HIS HONOUR: There are other aspects to it as well, I understand, that relate to the speed at which you had to work, the availability of man power, the availability of expert manpower, or the production of a system that, as a combination of those matters, may have reduced the risk or eliminated it entirely on one view. And there are statutory counts to which I haven't had particular regard concerning a place at which you are required to stand or work and access to your work and the need for those two things in all respects to be safe, to paraphrase the statutory count."
The liability experts
Dr B N Emerson
91 Mr Glover tendered Dr Emerson's report dated 17 November 2003. He inspected the defendant's premises on 21 October 2003. His report focussed primarily on the significance of slurry causing the surface of the channels to become slippery. It was his conclusion that the underfoot surface upon which Mr Glover was standing when he had his accident failed to meet minimum requirements and that it caused him to slip. He said it was "clear . . . that a hazard of a slippery underfoot surface existed at material times and a person stepping onto such a surface is in my opinion at significant and foreseeable risk of injury". Dr Emerson was not cross-examined.
Mr R Ward
92 Mr Glover tendered Mr Ward's reports dated 24 March 2004, 4 April 2004 and 30 May 2009. Mr Ward was of the opinion that the defendant did not provide safe working conditions or safe methods of working in that they failed to meet the requirements of the Shops and Industries Act 1962 or of the Regulations under the Occupational Health and Safety Act 1983, ensuring safe working conditions or safe methods of working, because there were floor areas that were not drained clear and were therefore slippery. Mr Ward was not cross-examined.
Mr Dohrmann
93 Although Mr Dohrmann was referred to in discussions about whether or not he would be required for cross-examination by Mr Glover, the issue wholly receded in significance, as the defendant did not ultimately tender Mr Dohrmann's report.
The defendant's submissions - liability
94 The defendant's written submissions were divided into three categories - common law negligence, breach of statutory duty and contributory negligence. The defendant's submissions with respect to the first category were to the following effect.
95 Mr Glover was recruited from overseas to start up the defendant's factory. He was experienced in the concrete industry and was experienced in the use of slide formers. The directors of the defendant on the contrary had little or no such experience and relied upon Mr Glover to commission and run the factory. Mr Glover had the power to hire and fire staff and was responsible, presumably in the practical sense, for the safe operation of the factory.
96 Mr Glover knew that the process of cutting beams that were resting on the beds used a saw that was water-cooled and that the operation created slurry that became deposited on the channel between the two production beds. Mr Glover had a practice of keeping the factory clean and this included a worker pushing a broom down the channel on a regular basis to remove the accumulated water and slurry. Mr Glover's accident happened on a Sunday when the defendant had to make do with a limited workforce, including Mr Glover and his wife. Mr Glover attempted to obtain other workers for that day but was unable to do so, or was at least unable to get workers who would work past about lunchtime on Sunday.
97 Mr Glover and Scott Thompson were engaged in operating the slide former. Mr Thompson operated the machine and Mr Glover was de-dagging the formed beams and pulling up the roll of plastic over them. As well, Mr Glover was carrying out other duties including assisting Mr Clay with the batching operation and testing the concrete. Mrs Glover was at the far end of the factory cutting beams when the accident happened. She had, however, earlier been down at Mr Glover's end of the factory cutting beams and that operation had created the slurry that had settled on the channel.
98 Mrs Glover had to stand on the channel and on the slurry to use the saw. She had no problems doing so as she took care. Further, on her version, the channel could not be swept while production was occurring on an adjacent bed. The slurry was thus a usual feature of the production process, known to all who worked in the factory, including Mr Glover.
99 Mr Glover answered to Mr Saddington and the board. However, on the day in question Mr Glover was said to be "in charge" of safety in the factory. He knew or ought to have known that slurry had been created by the beam cutting operation and that it would need to be broomed away or that care would have to be taken until it was. The defendant contended that it was simply a matter for Mr Glover to direct one of the workers to spend a very short time to broom the slurry away. He did not do this. There were two other workers to whom that task could have been assigned.
