VWA v Truewood Constructions Pty Ltd
[2021] VCC 170
•26 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00950
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| TRUEWOOD CONSTRUCTIONS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne via Zoom | |
DATE OF HEARING: | 5, 6 and 10 August 2020 | |
DATE OF JUDGMENT: | 26 February 2021 | |
CASE MAY BE CITED AS: | VWA v Truewood Constructions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 170 | |
REASONS FOR JUDGMENT
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Subject: RECOVERY PROCEEDINGS
Catchwords: Accident Compensation - Recovery Proceedings - s369 of the Workplace Rehabilitation and Injury Act 2013
Legislation Cited: Workplace Rehabilitation and Injury Act 2013; Wrongs Act 1958.
Cases Cited:Esso Australia Ltd v VWA & Anor [2000] VSCA 74; Hazeldene’s Chicken Farm Pty Ltd v VWA [2005] VSCA 185; VWA v Carrier Air Conditioning Pty Ltd [2006] VSCA 63.
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Coldwell | Hall & Wilcox |
| For the Defendant | Mr N. Murdoch QC with Ms C. Spitaleri | Wotton & Kearney |
HIS HONOUR:
1 Travis Viney (Viney) fell from an unsecured ladder on 8 February 2016. He was alone. The ladder did not belong to him. It belonged to Truewood Constructions Pty Ltd (the defendant). It was the builder of a residential construction in Warburton (the site). Viney was a tradesman who worked on floors. He was not employed by the defendant. Viney was an employee of Exner Constructions.[1] He was working on the site applying a resin floor to a concrete slab surface. He said he used the ladder from which he fell in order to move between the inside levels of the site.
[1]So much of these matters is derived from Truewood’s notice of defence in which it admits that:
(a)it was the builder and an occupier of “the premises”.
(b)Viney was lawfully at the premises in the course of his employment;
(c)Viney was undertaking floor related work at the premises pursuant to an agreement between Truewood and Viney’s employer Exner Holdings Pty Ltd (“Exner”); and
(d)it was the owner of the ladder that Viney was using when he fell at the premises (the ladder).
Common law proceedings
2 A common law claim was commenced by Viney against his employer and the defendant. The trial commenced before me. Viney testified. Viney was cross-examined. The common law proceeding resolved between the parties without the need for a judgement.
The recovery proceeding
3 The plaintiff, the Victorian WorkCover Authority (“the VWA”) commenced proceedings to recover contributions paid to Viney in settlement of his common law proceeding. The VWA says it should be indemnified by the defendant in respect of past and future payments made by it to and on behalf of Viney pursuant to s369 of the Workplace Rehabilitation and Injury Act 2013 (“the Act”). It seeks an order against the defendant. It seeks no order against Exner. The VWA was represented by Mr Coldwell of counsel and the defendant was represented by Mr Murdoch QC together with Ms Spitaleri of junior counsel.
4 It was agreed that the evidence in the common law proceeding could be used as evidence in the recovery proceeding.[2]
[2]Recovery Proceeding Transcript (‘RPT’) 5 and 224.
5 It was the common position of the parties that I would make a preliminary determination of the following questions:
(a) is the defendant liable in respect of Viney’s injury?
(b) if so, what percentage of responsibility should the defendant bear as required by s369(3)(b) of the Act?
6 It has proved necessary to refer to the transcript from the common law proceeding and the recovery proceeding. In footnotes, I have identified evidence adduced in the common law proceeding as the “main proceeding” (“the MP”) and the “recovery proceeding” as (“the RP”).
The nature of a recovery proceeding
7 Section 369 of the Act enables an employer or its insurer, 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 Act to limit the third party’s liability to that which it would have been liable 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 Act
8 The 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
9 In Esso Australia Ltd v VWA & Anor[3] and subsequently in VWA v Carrier Air Conditioning Pty Ltd,[4] it was held that contribution and contributory negligence for the purposes of determining Factor X should be determined in the same fashion as contribution and contributory negligence is determined under the Wrongs Act 1958. 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”[5].
[3][2000] VSCA 74.
[4][2006] VSCA 63.
[5]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…”
10 Factor 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 or omissions have a causal relationship to the injury of the worker, and then determine the level of responsibility of each, including the worker.
11 The 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.
12 There 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 in respect of 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 as the contribution could be either insignificant or nil.
13 Contribution 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 principle considerations, the degree of departure from the standard of care required, and the relative causal potency of the potential tortfeasor’s breach.
14 The determination of Factor X is a discretionary exercise: Hazeldene’s Chicken Farm Pty Ltd v VWA[6] and, accordingly, the discretion but must be exercised lawfully, having regard to relevant matters, and disregarding irrelevant matters.
[6][2005] VSCA 185.
Did Viney’s injury occasion a liability by the third party to pay damages?
15 There is no doubt that Viney sustained an injury for which compensation has been paid by the authority or a self-insurer or an employer. However, for the indemnity to be created, the injury must have been caused under circumstances creating a liability in a third party to pay damages.
16 Thus, do facts arise, the existence of which the VWA has proved on the balance of probabilities that create a liability on the part of the defendant to pay damages?
17 It is said against the defendant by the VWA that liability arises by reason of the defendant’s negligence. A further liability based on a breach of statutory duty owed to Viney was not pursued[7]. If 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.
[7]Counsel for the VWA, in the course of final address, said that breach of statutory duty was no longer pursued – RPT 223.
18 The VWA submits:
(a) that the defendant owed a duty of care to Viney;
(b) that the defendant breached its duty of care to Viney; and
(c) that the defendant’s breach was the main cause of Viney’s injury.
19 The particulars of negligence pleaded by the VWA are expressed in its Statement of Claim at paragraph 7:
“The incident was caused by the negligence of the defendant, its servants or agents.
PARTICULARS OF NEGLIGENCE AND/OR BREACH OF DUTY
(a) Failing to have a safe place of work.
(b) Failing to have a safe system of work.
(c) Failing to provide the worker with any or any adequate:
(i) plant, tools and/or equipment; and/or
(ii) manual and/or mechanical air or assistance
(d)Failing to take any or any adequate precaution for the safety of the worker.
(e)Failing to keep a proper look out for the worker when requiring him to work from a height.
(f)Failing to adequately instruct and/or train the worker as to the use of ladders at the premises.
(g)Failing to provide a ladder and/or platform that was suitable for the tasks required of the worker whilst at the premises.
(h)Causing and/or requiring the worker to use a ladder which was inadequate for the tasks required of him whilst at the premises.
(i)Causing and/or requiring the worker to use a ladder which was in all the circumstances faulty, inadequate and/or unsecured.
(j)Causing and/or requiring the worker to use a ladder which did not have appropriate rubber stops at the bottom of the ladder.
(k)Failing to correctly secure and/or ensure that the ladder was secured prior to use by the worker.
(l)Failing to give the worker any warning that the ladder was unsecured.
(m)Failing to take any or any adequate steps to ensure that the worker, whilst at the premises could not come to injury.
