Apportionment of liability
69The apportionment between the defendants must now be determined in accordance with the Civil Liability Act 2002 save for its exemption pursuant to the operation of the Workers Compensation Act 1987.
70The civil liability of an employer for injury to a worker gives rise to an award of damages under Part 5 Division 3 of the Workers Compensation Act, s 151E(1). By virtue of s 151G, damages against an employer are limited to damages for past and future economic loss. As such, the Civil Liability Act does not apply: s 3B(1)(f). However, there is no exclusion of the application of the Civil Liability Act to the claim against O'Donnell Griffin.
71The plaintiff seeks damages from both defendants under s 151Z(2) of the Workers Compensation Act thus the apportionment of damages in relation to two defendants has to be determined. An assessment of the relative contributions of the defendants requires the approach set out in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at [10] to be adopted. The Court must make:
"(a) comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage: ... . It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
72As to contribution, the plaintiff submitted that Wagga Mini Mix is at best 10 per cent liable for any injuries suffered by the plaintiff. O'Donnell Griffin submitted that on the evidence, it appeared that Wagga Mini Mix had not inspected the site and on that basis, a contribution of only 10 per cent was inappropriate.
73O'Donnell Griffin submitted that an apportionment of 60 to 70 per cent for a breach of the duty of care to the plaintiff against it was appropriate, with a corresponding finding of 30 to 40 per cent against Wagga Mini Mix as the plaintiff's employer due to the contractual arrangements that were in place and the events that occurred. Wagga Mini Mix submitted that their share of the liability was at most 20 per cent on the basis that the plaintiff had gone on site to share a task that O'Donnell Griffin was already doing, it was work that they had control over and they gave the plaintiff instructions for the job. If Wagga Mini Mix had done an inspection it says that it would not have been able to see the metal post that was hidden by the pile of ballast and therefore an inspection would have made no difference to the outcome on the day of the accident. I disagree with this proposition because had it carried out an inspection it would have seen the metal posts lying around and been aware that they would pose a dangerous hazard if they were in the piles of ballast.
74There are a number of authorities that have dealt with the situation where an employee has been injured while working on a site to which they have been sent by their employer. I will briefly refer to DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, Cole v DIB Group t/as DIB Group Pty Ltd t/as Hill & Co & Anor [2008] NSWDC 201, TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47, Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203, Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174, Bourke v Victorian WorkCover Authority [1998] VSCA 24, Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74, and Estate of the Late M T Mutton by its Executors & R W Mutton t/as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340.
75In DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, a truck driver was making a delivery of fuel to the premises of DIB Group where he had made previous deliveries on numerous occasions. On this occasion, the driver stepped on a pit cover which was faulty. The pit cover gave way and he suffered injuries. The Court of Appeal found that a site inspection would not have, on the probabilities, revealed the risk of the unstable pit cover. To achieve that, it would have been necessary to take the further step of questioning staff of the appellant as to their knowledge of risks arising from the use of the depot. Whether such questioning would have revealed the risk was a matter for speculation. The trial judge had found that the employer, Finemores, had provided an induction to their drivers and a trainer had visited the site and was required to report on any obvious risks (Cole v DIB Group t/as DIB Group Pty Ltd t/as Hill & Co & Anor [2008] NSWDC 201 at [12] - [17]). The Court upheld the finding of the trial judge that the employer was in breach of the only duty said to arise, but that the duty, if fulfilled, would not have revealed the risk, stating at [66]:
"To the extent that the employer did have a duty to its employee, whilst working on the premises of the appellant, its case in respect of breach was limited to the failure to carry out a site inspection or to warn the drivers not to step on pit covers. As a factual matter, liability of the employer was not established."
76In TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47, a worker whose services had been hired out by his employer, Manpower Services (Australia) Pty Ltd, to TNT Australia was injured as a result of a faulty pallet jack whilst working at TNT's premises. It was held by Mason P (with whom Davies and Foster AJJA agreed) that an employer that hires out its employees into the control of another person without the transfer of employment to such person, retains an employer's non-delegable duty of care even though it is no more than an employment agency/bureau or "body hire company". At [67] Mason P stated:
"In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees."