100 The defendant submitted in such circumstances that it had not been negligent. It left the safety in the factory to its most experienced employee, who had the power to direct people as to how they performed their duties. Even though there were time pressures to finish the job that day, it could not be suggested that it was impossible to find someone to do the sweeping, which would only have taken a short time.
101 With respect to the second category the defendant submitted that none of the statutory provisions upon which Mr Glover purported to rely provided him with a cause of action. For example, s 22(1)(a) of the Occupational Health and Safety Act provides that nothing in Division 1 of that Act shall be construed as conferring a right of action in any civil proceedings in respect of a contravention of any provision of the Division, which includes s 15 upon which Mr Glover sought to rely.
102 Mr Glover also sought to rely upon certain provisions of the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990. The regulation is a regulation of the type referred to in s 22(2) of the Act, so that a breach of such a regulation does not give rise to a civil action.
103 He also sought to rely upon s 19, s 22 and s 34 of the Shops and Industries Act. The defendant submitted that s 19(1) had to do with cleaning factories generally, rather than the imposition of a specific requirement to remove any waste product from an industrial process while it is being carried on.
104 Subsections 22(2)(a) and (b) provide that where a wet process is carried on in a factory, the floor of every part of the factory where persons are employed shall be grated and drained so that liquids can easily run off. The defendant contended that using the saw to cut beams involved water-cooling of the blade, which is a wet process. That process was carried on on the spare casting bed, not on the channel between casting beds. Water then flowed from that place of work onto the adjacent channel. That wet process was carried on by people standing on the factory floor itself, rather than on the channel, to do the cutting. Section 22(2) requires drainage on the floor of that part of the factory where persons are employed in such process. That would require drainage on the factory floor, rather than in or for the channel. In any event, the defendant contended that Mr Glover was neither engaged in a wet process nor standing on the factory floor when he slipped so that s 22 has no application. Water that runs from the area where a wet process is carried out onto some other part of the factory floor, does not result in a breach of s 22(2): see Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 at 192E.
105 Section 22(4) of the Act requires that all floors be maintained in good order, condition and repair. In this case there is no suggestion that the channel was a "floor", or that it was otherwise than in good order, condition and repair.
106 Section 34 of the Act requires all floors to be of sound construction and properly maintained. The defendant submitted that the section had in terms nothing at all to do with the circumstances of this case. It contended that a failure to sweep slurry off an otherwise unexceptionable floor was not a breach of a section predicated upon notions of sound construction and proper maintenance of that floor.
107 With respect to the third category, the defendant emphasised that Mr Glover was the experienced person in the factory on the day that he was injured and had the power to direct how work was to be done. It contended that he should have been aware that the beam cutting operation had created slurry and that it had not been removed. Furthermore, when Mr Glover stood in the channel to do the de-dagging and the rolling of the plastic, he would have been standing in the slurry, which could not have escaped his notice.
108 The defendant submitted that I should find that Mr Glover was not, but should have been, wearing safety boots, rather than trainers as the evidence of Mrs Glover taken alone would suggest he was wearing. As a matter going to the question of any contribution in fact to the occurrence of the damage Mr Glover may have sustained because he was not wearing safety boots, Mrs Glover gave evidence that she had never experienced any problems working in slurry if such boots were worn.
109 With the exception of Godden, the defendant did not refer me to any authority in aid of any of its submissions in any of these categories.