(n)Failing to undertake any or any appropriate risk assessment in relation to:
(i)the use of the ladder/platform;
(ii)work undertaken from a height at a height; and
(iii)the tasks required of the worker whilst at the premises
(o)Failing to instruct and/or train those working on the premises properly or at all in the manner in which they should work.
(p)Failing to ensure that the fixed or portable ladder was fit for its purpose, appropriate for the duration of the work task and set up in the correct manner in all the circumstances.
(q)Failing to supervise the worker and/or the tasks required of him whilst at the premises properly or at all.
(r)Failing to prescribe and/or enforce a safe system of work at the premises.
(s)Failing to ensure a safe system of work was implemented and enforced at the premises.
(t)Exposing the worker to the risk of injury of which the defendant knew or ought to have known.
(u)Exposing the worker to the risk of injury which could have been avoided with reasonable care on the part of the defendant.
(v)Permitting the continuance of a situation of danger.
(w)Failing to exercise due care and skill in management of the premises.
(x)Failing to exercise due care and skill for the safety of the worker in all the circumstances.
(y)Allowing the worker to be placed in a situation of danger.
(z)Res ipsa loquitur.[8]
[8]Plaintiff’s Court Book (“PCB”) 8-10.
20 In final address, Mr Coldwell submitted that the risk of Viney suffering injury as a result of falling from a defective and dangerous ladder was clearly foreseeable. The allegation was refined by counsel because there is no basis to find that used as intended the ladder was defective or dangerous. It was, however, potentially unsafe and dangerous when used in the manner adopted by Viney.
21 The VWA argued that there were obvious precautions that the defendant could have taken to prevent the injury and these included:
(a) replacing the ladder with a ladder suitable for indoor use;
(b) repairing the ladder so that it had non-slip rubber treads on its feet;
(c) properly securing and/or setting up the ladder; and
(d) supervising the plaintiff whilst he was undertaking his work at the premises.
22 I do not accept the contention that the ladder should have been replaced with one that was suitable for indoor use. The ladder was suitable for indoor use. It was used indoors. Evidence was given about its use together with another scaffold ladder that was used to navigate between levels 1 and 3. The evidence identified one way it could be properly used indoors when secured at the top by its rounded hooks and bolted at each side into the concrete slab at the edge of the drop off between level 2 and level 1.
23 There is also no reason to suppose that the ladder required a repair by way of the application to it of rubber feet. The use of rubber feet would not, in any event, amount to a repair. Used as I have described and for the purpose identified above, the application of rubber feet would not have rendered the ladder safer. The fact that another scaffold ladder identified in a photograph between level 2 and level 3 had rubber feet, in my judgement, adds nothing to the allegation of negligence.
24 In order to address the third way, the VWA alleges the risk of harm from the use of the ladder could have been avoided it will be necessary to refer to the oral evidence of Viney and of the defendant’s witnesses. Ultimately, however, determination concerning the allegation of negligence due to an alleged lack of supervision depends on the resolution of a fundamental factual contest put in issue by the defendant which is, whether I accept Viney’s evidence about the presence of the ladder.
The evidence in the proceeding
25 The following people testified in the proceeding:
a. Travis Viney;
b. Paul Jenkins;
c. Hamish Flett.
Exhibits
26 The plaintiff’s exhibits included:
· Incident report, 2 page document[9] and second version of same incident report with handwriting.[10]
[9]Exhibit P1, Joint Court Book (“JCB”) 616-617.
[10]Exhibit P1, JCB 600-601.
· Workers Injury Claim form dated 12 February 2016.[11]
[11]Exhibit P2, JCB 604-605.
· Emails between Paul Jenkins and Grind & Seal dated 8 February 2016, 11 February 2016.[12]
· Maroondah Hospital attendance summary dated 8 February 2016.[13]
[12]Exhibit P3, JCB 599, 602-603.
[13]Exhibit P4.
27 The defendant’s exhibits included:
· Two page Truewood Constructions sub-contract purchase order.[14]
[14]Exhibit D1, JCB 514-515.
· Diagrammatic plan of Warburton construction build.[15]
[15]Exhibit D2, JCB 367.
· Two photos of floor from level 1 taken by Mr Jenkins dated 2 February 2016.[16]
[16]Exhibit D3, JCB 596-597.
· Photo of level 2, showing stairwell area taken by Mr Jenkins dated 2 February 2016.[17]
[17]Exhibit D4, JCB 598.
· Phone screen shot taken by Mr Jenkins dated 2 February 2016 at 12.51pm place of Warburton.[18]
[18]Exhibit D5.
· Two photos of ladder leaning from wall to fireplace taken by Mr Jenkins dated 8 February 2016,[19] and two photos of upper section of ladder from above taken by Mr Jenkins dated 8 February 2016.[20]
[19]Exhibit D6, JCB 594.
[20]Exhibit D6, JCB 595.
· Photograph looking through the sliding door towards the stepdown from outside, taken by Mr Jenkins dated 8 February 2016.[21]
[21]Exhibit D7, JCB 593.
· Time and Jobs Description of Hamish Douglas Flett.[22]
[22]Exhibit D8, JCB 537-539.
· Ozgrind invoice dated 21 December 2015,[23] and Grind and Seal invoice follow up on 15 January 2016.[24]
· Series of photos taken inside Warburton site taken by Mr Viney.[25]
[23]Exhibit D9, JCB 512.
[24]Exhibit D9, JCB 516.
[25]Exhibit D10, JCB 551-590.
The factual contest
28 Very considerably, the resolution of the proceeding has turned on a factual contest concerning the presence and placement of the ladder on site and by whom. In fact, this contest was even more refined and ultimately came down to whether I was satisfied on the balance of probabilities of Viney’s account in evidence.
The construction site
29 The site was a sloping block. The construction of the dwelling took advantage of the land’s undulations and comprised three levels.
30 The parties agreed on the use of terminology to describe the levels of the dwelling. The ground level was designated level 1. Above level 1, was level 2 which was the front door entry level. There was also a third level. On occasions the witnesses and counsel tended to adopt different terminology to identify the levels, such as when level 1 was described interchangeably as the “ground” or “lower level”.[26] I have utilised the agreed numerical terminology.
[26]Recovery Proceeding Transcript (“RPT”) 14.
31 Points of access and exit were available via rear doors on level 1 and, more conventionally, via the front door at level 2.
The description of the fall
32 Viney provided a description of the accident in an “Incident/Near Miss Investigation” form as follows:
“I was on top level going down to bottom level. Stepped on the ladder, it slipped down wall and I fell to the left. No-one else was on site. I landed on bolts and scrapped all my back. Was unable to move my left arm. Ladder didn’t have stoppers. Photo’s sent to Brendan & put them on service mate[27].”[28]
[27]Apparently, a form of an online platform to communicate work and the status of the same.
[28]Exhibit P1, JCB 616.
33 In oral evidence, Viney said that as he stepped on to the ladder to descend, it “skidded out from underneath me and I fell”.[29]
[29]Main Proceeding Transcript (“MPT”) 41-42.
