Conclusions of fact
110The Court, as is obvious from the foregoing, has reached a number of conclusions of fact.
111First, Mr Kearney and Mr Haslip had a conversation in which Mr Haslip requested Mr Kearney to provide guidance as to the placement of flat-faced boulders that were being loaded by Mr Haslip on 22 February 2004. Secondly, that function was performed by Mr Haslip operating an excavator and placing, relatively gently, each boulder into the back of the truck for which Mr Kearney was the driver. Thirdly, for the purpose of giving those directions and/or hand signals, Mr Kearney climbed the truck ladder on the driver's side of the truck almost adjacent to the cabin. Fourthly, in the course of loading the truck, Mr Haslip, instead of gently placing a boulder in the truck, dropped the boulder from a distance of between 1 metre and 1.5 metres. The aforesaid drop caused significant vibrations in the truck and caused Mr Kearney to fall from the truck.
112Further, the second defendant, Billbergia, employed Mr Haslip. Mr Haslip devised the particular system that applied to the flat-faced boulders, which system was a variation on the system that generally applied to the loading of other material. At the time of the accident, Mr Kearney was "lent labour", employed by the first defendant, Ballyfore, to work for the second defendant, Billbergia, driving Billbergia's truck on, to and from a site occupied by Billbergia.
113On 5 April 2004, Mr Kearney aggravated the earlier injury suffered on 22 February 2004, damage from which would not have occurred but for the earlier injury. During the course of these proceedings, questions have arisen as to whether the circumstances that gave rise to the aggravation on 5 April 2004, were circumstances that disclosed negligence on either or both Ballyfore or Billbergia. It may well be that the absence of a jack in the truck to lift the draw bar, and the failure to provide a surface that would prevent the support or block for the draw bar from sinking, were both a breach of the duty of care by Billbergia either in its capacity as the owner/provider of the truck or the occupier of the site. Nevertheless, in the view that I take of this incident, no negligence is disclosed because no damage was caused by the breach of duty. The presence of a jack (or other lifting device) would not, on the evidence, cause Mr Kearney to use it to perform a task performed in similar circumstances many times previously. Further, and for the same reason, no damage was caused by either breach of duty, if there were breaches.
114Because of the operation of the Civil Liability Act 2002 and the need to apportion the respective liabilities of an employer and an occupier of premises, certain other conclusions are needed: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [33] to [51] inclusive; Hoad v Peel Valley Exporters Pty Ltd [2008] NSWSC 981 at [152] to [159] inclusive.
115Even though Ballyfore was not a labour hire company, or seemingly not, the relationship between Billbergia and Ballyfore, at least insofar as it concerns the operation of Mr Cronin and Mr Kearney, is not dissimilar to that of a labour hire company. In Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174, the position of a supervisor employed by a labour hire company and hired to the occupier of the premises on which the injured worker was employed was considered. Harrison J also discusses it in Hoad , supra. Similarly to the situation in Maricic , supra, Mr Cronin had, as previously explained, dual roles. As the foreman on the site, he was not solely, or even predominantly, exercising his responsibility on behalf of Mr Kearney's employer. Previous cases are not authority on findings of fact. Nevertheless, the findings in Maricic , supra, confirm that the findings of fact to which the Court would otherwise have come are not outside principle.
116In the circumstances of the incident on 22 February 2004, an employee of Billbergia devised the particular system of work that was operating. As far as the evidence discloses, no employee of Ballyfore, apart from Mr Kearney, was aware of this particular system (which is distinguished from the general system which applied to crushed material and other boulders).
117Secondly, while the system itself involved risks to safety, because the driver of the truck was placed in a position that was potentially dangerous, the injury was caused, not by a failure of the system, per se, but predominantly by the fact that the system was operated negligently, namely, by dropping the boulder rather than placing it.
118The foregoing ought not be taken to suggest that the system was not problematic or a breach of duty. On the contrary, if a different system were operating then the dropping of the boulder would not have caused injury. Nevertheless, the far more substantial cause of the injury was the negligent operation of the system, rather than the risks associated with the system itself.
119Both the employer and the occupier (i.e. Ballyfore and Billbergia), had seemingly unlimited access to the premises. Ballyfore had the opportunity to inspect them. However, as previously stated, there is no evidence to suggest that the particular system implemented for large flat-faced boulders was known to Ballyfore (other than through Mr Kearney himself). Ballyfore had no capacity to discover the negligence associated with the dropping of the boulder.
120There is no direct evidence of Ballyfore's ability to avoid the hazard or shield the employee from the negligence, other than the ability, which I infer, to refuse to undertake the work or to direct Mr Kearney not to leave the truck under any circumstances. Each of those directions would have avoided the accident and each of the latter inferences is available from the nature of the employer's general capacity to direct an employee and the contractor's general ability to refuse work. The contracts between Billbergia and Ballyfore are not before the Court.
121In relation to the foregoing, as also previously stated, the particular system was in operation for a maximum of three days and Mr Kearney's truck (being the only one loaded in this manner) had been loaded some 16 times over the course of two prior days. That circumstance leaves little time for Ballyfore to be aware of the particular system, even in circumstances where Mr Cronin, a senior person within Ballyfore, was the foreman on the site. Further, no previous person had been injured, it seems, by use of such a system or any similar system on that site or in the employ of Ballyfore or Billbergia. Certainly, the Court has no evidence of any previous injury.
122Moreover, if Mr Cronin, or any other senior person in Ballyfore, inspected the process of loading trucks, the vast majority of the time, those trucks would have been loaded using the system that generally applied, rather than the particular system applicable to Mr Kearney's truck for the loading of the flat-faced boulders. It would therefore have been unlikely, even on inspection, for Ballyfore to discover the system as it operated.
123It must also be noted that the direction from Mr Haslip required Mr Kearney to perform his work in a manner that was different from the manner in which it was normally performed and, if Mr Kearney were to have complained about the system or the risks associated with it, that complaint would have much more easily been drawn to the attention of Mr Haslip, and Billbergia, than his own employer.
124While this is not a case where Ballyfore, as the employer, could satisfy its non-delegable duty of care by doing nothing at all, as has been stated, it was the occupier, Billbergia, not the employer, which devised, instituted and maintained the particular system of work. Further, it was Billbergia that controlled the premises and it was Billbergia that supplied the truck, the excavator and Mr Haslip, the employee that operated the excavator.
125The foregoing, amongst other things, seeks to address the factors, addressed by Harrison J in Hoad , supra, at [152].