VWA v Playcorp Pty Ltd and Kagan Bros Consolidated Pty Ltd
[2011] VCC 138
•20 January 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CRIMINAL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-05-01595
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| PLAYCORP PTY LTD | First Defendant |
| (ACN 006 277 363) | |
| and | |
| KAGAN BROS CONSOLIDATED PTY LTD | Second Defendant |
| (ACN 006 444 355) |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3, 6-10 and 13 December 2010 |
| DATE OF JUDGMENT: | 20 January 2011 |
| CASE MAY BE CITED AS: | VWA v Playcorp Pty Ltd and Kagan Bros Consolidated Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 138 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – indemnity under s.138 of the Act – assessment of contribution parties – liability of occupiers
of premises in which the worker’s injury occurred.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F I O’Brien SC with | Thomsons Lawyers |
| Ms E M James | ||
| For the First Defendant | Mr R W Dyer | Norris Coates |
| For the Second Defendant | Mr C Granger | Minter Ellison |
| HIS HONOUR: |
1 On 4 September 2003, Rosalie Jones (“the worker”) was injured in the course of her employment with the APS Group Industrial Pty Ltd (“APS”). In this proceeding the plaintiff seeks an indemnity pursuant to the provisions of s.138 of the Accident Compensation Act 1985 (“the Act”) with respect to the compensation paid or payable in relation to the worker’s injury. The indemnity is sought against the first defendant (“Playcorp”) and the second defendant (“Kagan”).
2 In seeking the indemnity, the plaintiff asserts that each of these parties were in breach of the obligation they respectively owed to the worker by reason of their occupation of the warehouse at 7-9 Mephan Street, Footscray where the worker was working at the time at which she was injured (“the warehouse”).
3 It is not in dispute that the worker came to be working at the warehouse at the time of her injury by reason of an agreement entered into between APS and Playcorp pursuant to which the worker’s services were provided by APS to Playcorp. Neither is it in dispute that the warehouse comprises a building in which the Playcorp’s goods were stored and that the worker was required, in the course of her employment, to prepare orders for shipment to Playcorp clients. Whilst there is no issue that Kagan was generally managing the work undertaken at the warehouse at the time of the worker’s injury, the assertion by Playcorp that it had subcontracted out the management of the warehouse in its entirety to Kagan, is contested by the plaintiff.
The Circumstances of the Worker’s Injury
4 In the course of her employment at the warehouse, the worker was required as a “picker and packer” to manoeuvre a pallet jack, upon which a pallet was positioned, and to load the pallet with articles for the purpose of filling orders submitted by Playcorp clients. The internal area of the warehouse was configured such that it contained a number of aisles which were created by the positioning of shelving, upon which Playcorp’s goods were stored.
5 It is not in dispute that, prior to the worker’s injury, the shelving had been repositioned so as to alter the configuration of the walkways within the warehouse.
6 The worker’s duties required her to either push or pull the pallet jack along the various aisles, to select appropriate items from the shelving in accordance with the order which she was filling and place those items on the pallet.
7 In the course of performing these activities on 4 September 2003, the worker tripped over a bolt which was protruding from the concrete floor of the warehouse, and fell heavily.
8 It is not in issue that the bolt presented a potential tripping hazard, located as it was within the trafficable area between the shelving through which the worker was required to walk. In these circumstances, there is no issue that the worker’s injury was occasioned by reason of a breach by APS of the duty of care which it owed to the worker.
The Evidence Relevant to Liability
The Evidence of the Worker
9 The worker:
•
described the warehouse as “a big work house” and her job as involving walking around the aisles, picking various items from racking which held the stock. She said that she would do so either by pushing or pulling a pallet jack which supported a pallet, the dimensions of which were approximately 4 feet square.
•
described her accident as occurring when she kicked a dynabolt which was one of a group of approximately eight bolts which were protruding from the concrete floor of the warehouse approximately 6 or 7 inches from the edge of aisle 15. She said that the width of the aisle was sufficient to accommodate two pallets located on pallet jacks, one travelling in either direction.
•
said that the bolt over which she tripped was a dynabolt which protruded from the floor of the warehouse and was one of a number of bolts located at various points within the floor of the warehouse and which had, prior to her accident, been marked with a yellow paint to highlight their presence. She said that there were “lots of dynabolts still protruding even before the rackings were moved”.[1] The worker however described the presence of dynabolts as being not “as prolific” prior to the repositioning of the racking.
[1] Transcript (“T”) 62 – it is not in dispute that a short time prior to the worker’s injury, alterations had been undertaken at the warehouse which involved the removal of a conveyor belt and the reconfiguring of a number of shelves within the warehouse. It was to this reconfiguring that the worker was referring.
10 The worker described APS as being a labour hire company. She said that when she commenced working at the warehouse she did so subject to her employment with a labour hire company known as Adecco, and that her employer changed to APS in the first week in August 2003.[2] She described the warehouse as being controlled by Playcorp and that prior to her injury, Kagan took over the operation of the warehouse.[3]
[2] T 64
[3] T 64
11 The worker said that prior to her injury she, together with other workers, had complained about the presence of dynabolts protruding from the floor of the warehouse to Margaret Martin (her supervisor who was employed by Kagan), Gavin (her leading hand) and to Don. She said that “Tom somebody, and then Keith Crawley were the warehouse managers”[4] and that when complaints about the dynabolts were made to Margaret, Don or Gavin, they were told that until Playcorp “actually signs off on them; not much will be done about them at all”.
[4] T 67
12 The worker said that there was no occupational health and safety committee operating at the warehouse; that no weekly safety inspections were undertaken; that she had no knowledge of any procedure with respect to incident reporting, and that no occupational and health and safety information was posted at the warehouse.