34 Viney took photos of the ladder after his accident.[30] He said that after the fall and suffering his injury, he put the ladder back into the position it occupied before it slipped from under him and proceeded to climb back up it. However, before he left through the front door on level 2, he somehow managed to manoeuvre the ladder back into the position it ended up after he fell from it. Viney agreed in cross-examination that this was an awkward thing to do. He explained that he wanted the defendant to know the position it was in when he had his accident.[31] But this reasoning makes little sense, because Viney had already taken photographs of its position from level 1 after he fell. There was nothing to be gained by his action. Viney then rang his boss to notify him of the accident following which he drove to his partner’s work in Boronia, who in turn, drove him to the Maroondah Hospital.
[30]Exhibit D10, JCB 587-590.
[31]MPT 132.
The ladder
35 The ladder was described as a scaffolding ladder. It was not a single ladder designed to lean in against an upright surface. Neither was it an “A” frame ladder. The ladder included a curved hook on the top of each of its arms. However, it had neither rubber feet nor rounded ends for stability as one might see typically on a ladder that is intended to be placed in an upright and angled position away from a wall or a solid upright surface. Instead it was a ladder designed to be secured. Viney said he used it unsecured. It was not suitable to be used unsecured.
Viney’s evidence-in-chief in the main proceeding
The periods of work
36 Viney worked on the site for four days between 12 and 15 January 2016. He also returned on site on 1 February 2016, although he had no recollection of the reason why.[32] On 8 February 2016 he was required to return to the site to re-patch and re-coat levels 1 and 2.
[32]MPT 38.
Introduction to site
Viney’s evidence
37 Viney said the ladder was present and in position between levels 1 and 2 when he was introduced to the site on 12 January 2016. Viney said that on the first day of his attendance in the January period, there was a builder and another worker present. Under cross-examination Viney could not remember the names of the people who worked for the defendant.[33] It seems very likely that the builder he met was Hamish Flett, who at the time was a sub-contractor carpenter working for the defendant. Flett testified on behalf of the defendant. He said that he showed Viney around the site.
[33]MPT 119.
38 Viney gave the following evidence in the main proceeding:[34]
[34]MPT 36.
“On the first day you arrived there, did anybody - was there anybody there on the first day that you arrived onsite? ---Yes.
Who? ---Ah, the builder and some other worker, I'm not sure what his name was.
And the builder, did he show you around the site or what did he do? ---Yeah, he showed me around the site, expect, you know, showed me their expectation of what's to be done.
When he was showing you around the site, how did you access from level 2 down to level 1? ---Up the ladder.
Did you use the ladder on that occasion? ---Yes.
And did the builder use the ladder on that occasion? ---Yes.
Was there another stair void - that is, an area where stairs had not yet been put in place, between level 2 and up above that? ---Yeah.”
39 Viney said that he and Flett both used the ladder that first day to access between levels. He described their access as being “up the ladder”[35] that is, to say, in the manner he claimed he used the ladder subsequently, including on 8 February, with it being unsecured but resting up against the plaster wall from which he then climbed from its rungs and onto the level 2 floor surface.
[35]MPT 36.
40 The distance from the ground of level 1 to level 2 was estimated by counsel in the hearing to be approximately 2 metres.[36]
[36]MPT 17 and 24.
41 Viney said he was absolutely sure he did not bring the ladder into the house from outside and neither did anyone tell him not to use the ladder.[37]
[37]MPT 50.
42 Viney said the ladder’s weight allowed it to be moved and he used it over the remainder of the four days in January.[38] He described how he painted the floor by going around the legs of the ladder first, and then painting the whole area, “and then up out the ladder” [39]. He described how the next day he gave the area where the ladder’s leg had been placed “a quick paint”. [40]
[38]MPT 37.
[39]MPT 37.
[40]MPT 37.
43 Viney was directed to return to the site on 8 February 2016 to re-patch and re-coat the floors on levels 1 and 2. He said that on arrival he needed to make a telephone call to obtain instructions on how to access the inside. He said he was given the necessary information from the builder, but of whose name he was unaware, and he entered the premises through the front door on level 2 using a key from the lockbox.[41]
[41]MPT 38-39.
44 Viney was asked by Mr Murdoch in cross-examination:
“Hamish Flett also showed you the location of the key safe, or what's also been referred to as the lock box? ---(Indistinct words).
Did he do that? ---I can't remember. [42]
[42]MPT 135.
45 Flett testimony included that he showed Viney where the key box safe was located and he gave him the code to it.[43]
[43]RPT 43.
46 I am satisfied Viney knew about the lock safe in which a key or keys were kept. I accept that he was told the code by Flett on his first day on site. I am unable to determine if there was one key or two. Perhaps Viney had simply forgotten the combination to the lock safe on his return on 8 February. The evidence did not resolve whether Viney used the key on any of the days he worked in the January period or on 1 February when he was also on site.
47 Viney said the ladder was present between levels 1 and 2 on 8 February.[44] He said that he thought he did patching work on level 2 and level 1.[45]
[44]MPT 39.
[45]MPT 39.
Viney cross-examined on behalf of Exner in the main proceeding
48 In the main proceeding, under cross-examination by Ms S. Manova of counsel on behalf of Exner Constructions, Viney said that when he was on site on 14 January, the ladder was positioned by being placed against the plaster wall and it was positioned in a similar position when he returned some three weeks later on 8 February.[46]
[46]MPT 84.
49 Further evidence that Viney gave in response to cross-examination by Ms Manova, included that:
(a) the ladder was present on 12 and 13 January when he was grinding the ground floor and he remembered picking up the ladder and moving it;[47]
[47]MPT 75.
(b) he disagreed with the suggestion that the ladder had been removed from between levels 1 and 2 prior to him commencing work on 12 January, and he maintained that it was still inside the house;[48]
[48]MPT 87 and MPT 112.
(c) he did not leave the premises via the lower rear sliding door on level 1, and after applying a sealing coat to the floor, but instead went up the ladder and out the front door;[49]
[49]MPT 78.
(d) he disagreed that upon arrival at the premises on 8 February that levels 1 and 2 were empty. He said, “No, I disagree. There was a ladder inside the house when I got there. The ladder’s always been there”;[50]
[50]MPT 112.
(e) he said the rear sliding door on level 1 was locked on 8 February and that he did not go around the side of the house[51]; and
(f) he said the ladder always being between levels 1 and 2 each day whilst he was in attendance at the premises.[52]
[51]MPT 92.
[52]MPT 84-85.
50 Viney was asked by Ms Manova about a photograph he took on 15 January at 7.21am. He explained that he took the photograph as an example of the work he had been performing on the floors and so as to upload it to a shared platform to enable his work to be viewed. The photograph would appear to have been taken from approximately the area of the rear sliding doors facing towards that area of level 1 that Viney says he climbed down from level 2 when the ladder slipped and he fell from it.
51 The ladder should be observable in the photograph because, according to Viney, it was in the same position, save for some minor repositioning when he painted under its legs. However, the ladder is not visible in the photograph. When it was suggested to Viney that this was because it had been removed before he commenced his work so as to enable him to grind the floor, he said that it was, “Not completely removed”.[53] No photo among the many taken by Viney before 8 February identified a ladder.
