VWA v Downer Utilities Australia Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2016 02983

Victorian Workcover Authority	Plaintiff
v
Downer Utilities Australia Pty Ltd (previously known as Tenix Alliance Pty Ltd)	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2016 and 1 December 2016
DATE OF JUDGMENT:	20 December 2016
CASE MAY BE CITED AS:	VWA v Downer Utilities Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 775

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ACCIDENT COMPENSATION ACT – Section 138 indemnity proceeding – Section 138(3)(b) formula – Assessment of Factor X – Determination of liability – Extent to which each defendant liable – Causation – Contributory negligence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Dugald McWilliams	Russell Kennedy
For the Defendant	Mr Jonathan Brett QC with Mr M Hooper	HWL Ebsworth Lawyers

HER HONOUR:

Introduction

In this proceeding, the plaintiff, Victorian Workcover Authority (VWA) seeks to recover from the defendant, Downer Utilities Australia Pty Ltd (previously known as Tenix Alliance Pty Ltd) (Tenix) under s 138 of the Accident Compensation Act 1985 (the Act), payments and compensation made to Mr Shane East, in respect of his work related injury (the recovery proceeding).

On 4 June 2010, Mr East, an installation fitter, injured his back while he was lifting a steel penstock gate at the Melbourne Water Corporation’s Eastern Treatment Plant (ETP). Mr East settled his claim against his employer, AWMA Pty Ltd (AWMA) and Tenix in a related proceeding, East v AWMA Pty Ltd & Ors (S CI 2014 05930) (the worker’s proceeding). Mr East’s claim was settled after judicial mediation at which time, his claim had been on foot in this Court for eight days.

The recovery proceeding pursuant to s 138 of the Act by the VWA against Tenix was unresolved. This judgment determines that dispute. At the commencement of this proceeding, the Court had received a large quantity of evidence, viva voce and documentary, which by order of the Court made on 11 November 2016 is to be received as evidence in this case.

The VWA hold Tenix partly responsible for Mr East’s injuries and accordingly, for the payment of compensation. However, the VWA concedes that AWMA must also carry a share of the responsibility for Mr East’s injury.

Factors A and C of the s 138(3)(b) formula is set out in paragraph 6 of these reasons. At the recovery proceeding, Counsel for Tenix accepted that Tenix was the principal contractor at the ETP site,[1] for the purposes of the Wrongs Act.
[1]Transcript, VWA v Downer Utilities Australia Pty Ltd (S CI 2016 02983) 123 L6 (‘recovery proceeding’).

The provisions of s 138 of the Act

It is only necessary to set out part of s 138 of the Act, which deals with liability and apportionment if Tenix, ‘the third party’ is found liable. The relevant part of s 138 of the Act reads as follows:

Indemnity by third party
(1)Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2)In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Divisions 8A and 9 of Part IV must not be taken into account.
(3)The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958 , in accordance with the formula—
[A – (B + C)] x/100

Where —
Xis the extent, expressed as a percentage, whereby the third party’s act, default or negligence caused or contributed to the injury or death;
Ais the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
Bis the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
Cis the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.

Background

Melbourne Water Corporation (Melbourne Water) is the owner and occupier of the ETP site in Carrum Downs.[2] In about 2006, Melbourne Water planned upgrades to the ETP site due to the growing nature of the south eastern suburbs.[3] Melbourne Water engaged Tenix to construct new aeration tanks for the extension of the ETP site and Tenix in turn engaged AWMA to supply and install penstock gates for the newly constructed aeration tanks at the ETP. AWMA was an expert irrigation firm and performed construction work of gates which release volumes of water. Mr East, an employee of AWMA, was part of the team installing the penstock gates at the ETP.
[2]Transcript, East v AWMA Pty Ltd & Ors (SCI 2014 05930) 6, LL4-5 (‘worker’s proceeding’).
[3]Ibid 8 LL7-10.

Following the installation of the penstock gates, Melbourne Water performed testing of the penstocks and detected that the flow rate, being the leakage from the penstock when it was sealed, was in excess of the specified amount.

In early 2010, AWMA asked Mr East to remove the gates, which were sent back to the AWMA head office in Cohuna, where they were modified and re-tested.[4]
[4]Ibid 41 LL10-29.

After the gates were reinstalled,[5] Mr East was informed that there was a problem with the seal on one of the gates that had been reinstalled[6] in that the seal was still not compliant with the leakage rate. This led to the requirement for AWMA workers to repair the leak. The AWMA employees that ultimately attended the site to undertake the work on 4 June 2010 were Mr East, Mr Brian Hammond and Mr Michael Novaselek.
[5]Ibid 45 L15.
[6]Ibid 45 L23.

From Monday 31 May 2010 until Thursday 3 June 2010, Mr East, together with four other AWMA employees (Michael Novaselek, Brian Hammond, Chris Dalrymple and Chris Thornton) were working on a job at the nearby Water Resources Alliance site (WRA site).

At some point on Thursday 3 June 2010, the AWMA employees were advised by their head office in Cohuna, Victoria, that three workers were required to remain on Friday 4 June 2010 to perform a job at the ETP. Mr Hammond, Mr East and Mr Novaselek, each of whom were assigned to a job outside of Victoria the following week, were to remain behind to complete the Tenix job at the ETP.

The three AWMA workers attended the ETP site on the morning of 4 June 2010 between approximately 7.00 and 7.30 am. Mr East gave evidence that he had asked Darryl Matthews, the Tenix foreman on the day, for a crane to perform the work.[7] Mr Matthews was unable to organise a crane for the AWMA workers. The AWMA workers lifted the penstock gate using ropes and it was during this activity that Mr East injured himself. A critical issue is whether Mr Matthews knew that the AWMA workers were going to use ropes instead of a crane. I will address the circumstances of the injury later in my judgment.
[7]Transcript, worker’s proceeding, 207 LL 1-17.

Job Safety Environment Analysis and Safety Work Method Statements

I was taken to a set of slides used by Tenix entitled ‘Project Safety and Environment Induction’.[8] Whilst there were two versions of the induction slides before the Court, it was submitted that nothing turns on the fact that there are two versions, and it was agreed that the applicable version is Exhibit 2.
[8]Recovery proceeding, exhibit 2.

Two of the documents which are referred to in the induction slides are the Job Safety Environment Analysis (JSEA) and Safety Work Method Statement (SWMS). In broad terms, a SWMS is a description of systems to be used in performing a job and the JSEA is an identification of the hazards and instructions as to how to reduce them.

The induction slides record amongst other things the need for a SWMS and JSEA,[9] that all construction work must be in accordance with the JSEA and the SWMS, and that every person undertaking work has to understand these documents and sign them.[10]
[9]Ibid slide 41.
[10]Transcript, worker’s proceeding, 12 LL3-11; recovery proceeding, exhibit 2 slide 42.

All contractors are required to have copies of the JSEA and SWMS at their workplace or in their truck.

The relevant SWMS and JSEA are at exhibits 6 and 7 respectively. The SWMS contains the following relevant information:

Job location: ETP Aeration Tanks — Carrum Downs
Task Description: installation of penstocks in tanks 7, 8, 9 and 10
Start date: 9/5/2009
Equipment required: drilling/grinding hand power tools, cleaning and sealing equipment, pallet truck, 80 ton crane, scissor lift (emphasis added).

The SWMS is signed by a number of individuals, including Mr East.

The JSEA contains the following relevant information:

Job location: ETP new aeration tanks
Job details: the installation of penstocks in tanks 7-10

The JSEA is signed by a number of individuals, including Mr East who signed it on 23 June 2009.

The VWA’s amended writ and statement of claim dated 29 November 2016

In its amended writ and statement of claim dated 29 November 2016, the VWA claims indemnity from Tenix pursuant to s 138 of the Act in respect of payments of compensation and/or s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act). The VWA also seeks a further declaration that Tenix indemnify the VWA pursuant to s 138 and/or s 369 of the WIRC Act in respect of payments that the VWA may be required to make in respect of Mr East.[11]
[11]Amended Statement of Claim dated 29 November 2016 [A]-[F].

The VWA pleads that the incident causing Mr East’s injury was caused by Tenix’s negligence and breach of statutory duty.

The particulars of negligence and breach of statutory duty are pleaded at paragraph 11 of the amended statement of claim. Further, or in the alternative, the VWA alleges that Tenix was at all material times an occupier of the ETP within the meaning of Part IIA of the Wrongs Act 1958 (as amended) and that pursuant to s 14B of Part IIA of the Wrongs Act, owed a duty of care to Mr East to take such care as in all the circumstances of the case was reasonable to see that Mr East would not be injured or damaged by reason of the state of the ETP or things done or omitted to be done in relation to the state of the ETP. The particulars of the breach of duty of care owed to Mr East pursuant to s14B of Part IIA of the Wrongs Act are set out in paragraph 3 of the amended statement of claim which refers to the particulars subjoined in paragraph 11.

In summary, the VWA alleges that Tenix:

(a) failed to properly supervise and direct AWMA’s workers onsite by permitting them to use ropes to lift the penstock gate;

(b) failed to ensure that work was being performed in accordance with the SWMS; and

(c) failed to provide a crane or other mechanical assistance.

The VWA also relies on five breaches of statutory duty:

(a) Regulation 2.1.1 – failing to ensure that a measure to control risk is properly installed, used and maintained;

(b) Regulation 2.1.2 – failing to provide the worker with such information, instruction and training as was necessary for the worker to perform his duty without risks to health;

(c) Regulation 3.1.2(1) – failing to ensure the risk of a muscular skeletal disorder associated with hazardous manual handling is eliminated insofar as is reasonably practicable;

(d) Regulation 3.1.2(2) – failing to reduce the risk of muscular skeletal disorder associated with hazardous manual handling so far as is reasonably practicable by using mechanical aids; and

(e) Regulation 3.1.2(3) – failing to provide the worker with any or any sufficient information, instruction or training regarding the risk of muscular skeletal disorder associated with hazardous manual handling.

Tenix denies any breach of duty or breach of statutory duty. It admits that it was an occupier of the ETP site within the meaning of the Wrongs Act.

It was conceded by Counsel for Tenix that if as a matter of fact I accept that Mr Matthews was aware that ropes were going to be used, then there is liability on behalf of Tenix.[12] Mr Matthews accepted in his evidence that if he was present whilst AWMA’s workers were performing in the fashion they described that he would not have been doing his job. If those facts are accepted, the parties agree there should be a finding of negligence on the part of Tenix. Further, if that factual matrix is accepted by the Court, the parties agreed that Tenix would have also breached its statutory duty.[13]
[12]Transcript, recovery proceeding, 102 LL25-28; 112 LL5-6.
[13]Ibid 102 LL25-28; 132 LL22-24.

Having said that, the VWA accepts that AWMA is also negligent and/or it has breached its statutory duty. In those circumstances, the sole issue remaining is causal potency and whether Mr East has been contributorily negligent.

