VWA v Seventy First Trading Pty Ltd
[2025] VCC 342
•28 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-01423
| Victorian WorkCover Authority | Plaintiff |
| v | |
| Seventy First Trading Pty Ltd | First Defendant |
| v | |
| Cool Dynamics Refrigeration Pty Ltd | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13-16 May 2024 | |
DATE OF JUDGMENT: | 28 March 2025 | |
CASE MAY BE CITED AS: | VWA v Seventy First Trading Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 342 | |
REASONS FOR JUDGMENT
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Subject:RECOVERY PROCEEDINGS
Catchwords: Accident Compensation – Recovery Proceedings – Factor X – Relative Causation
Legislation Cited: Workplace Rehabilitation and Injury Act 2013 (Vic); Wrongs Act 1958 (Vic)
Cases Cited:Esso Australia Ltd v VWA & Anor [2000] VSCA 74; Hazeldine’s Chicken Farm Pty Ltd v VWA [2005] VSCA 185; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; VWA vCarrier Air Conditioning Pty Ltd [2006] VSCA 63; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Joslyn v Berryman (2003) 214 CLR 552.
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Macnab SC | IDP Lawyers |
| For the First Defendant | Mr W. R. Middleton KC | Meridian Lawyers |
| Mr M. K. Clarke | ||
| For the Second Defendant | Mr M. Walsh | TH Legal |
HIS HONOUR:
Introduction
1Craig Young (“the worker”) was a plaintiff in a common law proceeding he commenced as a result of having suffered injury in the course of his employment when he fell from a ladder on 22 January 2015.
2The first defendant to the common law proceeding was his employer, Cool Dynamics Electrical Proprietary Limited ("CDE”) who was represented at the common law trial by Mr S Smith KC and Ms S Manova of counsel.
3The plaintiff’s injury happened at premises owned by the second defendant to the common law proceeding, Seventy First Trading Pty Ltd (“Europa”) and from which premises it operated a cheese factory.
4The third defendant to the common law proceeding, Cool Dynamics Refrigeration Pty Ltd (“CDR”), engaged CDE to assist it perform certain works at Europa.[1]
[1]T 31, Line (“L”) [18]-[19].
5CDE and CDR were related in that, the director and owner of CDE, Michael Hibbert was a director of CDR.
6The ladder from which the worker fell at the premises and suffered his injury belonged to and had been set up by an employee of CDR named Arthur Bugiouklis (“Arthur”).[2]
[2]T 8, L [7]-[11].
The Injury
7The worker suffered injuries in the fall from the ladder by way of:
(a) injury to the right arm including the elbow, shoulder and wrist;
(b) injury to the brain resulting in acquired brain injury;
(c) scarring;
(d) injury to the left wrist;
(e) chronic pain;
(f) consequential psychological condition; and
(g) injury to the jaw, teeth and sternum.[3]
[3]Further Amended Statement of Claim dated 14 May 2022, at paragraph [5].
Common Law Proceeding
8The damages trial came on for hearing before me and jury of six. The first jury was discharged and a second jury was empanelled. The common law claim for damages resolved prior to any evidence being adduced before the jury.
The Recovery Proceeding
9The Victorian WorkCover Authority (“the VWA”) commenced proceedings as plaintiff to recover contributions paid to the worker in settlement of his common law proceeding. The VWA initiated recovery proceedings only as against Europa and CDR in respect of past and future payments made by it to, and on behalf of, the worker pursuant to Section 369 of the Workplace Rehabilitation and Injury Act 2013 (Vic) (“WIRCA”).
10The VWA was represented by Mr Macnab SC together with Ms M Cameron of counsel. Mr Macnab had been retained and appeared as counsel for the worker in the resolved common law damages proceeding.
11Europa was represented by Mr Middleton KC with Mr M K Clarke of counsel.
12CDR was represented by Mr M Walsh of counsel.
13The VWA proceeding against Europa resolved during the course of the third day of hearing of the recovery proceeding and the VWA sought no order against it, however, the recovery action by the VWA continued against CDR.
14The VWA seeks a determination as to Factor X for CDR, that is to say, an order that determines the extent to which it is responsible for the worker’s injury.
15It was agreed that the evidence filed in the common law proceeding could be used as evidence in the recovery proceeding.
The Nature of a Recovery Proceeding
16Section 369 of the WIRCA enables an employer or its insurer, or, in this instance the VWA, to recover compensation paid to an injured worker from a non-employer, who would be liable to that injured worker. A formula is prescribed under the WIRCA to limit the third party’s liability to that which it would have been liable for, if the worker had sued the third party at common law. The claim is not one for damages or a debt, but is a recovery action prescribed under statute.
Formula Prescribed Under The WIRCA
17The Court is required to calculate the worker’s notional common law assessment of damages under Factor A. The Court must then take from the notional assessment any amount the defendant has paid the injured worker in his claim under Factor C; and the Court must then divide Factor A, less Factor C, by the extent to which the third party would be liable at common law under Factor X. In other words, any liability of an employer, or third party or contributing negligence must be stripped away to determine the third party’s contribution.
Determining Factor X
18In Esso Australia Ltd v VWA & Anor,[4] and subsequently in VWA v Carrier Air Conditioning Pty Ltd,[5] it was held that contribution and contributory negligence for the purposes of determining Factor X should be determined in the same manner as contribution and contributory negligence is determined under the Wrongs Act 1958 (Vic) (“the Wrongs Act”). Section 24 of the Wrongs Act requires the Court to determine contribution based on what is “just and equitable having regard to the extent of that person’s responsibility for the damage”.[6]
[4] [2000] VSCA 74.
[5] [2006] VSCA 63.
[6] Part IV of the Wrongs Act includes s24(2) which relevantly provides:
“… the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the trial is without a jury to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the jury or the court if the trial is without a jury shall have power to exempt any person from liability to make contribution, or to direct that the contribution is to be recovered from any person…”.
19Factor X is established by application of the same principles as inform the contribution between wrongdoers. Therefore, the Court will investigate the circumstances surrounding the accident, identify those parties whose act/s or omissions have a causal relationship to the injury of the worker, and then determine the level of responsibility of each, including the worker.
20The test applied in a claim for contribution under Part IV of the Wrongs Act is:
· the degree to which each of the parties has departed from the standard of conduct required of that party; and
· the relative causal potency of each of the parties’ acts in relation to the injury sustained by the worker.
21There is no reason in principle why the same approach under the Wrongs Act should not be adopted when determining Factor X, although a Court when it has reached the stage of determining Factor X, has necessarily determined that the compensable injury was sustained in circumstances creating a liability to pay damages for the injury. In an appropriate case, Factor X, like contribution under the Wrongs Act, may be nil or 100 per cent, because if a wrongdoer was solely responsible for the personal injury, it would pay 100 per cent, no matter how insignificant its breach, but if there were multiple wrongdoers, the relative responsibility may be such, that the contribution could be either insignificant or nil.
22Contribution is assessed on the basis of what is just and equitable having regard to the content of that person’s responsibility for the damage. Such an assessment involves two principal considerations, the degree of departure from the standard of care required, and the relative causal potency of the potential tortfeasor’s breach.
23The determination of Factor X is a discretionary exercise.[7] Accordingly, the discretion must be exercised lawfully, having regard to relevant matters, and disregarding irrelevant matters.
[7]Hazeldine’s Chicken Farm Pty Ltd v VWA [2005] VSCA 185.
24If liability is established in negligence then the VWA becomes entitled to the indemnity from the third party defendant in accordance with the section and the formula earlier described.
25The VWA is authorised at law to commence a proceeding to recover money under the provisions of Section 369 of the WIRCA.
The Test in Causation
26The claims brought by the VWA against CDR are based in negligence and breach of statutory duty, by way of failures to discharge its duties as an occupier of the Europa premises and pursuant to Occupational Health and Safety Regulations.
27It is not disputed that the worker suffered injury. The question is the extent to which CDR’s negligence and/or breach of statutory duty was causative of, or contributed to, the worker’s injury. I must be satisfied on the balance of probabilities that CDR caused the accident, in the sense that its negligence or breach was a cause of the injury to the worker.
28The evidence is that CDR engaged CDE to provide refrigeration services at Europa’s premises. There was no evidence of any contractual engagement or commercial relationship or agreement or understanding between Europa and CDE for the performance of the refrigeration works at the premises.[8]
[8]I note however that the Further Amended Statement of Claim pleads at paragraph 4(e) that the employer was engaged by Europa to provide services at the premises. Mr Macnab explained in closing submissions that this was a typographical error (T 254, L10-30).
29The VWA submitted that CDR:
(a) owed a duty of care to the worker in negligence and under statute;
(b) breached its duty of care to the worker; and
(c) the breach of negligence and/or breach of statutory duty was the main cause of the worker’s injury.
30The particulars of negligence pleaded by the VWA against CDR were expressed at paragraph 11 of a Further Amended Statement of Claim (the “FASOC”),[9] in the following terms:
[9]Dated 14 May 2024.
(a) failing to provide and maintain safe premises for the worker to work;
(b) failing to provide the worker with safe working environment;
(c) requiring the worker to work in a situation of danger;
(d) failing to undertake a risk assessment of the safety of erecting the ladder;
(e) failing to anchor the ladder;
(f) failing to warn the worker that the ladder was not anchored;
(g) requiring the worker to climb the ladder when it was not anchored;
(h) failing to meet the requirements of sections 20, 21, 22, 23 and 26 of the Occupational Health & Safety Act 2004 (Vic) and/or the regulations made under or applied by that Act, including but not limited to the Occupational Health and Safety Regulations 2007 (Vic) (“the OHS Regulations”);
(i) failing to take adequate steps to eliminate the risk of the worker being injured;
(j) exposing the worker to a risk of injury of which CDR knew or ought to have known;
(k) exposing the worker to a risk of injury which could have been avoided with reasonable care on the part of CDR;
(l) failing to provide a safe place of work;
(m) failing to provide a safe system of work;
(n) exposing the worker to unnecessary risk of injury;
(o) failing to devise, maintain and enforce a safe system of work at the premises;
(p) failing to adequately train and/or instruct its workers with respect to working at heights;
(q) failing to undertake any or any adequate inspection of the premises;
(r) failing to ensure that its workers were inducted at the premises;
(s) failing to require its workers to prepare Safe Work Method Statements (“SWMS”) prior to commencing works;
(t) failing to instruct the worker and/or its workers of the existence of the external fixed-safety ladder to access the roof cavity at the premises;
(u) failing to use the elevated work platform or external fixed-safety ladder to access the roof cavity at the premises.
