VWA v Stoddart (Vic) Pty Ltd - [2015] VSC 149

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 4488

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
STODDART (VICTORIA) PTY LTD (ACN 060 855 478)	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Bendigo
DATES OF HEARING:	4, 5, 10 February 2015
DATE OF JUDGMENT:	24 April 2015
CASE MAY BE CITED AS:	VWA v Stoddart (Vic) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 149

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ACCIDENT COMPENSATION – Proceeding brought by the Victorian WorkCover Authority for indemnity against a third party – Injury suffered when trades assistant fell from a roof – Third party duty of care under statute and common law – Accident Compensation Act 1985 (Vic) s 138 – Occupational Health and Safety Act 2004 (Vic) - Occupational Health and Safety Act 1985 (Vic) – Wrongs Act 1958 (Vic) s 51 – Occupational Health and Safety (Prevention of Falls) Regulations 2003 (Vic) – Occupational Health and Safety Regulations 2007 (Vic) – Codes of practice – Stratton v Van Driel Ltd [1998] VSC 75 – Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 – Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 – Third party found to be 50 per cent liable.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G J Cooper	Wisewould Mahony
For the Defendant	Mr C Grainger	Terrill & Holmes

HIS HONOUR:

Introduction

On 30 July 2009, Luke Marwood, a trades assistant, fell from the roof of a house under construction at Strathfieldsaye, near Bendigo. He sustained significant injuries to his lower limbs.

Mr Marwood settled his claim against his employer, a roofing sub-contractor Rowville Way Pty Ltd (Rowville Way), and a roofing company Stoddart (Vic) Pty Ltd (Stoddart) at a judicial mediation. However, the recovery claim under s 138 of the Accident Compensation Act 1985 (Vic) by the Victorian WorkCover Authority (VWA) against Stoddart was unresolved. This judgment, hopefully, determines that dispute.

The VWA holds Stoddart partly responsible for Mr Marwood’s injuries and accordingly, for the payment of compensation – however it concedes that Rowville Way must also carry a share of the responsibility for Mr Marwood’s injuries.

The parties agreed on a number of issues relevant to the claim.[1] Left outstanding were the following questions:
[1]Factors A and C of the s 138(3)(b)formula – set out at [6].

(a) liability under s 138 – and particularly whether Stoddart owed a duty of care (be it common law or statutory) to Mr Marwood;

(b) if it did owe such a duty, was it breached; and

(c) if so, what percentage responsibility should it bear as required by s 138(3).

Central to, but not necessarily determinative of, the issues of duty and breach is the question of the application of regulations and codes made under two iterations of the Victorian Occupational Health and Safety legislation in relation to work carried out from heights and the prevention of falls.

The relevant part of s 138 of the Accident Compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 149
Decision Date: 24 April 2015

CaseChat Overview and Summary

The Victorian WorkCover Authority, acting on behalf of an injured employee, brought a proceeding against Stoddart (Vic) Pty Ltd, a company involved in the construction industry, for indemnity after a trades assistant suffered injuries when he fell from a roof. The injured party claimed compensation under the Accident Compensation Act 1985 (Vic), while the defendant argued that it was not liable for the accident. The court was tasked with determining whether Stoddart (Vic) Pty Ltd breached its duty of care under the relevant statutes and common law, and if so, the extent of its liability for the injury.

The central legal issues before the court included the interpretation of the statutory duties imposed by the Accident Compensation Act 1985 (Vic), the Occupational Health and Safety Act 2004 (Vic), and the Occupational Health and Safety Act 1985 (Vic). The court also had to consider the common law duty of care under the Wrongs Act 1958 (Vic) and the regulations and codes of practice governing occupational health and safety. The court needed to examine whether Stoddart (Vic) Pty Ltd complied with these statutory and common law obligations and whether it was negligent in its actions that led to the accident.

The court found that Stoddart (Vic) Pty Ltd was indeed liable for the injury, albeit to a lesser extent than the injured party claimed. The court assessed the evidence and held that the defendant was 50 per cent liable for the accident. The reasoning involved a detailed analysis of the statutory provisions, the common law principles, and the relevant regulations and codes of practice. The court relied on precedents such as Stratton v Van Driel Ltd, Stevens v Brodribb Sawmilling Co Pty Ltd, and Leighton Contractors Pty Ltd v Fox to guide its decision. Ultimately, the court concluded that while the injured party was partially contributory to the accident, the defendant's failure to provide adequate safety measures and supervision played a significant role in the incident.

The court ordered Stoddart (Vic) Pty Ltd to pay 50 per cent of the compensation awarded to the injured party by the WorkCover Authority. This decision highlights the importance of adhering to occupational health and safety regulations and the shared responsibility in preventing workplace accidents.

Orders