Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 185

Court of Appeal (Vic)|2005-07-21|Before: WARREN, C.J., MAXWELL, P., HARPER, A.J.A.

ACCIDENT COMPENSATION - Worker injured by a forklift while collecting chickens - Apportionment of liability as between host employer, labour hire employer and worker - Whether an error in the exercise of the trial judge's discretion - House v. R [1936] HCA 40; (1936) 55 CLR 499 followed - Appeal dismissed.

"The normal work system involved a number of considerations. Firstly, the shed in question was about 30 feet wide and 300 or more feet deep. It had an entrance at either end. It was kept quite dark to keep the chickens quiet during the catching operation. There was a moveable fluorescent tube outside the southern wall of the shed which was a curtained wall. It was enough, obviously, for outlines of human beings to be seen and for the catchers to see the chickens and pick them up and put them into the pallets. There was enough light for all of that, but it was quite dim.

The forklift had a seat on the left and the pallet was carried on the right side, and it was known to everybody that the forklift driver had no, or virtually no, view at all on his right side. As a result of this, it was made very clear to the catchers, and of course the forklift driver, Drew, knew this as well, that there were two basic rules to be adhered to. Firstly, that the catchers at all times keep a careful lookout for the forklift truck. And secondly, that the catchers work ... at all times on the left-hand side of the shed. [If] the birds [are] hunted over onto the left-hand side of the shed and the pallets [are] placed on [that] side, and the catchers work on the left-hand side of the pallets, [then] ... the forklift driver will always have the catchers in view.

This system was well known to all the catchers, including Ms Wallace, and was well known to the forklift driver. It had been explained to the catchers by the Walsh's, and it seems to have worked reasonably successfully in that there was clear evidence from a number of witnesses that there had been no prior accidents, until this one, when this sort of work was being performed.

On this evening, in the darkness hours between about 9 and 11 p.m., the work had been carried out. A truckload of pallets had been successfully filled from the western entrance [of the shed] and then the operation had transferred to the eastern entrance and the truckload had been filled from the eastern entrance, all without incident. However, when the eastern end truck was filled it was the fact that there were a number of stray birds left in the shed, something I think in the order of 100.

The truck driver/forklift driver, Mr Drew, was generally in charge of the operation. He decided that the way to deal with these stray birds was to top up some of the pallets, to add a few extra birds into some of [them]. So he began bringing otherwise filled pallets back into the shed on his forklift truck, and placed them in various places, and when they were topped up he would take one out and bring another one in.

He had done a few of these ... but ... the second last one that he brought in before the accident happened he placed close to the northern wall of the shed, indeed he estimated about eight feet from the wall; and he made that estimation to make the point that as his forklift truck with a pallet on was nine feet wide he was not able to get between the wall and the pallet."[2]

6 After completing this exercise, Mr Drew went outside to retrieve one more pallet. He was replacing that pallet in the shed when Ms Wallace was struck. It was in those circumstances that his Honour found that the actions of Mr Drew when returning with the pallet were negligent. Continuing his judgment, his Honour said:

"Dealing with the comparative negligence of the parties, I note the following matters of relevance. Drew chose to break the normal system by placing the pallet near the northern wall. He said in evidence he did that because there were some chickens over there, and indeed he seemed to be particularly concerned to place the pallet almost on top of, or directly beside, those chickens, for some reason. And he blamed the positioning of the chickens for his depositing of the pallet so close to the wall.

...

In any event, he [Drew] chose to break the system and put the pallet there by the northern wall. In effect, this contemplates two breaches. One, that the pallet was on the northern half of the shed, whereas following the normal system it would be on the southern half of the shed; and secondly, it was so close to the wall that he could not pass it on the right-hand side. If he was going to pass it he had to pass it on the left-hand side. So, in those two respects he was breaking the system.

I also consider that Drew could well have, and should well have, foreseen that some person may be at that pallet working. After all, that is what it was there for. Whether it was the act of putting some strays into that pallet or whether it was the act of poking a protruding head back in or rearranging the protruding head, whatever the task might be, he should have foreseen ... that one of the catchers could have been working at that pallet because that it is what it was there for, to be worked upon."[3]

7 His Honour then turned to the question of the negligence of D.M. Walsh. He said:

"The Walshes, as employers, have a non-delegable duty to take care for the safety of their employees. This is not a case ... where the act causing the negligence arose from a spontaneous and unforeseeable act on the part of the occupier's employee ... There were areas where the employer could and should have taken ... reasonable measures to minimise the risk of injury. One would have been the provision of more visible attire, work attire. Nothing was done apparently, no rule prevailed. The catchers could wear what they liked; which led to Ms Wallace often wearing dark clothes. Even the occupier at an earlier stage took the precaution of issuing reflective vests. For some reason, these were unsatisfactory.