13 The worker described the yellow paint which had been applied to the dynabolts as having a tendency to wear off;[5] that the aisles through which she walked often contained boxes of items which were stored so as to reduce the trafficable areas of the aisles, and that in this respect the workplace was not the tidiest.
[5] T 91
14 She said that:
•
APS would do an occasional walk through the warehouse and that she could not recall being given any induction or occupational health training when she commenced employment with it. She said that after her accident the faded yellow paint which had been located on the floor of the warehouse to highlight the presence of the bolts was replaced with red paint.[6] She said that she had complained about the bolts before her employment had been transferred from Adecco to APS and had made such complaints to Keith Crawley, to Margaret Martin and to both Don and Gavin; her first complaint having been made before the racking within the warehouse had been moved.
•
Whilst she was aware of the presence of the protruding bolts, they were quite often covered with stock and “you couldn’t remember where everything was all the time”. She agreed that both Margaret Martin and Don were employees of Kagan at the time at which she had been injured and that approximately twenty pickers and packers were employed at the warehouse.
•
She had been an active member of the Occupational Health and Safety Committee whilst she had been previously employed at Country Road and that she was well aware of her obligation to exercise reasonable care for her own safety at the time of her injury. She was asked why she had not, prior to her injury, reported the presence of the dynabolts to APS, and responded: “’Cos we believed that would be taken care of in- house.” She explained that Kagan had asserted that they were very strong on occupational health and safety matters and that “they would do what had to be done”.[7] The worker said that before her accident she had forgotten the particular place in the aisle in which the bolt was located because “they had been hidden for a day or two previous”. She said, with respect to the bolts:
[6] T 122
[7] T 177
“It’s like walking down the pavement, you don’t see a cigarette butt on the ground; you don’t take any notice. When you see it every day, you don’t take much notice anymore.”[8]
[8] T 182
15 The photographs which comprise Exhibit C were tendered, in respect of which the worker said, as to the condition of the aisle in which she was working at the time at which the incident occurred:
“As the photo shows in this one, there were quite a lot of cartons on the one side, which was very often the case. The further down the aisles you got, the busier these boxes got, to the point where you couldn’t even get a pallet and a pallet jack through.”[9]
[9] T 196
The Evidence of Margaret Martin
16 Margaret Martin said that she was employed by Kagan at the relevant time as a supervisor/trainer at the warehouse. She said that Kagan “took over the running of the warehouse fully on 7 July” 2003;[10] and that a new “pick path” was introduced at the warehouse by Kagan which involved the removal of a conveyor belt which had been erected in the warehouse, and a reconfiguration of some of the shelving.[11]
[10] T 210
[11] T 212-213
17 She described knowing, prior to the accident, of a problem with dynabolts of the type over which the worker tripped, and said:
“We had a little problem that some were coming up and we were trying either to hammer them back down or grind them off, and it just seemed to – we just seemed to be chasing our tails a little bit trying to do it as it occurred. The girls would often come and tell me and we’d – I’d refer it to my supervisor to get it done.”[12]
[12] T 215
18 She described the problem of bolts coming through the cement as one which was evolving, the general theory being that it might have been caused by forklift trucks causing the bolts to move in dry weather.[13] She said that when Kagan first moved onto the site, the pick path was very untidy but that after the shelving had been moved, this situation improved but problems still existed.[14]
[13] T 228
[14] T 229
19 When complaints were made as to the presence of bolts, Ms Martin said:
“I went to either – we notified either Keith Crawley or Gavin Nuey about them and they – I’m not sure which one or who did it, but they painted them and then tried to punch them back in and if that didn’t work they subsequently bought a grinder and were grinding them off.”[15]
[15] T 230
20 To the best of her recollection, Ms Martin said that she had first heard of a complaint as to the presence of the bolts approximately a fortnight before the worker’s injury;[16] that workers had been told to keep their eyes open and that as the bolts would come up they were punched down or ground off with the use of a grinder which was kept in one of the offices.[17]
[16] T 231
[17] T 235-6
21 She said that Kagan had the technology and experience necessary to run an efficient warehouse system[18] and that Kagan implemented its operating system at the warehouse, which system included the responsibility for health and safety at the warehouse.[19] She said that that system involved health and safety walks which were conducted by Mary-Ann Mijat, a Kagan employee, in the course of which tripping hazards and obstructions to walkways would be looked for.[20]
[18] T 237
[19] T 240
[20] T 244
22 She said that at the time of the handover she could not recall a problem with bolts coming up through the floor.[21]
[21] T 230
23 She said that after the worker’s injury she had inspected the bolts herself, that she observed them to protrude 5 millimetres or so above the floor[22] and that she did not consider them to constitute a tripping hazard. She said that she would find it surprising that it was thought that nothing could be done about the bolts until Playcorp agreed to pay for their removal.[23]
The Evidence of Mary Pretrovski
[22] T 253
[23] T 254
24 Mary Pretrovski, the WorkCover and rehabilitation coordinator of APS, gave evidence that:
•
She attended the warehouse following the worker’s injury and was advised by Keith Crawley that arrangements had been made to have the dynabolts ground down. At the same time, red paint had been placed over the area where the bolts were located.[24]
•
Prior to the worker’s injury a document entitled Partnership in Safety Agreement had been executed between APS and Playcorp which provided that on a day to day basis the supervision of the worker at the warehouse lay solely with Playcorp.[25]
•
Pursuant to the Partnership and Safety Agreement, Playcorp undertook the site induction of the worker and the obligation to provide her with any relevant health and safety information.
