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Dean Mason-Leonarder (the Plaintiff) sued Balfran Removals Pty Ltd (the First Defendant) and Canberra institute of Technology (the Second Defendant) seeking damages for personal injuries arising from an injury resulting from the alleged negligence of the Defendants.

Background

4. The Plaintiff was born in July 1993 and on 25 October 2022, the date on which he was injured, he was aged 29. He was employed by the First Defendant who provided removalist services both of a general nature and also of a more specialised nature involving the relocation of heavy items such as safes. The Plaintiff had developed a degree of expertise in moving these heavy items while employed by the First Defendant.

5. When working for the First Defendant, the Plaintiff said that he usually worked in a team of removalists. After starting work with the First Defendant in 2016, in October 2018 the Plaintiff was promoted to the position of supervisor. His role was to be the point of contact between the client and the removal team at the work site. Sam Pahl, the operations manager, was his immediate superior. He said that when jobs were allocated, the allocation also included who would supervise.

6. From time to time the First Defendant provided removalist services for the Second Defendant. The Plaintiff said that he had worked at the Second Defendant’s campus in Bruce in the Australian Capital Territory (the Bruce Campus) on a couple of occasions before the day on which he was injured. The Plaintiff said that previously while working at the Second Defendant’s premises, he has been called upon to move heavy items and also other items some to be relocated and others to be thrown out into skip bins located at the site.

7. The Plaintiff said that on each occasion he went to work at the Bruce Campus, he met the Facilities Managers and on each occasion they would take them to where the material to be relocated was stored and they were told by the Facilities Manager what they wanted them to do with it and where it was to go.

8. On the day of the Plaintiff’s accident, he and Damien Hurst, another supervisor and a team of removalists were sent to the Bruce Campus to do the work. They went to the site with a Pantech truck and a smaller van.

9. On arriving, thePlaintiff said that they checked in with Facilities Manager who walked with the removalists to the area where the furniture and items needing disposal were stored. The Plaintiff said that there was a significant quantity of items to be disposed of including desks with returns, filing cabinets, chairs, safes and heaters. The Plaintiff was told that all of the material was to be thrown into skip bins on the property. The furniture was dismantled and placed in the Pantech truck and then driven from that location to where the skip bins were in a loading dock at the back of another building. The bins were very large, some eight metres long. The loading dock was next to a small road leading to other buildings.

10. At this point, the Plaintiff asked the Facilities Manager whether they could open the end of the skip bins and walk the furniture into them. That was refused. They were also told that in throwing the material out, they were not to park the truck so that it blocked the roadway. The Plaintiff said that this instruction posed some difficulties for the team in disposing of the material. The Plaintiff said he rang Mr Pahl and said: “Mate, there’s a lot more furniture here than expected. They won’t let us open the door to the skip bin, and we can’t block off the road”. He said that Mr Pahl replied, “I don’t care, just get it done”. The Plaintiff passed on the instructions from the Facilities Manager to the other removalists while the Facilities Manager was there who reiterated the instruction not to block or obstruct the road. The Facilities Manager then left.

11. In the result, the Plaintiff and Mr Hurst discussed how they would get the furniture into the skip bin while not blocking the road. In the past, the Plaintiff said that he had thrown material away into the skips from the back of the truck and had parked the truck at right angles to the side of the bin and the furniture was thrown directly into the skip bin by standing on the back of the truck and throwing the material straight into it. However, that was not possible because of the instruction not to block the road, and they decided to bring the Pantech to the skip bin alongside the skip bin as close as they could throw the material into the bin from the truck.

12. The truck was backed up towards the bin and the back door opened, however because of the instruction not to obstruct the road, the truck could not be backed up squarely against the side of the skip bin and it was parked alongside, parallel to the bin. It was thus necessary for the Plaintiff who was to throw the material into the bin, to twist his body to throw the material into the bin.

13. The Plaintiff took a piece of dismantled desk which he estimated to be about 1.8 metres long and about 900cm wide and, he estimated that it weighed about 30kg. After sliding it out to the end of the truck tray, he grabbed the desk, twisted and threw it into the bin. He noticed an immediate sharp pain in his left lower leg and his leg gave way underneath him and he fell off the back of the truck. He described feeling a “electrical shock” down his leg. He could not stand. He was assisted into the van and taken to Canberra Hospital.

14. As a result, the Plaintiff suffered a significant injury which left him with long term disability.

15. The Plaintiff said that when at the site where the skip was, he asked whether they could open the end door of the bin which would have enabled them to unload the truck using the hydraulic lift at the back of the truck to get the items on to the ground and then walk them into the bins through the open door. When that request was refused, he and Mr Hurst discussed bringing the truck up to right a angle to the bin. The Plaintiff considered this to be a safe way of disposing of the material because it would not involve much lifting or twisting. This suggestion was refused by the Facilities Manager because it would have the effect of the truck blocking the roadway. While the Plaintiff said that the unloading process would be quick, the Facilities Manager insisted that the road not be blocked.

