W.V. Management Pty Ltd v Norvic Food Processing Pty Ltd
[2009] VSC 570
•17 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WODONGA
COMMON LAW DIVISION
No. 1200 of 2007
| BRENDAN TINWORTH | Plaintiff |
| v | |
| W.V. MANAGEMENT PTY LTD and NORVIC FOOD PROCESSING PTY LTD | First Defendant Second Defendant |
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JUDGE: | J. FORREST J | |
WHERE HELD: | Wodonga and Melbourne | |
DATES OF HEARING: | 1, 2, 3, 4, 7, (Wodonga) and 15 December 2009 (Melbourne) | |
DATE OF JUDGMENT: | 17 December 2009 | |
CASE MAY BE CITED AS: | W.V. Management Pty Ltd v Norvic Food Processing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 570 | |
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NEGLIGENCE – Plaintiff contracted Q fever – Plaintiff’s claim compromised - Contribution - Apportionment of liability – Part IV Wrongs Act - Liability of employer and hirer of labour at abattoir – Safe system of work – Supervision – Control – Occupational health and safety obligations.
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APPEARANCES: | Counsel | Solicitors |
| For the First Defendant | Mr M. Titshall QC with Ms S. Manova | Wisewould Mahony |
| For the Second Defendant | Mr J. Moore QC with Mr D. McWilliams | Moray &Agnew |
HIS HONOUR:
Introduction
In 2001, the plaintiff, Mr Brendan Tinworth, contracted Q fever whilst working at the Wodonga Abattoir (“the abattoir”). The two defendants, W.V. Management Pty Ltd (“W.V. Management”) and Norvic Food Processing Pty Ltd (“Norvic”), settled with Mr Tinworth on the third day of the jury trial of his claim.
The jury was discharged without verdict and Mr Tinworth’s claim dismissed with no order as to costs. The defendants have been unable to resolve contribution. Each has a claim pursuant to Part IV of the Wrongs Act for contribution to the settlement of the claim.
The contest is fairly typical of disputes between defendants in the present industrial setting. W.V. Management, a labour hire company, provided most of the labour force at the abattoir, while Norvic occupied the site and conducted the enterprise. The contest between the two defendants is directed primarily to the question of responsibility and control over occupational health and safety requirements, particularly in respect of Q fever.
Given W.V. Management’s personal obligation to Mr Tinworth as his employer and its role in occupational health and safety matters (particularly in relation to Q fever) at the abattoir, I have determined that it should bear the bulk of the apportionment which I have fixed at 60% against W.V. Management and 40% against Norvic.
Relevant principles to be applied
Section 24(2) of the Wrongs Act requires a Court to determine the amount of contribution receivable as “just and equitable” having regard to a person’s responsibility for the damage.
The principles applicable in a case such as this are well known and of relatively short compass.[1] In looking at the question of responsibility, a Court examines the whole of the conduct of the parties in making its comparative examination. In particular a court takes into account the following. The causal potency of the acts or omissions of the respective parties, that is, their relative importance in causing the plaintiff’s injury and damage. Also, the degree of culpability or blameworthiness of each of the parties by reference to the acts or omissions which were a cause of the plaintiff’s injury and damage.
[1]See Wynbergen v Hoyts Corporation (1997) 149 ALR 25, Alcoa Portland Aluminium Pty Ltd vHusson (2007) 18 VR 112 [86] and Moore v Scolaro’s Concrete Construction Pty Ltd (in liq) (2004) Aust Torts Reports 81-767 [8]-[9].
The trial and the contribution proceedings
The contribution proceedings proceeded before me subsequent to the settlement of Mr Tinworth’s claim and discharge of the jury. W.V. Management called Mr Graeme Wheeler, founder and former managing director, and his son, Mr Vance Wheeler, a former employee of the company. It also called Ms Barbara Sanford and Mr Tony Lade, employees of Knight Network Pty Ltd (“Knight Network”), a recruitment company to which W.V. Management outsourced recruitment and administration. Both Ms Sanford and Mr Lade worked in the office at the abattoir. Norvic called its founder and managing director, Mr Jon Hayes.
Mr Tinworth’s claim was settled at a time when he had finished giving evidence-in-chief and counsel for W.V. Management had just commenced cross-examination. As I will discuss later, this is of some relevance, particularly given the findings of fact I am required to make in the contribution proceedings. Counsel for W.V. Management completed cross-examination of Mr Tinworth after the settlement of his claim. Counsel for Norvic then cross-examined Mr Tinworth.
A number of documents were tendered in the proceeding relevant to the relationship between Norvic and W.V. Management and the duties performed by employees at the abattoir.
Q fever
Q fever is an airborne bacterial organism carried by cattle, sheep and goats, particularly feral goats. It can be contracted by humans when in contact with animal faeces, urine, blood and pregnancy fluids containing large numbers of the bacteria which are impervious to sunlight or drying. Most at risk to Q fever infection are those whose occupation brings them into close contact with livestock, particularly abattoir workers and, on occasion, shearers and farmers.
The disease produces an acute illness similar to influenza. It may produce some symptoms or remain latent and can have significant side-effects, particularly involving the liver and heart,[2] as demonstrated by Mr Tinworth’s aortic valve failure.
[2]WVM2.
The factual background
In 1997, Norvic rose, like a phoenix from the ashes of the previous Wodonga Meats business in Kelly Street, Wodonga.[3] It was incorporated in July 1997[4] by Mr Hayes (formerly the general manager at Wodonga Meats between 1991 and 1996)[5] and his fellow director Mr Richardson. Prior to commencing operations, Norvic obtained a certificate of registration for the abattoir under the Export Control Act[6] and has since operated solely as an export works.
[3]T433.
[4]T575.
[5]T504.
[6]Exhibit N6 – its current certificate.
Norvic opened for business on 18 August 1997, processing various types of stock as a “service” abattoir for meat producers.[7] Of some significance to Mr Tinworth’s contraction of Q fever was the processing of feral goats, usually sourced from New South Wales or Queensland.[8]
[7]T316, T513-514.
[8]T111.
As part of its requirement in obtaining AQIS export registration under the Export Control Act, Norvic was required to develop and implement a Meat Safety Quality Assurance system (“MSQA”).[9] This involved a quality system manual setting out the work practices to be adopted at the abattoir.[10] It was devised and set up by Mr Hayes.
[9]T548.
[10]T549.
Additionally, and in compliance with the provisions of the Export Control Act, Norvic engaged eight AQIS inspectors. Norvic also engaged sub-contractors to perform incidental works at the abattoir.[11]
[11]T522.