•
That she was not aware that in about July 2003, Kagan had introduced system changes which dramatically altered the way in which the worker’s duties were undertaken within the warehouse.[26]
•
That she visited the warehouse on a weekly basis, to “visit the contractors” and see how they were going.[27]
•
Inspections of the warehouse which were recorded in a document entitled ‘Partnership in Safety Workplace Hazard Check List’ on 26 February 2003 and 10 February 2004 respectively were undertaken by herself on behalf of APS and Keith Crawley who signed as a representative of Playcorp, and that these were the only site inspections in which APS was involved of which she was aware.[28]
•
She said that she was not aware as to whether the worker had undergone an induction at the site by APS prior to commencing her employment, as when the worker signed over to APS, she had already been working on the site for some time.[29]
•
She said that when the worker’s employment was transferred to APS she underwent an occupational health and safety comprehensive test which was administered by APS. In the course of that testing the worker answered questions, these answers were assessed and explanations were given as to any wrong answers provided by the worker. Miss Petrovski said that whilst this process was a genuine induction process, it was not one relevant to a specific site.[30] In the course of administering that process, she said that the worker would have been advised that any problems which she encountered in the workplace should be reported to APS.
•
She said that on the day of the incident she had made a note that a contractor was to come out and grind all the bolts that were protruding above the floor.[31]
[24] T 273
[25] Court Book (“CB”) 616 and 618.
[26] T 297
[27] T 276. I note that it is not suggested that these visits were executed for the purpose of assessing the safety of the system of work or the safety of the warehouse.
[28] T 293
[29] T 280
[30] T 298
[31] T 309
The Evidence of Doreen Alison
25 Edna Doreen Alison, a co-worker of the worker, gave evidence that bolts protruded at various places within the warehouse and that complaints about their presence had been made to Gavin Campbell, Don Keith and Mary (“the APS lady”) prior to the accident.
The Evidence of Maryanne Mijat
26 Maryanne Mijat said that she was employed as the National Occupational Health and Safety and Human Resources Manager for Kagan, and described Kagan as having expertise in the provision of warehouse services.
27 She said that after Kagan took over the management of the warehouse in July 2003, approval was generally sought from Playcorp if an occupational health and safety matter arose which required the expenditure of money.[32]
[32] T 325
28 She described an inspection undertaken in the course of a Work Cover safety audit on 7 July 2003, in the course of which she and Paul James Macken (a WorkSafe inspector)[33] had walked through the warehouse, and said that neither of them had observed any problems with dynabolts protruding from the surface of the floor.
[33] T 340, CB 45
29 She said that –
• On 4 August 2003, an inspection was undertaken by both herself and Keith Crawley[34] and that if any problem with respect to dynabolts had been present, such a problem would have been noted; • Mr Macken had undertaken a further inspection of the warehouse on 20 August 2003 which confirmed [34] CB 94
(i) that all compliance issues identified previously by WorkSafe had been met on the site and;
(ii) that no further intervention was required at that time.[35]
[35] T 95
30 She said that prior to the worker’s accident, there had been no complaint noted by her of any bolts protruding from the floor of the warehouse and that she had not observed the same in the course of the checks of the floor undertaken by her.[36]
[36] T 325; T 343
31 She said that on 30 July 2003, Kagan had sent an email to Playcorp at 3.09 pm seeking approval to undertake a small repair to the shelving at the warehouse, the cost of which was $302.50 and that approval for that work was received from Playcorp by 10.27 am on the next day.[37]
[37] CB 92
32 She conceded that:
•
what she had described in a document prepared by her entitled ‘Start Up Issues’[38] as a risk assessment and audit by Dexion,[39] could not reasonably be so described;
•
the Kagan hazard identification system involved reports being made to the warehouse manager or to her, or to the Occupational Health and Safety Committee.
•
the use by Kagan of an incident and a near miss report form as a means of reporting danger at the warehouse involved a process that “if someone just noticed the hazard, they would hopefully report it and then we’d act upon it”.[40]
•
she was unsure whether the worker had been inducted on the site as she was not an employee of Kagan but that she assumed that this had taken place.[41]
[38] CB 68
[39] T 359
[40] T 368-9
[41] T 371-3
33 She said that an Occupational Health and Safety Steering Committee had been established to manage occupational health and safety issues prior to the establishment of an Occupational Health and Safety Committee, and that the latter Committee had met for the first time on 28 October 2003.[42]
[42] T371-72
34 She said that shortly after the worker’s accident, she saw a dynabolt in the aisle in which the worker was injured but that it did not appear to be protruding much at all. When she was taken to Exhibit D, being the cut off section of the bolt over which the worker tripped which protruded above the floor, Ms Mijat commented: “It looks higher than what I can recall observing.”
The Evidence of Darren Kupshik
35 Darren Kupshik, a director of Playcorp, gave evidence that early in 2003, Playcorp leased the building for the purpose of converting it to a warehouse. He said Playcorp had originally employed a company known as Lateral Logistics to manage the warehouse operations but that it subsequently transferred that arrangement to Kagan.
36 He said that Kagan came very highly recommended to Playcorp, that the arrangement between the two companies was that Playcorp would reimburse all costs in relation to the warehouse, and that Kagan were paid to conduct specialised warehouse management services.[43]
[43] T 397
37 He described Mr Keith Crawley as originally being an employee of Playcorp who subsequently transferred to Kagan when it undertook the management of the warehouse. He said that following the handover of the warehouse to Kagan:
“No Playcorp employees were on site to manage the facility. There may have been a period of transition when some of the workers that were employed by Playcorp transitioned to Kagan, but they were under the instructions – supervision of Kagans from that heads of agreement. And Playcorp had no direct involvement or supervision of those staff members.”[44]
[44] T 395
38 He said that Mr Crawley was acting as the warehouse manager in August 2003 but that he could not recall the date upon which Mr Crawley had been offered an employment contract by Kagan. He said:
“For all intents and purposes Mr Crawley was under the supervision and management of Kagans. Because of the commercial arrangement between Kagans and Playcorp, whether he was on our books and we paid for him or whether he was on the books of Kagans, the cost to us would have been the same so there may have been an issue for not transferring Mr Crawley across legally but commercially and from a management perspective Mr Crawley was under the management and supervision of Kagans and we had no control of that.”[45]
[45] T 413
39 Mr Kupshik was taken to an Australian Personnel Solutions document entitled ‘Workplace Hazard Checklist’ dated 10 February 2004 in which Keith Crawley was identified as the representative of Playcorp for the purpose of that document. It was put to Mr Kupshik that that document suggested that Mr Crawley remained an employee of Playcorp as at April 2004, to which he responded:
“I’m still uncertain as to what date he signed across to Kagans but as I have mentioned before, for all intents and purposes he was an employee as we regarded of Kagans. The reason we entered into the relationship with Kagans was for this exact reason, they were the experts in this area and we no longer wanted to manage our facility directly. … .”
