the Victorian WorkCover Authority (the “VWA”) commenced proceedings to recover contributions paid to the worker in settlement of his common law proceeding. It seeks an order only as against Boral and not Meridian or CPS who were the other defendants in the worker’s common law proceeding and potential tortfeasors. Counsel for the VWA advised me that CPS was in liquidation.[6]
[6]T18
The nature of a recovery proceeding
9 The VWA is authorised at law to commence a proceeding to recover money under the provisions of s138 of the Accident Compensation Act1985 (“the Act”).
10 The purpose underpinning s138 of the Act is to enable an employer or its insurer, in this instance the VWA, to recover compensation paid to an injured worker from a non-employer who would be liable to that injured worker. A formula is prescribed under the Act to limit the third party’s liability to that which it would have been liable if the worker had sued the third party at common law. The claim is not one for damages or a debt but is a recovery action prescribed under statute.
Formula prescribed under the Act
11 Pursuant to a formula provided under the Act, the Court is required to calculate the worker’s notional common law assessment of damages under Factor A. The Court must then take from the notional assessment any amount the defendant has paid the injured worker in his claim under Factor C; and the Court must then divide Factor A, less Factor C, by the extent to which the third party would be liable at common law under Factor X. In other words, any liability of an employer, or third party or contributing negligence must be stripped away to determine the third party’s contribution.
Determining Factor X
12 In Esso Australia v VWA & Anor[7] and subsequently in VWA v Carrier Air Conditioning Pty Ltd[8], it was held that contribution and contributory negligence for the purposes of determining Factor X ought to be determined in the same fashion as contribution and contributory negligence is determined pursuant to the Wrongs Act1958. Pursuant to s24 of the Wrongs Act, the Court is required to determine contribution based on what is “just and equitable having regard to the extent of that person’s responsibility for the damage”.
[7][2001] 1 VR 246
[8][2006] VSCA 63
13 Factor X is established by application of the same principles as inform the contribution between wrongdoers. Therefore, the Court will investigate the circumstances surrounding the accident, identify those parties whose act or omissions have a causal relationship to the injury of the worker, and then determine the level of responsibility of each including the worker.
14 The test applied in a claim for contribution under Part IV of the Wrongs Act, is:
· the degree to which each of the parties has departed from the standard of conduct required of that party; and
· the relative causal potency of each of the parties’ acts in relation to the injury sustained by the worker.
15 Part IV of the Wrongs Act includes s 24 (2) which relevantly provides:
“… the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the trial is without a jury to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the jury or the court if the trial is without a jury shall have power to exempt any person from liability to make contribution, or to direct that the contribution is to be recovered from any person…”
16 There is no reason in principle why the same approach should not be adopted when determining Factor X, although a Court when it has reached the stage of determining Factor X, has necessarily determined that the compensable injury was sustained in circumstances creating a liability to pay damages in respect of the injury. In an appropriate case, Factor X, like contribution under the Wrongs Act, may be nil or 100 per cent because if a wrongdoer was solely responsible for the personal injury, it would pay 100 per cent, no matter how insignificant its breach, but if there were multiple wrongdoers, the relative responsibility may be such as the contribution was either de minimus or could be nil.
17 The determination of Factor X is a discretionary exercise: Hazeldene’s Chicken Farm Pty Ltd v VWA[9] and, accordingly, the discretion but must be exercised lawfully, having regard to relevant matters and disregarding irrelevant matters.
[9][2005] VSCA 185
Agreed facts
18 The parties agreed the following amounts are applicable to the formula under the Act:
· Factor A is the sum of $2,285,000
· Factor C is the sum of $285,000
· Factor B is in the sum of zero
· Factor X is in the sum if any to be determined by the Court.
The test in causation
19 The claims brought against Boral by the VWA are in negligence and breach of statutory duty.
20 It is not disputed that the plaintiff suffered injury. The question is the extent that Boral’s negligence was causative of, or contributed to, the plaintiff’s injury. I must be satisfied on the balance of probabilities that Boral caused the accident in the sense that its negligence was a cause of the injury to the worker.
The alleged cause of the worker’s injury
21 The VWA alleged that the worker was struck by a hose that whipped as a result of a piece of concrete that became dislodged from within the Boral agitator that contained concrete delivered by Boral to the building site. The VWA alleged that the dislodged concrete caused a blockage of the CPS pump hose and a consequent build-up of pressure within the hose with the result that the operator of the hose (an employee of CPS) lost control of it and the end of the hose struck the worker causing him to suffer his injury[10].
[10]Paragraph 7 Statement of Claim
22 The VWA alleged that the injury to the worker was caused by the negligence of Boral because it breached its duty of care owed to workers employed on the construction site including the worker[11].
[11]Paragraph 8 Statement of Claim
23 Boral at all times denied liability[12].
[12]Paragraph 8 Defence
24 At the trial of the action, the VWA was represented by Ms Willshire of counsel. Boral was represented by Mr Masel SC together with Ms Gladman of counsel. Boral principally contended that the VWA had failed to establish the mechanism of injury to the worker and, therefore, had not discharged its burden of proof on the balance of probabilities of negligence or breach of statutory by Boral.
Finding
25 I have concluded that the evidentiary case against Boral was fundamentally deficient. The paucity of evidence against Boral was a matter of concern I raised on more than one occasion in the course of the hearing. As a result, I have determined that as far as Boral is concerned, Factor X is “nil.”
26 What follows are my reasons for the decision I have reached.
The worker’s evidence of what occurred on site
27 Boral delivered the concrete to the site in an agitator cab chassis truck. The agitator was owned by Boral but the cab chassis to which the agitator was attached was owned and driven by a contractor driver, Mr Adrian Farfalla.
28 CPS also supplied and operated a separate truck to which was attached a 37-metre boom pump and hose that was used on site. The hose was described in evidence as made of rubber and had itself has a diameter of approximately 4 inches. The boom could be positioned into various degrees of angle[13] to disperse the concrete to designated spots as part of a single operation as opposed to physically bringing separate loads of concrete to the relevant location. The boom could be operated manually by the hose man who was able to point the hose to places as required but the primary movement was controlled mechanically by the pump controller using a remote controller device.[14]
[13]T27
[14]T28
29 The worker said he understood that it was important to be as far away as possible from the hose “because you don’t want the concrete hose to be close to you when you are cutting anything”[15] and he said he had been told (he thought in the course of a toolbox meeting) to keep a 3 metre mark from the hose. The worker said that a concrete pour can get interrupted because of the need to reposition the boom and it is important that no one is working under a boom when this occurs and when it does an exclusion zone is created.
[15]T15
30 The worker thought that all the workers on the site including the two CPS workers had attended the pre-start or toolbox meeting on the morning of the accident. He said it made sense for the two CPS workers to have been present because they had control of the pumping of the concrete and the control of the hose.
31 The worker was aware that blockages occur on occasion. He said that when a blockage occurs and before the pumper tries to clear the blockage the pump is stopped, and everyone is asked to move out of the way whilst the boom is lowered. However, he said he could not recall if that occurred on the day of the accident.[16]
[16]T40
32 When he was injured the worker was on his hands and knees facing away.[17] He said he believed that when he was struck by the hose, he was approximately 5 metres from the concrete pour. He said he understood that about 3 metres was the safe distance because he had been instructed to keep that amount of space to avoid the risk of being struck in the event of a whip hose. I accept the worker’s evidence on these matters. He impressed me as a reliable witness. His testimony was not contested. That being the case, it follows, that the hose from which the concrete was being poured was allowed to come closer to the worker than was safe in all the circumstances.
[17]T37
33 The concrete used on the site came out of Boral transit mixer barrel trucks. There is a chute that is placed at the back of the concrete mixer truck and the concrete passes down the chute into the hopper. The hopper was located at the back of the CPS pump truck. The worker agreed the concrete comes down the chute at a fast pace and into the hopper.[18]
[18]T26
34 The worker agreed by having regard to the location of the Boral truck on its arrival, the construction site itself, and his position, he would not have been visible to the Boral driver.