Norvic’s two directors, Mr Hayes and Mr Richardson, worked from offices at the abattoir.[12] It did not employ any personnel. The workforce (particularly at the floor level) was outsourced primarily from W.V. Management,[13] but also from two other companies, Wodonga Rendering Pty Ltd (“Wodonga Rendering”) and Knight Network.
[12]T563.
[13]T308-329.
Mr Hayes was also the general manger of Wodonga Rendering in 2000 and 2001.[14] Seven of its employees had been the core of the original workforce in 1997[15] and subsequently worked in supervisory positions directing or alongside employees of W.V. Management.[16]
[14]T437.
[15]T528.
[16]T440-441.
Knight Network was engaged by W.V. Management to provide managerial services.[17] Its employees worked in the office[18] managing recruitment, pre-employment, industrial, medical, personnel, payroll, and workers compensation issues, involving W.V. Management employees. When Mr Tinworth was employed, Ms Sanford was the designated first aid/safety officer,[19] and Mr Lade the site administrator.[20]
[17]T308.
[18]T330-331.
[19]T367-368.
[20]T412.
In 1998, Dr Peter Sartori of the Wodonga West Medical Centre, in effect the abattoir medical specialist (engaged by W.V. Management), advised it of the appropriate form of masks to be used to protect workers against the contraction of Q fever.[21] These masks were obtained and used at the abattoir.
[21]T383.
In July 2000, Norvic and W.V. Management renewed their agreement (originally entered into in 1997) setting out the terms for the provision of labour at the abattoir (“the agreement”).[22]
[22]WVM6, T445.
In late September 2000, Mr Tinworth attended a Knight Network office in Lavington in response to an advertisement for work at the abattoir. He underwent a fairly basic aptitude test and was told he would be contacted if a job became available. The following week he was contacted and told to attend the abattoir office for an interview.[23]
[23]T218-222.
On 2 October 2000, Mr Tinworth attended the office and was interviewed by Ms Sanford and offered a job as a casual employee, subject to a probation period, which he accepted.[24] He was provided with an induction folder containing, under the heading “Norvic Food Processing Pty Ltd”, a chapter on personal hygiene.[25]
[24]T 143-144.
[25]Exhibit WVM1.
On 3 October, after completing a letter of engagement,[26] Mr Tinworth commenced casual employment. He was taken to the Hanging Room, where he was shown by a fellow employee how the job was to be performed. He then took over the task of weighing the carcasses, applying tickets and then moving them through the Hanging Room.[27]
[26]Exhibit P1.
[27]T148.
Each morning before the commencement of a shift, employees obtained equipment including hairnets and masks, for the working day from the store.[28] This equipment was supplied by Wodonga Rendering at the request of Norvic, which ultimately paid for all such “consumables”.[29]
[28]T288.
[29]T530.
On 16 October 2000, Ms Sanford arranged for a group of employees to be inoculated for Q fever by Dr Sartori in the abattoir’ medical room.[30] On the following day, Ms Sanford was advised the vaccine was not available for any further inoculations. Mr Tinworth, as a new employee, had not been inoculated at this time.[31]
[30]T378.
[31]T379.
The records kept by W.V. Management note that on 25 October induction modules involving personal hygiene, OH & S and MSQA were completed by Mr Tinworth.[32] Mr Tinworth recalled this as a meeting held in the canteen.[33]
[32]Exhibit P2.
[33]T153.
On 22 November, Dr Sartori carried out a “pre-employment exam” of Mr Tinworth.[34]
[34]T154-155.
On 9 January 2001, Mr Tinworth completed his probationary period and a document “Progression from Level 1 Assessment Criteria” under the heading “Norvic Food Processing/W.V. Management” was completed. The assessment was carried out by Ms Sanford and signed off, with comments by Mr Hayes on behalf of Norvic.[35] Mr Tinworth was noted as “very competent at doing his job, helpful at performing other tasks”.
[35]Exhibit P2, T570.
In late January 2001, Mr Tinworth developed a nasty cough and had two days off work.[36]
[36]T156.
On 23 March 2001, Mr Graeme Wheeler on behalf of W.V. Management wrote to Mr Cameron, the Minister for WorkCover, expressing his concern over the unavailability of Q fever vaccine since October 2000 and, as he perceived it, into the indefinite future.[37]
[37]Exhibit N4.
In early April 2001, a number of employees, including Mr Tinworth, attended Dorovitch Pathology Service to have “skin tests”.[38] The test was arranged by Ms Sanford for the purpose of determining the presence of antibodies to Q fever.
[38]T174.
On 20 April 2001, Dr Sartori attended at the abattoir to administer Q fever vaccinations, the vaccine having become available again. When Mr Tinworth presented, Dr Sartori told him “You have tested positive. You don’t need an injection”. Mr Tinworth replied “Do I have to keep wearing the mask?” Dr Sartori replied “No, you have tested positive to Q fever, so you are immune to it”.[39]
[39]T175.
Mr Tinworth continued to work in the Hanging Room until he became acutely ill in 2004. The Q fever virus had damaged his aortic valve and he underwent surgery at St Vincent’s Hospital to insert a replacement valve.[40] Once recuperated, Mr Tinworth returned to the abattoir undertaking lighter jobs, initially in the quality assurance area and subsequently on the gatehouse. In May of this year, his employment was terminated, coinciding with the deterioration of his replacement valve, which will require replacement in the near future.[41]
[40]T193.
[41]T202-207.
The submissions of the parties
Neither counsel disputed the existence of a duty to Mr Tinworth or its breach. However each argued that the opposing party should bear the lion’s share of the apportionment.
Counsel for W.V. Management pointed to the size and breadth of the Norvic operation at the abattoir. Although Norvic distanced itself from actual employment, counsel contended the reality was that, although nominally the employees were from W.V. Management, the workforce was in effect Norvic’s. Mr Hayes was present on the floor during each working day and no decision of any significance was made without his imprimatur. The system of work on the floor was devised and implemented by Mr Hayes and the wearing of masks was the direct responsibility of Norvic. Mr Hayes had extensive experience in the meat processing industry and knew about the risks of contracting Q fever. Finally, counsel pointed to the fact that Norvic had introduced the infected stock which passed the risk to Mr Tinworth. He submitted that an appropriate apportionment was about two thirds/one third against Norvic.