The primary factual dispute between the parties is whether Mr Matthews was:

(a) present when Mr East and his colleagues were performing the task on 4 June 2010 in which Mr East injured himself; and/or

(b) at or involved in the decision to use the system by which the penstock gate was lifted by ropes.

For the reasons set out below I consider that Mr Matthews was present when the AWMA workers were performing the work in the manner described by them on 4 June 2010. Accordingly, I consider that Tenix has breached its duty of care to Mr East and/or breached its statutory duty.

Evidence in relation to Mr Matthews’ presence and knowledge of the work by Mr East and the AWMA employees on 4 June 2010

Oral evidence was given by Mr East, Mr Hammond and Mr Novaselek in the worker’s proceeding and by Mr Matthews in the recovery proceeding.

It is necessary to go through the oral evidence of each of the witnesses and relevant exhibits in some detail.

Mr East gave evidence which is not disputed that he was involved in the installation of six to eight penstock gates at the ETP which had been removed as they needed repairing. The evidence was that on Thursday 3 June 2010 he was required to go to the Tenix site at the ETP to fix the leaking seal on a door.[14] Mr East said that the leaking door was to be repaired on Friday 4 June 2010 and that his AWMA supervisor, Lee Fletcher, had contacted him by phone and told him he was required to do the job for Tenix on 4 June 2010 with Mr Hammond and Mr Novaselek. Mr East said that Mr Fletcher told him the job needed to be done no matter what because Tenix still owed AWMA $80,000. Mr Fletcher did not know what the problem was with the seal.
[14]Transcript, worker’s proceeding, 49.

Mr East said that on 4 June 2010 Mr Novaselek was in charge of the AWMA workers.[15] Mr East said that once they knew there was no crane available he had a conversation on a mobile phone with Mr Fletcher who was in Cohuna at AWMA’s head office at the time. His evidence was that he could only recall the one main conversation on the morning of 4 June 2010 and it was to the effect that the AWMA workers could not get a crane and that Mr Fletcher asked ‘could you just do the job any way you can’.[16] He said that Mr Novaselek also spoke to Mr Fletcher and it was after that phone call with Mr Fletcher the decision was made: ‘that we got the ropes and made some homemade pulleys and to lift the door out’.[17] His evidence was that the penstock gate weighed approximately 100 kilograms.[18]
[15]Ibid 57 LL1-3.
[16]Ibid 57 LL24-27.
[17]Ibid 58 LL15-18.
[18]Ibid 142 L20.

In cross-examination it was put that there would be evidence in this case that as at June 2010, Tenix had paid all of the invoice.[19] No such evidence was called by AWMA or the VWA in this proceeding.
[19]Ibid 208 LL26-28.

Mr East, Mr Novaselek and Mr Hammond attended the Tenix site at the ETP on Friday 4 June 2010. They drove there in Mr Novaselek’s truck and arrived at approximately 7:00 am. Mr East said that upon arrival that they had to report to Mr Matthews, Tenix’s foreman. Mr Matthews was someone Mr East had dealt with in the past for other installations and that they were required to sign the sign in book.[20] When asked in evidence-in-chief when Mr East met with Mr Matthews on the morning of 4 June 2010 and what he recalled Mr Matthews said, Mr East’s evidence was that soon after 7:00 am Darryl Matthews ‘just took us down said which door was leaking’.[21] He said there was a meeting with Darryl Matthews on arrival where Mr Matthews told everyone who would be onsite, what companies would be onsite and that the meeting took approximately 10 minutes.[22] Mr East’s evidence was that there was no discussion about the crane or safety issues at this meeting.
[20]Ibid 52 LL27-29.
[21]Ibid 53 LL12-14.
[22]Ibid 53 LL19-22.

Mr East said that he performed installation work for Tenix from July 2009 to June 2010 and that in that period he had discussed with Mr Matthews what time AWMA could use cranes to lift doors in.[23]
[23]Ibid 55 LL12-16.

Mr East said that on 4 June 2010, they required an 80 ton crane to lift the penstock gate and there was no crane in sight anywhere.[24] He said the repair job was completed at 10:30 am or thereabouts and that between 7:00 am to 10:30 am he did not see a crane at Tenix’s construction site at the ETP. He said they needed a crane because of the weight and awkwardness of the location of the gate in the pit: ‘that’s how we put them in and how we took them out all the time’.[25]
[24]Ibid 55 L20.
[25]Ibid 56 LL10-13.

Mr East’s evidence was that after talking to Mr Fletcher, he Mr Novaselek and Mr Hammond decided as a group to do the work using the ropes.[26] Mr East’s evidence was that Mr Fletcher never suggested using the ropes to lift the lower gate but that he made it clear that he wanted the job completed because Tenix was holding the $80,000 until the leak was fixed.[27]
[26]Ibid 209 L19.
[27]Ibid 209 LL28-31; 224 LL3-6; 217 LL14-17.

Mr East was shown a series of telephone records which did not show any record of a telephone call from Mr Fletcher to Mr East on his mobile phone or from Mr East to Mr Fletcher before 9:00 am on the morning of 4 June 2010.

Mr East’s evidence in relation to the actual incident was as follows:

Counsel for Mr East: Who was responsible for the rope? …
Mr East: They were Nov’s ropes out of his truck.
Counsel: And tell me what you were instructed to do regarding the ropes? …
Mr East: Well, I was pulling on the ropes to help lift the door out.
Counsel: ‘And where was Mr Novaselek? …
Mr East: He was standing in the scissor lift.
Counsel: And where was Mr Hammond? …
Mr East: He was on the other rope beside me.
Counsel: Before you attempted to lift the penstock, is it a gate or a door? …

Mr East: Well gate, door, doesn’t … Gate.
Counsel: Before you attempted to lift it with the ropes, did you get into the tank and look at the gate? …
Mr East: Yes, I think I went down there.
Counsel: And did Mr Hammond go down there, do you recall? …
Mr East: No, I think Happy was up the top, yacking.
Counsel: Yes, and who was he yacking to? …
Mr East: Darryl.
Counsel: Darryl Matthews? …
Mr East: Yes, I only knew him as Darryl.
Counsel: Did Darryl go down and inspect the gate with you as well? …
Mr East: No.
Counsel: And how did you get down into the tank? …
Mr East: Via the scaffolding stairwell down further.
Counsel: And who was the first person to get into the tank to inspect the gate? …
Mr East: I think me and Nov [Mr Novaselek] went down together.
Counsel: And were you able to — was the door sealed onto the concrete when you inspected it, first inspected it that morning? …
Mr East: Yes.
Counsel: Yes, and could you visually see where it needed repair? …
Mr East: No, you couldn’t but you — you’ve got a thin steel ruler and we could slide that down in between the — the wall and the seal, so we knew where it was leaking. We went around it.
Counsel: And what did you discover when you used that technique? …
Mr East: Well, that the ruler when it goes through in one place with a bit of force well then you know that water is going to come out…
Counsel: And who performed that test? …
Mr East: That would have been Nov.
Counsel: And what was Nov’s decision after performing that test, or did he make a decision or did he make a suggestion? …
Mr East: Well, like I said, it was a — a group idea to use the rope.[28]

[28]Ibid 58 LL18-31; 59 LL1-28.

Mr East’s evidence in relation to the method used to lift the penstock gate was that he and Mr Hammond tied two ropes around each side of the door and then ran the rope straight up over the hand railing. He said that after the ropes were tied to the fixing points he and Mr Hammond were up top pulling the two ropes to lift the door while Mr Novaselek was guiding the penstock gate from below in the ‘pit’.[29] Mr East’s evidence was that he and Mr Hammond pulled the ropes together and that it required a lot of force to pull the ropes especially when they jammed because the gate moved sideways.[30] Mr East said that the lifting of the door was done over a period of 10 minutes and that once they had started to lift the penstock gate they wanted to get it up so that they could tie it off.[31] He was asked in evidence-in-chief if during the 10 minute period while lifting the door there was any discussion about the need for a crane. Mr East said that they spoke about the need all the time but they just wanted to get the job done. He said that they had to get the job done because they had other work to do on the Monday and were required elsewhere. He said that ‘we all had a lot of respect for the company. I thought I was going to work there til I was 65 you know, I was just — it was a good company to work for’.[32] Mr East said that Mr Hammond, Mr Novaselek and himself all discussed the issue of lifting the gate without a crane, whether they should leave it and come back. His evidence was that Mr Fletcher said it needed to be done and Mr Matthews was under pressure to get it done as well, so that he, Mr Hammond and Mr Novaselek just stayed and did it.[33]
[29]Ibid 61 LL20-21.
[30]Ibid 62 LL1-3.
[31]Ibid 62 LL11-13.
[32]Ibid 62 LL19-23.
[33]Ibid 62 LL27-30.

In evidence-in-chief Mr East was asked ‘Where was Darryl when you were doing this 10 minute lifting exercise?’ His evidence was, ‘He was standing there beside us at one stage that I remember’.[34] Mr East’s evidence in relation to Mr Matthews’ presence was as follows:
[34]Ibid 62 L31; 63 LL1-2.

Counsel for Mr East: Did he offer assistance? …
Mr East: No, he never offered assistance.
Counsel: Did you ask for assistance? …
Mr East: No. I never asked for assistance.
Counsel: And why not? …
Mr East: He doesn’t work with us.
Counsel: Did he tell you to stop? …
Mr East: No.
Counsel: Did he tell you to keep going? …
Mr East: No.
Counsel: Did you complain to him at any stage whilst you were pulling this heavy door that it was difficult to pull up? …
Mr East: No.
Counsel: Did you complain to Nov or did you say something to Nov? …
Mr East: No. The only – when I complained – I turned to Happy at one stage and said, “Oh, I think I’ve just done something to me back”.
Counsel: At what stage was that? …
Mr East: When we pulling the door up on the rope
…
Counsel: Did you tell anyone that you’d experienced this pain?
Mr East: Yeah — I told Happy.
Counsel: Did you tell Darryl?
Mr East: No.
Counsel: Was Darryl close enough to hear you speaking to Brian Hammond?
Mr East: I’m unsure.[35]

[35]Ibid 63 LL3-16; LL25-29.

Mr East’s evidence was that once they had gotten the gate up they tied it up and held it up at the top level. Mr Novaselek put two of the wooden support beams underneath the door so that it could not fall back down and from what Mr East could recall, Mr Hammond proceeded to undo all the bolts along the top seal so that they could work on it and take the door back out. Mr East’s evidence was that he was unable to continue working and Mr Hammond was required to do everything from thereon because of the pain in his back. He recalls that Mr Novaselek and Mr Hammond would have replaced the seals and that the gate was subsequently lowered back in. It was Mr East’s evidence that it was lowered back in by Mr Novaselek and Mr Hammond, that he did not participate in that at all. In relation to the lowering of the door Mr East was asked:

Counsel for Mr East: Did you partake in that all? …
Mr East: No.
Counsel: No, and why not? …
Mr East: Because I couldn’t have.
Counsel: And in the process can you say where were they both positioned when they were lowering the door?
Mr East: They were both positioned at the top, lowering it by the rope.
Counsel: And were they lowering it exactly the same way as you were pulling it up? …
Mr East: Yes.
Counsel: And where was Darryl when this was happening? …
Mr East: Mmm.
Counsel: Was he there?
Mr East: I’m unsure.
Counsel: He wasn’t there.
Mr East: No he wasn’t there …[36]

[36]Ibid 64 LL17-28.

