VWA v Victorian Institute of Forensic Mental Health
[2009] VCC 827
•3 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
Case No. CI-07-05153
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13, 14 & 17 November 2008 and 9, 10 & 19 June 2009 |
| DATE OF JUDGMENT: | 3 July 2009 |
| CASE MAY BE CITED AS: | VWA v Victorian Institute of Forensic Mental Health |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0827 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Section 138 Accident Compensation Act 1985 – nature and extent of liability of owner and occupier of hospital premises in respect of injury to worker employed by contract cleaning company – nature and extent of duty of care – application of Occupational Health and Safety Act 1985 and Regulations made thereunder – occupiers’ liability
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J C Simpson | Russell Kennedy |
| For the Defendant | Mr J P Gorton | Minter Ellison |
| HIS HONOUR: |
Preliminary
1 Mr Marian Kalem (“the worker”) suffered significant injury to his lumbar spine on 8 January 2003 while lifting a heavy laundry bag (“the bag”) containing wet towels onto a pile of other bags in a storage area (“the sallyport”) at the Thomas Embling Psychiatric Hospital at Fairfield (“the hospital”).
2 At the time of injury, the hospital was an institution for criminally insane persons conducted by the defendant (“the Institute”). The worker was employed by Dimension Property Services Australia Pty Ltd (“the Cleaning company”), a large contract cleaning company which had contracted with the Institute to provide cleaning services at the hospital by an agreement dated 1 July 2000.[1]
[1] Exhibit B
3 As a result of the injury, described as a disc prolapse at L5-S1,[2] the plaintiff (“the VWA”), pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”), paid to the worker amounts for compensation and for medical and like expenses. The parties have agreed the total amount paid to the worker was $202,160.54 (“the compensation amount”).
[2] See CT scan – Exhibit G
4 In the course of his employment duties, the worker was required to collect towels from a pool and change-room area at the hospital, place them in two linen bags attached to a metal trolley,[3] and transport them to the sallyport, some short distance away. Some of the towels were saturated, and some not, but when one of the bags was filled with these towels it was significantly heavy. Dr Len Cubitt (“Cubitt”), an engineer retained by the VWA, half-filled a bag with saturated towels, and found the weight to be 25 kilograms. I infer that a bag filled with towels, some saturated, some dry, and some damp, would weigh something in the order of 25 kilograms, probably more. For most of the year the task was manageable, but on some hot days, when the patients used the pool, the number and extent of saturation of the towels increased, and the task of unloading the full bags required considerable exertion.
[3] All depicted in photographs – Exhibit A
5 There is no issue that the towels, the bag, and the trolley were owned and provided by the Institute for use by the Cleaning company and its employees.
6 Section 138(1) of the Act provides:
“Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority ... was caused under circumstances creating a liability in a third party to pay damages ... in respect of the injury or death, the Authority ... is entitled to be indemnified by the third party in accordance with this section.”
7 The VWA brings this proceeding pursuant to s.138, alleging it is entitled to recover, from the Institute, the lesser of the compensation amount and the amount calculated in accordance with that formula prescribed by s.138(3)(b). Helpfully, the parties have agreed that factor A of the formula is $665,000. Further, factor C is agreed at $62,500. Factor B is irrelevant. The issue in the proceeding that I am required to determine is the value of factor X: that is, the extent (expressed as a percentage) to which the act, default, or negligence of the Institute caused or contributed to the worker’s injury.
The Proceeding
8 By its Amended Statement of Claim, the VWA alleged:
•
The Institute was negligent, which negligence was a cause of the worker’s injury, particulars of which were said to be:
ƒ failing to provide a safe system of work;
ƒ failing to provide safe plant and equipment; ƒ failing to provide any proper assistance; ƒ requiring the worker to remove excessive weights from the linen skip; ƒ requiring the worker to lift and remove weights that were, in all the
circumstances, excessive;ƒ failing to provide proper supervision; ƒ failing to heed complaints; ƒ failing to devise a system of unloading linen skips that did not put the
worker at risk of injury;ƒ failing to provide any proper training; ƒ
failing to comply with the provisions of the Occupational Health and Safety Act 1985 (“the OH&S Act”) and the Regulations made thereunder, including the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the Regulations”);
ƒ failing to provide a safe place of work. •
Alternatively, the hospital was a workplace within the meaning of s.4 of the OH&S Act, and the injury occurred as a result of the breach of the OH&S Act and the Regulations by the Institute.
•
Alternatively, the hospital was a premise owned, occupied, and under the management and control of the Institute, and as such it owed the worker a duty pursuant to Part IIA of the Wrongs Act 1958. The injury occurred as a result of the failure of the Institute to ensure the worker was not injured by reason of the state of the hospital, or things done or omitted to be done in relation to the state of the hospital. The particulars of such breach were failing or neglecting to ensure that the sallyport:
ƒ was reasonably accessible to the worker for placing and storing bags of
wet towels;ƒ had sufficient capacity in which to place and store bags of wet towels
on the floor of the sallyport;ƒ could be used safely for the storage of bags of wet towels without the
need of lifting or double-stacking such bags one on top of another;ƒ was designed or configured in such a way as to avoid the need for
lifting or double-stacking of bags of wet towels one on top of another.9 By its Defence, the Institute:
• Admitted it was the occupier of the hospital; •
Denied it owed the worker, in the circumstances of his injury, a duty of care;
• If a duty of care was owed, denied breach; •
Denied the OH&S Act and the Regulations had application, as it did not have “management or control” of the duty the worker was carrying out at the time of injury as required by Regulation 6;
• In any event, denied it breached the OH&S Act, or the Regulations; •
Denied any breach of the occupiers’ liability duty pursuant to the Wrongs Act;
•
Alleged that the injury occurred as a result of the negligence of the Cleaning company, alternatively the worker, or both.
The Facts and the Evidence
10 The worker gave evidence that he had worked as a contract cleaner for a considerable period. Over the period from 1992 to 1999, he worked as a cleaner at the Fitzroy Housing Commission, and then for the Cleaning company as a cleaner contracted to the companies, Goodyear and Dunlop. Thereafter he worked for another cleaning contract company, Berkeley Challenge, at Crown Casino. He commenced again with the Cleaning company in October 1997. He said that he received no induction nor training when he commenced. The hospital commenced operation in April 2000, and he worked there from that time. There was no induction at the hospital, but he was shown around the premises by his supervisor, Ms Jo Taylor (“Taylor”), who was employed by the Cleaning company.
11 He worked six days a week, and his duties included dusting, scrubbing, vacuuming and mopping at the hospital. There was a pool and recreational area, and the first work he undertook in that area was in the middle of 2002. He was the sole employee of the Cleaning company there. He described the linen trolleys by reference to the photographs contained in Exhibit A. There was one trolley in the poolside area, and each had attached, by metal hooks, two linen bags.