[53]MPT 87.
52 Viney said that the rectification work on 8 February only required the use of a small handheld sander weighing about a couple of kilograms. He denied he used a large orbital sander.[54] He said it was necessary to re-sand small patches over the entire floor.[55] He said he:
“chucked it (the sander) over the edge, because of the leads, you can just-you then can just put the lead over the edge, you know. Sort of like shimmy it down. You know, and then come down the ladder.”[56]
[54]MPT 90.
[55]MPT 91.
[56]MPT 91.
53 He was asked how he took the sander with him and he said, “(indistinct) a couple of steps on the bottom row of the ladder and put the sander on top and then go up the ladder”.[57]This is an odd account because, on its face, it reverses the order of the description of the work Viney said he did on 8 February, which was initially working on level 2, and that he fell as he was descending to level 1.
[57]MPT 91.
Viney cross-examined in the main proceeding on behalf of Truewood
54 Viney agreed with Mr Murdoch that his memory of events in relation to the events was “generally poor”.[58]
[58]MPT 133.
55 Viney was asked about the introduction to the site on his first day. Mr Murdoch alerted him that Flett’s evidence would be that:
“…he took you back out and then around to the rear sliding door? ---Yeah, and then we went up through the ladder several - numerous times, so - - -
I'm suggesting that you did no such thing, Mr Viney? ---Okay.
Do you accept that or not? ---No, I don't accept that.” [59]
[59]MPT 134.
56 Viney denied that he entered the building via level 1 as opposed to entering through the main entrance on level 2 on 8 February.
57 It is clear enough that Viney could have entered the premises via level 1 on 8 February. Indeed, it is entirely feasible that he could have done so on any day he was on the site working during the January period. His explanation why he did not enter this way was because he needed to keep the rear sliding doors on level 1 closed so as prevent dust and dirt being blown onto the floor. That reasoning, however, would not have prevented him exiting level 1 via the rear doors and closing them as he left. However, he said that when he was working on level 1 in the days during January, he applied the coating from the door to the rear wall such that, both literally and figuratively, he painted himself into a corner. His only means of exit was therefore, up and out.
58 Contrary to Viney’s evidence, he did make use the rear doors in January. For example, he described being assisted by another worker present on site who helped him manoeuvre his heavy grinder down the hill at the side of the site and through the rear sliding door. He used that door as his point of egress as well when he winched the grinder back up the side of the hill to his parked work van.[60] Also, despite Viney’s evidence that whilst he was on site in January the rear door was kept closed, a photograph taken by him dated 14 January identifies the rear door as open.[61] I consider Viney’s account on the matter of the use of the rear door to be unreliable.
[60]MPT 35.
[61]Exhibit D10, JCB 558.
Paul Jenkins
59 Paul Jenkins is a director of the defendant. He testified in the recovery proceeding. He was shown the plan of the construction. Mr Murdoch directed his attention to that area of the void consisting of the drop off for level 2 to level 1. By reference to the plan, Jenkins identified the area of the void, that would in due course be the location for a staircase leading from level 2 to level 1.
60 Mr Murdoch asked Jenkins what was required to make the site ready for the concrete flooring to be ground and sealed by Viney. He said it was necessary to put protection over the floor so that it did not sustain damage. He said it was also necessary to clean all the areas where the concrete grinding was to occur and to remove all building materials and any equipment off the floors. Jenkins said that before Viney’s arrival, ladders had been fixed in position inside. He described how the top of the ladder is fixed to the concrete slab between the levels.
61 Jenkins explained that it had become necessary to raise a progress claim for the works and that he needed to look at the quality of the floor polishing undertaken by Viney. He attended on site on 2 February together with the architect.
62 Jenkins said no one was working on site on 2 February.
63 Jenkins said that he observed the ladder from which Viney was to fall some six days later. He said it was out the front and placed with some other equipment in the staging area.[62] Jenkins took photographs of the work that had been performed. The photograph on page 596[63] of the Joint Court Book showed the bottom rubber foot of the leg of a ladder. Jenkins identified it as the ladder that led from level 2 to level 3.
[62]RPT 27-8.
[63]Exhibit D3.
64 The photograph also revealed the step down from level 2 to level 1 taken from a standing and upright perspective. Jenkins said there was no ladder in place in the vicinity of the step down.[64] No ladder is observable from the photograph and nor is any ladder visible from a screen shot of another photograph Jenkins took that day.[65]
[64]RPT 21.
[65]Exhibit D5.
Jenkins attends site on 8 February
65 Jenkins said he was notified that an accident had occurred. Jenkins attended the site at about 2.30pm on 8 February. He said that could not attend earlier because of work commitments and, therefore, he contacted Flett and dispatched him to the site.
66 Jenkins said on his arrival he entered through the front door at level 2 and then went around and opened the sliding door in level 1[66].
[66]RPT 24.
67 Jenkins said that when he arrived no one else was on site. He saw the ladder from which Viney fell. He said it was positioned such as to have suggested it had slipped. He photographed it.[67]
[67]Exhibit D6, JCB 594.
68 Jenkins said that if he had seen the ladder in an unsecured position at any time beforehand, he would have removed it as being potentially unsafe.[68]
[68]RPT 25.
69 Jenkins also said that he removed the ladder from inside because he did not want to run a risk of anyone else using it.[69]
[69]RPT 27.
Jenkins cross-examined.
70 Jenkins said Flett was a sub-contracted carpenter to the defendant.[70] He accepted that Flett was not the defendant’s occupational health and safety officer or supervisor. He said, “His title wasn’t that but that was the understanding on site”[71]. He agreed that it seemed to be the case that the extent of Flett’s supervision of Viney was limited to the first day’s work in January when he showed him the basic set up of the premises.[72]
[70]RPT 34.
[71]RPT 34.
[72]RPT 34.
71 Jenkins said that Flett subsequently told him upon his arrival Viney was still on the site and that he had helped him put his gear back in his car.[73]
[73]RPT 46-47.
72 Jenkins said he did not turn his mind to the potential of a Worksafe investigation, or any need to leave the ladder in the position it was when he found it, and that he considered it was important to remove any risk of it being used again in an unsafe manner.[74]
[74]RPT 49-50.
73 Jenkins said the ladder was not fixed to the level 1 floor because there was underfloor hydronic heating and water pipes and the feet of the ladder were not able to be screwed or bolted into the floor[75]. It was secured to the level 2 slab.
[75]RPT 43.
74 Jenkins acknowledged that he was unable to say if the ladder from which Viney fell on 8 February was inside between 12 to 15 January. Neither was he able to positively say if it had been removed prior to Viney’s first day on the job. Jenkins had been on vacation and not on site during this period.
75 Jenkins accepted that he had no way of telling if the ladder he saw inside on 8 February was the same ladder he claimed he saw outside on 2 February.[76]
[76]RPT 66.