Counsel for Norvic emphasised the obligation owed by W.V. Management as Mr Tinworth’s employer. He said that an examination of the agreement and its operation at the abattoir demonstrated W.V. Management’s responsibility to protect its employees from the Q fever virus. He contended it was, in those circumstances, necessary for W.V. Management to implement a strict system of enforcement for the wearing of masks where an employee was free of the Q fever antibodies. This was particularly so, it was said, after supplies of the vaccine ran out in October of 2001. It was the failure to have an adequate system to enforce the obligation to wear a mask that was the cause of Mr Tinworth’s injury. It was said that an analysis of the role of Ms Sanford as an officer of W.V. Management demonstrates her responsibility for managing the Q fever risk. Whilst it was accepted that Norvic exercised a considerable degree of control over work on the floor, it was said that this did not detract to any great degree from the obligation of W.V. Management in relation to Mr Tinworth’s contraction of Q fever. The suggested apportionment was between 80/20 to 90/10 against W.V. Management.
How did Mr Tinworth contract Q fever?
The resolution of this issue has been complicated somewhat by the way in which the events occurred during the trial.
In the course of his case against the defendants, Mr Tinworth alleged that little, if anything, was done to protect him from contracting Q fever. He said he was simply told by Ms Sanford he would need to be inoculated against Q fever. He was told, on his account, that Q fever produced flu-like symptoms[42] and subsequent to answering a number of questions, signed an authority to be vaccinated for Q fever.[43] The whole process took about 15 to 20 minutes.[44] He denied there was ever an induction at the abattoir office meeting on 2 October.[45] He was given a folder by Ms Sanford containing occupational health and safety information,[46] which he only glanced at. Contrary to the evidence of Ms Sanford, he said he was not given any instructions about wearing a mask.[47] For a period of approximately four to five months he did not wear a mask.[48] The masks were introduced in March 2001.[49] Mr Tinworth was not instructed to wear a mask and saw no-one else wearing a mask at the premises.[50] Specifically, he denied being instructed to wear a mask until he was vaccinated.[51] On at least one occasion there were no masks at the store. However, he did agree that the questions asked of him were similar to those contained in Exhibit WVM2, a questionnaire prepared by W.V. Management.[52]
[42]T144-145.
[43]T223.
[44]T224-225.
[45]T226.
[46]Exhibit WVM1.
[47]T226.
[48]T153, 157-158.
[49]T170-172.
[50]T149.
[51]T226.
[52]T276.
Mr Tinworth gave evidence it was only in February/March of 2001 that he was told to wear a mask because of the Q fever risk. He said this instruction was given to him by a Quality Assurance Officer (“QA”) when he was walking past the lunch room one day[53].
[53]T170-171, T286-287.
Ms Sanford, called by W.V. Management in the contribution proceeding, painted a very different picture. She said there was a full discussion with Mr Tinworth about the risks of Q fever (not just on the basis of flu-like symptoms) at the first interview at which an induction was conducted.[54] A lengthy questionnaire was completed by Mr Tinworth in her presence. She said employees were told to wear masks until they were vaccinated.[55] That was, in effect, a strict policy.[56] She said at times she had seen Mr Tinworth not wearing his mask and had spoken to him about this practice.[57] She said she would have noted such an event in her diary (not produced) and thought there would have been formal written warnings given to Mr Tinworth (not produced).[58] There was never a shortage of masks, available either at the store or in the medical room;[59] QA’s and supervisors would instruct employees to wear a mask.[60] Ms Sanford’s account was supported by the site administrator, Mr Lade. Her evidence in relation to the availability of masks, was supported by Mr Graeme Wheeler[61] and Mr Hayes.[62]
[54]T379.
[55]T379.
[56]T384.
[57]T386.
[58]T387.
[59]T384, T399-400.
[60]T384.
[61]T454-455.
[62]T538.
The accounts of both Mr Tinworth and Ms Sanford can be subjected to criticism. Although Mr Tinworth was a compelling and believable witness, in two out of Court statements he has contradicted his description of the lack of instruction in relation to the use and provision of masks. In a statement made in August 2003 at the instigation of a WorkCover investigator, he said masks were always available from the store and he had been instructed to wear a mask until “I was tested and vaccinated”.[63] He also said he contracted Q fever despite the fact he had “always worn a mask”. In an affidavit sworn for the purpose of s 134AB of the Accident Compensation Act, he said when he commenced work there was no vaccine “and in the meantime” he was given a dust mask.[64] When he gave evidence, both these accounts were put to him and he said,[65] I thought in a persuasive way, that he simply could not explain why he had signed the statement for the WorkCover investigator, but it was incorrect. He pointed to a number of internal inaccuracies which supported that assertion.[66]
[63]Exhibit WVM4.
[64]Exhibit WVM5, T282-283.
[65]T279-284.
[66]For instance, the reference in Exhibit WVM4 to the time of the induction was clearly incorrect, as was his reference to the timing of a general medical examination.
Ms Sanford was, I think, generally a truthful witness but felt it necessary to justify her position as the safety officer. She was adamant workers had to complete pre-medical forms and Q fever screening forms.[67] She explained the risks posed by Q fever[68] and told any new worker that he or she would have to wear a mask until the vaccination was undertaken.[69] Generally, an induction as to safety measures was carried out.[70] On her account, any person at the abattoir not wearing a mask, as required, would be the subject of immediate disciplinary action either recorded in a diary or via a formal warning. No documentation was produced to support either proposition despite her recollection of speaking to Mr Tinworth about his failure to wear a mask and her belief that he would have been disciplined.
[67]T370.
[68]T374.
[69]T392.
[70]T375.
One of the problems I adverted to previously is the reconciliation of these accounts, particularly when there was no contradictor on behalf of Mr Tinworth. This is particularly so when W.V. Management, effectively, called Mr Tinworth and Ms Sanford in its case against Norvic. Notwithstanding these difficulties, I am still required to resolve these inconsistencies as best I can on the evidence as adduced.
One thing is clear, given the positive test result returned in April 2001, between October 2000 and March 2001, Mr Tinworth must have been exposed to and contracted the Q fever virus.
I have reached the following conclusions in relation to Mr Tinworth’s exposure to the Q fever virus at the abattoir:
(a) Mr Tinworth was exposed to and contracted the Q fever virus between 3 October 2000 and March 2001.