“Whether Mr Crawley may or may not have been on our payroll at that point in time, he was – for our purposes he was managed and supervised by Kagans and Kagans would not have been able to conduct their services or earn their management fee if Keith Crawley was not reporting through them.”[46]
[46] T 416-17
40 He said:
“We had a very open relationship with Kagans, and safety and security was paramount. And that’s exactly why we entered into this arrangement with Kagans, and they were the experts. And on issues such as this – and I do recall the line marking – whatever recommendations Kagans requested – I do not recall any of them being refused.”[47]
[47] T 420-21. This evidence was given with respect to the need by Kagan to obtain approval for work required to be done in relation to the warehouse.
41 He said that he was not informed of the worker’s accident until approximately eighteen months after the incident when the matter “became a legal issue”.[48]
[48] T 398
The Employment of Keith Crawley after 7 July 2003
42 There is conflicting evidence as to the capacity in which Keith Crawley was present at the warehouse after 7 July 2003.
43 There is no issue that following the introduction of Kagan to the site Mr Crawley, who was originally an employee of Playcorp, became an employee of Kagan.[49] What is unclear from the evidence is the date of his transfer.
[49] T 392
44 Whilst there is no dispute that at the time of the worker’s injury Mr Crawley occupied the position of warehouse manager, whether he did so as an employee of Kagan or of Playcorp is, in my opinion, uncertain.
45 It is clear that in February 2004, Mr Crawley completed a workplace hazard checklist as a representative of Playcorp, which document was prepared at the behest of APS. In that document he was described as the representative of Playcorp. This document is relied upon by the plaintiff in asserting that at the time of the worker’s injury, Mr Crawley was employed by Playcorp and as such Playcorp controlled the site by reason of its employment of the warehouse manager.
46 I am of the opinion that the completion of this document by Mr Crawley as a representative of Playcorp is not inconsistent with the evidence given by Mr Kupshik that Playcorp had divested itself of any obligation which it had to manage the warehouse by retaining Kagan to do so. If this was indeed the case, I do not consider that Playcorp would have been expected to undertake a workplace hazard assessment and I do not find it surprising in those circumstances that Mr Crawley, as warehouse manager, would have been nominated by Kagan to perform the activity. In the circumstances, I find this evidence to be equivocal upon the issue of the identity of Mr Crawley’s employer at the time of the worker’s injury.
47 Mr Crawley was described by Ms Mijat as being an employee of Kagan as at 4 August 2003.[50] This evidence is the only definitive statement made by any witness who gave evidence in the proceeding as to the capacity in which Mr Crawley was working at the time of the worker’s injury. When this evidence is considered in the light of the fact that:
[50] T 348
•
it is clear that as at 7 July 2003, Kagan took over the management of the warehouse
•
as early as June 2003, Ms Mijat attended the warehouse as part of a Steering Committee to discuss any issues which required attention before “Kagan was responsible for managing the warehouse on behalf of Playcorp”[51]
[51] T 321-22
it makes it, in my opinion, unlikely that Kagan would have to some extent divested itself of control of the warehouse at the time of the worker’s accident by allowing an employee of Playcorp to occupy the position of warehouse manager, or that Playcorp would have acquiesced to the employment of one of its employees in that position given its decision to employ an independent expert to manage the operation of its warehouse.
48 Whilst Mr Kupshik’s evidence was equivocal as to the date upon which this transfer took place;[52] this equivocation raises at the highest, an uncertainty as to whether Mr Crawley was employed by Kagan or by Playcorp at the relevant time. I am not however satisfied, for the reasons to which I have earlier referred, that Playcorp was Mr Crawley’s employer at or about the time of the worker’s injury.
[52] See his evidence at T 413 and 416
Finding as to the Time for which the Tripping Hazard Persisted
49 There is a conflict of evidence as to the length of time during which the tripping hazard which caused the worker’s accident was present. It was the worker’s evidence that bolts were protruding from various sections of the floor for a considerable period of time and that this situation persisted even prior to 7 July 2003. Her evidence in this regard was supported by the evidence of a co-worker, Doreen Ellison.
50 In contrast, Ms Mijat gave evidence that a number of safety walks were undertaken at the warehouse in the months prior to the worker’s injury[53] in the course of which she would have expected the presence of protruding bolts to have been identified, and that no such problem was identified or recorded. Whilst I have considerable doubt as to the reliability of Ms Mijat’s observations in this respect (having regard to her evidence that even after the worker’s accident upon inspecting the site at which the worker fell she did not identify the presence of a tripping hazard), site inspections were undertaken on a number of occasions by Paul Macken, a WorkSafe inspector,[54] and Mr Keith Crawley, in conjunction with Ms Mijat, on 4 August 2003. I am satisfied on the balance of probabilities that either Mr Crawley or Mr Macken would have identified the presence of protruding bolts in the floor of the warehouse as potential tripping hazards if such hazards were present, and that it is likely that if such hazards were present they would have been detected in the course of the inspections undertaken by them to which I have referred.