Mr East said that before 4 June 2010 he had never lifted a penstock gate such as the one on 4 June 2010 without the assistance of a crane[37] and it was the first time he had used ropes to lift and lower a penstock gate.[38] Mr East’s evidence was that he had never received training from AWMA in relation to using ropes for such an activity[39] or any site induction from Tenix or Melbourne Water about using ropes for such an activity.[40] He said the only training he received in relation to penstock gate lifting and removal similar to the 4 June 2010 task was with cranes and telehandlers.[41]
[37]Ibid 68 L7.
[38]Ibid 68 L9.
[39]Ibid 68 L12.
[40]Ibid 68 L18.
[41]Ibid 68 L26.

Mr East agreed that it was wrong to lift heavy things manually because you could get injured.[42] Mr East said he could not remember anything about his induction with Tenix in relation to ‘Tenix Alliance project safety and environment induction, Melbourne Water Eastern Treatment Plant’.[43] Equally, Mr East said that he could not recall any training and/or occupational health and safety training that he had undergone with AWMA.
[42]Ibid 153 LL1-5.
[43]Ibid 173 LL19, 25, 29; 174 L12; 175 LL28-29.

Mr East’s evidence in relation to his discussions with Mr Matthews on 4 June 2010 was that he had a discussion with him in the morning on 4 June 2010 about a crane and that it ‘happened exactly where the door was when we were looking down at the door’.[44] In cross-examination his evidence in relation to Mr Matthews’ presence was:
[44]Ibid 201 LL24-26.

Counsel for AWMA: So you’re standing there and he’s standing where, to your left or your right?
Mr East: He was standing on my left.
Counsel: And you looked at the job? …
Mr East: Yes.
Counsel: And what did you say to him? …
Mr East: I didn’t really say anything to him. The first thing I realised was we needed a crane.
Counsel: So you asked him for a crane did you? …
Mr East: Yes.
Counsel: And your evidence was he said, “you can’t have it today but you can have it next week” or something like that? …
Mr East: Yes. He said we could have one the following week, can’t get one til the following week …
Counsel: But after this conversation that you had with him, he has then stayed nearby to your job? Didn’t he, and at some points he was standing there, watching your job? …
Mr East: Yes.[45]

[45]Ibid 206 LL27-31; 207 LL1-6; LL18-20.

Mr East’s evidence was that at the time he was going to use the ropes his only real concern was whether the handrails where the ropes would be attached would be strong enough to hold the weight of the door. He said he did not turn his mind to whether he could hurt himself doing the job with the ropes.[46] He agreed that the decision to use ropes was one done in consultation with Mr Novaselek and Mr Hammond.[47] Mr East’s evidence was that the main driver was the need to get the job done.[48] ‘Lee Fletcher wanted it done and Darryl needed it done and there was just pressure to get it done so we — we did it.’[49]
[46]Ibid 217 LL9-10.
[47]Ibid 217 LL20-23.
[48]Ibid 216 LL2-4.
[49]Ibid 216 LL2-4.

Mr East’s evidence was that he had discussed with Mr Novaselek and Mr Hammond whether they should leave the job and come back given there was no crane and given that Mr Matthews was present during those discussions.[50] He did not recall what Mr Matthews said[51] but he recalled that Mr Matthews was helping them.[52]
[50]Ibid 218 L8.
[51]Ibid 218 LL9-10.
[52]Ibid 218 LL15-16.

In cross-examination, Mr East’s evidence about Mr Matthews’ knowledge of the AWMA workers using ropes was as follows:

Counsel for Tenix: Now, can I talk to you a little bit about Darryl? You got there at the site somewhere between 7:00 and 7:30. Is that right? …
Mr East: Yeah, around 7:00. Yes.
Counsel: And how many times – how many periods did you spend with Darryl that day? …
Mr East: I remember him taking us to the door, having the discussion. He was still there when we decided about using the rope. I remember him there while we were talking to Lee. And I’m not sure if he even gave us some assistance, but he was there for a fair while first up when we were setting the ropes up, and everything, and working out how to fit it.
Counsel: I asked you how many times you were with him. Was it just the one visit that he had to you? The one contact, you know I’m not asking you how long it was for. I’m asking you whether it was just the one occasion? …
Mr East: As far as I can remember it was the one occasion while we were setting the ropes up and everything that he was there. I can’t recall whether he left, come back or anything like that. I know he was around.
Counsel: He certainly had to show you where the leaking gate was? …
Mr East: Yes.
Counsel: And that would have been fairly early in the piece? …
Mr East: Yes.[53]

[53]Ibid 275 L30 – 276

Counsel for Tenix took Mr East to a number of documents which record a history given by Mr East and recorded by the interviewer about the circumstances of the incident on 4 June 2010. The documents referred to were: a report in which Dr Cubit interviewed Mr East on March 2011; Mr East’s affidavit in support of his serious injury certificate dated 13 April 2012; and Mr East’s WorkCover claim form. It was put by Counsel that there was no mention of Mr Matthews being present at the incident in the above documents. Mr East agreed that the only thing he had a clear memory of in relation to what Mr Matthews said on the morning of 4 June 2010 was that the crane was not available and he could not get one until next week.[54] The following was then put to Mr East:
[54]Ibid 285 LL1-12.

Counsel for Tenix: His evidence [Darryl Matthews] will be that he doesn’t recall much about that day, but he would not have accepted you lifting the gate with these ropes? …
Mr East: Well that’s not correct.
Counsel: You say that he was aware that you were lifting with the ropes? …
Mr East: Yes.
Counsel: Although you can’t recall anything said about it? …
Mr East: No.
Counsel: You can’t recall any contribution that he had to the discussions about that? …
Mr East: No.
Counsel: You can’t recall exactly when and where he was there? …
Mr East: I do recall him being there while we were setting the ropes up.[55]
…
Counsel: All of this has taken quite a long time, hasn't it?
Mr East: Yes.
Counsel: And are you suggesting that Darryl was just standing there idly watching while all of this occurred?
Mr East: I don't recall.
Counsel: You don't recall, because you really don't recall much about what Darryl was doing that day. And I suggest that's because it wasn't really important to you?
Mr East: No. Why would it be important to me?[56]
[55]Ibid 285 LL13-31.
[56]Ibid 286 LL10-16.

Brian Hammond’s Evidence in relation to Mr Matthews’ presence

Mr Hammond worked with AWMA as a labourer from approximately 2003 until 2010, at which time he was ‘put off’.[57]
[57]Ibid 357 LL15-22.

Mr Hammond recalls attending the Tenix site to do a job on 4 June 2010, working on a door that supposedly had a problem, with Mr East and Mr Novaselek.[58]
[58]Ibid 359 L24; 360 L2.

Mr Hammond first became aware that he would be required at Tenix on Thursday 3 June 2010. Mr Hammond could not recall who told him about the job, but recalls being informed that there was another job to look at before he went home. He was not told about what the actual job was on the Thursday.[59]
[59]Ibid 361 LL23-28.

On 4 June 2010, Mr Hammond drove to the Tenix site in Mr Novaselek’s work vehicle[60] with Mr East and Mr Novaselek.[61] Mr Novaselek was the supervisor on that day.[62]
[60]Ibid 361 LL29-31.
[61]Ibid 362 L1.
[62]Ibid 362 L2.

Mr Hammond gave evidence that the normal starting time was 7.00 am to 7.30 am.[63] Upon arriving, they pulled the car ‘straight outside of the parking area outside of the main office area of the job site’.[64] Mr Hammond jumped out of the car and signed in. Mr East and Mr Novaselek also signed in, and ‘the boys went to see what the problem was’.[65] Mr Hammond remained for a couple of minutes, at which time he still did not know what they were doing. After a couple of minutes, Mr Hammond went back out to the smoking area, and stayed there until Mr Novaselek and Mr East came out, approximately half an hour or so later.[66] Mr East and Mr Novaselek were accompanied by a man who Mr Hammond believed to be ‘Darryl’ from Tenix (Mr Matthews),[67] and they all headed towards the work area.
[63]Ibid 362 L4.
[64]Ibid 362 LL7-9.
[65]Ibid 362 LL10-15
[66]Ibid 362-363 LL18-1.
[67]Ibid 363 LL2-4.

Mr Hammond gave evidence that they ‘got over there, went to a door, and on the walkway out to a door, he was informed that they would have to look at the door because there was a problem’, suspected to be a leak, and they were to have a look at it.[68] Mr Hammond said that Mr Novaselek, Mr East and Mr Matthews were ‘just talking among themselves’ and it was not until he actually got to the site, the actual door itself, that he heard Mr Matthews say that there was a leakage problem.[69]
[68]Ibid 363 LL13-23.
[69]Ibid 363 LL25-29.

Mr Hammond gave evidence that there was no discussion with him at that stage about how the job was to be done.[70] Once being informed of what was going to be done, Mr Novaselek asked Mr Hammond to return to the truck to collect the tools and he kept doing trips back and forth, probably three trips, carrying odd bits and pieces and leaving them around.[71]
[70]Ibid 364 LL4-5.
[71]Ibid 364 LL22-25.

In terms of what was required to be done, Mr Hammond said that the only way to check the seals of the penstock door was to open the penstock door up and have a look, which involved ‘winding it up so far and just checking the rubber seal and whereabouts it’s bedding on the inside plate of the door’.[72] Mr Hammond said that at that stage there had not been any discussion with him as to how they were going to lift the door.[73]
[72]Ibid 364-365 LL26-L1.
[73]Ibid 365 LL2-4.

Mr Hammond said that they normally would have lifted the penstock gate with a crane,[74] and on the morning of 4 June 2010 there was no crane available.[75] In cross-examination, it was put to Mr Hammond that Mr East said it was agreed as a team to lift the door with ropes. Mr Hammond did not recall this.[76]
[74]Ibid 365 L14.
[75]Ibid 365 L29.
[76]Ibid 502 LL18-21.

It was put to Mr Hammond in cross-examination that when he returned from getting the tools, the position was that Mr East and Mr Novaselek were there with a rope. Mr Hammond does not recall what was said or how it worked out, he did not recall what was going on but when he got back with the tools, it was said that ‘we were going to lift the door with a rope’.[77]
[77]Ibid 502-503 LL24-3.