(b) Mr Tinworth was given oral advice and instructions as to the risks posed by Q fever and the need to wear a mask up until the time he was vaccinated. I accept Ms Sanford’s evidence in this regard. I do so because to accept Mr Tinworth on this issue would fly in the face of reason. The internal documents produced by W.V. Management, namely the questionnaire[71] and the documents provided to employees, refer to the risk posed by Q fever.[72] Further, masks were available in the store on the premises. Simply put, it would make no sense for Ms Sanford not to have told Mr Tinworth of the necessity to use a mask.
[71]Exhibit WVM3.
[72]Exhibit WVM2. Exhibit P2.
(c) I am satisfied on the basis of Ms Sanford’s and Mr Hayes’ evidence that masks were available from the store and the first-aid room between October 2000 and March 2001.
(d) I am satisfied Mr Tinworth, for much of the time up until February/March, did not wear a mask. He was an honest witness and there are sufficient internal inconsistencies in his August 2003 statement, prepared for him at the office and drawn up by the investigator, for me to doubt its accuracy. The s 134AB affidavit is also of dubious assistance.
(e) I am not satisfied there were concerted efforts by anyone in authority, be it at W.V. Management or Norvic, to ensure employees such as Mr Tinworth wore a mask. It is noteworthy (but perhaps not surprising given the way in which Mr Tinworth’s case concluded) that no fellow employees from the floor were called to give evidence as to the use or instructions for the use of masks. As I see it, there was a real difficulty with enforcing the use of masks by employees. Those who had Q fever antibodies (either by way of contracting the disease or by the vaccine) did not need to wear a mask. However, as Mr Hayes agreed, there was no system to enable a supervisor or QA to know which employees were or were not Q fever antibody free.[73] It may be that Ms Sanford and Mr Lade knew who such persons were, given their involvement with the vaccination process and recruitment, however there was no cogent evidence as to how anyone else would gain this knowledge. No supervisor was called to give evidence. There was no documented disciplinary action against Mr Tinworth, either by way of formal or informal warning, or standing down. To the contrary, the only written comments hold him to be an exemplary employee.[74] If Ms Sanford intended to suggest workers were disciplined for such a breach, it is not consistent with the objective facts – there would have been written comments or notes of disciplinary action inconsistent with his appraisal at the end of the probation period in January 2001.[75] Further, her evidence that “he was spoken to”[76] is inconsistent with any strict enforcement of the requirement that Mr Tinworth wear a mask. I accept Ms Sandford probably said something to Mr Tinworth about wearing a mask – but no more than that.
(e) Having concluded that the rule requiring Q virus antibody-free workers wear a mask was ineffectually enforced at the abattoir, there is another point that arises. Once it was known there was no Q fever vaccine available after mid-October, it was imperative that steps be taken to ensure Q fever antibody-free employees be made aware of the absolute necessity to wear a mask. That rule had to be enforced rigidly by strict discipline: If warnings or reprimands did not work, then by standing employees down on the basis of breach of OH&S requirements. The evidence does not reveal any specific action being taken as a result of the lack of the vaccine, other than, as Ms Sanford said, to continue to tell workers to wear masks (about which I have distinct reservations). A much more stringent approach was needed at this time.
[73]T539.
[74]Exhibit WVM2.
[75]Exhibit P2.
[76]T386.
The relationship between W.V. Management Pty Ltd and Norvic and their respective responsibilities
Norvic sub-leased the abattoir from Wodonga Rendering, which in turn leased it from Heljon Pty Ltd, a company connected with the previous operators of the abattoir, McPhee Meats. Adjacent to the abattoir was a rendering plant operated by Wodonga Rendering. All services to the abattoir were supplied by that company to Norvic. As part of the service arrangement with the meat producers, Norvic was entitled to the offal. The inedible offal was trucked from the abattoir to the rendering plant and the edible offal packaged and sold by Norvic.[77] The owner of the live animal retained the ownership of the meat and the skin and was charged a fee by Norvic for its services, both for the kill and the dressed meat.[78]
[77]T316, T439.
[78]T317.
Before turning to the arrangement between the two defendants, it is necessary to say something about the experience of the two prime movers, Mr Hayes and Mr Graeme Wheeler.
Mr Hayes had worked in the meat industry from an early age and for a number of years was employed by AQIS, ultimately as a senior district manager.[79] He held a number of qualifications associated with the meat industry. In 1991, he became the general manager for Wodonga Meats and worked in that capacity through to 1996. In 1997, he was appointed the operations manager at Wodonga Rendering and worked in that capacity at the same time as being a director of Norvic.[80] It was his experience, both with AQIS and Wodonga Meats, which led to his desire to re-establish the abattoir but avoid the industrial disputation which had plagued the meatworks in his time as manager. In 2000, Mr Hayes was also a member of the Australian Meat Council.[81] He knew of Q fever and its potential consequences, indeed he had contracted the disease himself in the mid-1980s.[82] Although there had been no protection against Q fever at the abattoir by the prior operator, he said, and I accept, he was alive to the risk of Q fever and sought to take steps to minimise the exposure of employees at the abattoir to the disease.
[79]T502-504.
[80]T504.
[81]T545.
[82]T536.
Whilst Mr Graeme Wheeler had worked in recruitment for a number of years, the provision of the workforce to the abattoir was his first experience in the meat industry. He first learnt of Q fever in 1997 when W.V. Management took on the Norvic job. He learnt about it by making inquiries of the relevant state organisations and Mr Hayes. He spoke to doctors about appropriate masks.[83] I accept that in 2000 and 2001, as part of W.V. Management’s responsibility, he took an active interest in establishing the vaccination process, as shown by his appointment of Ms Sanford as safety officer in charge of managing the Q fever risk.
[83]T344.
To facilitate the start-up of the enterprise, 40 employees were engaged as the core of the workforce – about seven from Wodonga Rendering with the balance to be employed by W.V. Management on recommendation by Norvic.[84] Any new employees were to be sourced and employed by W.V. Management.[85] Mr Vance Wheeler estimated that in 2000-2001 somewhere between 320 to 350[86] W.V. Management employees and a small number of Wodonga Rendering employees.[87] Mr Wheeler estimated a maximum of 20, whilst Mr Hayes, whose estimate I prefer, given his knowledge of Wodonga Rendering, thought that about seven such employees worked at the abattoir.
[84]T439-440.
[85]T318-320, T446.
[86]T339.
[87]T338.
The industrial relations agreement for the abattoir was drafted by Mr Wheeler and entered into by W.V. Management.[88] All W.V. Management employees were paid by W.V. Management, which also paid the workers compensation premiums.
[88]T474.