12 The patients would dry themselves after leaving the pool, and in addition use the towels as a floor mat or bathmat while they were having a shower. As a result, the towels became wet, particularly those used in the shower, and as part of his duties he would collect these towels from the poolside area, and the showers adjoining the pool, and place them in the bags attached to the trolleys. This was done at 9 o’clock in the morning. A trolley was permanently placed in the pool area, and some patients would place the towels into the trolley.
13 The worker would then wheel the trolley a distance of 100 to 150 metres to an adjoining building which contained the sallyport, where the bags were unhooked from the trolley and deposited, to be later collected by a laundry service. There were other trolleys in other parts of the hospital which were used to collect linen, bed sheets and the like. Each building had a trolley. He did not receive any instructions from the Cleaning company, nor anyone else, as to the use of the trolley and the means by which it was to be loaded and unloaded. He did get instructions from Taylor as to which area to clean, and was told by her that the trolley had to be taken to an adjoining building to be emptied. The manner in which the trolley was to be emptied was left to him.
14 When the weather was hot, the patients used the pool more often, so there were more towels placed in the bags, and they were heavier. Because they were heavier, it was difficult to get the bags off the trolley. On an occasion before he suffered injury, when he was pushing a heavy trolley with towels, the worker said he complained to Mr Peter Fleming (“Fleming”), who was described as an employee of the hospital and responsible for the supervision of contractors. He told Fleming[4] that because the patients used the towels as bathmats, the bins were getting heavy. Fleming told the worker that he would look into it. About a week later, the worker complained to Taylor of the same thing. He described[5] that if he had any concern about any workplace activity he would take it up with Taylor. On this occasion he told Taylor to have a look in the shower areas where the towels were on the floor. She said she would talk to Fleming about it. The worker said further that he asked both Fleming and Taylor to cut down the number of towels being used. Nothing came of these complaints.
[4] Transcript (“T”) 40
[5] T 40
15 On 8 January 2003, the plaintiff had picked up wet and damp towels, filled two bags and had taken them to the sallyport. That day or the previous one had been hot, and there were a lot of towels to be collected. The worker described that the bags were difficult to release from the trolley, as they had to be lifted up from the metal hooks. He did this by putting his foot under the bag, lifting it a little to unhook it, one side at a time. There were two bags attached to the trolley, and each bag was filled to the rim. Some of the towels were wet, and some dry. Each bag was “pretty heavy” and hard to undo from the hooks. Once he had unhooked the bags, he lifted one of the bags into the sallyport, but, because of the lack of space, had to lift it up on top of another bag, a distance of a metre or so. At that point, he felt pain in his lower back and down his leg. There were four or five bags inside at the time. The other bags in the sallyport had been deposited there by other employees of the Cleaning company who were on site.
16 The worker was shown a copy of a cleaning procedure manual of the Cleaning company,[6] but stated that he had never received the document, nor had it explained to him.
[6] Exhibit 1
17 The worker said that if need be, he could always find additional linen bags. He confirmed that Taylor was his supervisor and gave him directions about the daily tasks that he was to undertake. It was not possible for him to wheel the trolleys into the sallyport, as, if there were other bags there, the space was too confined. It is evident from the photographs[7] that there was a concrete lip to the sallyport area which would make driving the trolley into the sallyport difficult. He admitted that had he known he was going to injure his back, he would have used more bags and distributed the load better.
[7] Exhibit A
18 The Cleaning company had six or seven cleaners on site on any day. He was able to call Taylor at any time by way of mobile phone. When he made the complaint to her before injury, he took her into the shower area to show her how the towels became wet. He confirmed that on the day of injury, the yellow bin depicted in the photographs[8] was in the sallyport, and that meant there was less space for the bags of wet towels. He confirmed[9] that Taylor was responsible for telling him and other cleaners where to work, which building to work in, and what to clean in the course of his duties. Sometimes, in an emergency, a member of the hospital staff might ask him to assist in some task.
[8] Exhibit A
[9] T 67
19 The cleaning contract[10] was tendered into evidence. Schedule 3 of the contract refers to “scope of services”. The services to be provided by the Cleaning company included (clause 1.1(f)) “linen collection and distribution”.
[10] Exhibit B
20 Schedule 3A of the agreement set out the “regular cleaning activities”. The services required for building “E”, being the recreational gymnasium and pool area, are set forth in some detail. There is no particular reference in the “tasks and frequencies” to the duty of collecting and depositing the linen bags containing towels. It was put by Mr Simpson, on behalf of the VWA, in submissions that, as a result, the task being undertaken was not part of the cleaning duties for which the Cleaning company had been contracted, but was rather a task, performed by the worker, in the nature of a valet service, and was essentially undertaken for the hospital. As such it was the responsibility of the Institute. I reject this submission. The fact that the particular task was not specifically provided for in the cleaning contract does not alter the fact, in my view, that it was part of the cleaning services to be provided. Each and every singular task carried out by the employees of the Cleaning company could not be expected to be referred to in the agreement. The worker was instructed to go to this pool area and collect the towels by Taylor, and it was clearly a cleaning task performed by the worker as part of his employment duties with the Cleaning company.
21 Evidence was given by Mr Keith Westgarth (“Westgarth”), who is the current cleaning supervisor at the hospital. He was a cleaner there from 2000, and cleaned various areas. He had worked in the pool area, and knew the system whereby wet towels were placed in the bags on the trolleys. He said trolleys were used in other parts of the hospital to collect linen, and each unit had their own sallyport.
22 In moving the wet towels to the sallyport area, in the event the bags were full, Westgarth would get another spare bag[11] and half-empty one bag into the other.
[11] T 72
23 The Cleaning company had previously lost the contract, and a new company had taken over. Westgarth was appointed supervisor of that company approximately twelve months ago. When he worked as a cleaner in the pool area, he said that he had no difficulty with the system. He noted that patients sometimes used the towels as bathmats in the showers; that is, on the floor of the shower.
24 Evidence was given by Kelvin Harrison (“Harrison”), who worked for the Cleaning company between 1992 and 2003 as operations manager. He described the worker as reliable and conscientious. He dealt with Fleming, who he knew to be the procurement officer and controller of contracts. He said the hospital had occupational health and safety officers employed who acted as union delegates on behalf of the cleaning staff, both internal and external. When shown photographs of the sallyport,[12] he noted that it would be difficult to get the trolley into the actual sallyport over the concrete lip.
[12] T 124
25 He considered that the procedure suggested by Westgarth of dividing the towels into two bags would be too time-consuming. He said the Cleaning company had no control over the sallyport, as this was in the province of the hospital.
26 He noted the Cleaning company had a turnover in 2003 of $17m. He confirmed that he had never raised with the hospital any concerns about the task of taking the towels from the pool area to the sallyport. This was because when he witnessed cleaners undertaking this task, they appeared to do so without difficulty.[13] He said he was surprised that the worker had not received a copy of the cleaning procedure manual, as members of his family worked for the Cleaning company also, and the manuals were available in all cleaning areas. He did not perceive the size of the sallyport as being a problem.