35 The worker said that the ordinary practice was that after the Boral driver unloaded the concrete into the hopper via the chute what next occurs is under the control of CPS and/or Meridian.
36 The worker described CPS’s role as “to pour the concrete, bring the concrete on the job, on the actual floor”.[19] He added that CPS had “their two men there.”[20] He said that CPS “delivered the concrete to us on the deck” where he was working.[21] He said that CPS had “one guy holding the hose” whom he identified as “Paul”,[22] and as well, there was another man whom he identified as “Albert” and “who was on the controllers”.[23]
[19]T12
[20]T12
[21]T12
[22]T12
[23]T13
37 The worker said he was aware that located on the hopper is a motor driven screw or an auger that operates to draw the concrete that is poured down the chute into the hopper and then into the pump system. A piston pump then forces the concrete through the hose and to the boom.
38 The worker said that on the morning of the accident pumping commenced at 7.00am. The best evidence is that the accident occurred some short time after 10.30am.
39 The worker said that a series of Boral transit mixers delivered concrete on site. There were 21 separate loads. Most of the deliveries of concrete that day were 7 cubic metre loads. However, there were two deliveries of 5.8 cubic metres and the final load (and the only load where a waiting time was charged) was a delivery of 3.3 cubic metres.
40 Concrete was discharged from the chute of the Boral mixer into the hopper of the concrete boom pump operated by CPS. The Boral transit mixer from which the alleged solids emerged was not identified. However, the evidence[24] that I accept is that the truck and agitator in question was designated TM (30) 344 and driven by Mr Adrian Farfalla. On that basis, the records fix the time of arrival of the transit mixer at 10.25am.
[24]Exhibit D4
41 The worker described the accident in this way:
“I went to the corner to cut those two, three remaining bars that were shooting on the slab and that’s all I remember. Then all of a sudden I felt a little bit of a jolt in my hip near my kidneys or whatever and then I must have stumbled and the workers said to me-I tried to get up and the concrete hose hit me in the back of the head and then apparently I tried to get up stumbling again and the concrete hose hit me again”.[25]
[25]T17
The course of the evidence
42 A good deal of oral and written evidence was adduced. The documentary evidence was principally distilled by the VWA and consisted of attachments to a statement of expert witness evidence it relied on from Mr Robert Munn, a Civil Engineer. Boral relied on attachments from an expert statement it obtained from Mr David Bond, a man with many years of practical experience in concrete pumping. Although Mr Bond’s expert statement of opinion was not tendered and he did not testify, Mr Munn had recourse to the opinion and concurred with much of it and it was agreed that the attachments to the statement would be received as they comprised part of the materials that Mr Munn had been supplied in the provision of his opinion.
Oral evidence additional to the worker
43 The only oral evidence adduced by Boral was from Mr Farfalla.
44 The VWA adduced oral evidence from the following persons.
Mr Buhagiar
45 Mr Buhagiar’s evidence was relevant because he gave an account of what he saw occur at the time of the injury. Mr Buhagiar was a concreter and form worker employed by Meridian.[26] He said he commenced work on site on the day of the accident at about 6.30am.[27] He described himself as performing duties akin to those of a leading hand. He said a tool box meeting would normally be held on Friday each week and that he, and Mr Dave Anderson, the foreman on site, as well as the worker, who he described as also performing foreman duties, would have a chat of a morning “but it was never anything official”.[28] Mr Buhagiar said discussions would encompass matters including whether there were any areas in which one could not work. He gave as an example that one would never work underneath a boom. He said the areas in which work was not permitted were normally barricaded and were “red flagged”.[29] He said no area was barricaded on the day of the accident and there were only four people working in the area and where the boom was coming over was not near work areas “so we were in the clear”.[30] As events transpired that was not a sufficient safeguard against injury.
[26]Meridian is a company associated with CPS
[27]T47
[28]T47
[29]T48
[30]T48
46 Mr Buhagiar described what he saw occur in this way:
“Well…because I’m on the vibrator I’m watching the concrete come out. The concrete actually stopped coming out of the hose but in the background, because the concrete pumps themselves make a really big thumping noise when they are pumping and we can always hear that going over any other noise. We can still hear the pumping but there was nothing coming out of the hose. So normally if there’s a little blockage or something, you just give the hose a bit of a shake and it keeps coming out again. Well, the pumpy gave the hose a shake. Nothing happened. Next minute there was this almighty, like, a bang. The concrete then shot out flat out. It covered me in concrete. Lucky I didn’t get hit by anything but it covered me in concrete. With the pressure, it someone back, it’s pushed the pumpy operator out the way and the hose continued through to hit Aset…
He got thrown to the ground. He got like, thrown back and down on to the ground”.[31]
[31]T50-51
47 Mr Buhagiar said when the accident occurred he had been standing approximately “two metres away, not even, in front of the hose”.[32] He said he was engaged in his work and was operating the vibrator machine that flattens concrete as it comes out of the hose. He said he watched the concrete come out of the hose. He said he then observed that the concrete had stopped coming out of the hose. He said that “the concrete pumps themselves make a really big thumping noise when they are pumping and we can always hear that going over any other noise”[33] and, although he could still hear the pumping, nothing was coming out of the hose. He said that if a blockage or something of the sort occurs, “you just give the hose a bit of a shake and it keeps coming out again”.[34]
[32]T 49
[33]T50
[34]T51
48 Mr Buhagiar identified the “pumpy” (a person who was also referred to in the evidence as the “hose guy”) as Paul Ozzimo.[35] He said that Mr Ozzimo had been holding the hose on his shoulder and was thrown on an angle by the force of the pressure. He said another person was working with Mr Ozzimo that day, but he could not remember his name other than that “he was the guy on the street, pretty much, controlling the pump downstairs”.[36]
[35]This is a different task to that performed by the “Pump Operator”.
[36]T49
49 Mr Buhagiar described the mixture he saw come out of the hose as “wet concrete and a lot of chunks”[37] and “Dry concrete”.[38] In terms of the number of chunks he thought there was “a good half a dozen”[39] or more but this was only an estimate because he assumed that because the mixture was wet, some chunks have may settled into the concrete. He also hypothesised that, “A lot of the ones that we saw were the ones that hit the vibrator motor, hit us or hit me…”[40] Beyond this description, Mr Buhagiar’s account of the appearance of the solids or the concrete chunks was speculative. Regarding their shape and size, he said the largest one:
“looked like an actual forearm, sort of thing it was about so big (indicates), like a roundish sort of shape - like a forearm, sort of thing…”.[41]
[37]T52
[38]T52
[39]T52
[40]T52
[41]T53
50 He estimated the size as:
“…about 60 mm millimetres, 60-70 mm millimetres wide and may be about between 150-ish to 200 mm millimetres long but it was sort of rounded as well so it wasn’t like, square or anything; it was more round shaped”.[42]
[42]T53
Evidence of processes
51 Mr Buhagiar explained that the first load of concrete that goes through the pump is a slurry mix, which he described as:
“basically just water and rock, pretty much, and a bit of cement mixed, to basically line the inside of the pipes and push any-if there is any dirt in there, pushes it out”.[43]
[43]T57
52 He said that on the day of the accident:
“we slurried up in the morning, ran the slurry through and by the time of the incident we had already run I think maybe four trucks through. So there was no blockage, there was nothing in the line …”[44]
[44]T58
53 He explained that at the end of the day the line is washed clean of any leftover concrete and the hopper is washed.[45] However, he accepted in cross-examination that a pour had not occurred on site the day before the accident and, therefore, was unable to attest to having seen any cleaning undertaken. In any event, the absence of a blockage in the line, does not amount to evidence of the source of the contaminant.
[45]T58-59
The various participants tasks on site
54 Meridian was Head Contractor on the building and construction site. Meridian ordered 135 cubic metres of concrete. Boral supplied the concrete. Meridian engaged CPS to provide a 37-metre boom pump together with all of the concrete pumping services to the construction site.
