VWA v Bruck Textiles Pty Ltd
[2010] VCC 141
•18 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-04154
| Victorian Workcover Authority | Plaintiff |
| v | |
| Bruck Textiles Pty Ltd | First Defendant |
| and | |
| Peter Allen Villiers and Sharon Lee Villiers | Second Defendants |
| (trading as Millwright and Fabrication Services) |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9-17 February 2010 |
| DATE OF JUDGMENT: | 18 March 2010 |
| CASE MAY BE CITED AS: | VWA v Bruck Textiles Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 0141 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s138 Accident Compensation Act 1985 – third party recovery proceeding – extent to which the act, default or negligence of the second defendants caused or contributed to the worker’s injury
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Simpson | Russell Kennedy |
| with Ms G. Crafti | ||
| For the Defendant | Mr C. Grainger | Hall & Willcox |
| HER HONOUR: |
1 Mr Geoffrey Fallon (“the worker”), a plumber, suffered significant injury to his lumbar spine on 3 October 2000 while lowering a ladder by rope between levels of the roof of the premises at 81 Sisely Avenue, Wangaratta (“the site”), occupied by Bruck Textiles Pty Ltd, the first defendant (“Bruck”). At the time of the injury, the worker was employed by Golding Plumbing Services (“GPS”) to perform works on a wall cladding contract at the site. The lowering of the ladder was not part of the wall cladding job, but was part of the works being performed on a dye machine at another part of the site by employees (Peter Campbell and Dennis Saunders) of the second-named defendant, Peter Allen Villiers and Sharon Lee Villiers (Trading as Millright and Fabrications Services) (“Villiers”). At the time of the injury, the worker was assisting Dennis Saunders (“Saunders”), to lower a ladder from one part of the roof of the site to a lower part of the roof.
2 As a result of the injury, which has been described by Professor Teddy[1] as the mechanical dysfunction of the supportive elements of the lumbar spine, the plaintiff (“the VWA”) paid to the worker amounts for compensation and for medical and like expenses pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”). The parties have agreed the total amount paid to the worker was $51, 710.07 (“the compensation amount”).[2]
[1] See his report at page 561 of the plaintiff’s court book (“PCB”).
[2] Although the amount of compensation paid under the Act in respect of the injury suffered on 3 October 2000 was $75,057.25 (see the Certificate under s.239A of the Act at page 131 of the PCB), only $52,710.07 of that amount was not statute-barred.
3 The parties advised me that the common law action for damages for personal injury (which was to be heard immediately before the hearing of the current proceeding) resolved on the first day of trial, for the amount of $90,000 (for pain and suffering) plus costs, with 50% of the settlement sum to be paid by GPS, 30% by Villiers, and 20% by Bruck.
4 Section 138(1) of the Accident Compensation Act 1985 (“the Act”) provides:
Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority…was caused under circumstances creating a liability in a third party to pay damages…in respect of the injury or death, the Authority… is entitled to be indemnified by the third party in accordance with this section.
5 The VWA brings this proceeding pursuant to section 138 of the Act (“the recovery action”), alleging that it is entitled to recover from Bruck and from Villiers, the lesser of the compensation amount and the amount calculated in accordance with the formula prescribed by s.138(3)(b) of the Act, to which I will return later. At the commencement of the hearing of the recovery action, counsel for the VWA announced that the proceeding had been settled as between the VWA and Bruck, and the matter would proceed only as against Villiers.[3]
[3] Orders were made by consent that the proceeding against the first defendant be dismissed and that the first defendant (Bruck) pay 33.33% of the plaintiff’s party-party costs and disbursements on Supreme Court scale from the commencement of the proceedings to 22 September 2008 and until 5 February 2010 on County Court scale ‘D’ to be taxed in default of agreement.
6 The parties agreed that factor C of the formula is $27,000, and that Factor B is irrelevant. On day 6 of the hearing before me, the parties agreed that the value of Factor A is $427,000. The parties also agreed that I am only required to determine the value of Factor X, that is, the extent (expressed as a percentage) to which the act, default, or negligence of Villiers caused or contributed to the worker’s injury.
The proceeding
7 By its statement of claim[4] dated 29 October 2007, the VWA alleged negligence on the part of Villiers (and its servants and agents) which was a cause of the worker’s injury. The particulars of the negligence[5] included failing to provide the worker with any or adequate assistance, equipment, instructions or supervision; failing to provide the worker with any induction at the premises, or to warn him that he was about to take a significant weight of the ladder; failing to carry out any adequate risk assessment of the task required of him; failing to provide him with competent and well-trained fellow employees; failing to warn him of the danger of lifting the ladder; failing to warn him that he might be required suddenly to take the weight of the equipment and ladder; requiring or permitting him to lift the ladder; and failing to implement a safe system for lifting the ladder on the roof of the site.
[4] The writ was filed in the Supreme Court on 5 November 2007 and the proceeding was transferred to the County Court pursuant to an order of Listing Master Kings on 22 September 2008.
[5] The particulars of negligence include references to lifting “air conditioners”, but this allegation was not pursued at the hearing and it appears clear from the worker’s evidence, which was unchallenged, that he was injured when lowering a ladder from one level to a lower level of the roof of the site.
8 By paragraph 6 of its Further Amended Defence dated 16 February 2010,[6] Villiers denied the allegations in paragraph 6 of the Statement of Claim and alleged “that the plaintiff was not acting in the course of his employment for the purposes of section 82(1) of the Accident Compensation Act”. The following particulars were given by Villiers:
Particulars
The worker was on site to undertake wall cladding and no other duties. His duties did not require him to go onto the roof of the premises and he had no authority from the employer to go onto the roof.
The employer did not undertake any works on the roof on the day the worker suffered injury, nor was any activity undertaken on the roof on that day which was incidental to the works undertaken or authorised by the employer at the premises on the day.