Mr Glover's submissions - liability
110 Mr Glover's submissions emphasised the inadequate staffing levels as being at the heart of his case on liability. In short, Mr Glover was required to attend to an urgent order that necessitated working on a Sunday, but in circumstances where no workers who were available that day were prepared to work for the whole of the day. He submitted that Mr Higgins, for one, was well aware that he had directed that urgent work be done when he knew full well that insufficient staff were available, particularly in circumstances where a high percentage of the work involved re-cutting of beams and hence the production of slurry. Mr Thompson gave evidence that the slurry was not always swept out of the channels because there were not always enough workers to do it. The day that Mr Glover was injured was such a day. Mr Glover had asked Mr Saddington to employ extra labour on a number of occasions, but his requests were denied. The proposed seven-day roster system devised by Mr Glover and briefly implemented by the defendant was not maintained. Furthermore, an end product of this attitude was that there was a high turnover of workers and retention of suitably experienced workers became a problem.
111 All of the experts agreed that slurry was slippery and that it was dangerous to walk on. In these circumstances Mr Glover submitted that the casting bed gullies or channels should have been drained or swept so as to obviate the possibility that workers, including him, would be required to work on or walk over slurry at any time.
112 Mr Glover conceded that the provisions of the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990 referred to by the defendant did not give rise to an independent cause of action. However, he maintained a submission limited to the proposition that establishment of the criteria with which the various sections deal amounted to prima facie evidence of negligence on the part of the defendant, which Mr Glover could call in aid in his case to establish a breach of his employer's duty at common law. The proposition is uncontroversial in general terms. He submitted that s 22(2)(a) of the Shops and Industries Act was "clearly breached".
113 With respect to the issue of contributory negligence, Mr Glover's written submissions anticipated a wider series of contentions by the defendant than were ultimately made. Mr Glover accepted that he was the most experienced person in the factory and the person with a responsibility to direct how the work was to be done. He also acknowledged that he should have been aware that cutting beams created slurry and that the slurry had not been removed.
114 Mr Glover contended, however, that his loyalty and hard work could not be prayed in aid by the defendant as in some way going to the establishment of contributory negligence. Mr Glover contended that the accident occurred because of his own high work ethic and the circumstances, to which he commendably responded, requiring the factory to work on a Sunday to meet an urgent order. Mr Glover worked with inadequate staff and under less than ideal conditions. If he were inadvertent to a risk that confronted him in such circumstances, it could not amount to contributory negligence. Mr Glover emphasised that he was faced with the need to complete a job urgently and that it was both necessary and unavoidable that he work in an area that was slippery and therefore unsafe. It was not reasonable to expect him to ameliorate or avoid the particular risk himself. He insisted that he was wearing safety boots.
Conclusions - liability
General
115 In my opinion, the defendant clearly breached its duty to Mr Glover by failing to devise a proper or safe system of work, and by failing to provide a safe place for him to work. This arises in the following ways.
116 The defendant's submissions fail to accommodate the fact that it was not possible to sweep the slurry from the channels without it actually or potentially flowing or spilling over and onto the adjacent production beds. If there were beams in the course of manufacture, the sweeping process could not be performed, and had to be postponed, until the beams had been removed. It was in this period that production of slurry was particularly dangerous. It was in this particular period that Mr Glover was injured. It is wholly beside the point that there may also have been insufficient labour to do the task if the state of production of beams in the factory at the time meant that sweeping could not be done before that occurred. In other words, the system employed by the defendant specifically incorporated and accepted the notion that until the new beams that were being manufactured had been removed from the production beds, no sweeping of slurry of any sort could occur because the beams might be damaged or otherwise adversely affected by it. The system involved no means by which, through proper drainage or other technique, the slurry could be cleared away whilst beams remained on the production beds.
117 Conversely, but to the same effect, the system for cutting beams to shorter lengths itself involved returning them to the unused or vacant production beds for this purpose. That produced the inevitable consequence that slurry would be created in an area where new beams were being manufactured. The defendant did not formulate and employ a system that allowed for the beams to be cut to size in the yard or in some area of the factory where the production of slurry did not foul the channels where workers were required to walk. Unless or until some alternative location for the cutting of beams could be found, the defendant ran the risk, to which employees were thereby exposed, that channels would fill with accumulated slurry whose removal was subject to a potential delay, and in circumstances where no interim disposal method had been provided. For as long as there was such a delay, and the slurry remained in the channels, the factory was unsafe and dangerous.