...

No provision had been properly taken by the employer to cope with supervision in this situation and it would not have been any more expensive or difficult to appoint one of the catchers as the head catcher in a supervisory role who, in these circumstances, could have stood out from ... [the others]. If that had been done it would have minimised the risk of injury even in these circumstances."

8 Hazeldene does not dispute the findings of fact upon which his Honour based his apportionment. Nor does it contend that the judge incorrectly enunciated any applicable principles of law. Hazeldene accepts that an assessment of the kind required by s.138(3) is not susceptible of precise calculation. Rather, it involves the exercise not only of judgment but also of discretion. Nevertheless, in a very able argument for which the Court is indebted, Mr Collins S.C. for Hazeldene submitted that the apportionment of liability as between Hazeldene and the employer was so clearly wrong that his Honour must have made some error in the exercise of that discretion.

9 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.[4]

10 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.

11 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]. 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.[6]

12 In this case the trial judge formed the view that D.M. Walsh had an obligation to provide some degree of supervision of the chicken catchers. Thus when, towards the end of a catch, the remaining chickens were scattered throughout the shed, one of the catchers should have been appointed to supervise the balance of the operation to ensure that the others did not get in the path of the forklift.

13 Consistently with what is said at paragraph [9] above, it appears now to be clearly established that, for appeal purposes, a decision on apportionment is to be assimilated to a decision made in the exercise of a discretion. The clearest statement to this effect is to be found in the judgment of Brooking JA in Mobilio v. Balliotis[7]. His Honour there said:

"A finding on the issue of negligence involves elements of degree and value judgment, but ever since Warren v. Coombs[8] it has been clear that a finding on that issue is not to be elevated to the position of a discretionary determination and so is not a determination which, in the absence of specific error, can be brought down only if the result is so unreasonable or plainly unjust that the appellate court will infer that an error of some kind must have been made. On the other hand an apportionment of responsibility between negligent tortfeasors not only may be said to require a value judgment but also is accepted as enjoying the status of a discretionary judgment for appeal purposes".[9]

14 The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. They are set out in the

well-known passage from the joint judgment of Dixon, Evatt and McTiernan JJ in House v. R[10]. Their Honours there said this:

"It is not enough that the judges composing the appellate court consider that, if they had been in a position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

15 In our opinion this case does not reach the threshold for appellate intervention. While the trial judge did not seek to delineate as a matter of general principle the scope of D.M. Walsh's duty as a supplier of labour, his reasoning regarding that firm's responsibility for what occurred is, in our opinion, in accordance with a proper sense of the scope and limits of what a labour hire employer can and should do. Indeed, insofar as the judge concluded that D.M. Walsh should have made sure that its employees were fitted with more easily visible uniforms, his Honour seems to have imposed an obligation the discharge of which in the circumstances might or might not have made any difference.

16 We can find in the judgment below nothing to suggest error of law, or otherwise any miscarriage of his Honour's discretion. It may be that, left to ourselves, we might not have come to the same conclusion about apportionment as did his Honour; but that is beside the point.

17 In coming to the conclusion that his Honour's exercise of his discretion did not miscarry, we bear in mind the submission by Hazeldene that the failure of D.M. Walsh to provide supervision involved a total abnegation of responsibility and that, had Ms Wallace been both supervised and provided with appropriate clothing, the accident would not have happened. In other words, we accept that there was a causal relationship between her injury and her employer's breach of its duty of care to her.

18 We also accept that in the circumstances of this case D.M. Walsh cannot by doing nothing be less blameworthy than by doing something but doing it carelessly. Nevertheless, it is also true that the initiating factor in this very unfortunate incident was Mr Drew's positioning of the relevant pallet. His Honour was entitled to find not only that this was the initiating factor but also that it was particularly influential in what later happened. His Honour was also entitled, in our opinion, to find that Mr Drew's subsequent careless failure to ascertain the number of people in the shed, and his action in driving the forklift in a way which tended to obscure the pallet at which Ms Wallace was positioned, were also important contributing factors.

19 For these reasons it would, in our opinion, be wrong for this court to interfere with his Honour's exercise of discretion in allocating responsibility for the accident. The appeal must be dismissed.

[1] Section 138(3).

[2] Transcript p.267, at line 24ff.

[3] Transcript p.271, at line 10ff.

[4] Occupational Health and Safety Act 2004, Part 3.

[5] See, for example, TNT Australia Pty Ltd v Christie [2003] NSWCA 47 (12 March 2003).

[6] cf Drake Personnel Ltd v WorkCover Authority (NSW) (1999) 90 IR 432.

[7] (1998) 3 VR 833 at 837.

[8] (1979) 132 CLR 531.

[9] See also AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 at 101.

[10] [1936] HCA 40; (1936) 55 CLR 499 at 504.

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