31The VWA further alleged that CDR:
(a) was an occupier of the premises pursuant to the Wrongs Act, and accordingly, owed a duty of care to the worker to take reasonable care in all the circumstances to see that he would not be injured by reason of the state of the premises, or of things done or omitted to be done in relation to the state of the premises;
(b) breached OHS Regulations, in particular, Regulations 3.3.1 – 3.3.8 by:
(i)failing to carry out any or any relevant fall hazard identification for the tasks required to be carried out by the worker;
(ii)failing to ensure that the ladder used to control the risk of fall was:
-fit for purpose; and
-set up in correct manner.
(iii)failing to prepare a SWMS;
(iv)failing to ensure that the ladder used to control the risk of fall was installed and erected in such manner as to reduce so far as was reasonably practical, any risk;
(v)failing to ensure that any measures implemented to control risks in relation to falls were reviewed; and
(vi)failing to ensure emergency procedures were established before the task was undertaken as far as reasonably practicable.
32CDR for its part, denied liability but pleaded contributory negligence against CDE, Europa and the worker. It is convenient to set out the particulars of contributory negligence put by CDR against all of those involved.
33CDR’s allegations of contributory negligence levelled against CDE were as follows:
· Failing to provide and maintain a safe system of work;
· Failing to provide a safe place of work for the worker in which to work;
· Failing to provide adequate and competent supervision of the worker;
· Requiring the worker to work in a situation of danger;
· Failing to undertake a risk assessment of the premises;
· Failing to inspect the premises to ensure that they were safe for the worker;
· Failing to ensure that the premises were in good order;
· Failing to ensure that if the worker was required to use a ladder, that there were anchor points available for the ladder to be secured;
· Failing to instruct the Worker to access the roof space via the external stairway.
· Failing to provide the Worker with a JSA.
· Failing to provide the Worker with a SWMS.
· Failing to provide the Worker with a safe system of accessing the roof space.
· Failing to provide an elevated platform to the Worker.
· Failing to direct the Worker to use a scissor lift.
· Failing to instruct the Worker to secure the ladder.
· Failing to provide further assistance to ensure the ladder was secure.
· Failing to instruct the First Defendant to assist the Worker.
· Failing to instruct the Worker to register his attendance when he arrived at the premises.
· Failing to instruct the Worker to seek instructions from the First Defendant in regard to safely accessing the roof space
34The allegations of negligence levelled by CDR against Europa pleaded as follows:
(a) Failing to provide and maintain safe premises for the worker to work;
(b) Failing to provide the worker with a safe working environment;
(c) Requiring the worker to work in a situation of danger;
(d) Failing to undertake a risk assessment of the safety of the premises;
(e) Failing to ensure there were anchor points available for a ladder to be erected;
(f) Failing to inspect the area of the premises in which the worker was working;
(g) Failing to properly supervise the worker;
(h) Failing to have any or any available pre-installed anchors;
(i) Failing to meet the requirements of Sections 20, 21, 22, 23 and 26 of the Occupational Health & Safety Act 2004 and/or the regulations made under or applied by that Act, including but not limited to the Occupational Health and Safety Regulations 2007;
(j) Failing to maintain the premises in a condition that would enable the worker to perform the work safely;
(k) Failing to take adequate steps to eliminate the risk of the worker being injured;
(l) Failing to warn the worker;
(m) Exposing the worker to a risk of injury of which the First Defendant knew or ought to have known;
(n) Exposing the worker to a risk of injury which could have been avoided with reasonable care on the part of the First Defendant;
(o) Failing to provide a safe place of work;
(p) Failing to provide a safe system of work;
(q) Exposing the worker to unnecessary risk of injury.
(r) Failing to devise, maintain and enforce a safe system of work at the premises;
(s) Failing to have any or any adequate system for the management of contractors working at the premises;
(t) Failing to ensure that the plaintiff and/or any other contractor was inducted at the premises;
(u) Failing to undertake any or any adequate hazard identification of works to be undertaken by contractors at the premises;
(v) Failing to require contractors to prepare Safe Work Method Statements and/or undertake hazard identification of intended works at the premises;
(w) Failing to issue work permits such as working at heights prior to contractors commencing work at the premises;
(x) Failing to adequately train and/or instruct contractors with respect to working at heights at the premises;
(y) Failing to instruct the worker, the Plaintiff, the Second Defendant and/or other persons attending the premises of the existence of the external fixed-safety ladder, in circumstances where access to the roof cavity at the premises was required;
(z) Permitting access to the roof cavity at the premises via a manhole when the defendant knew of the existence of the external fixed-safety ladder;
(aa) Failing to have any signage on the manhole or in close proximity to the manhole, advising workers of the existence of the external fixed-safety ladder to access the roof cavity at the premises.
35CDR’s allegations of negligence against the worker pleaded as follows:
(a) Failing to take care for his own safety;
(b) Failing to undertake a safety inspection of the ladder and surface below it to ensure that the ladder was properly secured prior to climbing the ladder;
(c) Failing to assess or properly assess the risk of ascending the ladder in circumstance where it was unclear whether the ladder was secured at the top and knowing that the ladder was not secured at its base;
(d) Failing to assess the safety or slip resistance of the surface of the floor under the ladder before ascending the ladder;
(e) Failing to tie off the ladder;
(f) Failing to secure the ladder;
(g) Failing to seek instructions in relation to a safe place to access the roof space;
(h) Failing to sign in when he arrived at the First Defendant’s premises;
(i) Failing to complete a Safe Work Method Statement and/or a Job Safety Analysis;
(j) Failing to assess the dangers of using a ladder which was not secure;
(k) Failing to seek assistance from the First Defendant, its servants or agents, to hold and secure the ladder;
(l) Failing to advise the First Defendant that placing a ladder in the position that it was placed at the time of the accident was safe;
(m) Failing to advise the First Defendant of his attendance at the premises;
(n) Failing to advise the First Defendant that he was intending to notify the First Defendant that he was accessing the roof space of the premises;
(o) Failing to seek instructions from the First Defendant;
(p) Failing to advise the Second Defendant that the ladder needed to be secured;
(q) Failing to request Arthur to secure the ladder;
(r) Failing to request Arthur to secure the ladder when he reached the roof space;
(s) Failing to request Arthur to hold and secure the ladder;
(t) Failing to use his own ladder;
(u) Failing to put in place a safe system of accessing the roof space.
The Evidence In The Recovery Proceeding
36The following people testified:
(a) the worker; and
(b) Arthur.
The Exhibits
37The VWA relied on the following documentary evidence:
(a) Photograph with hand drawn ladder made by the worker;[10]
[10]Exhibit P1.
(b) Photograph of a scissor lift;[11]
[11]Exhibit P2.
(c) Map hand drawn by the worker;[12]
[12]Exhibit P3, Plaintiff’s Jury Book – Common Law Proceeding (“PJB”) 11.
(d) Photographs of the area where the worker fell taken at the view on 23 April 2024;[13]
[13]Exhibit P4, PJB 7-9.
(e) Photograph of the car port area taken at the view on 23 April 2024;[14]
(f) Video 1 – CCTV footage of Europa’s premises on 22 January 2015;[15]
(g) Video 2 – further CCTV footage of Europa’s premises on 22 January 2015;[16]
(h) Stills of the video;[17]
(i) Video from the view taken on 23 April 2024;[18]
(j) Photos from Google Maps;[19]
(k) Plaintiff’s Interrogatories for Examination of the Third Defendant numbered 3,6,7,10 and 13 and the answers thereto;[20]
(l) Plaintiff’s Interrogatories for Examination of the Second Defendant numbered 1,4,6,7,9 and 11-14 and the answers thereto;[21]
(m) First Defendant’s Interrogatories of the Second Defendant numbered 1,7,8,11 and 14 and the answered thereto;[22]
(n) Visitor register.[23]
[14]Exhibit P5, PJB 10.
[15]Exhibit P6.
[16]Exhibit P7.
[17]Exhibit P8, PJB 12-32.
[18]Exhibit P9.
[19]Exhibit P10, PJB 2-6.
[20]Exhibit P11, Worker’s Court Book – Common Law Proceeding (“WCB”) 83-89.
[21]Exhibit P12, WCB 75-83.
[22]Exhibit P13, WCB 115-121.
[23]Exhibit P14, PJB 36.
38Europa tendered the following as evidence:
(a) Photocopy of the worker’s safety induction card dated 24 August 2014;[24]
(b) Photocopy of various tickets issued to the worker variously dated;[25]
(c) Worker’s Certificate of Attendance for a Height Safety Awareness Course;[26]
(d) Cool Dynamic Electrical Health and Safety Booklet for Employees and Subcontractors;[27]
(e) Interrogatory 5 and the answer thereto;[28] and
(f) Occupational Health and Safety Checklist.[29]
[24]Exhibit D1A, Joint Defendant Court Book (“Joint DCB”) 227.
[25]Exhibit D1B, Joint DCB 228.
[26]Exhibit D1C, WCB 331.
[27]Exhibit D1D, WCB 332-371.
[28]Exhibit D1E, WCB 68-69.
[29]Exhibit D1F, WCB 410.