[6] On the fifth day of the hearing, the second defendant sought leave to further amend its defence in the light of the evidence of the employer to the effect that the worker had no authority to go on the roof to assist Villiers’, employees on 3 October 2000. The plaintiff objected to the grant of leave but sought, in the event leave was granted, to file a reply. The parties agreed that the hearing should continue on the basis that leave be granted and that the plaintiff be given leave to file and serve a Reply to the Further Amended Defence.
9 Villiers further pleaded negligence and/or breach of statutory duty of the worker, GPS and/or Bruck.
10 The particulars of negligence alleged against the worker included: exposing himself to the risk of danger which he knew or ought to have known was involved in lowering the ladder in the manner proposed; acting outside the scope of his employment; participating in the lowering of the ladder when he knew or ought to have known that the system being adopted by him was unsafe; if the employer’s system of work was inadequate, shockingly archaic or very unsafe, then participating in that system of work when he knew or ought to have known it was unsafe, and failing to bring to Bruck’s attention that the system of work was unsafe; failing to ask the defendants or the employer for help, further instructions or further equipment or supervision or an adequate risk assessment before completing the task.
11 The particulars of negligence and breach of statutory duty alleged against the employer included: failing to provide a safe system or place of work; failing to have in place a crane or other appropriate mechanical lifting device; failing to provide adequate instructions or supervision to the worker to ensure he completed the work duties safely; failing to instruct the worker as to any dangers with the ladder; failing to carry out any adequate risk assessment of the task required; and allowing the worker to work outside the scope of his employment.
12 By way of Reply, the VWA objected to the entirety of the Further Amended Defence on the basis that it did not contain admissions. More importantly, the VWA stated that the question of whether the worker suffered injury in the course of or arising out of his employment in accordance with section 82(1) of the Act was not relevant to this proceeding, as the VWA had established its entitlement to indemnity by virtue of the payments made (and certified to have been so made) in respect of the injury suffered by the worker on 3 October 2000.
13 The VWA led evidence, relevantly, from the worker, from Michael Nolan (“Nolan”), his co-worker on 3 October 2000, and from the employer (Mr Stan Golding of GPS).[7] No evidence was led by Villiers. The VWA tendered a number of documents in an Amended Court Book which I will refer to below where relevant.
[7] The VWA also led evidence from two medical practitioners, but, in the light of the agreement reached by the parties during the course of the hearing as to the quantum of Factor A, it is unnecessary for me to refer to the evidence concerning the worker’s injury, treatment and return to work.
14 Villiers tendered Affidavits of Geoffrey Fallon sworn on 6 January and 10 March 2006; as well as the Plaintiff’s answer to the First Defendant’s interrogatory number 17 in Supreme Court Proceeding no 1336 of 2003.
Evidence of the worker
15 The worker’s evidence was to the following effect. He is now 60 years old. He started his plumbing apprenticeship at the age of 15. Once qualified he worked as a plumber until the age of 30, doing heavy work laying drains. He also played football for his local football club. He then worked for ten years as a professional fisherman on a prawn trawler, doing strenuous physical work. He then picked tobacco for a few years. He then lived in New Zealand from around 1993 for seven years, working as a plumber. He returned to Australia in late 1999 and did some tobacco picking.
16 He started working for GPS as a plumber in June or July 2000 at the GPS workshop in Sinclair Street, Wangaratta. Villiers also occupied part of the workshop, fabricating metal for contracts which they had.
17 Occasionally, Villiers’ workers would assist GPS’s plumbers. The worker said:
Well, if you needed a hand to do anything and one of the plumbers was short, well, you could always get a – one of them guys to fill in, if you wanted a hand for five minutes ….one of Peter Villiers’ chaps, yes. [8]
[8] See Transcript page 43 (“T43”).
18 The worker said that as far as he knew, Mr Villiers was amenable to that arrangement.[9]
[9] See T 44.
19 The Bruck site was a textile factory, and it was located about 500 metres from the GPS workshop in the same industrial area. In October 2000, GPS had a contract with Bruck to carry out a wall cladding job at the site, and the worker and Nolan were carrying out that work. The job involved replacing wall decking on the side wall of the factory, from the inside of the factory. The job did not involve accessing the roof. GPS had two cherry pickers (including safety harnesses) on site which were used to elevate the worker and Nolan and the iron sheets they were holding to the appropriate wall height.
20 On the day he was injured in October 2000, the worker arrived at the site around 7.30 a.m. and worked with Nolan until about 9.30 a.m. The men then took a fifteen minute break. The worker said:
While we were having smoke-oh he said that we were going to jump on the roof and give the boys a hand. Villiers, as he called them, give Villiers a hand……I knew that they were working on site but I didn’t know what they – they were in another part of the factory and I didn’t know what they were actually doing but I knew they were on site and they had been on site for nearly as long as what we had been. [10]
[10] See T 49.
21 The worker and Nolan climbed up a permanent fixed ladder (with a safety perimeter around it) on the outside wall of the building onto a flat part of the roof. He said that they were met there by “the Villiers boys”, Saunders and Peter Campbell (“Campbell”). The worker said he knew them as he had met them at GPS’s factory workshop. He said that occasionally he would help them out, and “occasionally they would give us a hand”.[11] When asked to elaborate, he said that some of the Villiers employees at the site would help he and Nolan unload steel wall cladding from the truck. He said that somebody would ask them for help, and that there were occasions when he and Nolan helped them “when they needed a hand”. For example, he said that he and Nolan helped install a fire service fabricated by Villiers by holding up some of the parts while Villiers employees put up brackets and bolted the appliance together.[12]
[11] See T 50.
[12] See T 51.
22 He said that when Campbell and Saunders needed assistance, they did not necessarily ask him directly for help, as he was junior to Nolan, but usually they asked Nolan.