55 The Boral concrete was pumped by CPS to a suspended slab that comprised the ground floor to the development. The evidence was that the slab was considerably higher than ground level, but nothing turns on it.
56 The method of delivery of the concrete to the CPS boom pump was described in evidence and it was not contested in any material respect. Indeed, there was little variation in the descriptions given of the processes at work on the day of the accident. Some of the steps in the process were readily apparent and others were described in the evidence given by Mr Farfalla and Mr Augelli, who was employed by Meridian as Project Manager on site and was called as a witness by the VWA.
57 First, the Boral transit mixer truck backs up to the CPS boom pump hopper. Second, the chute of the Boral mixer truck is positioned over the CPS pump hopper. It is the Boral truck driver who controls the flow of concrete from the truck’s agitator into the CPS pump hopper. The concrete then in turn passes through a grate affixed to the CPS pump hopper. The grate serves a dual purpose of guarding the hopper to prevent physical injury to operating personnel and stopping concrete solids or foreign matter entering the pump hopper during the pour. If solids are noticed on the grate, the truck driver (Mr Farfalla, in this instance) or the pump operator (a CPS employee) can remove them by hand. If the truck driver or the pump operator see solids enter through the grate, the pump operator will stop the pump by use of an emergency button or the Boral driver will alert the pump operator by pushing a horn.
58 Accordingly, whilst there is a power to act by the truck driver and the volume of concrete poured into the hopper by him must remain at a level that prevents air getting into the pump line because the ingress of air can be a cause of hose whip, primary responsibility rests with the CPS employee because he is tasked with the responsibility and ability to shut down the pump.
Walter Gorlim[46]
[46]In some documents the witnesses name is given as “Gorlin”, but I have adopted the spelling attributed in the transcript for consistency.
59 Mr Walter Gorlim was the Occupational, Health and Safety Manager employed by Meridian. He was called as a witness by the VWA. He said he only “vaguely” remembered the accident.[47] He was not on site when the accident occurred, but he attended later in the day and undertook an investigation of the cause of the accident.
[47]T74
60 As best he could recall, Mr Gorlim thought the CPS pump operator went by the name of “Al”.[48]
[48]T75
61 Mr Gorlim said that after his arrival on site he saw chunks of concrete beside the concrete pump in the gutter.[49] He then went “upstairs,” to the level of the pour where chunks of concrete had been put aside by the concreters. He described what he saw in the following terms:
“So they were like shards. They were sort of flat pieces of more sand and cement, not sand, cement and aggregate …
They were smooth pieces which had been broken with sharp edges”.[50]
[49]T75
[50]T76
62 Mr Gorlim said the various sizes of chunks he observed upstairs looked the same as those he had seen downstairs.
63 Mr Gorlim explained that hose whips occur from time to time, but they are not a regular occurrence. He attributed the principal reason for hose whip as “…a blockage in the pipeline and when it releases, the build-up of pressure when released through the discharge hose causes that whipping action”.[51]
[51]T76-77
64 Mr Gorlin prepared a witness statement dated 10 July 2016[52]. He also prepared a “Meridian Concrete Incident Register Report” dated 4 April 2012.[53] The report comprised part of the documents furnished to Mr Munn for consideration. The report was the subject of considerable debate as to admissibility. Ultimately, I ruled it was able to be received because it formed part of the material Mr Munn had been supplied for the provision of his opinion but the plaintiff accepted that the contents of the report could not amount to probative evidence of the cause of the accident. Both the witness statement and the incident register report contained contentious and non-contentious statements. The contentious aspect of the statement and incident report was the impermissible attribution of the cause of the accident being concrete chunks from the Boral agitator. Under the heading of the definition of the problem Mr Gorlim wrote that:
“Concrete chunks went through pump line building up pressure, coming out hose end under high pressure, violently whipping hose”.
[52]Tab 10 Exhibit P1
[53]Exhibit P1
65 In addressing why the accident happened, Mr Gorlim wrote:
“Build up concrete discharge from inside agitator barrel entered into concrete pump”.
66 Lastly, Mr Gorlim described the corrective action taken as a result of the accident this way:
“Advised Boral concrete management to clean out build up of concrete deposits in agitator barrels
Toolbox talk with workers to remind worker to stand clear of concrete pump hose as far as reasonably practical. Reviewed SWMS” (Safe Work Method Statement).
67 Mr Gorlim testified about his observations of the hopper and grate. The hopper and the grate are important considerations in the transaction and yet Mr Gorlim’s evidence lacked detail. Concerning the grate he said only of it that it was positioned on top of the hopper and that, “I’m pretty sure it had parallel bars”.[54] Under cross-examination about the hopper used by CPS on site he reiterated only that he thought it had parallel bars.
[54]T101-102
68 In the course of cross-examination, Mr Gorlim was directed to “Safety Alerts” published by the NSW branch of the CMFEU that addressed various risks associated with concrete pours on building sites. He agreed that in managing the concrete delivered into a pump hopper and grate the responsible person is the pump operator, or someone else from the pumping crew, but not the truck driver.[55]
[55]T95
69 Mr Gorlim accepted that a lack of cleanliness can result in concrete solidifying on the internal sides of a hopper.[56] Mr Gorlim said that while he was unaware of any cleaning of the hopper undertaken by CPS prior to the pour on the day of the accident, he had worked around “them” [by which he meant CPS staff] every day and had been to their yard where they cleaned and maintained the pumps.[57] He was fulsome in his evidence about CPS processes.
[56]T104
[57]T104
70 Mr Gorlim agreed that when a flow of concrete has stopped then the area should be cleared, and the pump operator should then try and address the blockage.[58]
[58]T106-107
Charlie Augelli
71 The VWA adduced oral evidence from Mr Augelli who was employed by Meridian on the site as its Project Manager with responsibility, as he described it, for “the concrete and structure”.[59] He characterised the worker as “my foreman looking after the structure on that site”.[60]
[59]T145
[60]T145
72 As with Mr Gorlim, Mr Augelli attended the site on the day of the accident but sometime after the worker had been taken to hospital. He said he spoke with Dave Anderson who made him aware of what had occurred and how it happened.[61] He thought he also had spoken with Mr Gorlim and that he thought there:
“would have been site guys from the builder as well, Schiavellos; there was a couple of site guys there as well”.[62] He said from CPS “there was a Paul Ozzimo and the other guy, I can’t remember-Al. Al (indistinct), I think his name was”.[63]
[61]T146
[62]T146
[63]T146
73 He described Mr Anderson as the person who was “looking after the whole structure, as in with reinforcement concrete, and [the worker] was looking after the structure, as in all the form work side of it”.[64]
[64]T146
74 Mr Augelli said that he saw dry concrete located on the street level. He said he saw “about five to 10 chunks of concrete on the side”.[65] His description was, “well they were long and narrow with a smooth surface on one side, the shape of a barrel”[66] and “they were dry”.[67] Mr Augelli did not see any concrete on the level near where the worker was injured, but he thought that the concrete he saw had dried and “definitely overnight”.[68]
[65]T147
[66]T147
[67]T147
[68]T147
75 Mr Augelli testified that on previous occasions he had observed dry concrete originating from the barrel of an agitator truck. He said there had been numerous occasions when he had been on the back of a pump and making sure, as he put it, that the concrete is delivered on time and that what had been delivered was the right slump.
76 Mr Augelli said he had in the past looked look over to the hopper and had seen build-up on top of it and grabbed and threw it off. He said the build-up had come from the agitator. He said he was unaware of anyone having a designated responsibility for such a task, but he thought that the driver of the truck would “just throw it off to the side if he sees it come out (from the truck)”.[69]
[69]T150
Robert Munn
77 In support of the VWA’s contention that Boral was negligent because its agitator was the source of solids that contaminated the CPS pump hose that led to its blockage and consequently the hose whip that struck the worker causing injury, it engaged Mr Robert Munn to provide expert evidence to identify the possible origins of such a contamination by way of the formation of solids.