[13] T 133-4
27 He confirmed that the trolleys and bags used in the pool area were standard throughout the hospital.
28 Evidence was given by Thomas Dalton (“Dalton”), the current chief executive officer of the Institute. He worked for the Department of Human Services from 1994, and thereafter that Department instituted the design and construction of the hospital. The hospital was purpose-built for housing mentally-ill patients. Before the construction of the hospital, mentally-ill persons were housed at Ararat Gaol, and some at Mont Park Hospital at Bundoora. The construction of the hospital was a project undertaken by the Department of Human Services. A firm of architects, Spowers, was engaged to design the building, and construction was undertaken by Hansen Yuncken. Construction commenced in October 1997. The Institute itself was established by the Mental Health (Victorian Institute of Forensic Mental Health) Act 1997. Dalton joined the Institute in their legal department in April 1999. Dalton did not have any personal knowledge of the specifications of the design of the hospital, including the pool area and the sallyport.
29 The VWA retained Cubitt, an expert engineer. Three reports of Cubitt were tendered into evidence.[14] The first report of 30 January 2008 was prepared at the behest of the worker’s solicitors for the purpose of the common law claim brought by the worker against the Cleaning company. The focus of that report was the system of work under which the plaintiff operated, and was concerned only with the responsibility of the Cleaning company. The subsequent reports were undertaken at the request of the solicitors for the VWA, and are concerned with the involvement of the Institute.
[14] Exhibit D
30 Cubitt interviewed the worker on 23 January 2008. He was provided with the worker’s affidavit sworn 4 October 2006 (presumably in support of his application for a serious injury certificate) which gave the following history:[15]
“I was working in the pool area and patients had placed their soaking wet towels in the linen skip. The skip was full so I pushed it to an area where dirty linen is stored. I tried to remove one of the full bags by placing my foot underneath it and lifting it with the foot to create some slack so as to enable me to lift the bags off the two hooks on the metal frame. I lifted the bag out of the frame and immediately I felt low back pain. I dropped the bag. I then had to lift the bag off the ground and move it to the storage area. I then had to remove the second bag.”
[15] Plaintiff’s Court Book (“PCB”) 110
31 In the course of his interview with the worker on 23 January 2008, he obtained the following history:[16]
“To unhook the bags from the linen skip he placed his right foot between the underside of the bag and the linen skip and lifted the base of the bag with his foot. He simultaneously pulled the side of the bag down to unhook one side of the bag. He leaned forward over the linen skip to pull the side of the linen bag to detach the bag from the other hook. Once the bag was unhooked from the linen skip he removed his foot from under the linen bag and grabbed the bag near the top of the linen bag and lifted it out of the linen skip. He then throws the bag into the storage area. The process was repeated for the second bag.”
[16] PCB 111
32 Neither the version provided by the worker’s affidavit, nor the history provided in the interview, accord with the evidence given by the worker in court. In the affidavit it appears injury occurred while the plaintiff was using his foot to lever the bag out of the trolley. In the course of interview, it was said that the worker was “throwing” bags onto the pile in the sallyport. In evidence, the worker said the injury occurred while he was lifting one bag a distance of approximately a metre onto another bag in the sallyport.
Cubitt investigated the temperature in Melbourne on the day before the incident – that is, 7 January 2003 – and found the temperature to be 39.3 degrees Celsius.
33 He noted the Regulations required an employer to identify tasks of manual handling (Regulation 13), and to make a risk assessment of those tasks (Regulation 14). As stated, a bag half-filled with saturated towels weighed at least 25 kilograms. In accordance with an American occupational health and safety research institute known as NIOSH, he utilised a formula to determine a safe recommended weight limit for the plaintiff lifting the bag and then with a ‘hammer throw’ movement, placing it onto the other bags in the sallyport. This weight limit was 9.32 kilograms,[17] and therefore significantly less than the actual weight lifted by the worker.
[17] PCB 137
34 Cubitt referred to the “Code of Practice for Manual Handling”, which he described as a series of questions to assist employers in carrying out the injury-assessment task required by the Manual Handling Regulations.[18] Cubitt clearly believed the Code had application, but the Code presumed that the task involved required “repetitive or sustained postures, movement or forces”, in particular tasks which were undertaken more than twice a minute, or for more than 30 seconds. It is clear from the evidence that the task undertaken by the worker happened once a day, only in hot weather, and required him to remove two bags of linen only. The task undertaken therefore did not fulfil the criteria set forth in the Code.
[18] PCB 139
35 Cubitt suggested that steps open to the Cleaning company to reduce the risk of injury included:[19]
[19] PCB 145
• Smaller bags being used to limit the weight of each bag; •
The step into the sallyport to be removed to enable the worker to push the trolley into the area;
•
To modify the trolley by removing rungs at the base to enable the bags to be dropped onto the floor of the sallyport, once unhooked;
•
To provide more thorough and extensive training in the particular task, particularly as to the dangers of twisting the body in the process of lifting and throwing the bags;
•
Undertaking an assessment of the task in accordance with the Regulations;
• To supervise the worker in the course of the task.[20] [20] PCB 151
36 For the purpose of his second report, Cubitt again inspected the hospital on 22 December 2008. He concluded[21] that the hospital should have:
[21] PCB 161kk
• Reduced the size of the bags to limit their weight; • Provided a ramp into the sallyport to enable the worker to push the trolley there; • Modified the trolley by removing the lower rungs to enable the bags to be unhooked and therefore fall to the floor. 37 In his final report, Cubitt turned his attention to a number of matters raised by the solicitors for the VWA. I should at this point say that the trial commenced in November 2008. On 17 November 2008, the trial was adjourned after the evidence of the worker which was found to be inconsistent with the version of events the VWA had been told occurred. The trial was then adjourned until June 2009 to enable further investigation of that new version, particularly in relation to the sallyport area.
38 Cubitt commented that a shower screen ought to have been introduced to limit the flow of water to “the shower area”. This misconceives the place where the patients placed the towels. From the evidence, the towels were placed into the actual shower area and used by the patients to stand on. The use of shower screens would have not changed that practice. Further, I accept the submissions of Mr Gorton that the use of shower screens could well have posed a health or security hazard to the patients. Cubitt further commented that there ought to have been disposable shower mats used, thus eliminating the need for placing towels in the area.
39 He confirmed that the trolleys could be modified to enable the linen bags to be dropped to the ground. This would eliminate the need to lift the bags off the hooks, and further, to lift the bags onto other bags in the sallyport area. This, however, presumes there would be sufficient room in the sallyport area to drive the trolleys in and unload the bags there.