23 The worker said that when he went onto the roof with Nolan he believed that Campbell and Saunders needed help moving some equipment comprising “big fans, in a canopy” up onto the next level of the roof. He said that he saw that from the level of the roof he was on there were steel fire safety ladders leading to a higher level of the roof which had been lashed down, and which had been put in place to allow the Villiers employees to get the fan units up to the appropriate level. He did not see the ladder being unlashed but said he understood that they needed to be taken down to a lower level of the roof to be stored where they were supposed to be kept.
24 After the ladders were untied, according to the worker:
I think it was Peter or – one of Villier’s blokes, said we’ll lower them down and we’ll do it with ropes…..The best recollection I’ve got is, we tied – I tied a rope around one end of the ladder and it was Dennis that tied rope around the other end of the ladder……and we stood up and there was a parapet about the size of this bench here, Your Honour, and we lowered the ladder over the side with the ropes….[13]
[13] See T 55 and 56.
25 He said the ladder was about seven metres long, the usual standard width and weighed around 60 to 65 kilograms. He said it was to be lowered about seven metres. He said that the decision to lower the ladder with rope “would have been” made by Saunders because he believed “that when they pulled them up, they pulled them up the same way to get them in the position”.
26 He said that he did not think Saunders said anything to him about how the ladder was to be lowered but that they had “a mutual understanding that the rope was tied on either end and they would lower it over the side”.[14]
[14] See T 58.
27 Later in examination in chief, the following exchange occurred:
What was your belief or understanding at the time you were beginning to manoeuvre the ladder with Mr Saunders as to who was in control of the procedure? .--- Well, it wasn’t my job. I’d gone there to give them a hand and to give them a hand at what they wanted to do. Mr Saunders would’ve most probably asked me to give him a hand or I believe he more than likely said: “can you give me a hand to lower this down, mate”.
Who do you believe was in control of the manoeuvre that was being done? ---- I
believe Mr Saunders was.Why do you say that? ---Because it wasn’t my job to – it wasn’t part of my regular employment. I was asked to given them a hand and so they were in charge of the job. [15]
[15] See T 81.
28 The worker said that he and Saunders stood on a parapet holding each end of the ladder with a rope and hoisted it over the parapet. The worker said that when the ladder went over the parapet, it was much heavier than he and Saunders expected and they each lost their grip of the rope a little and the ladder “started to fall quickly”[16] at the same rate on each end. He said that he was concerned about the rate of descent of the ladder because there was a roof below and people working under that roof. The worker said that they both tightened their grip on the rope and that his chest was pulled against the parapet at that time, causing pain in the chest, that his back took the weight of his end of the ladder, he experienced “excruciating pain” in his lower back[17] as they lowered the ladder on to the lower level of the roof. He said he told Saunders at the time that the ladder was “bloody heavier than I thought”[18].
[16] See T 58.
[17] See T 59.
[18] See T 60.
29 As a result of his back injury, the worker was off work for a number of weeks. He returned to work on light duties in November 2000 and in mid-December 2000, suffered an exacerbation of his back pain and related symptoms while at work using a heavy vibrating steel plate known as a “whacker-packer” (“the whacker-packer incident”). He was off work on WorkCover until January 2001 and on 22 January 2001 suffered a further exacerbation of back pain at work while joining pipes in trenches. He was off work on WorkCover until March 2001. He returned to work for a few days. On about 13 March 2001 while at home he had a sneezing attack which resulted in a further exacerbation of back pain and spasm. He did not return to work as a plumber.
30 In cross-examination, the worker said that Nolan was the person who told him what to do when they were working alone together at the site. He insisted that Campbell was on the roof with him on 3 October 2000, along with Saunders and two GPS employees (brothers Wally and Peter Stasanovski). He said that apart from the cladding contract he was working on at Brucks he did not know what other contracts GPS had with Brucks.
31 He did not recall Mr Golding being present at the site on 3 October 2000. He agreed that there appeared to be no time sheet filled in by him for 3 October 2000 among the other time sheets tendered by the employer.
32 In re-examination, the worker said that prior to the manoeuvring of the ladder there was no toolbox meeting or Job Safety Analysis. He was not aware of his name appearing on any roof access permit authorising him to be on the roof. He did not know how the ladders came to be lashed onto to the higher levels of the roof. He said he would not have filled in a daily time sheet and handed it in on 3 October 2000 because he left the site after being injured.
Evidence of the employer
33 Mr Golding gave evidence to the following effect. In 2000 his business, which specialised in industrial and commercial clients, was one of the larger plumbing businesses in Wangaratta. Prior to 2000, he had business dealings with Peter Villiers, who was an expert in sheet metal fabrication and who would make up specialised sheet metal applications for GPS. That kind of sheet metal work had previously been performed at GPS’s factory by an employee using equipment owned by GPS, but that employee had left. After that, the special sheet metal application work was sub-contracted by GPS to Villiers, but the work was undertaken by Villiers at the GPS factory using GPS equipment.
34 Mr Golding had a falling out with Peter Villiers around 2000 when he learned that Peter Villiers was quoting against GPS and doing sheet metal work for the benefit of his own business while using the GPS fabrication shop.
35 GPS had been doing plumbing work for Bruck for about 15 years prior to 2000. The purchase requisition at page 407 of the court book represented a contract with Bruck dated 16 May 2000 for the amount of $108,964.00 for the removal of wall cladding at the site and the installation of new cladding (“the wall cladding contract”). This contract was being performed by GPS on 3 October 2000 at the site, but no roof access was required for that job.
36 On 3 October 2000, Villiers was a sub-contractor of GPS working at the site installing a canopy over a dye machine. The works being performed by Villiers, to the value of approximately $2240, were part of a contract worth $19,004 made on 24 October 2000 between Bruck and GPS concerning the dye machine[19] (“the dye machine contract”) but performed before that date.
[19] See PCB 423A.
