71 However, a number of aspects of Woolworth's procedures for delivery of goods into its store involved issues of health and safety. Many, perhaps most, of the drivers who made the actual deliveries were outside its organisation and were not subject to the direct control it exerted over its employees. Even so, they were regular visitors to the premises for a mutual commercial purpose and it was reasonable to require Woolworths to contemplate them as people that might be put at risk by its choice of facilities and procedures for delivery.
72 At 247 [38] of the joint judgment, their Honours observed that the question was whether Woolworths had a proper delivery system in place. Such a system should have included arrangements for moving the waste bins left in the laneway by the council workers in order to clear access to the loading dock. The responsibility with respect to the design and implementation of the delivery system operating on its premises belonged to Woolworths alone. In leaving it to the delivery drivers to move the bins which obstructed access to the loading dock in circumstances where it knew that not all drivers were capable of doing so without risk of injury, Woolworths had breached its duty of care of providing a safe system of delivery or access to its loading dock.
73 In my opinion the present case is distinguishable from that in Thompson. There was no system of work provided by the appellant that the first respondent had to follow for the purpose of carrying out the task of securing his load. As I have observed, the present is not a case where the appellant provided defective equipment or facilities to the first respondent for the work he was required to perform. The first respondent's task in securing his load was, in my view, akin to that of climbing a ladder or using a tomahawk in the sense referred to by Mason P in Chalker.
74 It is thus difficult to distinguish the first respondent's conduct in securing his load from Mr Chalker's conduct in adopting a particular unloading technique which Mason P found did not give rise to any breach of duty on the part of Andrews in failing to instruct him to be careful when using wet gloves.
75 In any event, there are three factual aspects which support my conclusion that there was neither a duty of care nor any breach of such a duty on the part of the appellant. First, the transport safety guidelines relied upon by the appellant acknowledged that it might be necessary for the tightening of dogs to occur whilst standing on the load. If this was the case, the worker was required to stand near the truck's centre rather than its side. That is what the first respondent did in the present case. Furthermore, his evidence as to why he placed his dog in the middle therefore requiring him to stand in the middle of his load (see [14] and [15] above) indicated a decision on his part over which the appellant had no control and no right of control. In other words, he adopted the technique of tightening the dogs whilst standing in the centre of his load for what he apparently regarded as good and proper reasons.
76 Second, there is significant doubt on the evidence as to whether, had the first respondent been standing alongside the trailer even with the assistance of a platform, he would have been able to carry out the task in a manner that would have, as he said, put the load "in the middle". Certainly the evidence indicates he would not have been able from his perspective to properly tighten the chain so as to distribute the load appropriately whilst standing on the ground as the transport safety guidelines adopted by the appellant recommended. It is noteworthy that there is nothing in those guidelines that suggest that an alternative to standing on the ground to tighten the dogs was to stand on a ladder or on some other form of raised platform.
77 Accordingly, on one view of it there was nothing in the transport safety guidelines adopted as part of the appellant's procedures in instructing its own drivers which would support the only allegation of negligence, apart from that alleged in the Notice of Contention, relied on by the first respondent on the appeal, namely, the appellant's failure to provide the first respondent with an alternative work platform so that he was not required to stand on the load. As I have indicated, there is nothing in the transport guidelines (being Exhibits E and F) that suggests that such an alternative was recommended.
78 The first respondent also had his own doubts as to whether he could safely carry out his task from a ladder unless it was appropriately stabilised. There was nothing to suggest that the appellant had available or had even offered the first respondent the services of one of its employees to hold a ladder for him while he was carrying out the task of securing his load.
79 Third, and overlapping with the last point, it is doubtful whether the provision of a ladder or other form of access platform would have been sufficient to prevent the first respondent from having to stand on top of his load to ensure that "the load goes in the middle". Accordingly a real issue of causation arises. However, it is unnecessary to proffer any final conclusion on that issue as I am of the opinion that the appellant did not owe any duty of care to the first respondent with respect to the manner in which he secured his load.
80 It follows from the foregoing that it is unnecessary to consider the first respondent's Notice of Contention as it was only advanced as a particular of breach and did not go to the existence or otherwise of a duty of care. Nevertheless, I shall deal with it shortly.
81 Clause 39 of the Regulation relevantly provides:
"A controller of premises must ensure that:
(a) safe access is provided to all parts of a place of work to which a person may require access and from which the person may fall, …"
82 The duty imposed by cl 39 is confined to the provision and maintenance of safe access to a worker's place of work. It says nothing with respect to the place of work itself once safe access is provided to it. It is therefore necessary to distinguish between a worker who is injured at his place of work and one who is injured while gaining access to it: cf Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305.
83 For the Regulation to be engaged in the present case, it was necessary for there to be a finding that when his load moved and he lost his balance, the first respondent was in the course of accessing his place of work rather than that he was at his place of work.
84 In my opinion, whether or not the appellant breached the Regulation by failing to provide the first respondent with safe access from the ground to the top of his load, his place of work at the time of the accident was the top of his load, which he had already accessed safely. In other words, the accident occurred as a consequence of what happened after he had reached his place of work, being the top of his load.
85 Accordingly, any failure (if there be one) to provide a safe means of access to the top of the load whether by way of a stepladder or some other form of raised platform, did not materially contribute or contribute at all to the load moving which resulted in the first respondent losing his balance and falling to the ground.
86 Accordingly, at the time of the accident the first respondent was not using a means of access to the top of the load but was in fact at the top of his load being his then place of work. It follows at the very least that any breach of the Regulation was not causative of the first respondent's injuries.