W.V. Management invoiced Norvic weekly for, amongst other things, wages (including workers compensation payments), training and medical expenses.[89]
[89]T478-479.
On 1 July 2000, W.V. Management and Norvic entered into the agreement for the supply of labour and management services.[90] (This was a renewal of a previous agreement). The relevant parts of the agreement read as follows (para 3):
[90]Exhibit WVM 6.
“Provision of labour services.
WVM shall provide to Norvic such labour hire and management services as Norvic may from time to time require during the term of this Agreement. The services shall be at a level required by Norvic; in accordance with the skills and the specifications advised by Norvic and in order to satisfy its working rosters subject to seasonal conditions and trends in labour market availability. Without limiting the provision which may be required by Norvic, the labour hire shall include –
(a) such skilled and unskilled workers as necessary;
(b) such advice and service as required from time to time from Norvic in respect of industrial relations, occupational health and safety, investment and funds management and operational services;
(c) such other like or associated services required from time to time.” (Emphasis added.)
(para 12):
“WVM shall, in the provision of the services necessary for the conduct of the facility, include but not be limited to the following –
(a) ensure the provision of appropriate labour hire and such staff as required by Norvic from time to time;
(b) respond to and provide the services strictly in accordance with Norvic’s time schedules;
…
(e) ensure proper induction and training of all employees;
(f) ensure appropriate occupational health and safety training is undertaken and measures are in place;
(g) comply with all statutory obligations required of an employer.”
(Emphasis added)
The relevant parts of Norvic’s obligations under the agreement, were as follows (para 11):
“Norvic shall (sic) in the conduct of the facility shall include but not be limited to the following –
(a) provide to WVM daily, a rolling weekly roster and provide each week a monthly outlook of labour hire requirements required from time to time having regard to seasonal factors affecting the operation of the facility;
(b) document its operational procedures, work instructions and other pertinent documentation and provide the same to WVM;
(c) ensure appropriate and safe workplace conditions including but not limited to plant and equipment, hygiene, meal facilities, parking, environment and security requirements;
(d) ensure so far as it is able compliance with occupation health and safety and environment legislation;
(e) provide appropriately qualified and knowledgeable foremen and overseers;
(f) provide such induction and training as is required for new employees;
(g) organise and supply training to achieve Level 2 and higher competencies in accordance with a schedule determined in consultation with WVM and where necessary engage outside training personnel to deliver the training required;
…
(j) provide appropriate work apparel and equipment;
(k) provide complying first-aid and hygiene facilities;
(l) ensure clean and appropriate change, toilet and meal facilities are available to WVM’s employees.” (Emphasis added.)
It is apparent from these extracts that both companies undertook obligations in relation to occupational health and safety. The obligations were co-extensive and neither had exclusive responsibility for these tasks. This was reflected by the practical implementation of OH&S responsibilities at the abattoir.
W.V. Management employees were engaged in both management, supervisory and floor operations.[91] Within the plant they worked under the overall supervision of Mr Hayes, who was the only Norvic representative regularly at the abattoir.[92] Although Mr Hayes had no direct line of control authority, he was clearly in charge of the abattoir’ operations, as he freely conceded.[93]
[91]T318-321.
[92]T315.
[93]T538.
According to Mr Vance Wheeler, whose account was not challenged, in 2001 each of the four managers responsible to Mr Hayes were employed by Wodonga Rendering.[94] At the supervisory level, there was a mix of Wodonga Rendering and W.V. Management employees. At the floor level, virtually all of the workers were employees of W.V. Management.[95]
[94]Exhibit WVM7, T318.
[95]T324.
The structure of the business can be illustrated by Mr Tinworth’s case. Mr Tinworth was employed in the hanging room and his direct supervisor was a leading hand, a Mr Wally Vodden, an employee of W.V. Management. Mr Vodden, in turn, was responsible to David Gladge, a Wodonga Rendering employee designated as a supervisor. He, in turn, was responsible to another Wodonga Rendering employee, the operations manager, Mr George Bailey, who answered directly to Mr Jon Hayes.[96]
[96]T324-325.
According to both Mr Graeme and Mr Vance Wheeler, appointment to supervisory positions at the abattoir was the sole province of Mr Jon Hayes, who had appointed the original managers and supervisors. Indeed, according to the Wheelers, most decisions about employee deployment required the input of Mr Hayes. W.V. Management pointed specifically to Exhibit P2, the assessment criteria undertaken by Ms Sanford on Mr Tinworth and signed off with comments by Mr Hayes on 11 January 2001.
Both the Wheelers were adamant the manner in which work was carried out and supervised was the responsibility of Norvic, and particularly Mr Hayes.[97] According to Mr Graeme Wheeler, Mr Hayes determined the staffing levels each week after a production meeting held with the supervisors on the Monday morning.[98] After the meeting, Mr Hayes would ring W.V. Management and advise it of the numbers needed. Mr Graeme Wheeler drew a clear distinction between the functions of W.V. Management and Norvic at the operational level. He said Norvic had complete control of the abattoir floor, including “what rules applied, hygiene standards, where people were or were not able to go, who could or couldn’t use knives, all that was managed strictly by the operators on the floor under the control of the supervisors”.[99]
[97]T327.
[98]T447.
[99]T451.
Mr Hayes did not dispute, as I follow his evidence, the degree of control on the workplace exercised by Norvic through him. He controlled the production schedule and the manner in which the works were to be operated. Although the supervisors were Wodonga Rendering employees in the main, they came under his direction and answered to him. Norvic established the system by which employees carried out the work. Part of that system was the MSQA, devised by Mr Hayes[100] providing the work instructions and requirements for each task in the abattoir[101] as well as directions as to personal hygiene.[102] Whilst this system was primarily designed to ensure the meat was handled safely, it also dealt with issues of occupational health and safety. Induction and training in the various aspects of the job was carried out under Norvic’s direction. Promotion and deployment also required authorisation by Mr Hayes or his delegate. An example of this can be seen in Mr Tinworth’s reclassification to Level 2, which had to be signed off by Mr Hayes.[103]
[100]T546.
[101]T546.
[102]WVMI.
[103]Exhibit P2.
In addition to having the usual pyramid system of control at the abattoir (i.e. managers, supervisors, leading hands, meat workers), approximately 10% of the abattoir’ workforce were identified as “core” members.[104] This classification was devised by Mr Hayes and in effect controlled by him.[105] The “core” members were experienced personnel and included supervisors, but also others who assisted supervisors (such as leading hands and experienced meat workers). They were designated by a blue hat and took on leadership roles.[106] They, in addition to supervisors, were responsible for the induction of employees who were to work on the floor. Their members were appointed by a consultative committee, Mr Hayes having the final say on their appointment.[107]
[104]T394, T457.