40 He then reported on the sallyport itself. He again suggested[22] that a ramp be placed to enable access to the area. He noted the relatively small area of the storage bay.[23] He concluded it was reasonable and practicable that, in addition to other steps referred to, the floor area of the sallyport be increased substantially. This would ensure there was no need for bags to be stacked one upon another, and further that, with a ramp, access could be gained to the sallyport area with the trolley to enable the bags to be dropped off.
[22] PCB 161g
[23] Seen in photographs taken in December 2008 at PCB 161z, 161ff and 161ii
41 Cubitt in addition gave evidence and was extensively cross-examined. He stated[24] that had the steps referred to in his report been undertaken, the risk of injury to the worker would have been reduced from a very high risk to a moderate risk. He noted that the sallyport area contained not only bags of linen, but also a yellow plastic wheelie-bin for disposable waste. When a number of bags were placed in the sallyport, together with the bin, the area was too small for the purpose for which it was used.[25] This led to the requirement for linen bags to be lifted one upon another, thus increasing the risk of injury.
[24] T 158
[25] T 169 – see further photographs, Exhibit A
42 In cross-examination, Cubitt conceded[26] that if, upon the evidence, the worker did not engage in a hammer-throwing type manoeuvre in relation to the bags, then his criticism of the system of work in that regard would not be relevant. He further conceded that if in fact the patients were standing upon the towels in the area, then the need for the provision of a shower screen would be removed.
[26] T 187
43 He conceded that if the bags were halved in size, that would double the number of trolley movements and occasions upon which the bags had to be unhooked and removed. It would also require more space in the sallyport area.[27]
[27] T 197
44 It was put that a practical and sensible way in which the risk of injury could be reduced was to require of persons, including the worker, where the bag was full of heavy towels, that some be removed and placed in a spare bag. He agreed[28] that that was a method that could be employed, but that it was not foolproof. Wherever possible, he said, measures taken to reduce the risk of injury ought be foolproof and ought not be left up to the judgment of the worker.
[28] T 199
45 He agreed that removing the rungs on the trolley, and providing a ramp, depended upon the sallyport being substantially increased in size.[29] In agreeing to this proposition, he added “or being emptied more often”. The issue of the more regular removal of bags from the sallyport was not the subject of any pleading, nor was it referred to in Cubitt’s reports. Issue was taken with the proposition by Mr Gorton for that reason. It was put to Cubitt that generally it would be quite impractical to extend the sallyport area. It was suggested it had been specifically designed to admit vehicles from an adjoining road area so they could be backed in and the linen bags loaded. An alteration to the size of the sallyport necessarily would require a very extensive redevelopment of the area and would affect traffic travelling along the adjoining roadway, and a potential hazard to vehicles stopping to collect bags from the sallyport if it extended out to the roadway. Cubitt responded that on the occasions that he was there, there did not appear to be very much traffic on the roadway. No evidence was given as to the costs involved in a redevelopment and extension of the sallyport.
[29] T 199
46 Cubitt was challenged by Mr Gorton as to his use of the Code of Practice for Manual Handling.[30] It was put that the task the worker was undertaking did not comply with the criteria of occurring twice each minute or for more than 30 seconds.[31] He was reluctant to concede that the Code of Practice had no application. It was put that each of the questions raised by the Code[32] ought to have been answered in the negative. Cubitt suggested that in fact the Code ought be employed because he was considering its application from a general engineering perspective. I found his evidence less than impressive in this regard. I would have expected him to concede readily that there was a mistake in his interpretation. He did not do so.
[30] PCB 139
[31] T 211
[32] PCB 139-143
47 There are parts of the evidence of Cubitt which I found persuasive and accept, and other aspects which I do not accept. I accept the weight of the linen bags containing towels, saturated to various degrees as being more than 25 kilograms. The bag weighed by Cubitt, he said, was half-filled but contained fully saturated towels. In early 2003, full bags contained towels, some of which were fully saturated and others much less so. It is difficult to be precise as to the weight of the bag the worker lifted giving rise to injury, but I do accept it would weigh something in excess of 25 kilograms. In accordance with Cubitt’s calculations, for the worker to undertake a safe lift of a bag of this weight some relatively short distance out from his body while turning and lifting the bag a distance of approximately 600 millimetres, the lift ought be no more than 9.32 kilograms.[33] There are a number of presumptions in this calculation, which are said to be in compliance with an American standard, but nonetheless I do accept that a safe lift in the circumstances of the worker unloading the bags into the sallyport would be something significantly less than 25 kilograms. It is well known in medical circles that lifting a weight away from the body with the body in a turned or partially turned position puts stress upon the lower spine. I consider a weight in excess of 25 kilograms significant, particularly given this torsional stress upon the spine.
[33] PCB 137
48 I do not accept the evidence by Cubitt as to the application of the Code of Practice.[34] I am of the view he misread the application of the matters set forth in the Code. He was criticised by Mr Gorton in relation to his assessment of the extent to which bags depicted in his photographs were full or partially full. I do not view this matter as of particular significance. I consider his evidence in relation to the shower screens as not being of application to this case given that I am satisfied, on the evidence, the patients took towels into the actual shower area. There is, however, merit, in my view, that an alternative system would have been for the patients to be provided with other disposable mats, or mats of a different material in the shower area to avoid the need for the use of the towels therein, and consequently the need for them to be transported in the bags to the sallyport.
[34] PCB 139
49 Cubitt gave evidence that it would have been a simple matter to install a ramp, modify the trolleys and extend the sallyport so as to enable employees, including the worker, to deliver the bags into the sallyport area. I am of the view that in order for this to be an effective system, it would necessarily have required all three of these things to be undertaken. While the installation of a ramp and a modification to the trolley is relatively simple, an extension to the sallyport area was far more extensive and no doubt significantly expensive. I am not satisfied on the evidence that this would have been an undertaking reasonable and practicable in the circumstances. There is no evidence about the effect of such an extension upon traffic in the surrounding area, the costs of such a structure and the efficacy of the undertaking. I am of the view that steps could have been taken to reduce the number of towels to be placed in the bags, firstly, by having a system where they were not used in the showers. Further, when there were large quantities of towels to be transported, that could be achieved by a clear instruction to employees, including the worker, to reduce the number of towels in any one bag by using more bags. I shall discuss the responsibility for these tasks as between the Cleaning company and the Institute shortly.
Contributory Negligence of the Worker
50 It is put by Mr Gorton, on behalf of the defendant, that the conduct of the worker contributed to his injury and that, in considering factor X in the formula prescribed by s.138(3)(b), any negligence or default attributable to the Institute ought be reduced by the contributory negligence of the worker.[35]
[35] See paragraph 7 of the Defendant’s Amended Defence
51 Although not argued with vigour, Mr Gorton submitted that there was a contribution by the worker to injury in failing to reduce the number of towels placed into the bags and to distribute those towels between the two bags.