Mr Hammond gave evidence that they ‘got [the penstock gate] up so far and then we lowered a rope down … Nov, being down the bottom, tied the rope off on to the door’.[78] Mr Hammond thought Mr Novaselek was on a scissor lift, down there inspecting the door, and letting them know what they, being Mr East and Mr Hammond, needed up top.[79] Mr Hammond gave evidence that Mr Matthews was up top and ‘stood alongside with Shane’.[80] Mr Hammond did not know what Mr Matthews was doing, and Mr Hammond was just talking to Mr East.[81] Mr Novaselek latched the rope on to the door and then gave Mr East and Mr Hammond the two bits up top, for them to grab hold of them, pull the door up, and tie it off around the top rail.[82]
[78]Ibid 366 LL2-4.
[79]Ibid 366 LL6-11.
[80]Ibid 366 L20.
[81]Ibid 366 L22.
[82]Ibid 366 LL27-31.

The lifting exercise was done by Mr East and Mr Hammond.[83] They had a rope each, pulling away, and then they went to go a second time, as they were only getting an inch at a time as there was not enough reach. Mr Hammond gave evidence that that is when Mr East yelled out ‘fuck, me back’.[84] It was put to Mr Hammond in cross-examination that Mr East’s evidence was that whilst pulling the rope, the three of them were talking about the need for a crane. Mr Hammond did not recall being in a discussion about the need for a crane with anyone at any time on that morning.[85]
[83]Ibid 367 L1.
[84]Ibid 367 LL15-30.
[85]Ibid 504 LL1-7.

Mr Hammond gave evidence that at that time of pulling the ropes, Mr Matthews was ‘standing off to the side out of the way a bit’.[86] Mr Matthews did not have any discussion with Mr Hammond about the provision of assistance or doing the job a different way, and he did not offer his assistance to Mr Hammond.[87]
[86]Ibid 368 LL1-2.
[87]Ibid 368 LL3-6.

During cross-examination, Mr Hammond gave evidence that the first time he was asked to remember the events on 4 June 2010 was in the week prior to giving evidence, being six odd years after the event.[88] In cross-examination, Mr Hammond gave evidence that Mr Mathews was there for some of the time, but he did not have a clear recollection of how much of the time he was there.[89] Mr Hammond recalls that at some stage Mr Matthews seems to have said that there was a leaking gate.[90] Mr Hammond agreed that he doesn’t remember anything else that Mr Matthews said to him, and he doesn’t recall hearing Mr Matthews speak other than having a conversation with him ‘up the top and that was just in general … early on when Mr Hammond actually caught up with them and they were standing there’.[91]
[88]Ibid 507 L12.
[89]Ibid 512 LL7-10.
[90]Ibid 512 LL11-13.
[91]Ibid 512-513 LL23-2.

After the general conversation, Mr Hammond went back to the ute to get the tools, and doesn’t recall where Mr Matthews went.[92] Mr Hammond, in cross-examination, did not recall anything that Mr Matthews said about lifting with the rope, and stated that Mr Matthews did not speak to Mr Hammond while he was lifting with the rope,[93] however Mr Hammond gave evidence that Mr Matthews was there when they were pulling the rope.[94]
[92]Ibid 513 LL4-7.
[93]Ibid 513 LL24-27.
[94]Ibid 513 L29

Mr Hammond was questioned in cross-examination as to why he says so convincingly that Mr Matthews was there while they were pulling the rope. Mr Hammond answered that when Mr East hurt his back, Mr Hammond looked over and Mr Matthews was ‘standing there alongside us’.[95]
[95]Ibid 513-514 LL31-2

At the time Mr East said ‘fuck my back’, Mr Hammond does not recall Mr Matthews saying anything,[96] as Mr Hammond was concentrating on what he was doing. He heard Mr East and they kept working, kept pulling on the rope, as they had to tie it off.[97]
[96]Ibid 515 L30.
[97]Ibid 516 LL7-16.

It was put to Mr Hammond in cross-examination that the reason he did not hear Mr Matthews say anything is because he was not there at the time.[98] Mr Hammond maintained ‘I’ve seen Darryl there … I was there, Shane was there, and when he said that I looked there and Darryl was there’.[99] Mr Hammond acknowledged that his recollection is patchy, and he doesn’t recall the whole day,[100] however he maintained that ‘Darryl was there on that site’.[101]
[98]Ibid 516 LL30-31.
[99]Ibid 516-517 L31-5
[100]Ibid 517 L7, L19.
[101]Ibid 518 L5.

Michael Novaselek’s evidence in relation to Mr Matthews’ presence

Mr Novaselek worked with AWMA from approximately 2000 to 2012 at which time he was made redundant.[102] Mr Novaselek mainly performed installation work, and some work in the farm automation division.[103]
[102]Ibid 530 LL1-4; 526 L26.
[103]Ibid 530 LL8-12.

Mr Novaselek gave evidence that in the early afternoon on 3 June 2010, whilst at the WRA site, he was made aware that he was required to work at the ETP site the following day.[104] Mr Novaselek was asked by Chris Dalrymple of AWMA if he could stay and have a look at a leaking gate on the following day.[105] Mr Novaselek recalls being told ‘we need three people to stay and have a look at this gate, see if we can fix it’.[106] Mr Novaselek said that he did not have any discussion with Mr Dalrymple on 3 June 2010, or anyone, about the scope of the job.[107]
[104]Ibid 539-540 LL31-4.
[105]Ibid 539-540 LL31-4.
[106]Ibid 543 LL4-5.
[107]Ibid 548 LL6-9.

Mr Novaselek gave evidence that Tenix would not have known the scope of the work until the workers had a look at the door; he did not know whether Tenix would know what had to be done to the door until they had a look and saw where it was.[108]
[108]Ibid 619 LL3-9.

Mr Novaselek’s evidence was that as at 3 June 2010 the Tenix job on the ETP site would have been very close to completion, however he did not think it would have been on time. Mr Novaselek said: ‘I don't think it would have been on time because we were held up even in my job’.[109]
[109]Ibid 548 LL21-26.

Mr Novaselek attended the ETP site on Friday 4 June 2010 at approximately 7.00 am.[110] Upon arriving at the site, Mr Novaselek waited in his truck while Mr East went into the site office[111] for probably only five or six minutes, while Mr Novaselek sat in the truck and had a smoke.[112]
[110]Ibid 548 L15.
[111]Ibid 549 L10.
[112]Ibid 584 LL13-17.

Mr Novaselek gave evidence that on 4 June 2010, he was not asked to perform an induction, he was not asked to do a site hazard inspection, and all he knew about the job was ‘would I go and have a look at a door that was leaking’.[113] He also gave evidence that neither he, nor to his knowledge any member of his team, was invited to attend a foreman’s prestart meeting that day.[114]
[113]Ibid 550 LL1-5.
[114]Ibid 550 LL26-29.

Mr Novaselek said that when he arrived on site, he knew he was there for a leaking door, however he did not know at the point of arriving anything about what needed to be done to the door until he had seen it.[115] It was Mr Novaselek’s evidence that at the time of arriving, before seeing the door, no one could give detailed procedures, as the door needed to be investigated, however, Mr Novaselek said that if there is a leaking problem to any door in a frame, the door needs to come out of the frame.[116]
[115]Ibid 584 LL22-26.
[116]Ibid 584-585 LL29-5.

When asked whether Mr Novaselek recalled being shown what penstock gate was the problem gate, Mr Novaselek gave evidence that Mr East ‘walked across with the man from Tenix and I drove my ute and I hopped out and walked up to the door’, the ‘man from Tenix’ being Darryl Matthews.[117] Mr Novaselek ‘drove over then we all three — all four of us walked up to the gates and then I, I don’t recollect what was said’.[118] ‘All four of us’ being Mr Novaselek, Mr East, Mr Hammond and Mr Matthews.[119]
[117]Ibid 551 LL1-9.
[118]Ibid 551 LL20-23.
[119]Ibid 551 LL24-27.

When he arrived at the penstock gate, Mr Novaselek stood up on top and looked at the gate where the problem and the leak was,[120] and ‘just talked about it’.[121] Mr East, Mr Hammond and Mr Novaselek were congregating, working out what they can do and there was a lot of problem solving.[122] Mr Novaselek recalls looking at the penstock gate and talking about how they were going to fix it probably for half an hour to an hour, just discussing it amongst themselves.[123] During this time, Mr Novaselek is up top having a look, and then down in the channel to have another look at what sort of penstock it was.[124] Mr Novaselek gave evidence that mostly he, Mr East and Mr Hammond were involved in those discussions, and Mr Matthews was there for most of the time that he could recall while Mr Novaselek was up the top of the tank.[125]
[120]Ibid 551 LL28-31.
[121]Ibid 552 L1.
[122]Ibid 601 LL18-23.
[123]Ibid 601 LL1-5; 553 L22, L28.
[124]Ibid 601 LL7-15.
[125]Ibid 554 LL2-7.

In terms of the period of time in which they were looking at the door, Mr Novaselek gave evidence that it would have been just before 8.00 am that they were doing the assessment, at which time Mr Matthews was there. Mr Novaselek could not say Mr Matthews was there for all of it, but he was for some of it.[126]
[126]Ibid 602 LL18-21.

Mr Novaselek recalls that on the morning of 4 June 2010, Mr Matthews said there was a leaking seal.[127] When asked whether he had any discussion with Mr Matthews about any matter involving the work he had to do on that day, Mr Novaselek said that Mr Matthews would have been there while they were having a look at the door and trying to work out how they were going to fix it, however he cannot recall.[128]
[127]Ibid 553 LL10-13.
[128]Ibid 553 LL14-19.

In order to check the seal, Mr Novaselek used a ruler; if you could push a ruler down between the seal and the door, the water pressure could push it back. This check was done before any repairs commenced.[129]
[129]Ibid 554 LL10-15.

In terms of mechanical equipment that was needed on 4 June 2010, Mr Novaselek gave evidence that there were no discussions about that, as Mr East said there was no crane available when he came out of the site office.[130] Mr Novaselek gave evidence that he did not just pack up and go home as they had to get the job done, and they were asked to get it done; he was told that there was no one around next week to come back and fix it, and it had to be finished.[131]
[130]Ibid 555 LL9-13.
[131]Ibid 555 LL14-20.

Mr Novaselek gave evidence that the method eventually adopted to lift the door was the only way they had of getting the door up. Mr Novaselek said that he had used ropes like that prior, with Mr Dalrymple and Mr O’Donoghue to remove and secure gates.[132] Mr Novaselek said that, when they started to commence the task, he was in the bottom, however in the half hour to an hour that they were discussing the task, he would have been up top and down the bottom looking at all aspects, looking at what was needed on the door, and then going back to his ute to get the tools such as bolts, ratchets and sockets.[133]
[132]Ibid 556 LL1-9.
[133]Ibid 556 LL16-23.

Mr Novaselek unbolted the middle support so the door could come up past that, and then took the headstock and shaft out,[134] at which point Mr Novaselek cannot remember where Mr Matthews was.[135] When the door was as high as it could go, the ropes were dropped down and tied to the top of the door; Mr Novaselek could not recall who dropped down the ropes.[136] Mr East and Mr Hammond pulled on the rope, and Mr Novaselek was pushing from the bottom. Mr Novaselek could not recall how long this process took, but said ‘a little bit of time, not much’.[137]
[134]Ibid 609 LL18-29.
[135]Ibid 609 LL4-6.
[136]Ibid 609 LL9-15.
[137]Ibid 609 LL21-31.