37 The wall cladding contract was totally unrelated to the dye machine contract, and the contracts had different order numbers. The worker was employed by GPS on the wall cladding job and was not assigned to the canopy installation. Villiers was to supply all the labour for the dye machine contract and to perform the installation. An invoice from Villiers to GPS dated 6 October 2000[20] related to the materials and labour for the dye machine contract.
[20] See PCB 470.
38 GPS kept a control sheet for each job[21] and the control sheet for the wall cladding job revealed that on 3 October his employees, Mr McCormick, the worker and Nolan were at the site to do the wall cladding job. Mr McCormick was sent to the site to replace the worker after his injury. On that day, having referred to the employees’ time sheets,[22] Mr Golding said there were no other GPS employees at the site.
[21] See PCB 423B.
[22] See PCB 360.
39 Mr Golding denied that he asked Villers to lend him two men to work on the site on 3 October 2000 and insisted that GPS was not doing any air- conditioning work at the site on that day. He insisted that no GPS employees were involved in the dye machine contract works being undertaken by Villiers on the site on that day. He said he never asked Villiers’ employees to help with the cladding contract being performed at the site by GPS. He agreed that Villers were working on the site on that day. He was not aware of any request from Villiers for help, and denied authorising GPS employees to be on the roof or to do any of Villiers’ work on that day. He said that Villiers had no authority to direct GPS employees and that GPS employees knew that. He said that Nolan was not a foreman at GPS but was the contact person between Bruck and GPS on the cladding job.
40 In re-examination, Mr Golding said that the absence of a time sheet for 3 October 2000 from the worker was explicable on the basis that he left work injured. Any request from Bruck for extra work to be done would be made to Mr Golding. Out of the $19,004 charged by GPS to Bruck for the dye machine contract, $2240 of that work (involving installation of the canopy, fan, flue and flashing) was sub-contracted to Villiers. The rest of the work (getting the fan wired up and the sprinkler system installed) was to be arranged by GPS with other contractors.
Evidence of the co-worker
41 Nolan gave evidence which can be briefly summarised. He has been a qualified plumber since the early 1990’s. He was employed by GPS in 2000 and 2001 and worked on the cladding contract at the site with the worker. He adopted his statement dated 31 May 2006 in which he stated, inter alia:
…At the same time that Geoff and I were wall cladding at Brucks, there was another contractor from Millright’s, a local engineering firm. They had been contracted by Golding Plumbing Services to install flues on the roof and we saw them on a daily basis.
On the 3rd October 2000, Geoff Fallon and myself were performing our normal task, attaching colorbond sheets to a wall. My memory is a little hazy, but I recall that one of the blockes from Millrights asked us to give them a hand. I cannot recall what they required us to assist with. I cannot recall assisting them to raise an air conditioning unit…….Since the roof of the building is of the saw tooth design, it may have been that they asked us to assist them to raise the item, from the roof, to the next level of the saw tooth, which would be around 21/2 metres. I cannot recall assisting them to perform any task like that, but I do recall being on the roof for some reason, which would not have been associated with our cladding work, as we were not required to get onto the roof to perform that task….
…I appreciate that we should not have assisted Peter Campbell and Dennis Saunders as this was not part of our job description and I believe that it was their responsibility to look after their own tasks, however I knew that they had been contracted by Goldings and I could see no reason, not to assist them. This is normal practice on most jobs. [23]
[23] See PCB 645.
42 Nolan stated that he left the roof and went to get his ute and when the worker did not appear he climbed back on the roof and was told by either Campbell or Saunders that the worker had hurt his back. He saw the worker crouched over in apparent pain.
43 At the hearing, he said that when he made the statement in 2006 his memory was hazy. He could not recall which of Villiers’ employees asked him for a hand. He said he knew that Villiers was working on some flues on the site, but said that he and the worker had no involvement in that work. At the time of the request for help from one of Villiers’ employees, Nolan was working on the cladding job. He said he understood that the work being done by Villiers on the roof on 3 October 2000 was work pursuant to some contract between Villiers and GPS. He said he was not the foreman on the site but was more senior than the worker and made decisions as to what they did on the cladding job on the site. He said that on 3 October 2000 the only work being done by GPS at the site was the cladding job. He was not present when the worker was injured. He did not have safety concerns while on the roof about the way that work was being performed. He said he did not carry the worker down the ladder after he was injured, but agreed he drove him to the chiropractor.
Statement of Peter Villiers dated 4 May 2005
44 The VWA tendered the handwritten statement of Peter Villiers which was in the following terms:
I Peter Villiers on the 8th day of Oct 2000 carried out work at Brucks for Golding Plumbing, installing a stainless steel water main and 2 stainless steel flues. I was asked by Stan Golding if I could give him 2 men to give his plumbers a hand on the roof with some air conditioners.
I gave him the men and they were gone for about ½ hour. I had stayed working on my job until the men came back. They then told me one of Stans plumbers had said that he had hurt his back and that one of Stans plumbers has apparently taken him to the chiropractor.
One of my men did not go up on the roof he stayed on the ground and assisted the crane drive to lift the air conditioners from the ground to the roof. The other man assisted the plumbers to move the airconditioners.
I was not on the roof at the time and I know nothing about a ladder being dropped as Fallon suggests.[24]
[24] See PCB 153.
Submissions of Villiers
45 The submissions made by Villiers may be briefly summarised
Significance of compensation paid in respect of a later injury
46 The subject of the compensation payments must be the subject of the legal liability referred to in section 138(1). In this case, the injury suffered on 3 October 2000 resulted in compensation payments after which the worker returned to work. He suffered further injury in the “whacker-packer” incident in January 2001, and claimed and received compensation payments for that injury. This aggravation amounts to a separate injury under the definition of injury in s.5 of the Act. The existence of separate and distinct injuries, with only the first being the one which was caused in circumstances creating the legal liability to pay damages but the later one giving rise to the payments of compensation, means that there is no “injury” upon which s.138 can operate [25]
Course of employment
[25] Counsel relied for this proposition on Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd [1975] HCA 23.