78 Mr Munn’s experience as a civil engineer in the construction industry is substantial and his expertise was not challenged by Boral. Mr Munn furnished a statement of expert evidence on behalf of the VWA dated 15 August 2019.[70] He was cross-examined by the defendant.
[70]Exhibit P1
79 Mr Munn was asked questions in light of the evidence given by Mr Buhagiar about the concrete chunks and said that:
“it seems to me that the most probable cause was there were pieces that came from the agitator and had these formed shapes and that they were quite-on the grounds that the factual witnesses were saying these concretes were actually quite hard, these chunks that were in there”.[71]
[71]T192
80 Assuming for the moment that the concrete chunks were in the form described by Mr Buhagiar and Mr Augelli, what did the evidence establish of their origin?
81 Mr Munn’s report addressed the circumstances in which concrete can build up in a pump line. He identified three possible reasons being:
“hardened concrete is dislodged from the mixing blades within the truck mounted mixer and discharged into the pump hopper;
concrete build up occurs over time in the pump hopper due to the mode of discharge from the mixer into the hopper; and
there are lengthy delays in placing the concrete and concrete stiffens in the pump line”.[72]
[72]Exhibit P1, p. 11 at paragraph 16
82 Mr Munn sensibly excluded the third possible reason because the evidence of the timeframe for the pour being from the arrival on site of the Boral truck to the time of injury was only about two hours. Also, Mr Munn said that he considered that the incident occurred in April, and he assumed that the weather conditions would have been mild.[73]
[73]T120
83 Mr Munn wrote that because he accepted the description that had been afforded the chunks being “dry,” in his opinion, the probable and better explanation for their presence was either the first or second reason. He wrote that:
“In my experience it is possible for hardened concrete to be formed on the front of the spiral mixing blades in an inclined drum transit mixer that is not easily detected as it is out of sight of the truck driver and not easily discharged during normal cleaning operations performed at least daily on all truck mounted mixers.” [74]
[74]Exhibit P1, p 6 p.12 at paragraph 17
84 In the course of his oral evidence, Mr Munn said that:
“In fact, the pieces that come out of an agitator are usually quite long and they mostly fall on the grate and are dragged off the grate by either the concrete delivery driver or the pump operator so that they don’t get into the pump. However, you can also get in the mixing action of the truck, the way that it works, it can also break up into smaller pieces some of these long pieces that break off which are formed behind the blades, the mixing blades of the truck, and the mixing action itself is capable of breaking those into smaller pieces. So some pieces which are smaller can pass through the grate”.[75]
[75]T126-127
85 Mr Munn was asked about Mr Bond’s report. Mr Masel noted that at paragraph 48 of his report Mr Munn disagreed with Mr Bond’s opinion that it was impossible for hardened concrete to come from the truck mixer and cause a blockage in the line.
86 Mr Munn otherwise agreed generally with Mr Bond’s comments of the problems that could lead to the whipping of a hose line such as air travelling through the line being blocked and due to pressure from the operation of the pump becoming explosive and causing the whipping of the line. Mr Munn described this as the most common reason for a hose whip. He added, however, that blockages themselves do not usually directly cause whip of the line because the pump operator knows that the pump pressure has increased dramatically once there is a blockage and the action he would take in such an event would be to reverse the pump direction or increase the pressure or using a combination of those means, try and clear the blockage.[76] I consider that the importance of this evidence is that a blockage should not lead to hose whip if proper attention and action is taken by the pump operator.
[76]T122
87 Mr Munn had regard to Mr Buhagiar’s description that the chunks presented with a “smooth” side and that he had observed dry and wet concrete come out of the hose following a loud bang and on that analysis, he concluded that most probably the dry pieces came from the Boral agitator. However, despite this, Mr Munn was attuned to several conundrums associated with his conclusion.
88 Mr Munn appreciated that Mr Bond had referred to the maximum distance of space between the bars on a grate as 70 or 75 millimetres.[77] He agreed with a number of propositions put to him by Mr Masel including, that in order for a solid to enter the pump line, it would have first had to have passed through the grate of the hopper.[78]
[77]T126
[78]T126
89 Mr Munn said it was theoretically possible for a concrete piece longer than 75 millimetres to pass through the grate from the chute, but it is less likely if the grate is a checked pattern grate as opposed to one with parallel bars. Notably, the evidence of the type of grate that CPS used on the hopper it supplied to the site was no better than equivocal.
90 Mr Munn agreed that the phenomenon of concrete hardening is an important matter to have regard to in the performance of concrete pumping.[79] To counter it, he described a process of the cleaning of the pump line after each pumping operation by way of forward or reverse suction together with the use of a rubber ball pushed through into the piston of the pump and then through the entire line so as to expel all residue following which, the normal practice would be the dismantling of the line and a cleaning with water.[80]
[79]T128
[80]T132
91 Mr Munn referred to “active zones” where the flow of concrete is concentrated around the hopper and that because hoppers are mostly rectangular in shape, “in the corners particularly you can get material, what I will call hanging up”.[81] He explained that concrete comes down the chute and is usually located or pointed well away from the edges of the hopper so that it feeds through the centre with the result that there can be build-up on the perimeter of the pump hopper.
[81]T133
92 I heard evidence from Mr Munn that solids can form in the “dead spots” of a hopper where, during a pour, concrete can splash and build up. By reference to a blow up of the photo appearing at the top of page 112 of Boral’s Court book, Mr Munn said in answer to the following questions:
“The dead spots that you have referred to in your evidence before, they are the extremities of the internal wall, is that right?... Yes, yes. The same principles would apply, yes.
Particularly in the corners; would that be so?... That would be correct, yes.
Those corners seem to have a rounded form that may also equate with the forearm that we described earlier; wouldn’t that be true?... Yes, they are rounded. You would get a rounded shape from those too, yes.
I am not suggesting this is the hopper in question but that hopper does have rounded corners, doesn’t it?... It does, yes. It does.
They are not sharp corners that you get because they are rounded to make them easier to clean and so on. That would be typical of most hoppers, wouldn’t it…? Yes, pretty much typical of the hopper, yes”.
93 When Mr Munn was read the transcript of the description given by Mr Buhagiar of the solids he said, “What I am a bit concerned about is why, for example, I was not provided with that sort of information. That is helpful”.[82]
[82]T169
94 The following exchange occurred in re-examination:
“Miss Willshire: if you had been provided with photographs of the concrete chunks how would that have affected your opinion?
Mr Munn: Well, if I had seen irregular pieces, for example, of hardened concrete I would have assumed that they have most probably been formed in the pump hopper in the corners and dropped into the pump line in due course. That would have given me some clue as to what that-that that would have been the source of them”.[83]
[83]T191
95 Mr Munn said as far has he could ascertain there was nothing unusual in the design of the concrete mix that would have contributed to any significant acceleration of setting.
96 Understandably, Mr Munn adopted the observations of the site employees that there had been the presence of lumps of hardened concrete discharged at the time of the incident and having regard to their accounts when taken together with the Schiavello monthly incident reports, led him to conclude that the most probable source was the Boral truck. He noted the Schiavello incident report read: “Concrete discharged from agitator truck. Entered into the line”. He agreed that the conclusion expressed in the Schiavello report:
“…was the only thing that was there that would suggest that that was the nature of it. Unfortunately, it would appear in this case nobody took any photographs or took any specific samples.”[84]
[84]T137
97 In answers to questions by Mr Masel, Mr Munn reiterated that the only fact that led to him conclude that the Boral truck was the culprit, was:
“…observations made by people on the site, including - there was a supervisor on the side, there were other people on the site, like the man on the end of the pump line, would be reasonably experienced in the type of things that block pumps and he would have some knowledge in that field.”[85]
[85]T137-138
98 I am not as sanguine about the evidentiary conclusions the VWA would have me draw from Mr Munn’s evidence. As I have already mentioned, Mr Munn agreed that he would have been assisted had the solids or a sample of the same been retained so that he could have examined them or at least have had photographs taken of them.