[53] As late as 20 August 2003
[54] Who attended the warehouse in July 2003 and as late as 20 August 2003
51 I note, in this context, the evidence of Ms Martin that she first became aware of the problem associated with the presence of the bolts some two weeks or so prior to the worker’s injury. She described the issue as one which was developing as the bolts “were coming up so we had to be – punch them down, hit them down or grind them off”;[55] and that it was her theory that it was movement in the floor that was causing the bolts to creep up through the concrete.[56]
[55] T 235
[56] T 40
52 Taking into account all of this evidence I am not satisfied that the tripping hazard which caused the worker’s injury had persisted in the area in which the worker suffered her injury for a period in excess of a few weeks.[57]
[57] I am satisfied however that in another area of the warehouse, which was reasonably remote to the area in which the worker suffered her injury and was described by Ms Ellison as being “down the back
The Relationship between the Worker and Each of the Parties
(i) APS
53 I am satisfied that APS was at all material times the worker’s employer. As such, it owed to the worker a duty, which it could not delegate, to take reasonable care not to expose the worker to risk of injury in the course of her employment with it. This duty extended to the provision of not only a safe place of work but also safe systems of work.
54 I am satisfied that the evidence establishes that APS did not undertake an onsite induction of the worker with respect to the work practices which were introduced by Kagan at the time at which it took over the management of the warehouse and introduced its own systems of work.
55 I am further satisfied that staff of APS attended the warehouse on a regular basis but that those attendances were generally for purposes other than assessing the safety of the workplace or the work practices employed on the site, and that the management of those practices were effectively left by APS to either Kagan or Playcorp.
56 In this respect, I am satisfied that APS comprehensively abandoned any obligation which it owed to the worker to provide either a safe place of work or a safe system of work.
(ii) Kagan
57 I am satisfied that Kagan was the occupier in possession of the warehouse and that the extent of its occupation was such that it exercised control over:
• the work systems undertaken at the warehouse, including that adopted by the worker;
in receiving – in returns” (T 333) some bolts were protruding from the factory floor and had been so protruding for a considerable period of time. I am not satisfied however, that the presence of these protruding bolts were in any way related to the occurrence of the problem identified by Ms Martin, namely a tendency of bolts to be dislodged so that they emerged above the surface of the floor.
•
the detection and management of hazards within the workplace, including the tripping hazard which was the cause of the worker’s injury.
58 I am further satisfied that throughout the period during which the problem which related to the protrusion of dynabolts in the floor surfaces over which the worker was required to manoeuvre her pallet persisted:[58] (was aware of the problem;
[58] namely approximately two weeks prior to the happening of the worker’s injury, Kagan:
• implemented a system with respect to the management of that problem which was inadequate, in that it did not remove the potential for injury by either removing the dynabolts or denying the worker access to the area in which she was injured. 59 I am further satisfied that the relationship between Kagan and Playcorp was such that Kagan had undertaken management of the site and management of occupational health and safety issues which arose at the warehouse, including those directly associated with the worker’s injury.
(iii) Playcorp
60 I am satisfied that Playcorp was an occupier of the site but that it had engaged Kagan, an expert in the area, to manage its warehouse on its behalf. This fact is not disputed by Kagan.
61 Further, the evidence that whilst employees of Playcorp would attend the site for the purpose of inspecting stock levels and monitoring the services which Kagan provided to Playcorp customers, they did not undertake safety inspections of the site, and that Playcorp was never requested by Kagan to do so, supports the position by Playcorp that it had engaged Kagan to manage the work place. In this respect I am satisfied that Kagan undertook the responsibility to report to Playcorp with respect to any work which it assessed needed to be undertaken at the warehouse. The fact that Dexion, on 14 July 2003, reported to Kagan problems with the shelving at the warehouse which were detected in the course of an inspection of the shelving undertaken by Dexion, and that Kagan acquainted Playcorp only with the briefest information as to Dexion’s recommendations and at the same time sought from Kagan a payment in respect of the costs of the needed repairs, provides further support for the position that for all extent and purposes Kagan was managing the warehouse from 7July 2003 on Playcorp’s behalf.
62 I am satisfied that at no time prior to the worker’s injury did Kagan notify Playcorp of any potential problem which arose by reason of the presence of tripping hazards being caused by dynabolts which protruded or had a tendency to protrude from the floor of the warehouse and that Playcorp was not aware of the existence of this problem prior to the worker’s injury.
63 The fact that neither APS nor Kagan nor the worker notified Playcorp of the occurrence of the incident until the matter “became a legal issue” some eighteen months after its occurrence,[59] further supports the contention put by Kupshik that Kagan managed the warehouse and undertook the instruction and supervision of the labour force at the warehouse, including the worker.
[59] T 392
64 I am further satisfied that given that Playcorp:
• had no knowledge of the existence of the tripping hazard caused by the presence of the dynabolts; • had a limited opportunity to detect the presence of that problem given the relatively short period of time during which the problem had persisted prior to the worker’s injury; the failure by Playcorp to detect and remedy the problem does not constitute a breach of any duty of care which Playcorp owed to the worker given all the circumstances pertaining to its occupation of the warehouse.
65 For these reasons I am not satisfied that the plaintiff has established that it is entitled to a finding in its favour against Playcorp in this proceeding.
Finding as to Contributory Negligence by the Worker
66 I accept the evidence by the worker as to the general level of untidiness within the warehouse. This evidence satisfies me that, to some extent, the worker would have been distracted from observing the potential tripping hazard caused by the presence of the dynabolts as she manoeuvred her trolley along the aisles of the warehouse. When account is taken of the relatively short period of time during which the potential tripping hazards had persisted, and the fact that:
•
the tripping hazard was an evolving problem as the dynabolts which were located in the floor continued to erupt from the floor surface;
•
there is no evidence which establishes that the worker had an opportunity to detect the presence of the tripping hazard which was responsible for her injury prior to its occurrence;
I am not satisfied that the defendants have established that the worker was guilty of contributory negligence rather than mere inadvertence.