118 It does not matter that there were or were not sufficient other workers available on the day to sweep or broom the slurry. None of them would in any event have been able to commence to sweep the slurry away before Mr Glover was injured. Mr Glover would presumably have been entitled to insist that none of the freshly manufactured beams was damaged or degraded by slurry and Mrs Glover's evidence makes it plain that removal of slurry by sweeping would have had at least the potential to do precisely that. The fault in the defendant's system was that the production of beams on the one hand and the contemporaneous cutting of different beams on the other hand were incompatible operations, because they together precluded the timely and efficient removal of the slurry produced by the cutting of beams and the factory became and remained unsafe in the meantime. Critically, no attention had been directed to any alternative means of slurry removal that would have allowed or permitted both operations safely to occur together. Mr Glover had suggested the installation of a drainage system but the defendant had not implemented his suggestion before the accident occurred.
119 The defendant did not suggest that Mr Glover had not been exposed to a risk of injury that by the exercise of reasonable care might have been foreseen and avoided. It was not suggested that the risk was not real, or was far-fetched or merely fanciful, or remote, trivial and inconsiderable. In my opinion the evidence supports a finding, and I find, that there was a real possibility of injury being sustained by the class of employees of which Mr Glover was a member, which was foreseeable by a reasonable person placed in the defendant's position. Mr Glover's request for the installation of drainage in the channel was significantly more than a mere complaint, coming as it did from an employee with his particular experience and knowledge. His proposal for an incremental beam size facility falls into the same category. These suggestions or complaints ought reasonably to have alerted even the most recalcitrant or resistant defendant to the existence of a possibility that a failure to dispose of accumulated slurry carried with it a real and serious risk of injury to workers exposed to it on the floor of the factory where they were required to work. The dangerous conditions in the factory were not a one-off or novel event, or the end result of a series of unusual or rare happenings or occurrences. They were the persistent and reoccurring end product of a system that recreated the identical risk on a regular basis. There is no doubt that the risk was foreseeable.
120 Nor did the defendant submit that there was no reasonably practicable alternative system that it could have used and which was free from the risk of which Mr Glover complains. The incremental beam size system was apparently not adopted because the storage yard had not been completed. There is no suggestion that it could not have been or that it has not since been made large enough to work in this way. The defendant did not suggest that drainage was impossible or impractical. Even the provision of rubber mats on the channels as a temporary measure may have been a solution, although the evidence about this barely rises above the anecdotal. More than this, however, the defendant unsurprisingly did not contend that the risk created by the system of work that the defendant adopted, and which led to Mr Glover's injury, was not preventable or that any proposed alternative method of performing the work that was free from risk was available only in a general or theoretical way.
121 The defendant did not contend that Mr Glover's injuries were not relevantly caused by its breach of duty. In my opinion, Mr Glover has clearly established that there was a defect in the defendant's system of work and that his injuries arose out of that defective system. He has established that he slipped upon the slurry that would not have been present if the defendant's breach had not occurred. In other words, there was a direct relationship or connection between the production and presence of slurry and the accident suffered by Mr Glover. No issue is taken that Mr Glover's injuries were caused in the way that he claims.
122 Finally, it was in my opinion unreasonable conduct on the part of the defendant to persist with the system of work that led to the accident. It was both unreasonable in the circumstances of this case for the defendant to institute and maintain the system in the first place, and its failure to eliminate the risk that it created showed a want of reasonable care for Mr Glover's safety.
123 I find that the defendant breached its duty to take reasonable care for the safety of Mr Glover as its employee and that he was injured as a result of that breach of duty.
Statute
124 The Shops and Industries Act was repealed on 1 July 2008. It was in force at the time of the matters giving rise to these proceedings. Section 22(2) of the Act was as follows:
" Floors, roofs and ceilings