47 The evidence of Mr Golding to the effect that the worker had no authority to be on the roof contradicts the pleadings. If his evidence is accepted, it follows that the injury did not arise during the course of the worker’s employment and that payments of compensation made by the employer to the worker were not in accordance with section 82(1) of the Act. However, if Mr Golding’s evidence on this point is rejected (on the basis that it conflicted with the evidence of Nolan and the worker), then the payments made to the worker were in accordance with section 82(1) of the Act. It is open to the Court to reject some of Mr Golding’s evidence but to accept his evidence on other matters, including, for example, that GPS had other work going on at the site.
Factor X- zero or no more than 50%
48 On the evidence it was open to the Court to conclude that on 3 October 2000 the Villiers’ employees were in fact loaned by Villiers to an operation being conducted on the roof by GPS. If in fact Villiers had the job and sub- contracted some of the work to GPS, then once the activity was put in the hands of a competent sub-contractor GPS, GPS had control of the job, including the ladder lowering process, and there was no ongoing duty of care owed by Villiers to GPS with respect to the safety of the work methods used by GPS. In this regard counsel relied on the decisions of Pacific Steel
Constructions Pty Ltd v Barahona (No 2),[26] Leighton Contractors Pty Ltd v Fox
& Ors[27] and Stevens v Brodribb Sawmilling Company Pty Ltd.[28] Villiers also relied on the worker’s evidence that there were two other GPS employees on the roof that day and submitted that the Court ought to have expected to hear evidence from them. In addition, Villiers relied on the absence of evidence from the worker or Nolan that they sought supervision or direction from Campbell or Saunders, or that the task of lowering the ladder required supervision.
[26] [2010] NSWCA 9.
[27] 258 ALR 673.
[28] 63 ALR 513 at [76].
49 Alternatively, if Saunders owed the worker a general duty of care which required him to exercise reasonable care to avoid the foreseeable risk of injury, there was no evidence that the lowering of the ladder gave rise to a foreseeable risk of injury, or that there was a safer system that could have been adopted, or that the worker sought instructions from Saunders in relation to the lowering of the ladder. Given the experience of the worker, Saunders was entitled to expect that the worker would exercise reasonable care for his own safety. There was no evidence of any negligent act nor default by Saunders which gave rise to the injury. There was no evidence that Villiers’ employees had strapped the ladders down before asking Nolan to help lower them. The mere realisation, once the ladder was being lowered, that it was too heavy, did not establish anything more than a miscalculation by the worker and Saunders. Accordingly, there was no negligence by Saunders, and no contributory negligence by the worker. If there was negligence by Saunders, then the worker also contributed to his own injury by his conduct.
50 Thirdly, it was submitted, even if the roof work was a joint enterprise between GPS and Villiers and both owed the worker a duty of care, GPS had a non- delegable duty of care to provide a safe working system for its employees. Due to the presence of the worker and Nolan (who was the senior GPS employee on the site) on the roof, GPS was fixed with knowledge of the task being performed by the men on the roof at Villiers’ request and GPS was liable in the circumstances for the unsafe working system of its independent contractor – Villiers. In this regard counsel relied on the decision of the High Court in Kondis v State Transport Authority.[29]
[29] (1984) 154 CLR 672 at [35].
51 On the question of apportionment, Villers submitted that I should consider the comparative culpabilities of Villiers, GPS and the contributory negligence of the worker. It was submitted that in respect of the scope of the duty of care owed by Villiers as entrepreneur on the site, there was no breach by Villiers and Factor X should be found to be zero. Alternatively, if Villiers was found to have breached its duty of care, Factor X should be found to be no greater than 50% because that is the figure contended for by the VWA when the case was opened and Villiers relied on this indication for the manner in which it conducted its case.
Submissions of VWA
52 The VWA’s submissions may be briefly summarised as follows:
53 The s.239A certificates, along with the medical and lay evidence, confirm that the injury in respect of which compensation had been paid was the injury to the lumbar spine sustained on 3 October 2000.
54 In a recovery action the plaintiff does not have to prove compliance with s.82(1) and establish injury in the course of employment. In its terms, s.138(1) does not contain this condition. Absent fraud, once payments are paid, then s.138(1) and (3)(a) are satisfied and the court may proceed to consider the question of apportionment. However, even if s.82(1) of the Act is relevant, on the authority of Bugge v Brown,[30] the worker was acting within the scope of his employment when manoeuvring the ladder with Saunders.
[30] [1919] VLR 264.
55 As a sub-contractor on the site, in charge of the performance of the dye machine contract, Villiers owed a duty of care to the worker in a number of ways. Firstly, on general principles, given that the worker was helping Saunders on a job controlled by Villiers, and the foreseeability of risk of harm in the manner chosen by Saunders to lower the ladder, Villiers was vicariously liable for the unsafe system of work devised by Saunders for lowering the fire ladder from one part of the roof to another party of the roof.
56 Secondly, Villiers owed worker the entrepreneurial duty of care referred to in Stephens v Brodribb[31] to prescribe and provide a safe system of work for the work on the roof, including the lowering of the ladder, because it was performing the works on the roof and because of the control and supervision of these works through Saunders and Campbell.
[31] Stephens v Brodribb Sawmilling Co Pty Ltd 63 ALR 513.
57 Thirdly, the VWA relied on the labour hire contract cases,[32] and submitted that although the worker remained an employee of GPS he came under the control of Saunders and therefore Villiers for the specific purpose of the alleged manoeuvre. In this regard, it was submitted (for the first time in closing address) that the worker became a servant pro hac vice by reason that he was seconded to Villiers’ work activities for an occasion, which was to assist on the roof with the manoeuvring of the ladder.
[32] In particular, TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1.