In lifting the door, Mr Novaselek said he used ropes, men and the scissor lift.[138] Mr Novaselek gave evidence that at the time of performing this task, he cannot say whether Mr Matthews was present the whole time, ‘but every time [he] stuck [his] head up over the concrete he was there’. As Mr Novaselek was three and a half metres down, he said that he could not say exactly.[139] Mr Novaselek confirmed in cross-examination that his memory of seeing Mr Matthews ‘every time [he] stuck [his] head up…’ was not when he was doing the actual repair work.[140] Mr Novaselek said that when he was working out what needed to be repaired, Mr Novaselek could hear Mr Matthews talking a lot of the time with Mr Hammond.[141]
[138]Ibid 557 L1.
[139]Ibid 557 LL3-8.
[140]Ibid 632 LL17-23.
[141]Ibid 632 LL24-27.

Mr Novaselek’s evidence was that Mr Matthews did not offer any assistance to him, he did not tell Mr Novaselek not to use the ropes, he did not make any suggestion to Mr Novaselek that what he was doing might be a safety issue, and he did not make any comment about the crane.[142] In this regard, Mr Novaselek said that a crane was not mentioned after Mr East came from the site office and told Mr Novaselek that there was no crane on site.[143]
[142]Ibid 557 LL8-120.
[143]Ibid 557 LL20-22.

Mr Novaselek gave evidence that whilst performing the task of lifting the door with the ropes, Mr Novaselek did not think to stop, and he did not think that it was an option to stop, because ‘it had to be done’. Mr Novaselek said that ‘they wouldn’t have asked [him] to stay there and do it if the job didn’t have to be done’.[144]
[144]Ibid 559 LL1-6.

During the process of pulling up the door, Mr Novaselek heard Mr East say ‘I’ve hurt my back’ at which time, he could not proceed further with the job.[145]
[145]Ibid 561 LL2-8.

When Mr East injured his back, Mr Novaselek believes that Mr Matthews was there, as Mr Novaselek believes that Mr Matthews took the rope that Mr East was hanging on to.[146]
[146]Ibid 562 LL1-5.

The job finished at approximately 9.15 am or 9.30 am.[147]
[147]Ibid 561 LL11-12.

Mr Novaselek considered that the method of tying the ropes over the doors was safe, as the ropes were used not just to pull the door up but to secure the door when it was up so it would not fall back down.[148]
[148]Ibid 559 LL23-25.

Tenix did not provide Mr Novaselek any SWMS to repair the door, or any JSEA.[149] They were working there together, ‘blind’.[150]
[149]Ibid 560 LL5-7.
[150]Ibid 580 L27.

Mr Novaselek acknowledged that his memory of some of the events on 4 June 2010 was incomplete.[151] However, he maintained that Mr Matthews ‘was up there, I know he was up there at the start’.[152]
[151]Ibid 596 LL6-9.
[152]Ibid 639 L29.

Mr Novaselek was interviewed by a Workcover investigator on 13 September 2011, some 15 months after the incident. It was put to Mr Novaselek in cross-examination, and he agreed, that when he spoke to the investigator his memory was probably a bit better than at the time of giving evidence.[153] In cross-examination, it was put to Mr Novaselek that he did not mention that Mr Matthews was there when the ropes were used to lift the door, and Mr Novaselek answered that he ‘probably wasn’t asked,’[154] and that he would not class Mr Matthews as a worker so he would not actually put him in the statement.[155] He did not think it was relevant to put a Tenix worker in there.[156]
[153]Ibid 628 L30.
[154]Ibid 634 L27.
[155]Ibid 635 L1
[156]Ibid 637 L1.

It was put to Mr Novaselek in cross-examination that neither Mr East nor Mr Hammond said that Mr Matthews grabbed Mr East’s rope when he hurt himself, to which Mr Novaselek said that he stands by what he said, Mr Matthews was there.[157] Mr Novaselek maintained in cross examination that he thinks Mr Matthews was there when Mr East hurt his back,[158] and he believes he was there but cannot say for sure.[159]
[157]Ibid 635 L3-13.
[158]Ibid 636 L7.
[159]Ibid 637 L5.

Mr Novaselek gave evidence that he knows Mr Matthews was there for a fair time, for a fair amount of the job, and that he thinks Mr Matthews was under pressure to get the job done and wanted them to make sure it was done, ‘like we were under the pump to get it done as well’.[160]
[160]Ibid 637 LL14-19.

Evidence of Darryl Matthews

Mr Matthews commenced work at Tenix in approximately the late 1990s.[161] On 4 June 2010, he was a mechanical site supervisor at the ETP. Mr Matthews’ formal hours at the ETP were 7.00 am to 3.30 pm, however he would get into work at approximately 6.00 am or 6.30 am to prepare a program for the site prestart meeting which was held every day at 7.00 am.[162] The program was organised on the basis of information that Mr Matthews had gathered that day or the previous day or by prior scheduling.[163]
[161]Transcript, recovery proceeding, 7 L28.
[162]Ibid 9 LL13-18.
[163]Ibid 9 LL25-27.

Mr Matthews was taken to the following documentation in relation to 4 June 2010:

(a) Site prestart meeting documentation which provides, under list of tasks for today, ‘Penstock work AWMA’. Mr Matthews said that this means that he was aware of that task at least by the start of the site prestart meeting at 7.00 am.[164]

(b) Record of people who had signed in at the prestart meeting on 4 June 2010, which included three signatures from Campbell’s Crane Service.[165]

(c) Record of the toolbox meeting of G Kel Welding of 4 June 2010 and the stabilised plant setup checklist which refers to a 50 ton crane in the south corner zone 1. In the site foreman’s prestart meeting, under ‘proposed works’ reads ‘crane at grid 18…’.

[164]Ibid 15 LL19-23.

[165]Ibid 16 LL9-13.

Mr Matthews stated that this documentation tells him that there was a crane on site on the morning of 4 June 2010.[166]
[166]Ibid 17 LL26-30.

Mr Matthews acknowledged that Tenix had the obligation under its agreement with AWMA to provide a crane to assist AWMA,[167] which would be organised by way of a contractor contacting Tenix to arrange to have a crane on site, with two days’ notice probably being sufficient.[168] A crane would not have been available on the spot on request if it had not been pre-organised.[169]
[167]Ibid 18 LL4-6.
[168]Ibid 18 LL9-13.
[169]Ibid 18 LL17-18.

It was put to Mr Matthews that when the AWMA workers arrived on site on 4 June 2010, they had not pre-arranged a crane and were told by Mr Matthews that a crane was not immediately available, and they would have to wait possibly until the next week. Mr Matthews’ response was that he would say that is what would have happened.[170]
[170]Ibid 18 LL19-24.

Mr Matthews gave evidence that on 4 June 2010 G Kel contractors were on site, and three or four of them were working directly for Mr Matthews undertaking some hydraulic work in the underground part of the ETP.[171] Mr Matthews said that the work in the underground part would have required him specifically, as he was a Melbourne Water recipient and as they were working in a Melbourne Water area, he would have had to be there, or another recipient from Melbourne Water.[172]
[171]Ibid 19 L2, 6, 10.
[172]Ibid 19 LL12-16.

Mr Matthews was taken again to the prestart sign on form which stated, under ‘tasks for today’, ‘CSE rescue training, Richo, Nol and Brad’. Mr Matthews stated that this tells him that those individuals are not available for the day, which meant that Mr Matthews had additional duties on 4 June 2010.[173]
[173]Ibid 20 LL17-26.

Having looked at his duties on 4 June 2010, Mr Matthews gave evidence that 30 minutes would be the maximum time he could possibly spend with the AWMA workers.[174]
[174]Ibid 22 LL11-14.

When asked whether it was more pressing to assist G Kel with their work, or stand around watching AWMA do their work, Mr Matthews responded that G Kel’s work ‘was more important, more down his line or work’. Mr Matthews said that the gates are what the AWMA employees do ‘so it wasn’t really necessary for me to be there’.[175]
[175]Ibid 22 LL25-31.

Mr Matthews did not really remember 4 June 2010, as it was ‘a long time ago’.[176] In cross examination, Mr Matthews acknowledged that he could remember very little about the 4 June 2010, other than the AWMA people being on site, however he ‘could work out what was done on the day through the paperwork’.[177]
[176]Ibid 20 LL27-28.
[177]Ibid 25 LL12-17.

It was put to Mr Matthews that there is a suggestion that he was present when Mr East, Mr Hammond and Mr Novaselek were talking about lifting the penstock gate with ropes. Mr Matthews did not have any memory of that conversation and said further that he would not allow that anyway.[178] Mr Matthews’ evidence was that if that conversation had occurred in his presence, he would remember it, and his reaction would be that they would not be able to do it.[179] It was then put to Mr Matthews that there is evidence to suggest he was present during the course of lifting the penstock gate with the ropes, to which Mr Matthews stated he did not recall seeing the AWMA workers lifting a penstock gate with ropes, he believes he would remember it if he had seen it, and he would not have permitted it to happen.[180]
[178]Ibid 21 LL9-12.
[179]Ibid 21 LL14-18.
[180]Ibid 21 LL19-24.

When asked whether he was present when Mr East injured his back, showed signs of injury and stopped working, Mr Matthews said he did not remember that happening, and that he would remember any incident.[181]
[181]Ibid 21 LL25-30.

It was put to Mr Matthews that it had been said that he assisted to pull up the penstock gate with ropes. Mr Matthews did not remember that happening, and said he would not have done that.[182] It was further put to Mr Matthews that it was said that despite the occurrence of the injury Mr Matthews did not report the injury or require the AWMA workers to report it. Mr Matthews did not recall this happening, and said that he would not have permitted an injury to occur without being reported.[183]
[182]Ibid 22 LL1.
[183]Ibid 21 LL5-9.

Mr Matthews acknowledged in cross examination that he knew on 4 June 2010 that lifting a penstock gate with ropes was unsafe.[184]
[184]Ibid 23 L10.

Mr Matthews gave evidence that when the AWMA workers came on site on 4 June 2010, he was aware that the gate was leaking, and he thought they were only coming for inspection of it. Mr Matthews said that he did not know for sure whether AWMA would actually be repairing the gate that day, or what repairing the gate would involve.[185]
[185]Ibid 24-25 LL27–2.

Mr Matthews acknowledged Tenix’s obligation to provide information, instruction and training to the employees of AWMA consistent with potential workplace hazards,[186] and that it was part of his job as site supervisor to ensure that the JSEA and SWMS were complied with.[187]
[186]Ibid 28-29 LL23-3.
[187]Ibid 29 L23.