Flett’s evidence
76 Flett was in some respects an unimpressive witness. His memory was generally poor. When pressed on matters of fact, often enough, he retreated into reliance on what he “believed” occurred or “believed” rather than exhibiting a definite recollection.
77 Although a sub-contractor to the defendant when Viney’s accident occurred, Flett subsequently became employed by the defendant and is now a director of the defendant.[77]
[77]RPT 72.
78 Flett’s evidence addressed the activities in which he was engaged together with his observations of the site both before Viney arrived for work in the January period and subsequently.
79 He denied that he was a supervisor or had any responsibility for safety on site or that it was part of his sub-contract to be site manager or site supervisor.
80 He said he understood, and was aware, that Viney would be working on his own. He said he left him to his own devices.
81 He could not recall if he was told about Viney reattending the premises on 1 February and 8 February.
82 Flett invoiced the defendant for “floor prep” consisting of three hours’ work on 11 January[78]. He said the task involved getting the floor totally clean and the whole area emptied in preparation for the next day when the floors were scheduled to be polished.[79] He said the floors needed to be clean and empty of “anything laying about, basically, any building material”.[80]
[78]Exhibit D8, JCB 537.
[79]RPT 74.
[80]RPT 73-4.
83 Flett said access to level 1 was by use of the sliding doors at the rear of level 1. Access to level 2 was via the front door[81]. Access was also possible between the levels by way of “a ladder that was put in place securely”.[82]
[81]RPT 74.
[82]RPT 74.
84 Flett said the ladder “wouldn’t have been”[83] in place on 11 January, “because the floor was empty”[84] and that “I would have removed it the day I did the floor preparation”.[85] However, Flett qualified his answer and said, “I can’t remember doing so, but it would have been my job to remove it”.[86] Nonetheless, Flett was definite that by the time he had finished his work on Monday 11 January, there was no ladder in place between level 2 and level 1.[87]
[83]RPT 74.
[84]RPT 74.
[85]RPT 74.
[86]RPT 75.
[87]RPT 75.
85 Flett said that he first met Viney on 12 January. He recalled that Viney arrived in a van that towed a large generator. He said he showed Viney the front door entry and also where the rear door was located on the lower level. He showed him where the key box was “because I knew he would be working there on his own”.[88] He said he gave Viney its code. He thought the box contained two keys.[89]
[88]RPT 76.
[89]RPT 76.
86 Flett’s invoices record that he performed two hours of work on the site on Tuesday 13 January. He was not on site on Wednesday 14 or Thursday 15 January. He said he assumed this was because Viney was engaged in the floor polishing. He said that workers would not be on site while the floors were being worked on.[90]
[90]RPT 77.
87 Flett’s invoices place him at the site on Monday 18 January for eight hours. He said that he worked on laying a timber floor on upper levels.[91] He was also on site every other day that week, as well as on 27, 28, 29 January and 1 February[92].
[91]RPT 77.
[92]RPT 78.
88 Although both Viney and Flett appear to have been on site on 1 February, Flett recalled that he had been working on an external pergola and could not say if he saw Viney that day.[93]
[93]RPT 78.
89 Flett was also on site on 3 and 4 February. He could not recall the presence of the ladder.[94] He also denied that a ladder was in place between level 2 and 1 during all of this period of time.[95]
[94]RPT 79.
[95]RPT 79.
90 Flett said three scaffolding type ladders were used for access to the different levels on the premises.
91 Flett explained that the void between level 2 and level 1 was not barricaded because the two floors needed to be accessed, and it was to that end that the ladders were installed.[96]
[96]RPT 98.
92 Flett said that the only reason to unfix the ladder was to allow the floors to be done.[97]
[97]RPT 99.
93 Flett said there was no need to use ladders again after the flooring was finished in order “to gain access.”[98] He said that the ladder was not returned to its place between levels 1 and 2, “because we didn’t want to scratch or ruin the floor”.[99] But Mr Coldwell pointed out that in the course of his cross-examination of Flett, and to which he returned by way of submission in final address, such a justification did not operate to prevent a ladder being in place on the finished concrete floor on level 2 and that provided access to level 3. Whilst Mr Coldwell’s observation is correct, I consider that it is a relevant distinction that the ladder in question, unlike the ladder that Viney slipped from, had protective rubber feet.
[98]RPT 103.
[99]RPT 110.
94 Flett referred to the staging area in his evidence. He said the ladder Viney used “went up on to like a – I suppose it’s a driveway, but it has a huge area where we kept a lot of building materials,”[100] however, under cross-examination, he could not recall if he put the ladder up there or if it had been put there by someone else.[101]
[100]RPT 77-78.
[101]RPT 78.
95 On 8 February, Flett was working at a building site in Brunswick. He said that he received a phone call from Jenkins who told him that an incident had occurred and directed him to attend the site in his stead due to his inability to respond immediately.
96 Flett said that on arrival, “I saw Mr Viney packing up his belongings and taking them to the car”.[102] He had no recollection of having a conversation with Viney. Flett said he then went inside and he saw the ladder. He could not say if he moved the ladder but he said he recognised it as one he had seen on the staging area.[103]
[102]RPT 82.
[103]RPT 83.
97 Flett also could not remember if he was on site when Jenkins arrived that afternoon. Jenkins’s evidence was that Flett was not on site when he arrived in the afternoon.
98 Flett said that Viney had quite clearly had hurt himself, which is why he gave him a hand with the tools back up to his car.[104] I asked Flett whether having seen the ladder and deduced what had occurred, he raised the matter of the ladder’s position with Viney. He said he did not. He explained that, “I was just a carpenter on site, you know, I wasn't I suppose there to, you know, have a go at anybody or, you know, it wasn't my position”.[105] The transcript identifies that Flett said that he helped Viney with his tools before seeing the ladder in its position inside. As will be explained later, I am satisfied that Viney was not present on site when Flett attended and no assistance was rendered by him.
[104]RPT 96.
[105]RPT 85.
VWA evidentiary and legal submissions
99 Mr Coldwell addressed the three photographs Jenkins took at the site attendance on 2 February[106] none of which identify a ladder affixed to the concrete slab. However, one photograph reveals a scaffolding ladder situated between levels 2 and 3. Mr Coldwell submitted Jenkins’s photograph on 2 February suggests either that:
[106]Exhibits D3-D5.
· a ladder was subsequently put back into position between level 2 and 3 after it, as also presumably, the ladder between level 1 and 2 that had been cleared by Flett as part of his, removal of “everything” to enable the floors to be polished on January 8; or
· the ladder between level 2 and 3 had never been removed from the floor.
100 Mr Coldwell also submitted that Jenkins’s evidence of his attendance at the site on 8 February 2016 was unconvincing. In particular, Mr Coldwell referred to the evidence he gave when asked by Mr Murdoch about the presence of a ladder seen in the reflection of the photograph tendered as Exhibit D7, and his uncertainty whether it was the ladder Viney fell off but having also said in evidence that, “I might have taken it outside”. Mr Coldwell contended that Jenkins’s answers ought to call into question the reliability of his recollection that he saw a ladder or ladders placed on a pile with other equipment in the staging area on 2 February.