58 The VWA submitted that on the evidence, Villiers breached its duty of care to the worker because its employee Saunders devised an unsafe system of work, the method proposed by Saunders to lower the ladder, and the worker was injured as a result of the implementation of that system.
59 In relation to any duty owed by the employer, it was submitted that to the extent that Villiers was a competent contractor engaged by GPS to perform certain specialised aspects of the dye machine contract, GPS did not have an ongoing general law obligation in relation to the safety of the methods adopted by Villiers. In this regard, counsel relied on Leighton Contractors Pty Ltd v Fox
& Ors.[33]
[33] 258 ALR 673.
60 Finally, the VWA submitted that even if GPS had a non-delegable duty to provide a safe system of work for the worker and was liable for any negligence on the part of its independent contractor in a failure to provide a safe system of work, there was no breach of the duty in this case because GPS did not have the opportunity to be present at or involved in the ladder manoeuvring exercise. In this regard, counsel submitted that Kondis[34] was distinguishable because in that case the respondent had a foreman present while the crane driver was giving instructions and the foreman had a duty to take reasonable steps to protect the appellant from injury and to that end to prescribe and assist the work of its agents.
[34] Kondis v State Transport Authority (1984) 154 CLR 672.
61 On the question of apportionment, the VWA submitted that the Court could have regard to the acts, default or negligence of Villiers and GPS in assessing their relative share of responsibility for the ladder incident. The act relied on by the VWA was the way in which Saunders drew on the assistance of the worker and used the rope mechanism for lowering the ladder.
62 The VWA submitted that GPS had no involvement in the dye machine contract works being performed on the roof at the site on 3 October 2000. GPS had sub-contracted the performance of those works to Villiers. For this reason, the ladder lowering activity was under the control, supervision and a system of work implemented by Villiers through Saunders. As a matter of the relevant standards of care, it was submitted that Villiers had by far the greater share of responsibility for the worker’s welfare when he was working at height with a Villiers employee and engaged in a difficult and unsafe manoeuvre with the ladder. It was submitted that an apportionment of 70% to Villiers and 30% to GPS was appropriate because at the time of the incident GPS did not have the direct ability to control or influence or prevent the ladder incident that occurred. In this regard, the VWA relied on the decision of the Court of Appeal in Esso Australia Ltd v Victorian WorkCover Authority & Anor.[35]
Findings and reasons
[35] (2000) 1 VR 246.
63 The parties advised me at the commencement of the proceeding that as part of the settlement of the recovery action as between the VWA and Bruck, Bruck agreed to pay the VWA the sum of $15,000. I consider that the question as to whether the sum of $15,000 received by VWA from Bruck is to be deducted from the weekly payments of $51,710 paid to the worker should be determined after I have heard argument concerning consequential orders to be made flowing from my decision concerning Factor X.
Threshold matters
64 In its terms, section 138(1) of the Act does not require proof of injury in the course of employment within the meaning of s 82(1) of the Act. Even if such proof were required, I consider that at the time of his injury the worker was manoeuvring a fire ladder whilst engaged at the workplace and performing an act that was incidental or in furtherance of his employer’s sub-contract with Villiers and his employer’s head-contract with Bruck.[36] This is so notwithstanding the evidence of Mr Golding that he did not authorise his employees to be on the roof or to do work for Villiers.
[36] See Bugge v Brown [1919] VLR 264, where the High Court held that the criterion of an employer’s liability is not the precise terms of the authority but rather the function, the operation or the class of act to be done by the employee.
65 Having regard to the weight of the medical evidence to the effect that the accident of 3 October 2000 was the principal cause of the worker’s long-term disabilities, I do not consider that the principle expounded in Dillingham is relevant to the facts of this case.
66 Section 239A of the Act provides:
A certificate purporting to be signed by an officer or employee of the Authority certifying as to any of the prescribed particulars specified in the certificate relating to amounts (including amounts of compensation) paid or payable by the Authority under this Act or the Accident Compensation (Workcover Insurance) Act 1993 is evidence of the matters stated in the certificate and, in the absence of evidence to the contrary, is proof of those matters.
67 The certificates under s.239A of the Act (the first being the non time-barred period and the second being the lesser sum of $57,710 from the commencement of the limitation period six years before 5 November 2001 when the writ was filed) create an evidentiary presumption that the payments made were in respect of the injury sustained on 3 October 2000, and this evidence is supported by the medical evidence of Mr Brearley, Professor Teddy and Dr Dawkins to the effect that the episode of 3 October 2000 was the principal incident which precipitated the worker’s long-term disabilities and that later incidents were merely exacerbations of original injury. There was also evidence of the worker[37] and Nolan concerning the occurrence of an incident on the roof on that day which resulted in the worker suffering acute pain, fainting and requiring hospitalisation for four days.
[37] At T 58 and T 59.
68 As “compensation” is not defined in the Act, the word should be given its ordinary and natural meaning,[38] that is, “payment to make amends for loss or injury to person or property, or as recompense for some deprivation”.[39]
[38] See Alcoa Portland Aluminium v VWA (2007) 18 VR 146 per Chernov JA at [13].
[39] Osborn’s Concise Law Dictionary, 9th Ed.
69 Once payments are payments as compensation, s.138(1) and (3)(a) are satisfied[40], and the Court is required to address the apportionment aspect of liability.
The contractual arrangements on 3 October 2000
[40] See Frank G O’Brien Ltd v Bain [1975] NSWLR 373 at 374 where the NSW Court of Appeal held, in relation to a similar provision, that any compensation paid pursuant to an award was paid under the Act, regardless of whether it was properly payable or not. The decision was affirmed by the High Court in Bain v Frank G O’Brien Ltd [1976] 135 CLR 158. See also Kurnell Passenger &Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59 at 100 where the Court held that evidence of payments by way of compensation to the worker “is sufficient to make good the precondition to recovery on the indemnity”. See also Victorian WorkCover Authority v Kenman Kandy Pty Ltd [2002] VSCA 190 per Batt JA and Vincent JA at [11]-[16].