99 Mr Munn referred to the written report of incident made to Dave Anderson that concluded that the solids consisted of a dry discharge from the agitator. Mr Munn accepted that the incident report constituted a conclusion without reasoning as there was information missing from it to support the conclusion.[86] Indeed, Mr Munn went further, and agreed with Mr Masel that he did not think Mr Anderson would have known the source of the chunks that went through the pump line.[87] Mr Munn also said he had presumed the line had been cleaned subsequent to the accident at which time the hardened concrete was found, although he conceded, that he had not been told if the line had been cleaned after the accident but that, “I think I can reasonably assume the line was cleaned after the incident”.[88]
[86]T139
[87]T139
[88]T140
100 Mr Munn was directed by Mr Masel to Mr Gorlim’s statement dated 12 April 2016 that formed part of the material he had been supplied preparatory to his expert opinion. However, he said he had not appreciated that Mr Gorlim’s statement was not a contemporaneous statement, and when told that it was not said, “I guess it’s less relevant”.[89] He also accepted that having read Mr Gorlim’s statement including that a check had been undertaken of the CPS equipment on the day of the incident, he had assumed that the comment that appeared that “we would have checked” [the equipment] meant the equipment was in fact checked.[90]
[89]T165
[90]T165
101 Mr Munn said he was unaware that Mr Buhagiar was the only person to testify to having been present and witnessed what occurred.[91] On being read the description of chunks given by Mr Buhagiar in evidence, Mr Munn said that “…but the surface has been rounded and particularly the forearm size would suggest that the shape was formed in the pipeline”.[92]
[91]T168
[92]T171
102 Another aspect of the evidence that created some further doubt about the source of the material was the tension between the description given by Mr Buhagiar of the shape of the chunks he said he had observed and the size of chunks which Mr Buhagiar said had appeared to him to have been broken up from something larger. On the one hand, had the hardened cylindrical piece been in situ in the hose line there would very probably have occurred an earlier interruption to the flow of concrete but on his estimate and description of the size of the chunks and their appearance of already having broken up from something of even greater dimension, the likelihood of the same having passed from the agitator and not having been caught by the grate was unlikely.[93]
[93]T175
The concrete chunks
103 The VWA pointed out that both Mr Augelli and Mr Gorlim testified that they observed chunks of concrete come out of the hose. The VWA argued that it was also “probably likely” that the dried concrete chunks that Mr Augelli saw on street level had come off the CPS hopper grate, and accordingly, their origin was the Boral agitator mixer truck. The VWA referred to the evidence of Mr Augelli and Mr Gorlim that the concrete they observed was “dry” and not “wet” and that this was important evidence because it logically excluded the proposition that the concrete had come from another source and had dried overnight, or had been left over from an earlier point in time, and instead supported a finding that the solids had formed from the Boral concrete pour on the morning of the accident and approximately two hours earlier than the accident.
104 I am not satisfied by this analysis of the evidence to conclude that the source was the Boral agitator. Furthermore, the evidence of Mr Buhagiar and Mr Gorlim, suggests that the amount of dried concrete that was found (following the blockage incident) was at least half a dozen chunks, which is not an insignificant amount and it is questionable how such amounts were not caught as intended by the grate on the hopper.
105 Furthermore, although the probability that the concrete chunks were able to pass through the CPS hopper is low, an equally probable explanation, is the concrete was already in place in the CPS hopper. The evidentiary conundrum in seeking to prove on the balance of probabilities that the chunks more probably came from the Boral agitator mixer than from the CPS hopper in light of the intended protection offered by the grate on the hopper was not satisfactorily addressed by the evidence led by the VWA.
The relevance of the inferenceJones v Dunkel
106 Lest it be thought otherwise, in arriving at my conclusion, I have had regard to the submission made by the VWA that the absence of evidence from a Boral employee was a fact to which I should have regard as telling against its defence to the allegations of negligence. The VWA submitted that this omission by Boral enlivened the principle in Jones v Dunkel.[94]
[94](1959) 101 CLR 298
107 The principle identified in Jones v Dunkel and its application is discretionary. At its root is the concept – explained by Wigmore on Evidence[95] – that, where a party does not call a witness or tender evidence when that evidence might have been expected to elucidate the question before the Court, one available inference is that this has occurred because the party is afraid to lead the evidence. It being a rule of common sense the inference need not always arise. The party, for example, may have some other explanation for why the evidence was not produced.
[95]3rd ed, 1940, vol. 2, s. 285, p. 192
108 A determination of whether there was occasion to arrive at an adverse finding against Boral by an evidentiary omission depended on whether evidence would have been expected to have been led on a relevant matter in dispute between the parties. One such matter relied on by the VWA was the washout procedures applied at Boral. The other related to the process of “dedagging” of hardened build-up of concrete. I will address each separately.
Evidence of washout
109 The VWA pointed to the process of the washout of agitator trucks as an essential safety precaution and impugned Boral for not having produced evidence of its washout procedures and “dedagging” procedures. The VWA argued that Boral had failed to adduce evidence, for example, from John Matthews, who Mr Farfalla identified as the Boral Plant Manager at North Melbourne from where the Boral agitator truck came with its supply of concrete on the day the worker was injured.
110 Although the VWA’s pleading of negligence alleged in part that Boral had failed to ensure its truck had been properly cleaned before its use on site, it led no evidence to support the allegation that there had been a failure by it to ensure the agitator had been properly cleaned before use on site. Nonetheless, the need to have in place the requirement for a washout as a necessary precautionary measure was identified in evidence by Mr Munn, who added that, in his opinion, the responsibility for the washout rested with the truck driver (the Boral contracted driver). Putting Mr Munn’s attribution of responsibility aside, I accept the requirement for a washout procedure is a matter that constitutes a reasonable and precautionary measure by way of risk mitigation by Boral.
The evidence of Boral washout procedures – Mr Farfalla
111 Mr Farfalla was called by Boral. He testified about his familiarity with the washout practice at Boral and he was cross-examined about it. He described himself as an owner/driver working for Boral. He provides his cab chassis to Boral and the agitator to which his cab is attached is owned by Boral. He said he primarily worked from a Boral “batch plant” in North Melbourne. He estimated that in about April 2012 there would have been about 20 to 25 trucks a day at the North Melbourne plant. He described a daily “pre-start” procedure that involved checking tyres, oil leaks and, as far as the agitator is concerned, ensuring that “everything is working correctly and safe”.[96] He said he ensures the barrel is turning both ways, in both charge and discharge mode and that “we discharge the barrel before we start every morning just to get any excess water out of the barrel...”.[97] He said that there may be water in the barrel if had rained the night before and, as there is a washout every night, there may be remnants of water left over the next morning from that process.
[96]T201
[97]T201
112 He said the agitator barrel is washed out by him every night when he finishes work.
113 He was shown the invoice for the delivery to the site address with the designation of truck 30344. Although able to identify the truck, he said he had no memory of the job that day. Given the passage of time since the accident, that is not surprising.
114 He said that once the concrete has reached a consistency to the pump operator’s satisfaction, pumping commences.[98] He described a step on the back of the truck that permits a good view of what is happening in the hopper.[99]
[98]T208
[99]T208
115 He said if he saw a solid, he would grab it and that 9 times out of 10 it would just sit on top of the grate anyway.[100]
[100]T209
116 He said it is important to keep an eye on the hopper to ensure that it does not suck air.
117 He described the washout procedure that he adopted at the Boral plant at the end of the day as follows:
“So we come in the yard and you will have a look and many trucks are in the yard in front of you. If it looks like there is a few trucks you will ask the man who is in charge which will be the plant manager and just ask him, “How long before I get a load?” and if he says, “Half an hour”, I will washout.”[101]
[101]T211-212
118 He described the washout facilities of Boral:
“There’s a wash-out pipe so you would back your hopper or the back of your truck into a wash-out pipe and it generally gives you about 800 to 1000 litres of water. Once that water is gone you give it a mix for a couple of minutes, just in full charge and then discharge it back into the wash-out box.”[102]
[102]T212
119 He said that if having completed your four or six loads and concluded work for the day, the procedure is different in that instead of giving one pump of 1000 litres of water, two are given.[103]
[103]T212
120 He described cleaning the pipe as follows:
“At the end of the day generally, the first pump is let go in slow so it can splash around and then the second pump, we give it mixing for two minutes while the second pump is going in and then we discharge it pretty quick so it washes the back of the blades at the same time as it’s coming out.”[104]
[104]T212
121 The VWA was critical of the depth of Mr Farfalla’s knowledge about the procedures and it submitted that because he was a self-employed truck driver, as opposed to a Boral employee, he was not a responsible person from whom any relevant records from Boral concerning the washout procedure could have been produced.