39CDR tendered the following as evidence:
(a) Interrogatory 6 and the answer thereto;[30]
[30] Exhibit D2A, WCB 69.
(b) Interrogatory 10 and the answer thereto;[31]
[31] Exhibit D2B, WCB 71.
(c) WorkSafe Entry Report 23 January 2015;[32]
[32]Exhibit D2C, PJB 41B - tendered on the basis that it would not be used as opinion evidence regarding breaches of the OHS Act or Regulations.
(d) WorkSafe Improvement Notice 13 January 2015;[33]
[33]Exhibit D2D, PJB 41C - tendered on the basis that it would not be used as opinion evidence regarding breaches of the OHS Act or Regulations.
(e) WorkSafe Entry Report 1 April 2015;[34]
(f) Register of Injury document dated 22 January 2015;[35]
(g) Europa Cheese induction execution page dated 13 February 2015;[36]
(h) First Defendant’s Interrogatories for Examination of the Second Defendant numbered 2A, 4, 5, 12 and 13 and the answers thereto;[37]
(i) Third Defendant’s Interrogatories for Examination of the Second Defendant numbered 3, 5, 9 and 10 and the answers thereto;[38]
(j) Plaintiff’s Interrogatories for Examination of the Second Defendant numbered 8, 12 and 16 and the answers thereto;[39]
(k) Plaintiff’s Interrogatories for Examination of the First Defendant number 16 and the answer thereto;[40]
(l) Second Defendant’s Interrogatories for Examination of the First Defendant numbered 1, 8, 11, 12, 13, 14 and the answers thereto;[41]
(m) Third Defendant’s Interrogatories for Examination of the First Defendant numbered 3, 6, 13 and 18 and the answers thereto;[42] and
(n) First Defendant’s Interrogatories for Examination of the Plaintiff number 3 and the answer thereto.[43]
[34]Exhibit D2E, PJB 41D - tendered on the basis that it would not be used as opinion evidence regarding breaches of the OHS Act or Regulations.
[35]Exhibit D2F, WCB 326 - tendered on the basis that it would not be used as opinion evidence regarding breaches of the OHS Act or Regulations.
[36] Exhibit D2G, WCB 432.
[37] Exhibit D2H, WCB 115-119.
[38] Exhibit D2I, WCB 148-152.
[39] Exhibit D2J, WCB 75-81.
[40] Exhibit D2K, WCB 96.
[41] Exhibit D2L, WCB 130-134.
[42] Exhibit D2M, WCB 141-146.
[43] Exhibit D2N, WCB 92.
The Worker’s Evidence
Evidence in Chief
Pre-Injury
40Prior to suffering his injury, and save for a brief period in employment when managing an IGA Supermarket from 1998-2002, the worker has been employed as an A Grade electrician for around 20 years since the completion of his apprenticeship.
41The worker commenced employment with CDE in December 2013, initially as a sub-contractor, before becoming a full time permanent employee in December 2014.
42The owner of CDE is Mr Michael Hibbert, whom the worker said he had known before commencing employment, and who was referred to at times throughout the hearing as “Mick”.
43In the six months prior to December 2014, on average, and in addition to his full-time hours, the worker performed four to six hours of overtime per week.
44CDE provided the worker with a car and paid for its fuel and services. The worker attended jobs using the supplied vehicle.
45When the incident the worker suffered in January 2015, CDE had approximately eight employees.
46The worker said that when he commenced with CDE he was not provided with an induction. He was provided with a booklet about working for CDE.[44] The worker said that when he was given the booklet, he was asked to sign an acknowledgment of having read and understood the booklet so that a SWMS (Safe Work Method Statement) could be sent to the Melbourne Market Authority, to enable him to be able to undertake work on that site.[45] The worker signed the acknowledgment page of the booklet declaring that he had read and received it. However, he said he had not read the contents of the booklet and was told by CDE to read it whenever he found some spare time.
[44]Exhibit D1D, WCB 332-371.
[45] T 44-45, L 30-2.
47The worker said he had attended a working safely from heights course organised by CDE,[46] and conducted at CDR’s premises in Carrum Downs. He said that employees from CDE and CDR also attended.
[46]Exhibit D1C, WCB 331.
The Events on the Date of Injury
48The worker commenced at CDE’s depot at about 7:00 am. He had been at work for around 15 minutes, when Mick Hibbert approached him and told him to go to Europa’s premises to relocate a coil in a cool room.[47] The worker said he had not previously attended Europa’s premises in Pakenham. Apparently, another employee of CDE was meant to attend at Europa to relocate the coil that day, however, he had called in sick, and so Mick Hibbert asked the worker to attend to the job.
[47]A coil is an evaporator on a roof that contained refrigerant coolant inside, which is drawn by fans into the cool room.
49Mick Hibbert asked the worker to meet Arthur, a refrigeration mechanic on site at the Europa. The worker said he had met Arthur once before at a “Working from Heights” course.
50After being allocated the job, the worker drove to Europa, which he said, took him about one and three quarter hours travelling time.[48]
[48] T 48-49, L 32-1.
51The worker understood that he would need to disconnect the fans or heaters connected to the coil in the Europa cool room and then pull the coil up through the roof in order to relocate it. He said he had performed this type of task previously whilst working for a different employer. He said there was no way to relocate the coil without pulling it through the roof cavity.
52He arrived at Europa just after 9:00 am. He said he observed a reception area, and looking through its glass door, it appeared that the lights were off. He said that on driving further into the premises he did not observe any signage, such as, for example, directing visitors to report to reception.
53He parked behind what he later learned was Arthur’s car. He said he telephoned and spoke with Arthur. Arthur told him that he was in the cool room and directed him where it was located and how to find him. The worker said that when he got to the cool room Arthur was up on a scissor lift that was placed underneath the coil. He said Arthur was disconnecting refrigeration pipes that were connected to the coil.
54The worker said that Arthur descended the scissor lift. Arthur told him:
“we've got to relocate the coil. To relocate the coil we've got to do that up in the roof, I'll show you where it is”.[49]
[49]T 51, L 6-8.
55The worker said that Arthur did not want to relocate the working platform (that is, the scissor lift) because he said it was quite a task to get it into where it was. It was quite tight and had taken quite a number of goes to get it in there, so he suggested that they go up via the ladder.[50]
[50]T 51, L 6-12.
56The worker said this was the extent of discussion about a ladder, and that Arthur then went outside alone and retrieved his ladder from his vehicle. After having obtained the ladder the worker said that Arthur “proceeded to put the ladder up while I went into the cool room to see how the coil was wired, and whether the cables were going to like a junction box or whether they individually come down to fans and whether there was any heaters, et cetera or stuff like that, so I knew what I was going to see.”[51]
[51] T 51-52, L 27-2.
57The worker said he was in the cool room for a few minutes, before he came out and saw Arthur climbing the ladder from the first rung. The worker said he was standing in front of the cool room door approximately three metres away from the ladder which was in the adjacent area. The worker said he watched Arthur climb the ladder, and having done so, he proceeded to climb it.
58The worker estimated that he was about 20 centimetres from the top of the ladder when the base of it came out from under him. The ladder fell onto the sink beneath it.
59The worker was rendered unconscious. He sustained injuries to his jaw and teeth. He said he had no recollection of the incident, until he was in the ambulance on the way to hospital.
60Mr Macnab drew the worker’s attention to various photographs of Europa’s premises. In them, the presence of an external safety ladder is visible. However, the worker said that no one had told him of the existence of the external safety ladder. He said that if he had been told about it, he would have used it to access the roof cavity.
61Mr Macnab asked the worker to identify the area of the manhole’s location from which the ladder collapse occurred. The worker drew on the photograph (reproduced below) his recollection of the ladder and how the ladder was set up to allow access to the manhole and into the roof cavity. He marked an X on the ground where he was standing when he observed Arthur climb the ladder.[52]
[52] Exhibit P1.
62The worker described the presence of a small stainless steel sink or basin mounted on the wall and between the ladder. He thought that the bottom of the ladder extended out about 1.2 metres from the location of the basin. The basin and piping were subsequently removed and are not depicted in the photograph.
63The VWA tendered a map drawn by the worker of the locations in question, including where the incident occurred. It comprises Schedule A to these reasons.[53]
[53] Exhibit P3, PJB 11.
64The worker said that the cool room had pallet racking around its perimeter and down the room’s centre. He said that when he first entered the cool room, Arthur was in the scissor lift, and it was extended over the pallet racking to enable him access to the evaporator coils. He said that the scissor lift was hard up against the pallet racking and in the middle of the room. The worker said he understood that Athur had already commenced disconnecting the refrigeration pipes.
65Mr Macnab played CCTV footage taken at Europa at about 7:08 am on the morning of the injury, that showed Arthur’s vehicle entering Europa’s premises, and Arthur later entering the building in which the manhole was located, and as well that recorded him collecting tools from his vehicle.[54]
[54] Exhibit P6.
66A second tranche of CCTV footage was played from the morning of the injury, which showed the worker’s van arriving at Europa at 9:10 am. This footage also showed Arthur removing the ladder from his vehicle at 9:15 am and carrying it towards the building in which the manhole was located. An unidentified woman is seen opening a door and entering the reception area at about 9:19 am. The footage also depicted two men entering the reception area at around 9:23 am.[55]
[55] Exhibit P7.
Cross-Examination of the worker by Mr Middleton for Europa
67The worker agreed with Mr Middleton that he lost consciousness for a period of time after he fell from the ladder. He recalled waking up in the ambulance. Mr Middleton asked the worker if he had any difficulty remembering what took place on the day of injury. The worker said that despite having difficulty remembering what happened after the incident, this was not so concerning events prior to it.
68The worker acknowledged that he had been an A Grade Electrician for approximately 25 years prior to the injury. Mr Middleton recited the worker’s employment as an electrician at various enterprises. The worker said that he was not inducted, or was he provided with any occupational health and safety instructions at his other work places. He said that the extent of training he had undertaken was with scissor lifts.