70 I am satisfied on the documentary and oral evidence before me that on 3 October 2000 GPS had two contracts with Bruck. The first of these was a dye machine contract worth $19,004.21, as evidenced by Order no. 37312.[41] The performance of $2,240.00 worth of this contract, for the manufacture and fitting of flues and flashings to the dye machine, was sub-contracted by GPS to Villiers and was being performed by Villiers’ employees, Saunders and Campbell at the site on 3 October 2000.[42]
[41] See PCB 419 and 423A.
[42] See the record of payment from Golding to Villiers at PCB 470, and the evidence of Mr Stan Golding.
71 It was not put to the worker that the work on the roof was his operation and that he or someone on behalf of GPS asked Villiers to help with that work. I note also that the evidence of Nolan was that he and the worker had no involvement with the flue works being performed on the 3 October 2000 by Villiers, and that he believed that Villiers had been contracted by GPS to do that work and Nolan saw no reason not to assist them. It was not put to Nolan that he or someone on behalf of GPS asked Villiers to help GPS with the task on the roof. I accept the unchallenged evidence of Mr Golding, the worker and Nolan that GPS was not performing any work on the roof on the site on 3 October 2000. In spite of the recollection of the worker that there were two other GPS employees on the roof when he went to assist Saunders and Campbell, I prefer the evidence of Mr Golding (who produced the time sheets of his remaining employees for the day to establish that they were not working at the site) and that of Nolan (who said there were no others GPS employees on the roof) on this point.
72 The second contract was the wall cladding contract worth $108,964.00, as evidenced by Order no. 34450.[43] On 3 October 2000, until the worker was injured and was replaced by Mr McCormick, there were two GPS employees on the site working on the cladding contract: the worker and Nolan.
The events of 3 October 2000
[43] See PCB 407.
73 There was no viva voce evidence from Mr Villiers, and no evidence at all from Saunders or Campbell. The failure to call them allows me to be more satisfied in accepting the evidence of the worker, Nolan and Mr Golding that Villiers asked Nolan for help on the roof, and the evidence of the worker as to the manner in which the ladder manoeuvre was performed. The failure to call Mr Villiers means that I attach little weight to his statement in the light of the evidence to the contrary of the worker, Nolan and Mr Golding.[44]
[44] Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916.
74 I accept the unchallenged evidence of the worker and Nolan as to how they came to be assisting Campbell and Saunders on the roof of the site on 3 October 2000, and I accept the unchallenged evidence of the worker as to the circumstances in which he sustained injury while lowering the ladder with Saunders.
75 I accept the evidence of Nolan and the worker that it was common practice for GPS employees to assist Villiers’ employees (and vice versa) when they were working on separate jobs on the same site. I accept his evidence, with which the worker and Mr Golding agreed, that he was the senior GPS employee on site on 3 October 2000, that he instructed the worker on the cladding job, and that he invited the worker to go with him to the roof to assist Villiers’ employees in response to a request from them.
Duty owed by Villiers
76 It follows from the above findings concerning the contractual arrangements between Brucks, GPS and Villiers that I reject the first scenario posited by Villiers in its submissions.
77 I consider on the evidence that as a sub-contractor on the site Villiers owed a duty of care to the worker to ensure that a safe system was adopted by its employees in lowering the ladder. Given that the worker was helping Saunders on a job controlled by Villiers, and the foreseeability of risk of harm in the manner chosen by Saunders to lower the ladder, Villiers was vicariously liable for the unsafe system adopted by its employee Saunders for lowering the ladder from one part of the roof to another part of the roof, which resulted in the worker’s injury.
78 In addition, I consider that Villiers is liable because it owed the worker the entrepreneurial duty of care referred to in Stevens v Brodribb[45] to prescribe and provide a safe system of work for the works on the roof it was performing, controlling and supervising. On the unchallenged evidence of the worker,[46] it was Saunders who proposed the means by which the ladders were to be lowered – with ropes; he would tie his end, “I would tie the rope on my end and we would lift it up lower it over the side”.[47] According to the worker, it was Saunders who was in control of the manoeuvre that was being done.[48]
[45] 63 ALR 513.
[46] See T55 and T57.
[47] See T58, lines 18-21.
[48] See T81, lines 5-19.
79 Given these findings, it is not necessary to consider the third basis on which it could be said that Villiers owed the worker a duty of care. Although in opening counsel for the VWA referred to the labour hire cases, it was only in closing address that it was suggested, for the first time, referring to Kondis, that the worker at the time of his injury was a servant pro hac vice of Villiers. This allegation was not pleaded by the VWA, nor did counsel address me in detail as to the basis upon which I could find that, for the activity of the lowering of the ladder, the worker ought to be treated as an employee of Villiers. For this reason, I do not propose to consider this limb of the submissions made by the VWA.
Breach of the duty of care by Villiers
80 I consider on the evidence that Villiers breached its duty of care to the worker because its employee Saunders devised an unsafe system of work, that is, the method proposed by Saunders of lowering the ladder by hand using rope only, and the implementation of that system caused or contributed to the worker’s injury.
Duty owed by GPS
81 However, I also consider that GPS had a non-delegable duty to provide a safe system of work for the worker, including a safe system for any activity which may be conducted during the course of the worker’s employment. I have noted the role of Nolan on the site (effectively supervising the worker in the performance of the cladding works); his role in agreeing to a request from Villiers for assistance on the roof in performance of works related to the dye machine contract; and his instruction to the worker that they would be providing that assistance on the roof. I have also noted the evidence of the worker and Nolan concerning the practice of GPS employees “lending a hand” to other on site contractors. In these circumstances, I consider that GPS was fixed with knowledge of the worker’s activities and had an ongoing obligation for his safety.