Contribution of other Parties
67 It was contended by the second defendant that the apportionment of responsibility between the parties to this proceeding should be adjusted to take into account the failure by WorkSafe to detect, in the course of the inspections of the warehouse by Mr Macken, the tripping hazard constituted by the presence of the dynabolts. By reason of the findings I have made, I am not satisfied that the evidence establishes in any way that the problem which arose by reason of the presence of the bolts was detectable in the course of those inspections and, accordingly, I do not accept this submission.
Finding as to Apportionment
68 For the reasons which I have earlier expressed, I am satisfied that in terms of culpability, the default by Kagan in causing the worker’s injury is greater than that of APS. I regard the responsibility of both Kagan and APS in the cause of the injury as being broadly equal however, given the position of APS as the worker’s employer.
69 Accordingly, I apportion the responsibility for the workers accident as being 60 per cent due to the breach by Kagan of its duty to the worker and I allocate the balance of the blame for the worker’s injury, namely 40 per cent to APS.
The Assessment of Damages pursuant to Section 138(3)(b)
General Damages
70 In assessing general damages, I take into account not only the circumstances of the initial injury to the worker’s knee but also the subsequent and associated fracture of her left femur.
71 In a report dated 29 August 2008, Mr Russell Miller, an orthopaedic surgeon, opined:
“Ms Jones has suffered a left fractured patella and had surgery for this with open reduction and internal fixation. She has undergone a patellectomy and this has left her with a residual knee weakness. In my view this led to the subsequent fall and fracturing of the femur. I now believe that the left leg is insignificant valgus mal-alignment and that Ms Jones is developing medial ligament laxity and deteriorating knee symptoms. I believe she is at significant risk of developing deteriorating knee symptoms and arthritic disease later in life. I now regard the prognosis for the left patella/knee injury as being poor.
She suffered a left fractured femur and has had surgery for this. It is not clear at this stage whether the fracture is united and I would recommend further x-rays of the femur be undertaken and I could provide a supplementary report. It is clear however that the left femur is in a degree of valgus mal-alignment and this is contributing to the problems with the left knee. I therefore regard the prognosis for the femur as being fair.”[60]
[60] CB 243
72 He continued:
“Ms Jones is not fit for pre-injury work and could not return to work that involved prolonged standing and prolonged walking. She has no capacity for knee agility or work that involved twisting, turning or squatting. She could not return to her previous occupation. Given my understanding of her age, work experience and educational level, I do not envisage a return to the workforce due to work-related injury and I regard the situation as permanent.
I believe that Ms Jones’ condition has deteriorated slightly since she was reviewed by me and I believe there is significant risk of ongoing deterioration, particularly in relation to the right knee.
The domestic and gardening activities are largely undertaken by her partner. She will have a markedly reduced capacity for these.”[61]
[61] CB 245
73 Dr R Siemienowicz, the worker’s treating medical practitioner, gave evidence in the course of the proceeding which confirmed the findings by Mr Miller to which I have referred, namely that the worker’s left leg is rotated externally and that she suffers from a permanent valgus deformity in the leg. He opined:
“It is very very likely that this lady will require a knee replacement much
earlier than one would expect a person in the usual life.”[62]
[62] T 220
74 The worker described the consequences of her injury as involving:
•
surgery in the form of an internal fixation of the patella following the initial injury;
• arthroscopy of the knee in February 2004; • post-surgical physiotherapy undertaken by Mr Robert Dibb; • patellectomy in November 2004; •
open reduction and external fixation of the comminuted fracture of the femur following the injury to her femur sustained in August 2005;
•
a prolonged course of treatment which included hospitalisation, bed rest, initial mobilisation with a walking frame and then with elbow crutches in association with this injury;
•
the development of an emotional response in which she was not coping and in respect of which she received counselling over a twelve-month period;
•
the long-term need to make use of medication in the form of Nurofen Plus and subsequently Celebrex for pain management, and Effexor to control her emotional state.
75 The worker gave evidence that by reason of her injury, her social life had been curtailed, in that she was no longer able to partake in her previous activities of undertaking long walks, dancing and surf fishing. She said she was restricted in her ability to do heavy tasks around the house and that these were performed for her by her husband. She described a restricted ability to walk around the rural property which she occupied and said:
“While the ground is not even, it’s not a flat level surface. It doesn’t take much for me to have a fall. If it’s wet, one little slip, one little mud patch, which has happened a couple of times, the first time I think I was on crutches for another seven, eight weeks.”[63]
[63] T 101
76 She described having to employ medication if she was required to sit or stand in one position for long periods of time and that she had difficulty shopping.
77 When asked as to her plans for continuing her work prior to her accident, she replied:
“I wasn’t planning on retiring quite so soon.”[64]
[64] T 103
78 I am satisfied that the worker’s injury has resulted in a dramatic change in her lifestyle, the effect of which has been to incapacitate her from engaging in any form of strenuous physical activity or activity which requires her to stand or walk for long distances. I am satisfied that the injury has precluded the worker from engaging in her pre-accident employment and I regard such a loss as being a significant one in a worker who had an outstanding work history.[65] I accept that the worker suffers from continuing symptoms of pain and from symptoms of depression and that each of these symptoms are significant enough for the worker to be required to employ medication to control them.
[65] See the worker’s evidence at T 102
79 Further, I am satisfied that the worker’s condition is likely to continue to deteriorate, that it is probable that her symptoms of pain and disability will increase, such that it is likely that she will require treatment in the form of a knee replacement.
80 In the circumstances, I am of the opinion that it is appropriate to assess the worker’s claim for pain and suffering damages in the sum of $200,000.
Past and Future Loss of Earnings
81 By reason of her injury, the worker was absent from work until May 2004. In November 2004, she underwent surgery in the form of a patellectomy and thereafter returned to work in May 2005. On 26 August 2005, the worker suffered the fracture to her left femur and she has not returned to work since that date.