122 I am not persuaded by the VWA’s submission on the matter of its criticisms of washout procedures. I am not satisfied of the existence of a gap in evidence that it might have been expected to be addressed by additional documentary or oral evidence from Boral. Boral produced Exhibit D3 comprising its “Standard Operating Procedure (SOP) for Truck Washout,” a protocol of a type Mr Munn said he would expect to be in place for concrete trucks. In other words, a protocol such as expected by the expert engaged by the VWA was in place at Boral. Furthermore, Mr Farfalla, as a contracted truck driver with Boral, was engaged exclusively by Boral and he explained that the process set out in Exhibit D3 was adopted. Hence, I am not persuaded that the circumstances warrant the drawing of an adverse inference against Boral in accordance with the principle in Jones v Dunkel and equally, I am not satisfied that the absence of evidence inferentially supports the existence of negligence.
Dedagging procedures
123 What, however, is the position of Boral as regards dag? The evidence was that solidified concrete will form on the inside of a concrete barrel and that the process to remove the same is a process called dedagging. Does Boral’s omission to adduce evidence on that process warrant the drawing of an adverse inference as was urged on me by the VWA? Does the state of evidence, left as it was, identify negligence by Boral on the issue of dedagging? Had I been required to address the question, then the resolution of it would have called for a different consideration of the evidence than applied to Boral’s washout procedures.
124 “Dedagging” appears by the evidence to be a term to describe the process for the removal of accumulated dried concrete from the inside of a concrete truck agitator bowl. The procedure appears to require a worker undertaking the procedure to enter the agitator bowl and then often enough use a jackhammer to chip away dried concrete from the insides of the bowl or that might form behind blades.
125 Boral sought to make much of the fact that the attention given by the VWA to its dedagging procedures had not eventuated until late in the case and came to light in the course of cross-examination of Mr Farfalla and, for example, was not a particular of negligence alleged against Boral in the pleadings. Nonetheless, no objection was taken by Boral of the VWA’s ability to focus on the process as part of its case in negligence or of prejudice in its ability to address the issue.
The evidence of Boral dedagging procedure
126 Mr Farfalla testified about dedagging. He was examined in detail by Ms Willshire regarding the dedagging of his truck. Ms Willshire submitted that his evidence on the issue was unreliable, incorrect and exaggerated. There was some merit in counsel’s submission which can be seen from the cross-examination of Mr Farfalla. Mr Farfalla was questioned about the amount of build-up of dag in his agitator, and he said:
“I don’t want to big note myself but we wash out quite frequently and my truck, I mean, going through the records I get probably 70 kg after six months. So it’s not a lot”.[105]
[105]T209
127 He went on to say that: “I get 70, you can get 80 but it’s never over-it’s not like 800 or 150 or 300 kg, no”.[106] However, he later accepted from the contents of records put to him by Ms Willshire, that in October 2009, his truck had 600 kilograms of build-up. Mr Farfalla also said that 600 kilograms of concrete build-up in an agitator was “not a lot of concrete”.[107] He said he could not comment on the content of dag of other Boral trucks because they are “not mine”.[108]
[106]T247
[107]T252
[108]T247
128 Ms Willshire in the course of her submissions contended that whilst it might be Mr Farfalla’s opinion that 600 kilograms is not much dag, it was an opinion out of line with his initial evidence, which was that 70 kilograms after six months was “not a lot”. Furthermore, given his evidence of an inability to comment on trucks other than his own, the surer evidence to measure a comparison of build-up over time, and to assist the Court in determining how much dag is too much dag, would have been for evidence to have been led from a suitable Boral employee able to produce complete recordkeeping.
129 The VWA also submitted that Mr Farfalla’s evidence about the circumstances in which dried concrete might become dislodged was inconsistent. For example, at one point in his evidence he said that that the only way in which dried concrete would come off the agitator was with a jackhammer, “You have to jackhammer it out. That will not come out, regardless what you do”.[109] However, later in his evidence, he said:
“Like I’ve seen-with previous history, you will hear a bang. Like, you can come back empty and you will hear a bang, like a section come off and straight away, if we hear something like that we will just go down the back and discharge and if there is something in there it will come out”.[110]
[109]T237
[110]T253-254
130 The VWA contended that Mr Farfalla’s evidence recognised that dried concrete chunks can come off the blades of an agitator into the concrete. In response to a question from Ms Willshire whether “you can have giant concrete in your wet concrete” he said, “yes. It can happen”.[111] When questioned if it was possible that dry concrete could be hidden in the concrete which he may not have seen during a pour, he answered: “if it was it would be a small piece. Like I said, if I see it I’ll grab it. If I don’t see it then I can’t tell you.”[112]
[111]T254
[112]T260
131 The VWA submitted that it would reasonably have been expected for Boral to have called Mr Matthews who, Mr Farfalla testified, was aware not just of the Boral washout procedures for agitator trucks but of its dedagging procedure. The VWA submitted that I should infer that Mr Matthews would have been able to give relevant evidence about dedagging procedures. In furtherance of its submission that Mr Farfalla was not the person best placed to give evidence about not just the washout process but dedagging, Ms Willshire referred to limitations about his knowledge when he said:
“No what happens, your number is on board and after you’ve been de-dagged they will tick it off on the board that you have been done. If it hasn’t been ticked off, what happens after I wouldn’t have a clue”.[113]
[113]T243
132 Again, as I have already addressed, where a party fails, without explanation, to call a witness who that party might have been expected to call and whose evidence might have elucidated the matter in dispute, then the inference may be drawn that the evidence of the absent witness would not have assisted the party that failed to call that witness. However, as was explained in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Limited[114] of itself that inference is frequently somewhat barren, for knowing that the evidence of a witness would not have assisted tells one nothing about what the witness’s evidence affirmatively would have been. Often more directly useful is the allied principle that in such a case the trier of fact may more confidently draw any inference unfavourable to the party that failed to call that witness if that witness appears to be in a position to cast light on whether the inference should be drawn. Neither inference is mandatory and, generally speaking, these inferences only become material where the balance of the evidentiary record is equivocal.
[114][2011] FCAFC 53, [79]
133 The VWA submitted that the absence of direct witness evidence was rendered more acute by the inadequate dedagging records provided by Boral[115] and the lack of explanation for the piecemeal maintenance record of that process. There were considerable dates omitted in the records produced by Boral. Ms Willshire contended that the absence of explanation from Boral explaining the deficient records was enough reason for me to draw an inference that the provision of further records would not have assisted Boral. The VWA submitted that in any event such of the records that were discovered failed to identify regular dedagging.
[115]Exhibit P 2
134 Boral sought to meet the allegations made on the issue of dedagging and in doing so contested the occasion for the exercise of the discretionary application of an adverse inference.