52 It is clear that the worker was following a system of work in undertaking tasks as directed by his supervisor, Taylor. I am satisfied he received no instruction as to safe lifting techniques, and particularly as to the distribution of the load. In Kulczycki v Metalex Pty Ltd,[36] Ashley, J (as he then was) in considering generally the contributory negligence of a worker, said:
“… It may be that a particular risk of injury is readily foreseeable in the event that a system of work which addresses that risk is not implemented and maintained and that the worker is thereby facilitated to conduct himself without due care for his own safety; or, for that matter, inadvertently or inattentively. Indeed, in such a case the principal reason why a system of work should be implemented and maintained may well be to deny or limit the opportunity for the worker to engage in careless conduct. In such a case it appears to me consonant with principle to conclude that a finding of contributory negligence should not be open in the event that the employer breaches its duty of care, and that the worker so conducts himself.”
[36] [1995] 2 VR 377, at 409
53 There is authority that the duty owed by an employer to a worker ought take into account inadvertence, misjudgment or inattention by a worker, and even neglect or carelessness.[37] In my view, the worker was doing no more than following a system of work as had been provided to him. His failure to more evenly distribute the load of towels in the bags so as to encounter a lesser weight when lifting them, was a fault of that system of work. There is, in my view, no contributory negligence on the part of the worker in following that system and not, himself, attempting to devise a modification to avoid the risk of injury.
[37] Liftronic Pty Ltd v Unver [2001] HCA 24, at paragraph 85; McLean v Tedman (1984) 155 CLR 306
Claim for Breach of the Occupiers’ Duty Pursuant to Part IIA of the Wrongs Act
195854 Mr Simpson submitted the Institute was in breach of the duty owed as occupier of the hospital pursuant to s.14B of the Wrongs Act 1958. S.14B(3) provides:
“ An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on 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.”
55 S.14B(4) requires, in determining whether the duty of care is discharged, that consideration be given to the various matters set forth, including, relevantly:
“(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;
. . . “
56 The section clearly focuses upon the state of the premises, and relates particularly to any danger or hazard upon the premises, rather than the safety or otherwise of a system of work conducted at the premises. There is no evidence the hospital was in a state of disrepair or that that in any way contributed to the worker’s injury.
57 It is put by Mr Simpson that the inadequate size of the sallyport and the consequent inability to cope with the number of bags placed therein, combined with the failure to place a ramp to enable the trolley to enter the area over the concrete lip, constituted a breach of the occupier’s duty. The trolley and bags do not constitute premises. Mr Simpson, quite appropriately, did not press the use of the towels in the shower area as a breach of the occupier’s duty. Further, in accordance with the pleadings, he said there was fault in the design or configuration of the sallyport in that it was unable to accommodate the bags without stacking them one on top of another. The sallyport was not designed nor constructed by the Institute. In fact the Institute came into existence after the building was designed. In my view, the claim in relation to faulty design is too remote.
58 In Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd and Henry,[38] Doyle, CJ stated:[39]
“The [occupier’s] duty of ABC as occupier of the premises would not usually extend to a duty to protect a person on the premises, not being an employee of ABC but an employee of a contractor working on the premises, from harm that resulted from the carelessness of the worker's own employer, or from harm that resulted from the manner in which another contractor carried out its work. …”
[38] [2001] SASC 199
[39] at paragraph 37
59 While the Institute owed the occupier’s duty as prescribed by the Act, it was a duty to take care with respect to hazards upon or within the premises, and not a duty related to the systems of work undertaken by contractors and their employees. In my view, there was no breach by the Institute which was a cause of the worker’s injury, and this aspect of the claim fails.
Duty Owed Under OH&S Act and Regulations
60 The VWA alleges the Institute was in breach of the provisions of the OH&S Act and the Regulations and pleads the same, both as a particular of negligence, and as a separate statutory cause of action.[40]
[40] paragraphs 9(j) and 10 of the Amended Statement of Claim
61 Mr Gorton made a formal submission that the OH&S Act and the Regulations do not give rise to a separate cause of action, but did not pursue the point.[41] However, it is settled law that in the absence of a contrary legislative intention, a duty imposed by a statute to take measures in relation to safety of others involves a private right of action.[42]
[41] T 284
[42] McCallion v UR Machinery Sales Pty Ltd [1999] VSC 543, at paragraph 25
62 The application of the OH&S Act and the Regulations to the Institute arose as an issue of significance in the course of the trial. Considerable evidence of Cubitt presumed the application of the OH&S Act and the Regulations.
63 The objects of the OH&S Act include:[43]
[43] s.2
“(a) to secure the health, safety and welfare of employees and other
persons at work; and(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and . . . ”
64 Part 3 of the OH&S Act deals with the general duties relating to health and safety. S.20(1) provides:
“To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)
to eliminate risks to health and safety so far as is reasonably practicable; and
(b)
if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.”
65 S.20(2) states that in determining what is reasonably practicable, regard should be had to:
“(a) the likelihood of the hazard or risk concerned eventuating; (b) the degree of harm that would result if the hazard or risk eventuated; (c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk; (d) the availability and suitability of ways to eliminate or reduce the hazard or risk; (e) the cost of eliminating or reducing the hazard or risk.”
66 S.21 provides that:
“Duties of employers to employees
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.”
67 S.21(2) provides that an employer contravenes subsection (1) if it fails to comply with the matters set forth therein, including to provide or maintain a system of work that, so far as is reasonably practicable, is safe and without risks to health.
68 S.21(3)(a) provides that reference to an employee includes reference to an independent contractor engaged by an employer and any employees of that independent contractor. For the purposes of this proceeding, it is clear the Institute is deemed an employer under the OH&S Act and the various provisions contained in that Act and Regulations in relation to duties of employers apply to the Institute. However, s.21(3)(b) provides:
“ The duties of an employer … extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.”
69 The words “in relation to matters over which the employer has control” are significant. The real issue is whether the Institute, in relation to the system of work in which the plaintiff was engaged, was “a matter over which [it] ha[d] control … .”
70 S.158 provides power to make regulations. Pursuant thereto, the Manual Handling Regulations were enacted. Regulation 6 is couched in terms similar to s.21(3)(b). It provides:
“Duties on more than one person
If, under these Regulations, a duty is placed on more than one person, the duty must be undertaken by each person only in relation to those matters in respect of which the person has management or control and whether or not any other person is also responsible for undertaking the duty.”
71 Regulation 11 provides:
“Duty of employer to independent contractor and other related
duties
For the purposes of this Part—
(a) "employee" includes an independent contractor engaged by an employer and any employees of the independent contractor; and (b) the duties of an employer under this Part extend to such an independent contractor and employees of the independent contractor, in relation to matters over which the employer—
(i) has control; or (ii) would have had control but for any agreement between the employer and the independent contractor to the contrary.”