82 The evidence as to the worker’s plans with respect to future employment but for her injury is sparse. In the course of the trial, the only evidence adduced from the worker as to this issue was as follows:
“Q: What were your plans in relation to your continuing work prior to
this accident happening?---A: Well, I wasn’t planning on retiring quite so soon. Q:
What do you say your prospects were of continuing long-term at Playcorp or at that site for Kagan or for Playcorp for that matter?---
A: I think it was very high.”[66] [66] T 103
83 In the course of her evidence, the worker said that she was effectively away from work from the date of the injury until May 2004, at which time she returned to work and continued to work until just prior to undergoing surgery in the form of a patellectomy in November 2004.[67] She said that after this operation she returned to work in approximately April 2005 and continued working until she suffered her injury on 26 August 2005. On the basis of this evidence, I am asked to fix, with some precision, an appropriate allowance with respect to past loss of earnings in this proceeding.
[67] T 71
84 No evidence was led by the plaintiff as to whether, during the periods in which she worked between 4 September 2003 and 26 August 2005, the worker was employed on either a full or part-time basis.
85 It was put:
• that a close examination of the WorkCover payments received by the worker indicates that payments in respect of a partial loss of earnings were made to the worker during the periods in which she worked between September 2003 and August 2005; • that some allowance should be made for the fact that during these periods it is probable that the worker was not in full-time employment and was thus losing income when compared to that which she would have earned but for her injuries; and that I should adjust the assessment of the worker’s loss of earnings
between September and August 2005 to take these matters into account.86 Whilst I accept that there may be some merit in this submission, the evidence before me is so imprecise that I am not satisfied that the plaintiff has established on the balance of probabilities either the fact of, or extent of any loss suffered by the worker during the periods in which she was in employment between September 2003 and August 2005, and that the fixing of a figure to compensate her for any such loss would really involve speculation on my part.
87 In these circumstances, given the absence of any persuasive evidence as to any economic loss suffered by the plaintiff during the periods in which she worked between September 2003 and August 2005, I am satisfied that I should confine my award of damages during this period to the dates during which the worker was unfit for work and absent from her workplace.
88 During the period between the injury suffered by the worker and her return to work in May 2004, approximately thirty-four weeks elapsed. During this period, I fixed the worker’s notional loss of earnings at $21,250.00 (thirty-four weeks multiplied by $625.00 per week, this being the rate agreed by the parties).
89 The worker was absent from work during the period between November 2004 and April 2005, a period of approximately twenty-two weeks. During this period, I fixed the worker’s loss of earnings at $13,750.00 (twenty-two weeks multiplied by $625.00 per week).
90 Accordingly, I fix the loss of income suffered by the worker during the period between 4 September 2003 and 26 August 2005 in the sum of $35,000.00.
91 I am satisfied, having regard to the worker’s work history, that it was her intention as at August 2005 to continue working and that she would have done so but for the fracture which she suffered to her femur on 26 August 2005.
92 The evidence further satisfies me that the worker had good prospects of obtaining a full-time position within the warehouse as an employee of Kagan.[68]
[68] See the evidence of Ms Martin at T 236
93 Given the absence of any evidence which allows me to fix, with any degree of certainty or precision, the period during which the worker would have continued in employment but for her injury, when combined with the total absence of any independent evidence which would allow me to draw an inference on this issue which would be based on something other than a guess, I am satisfied that I should award a nominal sum in respect of the income which the worker would have earned in continued employment after 26 August 2005. I consider it appropriate to fix this sum in the amount of the plaintiff, the sum of $35,000.00.[69]
[69] In fixing this sum, I take into account the assessment of the Medical Panel dated 23 June 2009, that the worker had, at that time, a current work capacity. I am satisfied however that the medical evidence establishes that the ability of the worker to earn substantial income by way of remunerative employment following her injury in August 2005 would have been productive of an extremely modest level of income. I am further satisfied that the period under consideration in this regard should not extend beyond the date of the plaintiff’s change of residence to Waaiai.
Past and Future Griffiths v Kirkemeyer Damages
94 The evidence adduced by the plaintiff as to the worker’s need for assistance which would attract an award of damages pursuant to the decision in Griffiths v Kirkemeyer[70] is generally as nebulous as that which was adduced upon the issue of the worker’s lost earning capacity.
[70] (1977) 139 CLR 161
95 The worker gave evidence that:
•
between September 2003 and November 2003, she had no hope of caring for herself;
•
that during this period her partner would get her out of bed first thing in the morning, make her some breakfast and position her on a couch until her sister arrived at approximately 9.00 am.
•
that upon her sister’s arrival, she would prepare lunch for the worker, keep her company, do general things for her, and prepare tea for her.[71]
[71] T 103-104
96 Although this evidence is imprecise, I am satisfied that it establishes the entitlement of the worker to damages for the commercial value of the care which she received during this period.
97 It was put on behalf of the plaintiff that I should allow the commercial cost of two hours per day of support during this period.
98 I am satisfied that the evidence establishes this entitlement as a minimum and, accordingly, I fix the entitlement of the worker to the commercial cost of the care provided to her by her partner and sister during the period September 2003 and November 2003 (14 hours per week at $24 per hour for a period of approximately twelve weeks), in the sum of $4,032.00.
99 The worker gave evidence that her sister provided her with some assistance after her operation of April 2004. No evidence was given however as to the nature of the assistance or the hours involved in the same.[72] In these circumstances, I am not satisfied that the plaintiff has proven an entitlement in the worker to damages based on the commercial value of the care which she received during this period, having regard to the paucity of the evidence on this issue.