Mr Matthews agreed in cross-examination that it was necessary for him as the site supervisor to be cognisant of SWMSs for particular works[188] and that it was important that he is aware of its content and ensure it is adhered to.[189] Mr Matthews was taken to the SWMS which refers to an 80 ton crane being required. Mr Matthews stated that it was for the installation of the penstocks, and did not agree that the works AWMA were performing were part of the installation, but rather part of the repair.[190]
[188]Ibid 33 LL3-7.
[189]Ibid 33 L15.
[190]Ibid 33 LL24-30.

Mr Matthews in cross-examination gave evidence that he did not recall whether there was a request for a crane on 4 June 2010 and he did not recall having actually witnessed the AWMA workers lifting the penstock gate with the ropes, on the basis of reasoning that he would not have allowed it to happen.[191] Mr Matthews agreed in cross-examination that if he was there, and it did happen in front of him, that would be an unsafe practice.[192]
[191]Ibid 36 LL24-26; 37 LL1-6.
[192]Ibid 37 LL7-9.

It was put to Mr Matthews that if the penstock gate was lifted with ropes, and he was there and saw it, he would not be doing his job properly. Mr Matthews responded that he would have stopped them from doing it,[193] and otherwise agreed with the proposition.[194]
[193]Ibid 37 LL19-22.
[194]Ibid 37 LL23-26.

As to the need to get the job done, Mr Matthews’ evidence was that it was not really necessary to have that done, the construction of the job was a long way off completion, so there was no real pressure to have that done, they could have done it in four weeks’ time, it did not matter,[195] as the filling of the tanks was a long way off.[196] Mr Matthews gave evidence that the AWMA workers weren’t under the pump, and ‘if they were under the pump they put themselves under the pump … I didn’t put them under the pump’.[197]
[195]Ibid 38 LL15-24.
[196]Ibid 14 LL14-18.
[197]Ibid 51 LL14-18.

Mr Matthews could not recall actually being with the AWMA workers in the vicinity of the penstock gate on 4 June 2010, but gave evidence that he would have shown them the job and that he must have been there with them at some stage.[198] Mr Matthews said he ‘was there at the start I’d say’ and then he ‘would have gone to the other job with G Kel, and been around the site somewhere’.[199] When asked whether it was possible that he could have come back, Mr Matthews did not remember coming back, and he ‘can’t remember leaving the site, actually’.[200] Mr Matthews denied standing beside Mr East as he lifted the door with the ropes.[201]
[198]Ibid 39 LL5-9.
[199]Ibid 39 LL12-14.
[200]Ibid 39 LL15-17.
[201]Ibid 39 LL23-25.

Mr Matthews agreed that it would be fair to say, in line with Mr East’s evidence, that there was a conversation with Mr Matthews about the need for a crane while they were actually looking at the door.[202] Mr Matthews could not recall what he said to them but accepted that what most likely happened is that he was asked for a crane while looking at the gate, at which time he said there was no crane available, they cannot do it today and might have to come back the following week.[203]
[202]Ibid 40 LL4-9.
[203]Ibid 40 LL19-24.

During cross-examination, Mr Matthews mentioned for the first time that he would have said if they wait they may get the crane in between jobs but if they don’t wait, the crane may come into use in the following week.[204] When it was put to Mr Matthews that this is the first time he had mentioned he could wait to see if they could squeeze the crane in between jobs, Mr Matthews said ‘I probably – I would have more gone for the next week thing’ as he ‘would have tried not to build their hopes up too much for a crane’.[205]
[204]Ibid 41 LL1-3.
[205]Ibid 41 L10; LL16-19.

It was put to Mr Matthews that at the point of telling the AWMA workers there was no crane, Mr Matthews knew they were not able to do the works they wished to do. Mr Matthews said they were still looking at the seal apparently, which they could do with the mechanical means of lifting the gate manually.[206]
[206]Ibid 42 L25-28; 43-44 LL280-1.

It was suggested to Mr Matthews, and he agreed, that at the point at which he told the workers there was no crane, he had the power to say ‘that’s it boys no more work on this particular gate’.[207] Mr Matthews acknowledged he did not do that[208] and agreed that if he understood they could not do anymore works without a crane he had the power to stop them doing any more work that day.[209]
[207]Ibid 44 LL22-27.
[208]Ibid 44 L28.
[209]Ibid 45 LL1-4.

Mr Matthews did not recollect being present in a discussion about using ropes or being present whilst the workers engaged in the activity.[210] When it was put to Mr Matthews that he could not dispute that it occurred from his own recollection, he replied he would not have allowed it to happen.[211]
[210]Ibid 45 LL15-23.
[211]Ibid 45 L24.

Mr Matthews did not recall a discussion about the use of ropes, or ever seeing someone use ropes on the day.[212]
[212]Ibid 46 LL5-8.

It was put to Mr Matthews that he cannot state from his own recollection that the event did not take place, that he was there whilst the AWMA workers were doing the lifting, and Mr Matthews said he was not there and he would remember that. When it was put that the only reason Mr Matthews says that he was not there is because it is an unsafe practice and he would not have allowed it, Mr Matthews stated he would not allow it.[213]
[213]Ibid 46 LL15-22.

Mr Matthews was taken to Mr Novaselek’s evidence that Mr Matthews was present for most of the discussion about how to fix the door, and Mr Matthews’ evidence was that he could have been in the channel with them ‘discussing the — at the early stages, but I don’t think I was — no I don’t’.[214] As to the evidence of Mr Novaselek that Mr Matthews was up top whilst they pulled the ropes, Mr Matthews said he ‘would have looked at it down in the bottom but … [I] wasn’t up top when they were pulling the ropes’.[215] Mr Matthews acknowledged his response was based on the fact that he just would not have allowed it to happen.[216]
[214]Ibid 49 LL3-7; LL14-17.
[215]Ibid 49 LL18-26.
[216]Ibid 49 LL27-29.

Mr Matthews acknowledged that it is possible for someone in the channel to identify whoever might be standing up top, but he maintained that he did not recall having been up top, saying he would not have been there, and further that he was not there, not if they were pulling a rope.[217]
[217]Ibid 50 LL11-18.

It was put to Mr Matthews that three people had given evidence which places him at the site of the activities, and that it is more likely that Mr Matthews was there for a time whilst the work was being performed in this fashion. Mr Matthews denied this and said ‘not for the work. For the initial part I was, for the showing them where it was and telling them how much it leaked, yes I was there’.[218]
[218]Ibid 51 LL19-29.

When asked whether Mr Matthews would ordinarily be present during any discussions about how they would go about the task, Mr Matthews said they should ask him to come back and have a look at it, and they would have had to redo their SWMS.[219]
[219]Ibid 51-52 LL30-5.

It was put to Mr Matthews that when dealing with a work party that is an expert in dealing with penstock gates, in circumstances where Mr Matthews does not have anything meaningful to contribute, then he would not contribute. Mr Matthews acknowledged that all he would say is they have no crane.[220]
[220]Ibid 54 LL23-29.

It was put to Mr Matthews that because of the fact he says it is not his practice and he would not let it happen, it is possible that if there had been a discussion about the use of ropes he might make no comment at all. Mr Matthews said ‘no’, ropes were out of the deal altogether.[221]
[221]Ibid 54-55 LL31-5.

When asked whether he was present when the AWMA workers tested the seals, Mr Matthews said they never tested the seal.[222] However, when it was put to Mr Matthews that the AWMA workers used a steel ruler and basically poked at the sealant to see if there was a gap, Mr Matthews said ‘yeah I do actually, the steel, yes’.[223] He did not remember any further discussion after that.[224]
[222]Ibid 56 L27.
[223]Ibid 56-57 LL31-3.
[224]Ibid 57 L4.

Parties’ submissions in relation to Mr Matthews’ presence at the penstock gate

The VWA submits that the evidence of the three AWMA workers was that Mr Matthews was present during: the course of the AWMA workers’ inspection of the leaking penstock gate; the decision to use ropes to lift the gate; and whilst the work was being performed in that fashion.

It is submitted that the evidence of Mr East, Mr Hammond and Mr Novaselek was based upon their independent recollection of the events not prompted by any documentation which placed Mr Matthews at the scene so that he, at the very least, observed the work being performed in an unsafe fashion and with the knowledge that the AWMA workers had requested a crane and that a crane was not available for them to use.

The VWA submits that Mr Matthews was at best privy to discussions which took place about the manner in which the AWMA workers were to perform this task.

It is submitted that the AWMA workers’ evidence is in contrast to Mr Matthews’ evidence which in summary was that he had no specific recollection of the incident, of a particular request for a crane, or any discussion about alternative methods of performing the work or the individuals who were onsite for AWMA on 4 June 2010.

It is submitted that while there may be a lack of precision in the AWMA workers’ evidence about the presence of Mr Matthews at various times there is evidence upon which the Court can conclude that Mr Matthews was present at the time. The VWA submits that the Court can rely on the weight of evidence and the independent recollection of three witnesses of whom there has been no suggestion of collusion or tainting of their evidence. The VWA submits that Mr Matthews is not to be criticised for the way in which he gave his evidence but the underlying basis for his answers that he was not aware of the AWMA workers using ropes nor witnessed them using ropes was because it offended generally what Mr Matthews considered to be safe practice.

On behalf of Tenix it was submitted that the allegation against Tenix is that Mr Matthews saw an obviously unsafe system being used but did not interfere with it, saw an injury being suffered but said and did nothing regarding the injury, either did or did not take hold of a rope after Mr East became injured, and did not compile, or seek to have compiled, any incident report regarding the injury. Tenix submits that this is highly improbable. It is submitted that the evidence was not consistent as between the AWMA witnesses and in the case of Mr East and Mr Novaselek, their evidence is contradicted (by omission) by earlier documents and accounts.

It was submitted that each of the witnesses accepted that their memory was not clear and that there is insufficient evidence to justify a finding that Mr Matthews was present at the time that the use of ropes was discussed or implemented.[225]
[225]Downer’s Written Submissions regarding Matthews’ Presence, [20].

Finding

Each of the witnesses, Mr East, Mr Novaselek, Mr Hammond and Mr Matthews gave their evidence in a straightforward fashion. To my observation, each of them attempted to give an honest and accurate account of events as they recollected them.

It was apparent during Mr Matthews’ evidence, that in order to give detailed evidence of the events that took place on 4 June 2010, he had been taken to documents in order to assist him to reconstruct and recollect events that occurred as best he was able. In relation to Mr East, Mr Novaselek and Mr Hammond, it was not suggested that these witnesses had a memory for dates and conversations that were superior to what might have been expected. Nevertheless, without any file notes or detailed diary entries and given the limited documentation in this case relevant to the events that occurred in the morning on 4 June 2010 at the ETP site, I consider that the three AWMA workers had an actual recollection of the events that occurred. This is in contrast to Mr Matthews’ evidence which is clearly a reconstruction. I do not mean to be critical about this. It was the inevitable consequence of the fact that this proceeding required Mr Matthews to give evidence of events that occurred six years ago and that he had no reason to have a memory of. In this case, the true contest was between Mr Matthews and the three AWMA workers as to the conversations, who was present at the penstock gate and at what time they were present, whether Mr Matthews was present during the discussion of the use of ropes and/or when the ropes were being used.