[105]T527.
[106]T458, T526-528.
[107]T459.
Mr Wheeler also gave evidence that Mr Hayes took “a very, very strong interest in all reclassifications of personnel” on the premises.[108] I did not understand Mr Hayes’ evidence to contradict this proposition. Indeed, he accepted that he could instruct W.V. Management to not promote an employee.[109] Mr Wheeler described Mr Hayes as being aware of everything that was happening on site, including the unavailability of the Q fever vaccine after October 2000. Mr Hayes was, to Mr Wheeler’s observation, always on the abattoir floor when he visited the premises.[110] Indeed, Mr Hayes agreed he was intimately involved in the operations on the floor. He said that on a daily basis, when at the abattoir, “It’s essential that I walk every department, I see every face and I ensure that I am going to be able to maintain the production that was presented for me that day. I do the same again at the end of the day”.[111]
[108]T551.
[109]T572, 573.
[110]T470.
[111]T543.
Mr Hayes accepted that Novic had a responsibility to ensure work on the floor complied with personal protection protocols. This was as much a food hygiene issue as an OH&S requirement. Supervisors or core members would report to him – depending on the severity of the incident.[112] Norvic had a system for dealing with OH&S issues on the floor.[113] The OH&S officer, Mr Brendan Pearce, reported to Mr Hayes and was responsible for safety on the floor.[114]
[112]T550.
[113]T566-568.
[114]T567.
W.V. Management and its delegate Knight Network were also intimately involved in occupational health and safety issues. Knight Network was, essentially, a recruitment agency. It worked closely with W.V. Management – indeed Mr Tinworth had first attended its offices at Lavington before being directed to the abattoir. It also provided a suite of services to W.V. Management. In particular, it provided office employees such as Ms Sanford[115] and Mr Lade, whose task was essentially administrative, being responsible for employee documentation,[116] payroll, interviewing, inductions, pre-medical appointments, first-aid and safety. Although Knight Network was a separate entity, it was, I think, properly described by Mr Vance Wheeler as the agent[117] of W.V. Management. Knight Networks’ efforts were directed towards supporting the W.V. Management enterprise at the abattoir. There was a close working relationship between its employees and the W.V. Management employees.
[115]T330.
[116]T367-368.
[117]T344.
W.V. Management arranged the recruitment of the workforce. It carried out all pre-employment checks, including medical clearances.[118] As Ms Sanford stated, it was her responsibility to conduct the initial induction of the employees. She administered the detailed questionnaire relating to Q fever[119] and supplied the pre-medical documentation provided to employees relating to the disease.[120] She arranged for the skin tests to be carried out and if the skin test was negative to Q fever, for Dr Sartori to perform the vaccination. Mr Graeme Wheeler devoted considerable energy to keeping himself abreast of medical matters and, particularly, endeavouring to obtain additional supplies of the vaccine when it was unprocurable.[121]
[118]T523.
[119]WVM3.
[120]Exhibit WVM2.
[121]E.g. Exhibit N4, letter to Mr Bob Cameron, Minister for WorkCover, T456.
Ms Sanford (employed by Knight Network but, in effect, carrying out her duties on behalf of W.V. Management) had commenced work at the abattoir as a casual first-aid/safety officer on 25 January 1999.[122] Her duties were set out in several documents, but included the following in a document which described her as “a safety officer”:
[122]Exhibit N2.
“Management of all relevant medical matters and appropriate confidential management of all medical records for employment at the Kelly Street site.
As an automatic member and resource of the OH & S Committee, participate at OH & S all meetings and prepared, distribute and maintain minutes of the meetings.
Manage and coordinate all pre-employment and employment medicals, Q fever tests and inoculations, hearing tests and all other relevant medical testing to ensure all personnel meet required medical, hygiene and other standards applicable to that person’s employment at the site.
Assist in the development, implementation and maintenance of necessary OH & S training for the Norvic Foods site.
In consultation with W.V. Management and/or Norvic Foods Management, provide training to employees where deemed necessary and within your skills and competencies.
Assist in the development, implementation and maintenance of OH & S standards, systems, programs and procedures for the Norvic Foods site.”[123]
[123]Exhibit N3.
It was noted on the duty statement of 15 June 2000 that “the first-aid/safety officer reports directly to the operations management (Knight Network) on all functional and policy issues. On day-to-day operational issues at the Kelly Street site, the first-aid/safety officer liaises with our client’s management team”.[124]
[124]Exhibit N3.
Ms Sanford gave evidence that in her role as safety officer, she, like Mr Lade, would sometimes go to the kill floor[125] and, where necessary, speak to workers in relation to the wearing of masks. Indeed, she said she had spoken to Mr Tinworth about wearing a mask.[126] Mr Graeme Wheeler would also instruct workers to wear masks where he observed the masks not being properly worn.[127]
[125]T390.
[126]T387.
[127]T470.
Safety meetings were conducted at the site approximately once a month and were arranged by W.V. Management.[128] The meetings were attended by Wodonga Rendering and W.V. Management employees. Ms Sanford and Mr Hayes would also attend. I accept Ms Sanford’s evidence that Mr Hayes did not run the meetings which were conducted by supervisors and core members.[129]
[128]T541.
[129]T395.
Ms Sanford explained, and this did not seem to be disputed, there were a number of persons responsible for the task of enforcing the use of masks. She and Mr Lade, when on the abattoir’ floor, would speak to employees who were incorrectly wearing a mask. She also said that supervisors and core members (who would be employed by Wodonga Rendering and/or W.V. Management – but also subject to the direction of Mr Hayes) would enforce this requirement. I do not accept Mr Wheeler’s statement that Ms Sanford’s duties were subservient to Norvic in respect of what was happening on the site. That was not her evidence, and it is inconsistent with her written duties statement, and the role undertaken by W.V. Management at the abattoir in relation to Q fever.
I have reached the following conclusions relevant to the apportionment of liability:
(a) W.V. Management supplied the workforce to Norvic, primarily at floor level, but with some employees engaged at the management level.
(b) Both W.V. Management and Norvic had, pursuant to the agreement, obligations in respect of occupational health and safety and each carried out particular tasks relevant to those obligations.