[72] See the evidence at T 104 and T 105
100 The worker gave evidence that, following her accident in August 2005, her sister again provided her with assistance and that her partner was there at night. No evidence was adduced however as to the nature of the assistance which the worker needed, the nature and extent of her incapacity during this period or the services which were provided to the worker by her sister and her partner. In these circumstances, I find myself unable to make a finding as to the level of the worker’s need for gratuitous services, the nature of the services provided and whether such services were reasonably required by reason of the worker’s injury-related incapacity. For these reasons, I am not persuaded that I should make an award in respect of any gratuitous services provided during this period.
101 The worker gave evidence that between November 2005 and the present date, her partner has continued to provide her with assistance which involved “taking care of things that I can’t take care of like housework and what have you as well”.[73] She had earlier given evidence that her partner undertook activities around the house, such as mopping the floor, carrying the washing basket out to the line for her, hanging the washing out and bringing it in and feeding the animals on their small acreage.[74]
[73] T 107
[74] T 100-101
102 The worker was asked:[75]
[75] T 107
“Q: Just finally Ms Hocking, since November ’05 – really since you haven’t returned to work and today, what contribution does Mr Hocking make to your care, your physical care. How many hours do you say he would devote to that in any week?--- A: Ten to twenty hours.”
103 I note that:
•
In his medical report dated 29 August 2008, Mr R Miller opined that the worker “will have a markedly reduced capacity” for home and work activities;
•
In her report dated 28 August 2008,[76] Dr Robyn Horsley, an occupational physician, identified the need of the worker to avoid static standing for periods of greater than fifteen to twenty minutes, sitting for periods of greater than twenty to thirty minutes and avoidance of lifting items greater than 5 to 8 kilograms on a permanent basis;
[76] CB 454
and that this evidence is consistent with a need by the worker for domestic
assistance.104 The absence of any evidence as to the precise needs of the worker with respect to assistance during the period November 2005 to date, when combined with the absence of medical evidence which substantiates the relationship between the worker’s accident-related disabilities the subject of this proceeding and the need for any gratuitous services which she presently receives, causes me to adopt a cautious approach to the award of damages in respect to the commercial value of gratuitous services provided to the worker from November 2005 and into the future.
105 Adopting this approach, and taking into account the medical evidence in the context of the evidence given by the worker on this issue, I am satisfied that I should allow damages with respect to past gratuitous services, calculated as follows:
Between November 2005 and December 2010
Five hours per week at $24 per hour = $120 per week = $31,680.00
106 As to the future, I am satisfied that the approach which I have taken as to the past is an appropriate approach to be applied to the future. I do not accept however that the worker has established the worker’s entitlement to Griffiths v Kirkemeyer damages during the period of the duration of her life. Rather than such a continuing need persisting, I consider it equally likely that as her age advances, it is probable that, by reason of the ageing process considered independently of her injuries, the worker would eventually have been exposed to the need for help of a type and extent similar to that which is presently required by reason of her injury.
107 The worker is presently fifty-five years of age. I am satisfied that it would be appropriate to award to her the commercial value of the services provided to her by her partner in assisting with her physical care fixed at five hours per week, namely $120 per week continuing until the age of seventy.
108 I will hear submissions from the parties as to the approach which I should take as to the quantification of this aspect of the assessment of the worker’s notional damages in the absence of the provision by the parties to me of a multiplier which would allow me to fix this figure with some precision.
Medical Expenses
109 The parties are agreed that I should allow the worker past medical expenses in the sum of $35,000.00 and future medical expenses in the sum of $10,000.00.
Summary
110 I assess the Factor A component of this case as follows:
General Damages - $200,000.00 Medical Expenses, Past and Future $45,000.00 Loss of income suffered by the worker during the period between 4 September 2003 and 26 August 2005 - $35,000.00 Loss of earnings after 26 August 2005 - $35,000.00 Commercial value of the care which the worker received between September 2003 and November 2003 - $4,032.00 Commercial value of the care provided to the worker $31,680.00 between November 2005 to date - Commercial value of the care which the worker requires to be assessed in the future – To be assessed
after submissions
from the parties.
The Estoppel Defence taken by Kagan
111 It is submitted on behalf of Kagan that, by reason of the determination of the Medical Panel in this case and the impact of that determination upon the obligation of the plaintiff to make future payments with respect to any continuing incapacity of the worker for employment, the plaintiff is estopped from claiming an indemnity which is based on an assessment of factor A which include items other than future medical expenses which are agreed in the sum of $10,000.
112 At the conclusion of this matter, I required Counsel for the second defendant to provide a written submission with respect to this point, having indicated on a number of occasions during the course of the trial that I considered the position taken in this regard to have no merit and to be inconsistent with both the provisions of s.138, subsections (1) and (3) and the authorities which have considered the operation of the provisions of those sections of the Act.
113 The assertion in the written submission provided by Counsel appearing for Kagan, that:
“S.138(3)(b) is otiose upon a proper application of s.138(1)”
is a proposition which does not accord with the rules of statutory
interpretation nor with the analysis by the Court of Appeal as to the approach
which should be adopted by a court in considering a claim under s.138.[77] In
these circumstances, I consider it appropriate to adopt the approach taken by
Kaye J in Victorian WorkCover Authority v Prolift Fleet Management Pty Ltd,[78]
namely that I am bound in law to follow the approach taken by the authorities
of which I have referred and, accordingly, that I should reject the position put
on behalf of Kagan in this regard.
[77] See Esso Australia Limited v Victorian WorkCover Authority & Anor (2000) 1 VR 246; Victorian WorkCover Authority v Anderson [2000] VSC 461; Victorian WorkCover Authority v Kenman Kandy Pty Ltd [2002] VSCA 190
[78] [2009] VSC 96.
Conclusion
114 I will hear submissions from the parties as to the matter which arises as to the calculation of the sum which should be allowed in respect of the cost of future attendant care and allow the parties to prepare orders which incorporate the findings I have made into an arithmetical calculation as required by s.138.
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