In circumstances where three witnesses have an actual recollection of the morning of 4 June 2010 albeit lacking in some precision and having slightly different recollections on various matters, I consider that on the whole, where there is a dispute about what was observed and recalled about the incident on 4 June 2010, the evidence of the three AWMA workers should be preferred.

I accept that Mr Matthews was doing the best he could to recollect what happened six years ago as the other witnesses were. Whilst Mr Matthews was firm in his view that he would not have let the AWMA workers lift the penstock gate with ropes, that is in the manner that they say it happened because it offended his common sense and his appreciation of what was right and safe, he accepted that it was likely that the workers would have asked him for a crane and that he would have said to them that a crane was not available.[226] Given the evidence of the AWMA workers and Mr Matthews’ concession I consider that request was made of Mr Matthews for a crane.
[226]Transcript, recovery proceeding, 21 LL5-8

Whilst there were some inconsistencies between the three AWMA workers as to what point in time Mr Matthews was present at the penstock gate, there is an overwhelming consistency in their evidence that Mr Matthews was present and noticed by them either when there were discussions taking place about the use of the ropes or as part of the analysis of the work and ultimately in the performance of the work.

Mr East’s evidence[227] was that Mr Matthews was standing beside the AWMA workers during the lifting process at some stage. It was a vague reference but nonetheless it was his recollection of Mr Matthews’ presence. Mr East also gave evidence in cross-examination that Mr Matthews was present in the morning of 4 June 2010 and involved in discussions about the use of a crane which took place when they were looking at the penstock gate, that is when they conducted the first inspection. Mr East’s evidence was quite particular in that he described that Mr Matthews was standing to his left. This is a very specific recollection and one from which Mr East did not resign. In addition, Mr East gave evidence about the time pressures to get the work completed which included pressure from Mr Matthews.[228] Mr East’s evidence was very clear that Mr Matthews was present during the discussion in relation to the availability of a crane, that Mr Matthews took the workers to the door and that he was there when they decided to use the ropes. Mr East’s evidence was also that Mr Matthews was there when he and Mr Novaselek had a discussion with Lee Fletcher about getting the job finished and importantly, that Mr East was adamant that he recalled that Mr Matthews was present while the AWMA workers were setting up the ropes.[229]
[227]Transcript, worker’s proceeding, 62-63.
[228]Ibid 275 L17.
[229]Ibid 285 LL21-23.

Mr Hammond’s evidence was that Mr Matthews was actually there while they were lifting the penstock gate with the ropes. He had a specific recollection that Mr Matthews was up top and ‘stood along with Shane’[230] at the time that they had the ropes and were setting up the task. His evidence was that he recalled that at the time of the pulling of the ropes Mr Matthews was standing off to the side out the way a bit.[231] While Mr Hammond acknowledged that his recollection was patchy and that he did not recall the entire day he maintained at all times that Mr Matthews was there onsite.
[230]Ibid 366 L20.
[231]Ibid 368 LL1-2.

In relation to Mr Novaselek, there was a lack of precision about how long Mr Novaselek spoke to Mr Matthews. Mr Novaselek’s evidence was that every time he looked up from the trench and looked up 3.5 metres he could see Mr Matthews. His evidence was also that he could hear Mr Matthews talk to Mr Hammond a lot[232] and that Mr Matthews was there for a fair amount of time. Mr Novaselek’s evidence was that he was sure that Mr Matthews was there when Mr East hurt his back. I do not accept Mr Novaselek’s evidence that Mr Matthews assisted with lifting the penstock gate. This is contrary to Mr East and Mr Hammond’s evidence who were at the top level and had a clear view at all times of Mr Matthews and were responsible for the ropes at the top level.
[232]Ibid 632.

In summary, there are three accounts, albeit not identical which place Mr Matthews at the penstock gate at various times. While there is imprecision in the varying accounts by the three AWMA workers, they all squarely place Mr Matthews at the penstock gate at the time the use of ropes was being discussed and importantly when Mr East hurt his back using the ropes. This is in contrast to Mr Matthews who does not have a direct recollection of the events but gives his answers on the basis that he would not have let the AWMA workers conduct the work in that manner because it would just offend what he considered to be right.

In relation to the prior inconsistent statements made by Mr East in the three documents, I do not consider that the evidence supports the submission that the failure to mention Mr Matthews’ presence was because Mr East is now giving a different version of events in relation to Mr Matthews’ presence. I accept that there is no reference to Mr Matthews’ presence in those documents but I do not consider that this in any way detracts from Mr East’s oral evidence and importantly the oral evidence given by Mr Novaselek and Mr Hammond.

Further, as stated above Mr Matthews gave evidence that he remembered seeing the AWMA workers use a steel ruler to poke the sealant in the penstock gate to see if there was a gap in it.[233]
[233]Transcript, recovery proceeding, 56-57 LL29-3.

Despite the lack of precision in each of the three AWMA workers’ evidence in relation to Mr Matthews’s presence at the time the ropes were being discussed and/or used, when the evidence is looked at holistically, I consider that on the balance of probability it is more likely that Mr Matthews was in the vicinity of the three workers at the very least when the activity was being discussed and undertaken.

Mr Matthews was Tenix’s foreman and was experienced in matters of occupational health and safety. I consider he was on notice that the AWMA workers needed a crane to perform the task and that one was not available. Mr Matthews was aware of the AWMA worker’s decision to use ropes in the absence of a crane. He said that based on documentation he believed he would have been busy on 4 June 2010 and unlikely to have stayed with the AWMA workers for any significant period of time and he did not have a memory of how much time he spent on any given task that day. As such, I prefer the evidence of the AWMA workers who did not resign at any stage from their evidence in relation to Mr Matthews being present when the use of the ropes was discussed and adopted. He did not put a stop to the activity and there can be no question in such circumstances that there has been a breach of the duty of care owed to Mr East and a breach of statutory duty by Tenix.

It was accepted by Tenix that if I accepted that Mr Matthews was aware of the intention to use ropes for the lifting of the penstock gate, it was in contravention of the SWMS, and it would constitute a failure by Tenix to take such steps as is reasonably practicable.

Was compensation properly paid by the VWA?

Section 82 of the Act proscribes that compensation be paid where an injury ‘arises out of or in the course of employment’ or in the case of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury, where ‘employment is a significant contributing factor’. Given my findings, I consider that compensation has been properly paid to Mr East by the VWA in respect of the 4 June 2010 incident.

For the reasons set out, I consider that Tenix breached its duty of care to Mr East and that the breaches were causative of Mr East’s injury. On the balance of probabilities, I am satisfied that but for Mr Matthews’ failure to take reasonable steps to ensure that the lifting of the penstock gate was done in accordance with SWMS and JSEA and in circumstances where he considered and knew that the method being adopted was unsafe, the accident would not have happened. I am satisfied that had Mr Matthews taken steps to ensure that the penstock gate was not lifted using ropes and prohibited the workers from doing so, that it would have prevented Mr East from suffering his injury.

It follows that the VWA has established that Mr East’s injuries were caused under circumstances creating a liability in Tenix to pay damages. For these reasons, I am satisfied that Tenix breached the duty it owed to Mr East. The risk of injury was patently foreseeable – the obvious precaution to stop the activity and ensure that it was conducted when a crane was available. The failure to do so was a cause of Mr East’s injuries.

Accordingly, I conclude that Tenix is liable in respect of Mr East’s injuries as required by s 138(1) of the Act.

Factor X – what is the extent of Tenix’s responsibility?

Factor X to the formula set out in s 138(3)(a) of the Act requires the court to determine the extent of the responsibility of the third party, which has caused or contributed to the injury of the worker.

In practical terms, this has been understood and applied to mean that a court investigates the circumstances surrounding the accident, identifies the parties whose act or omission had a causal relationship to the injury of the worker, and then determines the level of responsibility of each (including the worker).

It is also accepted that in reaching this conclusion a court applies the test utilised in a claim for contribution under Part IV of the Wrongs Act, namely:

(a) the degree to which each of the parties has departed from the standard of conduct required of that party; and

(b) the relative causal potency of each of the parties’ acts in relation to the injury sustained by the worker.[234]

[234]Papadopoulos v MC Labour & Anor [2009] 24 VR 665; (2001) VR 246.

Tenix asserts that two other parties should bear responsibility and therefore reduce its percentage of responsibility, namely Mr East and AWMA. Counsel on behalf of the VWA concedes that some responsibility for Mr East’s accident rests with AWMA. It was not disputed that AWMA as Mr East’s employer, owed him a duty of care. It could not delegate that duty to Tenix or rely upon Tenix’s supervisors onsite to ensure that its workers used safe systems of work.

Tenix submits that AWMA’s breach of duty was multifaceted:

(a) it failed to provide and enforce a safe method of work;

(b) it trained its workers to use an unsafe system of work, that is, the use of the ropes and manner used at the time of Mr East’s injury;

(c) it prepared a SWMS which did not refer to the system and which it trained its workers and thus misled Tenix;

(d) Lee Fletcher failed to arrange a crane in advance; and

(e) arguably, Lee Fletcher put pressure on Mr East and his team to complete the work in a hurry.[235]

[235]Downer’s Outline of Submissions regarding Factor X, [6] (Downer’s Factor X Submissions).

The SWMS provided by AWMA to Tenix described the method of lifting of penstock gates as always using the crane. This was also supported by Mr East in his evidence that he had never been trained by AWMA to lift penstock gates in any other method other than using cranes. This is in contrast to Mr Novaselek’s evidence that he had used ropes in the past to lift penstock gates. It was also accepted that AWMA were the specialists in relation to methods of work with penstock gates.

Tenix submits that AWMA’s negligence involved the creation of the unsafe system of work, as well as other matters identified at paragraph 162. It submits that in contrast, Tenix’s negligence was only in failing to intervene, that is to tell AWMA’s workers not to use such a method once they had already decided to do so and in circumstances where one of the workers, Mr Novaselek, had experience in performing the task in such a manner.

In terms of causal potency, between Tenix and AWMA, each could have insisted upon the work being conducted when a crane was available and that it should not be done using ropes.

On the question of culpability, I consider that AWMA and Tenix had responsibility. Each breached its statutory and common law duty. AWMA was directly responsible for Mr East as his employer, for his safety. It owed a non-delegable duty to ensure that his work was carried out in a safe working environment. As J Forrest J noted in Victorian Workcover Authority v Stoddart (Vic) Pty Ltd:[236]

It is well recognised that the law places a greater emphasis upon an employer’s duty to its employee than that of a third party (such as a contracting principal) to such an employee. The power of the employer to control and dictate the terms and conditions upon which an employee works carries with it the corollary that in doing so it is required to ensure as safe a workplace as is reasonably practicable.[237]

[236][2015] VSC 149.

[237]Ibid [119].