135 Mr Masel commenced his analysis of the issue by reference to the records produced by Boral from which the amount of dag removed was identified as ranging between 100 kilograms to 1900 kilograms. Mr Masel contended that a record alone of the amount of dag removed is an insufficient evidentiary basis to enable any reasonable conclusions to be drawn about the adequacy of Boral’s dedagging. Mr Masel contended that the number of kilograms of dag removed does not inform the period over which the dag had accumulated. Neither would it, Mr Masel argued, have identified to the Court the type of concrete being delivered by the particular mixer, that being a relevant consideration, because Mr Munn’s evidence was that the constituent elements going to make up the mix of concrete could be a factor contributing to a significant acceleration of setting. Mr Masel submitted that the production by Boral of more complete records would not have identified if Boral had experienced any significant delays between delivery of concrete mix that might contribute to build-up or if, and when, any delays occurred, or how proximate were the same to revealed dates of dedagging. The submission was that without context, little, if any evidentiary weight should be afforded the extracts from the Visual Inspection Book[116] of an inadequacy or insufficiency in Boral’s system of cleaning and maintenance of agitators. I accept the force of these submissions.
[116]Exhibit P2, T248
Findings on dag
136 It cannot be doubted on the evidence put before me that solids will form and will bond firmly to the barrel of concrete transit mixers, perhaps not invariably, but often, and will require a jackhammer to remove the same. Dag may form over a period of hours.
137 Boral contested the contention advanced by the VWA that the evidence is sufficient to support a finding that dag will spontaneously break away in shards such as to be able enter a pump and thereby cause a blockage in the hose line. The account given in evidence by Mr Farfalla is to the contrary. Whilst in assessing his evidence I have considered that he is not qualified as an expert on such matters and his evidence was anecdotal nonetheless, Mr Farfalla’s account, was borne of his practical and everyday experience. Under cross-examination he rejected the suggestion that larger pieces of concrete that had hardened in the barrel of the truck can easily break off. He did accept that a large piece might come off on its own. However, he said that in such an event, the driver would hear it bang around inside and were it to come out it would not go into the pump. He also accepted that small pieces of dag that were hanging on a fin of a blade might break away, but he drew a distinction between small pieces and a piece weighing 600 kilograms. It was never suggested by Ms Willshire that one 600 kilogram piece would fall off as a whole.
138 Mr Masel pointed out that no expert evidence was adduced on dag build-up or of dedagging itself. Mr Masel submitted that without evidence that addressed, for example, the correlation (if any) between bonded dag and spontaneous break away of dag or the frequency of inspection required of dag that would be reasonably required, the Court had no clear pathway of reasoning to conclusion on the issue. I agree with Senior Counsel’s submissions.
139 Mr Masel referred to Mr Munn’s evidence that the source of solids that caused the blockage to the concrete pump had likely originated from the Boral agitator and the solids most likely had formed on the blades of the agitator. While Mr Munn did not describe the solids as dag, it is not inconsistent with dag, or the evidence given by Mr Farfalla of where dag builds up. However, I am not prepared to assume that Mr Munn’s evidence was intended to encompass dag.
140 Mr Munn, when asked if the discharge of solids from the agitator would lead him to conclude that the agitator was not adequately cleaned prior to the delivery of the concrete mix by Boral, said only that this was a possibility. When he was asked to address the cleaning requirements for concrete trucks, including the method and frequency of cleaning, he described a washout process as the means of reducing the risks of build-up in discharge of solids from an agitator.
141 The only other evidence I heard was from Mr Farfalla that dag would not be amenable to ordinary washout procedures although washouts performed at relevant intervals during the day between loads might impede its formation. Mr Masel accordingly submitted that I should be satisfied that if the build-up of solids by way of dag had been relevant to his expert opinion of giving rise to a foreseeable risk, Mr Munn would have addressed the issue either in his expert report or in his oral evidence. I agree with these submissions.
142 Boral contended that it was a relevant consideration that its supply of concrete was a supply to a specialist. In this case, the specialist had measures in place, most significantly, the grate over the hopper for the purpose of excluding unwanted solids. If unwanted solids do pass through the grate, and cause a blockage, the blockage will be by reason of the configuration of the boom pump system chosen by the specialist pump operator (that is, the use of a reducer). If a blockage occurs, it can and should be cleared without risk of injury. I agree.
143 The law of negligence does not mandate the removal or elimination of all risk. Solids can and do form despite a supplier such as Boral taking all reasonable care by way of a proper washout of its agitator. I am satisfied that Boral took all reasonable steps to eliminate the risk of the forming of solids.
144 Therefore, and upon an analysis of all of the evidence, I am not satisfied and do not find that the most probable source of the concrete was the Boral agitator. In fact, I am satisfied that it is equally, if not more probable, that the source of the concrete was the pump hopper belonging to CPS. That being so, the difficulty for the VWA is that because the evidence supports another explanation that is at least equally probable to account for the cause of the worker’s injury, then negligence on the part of Boral as a cause of the injury to the worker on the presumed basis of a failure by it to exercise reasonable care in the build-up and possible discharge of dag on whichever of or combination of act or omissions relied upon by the VWA has not been made out and the proceeding in negligence must fail.
Breach of statutory duty
145 A duty resided with Boral to take all reasonable care to avoid the risk of injury to the worker (or more particularly to take all steps to eliminate and/or to reduce so far as is reasonably practicable the risk of injury). Whether it failed to do so falls to be assessed in all the circumstances.
146 The plaintiff’s allegation of the breaches of the defendant’s statutory duties comprised:
· failing to provide a safe place of work and safe system of work;
· failing to provide safe plant and equipment, and that the truck was safe to operate;
· failing to ensure that the truck had been properly cleaned before use of the premises;
· failing to have any adequate system to prevent dry concrete from passing from the truck to the pump;
· failing to devise, implement or maintain any or any adequate system of inspection of the truck prior to its use;
· failing to remit the requirements of various sections of the Occupational Health and Safety Act 2004 and/or the Regulations made thereunder (specifically regulation 3.5, 2.3, 3.5.24 and 2.1.2).
147 The VWA led no evidence identifying the requirements of a safe system of work, or what constitutes an adequate system of inspection. The extent of the evidence led by the plaintiff of steps to reduce the risk of solids passing from the agitator into the concrete pump was limited to the expert evidence of Mr Munn. His report identified that:
· “truck mounted mixers (otherwise known as agitators) should be thoroughly cleaned at least daily on a more often depending on the type of concrete being mixed”.[117]
[117]Paragraph 22
· Boral should have work method statements that specify how and when cleaning is to be undertaken.[118]
[118]Paragraph 22
· The cleaning of truck mounted mixers should be carried out by discharging large quantities of water into the mixer, with the mixer operating in mixer mode for a period of several minutes followed by the discharge and removal of water and remnant slurry into a receiving pond.[119]
[119]Paragraph 23
· The above process is termed a “wash-out”.
· To further minimise the potential for formation of build-up of water from the tank mounted on the truck is introduced to the mixer after completion of site discharge to ensure any slurry or concrete lifted the mixer is of low viscosity and unlikely to adhere to the mixing blades.[120]
· The frequency of washouts is at least daily, with more frequent than daily washout is conducted between loads to remove contamination, or where there have been significant delays between loading.[121]
[120]Paragraph 24
[121]Paragraph 25
148 I have previously identified that based on the evidence from Boral of its washout policy identified in the SOP and the evidence of everyday practices testified to by Mr Farfalla, that it satisfactorily addressed the requirements detailed by Mr Munn. The evidence given by Mr Farfalla about washout conformed with the procedures contained in the SOP because it included the requirement for washout between loads, and also procedures for washout at the end of the day, the purpose of the latter being, of course, dictated by the necessity to clean the inside of the barrel from concrete that is still wet, thereby preventing it from hardening in the barrel.
149 The matters I have already addressed in regard to the allegations of negligence, and my reasons in response to them, provides a sufficient basis to additionally explain why I am not satisfied that the VWA has proved statutory breach by Boral.
Role of other tortfeasors
150 Considering my findings on an absence of negligence and statutory breach, it is unnecessary to consider the role of other potential tortfeasors such as may have been required of me had I been obliged to determine the liability of Boral (Factor X). However, had it proved necessary to do so, my reasoning and conclusions briefly stated follow.