69Mr Middleton questioned the worker’s experience as an electrician in the use of ladders. The worker agreed that he was required to climb ladders on a regular basis as an electrician. He said that he climbed step ladders daily, and extension ladders less frequently, perhaps once a week or so. He said that he had not been provided with training or instruction in the use of ladders when working with CDE, or at any other workplace.
70Mr Middleton directed the worker to various training and safety cards which he held, namely:
(a) National Training Authority Certificate dated 24 August 2004;[56] the worker said he recalled being asked to attend a course by a previous employer, and it occupied a few hours. He could not recall what aspects of OHS safety or manual handling it involved, as it occurred over 20 years ago, but he said that “it was more working on houses and things like that”.[57]
(b) Various safety tickets;[58] including an elevated work platform card and electrician’s licence. Mr Middleton suggested to the worker that he had been given training with working from heights, and this included scissor lifts. The worker could not recall any particular training he had received for working from ladders.
[56] Exhibit D1A, Joint DCB 227.
[57] T 83, L 1-2.
[58] Exhibit D1B, Joint DCB 228.
71Mr Middleton asked the worker what was involved in the height safety awareness course he attended and that was conducted at CDR’s premises. He said that the course was concerned “about getting people down from heights when they’d had an accident”.[59] He said it was not directed to climbing ladders, but was more concerned with boom lifts, scissor lifts and getting people down from heights using a forklift with a cage. The worker obtained a certificate of attendance dated 25 March 2014.[60] The worker said that it was at this course that he first met Arthur.
[59] T 86, L 13-15.
[60] Exhibit D1C, WCB 331.
72Mr Middleton asked the worker about the contents of the CDE Health and Safety Booklet for Employees and Subcontractors (“CDE OHS Booklet”).[61] The worker agreed that his signature on it conveyed to the world at large that he had read and understood its contents. A part of the booklet was titled “Working at heights, new heights, ladders working near roofs”.[62] Mr Middleton asked the worker about the section entitled “ladders”.[63]
[61] Exhibit D1D, WCB 332-371.
[62]Exhibit D1D, WCB 351-354.
[63] Exhibit D1D, WCB 352.
73The worker said that he had not read the CDE OHS Booklet, including the section on the use of ladders, despite his signature declaring that he had.[64]
[64] T 87, L 26-29.
74Mr Middleton referred the worker to the following extract from the CDE OHS Booklet:
Portable ladders and stepladders should comply with the appropriate Australian Standards and be used in accordance with the manufacturer's instructions.
•Ladders should have a load rating of at least 120kg., be of correct size and length for the required work, and provided with anti-slip feet.
…
•Ladders must protrude at least 1 metre above the work platform or landing platform;[65]
[65] Exhibit D1D, WCB 352.
75The worker said that he:
(a) had a basic understanding that ladders should comply with appropriate standards and manufacturer instructions;
(b) knew ladders ought to have a minimum load rate and it was “standard for a construction used ladder”;[66] He said this was not, however, bought to his attention by Mick Hibbert prior to the incident;
(c) knew ladders ought to be the correct size and length for the work at hand, and have anti-slip feet, although he had not been told this by Mick Hibbert, or CDE. He said that “all extension ladders have rubber feet”,[67] as did the extension ladder in question;
(d) knew that ladders ought to protrude above the work platform. He said, “I didn't read that but I've always put my ladders through – like through the manhole up the top so you've got somewhere to hang onto when you're getting down”.[68] He had “learned it on the job over many years”.[69] He said that he had also been told this by other workers he had worked with, but not by Mick Hibbert or anyone from CDE. He said he did not discuss the need for the ladder to protrude above the work platform with Arthur prior to the incident.
[66]T 88, L 10-11.
[67] T 88, L 16-17.
[68] T 88, L 27-29.
[69] T 89, L 1-2.
76Mr Middleton referred the worker to the following extract from the CDE OHS Booklet addressing ladders:
· Anti-fall protection devices must be worn at heights above 1.8 metres when working unprotected;
…
· Ladders should be held in place at the base by a person or otherwise, prior to climbing the ladder;
· When ascending or descending a ladder, always keep two hands and one foot on the ladder.[70]
[70]Exhibit D1D, WCB 353.
77The worker’s evidence included that:
(a) anti-fall protection devices were not applicable to the work he was performing on the day of injury because he was to access a ceiling, and was not “doing a job off the ladder”.[71]
(b) he did not realise, and had not been told, that a “spotter” was required at the base of the ladder. He said that once a ladder had been tied off, a spotter was not needed. Mr Middleton said to the worker: “well, this ladder hadn't been tied off, had it?---No. well, I found that out”.[72] The worker said he did not check if the ladder had been tied off, because he had seen Arthur climb it. Before the incident, he did not know that a spotter was required to hold the ladder whilst he was climbing it. He said that “we worked by ourselves most of the time” and there had never been a spotter,[73] but in any event, this had not previously been bought to his attention by Mick Hibbert or anyone at CDE;
(c) when he was an apprentice, he was told by other workers that whenever on a ladder it was important to keep two hands and one foot on it.
The Incident
[71]T 89, L 30-31.
[72]T 90, L18-19.
[73] T 90, L 25-26.
78On day he was injured, the worker arrived at work at CDE and he anticipated being sent to a job at the Epping Market, but was told by Mick Hibbert that he was to go to the Europa to meet Arthur to relocate a refrigeration coil.
79Mr Middleton took the worker to interrogatories sworn in the common law proceeding by Mick Hibbert on behalf of CDE. CDE had been asked to give a description of the employer’s system of inspecting Europa’s premises to ensure the worker’s safety and the following answer was provided:
“At the time of the accident occurring, the plaintiff was in the process of assessing and quoting the job on behalf of the first defendant. The plaintiff attended upon the job in response to a call out from the third defendant. The plaintiff attended alone. It was intended that he would assess and quote the job, then raise the job on the PDA which goes to the office of the first defendant. Due to the occurrence of the accident, he unfortunately did not get to the point of completing the assessment and raising a quote”.[74]
[74] Exhibit D1E, WCB 68-69.
80The worker said that the answer sworn by Mr Hibbert was “incorrect”, and he was not sent to the premises to assess and quote the job.[75] The worker said Mick Hibbert simply told him to go and meet Arthur at Europa, because another employee of CDE had called in sick.
[75]T 92, L 30.
81The worker said that he was aware he was going to relocate refrigeration coils at the premises, but he had no details about the location of the coils, or to where they were to be moved. However, he said that coils are generally bolted through a roof, so he expected that the work would be above head height. He said he had not understood that it would follow that because he was required to disconnect coils, he would need the use of a ladder, and said that “generally you’d use a scissor lift to access these things”.[76] He said he had performed this type of job before, when he had worked for a previous employer, and his experience generally had been that coils on a roof were accessed by a scissor lift. He said he had previously accessed coils on a roof by a ladder, and had not had a spotter, but had secured the ladder himself.
[76]T 94, L 18-19.
82The worker said he had previously performed jobs with CDR workers on other sites.
83Mr Middleton questioned the worker about the general process involved when attending on a new site to perform work. The worker said he would report to reception and “sign on”, if the site required it, which he explained depended whether he had been told to do so by Mick Hibbert, and also if there was signage at the particular premises directing visitors to do so. He said he had not been told to do so by Mick Hibbert in this instance.
84Mr Middleton asked the worker if it was the case that on arriving at a new site and not having been provided with any instructions from Mick Hibbert of what to do, that he would seek out someone in authority on site to obtain relevant information, such as, for example, whether or not there was a safety ladder that gave external access to the roof. The worker said that based on previous jobs, generally speaking, he would just meet up with CDR employees on site with whom he would be working and go from there, because, as he put it, it was “their job and we do what they ask and what they need”.[77]
[77]T 143, L 2-5.
85Mr Middleton suggested to the worker that he wouldn’t ordinarily commence working on a site without somehow announcing his arrival. The worker said that it depended on the circumstances, if that would happen, because he was not “in the in the business of standing around doing - not looking for people or doing nothing”.[78]
[78]T 98, L 7-9.
86The worker disagreed that it was a policy of CDE or Mick Hibbert to cut corners.[79]
[79]T 98, L 18-19.
87Mr Middleton asked the worker if at some stage after arriving at Europa he thought it was important to have determined if there was an external safety ladder. The worker said, “I went off what Arthur said. Arthur said we need to put an extension ladder up, so I just went by [what he said]”.[80] Mr Middleton asked the worker if he knew how many times Arthur had been at Europa previously, and the worker said that the extent of his knowledge was that Arthur had been present the day before.
[80] T 98, L 23-25.
88The worker confirmed that when he arrived at Europa, he drove straight to the car port, because he recognised Arthur’s car and so he parked behind him. When he drove in, he said he looked to the right and saw the reception area was dark and the lights were out. He observed the reception sign, but no other signage.
89Mr Middleton asked the worker how he would have proceeded with the job had the work he was to undertake been for his employer and he said, “If it was our job we'd go seek someone out to find exactly what they wanted and what they needed”.[81] He agreed with Mr Middleton, that in such circumstances, he would not climb a ladder without first assessing the ladder, or if alternatives existed, such as an external safety ladder. However, in this case he said that he relied entirely on Arthur, because he had been instructed by CDE to attend the premises to meet Arthur.
[81] T 103, L 18-19.
90The worker agreed that he had previously signed a SWMS document at CDE’s direction to enable him to work on a job for the Melbourne Market Authority. He said it was not the norm for CDE or Mick Hibbert to organise a SWMS or JSA when attending a site they had not been to before, but it would occur for a specific job if required, such as occurred with the Melbourne Market Authority. He said he had only flicked through that SWMS before he signed the back page. He said that he did not read it because he was in a hurry because of the pressure of work.[82]
[82] T 105, L 10-13.