In this case it was AWMA’s obligation to ensure that the lifting of a penstock gate was done with a crane and not using ropes. On the other hand, as I have set out, Tenix was responsible for the provision of cranes and was aware that a crane was not available to lift the penstock gate. Mr Matthews was aware that ropes were going to be used and considered that such a method of work was unsafe and that he would not have allowed it. Mr Matthews was in a position to stop the very risk which ultimately transpired and led to Mr East’s injury. Having said that, I consider in circumstances where AWMA devised and implemented the unsafe system which was not considered in its SWMS or JSEA that it had a blatant disregard for Mr East’s safety. As such, I consider that the AWMA should bear the greater responsibility because of the causal potency and culpability.

Having said that, I will examine the parties’ submissions regarding Mr East’s possible contributory negligence before assigning each party’s responsibility for his injury.

Mr East

The particulars of negligence against Mr East in summary are as follows:

(a) failing to ask Tenix for the use of a crane;

(b) devising a system of work that was unsafe and inappropriate;

(c) attempting to lift the penstock gate without mechanical assistance;

(d) failing to wait for a crane to become available;

(e) failing to work in accordance with the employer’s gate installation occupational health and safety document; and

(f) devising a system of work in breach of the employer’s gate installation occupational health and safety document.

Tenix submits that if negligence is found on its behalf, factor X should be assessed at 5 to 10%, with balance being attributed to AWMA and Mr East.[238] Tenix does not specify what contribution should be attributed to Mr East.
[238]Downer’s Factor X Submissions, 3 [12].

The VWA submits that Mr East’s contributory negligence should be assessed to be no more than 20%.[239] Tenix submits regarding factor X that Mr East should also bear responsibility for participating in, if not actively devising (on his own evidence that they came up with it as a team),[240] a method of lifting an approximately 100 kilogram penstock gate that obviously carried with it the risk of back injury. Relevantly, Mr East agreed that he knew the safe way to remove a gate was with a crane.[241] He agreed you use a crane to protect your back from heavy lifting.[242] He said, ‘I knew it was wrong to lift heavy things’.[243]
[239]VWA’s Submissions dated 1 December 2016, 10 [40]-[49] (VWA’s Submissions).
[240]Transcript, worker’s proceeding, 571 LL6-7.
[241]Ibid 148.
[242]Ibid 152.
[243]Ibid 153 L3.

In the worker’s proceeding, in examination-in-chief by the Plaintiff’s Counsel the following evidence was given by Mr East:

Counsel: And if there wasn’t a crane available, was he responsible for the system that you eventually adopted to lift this door?
Mr East: We discussed it and we all agreed as a team to do it that way.

In cross-examination by Counsel for AWMA[244] the following evidence was given:
[244]Ibid 148 LL1-17.

Counsel: And the gate as well as everything around it is really very heavy, isn’t it?
Mr East: Yes.
Counsel: That’s why you need a crane?
Mr East: Yes.
Counsel: And you know you needed a crane because that’s the way it was done at AWMA?
Mr East: That’s right.
Counsel: And it was done that way, you gave evidence yesterday on every job?
Mr East: Correct.
Counsel: And the crane is used to lower it in?
Mr East: Yes.
Counsel: And lift it out?
Mr East: Yes.
Counsel: If you needed to look at it for some reason or it needs to be reinstalled for some reason?
Mr East: Yes.
Counsel: That’s what you do. You use a crane?
Mr East: Yes.
Counsel: And you also gave evidence yesterday that before 4 June 2010 you had never used a rope to try and lift a penstock gate?
Mr East: That’s correct. I’ve never.

In cross-examination by Counsel for AWMA it was then put:[245]
[245]Ibid 152-153 LL24-5.

Counsel: You’ve got to protect your back, don’t you? Make sure you don’t put your back under stress. Isn’t it the first thing that’s said to you?
Mr East: Well you get niggles and pains but you just do the job.
Counsel: You use cranes to do very heavy things is one way of protecting your back, don’t you, so that workers don’t have to lift very heavy things?
Mr East: Yes. That’s correct.
Counsel: You knew that?
Mr East: That’s correct, yes.
Counsel: You knew that lifting very heavy things could damage somebody’s back, that’s plain as — right as rain isn’t it?
Mr East: I knew that it was wrong to lift heavy things.
Counsel: Yes and if it was wrong because you could get injured, any worker could get injured?
Mr East: That’s correct.

In oral submissions in the recovery proceeding, Counsel for Tenix stated that AWMA’s negligence was ‘very considerable’[246] and that the transcript references reproduced above show that Mr East was contributorily negligent. In the hearing, Counsel for Tenix stated:

He [Mr East] considered that he knew what they were doing was unsafe and wrong. Now that has to be, in our submission, contributory negligence. It’s not inadvertence, he didn’t — there was no suggestion that he would have been sacked or anything like that if he hadn’t done it. It’s our submission that that’s contributory negligence. Either taking part in the devising of the system or failing to object to it or refusing to participate in it. He knew it was wrong, he went ahead with and that’s contributory negligence.[247]

[246]Ibid 116 L31.

[247]Ibid 117 L3.

It is also worth noting that in addressing the VWA’s allegation that Tenix breached occupational health and safety regulations reg 2.1.2, Counsel for Tenix in submissions state that lifting the penstock gate using ropes was not a ‘task’ that would be covered by the regulations.[248] It was submitted:

East should not have been undertaking the task of lifting the penstock with ropes: it was outside his WMS [Work Method Statement], with which he was rightly expected to comply … lifting the penstock door with ropes was an activity which East performed in contravention of the expectations of the WMS, and which caused him injury.[249]

[248]Downer’s Submissions regarding Work Method Statements/Leighton Contractors, 3 [19].

[249]Ibid.

In paragraph 46 of the VWA’s submissions, Counsel states that the decision to perform the work with ropes appears to have been a collaborative one between the three AWMA employees, Mr Novaselek, Mr Hammond and Mr East. Counsel relied upon Mr East’s evidence in cross-examination in relation to the decision to perform the work with ropes being something that they came up with together.[250]
[250]Transcript, worker’s proceeding, 217, 275 and 554.

In relation to contributory negligence, the VWA submits that Mr East knew that a crane was required, having looked at the job and having come to that conclusion.[251] In its written submissions the VWA stated:

Despite this he [Mr East] embarked upon a process of determining that this alternative system using ropes would be employed. In so doing, given the plaintiff was aware of the weight of the penstock gate and the heavy static force that he would have to apply to keep the gates open, it is fair to conclude that there is some contribution to his injury through his own contributory negligence. However, it is appropriate that such contributory negligence be no greater than 20% given he was not the most senior member of the staff from AWMA onsite at the time.[252]

[251]Plaintiff’s Submissions, 49.

[252]Ibid.

The VWA contends that:

If Mr Matthews was present either during the discussion in which a decision was made to use ropes was actually present whilst that was being undertaken, then the defendant should shoulder 40% of the contribution, the employer 40% and the worker 20%.

The VWA submits that Mr East was aware from the outset that it was a big job so that they needed a crane to perform the task and therefore he apprehended that this was a big job which needed some mechanical assistance.

The onus is upon Tenix to prove contributory negligence. At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed.[253]
[253]Joslyn v Berryman [2003] 214 CLR 552, 558 [16].

In personal injury in the course of employment cases, the law recognises the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other. In Podrebersek v Australian Iron and Steel Pty Ltd,[254] the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:

It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant’s conduct amounted to mere inadvertence, inattention or misjudgment, or to negligence.[255]

[254][1985] HCA 34.

[255]Ibid [5].

In this case, Mr East was not Tenix’s employee. Different considerations arise in the case of contributory negligence on the part of such persons.[256] In Pollard v Baulderstone Hornibrook Engineering Pty Ltd[257] the New South Wales Court of Appeal stated:

In an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the plaintiff to unnecessary risks. In such a case, the question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker’s conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage.
The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff’s position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety.[258]

[256]Thompson v Woolworths (Qld) Pty Ltd [2005] 221 CLR 234, 247 [40].

[257][2008] NSWCA 99.

[258]Ibid, [15]-[16] (citations omitted).

As discussed, I have found that Tenix owed Mr East a duty of care. I have also found that Tenix breached its duty of care and that the breaches were causative of Mr East’s injury.

In this case, the evidence is that using ropes to lift the penstock gate involved some risk. Mr East was aware that such a system of work to lift the penstock gate might cause him injury. Mr East was not properly instructed or trained in relation to the use of ropes to lift a penstock gate. Even though Mr Novaselek had used the ropes to lift a penstock gate in the past, the decision to use a rope was a collaborative one Mr East agreed to. Mr East had only ever used cranes and understood the importance of using cranes to lift the penstock gates given their weight and the awkwardness of lifting them.

On the day in question, Mr East was confronted with a scenario in which I accept that he and his co-workers felt pressured by AWMA and Tenix to complete the job. AWMA had not organised a crane and Tenix was unable to make a crane available on 4 June 2010. As such, Mr East was confronted with the choice of not doing the work or adopting a system using rope; a system which he had never used before, a system which was not the system of work prescribed in AWMA’s documentation and a system which he had never had any training in. On the day, I accept that Mr Novaselek was the supervisor and most senior person amongst the AWMA workers.

In the circumstances, Mr East was acting contrary to the very work system which AWMA had advised Tenix it would be using for the lifting of penstock gates. I accept that lifting the penstock gate using ropes was not in Mr East’s own interests or for his own convenience, but was so he could perform his duties to fix the defects in the penstock gate and to ensure that he did it in the time constraints placed upon him by AWMA and Tenix.

This was not a case where Mr East’s conduct was due to inattention, boredom, unfamiliarity and repetition. This was also in the circumstances where Mr Matthews was present, aware that the task was to be performed using ropes and keen for Mr East, Mr Novaselek and Mr Hammond to get the work done. Having said that, Mr East’s evidence was clear that the use of ropes was new, something he had never been trained in, and which he understood could cause injury.

While Mr East may have wanted to please his employer and get the job done, he had a responsibility to at least consider other options and refuse to perform the work in the manner devised by the AWMA workers. Mr East’s decision to participate in lifting the penstock gate with ropes was more than a product of misjudgement. I consider Mr East’s actions were deliberate and intentional and at least in disregard of the SWMS and JSEA. As such, I find that Mr East was contributorily negligent but only to a minor extent.

Viewed holistically, I consider that AWMA’s responsibility should be assessed at 55% and Tenix at 35%. Mr East’s responsibility should be assessed at 10%.

Conclusions as to apportionment

The VWA has succeeded in establishing that Tenix is liable to pay damages to Mr East because his injuries were caused by their negligence. Tenix is therefore liable to indemnify the VWA under s 138(1) of the Act for compensation paid to Mr East in respect of his injury.

Factor X is 55% as against AWMA and 35% against Tenix and 10% against Mr East. That is factor X in the formula specified in s 138(3)(b). Tenix is liable to indemnify the VWA to an amount to be calculated according to the formula on that basis.

I will ask the parties to consider appropriate orders.

[2016] VSC 775

20 December 2016