Breach of the duty of care by GPS
82 I reject the VWA’s submission that there was no breach of the duty in this case because GPS did not have the opportunity to give directions in the ladder manoeuvring exercise and therefore Kondis[49] was distinguishable.
[49] Kondis v State Transport Authority (1984) 154 CLR 672.
83 I consider that the facts in this case are similar to those in Kondis. According to Mr Golding and the worker, Nolan was effectively the worker’s supervisor on the site. Nolan gave evidence that from time to time employees of GPS and Villiers helped each other on sites where they were both working. Nolan was the conduit through which the worker was invited to assist Villiers’ employees in lowering the ladder. Nolan was on the roof at the time the ladder was to be lowered. He was in a position to direct the worker, on behalf of GPS, as to what he should or should not do in relation to the manoeuvre.
84 In accordance with the judgment of Mason J in Kondis the fact that Saunders gave instructions to the worker did not relieve GPS, through Nolan, of its obligation to take reasonable steps to protect the worker from injury, and, to that end, of prescribing and implementing a safe system of work for the lowering of the ladder. Further, GPS knew or ought to have known of the practice of its employees “lending a hand” to other on- site contractors (in this case, an on-site contractor contracted by GPS) and there was no evidence of any steps taken by GPS to provide instructions to its employees including the worker in such circumstances.
85 In the circumstances of this case I consider that GPS breached its non- delegable duty of care to provide a safe system of work for the worker carrying out his employment at the site, and that the breach was a cause of the plaintiff’s injury.
Contributory Negligence of the worker
86 It was submitted by Villiers that if there was negligence by Saunders in the system he suggested for the lowering of the ladder with the worker, that there was also contributory negligence of the worker.
87 I have accepted the worker’s evidence concerning the circumstances in which he went on the roof to assist Villiers employees and participated with Saunders in lowering the ladder. I find that the operation of lowering the ladder was controlled by Villiers, through its employee Saunders. I accept that the worker was following a system of work (lowering the ladder) proposed by Saunders which was inappropriate and unsafe. Even accepting that the worker ought to have taken better steps to look after his own safety, his failure to do so, given his belief that it was Villiers’ job and they were in control of it, was no more than inattention or inadvertence.
88 There is in my view no contributory negligence on the part of the worker in following that system and not himself attempting to devise a modification to avoid the risk of injury. In Kulczycki v Metalex Pty Ltd[50] Ashley J (as he then was) said[51]:
…It may be that a particular risk of injury is readily foreseeable in the event that a system of work which addresses that risk is not implemented and maintained and that the worker is thereby facilitated to conduct himself without due care for his own safety; or, for that matters, inadvertently or inattentively. Indeed, in such a case the principal reason why such a system of work should be implemented and maintained may well be to deny or limit the opportunity for the worker to engage in careless conduct. In such a case it appears to me consonant with principle to conclude that a finding of contributory negligence should not be open in the event that the employer breaches its duty of care, and that the worker so conducts himself.
[50] [1995] 2 VR 377.
[51] At p. 409
89 For these reasons, I consider that there was no contributory negligence on his part.
Apportionment and Factor X
90 The apportionment of blame between joint tort-feasors for the injury suffered by the worker falls to be assessed by comparing the significance of the respective departures from the relevant standards of care required.[52]
[52] Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529.
91 As Winnecke J noted in Esso:[53]
Such a comparison involves matters of relative emphasis, proportion and value judgment upon which reasonable minds might differ and which does not readily admit of articulation.
[53] Esso Australia Ltd v Victorian WorkCover Authority & Anor (2000) 1 VR 246 at [21].
92 When addressing the question of apportionment, the parties each submitted that only the conduct of GPS and Villiers needed to be considered, and neither party made submissions in respect of the conduct of Bruck as an occupier.[54]
[54] See T page 430 where counsel for the plaintiff indicated that both parties appear to have conducted the case on the basis that it was not necessary to reach conclusions concerning the conduct of Bruck for the purpose of apportionment.
93 I note that in its opening, the VWA sought a declaration that Factor X be in the order of 50%. In its closing address, counsel for the VWA submitted that Factor X should be found to be in the order of 70%. Counsel for Villiers submitted that the VWA should be held to the position outlined in its opening. I do not consider it necessary to determine that question, as the value of Factor X is ultimately a matter for me to determine, and I have reached my conclusion on the value of Factor X on the evidence before me and for the reasons stated below.
94 Accordingly, I proceed to consider the extent, expressed as a percentage (of $427,000), whereby Villier’s act, default or negligence caused or contributed to the worker’s injury. In order to do so, in the circumstances of this case, I must also consider the conduct of the employer, GPS.
95 The areas where Villier’s “act, default or negligence caused or contributed to the injury” are as stated above. I do not consider that the apportionment made in the case of Esso is of great assistance in determining Factor X in this case. In Esso, the decision to apportion 80% liability as against Esso, the occupier of the oil platform where the injury occurred and 20% as against the employer, a labour hire company, flowed from the fact that Esso had immediate control of the rig and the facilities within it and therefore by far the greater opportunity to rectify the defects which existed.[55]
[55] Esso Australia Ltd v Victorian WorkCover Authority & Anor (2000) 1 VR 246 at [21].
96 In this case, however, I have found that while the method for lowering the ladder was proposed by Saunders, GPS had the opportunity, through Nolan, who was present at the time of the manoeuvre, to give directions or instructions to the worker as to the extent or manner of his participation in the ladder-lowering manoeuvre. For this reason, I consider that the departure of GPS and Villiers from the standards of care imposed on each of them was considerable.
97 Doing the best I can in assessing the respective departures from the relative standards of care as between GPS and Villiers, I consider that Villier’s act, default or negligence caused or contributed to the worker’s injury to the extent of 50%. Factor X is therefore 50% of $427,000 that is, $213,500.
98 I will hear the parties in relation to any further orders sought. I reserve the question of costs.
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