91The worker agreed that he had not seen Arthur’s efforts at trying to get the scissor lift into place in the cool room, but he could tell that it was a tight fit and it might have taken some time to manoeuvre it.
92Mr Middleton asked the worker if the pressure of work was such that his priority was just to get on with the job regardless, and he said “no, I just followed what Arthur wanted to do”.[83]
[83] T 108, L 12.
93The worker said he did not ask Arthur if there was another way to get into the roof, and he did not ask him if they could use the scissor lift. He said, “Arthur was quite insistent he didn't want to move it”.[84]
[84] T 108, L 21-22.
94The worker said Arthur retrieved his ladder from his vehicle while he went into the cool room and made observations of the fans above from the floor. He said the electrical power had already been shut off. He said that in his absence Arthur had extended the ladder to the manhole in the adjacent area. He came back and watched Arthur go up the ladder. He said he assumed that the ladder was secured, because Arthur went up it. He said that normally a ladder would be tied off. He would have tied it off to the sink,[85] or otherwise, he would have used the scissor lift.[86]
[85] T 110, L 24-25.
[86] T 111, L8.
95The worker maintained that he was directed by Arthur to use the ladder and that Arthur was insistent that the ladder be used.
96The worker could not recall, if after the fall and on his return to work with CDE, he was provided instruction that he must use scissor lifts but said that after the incident, he was given an occupational health and safety checklist document by his employer.[87]
[87] Exhibit D1F, WCB 410.
Cross-Examination by Mr Walsh
97The worker agreed that he was 49 years of age at the time of his injury, and had been working in the electrical industry in the order of 34 years, and had used extension ladders to access roof spaces over his working life.
98He said he commenced with CDE in December 2013, and the extent of his training was attendance at a safety at height module. When asked by Mr Walsh if he had obtained years of on the job training dealing with safety matters including ladders, the worker said that he had been, “working with other people, yeah, we all know what we’re doing”.[88]
[88] T 116, L 13-14.
99He said he had not been taken through the CDE OHS booklet, and it had simply been given to him by Mick Hibbert’s daughter in July 2014.
100The worker agreed with Mr Walsh that there were some basic rules that applied to the use of ladders, such as securing them, having three points of contact and someone who was “footing” or holding the ladder at the bottom. The worker agreed that there was no one footing the ladder on the day he was injured and he did not ask anyone to do so. When asked why not, he said, “I thought it was tied off, that’s what I thought”.[89]
[89] T 116, L 25.
101The worker agreed that a sink was located directly in front of the ladder. Mr Walsh suggested to him, “so it would have been easy for you to tie that ladder off to that sink, wouldn't it, as an extra precaution?” The worker said, “I didn't see that it wasn't tied off”.[90] He said Arthur did not mention whether the ladder was tied off or not, but he assumed, after watching Arthur climb the ladder, that it was tied off. He agreed he did not look to see if the ladder had been tied off to the sink. He then said that at any rate he would not necessarily have seen if it was tied off because of all the pipes and “stuff” coming down the wall from the sink.[91]
[90] T 116, L 31 – T 117, L 2.
[91] T 118, L 7-11.
102Mr Walsh asked the worker to explain the mechanism he would have used had he tied the ladder off, and he said that he would have used “fasties” which he had on his ladder that was on the roof of his vehicle.
CDE’s Safety Procedures
103The worker said that on the morning he was sent to Europa, no one from CDE discussed the details of the job with him. There was no tool box meeting, or other discussion about the use of equipment that might be required. He was told by Mick Hibbert only that he had to meet Arthur at Europa and to relocate a coil.
104The worker said he assumed he would have needed to access the roof space. However, he said he did not take anything from CDE that morning for the purpose of the job. He said he had an extension ladder and two A-frame ladders on his truck. He said he attended at Europa uncertain if he would be able to do the job, as it would have depended on how the coil was wired. He accepted that it might have proved necessary to obtain additional materials in order to undertake the task.
105Mr Walsh put to the worker that his account was contrary to Mick Hibbert’s evidence in CDE’s answers to interrogatories, which was that the worker was sent to the premises to assess and quote the work to be done.[92] The worker said, “that’s definitely not correct”.[93] The worker said that he “completely disagree[d]” with the answer sworn by Mick Hibbert.[94]
[92] Exhibit D1E, WCB 68-69.
[93] T 121, L 9.
[94] T 122, L 9.
106Addressing whether CDE had performed a risk assessment of the area where the accident occurred, the suitability of the use of the ladder at the premises or the state of the flooring at the premises,[95] Mr Walsh referred the worker to a further answer to interrogatories from Mr Hibbert that no risk assessment was undertaken because the worker was tasked only with assessing and quoting the job. Consistent with his earlier evidence, the worker disagreed with Mr Hibbert’s evidence.
[95] Exhibit D2A, WJB 69.
107The worker said that CDE never insisted on a SWMS being in place to complete work.[96] He said that some jobs required a SWMS, but he said that a lot of the work he did for CDE was at premises when no one was around, and so he and others worked “by yourself with no-one around”.[97]
[96] T 123, L 1-2.
[97] T 123, L 8-10.
108Although he had a copy of the CDE OHS booklet in his vehicle, the worker said he had not read it because he had not found the time to do so. He agreed with Mr Walsh that he and other CDE workers were under considerable time pressures because of work demands, but he did not agree with Mr Walsh that there was a cutting of corners by CDE, although he accepted that workers were always under pressure to perform the job. As he put it, “A lot of the times, you're there on breakdowns and you know, you could have $5 million of bananas sitting there, going rotten”.[98]
[98] T 124, L 8-10.
The Incident
109Mr Walsh questioned the worker about the events on the morning of the injury. The worker repeated that Mick Hibbert told him that another employee was sick and so he was required to attend the job at Europa. He was not given anything in writing. He was told the address of the premises. He said he already had Arthur’s phone number from a previous occasion. He said he did not call Arthur en route to discuss the job and did not consider there was any need to do so.
110I asked the worker if he would have been required to access the roof even if he was attending the premises to assess and quote the job as was Mr Hibbert’s evidence as opposed to performing the works. He said he would have needed to do so in order to know how the coil was wired.
111The worker said that when he arrived at Europa, he phoned Arthur who directed him to the cool room. He saw Arthur was on the extended scissor lift and was disconnecting refrigerator pipes from the coils on the roof. He said that when he first walked into the cool room, he did not observe a manhole cover.
112The worker agreed with Mr Walsh that he was older than Arthur, but he said he was unaware of Arthur’s age, or that Arthur had only recently qualified as a refrigeration mechanic.
113Mr Walsh put to the worker that Arthur would testify that when the worker arrived at the premises, he asked him about access to the roof space. The worker said “no, he turned – that's wrong. He turned around to me and said, 'I'll show you what we need to'…”.[99]
[99]T 128, L 12-13.
114Mr Walsh said that Arthur would testify that he told the worker about the external stairwell at the rear of the premises. The worker disagreed and said “no. No. Nothing of the sort”.[100]
[100] T 128, L 18.
115Mr Walsh said that Arthur would testify that the worker told him that he had seen a manhole next to the cool room, and that he wanted to use it to access into the roof, and he asked Arthur to get his ladder so he could do so, but the worker denied this occurred.
116Mr Walsh said that Arthur would say that after he retrieved his ladder the worker observed him place it in the position of the manhole, and he then asked the worker if he was happy with the ladder’s position and the worker then adjusted the ladder to ensure that it was a safe distance from the wall. Mr Walsh told the worker that Arthur would also testify that he climbed the ladder and as he entered the roof space, he looked around and saw that the worker was already well up the ladder.
117The worker denied this account of events and instead said that when he came from the cool room the ladder was already in place, and it was “definitely incorrect” that he adjusted ladder.[101] The worker said he waited until Arthur was off the ladder before he commenced to climb it.
[101] T 129, L 5.
118The worker agreed with Mr Walsh that there was no discussion with Arthur whether ladder was fixed or secured in any way.[102]
[102] T 130, L 10-11.
119The worker agreed with Mr Walsh that when he got to top of the ladder it slipped out from the bottom causing him to fall forward.
120The worker agreed that his ladder on his vehicle had a fixing clip and would have allowed him to secure it in place.
121Mr Walsh suggested to the worker that he could readily have assessed for himself if the ladder was secure before he commenced climbing it. This exchange followed:
“Well, I assumed it was secure. I didn't assess it.
Yes, you assumed. Yes. But you could have taken a very simple action of removing your clip and securing the ladder against the sink. That's true, isn't it?---If I had have known, yeah, I would have secured it against the sink, yep.
So had there been a strap around the ladder, being secured to the sink - - -?---On the bottom, yep.
- - - it really would have been something you would have noticed?---Oh, not necessarily.
It would have been something you would be looking for?---I wasn't looking for it as Arthur had already ascended the ladder.
Yes, and Arthur ascended the ladder without incident, is that correct?---Yes, correct.
Were you holding the ladder at the bottom when he was climbing it?---No, no.
At no stage?---No. Not to my knowledge, no.
Yes. And then as a result of the fall, you hit your head?---More than my head, yes”.[103]
[103]T 131, L 4-24.
122Mr Walsh asked the worker why he had not used the scissor lift to access the roof. The worker said it was too hard for Arthur to move it. He agreed he did not try to speak to anyone about its use, or call Mick Hibbert and ask if he could use it. The worker thought that it could have taken him about 20 minutes if he had tried to manoeuvre the scissor lift into position so it could have been used to access the roof.
123Pressed as to why, for example, he did not telephone Mick Hibbert and ask to be permitted to use the scissor lift to access the roof, the worker said that he was “doing what Arthur wanted, that’s all”.[104] Mr Walsh suggested that it was a simple 20 minute job to move and secure the scissor lift. The worker said that it was not his scissor lift and he maintained that Arthur said he did not want to move it.
[104] T 133, L 23-24.