(c) Norvic, through Mr Hayes, was the effective controller of the system of work at the abattoir; he played a hands-on role in relation to the development of the system and its implementation, appointments to particular supervisory positions, membership of the core group and deployment and redeployment of workers at the abattoir. It exercised this control through Mr Hayes in the form of the production meetings, inductions and his general authority within the works.
(d) However, Norvic played a more limited role in relation to Q fever issues. Whilst Mr Hayes could direct supervisors to enforce the wearing of masks, so could W.V. Management, which was responsible for the medical checks for Q fever as well as vaccinations.
(e) Ms Sanford and Mr Lade, although employed by Knight Network, effectively worked as part of W.V. Management and carried out a wide range of administrative tasks including dealing with occupational health and safety issues.
(f) W.V. Management was actively involved in taking steps relevant to the exposure of its employees to Q fever. This was part of its OH&S responsibility, as was the pre-employment medical. The initial instructions for the wearing of masks, the skin tests and the vaccination are all examples of the role undertaken by W.V. Management. This was consistent with the agreement and Ms Sanford’s role as safety officer, set out in her duties statement.
(g) W.V. Management had the power to discipline and/or dismiss employees. It exercised control over the wearing of masks. I also accept that Mr Hayes wielded considerable influence on the floor and could effectively, discipline workers through W.V. Management.
(h) There was no appreciable difference in the knowledge of the risks posed by Q fever as between W.V. Management and Norvic. Mr Hayes had been in the industry for a long time and knew of the risks posed by Q fever and the methods to reduce such risks and by 2000, so did Mr Wheeler. The key factors of wearing a mask to reduce exposure and vaccinating an employee as soon as practicable were known to both.
Analysis
W.V. Management, as Mr Tinworth’s employer, “possessed an independent personal obligation to take reasonable steps to ensure a safe system of work was established and maintained for its employees”.[130] In Andar, the High Court said of the obligation of an employer where the tasks carried out by the employee were regular:
“[the employer] was obliged to take reasonable steps to ensure that the [work activity] was carried out in a safe manner. That obligation in turn required [the employer] to develop, and maintain, a methodology or system which would achieve that result”.[131]
[130]Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 [62].
[131]Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424, [54].
In Czatyrko v Edith Cowan University,[132] the High Court said:
“If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness or inadvertence or carelessness, particularly in a case of repetitive work.” (Emphasis added.)
[132](2005) 79 ALJR 839 [12].
This obligation remains where an employee is outsourced to an operation conducted by a third party. W.V. Management was required to take reasonable steps to ensure occupational health and safety issues relevant to its employees were dealt with effectively. That obligation required it to develop and maintain a system which would ensure the work in the hanging room was carried out by its employees in a safe fashion, including minimizing the risk of exposure to the Q fever virus. Its duty extended to enforcing such a system.[133]
[133]McLean v Tedman (1984) 155 CLR 306, 312.
Recently, in Leighton Contractors Pty Ltd v Fox,[134] the High Court said, in relation to the differing obligations of an employer and a principal contractor (in that case in the context of in the construction industry):
“It is common in the construction industry for the principal contractor to arrange for the works to be carried out by subcontractors rather than by employing its own labour force. Among the advantages that accrue to the principal contractor in adopting this model for its undertaking is that it does not incur the obligations that the law imposes on employers. An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.” (Emphasis added.)
[134](2009) HCA 35 [21].
W.V. Management endeavoured to equate the duty owed by Norvic to that owed by a host employer which engages a labour hire firm to provide services at the host employer’s workplace. The nature of the respective duties was explained by the Court of Appeal in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority[135] as follows:
“This appeal, accordingly, raises the important issue of the relative responsibilities for workplace safety of a labour hire supplier on the one hand and a host employer on the other. It is well established that a common law duty of care is owed to an employee such as Ms Wallace both by the labour hire firm (in this case D.M. Walsh) which employs her, and by the host employer (in this case Hazeldene) which operates the workplace at which she carries out her duties. The same position obtains under the Occupational Health and Safety Act 2004, with both the labour hire firm and the host employer having duties to ensure a safe working environment for the labour hire employee.
At common law, as under that Act, the question of greatest importance concerns the content of the labour hire employer's duty of care. The critical difference between the labour hire firm and the host employer, of course, is that the host controls the workplace and the conduct of the operations which take place there during the work day.
It is nevertheless clear from the case law that the labour hire firm has a duty to take reasonable care to ensure a number of things. These include taking reasonable care to ensure that the host workplace is safe, that the host employer has in place appropriate safety systems, that the task for which the labour hire employee is being supplied is clearly defined and that the labour hire employee is properly trained for that task - 5#5. The grey area relevantly concerns the extent to which it is (to adopt the language of the Occupational Health and Safety Act 2004) “reasonably practicable” for a labour hire firm to monitor and supervise what goes on in the host workplace while the employee is working there.”
[135][2005] VSCA 185 [9]-[11].
However, the facts of this case are not typical of an employer/labour hire arrangement in which, generally speaking, the labour hire employee is subsumed into the host employer’s workforce and supervision, control, direction, OH&S, risk management all become the responsibility of the host employer.[136] In this case, W.V. Management had an active role in occupational health and safety and the management of the Q fever risk. To some extent in this context, the obligation of Norvic is perhaps closer to that of an entrepreneur engaging independent contractors, and their employees, to carry out work on its behalf. This principle was explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd:[137]
“An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.” (Emphasis added.)
[136]See for example Fennell v Supervision & Engineering Services Holdings (1988) 47 SASR 6, 7, 13.
[137](1986) 160 CLR 16, 47-48, cited with approval by the High Court in Leighton Contractors Pty Ltd v Fox (2009) HCA 35 [20].
I have identified the primary failings in relation to Mr Tinworth’s safety as being:
· The failure to strictly enforce the practice of wearing a mask whilst Mr Tinworth remained free of Q fever antibodies.
· The failure to devise a system by which non-vaccinated employees could be readily identified.
· The failure to emphasise, in particular to non-vaccinated employees regularly and forcefully after October 2000, the need to wear a mask and strictly enforce that requirement by warnings, reprimands or even standing workers down.
Each of the defendants had a responsibility to do more than simply rely upon the instructions given at the initial pre-employment interview and the odd warning from Ms Sanford or, perhaps a supervisor or QA. I have determined that W.V. Management should bear the majority of the responsibility for Mr Tinworth’s injuries and damage for the following reasons.