101 Mr Coldwell further submitted that Jenkins did not adequately explain why any of the photographs he took inside included the feet of the ladder from which Viney fell. The implication in the line of questioning was to suggest that Jenkins was reluctant to concede the subject ladder was unsafe by reason of the absence of non-slip feet.
102 Mr Coldwell sought to elevate the significance of correspondence that passed between Jenkins and Exner on 8 and 11 February, which he submitted demonstrated that Jenkins knew shortly after 10.33am on 8 February that Viney had suffered an accident involving “your site ladder” that required his hospital attendance, and that Jenkins was also aware by 11 February of the potential for a Worksafe site investigation involving the ladder.
103 Mr Coldwell submitted that I should be satisfied that the ladder was removed because of a concern on the part of the defendant of it being implicated as a piece of unsafe equipment that the defendant had supplied for use by Viney.
104 Mr Coldwell called into question the reliability of Jenkins’s evidence that he saw a ladder or ladders placed in a pile with other equipment when he attended on site on 2 February. Mr Coldwell argued that because Jenkins was unsure that the ladder he removed from inside was the ladder seen in the reflection in the photograph he took, I should be cautious in accepting his evidence that six days previously, he had noticed ladders on a pile in the staging area.
105 Mr Coldwell noted that Flett could not recall being told about Viney reattending the premises on 1 February and 8 February. Mr Coldwell submitted that this is relevant because, if Flett was not aware that Jenkins had asked Exner to bring Viney back, then Flett may well have assumed that the flooring had been completed by 15 January and, therefore, there was no reason for the ladder to be removed or not to be brought back inside and used for access between levels.
106 Mr Coldwell made his submission despite Flett’s evidence that there was no need to use the ladders again after the flooring was finished, “to gain access, yeah,”[107] as he expressed himself, because as Mr Coldwell submitted, it is plain enough that a ladder was in place on the newly completed floors between level 2 and level 3. Mr Coldwell argued that such a state of affairs would be consistent with an absence of a concern in permitting the ladder to remain inside and in place at level 1 after the floors had been first completed in January. I have already addressed that argument in these reasons and explained why I am not persuaded by it.
[107]MPT 104.
107 Mr Coldwell submitted that Flett’s evidence of his attendance at the site on 8 February was unconvincing and should be rejected.
108 When Flett was asked by Mr Murdoch in evidence-in-chief, if he could recall whether or not Jenkins was in attendance on site on 8 February whilst he was present, he said, “I am not sure, it is too long ago” but yet Mr Coldwell submitted, Flett supposedly could remember Viney being present and of assisting him with his tools because of his injury.
109 Furthermore, Flett could not explain when challenged by Mr Coldwell why his timesheet for 8 February had been altered. It had recorded 6 hours at the Brunswick premises and 2 hours at the site in Warburton. The time sheet had a line through it to amend what had been entered, which was 8 hours at the Brunswick premises and that which Flett said was an error.
110 In regard to the subject ladder, Flett was asked by Mr Murdoch, “Where was it when you had last seen it?”[108] prior to 8 February. He answered by reference to the area at the top of the site where the building materials were kept.[109]
[108]RPT 83.
[109]RPT 83.
Flett’s phantom presence
111 Mr Coldwell submitted that I should feel confident in rejecting Flett’s evidence entirely that he saw Viney after the accident. Admission records and Flett’s estimated arrival on site on 8 February renders it impossible that he saw Viney.
112 Flett said in evidence that, “As far as I was concerned, he was there.”[110] He also said “As far as I could recall - I saw Viney”.[111] In cross-examination, Mr Coldwell asked Flett, “And that given your other evidence, and given Mr Viney's evidence, the most likely time you had any conversation with Mr Viney was likely to be the 12th or 13th of January 2016?” Flett answered. “I can’t recall”[112]. He was then asked, “Could you have made a mistake, could you be talking about conversations that you had potentially on 12 or 13 January?” Flett answered, “I don't think so.”
[110]RPT 93.
[111]RPT 94.
[112]RPT 95.
113 Mr Coldwell submitted that Flett’s evidence was replete with inconsistencies, improbabilities, and inaccuracies. Mr Coldwell submitted that Flett had been unable to recall:
(a) whether or not he removed the ladder on 11 January;[113]
[113]RPT 75 and 87.
(b) whether he was with Viney on 12 January when he was learning his way around site;[114]
[114]RPT 75 and 87.
(c) whether he showed Viney the key box;[115]
[115]RPT 76.
(d) whether the ladder was taken up to the equipment pile or area; [116] and
(e) whether he saw Viney at the premises on 1 February.[117]
[116]RPT 78.
[117]RPT 78 and 87.
114 Mr Coldwell also submitted that Flett’s evidence of his attendance and activities on 8 February was unconvincing for reasons that included:
(a) his inability to explain why his timesheet on that day regarding his work on the Brunswick site had been altered;[118]
[118]RPT 91.
(b) that he only “thought” he would have moved the ladder off-site as opposed to having a definite recollection of doing so;[119]
(c) his assertion that he last saw the subject ladder prior to 8 February on top of the site with other building material in the staging area.[120]
[119]RPT 83.
[120]RPT 83.
115 On the question of negligence Mr Coldwell submitted that there were precautions that the defendant could have taken to prevent Viney’s injury. This included having someone on site other than Flett on the first or second day in order to give Viney proper instructions as to specific access between floors and of safe access, and also set an example as to how access was to be obtained.
116 Mr Coldwell submitted that if Viney's evidence is accepted, not only did Flett not tell Viney to use the sliding doors for access, but Flett used the ladder in front of Viney.
117 Mr Coldwell submitted that there was an obvious incentive for Viney not to go outside if the floors had been done and where access was available from level 1 to 2 by way of the ladder that Viney maintained he observed Flett use. Mr Coldwell submitted that in those circumstances, it is a reasonable expectation that Viney would use the ladder in the same manner.
118 Mr Coldwell submitted that the defendant’s alternative theory that Viney retrieved the ladder from the equipment pile outside the house should be rejected. He submitted the scenario is entirely speculative.
Percentage liability (Factor X)
119 Mr Coldwell submitted that the defendant ought to be found liable in respect of Viney’s injury as required by s369(1) of the Act.
120 Mr Coldwell submitted that the only other relevant party responsible for Viney’s injuries is Exner. He submitted that both the defendant and Exner breached their common law duty to Viney.
121 Mr Coldwell submitted that as the principal contractor and occupier of the premises the defendant was responsible for the safety of the premises, and the condition of the ladder as a piece of equipment that was used by Viney at the premises. As Viney’s employer, Exner had a non-delegable duty to ensure that Viney’s work was carried out in a safe working environment.
122 Mr Coldwell submitted there is no sufficient basis to make a finding of contributory negligence against Viney. Mr Coldwell submitted that the onus of proving contributory negligence against Viney lies with the defendant. Mr Coldwell submitted that there is an absence of reliable evidence that Flett instructed Viney to use the rear sliding door for exclusive access to level 1. Mr Coldwell submitted that as far as access between levels was concerned, it was provided by way of use of the scaffolding ladder introduced by the defendant and demonstrated by Flett in Viney’s company on his arrival on site in January 2016.