72 Regulation 13 places a duty on an employer to identify any “hazardous manual handling”. That phrase is defined in Regulation (2). The only aspect of the definition which is relevant is in relation to “application of higher force”. That phrase is defined (Regulation 5):
“… in relation to manual handling, means the use of such force that it would be reasonably expected that either most persons in the workforce, or the persons likely to undertake the activity, would have difficulty in undertaking the activity and includes the force required to lift or otherwise handle heavy weights, to push or pull objects which are hard to move … .”
73 There was no specific evidence about whether the worker, or other persons, would have difficulty undertaking the task of lifting a linen bag weighing greater than 25 kilograms, but I infer from generally the evidence of the plaintiff, and the fact that the task, in part, had to be carried out away from the worker’s body, that the task did satisfy this definition.
74 Regulation 14 imposes a duty on employers to, once a hazardous manual handling task has been identified, undertake a risk assessment. Further, Regulation 15 requires that any task involving a risk of musculoskeletal disorder is eliminated, or if not practicable to eliminate, then is, so far as possible, reduced.
75 It is clear upon the evidence that neither the Cleaning company nor the Institute undertook hazard identification, risk assessment nor, obviously, took any steps to eliminate or reduce that risk.
76 The real issue is not whether the Regulations are breached, but rather whether the system of work which gave rise to the worker’s injury was “a matter over which the employer (the Institute) ha[d] control”.
77 I was taken to various authorities as to the meaning of “control”, and while each authority was concerned with a criminal prosecution under the OH&S Act, or its interstate equivalent, the principles are nonetheless relevant.
78 In Stratton v Van Driel Ltd,[44] Byrne J said:
“The word ‘matters’ adopted by parliament to describe the subject matter of the duty has a very wide meaning. It is wide enough to cover any activity or thing in the working environment which might involve risk to the safety and health of a worker. …”[45]
[44] [1998] VSC 75
[45] at paragraph 16
79 The system of work undertaken by the worker at the time of the injury was something wider than the immediate activity which led to the pain in his lower spine, that is, the lifting of a linen bag onto another in the sallyport. In fact, the system involved activities before that moment, including:
• The collection of towels from the pool and shower areas • Placing the towels in bags on the trolley • Transporting the trolley to the sallyport area • Unhooking the bags from the trolley • Lifting and placing the bags into the sallyport, one on top of another. 80 Mr Simpson took me to an extract from ‘The Liability of Employers in Damages for Personal Injury’,[46] as follows:
“What constitutes a system of work will vary from case to case. Speaking generally, it includes the arrangement of the organisation of the operation or process, the sequence in which the various steps in the operation are carried out, the co-ordination of different parts of the operation, the methods of using particular equipment or machines or carrying out particular processes, the supply of suitable appliances and adequate manpower, in the provision of proper instructions, warnings and notices before, during and after the operation or process in question. …”
[46] Glass, McHugh & Douglas – (2nd ed) 1979, at page 20
81 This whole activity, in my view, comes within the parameter of the word “matters” used in the legislation. This is because at any stage of this activity, interventional steps could have been taken to reduce the risk of ultimate injury. An example would be to restrict the number of towels used in the pool and shower area so as to reduce the weight of the bags. In fact, this was the activity upon which complaint was made by the worker to both Fleming and Taylor. Therefore, the concept of “control” in the legislation envisages the capacity to control the whole system of work, and not merely the lifting activity in which the worker was engaged which caused injury.
82 In the context of control, Byrne, J in Stratton (supra) said:[47]
“I approach the task of construing this statute conscious that it is social legislation intended to secure the safety and welfare of persons at work and to protect them against the risks of this: s.6. It should, therefore, be construed generously with this object in mind. …”
[47] at paragraph 15
83 His Honour said further:[48]
“Given the great variety of circumstances in which s.21(3) may apply, it is neither desirable nor profitable for me to attempt anything like an exhaustive analysis of the word ‘control’ or the expression ‘have control over’ and I do not do so. … The question for determination is in what circumstances, if at all, it might be said that this activity was under the control of Van Driel where no direction was given by Van Driel as to this activity. In such a case, Van Driel would, in ordinary speech, be said to have control over the activity in at least two situations. The first is where it had a legal right to direct that Mr Baum [the worker] not perform the work in that way. The second is where, notwithstanding that the person has no right to give it, the employer saw it as within its area of authority to give such a direction and, importantly, the worker would accept it and act upon it. It matters not in either situation that other persons might also have control over the same activity.”
[48] at paragraph 19
84 Mr Gorton relies upon other decisions which, he says, place a different emphasis on the concept of control. In Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd & Henry,[49] Doyle, CJ, stated:[50]
“’Control’ in s.4(2) of the OHSW Act should be read as referring to actual control, that is to things which the deemed employer is managing or organising. Unless s.4(2) is limited in this way, its reach would be very great. …”
[49] [2001] SASC 199
[50] at paragraph 56
85 Further, the issue received attention in the Court of Appeal in Western Australia in Reilly v Devcon Australia Pty Ltd.[51] The Court considered the decision of Byrne, J in Stratton. At paragraphs 34-36, the Court said:
“Looked at in its overall context, s.19 is designed to ensure that those who are most directly responsible for the safety of workers (their employers and principals who have contracted with their employers and who have actual control over matters affecting their safety) should be held liable for default in exercising that responsibility. That the control must be actual control (encompassing a right of actual control, whether exercised or not) over the particular matter affecting safety seems to us to be evident from the words used, read in their context.
It is significant that s 19(4) is directed to 'matters' over which the principal has control, unlike s 22(1) which is directed to a person who has, to any extent, control of 'a workplace' … That reinforces the notion that the legislature did not intend to impose upon a principal who has engaged a specialist contractor (who is not ordinarily susceptible to direction as to how to perform its work …) a general obligation to supervise the manner in which the contractor (having an expertise that the principal lacks) goes about the performance of the work entrusted to it.