(a) As the employer of Mr Tinworth, it has a specific and unequivocal obligation to exercise reasonable care in relation to matters of occupational health and safety. That obligation, as the High Court has recently pointed out in Fox, is more stringent than that owed by Norvic to Mr Tinworth. I accept the argument of Norvic that W.V. Management failed, as Mr Tinworth’s employer, to introduce appropriate disciplinary measures for a failure to wear a mask, particularly after October 2001. It was an obligation consistent with its legal duty “to enforce” the system of wearing a mask.[138]
[138]McLean v Tedman (1984) 155 CLR 306.
(b) W.V. Management was in a position to exercise control over Mr Tinworth. Ms Sanford, Mr Lade and Mr Graeme Wheeler (when attending the abattoir) were all in a position to exercise authority over W.V. Management employees working at Norvic.
(c) W.V. Management knew there was a significant risk to health posed by the contraction of the Q fever virus. Mr Graeme Wheeler was acutely conscious of the need to obtain the vaccine. Whilst in some cases the disease may be relatively benign, it was aware, as its own documentation demonstrated,[139] that there could be significant long-term adverse effects to the heart and liver. This knowledge should have alerted it to the necessity to take every reasonable precaution to prevent its employees’ contracting the disease, particularly those who were new to the job and had not been vaccinated.
[139]Exhibit WVM2.
(d) I have already noted that the agreement imposed obligations on both companies in relation to occupational health and safety. However, it is clear that the implementation of OH&S practices in relation to Q fever was primarily the responsibility of W.V. Management. Ms Sanford, who was, in effect, engaged by W.V. Management, was responsible for safety and first-aid. Part of her role dealt specifically with questions of Q fever and the wearing of masks. Whilst it may be that other persons (such as supervisors or core members also played a role, her position was pivotal to the reduction of the Q fever risk. In this regard, it was her obligation, once she became aware of the lack of vaccine, to take all reasonable steps to make sure those employees who did not have Q fever antibodies were not exposed to the virus. On her own account, nothing additional was done other than rely upon the usual practice, which I have concluded was ineffectual.
(e) The agreement did not seek to delegate W.V. Management’s responsibility for occupational health and safety to Norvic or, for that matter, provide for an indemnity from Norvic if W.V. Management was found liable for any breach of its obligations to Mr Tinworth.[140] To the contrary, both had co-existing responsibilities.
[140]Such a delegation or indemnity would have been no answer to Mr Tinworth’s claim, but would be of significance in any contribution or indemnity proceedings brought by W.V. Management against Norvic.
(f) This is not a case (like that in Hazeldene) in which Mr Tinworth was subsumed into the Norvic workforce. To the contrary, the workforce was essentially made up of W.V. Management employees. Given the number of its employees and its own presence at the abattoir, it behoved W.V. Management to be proactive in matters of occupational health and safety relevant to its employees.
(g) Safety meetings were set up by W.V. Management and questions of safety, such as that of Q fever, could be the subject of discussion at those meetings. Ms Sanford’s evidence is that Norvic, although present at those meetings, through Mr Hayes, did not play an active role. At the safety meetings held after October 2001, W.V. Management should have, for the reasons I have set out, placed greater emphasis on the risk posed to the Q fever antibody-free employees and taken steps to minimise that risk.
(h) While Mr Graeme Wheeler is correct in his contention that the real controlling force at the abattoir was Mr Hayes, insofar as the actual processing operations were concerned, I do not accept, for the reasons I have set out, that this was exclusively the case in relation to occupational health and safety considerations, particularly in dealing with Q fever. As the employer of a large workforce, it was incumbent upon W.V. Management to discharge its duty in relation to matters of occupational health and safety. Where there was a failing on this issue, it was the primary responsibility, at the first instance, of W.V. Management. I repeat my earlier observation that the nature of the relationship between W.V. Management and Norvic was considerably different to that in a usual host employer situation, particularly in the context of Q fever infection.
The matters I have enumerated relevant to W.V. Management need to be balanced against the acts or omissions on the part of Norvic, which I identify as follows:
(a) Norvic, through Mr Hayes, as the entrepreneur responsible for the abattoir, had control, at least pragmatically, over the workforce and the system of work. The system of work, including matters of health and safety, had been devised by Mr Hayes. That role of course intersected at times with W.V. Management’s involvement in such matters.
(b) Although not the direct employer of Mr Tinworth, Norvic had sufficient influence, through Mr Hayes, to give directions as to occupational health and safety matters, such as the wearing of masks and disciplinary action to be taken in the event of employees, such as Mr Tinworth, not wearing the masks. Mr Hayes was also in a position to direct supervisors to enforce the wearing of masks.
(c) Mr Hayes’ experience in the meat industry meant that Norvic, like W.V. Management, possessed sufficient knowledge of the risks posed by Q fever to be aware of the importance of minimising the risk of such exposure.
(d) Even though W.V. Management took on certain occupational health and safety obligations of the enterprise, the agreement also required Norvic to play its part in OH&S matters. It failed to do so, particularly once it was known the vaccine was unavailable.
(e) Although not the prime mover, Mr Hayes’ participation in safety committee meetings meant he, in addition to his role as the managing director of Norvic, was able to have a direct input into safety matters at meetings, including how to deal with the risk of Q fever.
W.V. Management also submitted there was a further obligation on the part of Norvic as the operator of the site both under Part IIA of the Wrongs Act and under the common law. This argument, I think, is misconceived. The contraction of the disease had nothing to do with the “state of the premises” as defined in the Wrongs Act. It was the exposure to a virus carried by an animal which caused the disease. Further, its reliance on Burnie Port Authority v General Jones Pty Ltd[141] is misplaced. This case is not about the introduction of a dangerous substance onto premises to conduct a dangerous activity. It is simply a case about the respective duties of the defendants and their breach by the defendants in the context of the operation of the abattoir.
[141](1994) 179 CLR 520, 550-554.
In summary I cannot discern any significant differentiating factor in relation to the question of causal potency. If each of the defendants had done more in terms of enforcing the wearing of masks, the injuries sustained by Mr Tinworth would probably have been averted. Rather, the question is the relevant degree of culpability. I have concluded culpability should lie, for the reasons I have set out, to a greater degree, with W.V. Management. In particular, I have taken into account its responsibility as Mr Tinworth’s employer and its role in controlling the Q fever risk faced by its employees. It should bear 60% of the apportionment of liability, and Norvic 40%.
Conclusion
I apportion liability for Mr Tinworth’s damages at 60% against W.V. Management and 40% against Norvic. Subject to hearing from the parties, I propose to make orders consistent with that apportionment.
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