123 Mr Coldwell submitted that relevant too, is Viney’s evidence denying that he had any experience using ladders as part of his general flooring work experience. Viney said he assumed that the ladder was safe and fit for purpose because it was provided by the defendant.
124 Mr Coldwell submitted that I should be hard pressed to conclude that Viney deviated from any established system of work, and that the decision to step onto an unsecured ladder in his workplace constituted no more than mere inadvertence, inattention, or misjudgement on his part, and not contributory negligence.
125 Mr Coldwell submitted that the breaches by the defendant and Exner both involved significant departures from the high standards of care owed by each of them to Viney. However, he submitted that the causal potency of the breach by the defendant was greater than Exner.
126 Mr Coldwell submitted that responsibility for the incident and Viney’s injuries should be apportioned between the defendant and Exner at 75 per cent and 25 per cent. Accordingly, Factor X of the formula prescribed by s369(3)(b) of the Act should be assessed at 75 per cent.
Defendant’s evidentiary and legal submissions
127 Mr Murdoch addressed the relevant allegations in the Statement of Claim. He observed that the duty of care alleged against the defendant is that owed as an occupier, and the statutory confirmation of an occupier's liability, as expressed by reference to s14B of the Wrongs Act.
128 Accordingly, attention is to be directed to the state of the premises and things done or not done in relation to them relevantly from February 2016.
129 Mr Murdoch observed that the particulars relied upon to support the defendant’s liability necessarily imply that it was the defendant who placed the ladder adjacent to the step down and who also allowed Viney to use it while in that position, and that by allowing him to do so, it was negligent.
130 Mr Murdoch contended that the particulars of negligence relied on by the VWA are predicated on an assumption that a ladder was required for the tasks to be performed on the site by Viney and that the ladder the defendant supplied was not fit for purpose.
131 Mr Murdoch submitted that far from the set up at the premises requiring the use of any ladder, good access was already provided to both levels, one from the front door and one from the rear sliding doors, and there was no need for the use of a ladder in the circumstances.
Implausibility
132 Mr Murdoch submitted that in order for Viney to perform the grinding and sealing work required of him, the floor had to be clear of objects and that it would make little sense to leave a ladder behind.
133 Viney said that because the ladder was still inside level 1 when he commenced work, he sealed and painted around the feet of the ladder. With those patches around the feet of the ladder left undone, he said that the following day he sealed and painted over them. Mr Murdoch submitted that it was implausible that Viney undertook the grinding and sealing work in the stepped manner he described, including placing the ladder’s unprotected metal feet back onto the just completed surface.
134 Mr Murdoch submitted that the ladder was unsuited for any application if unsecured. It had hooks at the top which, when left to lean against a new plaster wall, as opposed to being secured to a slab by fixing bolts, could be expected to damage the plaster wall or certainly mark the wall. The photographs of the area of Viney’s fall indicates some markings to the plaster. Moreover, the risk of markings to the plaster might be considered even more likely, with the added weight of Viney going up and down the ladder on the number of occasions he testified he did. As well, the metal feet on the other ends might be expected to not only scratch the newly finished flooring surface, but also prove unlikely to provide insufficient grip in combination with the unsecured hooks at the top of each arm.
135 Mr Murdoch submitted, that if Viney’s evidence that the ladder was in place when he was working inside on 1 February is accepted, then it was not evident in the photographs taken by Jenkins on 2 February. The photographs include a view looking east, down the level 2 hallway and over the step down and to the wall on the far side. Mr Murdoch submitted that if the ladder was in use on level 1 the day prior, then it should have been apparent, and particularly so when regard is had to Viney's evidence that from 12 January onwards the ladder was in the same position, save for the occasions when he moved it a metre or so as to paint around its feet.
136 Mr Murdoch contended that once Viney had finished his work on 15 January, there was no expectation that he would need to return for rectification work, and the floors were, for all intents and purposes, finished. Therefore, it would be unlikely that either Jenkins or, more particularly Flett, would allow a ladder to remain inside and unfixed for that subsequent period of time.
137 Mr Murdoch pointed out that Viney’s evidence was that after having removed his large grinding machine from the rear doors on level 1, he had no occasion to use those doors again and thereafter he used the ladder. Accordingly, Mr Murdoch argued, if this were true, the ladder must have been sufficiently close up against the step-down to facilitate Viney’s ability to exit the premises via the front entrance door at level 2, but that is not the state of affairs reflected by Jenkins’ photographs from 2 February.
138 Flett said a ladder was not used by him from the 12 January onwards.[121] A ladder had been in place, up to 11 January, but secured against the step-down, but not thereafter, consistent with the need to grind the floors and seal them.[122]
[121]RPT 108.
[122]RPT 74-75.
139 Mr Murdoch submitted that I should reject the suggestion that was to put to Jenkins in cross-examination, and that he denied, that he and Flett as it were “cooked up” the notion that Viney had retrieved the ladder from the staging area on 8 February and put it in place, in an effort to exculpate themselves from a penitential Worksafe investigation.
140 Mr Murdoch conceded the absence of a rational explanation for Flett’s phantom conversation with Viney on 8 February. However, he submitted that there is no doubt that Flett did attend the site on 8 February by reference to the job sheet and after he was telephoned by Jenkins and directed to attend. As well, Flett gave evidence of certain observations, including seeing the ladder inside the property in the position depicted in Viney’s photographs.
141 Mr Murdoch submitted that I should be cautious about accepting Viney’s evidence concerning the key safe. Viney said that he was not aware of the key safe until the morning of 8 February when he needed to phone Exner to obtain of access to it. Mr Murdoch noted that I should be satisfied that Viney was on site, and alone on 14 and 15 January, and would have been required to use the safe to obtain the key and gain inside access.[123]
[123]The evidence in that regard is at MPT 124, line (“L”) 30, through to MPT 125, L20, and MPT 126, L26-29.
142 Mr Murdoch also submitted that despite Viney testifying that he kept the sliding doors closed after the 12 and 13 January when he had finished with the use of grinding machine, photographs 558[124] and 563[125] from 14 and 15 January show the sliding doors open.
[124]Exhibit D10, JCB 558.
[125]Exhibit D10, JCB 563.
143 Mr Murdoch submitted that I should be sceptical of Viney’s evidence that, after the injury and having suffered a fractured left elbow, he climbed back up the ladder and then moved the ladder back to its position from where it had slipped. He urged me to find that the more probable explanation is that Viney went out the rear doors with the ladder left in the position it ended up in after he fell.
Assessment and conclusion
144 Despite various aspects of the oral evidence of each of Viney and Flett that I have found to be unsatisfactory, the resolution of the contest ultimately comes down to which account of the evidence of Viney or Flett is preferred on the key issue of the probable placement of the ladder from which Viney fell.