A construction that imposed such a far-reaching obligation on a principal would produce unworkable consequences. There is no real scope for a principal (lacking the requisite expertise) to exercise actual control over the detailed manner of performance of work by a specialist subcontractor. If it endeavoured to do so, this would be more likely to lead to hazards than to avoid them. …”
[51] [2008] WASCA 84
86 The Court considered that its findings in respect of control did not conflict with the judgment of Byrne, J in Stratton.[52]
[52] at paragraph 38 – this may be because of the slightly different wording between the Western Australian and the Victorian legislation
87 Any determination of the matter of control within a workplace context or “matters over which an employer has control” must be considered in the light of the facts of the particular activity, or system of work which caused injury. As earlier stated, the system of work in which the worker was engaged had a number of components. Whether or not the Institute had control needs to take into account the various components of that system. As was said by Byrne, J in Stratton, it is impossible to undertake an exhaustive analysis of what is meant by the term “control” or the expression “have control over”. The Institute, by its officers, could be said to have control over the number of towels issued to the patients in the pool and shower area. That would appear to be the foundation of the complaint to Fleming by the worker. Further, the Institute had control over the shower area and the capacity or otherwise to install mats. Intervention at either of these levels could, in my view, reduce the risk of injury. Realistically, the number of towels placed into the bags was more a matter for the control of the Cleaning company. Likewise, the precise manner in which the worker unloaded the bags into the sallyport was that part of the system over which the Cleaning company had control. The worker had, on previous occasions, when requested by nurses at the hospital to undertake certain tasks in relation to assisting patients, done so. Undoubtedly the cleaning work carried out at the hospital was contracted to the Cleaning company because of its expertise in that area. This was not a situation of a labour hire company being used to supply workers in substitution for or in addition to usual employees of the hospital, such as may be the case with, for example, a nursing agency. Rather, it was a contractual arrangement for the provision of cleaning services. In addition, the question of control ought take into account what is reasonably practicable.[53] The question of what is reasonably practicable is a matter of fact and degree in each case. That will depend upon factors including the operations carried out, the nature and gravity of the risk, and the competence and experience of the workmen.[54]
[53] see R v ACR Roofing Pty Ltd [2004] VSCA 215, at paragraph 68
[54] R v Associated Octel Co Ltd [1994] 4 All ER 1051, at 1063
88 Given the range of activities carried out by the worker up to the time of injury, and the nature of the relationship between the Institute and the Cleaning company, I am of the view that in respect of some of those activities, the Institute had sufficient control to satisfy the definition in the OH&S Act and Regulations. In my view, the Institute had control over that aspect of the activity relating to the use made by the patients of the towels in the shower area and control over the provision of a suitable alternative bathmat in the shower area. However, the manner in which the worker was to undertake the system of the delivery of the wet towels to the sallyport, and the removal of the bags there, was an aspect under the control of the Cleaning company. It was responsible for directing the worker as to what had to be done, and the manner in which it was to be undertaken.
89 Having determined that the Act and the Regulations apply in the manner described, the next question is as to whether the relevant provisions were breached by the Institute. The Institute did not undertake the identification task required by Regulation 13, nor the risk assessment required by Regulation 14. The requirement to eliminate or reduce the risk of injury as prescribed by Regulation 15 is couched in terms of what is practicable. Likewise, the requirement to eliminate risks to health and safety in s.20 of the OH&S Act is a requirement “so far as is reasonably practicable”.
90 I am of the view it was reasonably practicable for the Institute to either provide less towels in the pool and shower area, or invoke a system such that the towels were not used by the patients as bathmats in the showers. Any such arrangement would have involved little cost and effort.
Nature and Extent of the Duty of Care Owed by the Institute
91 Mr Gorton submits that in the circumstances of this case, the Institute did not owe the worker a common law duty of care. The foundation of this submission is that regard ought be had only to the activity in which the worker was engaged at the time of injury; that is, the lifting of the bags one on top of another in the sallyport. However, as already stated, in my view, the investigation to determine the nature and extent of the duty owed ought have a wider parameter, and include consideration of the various activities from the collection of the towels at the pool and shower area, and their transport to and unloading at the sallyport.
92 There is no issue the Cleaning company owed the worker a duty as employer. However, the fact of the existence of that duty does not mean the Institute did not also owe a duty to the worker. Mr Gorton submits this is not a case of a labour hire company providing workers to the Institute in substitution of, or to bolster its workforce, as is so often the case in the modern industrial environment. It is, he says, a genuine relationship of principal and independent contractor, the contractor providing specialist cleaning and related services to the hospital. The collection and transportation of towels to the sallyport, as I have found, was within the scope of the cleaning services provided.
93 He says further that the Institute:
ƒ was not a defacto employer ƒ did not supervise the worker as to how he performed his duties ƒ was not responsible for the co-ordination of different contractors. 94 In those circumstances, he says, no duty of care was owed. He relies upon a number of authorities. In Stevens v Brodribb Sawmilling Co Pty Ltd,[55] an injury was suffered by a truck driver when struck by a log in a forest sawmilling operation. There was an interdependence of activities carried out by various contractors working at the scene, including truck drivers and sniggers, and a necessary need for co-ordination by the logging operator, Brodribb. Mason, J[56] said:
“The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co- ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”
[55] (1986) 160 CLR 16
[56] at page 31
95 Further, Brennan, J[57] stated:
“… The duty to use reasonable care in organizing 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 minimize 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. …”
[57] at page 47
96 Mr Gorton urges that in the present case, there was no need for the co- ordination of a range of contractors. It is rather the engagement of the Cleaning company which was competent to control its own system of work and supervise its own employees. Further, he submitted this was not a situation where a labour hire company was retained to provide workers to the Institute where those workers were under the full control and supervision of the Institute.
97 In J Blackwood & Son Steel & Metals Pty Ltd v Nichols,[58] the New South Wales Court of Appeal was concerned with injury suffered to a truck driver who was standing upon a load of steel upon his truck, tightening a chain. The steel moved and the driver fell, suffering injury. Blackwood was the steel manufacturer at whose premises the injury occurred. That company had contracted with the driver’s employer, a transport organisation, to transport the steel from the factory. The driver alleged negligence against Blackwood for failing to provide an alternative safe platform from which to tension the chain. The steel was loaded onto the truck via Blackwood’s employee. Tobias, JA[59] said:
“This lack of any control, let alone day-to-day control, over the task of securing the loads of the drivers of contractor vehicles takes the present case not only outside of the principle expounded in Christie, but also of that articulated by Mason P in Chalker …. This being so, the primary judge’s finding that the appellant ‘was in a position to control the loading procedures on its site even where drivers such as the [first respondent] were involved’ could not rise to a non-delegable duty of care or, for that matter, any duty of care with respect to the securing of the first respondent’s load. The fact that it ‘was in a position’ to do so is irrelevant absent an actual exercise of control by the appellant over that activity by the giving of information and directions or in some other way. However, it was not under a duty to exercise any such control over the undertaking by the first respondent as an independent contractor of the task of securing his load. …”
[58] (2007) NSWCA 157
[59] at paragraph 64
98 However, the facts of the present case are somewhat different to those of Blackwood. The activity being undertaken was not simply the lifting of the bags, but in fact a chain of activities leading up to that. It was an activity in which the Institute did have a degree of control, at least, as to the number of towels provided and the manner in which they were used in the showers. Further, the trolleys, towels and bags were owned and provided by the Institute. Given these differences, I am of the view that a duty was owed by the Institute to the employees of the contract Cleaning company in relation to the manner in which they carried out their duties as cleaners. The duty owed was to take reasonable care to avoid the risk of foreseeable injury while the workers were upon the premises and engaging in the activities.
Was there a Breach of the Duty of Care by the Institute?