124The worker said that Arthur first mentioned the scissor lift when he came down from it. The worker agreed that the manhole was the quickest way of getting access into the roof and if the accident had not occurred he would have been going up and down multiple times during the course of the day.[105]
[105] T 135, L 30-31.
125The worker accepted that one of the reasons he did not take any steps to use the scissor lift was because he had used extension ladders safely over the years.
Further Cross-Examination by Mr Middleton
126When asked by Mr Middleton if he would have climbed the ladder had he been aware it was not secured by anchor points, or by any other means, the worker said he would not have.
Re-Examination
127Mr Macnab asked the worker where the discussion with Arthur about the scissor lift occurred. The worker said it happened in the cool room after Arthur had come down off it and then said that it was too difficult to move and said he would retrieve his ladder to access the manhole.
128The worker said that Arthur initiated the conversation about the need to access the roof via the manhole, and it was Arthur who identified the manhole, and that he took no action in securing or positioning the ladder.
129The worker said he did not know to whom the scissor lift belonged.
130Mr Macnab asked the worker if he had had formed any view about Arthur’s age, and he said he had not. Mr Macnab asked the worker why given Arthur was younger, that he was willing to take his instruction about access to the roof cavity. The worker said, “well, Arthur had already been there the day before. When we do these jobs the general hierarchy is that refrigeration is in charge of the jobs. It's their job and we do what they ask and what they need”.[106]
[106] T 143, L 1-5.
131The worker agreed that if he had thought there was a risk to his safety going up the ladder, he could have insisted on using the scissor lift. However, he said he did not give it a second thought, and he entertained no concern that the ladder was not secured.
132As to the suggestion put to the worker by Mr Walsh that if he had looked it would have been obvious that the ladder was not secured, the worker said it would not have been obvious because of the “stuff behind” the sink.[107] He said that the view he had was “jumbled” by “the sink, the pipes coming down, the drainpipe”.[108]
[107] T 144, L 6-7.
[108] T 144, L 8-9.
Arthur Bugiouklis’ Evidence in Chief
133Arthur said he commenced employment with CDR as an apprentice when he was about 18 years old. He completed his apprenticeship in mid-2014 and became a qualified technician. His work involves installing and servicing refrigeration and air conditioning units.
134He thought he received training on working from ladders during the course of his apprenticeship with CDR.[109]
[109] T 154, L 8-15.
135Arthur said he had attended Europa on “a number” of occasions in the year before the worker’s injury.[110] He said that on his previous attendances at Europa he performed general maintenance work.
[110] T 154, L 27-28.
136Arthur said that the first time he attended at Europa he was asked to sign in at reception. He could not recall if there was an induction conducted on site, but he thought that other tradesman from CDR had familiarised him with the premises, and that this had occurred while he was still undertaking his apprenticeship.
137From a photograph of the premises shown to him, Arthur identified the fixed ladder within a cage on a side corner of the building. He said that the ladder was accessible for use, and on the previous occasions he had attended Europa, he had accessed the roof space via the fixed external ladder.
138When asked by Mr Walsh if he had ever accessed the roof space via another entry point, he said “no”.[111]
[111]T 158, L 8-9.
139Arthur was asked if anyone from Europa had provided him instructions on accessing the roof space, and he said they had not.[112]
[112] T 158, L 12.
140Mr Walsh directed Arthur to Europa’s visitor register.[113] Arthur identified his name in the register for 21 January 2015, the day before the incident. He said the register was located in reception. He said he thought that he would have signed the register on leaving the premises. He had no recollection of the presence of any member of staff.
[113] Exhibit P14, PJB 36.
141Arthur recalled that on the date of the worker’s injury, he was performing an initial diagnosis of the evaporator unit that needed replacement.
142Mr Walsh asked Arthur if he had received a direction from CDR to provide safety directions to other contractors, or to advise them about access points, and he said he had not. He said CDR had simply told him that someone would be attending at Europa to assist him with the work.
The Incident
143Arthur said he had met the worker previously but had not worked with him before.
144He said that on the date of injury, he arrived at Europa at about 8:00 am. He was tasked that day with changing the evaporator. He said he had a scissor lift to access the evaporator as well as general hand tools. He could not recall when the scissor lift arrived on site but that it was in the cool room when he arrived, although he had no memory who had parked it there, or if he had requested its use.
145Arthur said he was telephoned by the worker. They then met face to face. He showed the worker where the evaporator was, and the areas that they would need to work on.
146Prior to the worker’s attendance, Arthur said he spoke with Stephen Interlandi of Europa. Arthur said it seemed as if that Mr Interlandi knew about the work that was to be carried out, including the areas in which the work was to be undertaken.
147Arthur said the worker understood that he needed to disconnect and to reconnect the evaporator in the cool room in the roof space.
148Mr Walsh asked Arthur if he and the worker discussed how to access the roof space. Arthur said, “I said to him that we were accessing from the ladder on the far side of the building, and whilst we were walking around, he noticed a manhole. And he asked if he could use that – that manhole”.[114] Arthur said that before that day, he had not used the manhole to access the roof and was not aware of the manhole prior to that day and had never used it to access the roof.[115]
[114]T 169-170, L 29-1.
[115] T 170, L 7-9.
149Arthur said he told the worker that to access the external safety ladder, he would need to walk to the far side of the building and walk back across the ceiling space to the cool room area.
150Arthur said it was the worker who suggested the use of the manhole to access the roof, which was why he offered to retrieve his extension ladder. Mr Walsh asked Arthur why he offered the use of his ladder and he said, “I think at the time, being the younger – younger of the tradesmen on site, and him being the more experienced one, you just sort of help out the older guys, and – and things like that. So I got my ladder off – off my ute and carried it in for him”.[116]
[116]T 170, L 22-26.
151Mr Walsh asked Arthur if the worker had instructed him where to place the ladder, and this exchange followed:
“I think it sort of just – assumed, you know, you've got a – you've got a manhole, that's where it's got to go. The ladder was put in the manhole, Craig assessed whether it was – whether he was happy with it.
So how did he assess it?---He just adjusted the angle of what the ladder was sitting on, and sort of – you know, tested its stability and whatnot. And I went up the ladder. Thank you. Were there any securing points on the ladder? Did you secure the ladder?---No.
No. So when you - did you have a discussion as to who was going up the ladder first?---No.
And where was Mr Young when you climbed the ladder?---At the base of the ladder”.
152Arthur said that as he stepped off the ladder into the roof space he saw that the worker was already making his way up the ladder and when the worker got to the top of the ladder, “he pretty much rode the ladder down to the ground”.[118] He thought that when this happened, that the ladder was positioned in such a way that two or three of the top rungs of the ladder were protruding through the manhole into the roof.
[118] T 173, L 4-5.
153Arthur said his ladder was in good condition.
154Arthur said the worker did not ask him at any point before the accident about holding, or fixing, or footing the ladder.
155Arthur said that the worker was the last person to touch the ladder and it was the worker who adjusted it into its position. He said the worker adjusted the angle by either pulling the ladder further out, or closer into the wall. He could not recall how far out from the wall the ladder was, or how exactly the worker adjusted the ladder.
156Arthur said he could not recall how he got himself down from the roof space after the worker and ladder fell.
157Arthur said he completed an incident report for Europa on the day of the accident.[119] He did not give a copy to his employer, but told his employer about it and he also telephoned Mick Hibbert to tell him that there had been an incident.
[119] Exhibit D2F, WCB 326.
158Arthur said he was not provided with a scope of works to be performed at Europa.
159Arthur’s signature was not recorded in the sign in book on the day of the accident.
160Mr Walsh played Arthur the CCTV footage from the day of injury that identified him driving a forklift, and engaged in a discussion with the identified as Steven Interlandi. Arthur said that he and Mr Interlandi discussed what was happening on site. He could not recall if Mr Interlandi asked him to sign in.
161Arthur said the forklift he used belonged to Europa, and he could not remember if he obtained permission to drive it, but he thought that the keys were in it.
162Arthur said that he was unaware who had brought the scissor lift on site, and there was no discussion with anyone at Europa about where it would be positioned. He remembered being on the scissor lift in the cool room, but had no other memory of how it came to be in the cool room.
163Following the worker’s injury, Arthur continued in employment with CDR until 2016 and during that period of time, he undertook further work at Europa. He said that when he returned to Europa he was required to attend an induction. He signed a document dated 13 February 2015,[120]acknowledging that he had been inducted at Europa. He couldn’t recall specific details about the induction, but said there was definitely more of a focus on safety after the worker’s injury.
[120] Exhibit D2G, WCB 432.
164Arthur said that when the worker suggested to him the use of an extension ladder to access the roof, as opposed to the external fixed ladder, he did not quarrel with him or suggest that the fixed ladder was a safer means of access. He said, “I just pointed out where it was and how we had been accessing the roof and at that point he sort of suggested the manhole which was closer to where he needed to work and less distance travel for him”.[121]
[121] T 186, L 27-31.
165Arthur said he did not have any concern about the safety of the use of an extension ladder compared to use of the fixed external ladder. He said that using an extension ladder through a manhole was not out of the norm so such as to have worried him. He used the fixed external ladder the day prior because it was convenient, and because he was unaware of the manhole until the worker pointed it out to him on the day of the injury.
166Arthur confirmed that the content of Europa’s induction document he acknowledged he signed subsequent to the worker’s injury included “OH&S Guidelines and Rules (SWMS)”.[122]
[122] Exhibit D2G, WCB 432.
167Europa did not provide him with a SWMS about the work he was required to do prior to the worker’s injury and had not provided him with information about a risk of falling from heights, or the means of access to the roof, or any risks associated with the use of extension ladders.
168Arthur could not recall if anyone from Europa asked him if he held a forklift licence, or if he was provided him with instruction about the forklift prior to him driving it.[123]
[123] The evidence was that Arthur did hold a forklift licence.