77In TNT Australia Pty Ltd v Christie & Ors, liability was apportioned on the basis that TNT Australia pay 75 per cent of the damages awarded to the employee as it had day-to-day conduct and care of the system of work and gave specific instructions to the employee as to the work to be done, the hours of work and the nature of that work. Manpower Services was required to pay 25 per cent on the basis that as the employer, it had a non-delegable duty of care.
78In Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203, a labour hire organisation sent an employee to work at a client's warehouse. It had done nothing to ensure safe working conditions at the warehouse, failing to even visit the work site to see what the working conditions were. The employee was injured because a ladder on which he was standing was not properly secured. Giles JA (with whom Beazley and McColl JJA agreed) upheld the trial judge's finding that the injury was caused by a failure in the system of work, stating at [48]:
"The failure was in the system of work, which did not properly attend to securing the ladder, and it was a breach of the defendant's non-delegable duty of care; the injury was in law caused by the negligence. There was also a direct breach by the defendant in its failure to instruct the plaintiff as to the use of ladders, negligence which may also in law have caused the injury in that, properly instructed, it may be that the plaintiff would not have assumed that Mr Madden was holding the ladder and would have gone up the ladder only when it was secured; but it is not necessary to rest the defendant's liability on that breach."
79As the company to which the employee had been hired was in liquidation at the time of the trial, proceedings were discontinued against it and the labour hire company was held to be liable in damages to the plaintiff employee.
80Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174 is another labour hire case where the plaintiff was injured while working on a construction site. He was employed by Dee Why Enterprises Pty Ltd which contracted his services to a formwork subcontractor, Dalma Formwork (Australia) Pty Ltd. Dalma had appointed a supervisor, Mr Uremovic, whose services were also supplied by Dee Why Enterprises. The supervisor was responsible for ensuring that Dalma carried out its contractual obligations under the formwork subcontract Dalma had with the overall project manager of the site, Bovis Lend Lease Pty Ltd. Basten JA (with whom Beazley and Ipp JJA agreed) held at [75] that the supervisor's knowledge should be attributed to Dee Why because he was supplied by Dee Why to carry out the function:
"[I]t is not clear what specific steps could reasonably have been taken by Dee Why. No doubt one might infer that a senior manager from Dee Why might have inspected the site with Mr Uremovic during the two or three weeks between the time it took over the employment of the men and the date of the accident. Had that step been taken, it might have been reasonable to expect that the penetration, and the potential risk it created, might have been identified. By contrast, Dalma and Bovis were in control of the site on a daily basis and must between them bear the bulk of the responsibility. In the circumstances an apportionment of 20% liability to the labour hire company is appropriate."
81The question of whether an employer's non-delegable duty is discharged where an employee is working on a third party's premises depends on a number of factors. As was stated in Bourke v Victorian WorkCover Authority [1998] VSCA 24 at [42 - 43] per Winneke P (Brooking and Buchanan JJA agreeing):
"True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, that occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he has breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v. Austin Lifts Ltd. [1959] 1 WLR 100:
'Notwithstanding what was said in Taylor v. Sims & Sims (167 LT 414), it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an over-riding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work ...; and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable depends, of course, on the circumstances.' (See also Wilson v. Tyneside Window Cleaning Co. [1958] 2 QB at 121-2 per Pearce, LJ; Sinclair v. William Arnott Pty. Ltd. (1963) 64 SR (NSW) 88 at 9102 per Walsh, J.)
One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors."
82In Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74, the remoteness of the third party's premises was a factor in determining the employer's liability. The plaintiff, an employee of a labour hire company, was injured after falling from his bunk in the sleeping quarters of a Bass Strait oil platform operated by Esso. The trial judge apportioned 80 per cent liability to Esso and 20 per cent to the employer, which was upheld by the Victorian Court of Appeal. Winneke P (Tadgell and Chernov JJA agreeing) held at [21] that the trial judge had not erred in concluding that Esso was primarily responsible for the plaintiff's injury. Whilst the employer had the right to inspect the premises and make recommendations if it believed the safety of the worker was at risk, Esso was the occupier and person in control of the premises where the injury occurred and the premises were not easily accessible to the employer day to day for inspection or observation of defects:
"[Whilst] ...both the occupier and the employer were in breach of their respective duties to the worker, it is equally clear that they point unerringly to the conclusion to which his Honour came; that the person who had the immediate control of the rig, and the facilities within it, had by far the greater opportunity to rectify the defects which existed."