99 Mr Gorton argues it was not unreasonable for the Institute to leave the direction and supervision of the worker to the Cleaning company, and for it to establish and maintain a safe system of work. Further, although the trolleys, bags and sallyport were owned and/or supplied by the Institute, they were not the subject of any inherent defect. It was the use to which they were put, that is, the loading them with wet and heavy towels, that was the cause of injury.
100 The real solution to the problem, says Mr Gorton, was that some of the towels could be removed to another bag to lighten the load and therefore the lift at the sallyport. This system was used and/or approved by other workers.[60] Taylor ought to have established and enforced that system.
[60] See evidence of Westgarth at T 72; Harrison at T 138
101 The complaint to Fleming, says Mr Gorton, was a passing chance encounter with a person relatively unknown to the worker. At most, Fleming ought to have drawn the matter to the attention of Taylor.
102 Mr Simpson submits there was a clear breach of duty. The Institute had the management and control of:
ƒ the shower and the pool area ƒ the towels ƒ the linen bags
ƒ the trolley ƒ the sallyport. 103 The injury in the lifting incident stemmed from a system of work commenced with the collection of the towels into the bags and their subsequent transport to the sallyport. Further, he says, the Cleaning company had no control over what was put into the bags, how wet the towels were, or how heavy the bags became.[61]
[61] Evidence of Harrison at T131
104 In my view, the Institute was in breach of the duty it owed the worker in two principal ways:
105 Firstly, through its agent, Fleming, it failed to heed the complaint of the worker when he said:[62]
“… is a problem. The patients are using the towels as floor mats but
they’re not supposed to be.”[63]
[62] T 39
[63] See further T 63
106 Not only was this a complaint to an employee of the Institute, but it was also a complaint about a matter in respect of which the Institute could have undertaken some remedial steps, that is, to change the use put by the patients of the towels in the shower area by reducing the towels, or providing other appropriate mats. It is not, in my view, to the point that Fleming was not an obvious person for the worker to make a complaint to, nor that he was not well-known to the worker. The fact remains that a complaint was made. Upon the evidence, nothing was done about it. At the very least, Fleming could have raised the matter with Taylor.
107 The second area in which the Institute was negligent was the very area about which the complaint was made, that is, the provision of towels in the shower area. It was only an occasional event, in particularly hot weather, where there were a lot of towels to be collected. Nonetheless, again, it was an area of the system of work undertaken by the worker in respect of which the Institute could have taken steps to alleviate. Again, no such steps were taken.
108 It is argued by Mr Simpson that the Institute ought to have taken the steps suggested by Cubitt to modify the trolleys, put a ramp in place in the sallyport area, and extend the size of the sallyport to avoid bags having to be hefted, one upon another. The alteration and reconfiguration of the sallyport, in my view, was not a reasonable step which the Institute could have been expected to undertake. A simpler and more obvious means by which to reduce the bags was clearly open, that is the reduction of the number of towels to be placed in the bags.
Apportionment of Fault as between the Cleaning Company and the Institute
109 Given my finding that the Institute was subject to the statutory requirements of the OH&S Act and the Regulations, and further, of the breach by the Institute of the general duty of care owed to the worker, it comes to assess the relative apportionment of fault as between the Institute and the Cleaning company.
110 In Esso Australia Ltd v Victorian WorkCover Authority & Anor,[64] Winneke, P said:[65]
“… The apportionment of blame between the two fell to be assessed by making a comparison of the significance of the respective departures from the relevant standards of care required. Such a comparison involves matters of relative emphasis, proportion and value judgment upon which reasonable minds might differ and which does not readily admit of articulation. …”
[64] [2000] VSCA 74
[65] at paragraph 21
111 The areas where the Institute’s “act, default or negligence caused or contributed to the injury …” are as stated above. The Institute, in my view, ought to have responded to the complaint made by the worker to Fleming. Its attention ought to have been turned, either by that complaint, or from its own investigations of the fact that the towels were becoming saturated, particularly in the shower area, and to have taken steps to alleviate the situation.
112 Further, given my finding that the provisions of the OH&S Act and the Regulations did have application to the Institute, it ought to have done what the Regulations contemplated, that is hazard identification in the manual handling, including a risk assessment, then, so far as was practicable, to eliminate or reduce the risk.
113 To that extent, it ought bear a proportion of the blame or fault for the injury.
114 However, in my view, the default or negligence of the Cleaning company was significantly more extensive. The Institute had contracted the Cleaning company to provide contract cleaning services which included the removal of the towels. A most significant feature of the system of work, in my view, was that the Cleaning company provided not only workers for this task, but also an onsite supervisor, Taylor. Taylor was the person responsible for advising the worker that he was required to go to the pool area, collect the towels and take them to the sallyport. In terms of how that task was to be undertaken, Taylor was the person who provided instructions.[66] In addition, the worker understood that if he had any difficulty with the task, his first port of call was Taylor, either by speaking to her directly, or contacting her by mobile phone.[67]
[66] T 56
[67] T 64
115 I asked the worker the following questions:[68]
[68] T 67
“Q: With the various cleaners at the hospital, who was the one who
told you where you had to work?---A: Jo Taylor. Q: Were you ever told by some hospital employee that you should go
and work in building A, B or C?---A: No. Q:
Who was responsible for telling you what to do when you went to a certain building, perhaps at the beginning when you were finding out what your …?---
A: Jo Taylor.”
116 Clearly, in my view, the Cleaning company was responsible for an appropriate induction, and training of the worker, and despite the existence of a cleaning procedure manual,[69] not only did the worker not receive any training, particularly as to lifting techniques, but was not even provided with the manual. Essentially, there was no advice nor instruction provided to the worker as to safe manual handling techniques, nor particularly as to the danger of lifting a weight away from the body.
[69] Exhibit 1
117 Further, the Cleaning company was bound by the provisions of the OH&S Act and the Regulations. That required the Cleaning company to make an assessment of manual handling tasks. Had the Cleaning company complied with that obligation, an assessment ought to have been made of the lifting at the sallyport area. It would have been relatively obvious to a supervisor that a lift of the nature undertaken by the worker on the day he was injured was too heavy and carried a risk of significant spinal injury. A simple instruction to distribute the load of heavy towels into other bags would, in my view, have led to a reduction in the risk of injury.
118 In the circumstances, the Institute was reasonably able to rely upon the Cleaning company to properly establish a safe system of work for its workers, and to ensure it was properly implemented and supervised. This is not a situation of a labour hire company providing workers which became its effective workforce. This was a situation of the Institute obtaining the specialist cleaning services of a company in the business of providing those services.
119 Doing the best that I am able in assessing the respective departures from the relevant standards of care as between the Institute and the Cleaning company, I am of the view the Cleaning company ought to bear 70 per cent of responsibility and the Institute 30 per cent. As earlier stated, there ought be no contribution by the worker.
120 I shall hear further from the parties as to the appropriate orders and costs.
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