The worker
151 It is possible, in a given set of circumstances, that a worker may be adjudged as having contributed to his own injury. In this case, however, there is no evidence to indicate the existence of any conduct by the worker that would have constituted contributory negligence. I would have been satisfied, on the available evidence, that there was no occasion for a finding of contributory negligence on the part of the worker.
Meridian and CPS
152 The position occupied by Meridian and/or CPS in the context of potential liability, however, would have been different.
153 In law, both Meridian and CPS owed a duty of care to the worker. Meridian was the head contractor on the site. It was engaged by “Schiavello Constructions”. The worker said in his evidence that Meridian had general supervision of the concreting works on the site including coordination of the activities of its employees and of others associated with the concrete works.
154 Mr Gorlim in his evidence described CPS as a “branch” of Meridian and Mr Augelli in his evidence noted that “CPS was another business in Meridian”. The corporate structure and extent of interrelatedness of the two entities was not, however, the subject of evidence.
Care required by CPS pump operator
155 Had I been required to address the position of the other potential tortfeasors, I would have found that the evidence disclosed a lack of reasonable care by the person referred to as “Al” and also by Mr Ozzimo, the pump operator, both of whom were employees of CPS.
156 The VWA sought to diminish the extent of responsibility that might be thought attributable to the CPS employed pump operator by recourse to Mr Buhagiar’s evidence that the incident happened very quickly. However, only Mr Buhagiar testified about the timing of the accident. Neither “Al” or Mr Ozzimo testified. Mr Buhagiar said that he recalled Mr Ozzimo gave the hose at the end of the line a tap, but he could not say if this was accompanied by a command given to “Al” to stop the concrete flow. In the following exchange Mr Buhagiar said:
“What was the timeframe from when the concrete stopped to when…?… We thought it was blocked to when it happened?
Yes?… Seconds, yeah.
In that time did you see the hose operator communicate in any way with anyone?… No, not at that time, Well obviously-I’ve looked at him because when the concrete stopped he’s gone to give the hose a shake and to see what’s happening and then before you know it, we just heard the massive bang, concrete’s come out and then the hose just took off”.[122]
[122]T51-52
157 Mr Buhagiar’s evidence was that he was conscious for some time that something had changed. He said that “because the concrete pumps themselves make a really big thumping noise when they are pumping and we can always hear that going over any other noise”[123] that although he could still hear the pumping there was nothing coming out of the hose. The next thing that occurred was that the pump operator gave the hose a tap and a shake. This action was not the appropriate thing to do in the circumstances. Mr Munn’s evidence fortified me on reaching this finding. He explained the position as follows:
“Blockages themselves don’t usually directly cause whip of a line but the pump operator knows that the pump pressure has increased dramatically when the pipeline becomes blocked and he takes action by reversing the pump direction or by increasing the pressure or using a combination of those means to try and clear it and that can also cause-lead to whipping the line and in that respect, I think Mr Bond and I agree on that point”.[124]
[123]T50
[124]T122
158 The evidence was lacking that any of the remedial steps identified by Mr Munn were taken.
159 The conduct of the concrete pump operator is important. Mr Bond’s opini with which Mr Munn took no issue included that:
“The concrete pump operator is the person responsible for the safe operation of the concrete pump … he needs to stop the concrete pump in an emergency, such as when a blockage occurs … When a blockage occurs the concrete pump operator should not restart pumping or try to clear the blockage if site personnel are in the danger zone where a whipping hose could strike them”[125].
[125]Bond report, page 6, paragraph (ii)
160 Furthermore, the state of the evidence was not such as to enable me to exclude the possibility that solids could not form on the hopper. I accept that on the day of the accident, the hopper was generally full thereby reducing the likelihood that long solids would be capable of forming. The contention that solids could not be in the hopper from previous use because CPS was thorough in its cleanout was, however, an unsupported assertion and no witness from CPS was called to give evidence of the configuration of the hopper such that I could ascertain if the sides were generally immersed in concrete or not, or the height above any immersion to the top of the hopper, or its own washout procedures.
161 Mr Munn’s expert evidence was that build-up on the perimeter of the hopper could occur during a pour. He referred to the fact of the concrete chute being usually located or pointed “well away” from the edges and that the concrete feeds concrete through the centre, allowing concrete which has splashed, to build up on the perimeter of the hopper. He also said that a build-up could occur over a period of two hours[126] and the evidence was that by 10.30am the pour would have been underway for approximately 3½ hours.
[126]T134
162 Mr Munn’s evidence addressed the operations associated with a boom pump such as that operated by CPS. He said:
“Because we are dealing with a machine that can operate at many megapascals and can kill, it’s important, essentially, to take all safety precautions to avoid any of those situations if they occur, resulting in injury?...
Yes, I agree with that. It’s almost common sense.
It is common sense. Thank you. Every piece of literature will tell us that the measures to be taken are after a blockage stop the system, clear the area of people and then started up slowly just in case?... Yes.
That’s their summary, isn’t it?...
I think that’s the important point. If there was a potential blockage at the time and someone else suggested there was some whipping-I don’t know where that came from precisely at the time-then the area should have been cleared of everybody who was working close to the end of the hose.
Is that because despite taking all reasonable cautions, blockages can still occur?...
Yes. They do occasionally occur, that is correct, even with proper precautions being taken to minimise them.
Even with taking proper precautions to avoid, for example, solids from an agitator, as you pointed out in your report you can washout the agitator but nonetheless, there could still be an undetected solid in it?..
That’s correct, yes. That is right.
Because of that risk, the way it is dealt with is: one, to have a grate to catch the solids; and two, if the solids do go through the grate and cause a blockage, then to have a safe method of clearing the blockage?
Correct”.[127]
[127]T182-183
163 As to Meridian, the worker said it was known that wherever possible workers should not be close to the hose hand during concrete pumping operations and if there was a blockage, a larger exclusion zone should be established. The worker testified that wherever possible, workers should be at least approximately 3 metres from where the hose hand is working.[128] The CMFEU (New South Wales Branch) Safety Alert[129] included that only the line hand should be in close proximity to the delivery hose.
[128]T21
[129]Exhibit D5
164 Meridian and CPS had the capacity on site to provide direction to the worker and exercise control about the space in which he was working through the offices of Mr Paul Ozzimo and “Al”.
165 Meridian failed to minimise the risk of a hose hand coming too close to other workers and by failing to have in place and enforce safe procedures for clearing a hose blockage should one occur. Its breach is evidenced by, among other things, allowing the situation where the worker, one of its foreman, with general supervisory functions and who was himself on the tools, not having another workmate maintaining general superintendence of the activities taking place on site and so looking out for safety.
166 CPS would have been a relevant third party for the purposes of determining Factor X because its contribution to the cause of the worker’s injury would have required consideration. I would have found that CPS had a duty to workers present on the site. It had on site the pump operator known as Al and the hose hand, Mr Ozzimo, who were in control of the pump. I have already mentioned the evidence of Mr Munn who described the risks involved with the processes.
167 CPS had a duty to follow safe procedures in the event of a blockage. These included first turning off the pump and establishing an exclusion zone before attempting to clear the blockage by controlled release of pressure which, on the evidence of Mr Buhagiar, was not done and is an occurrence that I am satisfied was the direct cause of the worker’s accident.
168 Blockages do occur whether caused by solids or not and the failure by CPS to manage the clearance of the blockage is a significant departure from the standard of conduct that could reasonably have been expected of it.
169 On an alternative analysis in which I had been satisfied in arriving at a finding of negligence or breach of the reasonable standard of care owed by Boral, I would nonetheless have been satisfied that CPS bore the overwhelming proportionate share of responsibility for this accident, together with a significant share borne by Meridian. Therefore, even on the most favourable and alternative analysis of the facts, but sufficient to have supported a finding of negligence by Boral, it would have been of a proportionately very minor extent.
170 However, it is enough that for the reasons expressed, I am satisfied that Boral’s liability is zero per cent.
171 The application for recovery made against Boral is dismissed.
172 I will hear the parties as to the final form of orders including as to costs.
2
6
0