83The fact that an injury to a worker occurred on premises not controlled by the employer was an important factor in Estate of the Late M T Mutton by its Executors & R W Mutton t/as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340. In that case, a truck driver employed by Howard Haulage to deliver grain, fertilizer and gravel up and down the eastern half of Australia was seriously injured when offloading grain on a farm owned by Mutton Bros. Ipp JA (with whom Hodgson JA agreed) stated that:
"146 Devising and implementing a safe system of work would ordinarily not be an overly difficult task where the worker is working in the employer's own premises. The situation is different where the employee delivers materials over vast distances to several different farms where workplaces, working conditions and equipment differ from farm to farm and where changes can be made at any time by the farmers concerned. In the latter situation, the employer has no real control over the circumstances in which each delivery is made. Due regard must be had to this absence of control when determining what amounts to the taking of reasonable care to avoid exposing employees to unnecessary risks of injury, and what amounts to a safe system of work.
147 In the present case, it was not reasonably possible for the respondent to have devised and implemented a safe system of work dealing with the specific circumstances involving the appellant's auger and the particular circumstances that obtained on the appellant's farm. The respondent was not aware of those circumstances and, in my view, considerations of reasonableness did not require it to be aware of them. Additionally, the respondent had no control over the auger and was not in a position to take appropriate measures to guard it. That is not to say, of course, that the respondent did not owe Mr Kelman a duty of care in the general terms expressed in Czatyrko v Edith Cowan University [[2005] HCA 14] at 842 to 843. The means by which the respondent was required to discharge that duty, however, must be determined by the particular circumstances."
84In Howard Haulage, Spigelman CJ in a dissenting judgment, agreed that it was important that the accident did not occur on a property controlled by the employer, observing at [8] that: "It is of significance that the work in this case, unlike the Edith Cowan University case, was conducted on premises and, specifically, with equipment, provided by a third party. This is a relevant, but not determinative, consideration on the issue of breach."
85On the question of apportionment of blame between joint tort-feasors for the injury of a worker, Winneke P in Esso said at [21]:
"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. As has been repeatedly said in this connection:
'A finding on a question of apportionment is a finding upon a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.' (British Fame (Owners) v Macgregor (Owners) [1943] A.C. 197 at 201 per Lord Wright.)"
86Wagga Mini Mix had not done an assessment of the work site that the plaintiff and his team were working on. In TNT Australia Pty Ltd v Christie, the extent of the employer's duty was emphasised, particularly where it chose to delegate its responsibility to the company to whom it hired its employees. In that case, the employer was making weekly visits to the site where the employee was working and it was found to have a 25 per cent responsibility. Wagga Mini Mix contracted its workers to work at multiple sites along the Sydney to Melbourne rail corridor.
87As was discussed in Esso, the remoteness and size of the work site is a factor in consideration of how easily accessible it was for Wagga Mini Mix to make regular inspections or identification of hazards. However, it should be noted that the distance between the employer's premises in Wagga and the work site at Harden where the accident occurred, and the distance between the plaintiff's home in Tumut and the work site are both approximately 110 kilometres. The plaintiff was making the approximately 220 kilometres round trip daily and it is not unreasonable to expect that his employer would have made regular inspections of the sites to which it was sending its employees to work.
88While O'Donnell Griffin had day-to-day control of the site and supervision of the plaintiff, Wagga Mini Mix did not conduct any inspection or assessment of the system of work or work site where it was sending its employees or send a spotter/co-employee on the day of the accident. Accordingly, I apportion liability to Wagga Mini Mix of 25 per cent and 75 per cent to O'Donnell Griffin.