Cross-Examination by Mr Macnab
169Arthur agreed with Mr Macnab that because the induction document he signed dated 13 February 2015 after the worker’s accident and provided to him at Europa by Mr Interlandi included an acknowledgement and declaration by him that he had read and understood the areas listed in it, that it was more likely than not, that he had been given the documentation to read, despite his inability to recall it.
170Arthur acknowledged that he had attended on many work sites since the worker’s injury occurred almost a decade ago.
171Arthur could not remember if CDR asked him to complete an incident report. He could not remember if a specific tool box meeting occurred after the incident, or if he spoke to anyone from WorkSafe. He thought it likely he would have spoken to his boss, Phil Dodds, on the date the injury occurred, and that he might have made a statement to Mr Dodds about what had occurred.
172Arthur agreed that he had attended Europa on a number of occasions prior to the worker’s injury, both as an apprentice, and after he qualified as an electrician. He said he was well versed in what working on evaporators entailed, and it was a type of job that generally would take about a day to complete, although he thought the work on the evaporators had not commenced on the first day he attended, which had been more of a setting up and scoping of what would be involved in the job. He could not say if he was on site for the whole day, and he could not remember if he had used the scissor lift the first day, or who was responsible to ensure the scissor lift was available. He said that he was aware that sometimes CDE organised its own elevated work platform from a hire company, or used a scissor lift that he understood CDE owned, but that sometimes one was already one on site.
173On the day of the accident, he recalled being in the scissor lift in the cool room and which he had driven into the cool room to access the evaporator.
174Mr Macnab suggested to Arthur that the location of the evaporator in the cool room, being on the wall under the ceiling, but above the pallet racking, meant it was difficult to access. Arthur agreed. He said, “yes. But the scissor lift – it's got a platform that extends, so you can extend over the pallet racking”.[124] Mr Macnab suggested that the area between the pallet racks was a confined space in which to position the scissor lift. Arthur said that “there's not a great deal of room, but we – I've driven a lot of them, and it's not an overly challenging task”.[125]
[124] T 197, L 19-20.
[125] T 197, L 29-30.
175Mr Manab suggested that in order to position the scissor lift in the cool room between the pallet racks, the scissor lift required manoeuvring, whereupon this exchange followed:
“there wasn’t much room at all between each end of the scissor lift and the pallet racks?---I don't remember exactly how much room was between the scissor lift and the pallet racking…
…
If the scissor lift was positioned in a manner where you could access the evaporator - - -?---Yes.
- - - you weren't able to walk between the end of the scissor lift and the position of the pallet rack. There wasn't enough space?---Yeah, I couldn't tell you if there was or wasn't”.[126]
[126] T 198, L 12-29.
176However, Arthur went on to say that he believed that there was sufficient enough space to have allowed him to drive the scissor lift out of the cool room and into the area where the manhole was located. He said he did not consider that it would have been overly complicated, or a time consuming exercise, to have driven the scissor lift out of the cool room and into the manhole area.
177Arthur agreed with Mr Macnab that working at heights was a significant part of his job and that during his apprenticeship he had been provided training and was familiar with the use of ladders and with OHS regulations.
178Arthur could not remember being provided with an induction at Europa.
179Arthur said he believed another tradesman from CDR had previously pointed out to him the external caged safety ladder that he said he used the day before the worker’s injury. He agreed that it would not take long to walk from the factory to the external safety ladder. He said it was the only means of accessing the roof that he had been aware of prior to the injury.
180Arthur said he was conscious of the importance of securing a ladder.[127] He said he would not bolt a temporary ladder, but where possible to do so, he would tie ladders off so they did not fall.
[127]T 202, L 1-2.
181Arthur said he remembered being provided with an OHS Booklet by CDR, but he could not say if it specifically addressed the safe use of ladders. He was shown the CDE OHS Booklet.[128] He said the front page appeared familiar to him, but the index did not, and he could not remember if booklet he had seen previously contained a similar chapter about working from heights to the booklet he was shown. Mr Macnab addressed parts of the chapter relevant to the topic. Arthur agreed that he knew that ladders needed to be set up at the correct angle and tied off to support them, but as he added, “where possible”.[129]
[128]Exhibit D1D.
[129]T 204, L 5.
The Incident Date
182Arthur said he knew he was going to be sent someone to assist him with the work at Europa.
183Arthur thought that he had already been up into the roof cavity via the external ladder before the worker arrived on site. He could not recall the path he took to get to the external stairs, such as for example, it was through the factory or not. He said he had gone into the roof cavity to examine what would be required in removing the evaporator.
184Arthur was played CCTV footage from 8:48 am that depicted him carrying an A-frame ladder into the area of the cool room and manhole’s location. He said this was to enable access to the exterior units that were positioned on a smaller sub-exterior roof (not the highest part of the roof) on the outside of the factory.
185He could not recall to whom he was observed in CCTV footage speaking to on his phone in the car port area.
186Although Arthur could not remember the specifics of the telephone conversation he had with the worker, he agreed it would have made sense for him to have told him that he was in the cool room and for the worker to meet him in there. He agreed that when the worker came into the cool room, he was elevated on the scissor lift that extended over the pallet racking to permit him access to the pipes connected to the evaporator but he could not recall if the scissor lift was hard up against the racking.
187He agreed that he lowered the scissor lift and had a conversation with the worker in the cool room. He agreed he said to the worker, “I’ll show you what you need to do”.[130]
[130]T 210, L 29-30.
188Mr Macnab suggested to Arthur that he told the worker, “'It's too difficult to move the scissor lift, I'll go and get my ladder”. Arthur said he did not “remember the conversation going that way.” When Mr Macnab suggested to him that the conversation may have gone that way, Arthur did not agree.[131] He said he did not recall saying to the worker that it was too difficult to move the scissor lift.
[131] T 211, L 1-4.
189Arthur said it was not good practice to “jump out of a scissor lift” as would have been required had it been used as the means to access the manhole.
190Arthur said that he explained to the worker that they needed to remove the evaporator. He said of the worker that “he, obviously being an experience[d] electrician, knew what work was needed to be done”.[132] He said the worker knew that he would have to get into the roof cavity, but he disputed that he told the worker about the manhole or that he said to him that “I’ll go and get my ladder”.[133] He also denied that he pointed out the manhole to the worker.
[187]T 215, L 18.
Occupier’s Liability
276Part IIA of the Wrongs Act provides that an occupier of premises must take care to ensure that persons coming onto the premises “will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises”.
277I find that CDR was an occupier of the Europa premises. I reject Mr Walsh’s contrary submission. The duty under Part IIA the Wrongs Act would not operate so as to exclude CDR because the worker was injured in a way unrelated to the state of the premises, and which at any rate was not the position at common law and, of course, the Wrongs Act only modifies the common law to the extent relevant to its application.
278Because I accept that CDR was an occupier of the Europa premises, the evidence falls to be considered through that prism. The evidence relevant to a determination of CDR’s liability under the Wrongs Act, involves those facts that I have already addressed in answer to the claim against CDR at common law.
279On the basis of the principal evidentiary findings I have made in the claim in negligence, I am separately satisfied that CDR failed to take such care as in all the circumstances of the case was reasonable to see that the worker was not injured.
280Sub-section 14B(4) of the Wrongs Act states:
“Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger”.
281Having regard to the considerations to which attention is directed under sub-section 14B(4), I am satisfied that reasonable care in all the circumstances in discharging CDR’s duty of care required Arthur making known to the worker and providing safe access to the roof cavity because of the gravity and probability of injury from a fall from an unsecured ladder which was more than minimal. The worker’s entry onto the premises arose due to the specific requirements of CDR and it was Arthur who appreciated and knew of the existence of the external safety ladder.
Breach of Regulations
282The worker attended Europa at CDR’s request of CDE.[188] CDE was, in effect, engaged by the CDR as an independent contractor to assist with a job it had been engaged to undertake at Europa. The worker was an employee of CDE.
[188] Worker’s evidence in cross-examination at T93.02-T93.04.
283I accept the argument put on behalf of the VWA of the application of Regulation 1.1.8 that the duties of employers contained in Part 3.3, Division 2, apply to CDR.
284I accept that CDR owed a statutory duty to the worker to:
(a) So far as is reasonably practicable, identify any task that the worker is required to undertake at a workplace that involves a fall hazard, including using equipment to gain access to an elevated level (a fall meaning an involuntary fall of over 2 metres) (see regulation 3.3.3).
(b) Control the risk, so far as is reasonably practicable, in accordance with regulation 3.3.4.
(c) Ensure that a portable ladder used to control the risk of fall is set up in a correct manner (see regulation 3.3.5).
285I am satisfied that CDR had control in reducing fall hazards related to the work at Europa. CDR’s control in reducing fall hazards is supported by the provision of a scissor lift by CDR for use while undertaking the works at Europa.[189]
[189] Exhibit P12 (interrogatory and answer 6).
286The height of the manhole was approximately 5.05 metres.[190] The worker fell when he was about 20 centimetres from the manhole.[191]
[190] Worker’s evidence in chief at T62.04-T62.05. Exhibit P4 (at PJB8).
[191] Worker’s evidence in chief at T52.27-T52.31.
287In breach of its duty pursuant to regulations, CDR did not take any action to ensure adequate fall protection measures were in place for the worker.[192] CDR did not complete a SWMS or JSA relevant to the works that Arthur and the worker were completing on 22 January 2015.[193] CDR did not provide the worker with any instruction, warning or direction in the use of the portable ladder at Europa.[194] CDR did not direct the worker to use the external safety ladder at Europa.[195] CDR did not provide a site induction to the worker.[196]
[192] Exhibit P11 (interrogatory and answer 6).
[193]Arthur’s evidence in cross examination at T226.10-T226.21.
[194] Exhibit P11 (interrogatory and answer 7).
[195] Exhibit P11 (interrogatory and answer 10).
[196] Arthur’s evidence in cross-examination at T227.310-T228.16.