145 On balance, I prefer Flett’s evidence on the issue relating to the position and placement of the ladder inside the site. I arrive at this conclusion despite rejecting Flett’s evidence that he met with Viney on 8 February. Viney testified that he went straight to the Maroondah Hospital after driving to his partner's work nearby, and that he stayed there for about five hours. His evidence is confirmed by hospital records. Jenkins arrived on the site between about 2.30pm to 3.00pm. Jenkins said Flett was not present. Flett’s evidence that he saw Viney after the accident and assisted him back to his van with his tools, therefore, must be rejected. Viney’s evidence that no conversation occurred is corroborated by the attendance record of the Maroondah Hospital and renders it impossible for Viney to have been on site when Flett arrived. It was very peculiar evidence for Flett to give. There can only be two explanations for it:
a. Flett’s evidence was deliberately untruthful; or
b. his memory is unreliable and for some inexplicable reason he reconstructed the events of that day.
146 I am not persuaded that Flett’s account was deliberately untruthful. There is nothing pointed to that benefits Flett or the defendant by the supposed interaction with Viney. For example, Flett rejected that he challenged Viney about his use of the ladder or that he even inquired of Viney as to how he came to be injured. That is of course explicable because I have found that Flett did not attend whilst Viney was on site. But had this phantom meeting by Flett been prompted by something more ulterior, one might suspect Flett would have tried to use it to achieve some advantage for the defendant in relation to potential liability by having sought to shift responsibility for the manner of the ladder’s use to Viney by way of some asserted admission but this was not the case. I prefer that Flett was confused. Furthermore, and on balance, I am not satisfied that his confusion by way of an account of a conversation that never occurred undermines the reliability of his evidence on the steps he said he took and would have taken as part of the usual preparation for the grinding and polishing of concrete floors. His evidence addressed the ordinary and customary manner of how he went about the job of preparation of the site. I accept it.
147 It is not merely Flett’s evidence about the steps necessary to be taken preparatory to Viney’s attendance that I have accepted and preferred in arriving at my conclusion on the key issue of the ladder and its placement. In addition, I have accepted the evidence Jenkins gave about the hook ladder and its position inside and the manner of its securing so as to afford access between level 1 and level 2. Because of my acceptance of the evidence of Flett and Jenkins, on the VWA’s case, it requires me to find that when the ladder was moved from its secured position before Viney commenced on site, that it was left up against the plasterboard wall, and there it was, and there it remained, until the arrival of Viney. I simply do not accept this scenario as being more probable than not.
148 Therefore, I find that contrary to his oath, it is more probable than not that on 8 February, Viney found the ladder on the upper staging area or somewhere thereabouts but, importantly, I find that he brought it inside and placed it as he did.
149 I am satisfied that the ladder was not stable when left unsecured.
150 Given the lack stability of such a ladder when placed and left in such an unsecured position, I am not satisfied that Viney utilised it to access between floors on the very many occasions he testified to.
151 I regard it as a fact telling against the existence of negligent conduct by the defendant, that Jenkins said that the only type of ladders on site were scaffolding ladders. It seems to me that is important and indicative of two things: First, that the type of ladder was intended for use to access between levels when used in a secured manner such as was described by both Jenkins and Flett. Because the evidence is that the ladder was secured by dyna bolts, or similar, to the slab, it is incongruous that it would have been within the reasonable contemplation of a builder in the position of the defendant that an attempt would be made for such a ladder to be used as a conventional free standing ladder or, that left unsecured against a wall adjacent to a drop down, it would be put to such use.
152 It makes sense that a ladder with hook brackets would be intended to be secured as opposed to being left untethered to lean against plasterwork for the intended use of a worker going up and down on numerous occasions. In other words, whilst a ladder was thought necessary to move between the levels, when used for that purpose, it was bolted. However, according to Viney, it was not bolted to the floor or secured to the upper ledge when he made use of it. I do not accept his evidence.
153 Moreover, I am also satisfied by reason of Jenkins’s evidence that the hooks being metal, the proposition that the ladder once unsecured from the ledge at level 2 and unsecured from its bolts, it would be left to lie against the fresh plasterboard is unlikely.
154 Had 8 February been the first and only occasion of such use by Viney, that would be one thing, but in evidence, he amended his answer given in his interrogatories, and maintained that he had gone up and down the ladder numerous times.[126]
[126]MPT 86.
155 In his counsel’s opening in the main proceeding, it was said of Viney that:
“He used the ladder with the second defendant's representatives, plural, on a number of occasions over these days.”[127]
[127]MPT 14.
156 I do not accept his account of evidence. I am also satisfied that the ready and available access to the two levels at which Viney was required to work did not require the provision of a ladder. Viney had a key and he used it on 8 February 2016. On balance, I am satisfied he knew about the key and had been given the code to access it by Flett when he first commenced on site.
157 My conclusion would be markedly different if I had been satisfied that the ladder was unsecured and left inside on level 1 by the defendant. Had that been so, then it would be reasonable to conclude that at the very least, the defendant knowing its purpose, should reasonably have anticipated that it might be used by someone in Viney’s position, whether once or more than once. However, because on balance I am satisfied that it had been placed outside, then it would not be within the reasonable contemplation of the defendant that such a ladder would be sought out by Viney and brought into the place while polishing floors and used in such a manner.
158 I am satisfied that the ladder was not in place when Viney arrived on site on 12 January. I am also satisfied that the ladder was not in a secured position between level 1 and level 2 when Jenkins attended on 2 February 2016. I am satisfied of this not just because of his evidence but because of the photograph taken by him.
159 I have considered whether it was possible that the ladder was unsecured yet otherwise placed elsewhere in the room. Whilst that possibility cannot be definitively excluded, what I am positively satisfied of is, that if it was present in the room on 2 February, then it was not in the location it ended up in and depicted in the photograph taken by Viney after his fall from it on 8 February. Had it been, then I am satisfied that it is more probable than not that some part of it would have been visible in the picture taken by Jenkins on 2 February.[128] I have concluded that it was moved into the position by Viney in order to be used by him in the manner he did on 8 February 2016. I conclude, that on the balance of probabilities, Viney retrieved the ladder and brought it inside whereupon it was used by him to access level 1 from level 2 and, as he attempted to do so, the accident occurred.
[128]Exhibit D3, JCB 596.
160 No alternative case in negligence was advanced against the defendant, such as if the defendant did not place the ladder next to the step down, and indeed it was placed there by Viney, that it was the duty of the defendant to prevent that from happening and that there was a failure of supervision or instruction on its part to control what Viney was doing on the site. The VWA accepted that the claim against the defendant depended by way of first principles on a factual finding that the ladder was in situ on site at all times and was made available for Viney’s use in the manner claimed by him. My findings are to the contrary for the reasons I have explained.
161 Having considered all of the evidence, and for the reasons expressed, I am satisfied that in answer to the first question agreed to be answered by me, that the defendant’s liability is nil.
162 I will hear the parties on the form of final orders and on costs. I will direct that in the absence of agreement on such matters that the proceeding is to be listed before me in seven days.
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