288Arthur had knowledge of the OHS Regulations dealing with working from heights at the date of the worker’s injury having been provided training during his apprenticeship. He was familiar that it required him to undertake a hazard identification, but he did not perform a hazard identification when the worker arrived on site and he gave no attention to control the risk of a fall from height. He was also aware that if he was using a ladder, he needed to set it up in the correct manner, but failed to do so.[197]
[197] Exhibit P11 (interrogatory and answer 13).
The causative potency of others
289It is an essential aspect in reaching a concluded judgement about the wrongdoing by CDR that I pay due regard to and assess the causative potency of others who were ‘on the field’ as it were, and made a contribution to the worker’s injury. A central submission made on behalf of CDR is that in the event of a finding of liability such as I have reached in regard to it, that its liability should be reduced by the negligence of the worker’s employer CDE.
290CDE was the worker’s employer. CDE owed the worker a non-delegable duty of care to take reasonable care to not expose him to unnecessary risk of injury and that the duty comprised taking reasonable steps to devise, implement and enforce a safe system of work. It failed to meet and discharge that duty. It should have had a SWMS or a JSA to address the works that it sent the worker to perform at Europa but it did not do so, and it was apparently not its practice to do so, despite the fact that the implementation of such methods is a process the purposes of which includes an assessment and reduction of risks of injury to employee.
291However, the failure by CDE cannot be assessed in terms of its seriousness, without a determination of the probable effect on the plaintiff’s injuries caused by its failure to devise and implement a SWMS or JSA.
292A SWMS or JSA should have been prepared by CDE and it should have at least addressed the manner in which the worker was to gain access to the roof cavity. The VWA accepts that CDE not having prepared such documents was a failing by it of its obligations to assess and reduce the risk of injury to its employees. The risk of injury was palpable and the duty of the worker’s employer was clear. A SWMS is simply a document that sets out the high risk construction work to be carried out at a workplace, the hazards arising from these activities, and the measures to be put in place to control the risks and by regulation is to be brought into existence before the work commences.
293The VWA arguments of CDE’s omissions had a tendency to suggest that they were more failures of form over substance, and that the worker’s experience with ladders from a practical standpoint gained over his working life, stands as a sufficient substitute or antidote to CDE’s failure to provide a SWMS or JSA. I am unable to adopt that characterisation.
294In my judgment, the VWA contention that CDE’s liability is no more than 10% is misplaced. I assess its contribution at 25%. I regard such an assessment as justly recognising the fact that on either view of the conflict in evidence between the worker and Mr Hibbert, it was apparent that the worker would have been required to access the roof space and thus I am not satisfied by Mr Hibbert’s evidence that a risk assessment was not warranted. In addition there was a relevant disconnect between the worker’s and his employer’s evidence of when a spotter was required. CDE’s safety guide provided that a ladder should be held in place at the base by a person or otherwise prior to climbing the ladders but Mr Hibbert’s answers to interrogatories that the use of a spotter was at the worker’s discretion. The fact is that there may be occasions when no one else is on site to spot and the risk of the same is a good additional reason for the undertaking of a risk assessment being undertaken by the worker’s employer.
295I have considered the submissions made by both the VWA and CDR in relation to Europa. The CDR submission is that any liability apportioned to it should also be reduced by reason of the negligence of Europa. The VWA contended that the causative involvement of Europa should be assessed as ‘nil’. I regard the contribution by Europa is not ‘nil’ but that it is comparatively minimal.
296I do not agree with the submission made on behalf of the VWA of there having been demonstrated as absence of causative contribution to the worker’s injuries by Europa.
297There was no evidence before the Court of a contractual arrangement, or formal agreement or an arrangement between Europa and CDE.[198] Europa’s Mr Interlandi, although aware of Arthur being on site, would not seem to have been aware that the worker was present.[199] There is no evidence to suggest that Europa was aware, or had any reason to be aware, that CDR had arranged CDE for its employee to attend Europa. Mr Interlandi spoke to Arthur prior to the worker’s arrival on site. Arthur’s evidence was that he spoke with Mr Interlandi about the jobs to be performed that day. The work to be performed by both Arthur and the worker was an essential part of the Europa cheese business.
[198] Worker’s evidence in cross-examination at T98.01-T98.03; Exhibit P13 (interrogatory and answer 1).
[199] Exhibit P12 (interrogatory and answer 7).
298Europa relied on CDR to devise their own system and methodology of work as the specialist trade,[200] being refrigeration mechanics. Europa relied on CDR to supply the necessary equipment for the contract works for which CDR had been engaged.[201] CDR’s responsibility to supply that equipment is highlighted by its supply of the scissor lift for the works at Europa. I am satisfied that even had Europa been aware of the worker’s presence, the worker and Arthur would have been working under their own supervision and control as the expert trades.[202]
[200] Exhibit P14 (interrogatory and answer 8).
[201] Exhibit P13 (interrogatory and answer 11).
[202] Exhibit P12 (interrogatory and answer 9).
299Arthur and Tom West, another employee of CDR, attended Europa in respect of the refrigeration works on 21 January 2015. Arthur signed in at Europa on 21 January 2015, and was aware of the access to the roof cavity via the external safety ladder.[203] The activity of the evaporator repair works had been organised and the operation of the activities were in the hands of CDR as competent, expert contractors. The work clearly involved the need of working at heights, for which CDR had arranged specialist equipment in the form of the at least the scissor lift.
[203] Arthur’s evidence in chief T158.05 – T158.09.
300Brennan J’s reasoning in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47 is relevant to the allegations and the arguments made by CDR against Europa. As to the circumstances in which a duty to exercise reasonable care to ensure a safe system of work for an independent contractor may be enlivened, his Honour said this:
"An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility".[204]
[204] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47, per Brennan J. Approved in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1.
301Mr Walsh placed emphasis on a lack of an induction of sub-contractors or the provision of JSA’s or SWMs by Europa as well as improvements made subsequently by Europa that is reflected in the fact that Arthur was provided an induction some weeks after the worker’s accident. The evidence of the post-accident changes to induction was scant so as to not permit much if anything at all to be made of the change. I am not satisfied an absence of a JSA or SWMS is such that their omission was causative of injury.
302However, one matter that does warrant attention is the lack of enforcement of Europa’s sign in policy. CDR’s position is that had the sign in been enforced the day the worker attended then he would have been told of the existence of the external safety ladder as a means of accessing the roof space. It is reasonable, not inevitable but probable, that had the worker been able to sign in that morning then he would have been told about the external safety ladder. Additionally, had there been a separate induction to accompany a sign in by the worker then it more likely than not, he would have been told of it. The worker did say in evidence that had he known of the external safety ladder, he would have used it. In all the circumstances, I assess Europa’s causative contribution to be 20%. That finding makes allowance for and recognises that the liability attaches to it because of its omissions unrelated to the contractor’s specialist area of responsibility or their shared responsibility to which Europa was entitled to have regard in the performance of their specialised skills.
Contributory Negligence
303I am satisfied that in the circumstances, it is just and equitable that a finding be made of contributory negligence on the part of the worker.
304Division 10 of Part X of the Wrongs Act provides, in relation to contributory negligence:
62. Standard of care for contributory negligence
(1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose—
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
305Section 47 of the Wrongs Act provides that, except as provided, Part X is not intended to affect the common law.
306In this case, the onus is upon the VWA and CDR who assert contributory negligence, to prove contributory negligence.
307At 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.[205]
[205] Joslyn v Berryman (2003) 214 CLR 552, 558 [16].
308In Pollard v Baulderstone Hornibrook Engineering Pty Ltd,[206] the New South Wales Court of Appeal noted that:[207]
“The words “reasonable person in the position of that person” in s 5R are equivalent to the words “a reasonable person in the plaintiff’s position”…
Section 5R reflects “the expectation that, in general, people will take as much care for themselves as they expect others to take for them”’.
[206] [2008] NSWCA 99.
[207] Ibid [14] (citations omitted).
309I note that s 5R of the Civil Liability Act 2002 (NSW), for present purposes, has the same wording as s 62(1) and (2) of the Wrongs Act in relation to contributory negligence.
310In 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 & Steel Pty Ltd,[208] 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 misjudgement, or to negligence”.
[208] (1985) 59 ALR 529, 531 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.
311In this proceeding, CDR was not the worker’s employer. CDE was the worker’s employer. In Pollard, 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”.[209]
[209] Pollard [2008] NSWCA 99, [15]-[16] (citations omitted).
312Given the worker’s experience, he should have examined the ladder before stepping on to it in order to ensure that it was secured before he commenced to climb it. Moreover, if it was not then, he could reasonably at least have explored if the use of fasteners was feasible or required the use of the scissor lift. The worker said he saw Arthur climb it without issue and he also said that even if he had looked beforehand he might not have seen if it was secured because of state of the area around the sink and piping he described. Be that as it may, it was not a momentary lapse. This is not one of the class of cases of an oversight borne of repetition on the part of the worker in the execution of his duties as an employee but a failure in the content of the duty of care he owed for his own safety, and to some degree therefore, his injuries were the product of an assumption he should not have acted on. That omission contributed to his injury.
Conclusion
313I was told by Mr Macnab that Factor A is in the sum of $2.5 million dollars and that Factor C is $200,000.
314In arriving at my finding of Factor X for CDR, I have also separately assessed the extent to which each of the CDR, CDE and Europa and the worker contributed to the worker’s injury by failing in their duties to take reasonable care for him in all the circumstances.
315I am satisfied on the evidence that CDR failed in its duty of care to a greater extent than the other actors.
316I am satisfied that make that Factor X for CDR is 45%.
317I have arrived at the finding of Factor X against CDR after concluding that the evidence supports a finding of causative potency of others that being CDE in the order of 25% and Europa in the order of 20% and the worker’s contributory negligence in the order of 10%.
318I will hear the parties on the further conduct of the proceeding and final orders as are required.
Schedule A
[117] T 171-172, L 28-10.
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