16. The Plaintiff said that given there were six employees of the First Defendant on site, the job of tipping the material off the back of the truck straight into the bins would have been quickly done and, if someone had wished to drive along the road and their path was blocked, they could have temporarily moved the truck.

17. In the result, the Plaintiff agreed that because of the instructions from the Facilities Manager, they were forced to adopt a system of disposing of the material that he believed was not as safe as the two systems he had proposed.

18. As I have said, judgment was entered for the Plaintiff against both Defendants and the issue now to determine is the apportionment of those damages in relation to each defendant according to their contribution to the Plaintiff’s accident.

Necessary factual findings

19. The Plaintiff said that after he had been told that they could not open the skip bin doors to move the furniture into it and after they had been told they could not block the roadway which excluded parking the truck at a right angle to the bin, he said he rang his supervisor, Mr Pahl and told him of the difficulties they had encountered and was told to get on with the job.

20. However, while he said he called his supervisor, Sam Pahl, the phone records produced by the Plaintiff of his phone calls do not show a call from him to Mr Pahl at that time. There was no dispute that later in the day, at about 6pm, the Plaintiff called Mr Pahl from the hospital.

21. In giving evidence, the Plaintiff was considered and measured and readily conceded what he was physically able to do notwithstanding his ongoing disabilities. He did not appear to overstate his abilities, nor did he appear to be giving other than an honest account of himself. Of course, caution must attend the determination of an issue based on the way in which a witness generally gave their evidence. On its face, his evidence that he made the call together with the detail of what he said in the call is persuasive of its acceptance.

22. It was not suggested to him that he did not make the call to Mr Pahl but that there was no record of it.

23. Mr Pahl was not called by the First Defendant.

24. The question then is whether the Plaintiff did call Mr Pahl before the accident as he said and if so, then it must follow that there is a mistake in the phone records which fail to record the call.

25. Are the phone call records such as to provide incontrovertible evidence that the call was not made? Or to adopt the formulation of the High Court in Fox v Percy [2003] HCA 22; 214 CLR 118 is the conclusion that the Plaintiff made the call “glaringly improbable” or “contrary to compelling inferences”?

26. The phone records themselves are not determinative of this issue. The records for the Plaintiff’s mobile number show no call to Mr Pahl at all on 25 October 2022, the day of the accident, however Mr Pahl’s phone records show a call from the Plaintiff to him at 6pm on 25 October 2022. The omission from the Plaintiff’s call records of the call to Mr Pahl throws some doubt on the records’ accuracy and do not cause me to reject the Plaintiff’s evidence that he called Mr Pahl before he and the team commenced work at the Bruce Campus.

27. The First Defendant submitted that if the Plaintiff called Mr Pahl before his accident, it was at a time after he had been denied permission to open the skip doors but before they were told not to block the road, excluding bringing the truck in to the side of the bin at right angles. I do not accept this submission. The Plaintiff’s account of his conversation with Mr Pahl covers both issues because he said “… and we can’t block off the road …” which is a clear reference to the discussion with the team in the presence of the Facilities Manager about bringing the truck in at right angles.

28. There is no evidence that the Plaintiff told Mr Pahl how they intended to perform the work given those imposed restrictions, which is perhaps unsurprising given Mr Pahl’s response which did not invite a conversation about how the job might, in the circumstances, be performed.

29. It was also suggested to the Plaintiff that at a point when he and the team and the Facilities Manager were at the skip bins, the Facilities Manager suggested to the Plaintiff that they lift the material to be thrown away up and into the skip from ground level, a manoeuvre which the Plaintiff considered to be unsafe, leading him to ask whether the door of the skip could be opened. The genesis of this questioning was the answers the Plaintiff gave to an ergonomic expert, Mr Michael Lawrance, retained by his solicitors on the question of liability.

30. When asked about the conversation, the Plaintiff’s answers were somewhat equivocal. It was suggested to him that the Facilities Manager suggested that the items be lifted from ground level up and over the edge of the skip bin and the Plaintiff said he did not remember. He was reminded of his conversation with Mr Lawrance in which he said this had been his instruction from the Facilities Manager, and again, the Plaintiff said he did not remember. The following questions were then put to the Plaintiff, And you asked the CIT manager if you could open the doors on the skip bin so that you didn’t have to lift things from the ground over the edge of the skip bin and place them in the skip bin. Correct? – That is correct. And you asked that question because you thought it might be dangerous for you and your work mates if you had to lift heavy items from ground level over the edge of the skip bin. Correct? --- That is correct. Because the skip bin was about 1.5 metres high? Correct? ---Yes And what worried you was the force you would have to exert to lift heavy objects over 1.5 metres and into this bin? --- Yes

31. The First Defendant tendered Mr Lawrance’s report where this conversation with the Plaintiff was recorded to support the submission that the Facilities Manager suggested, at first, an unsafe system of work.

32. When the hearing commenced, counsel for the First Defendant sought and obtained agreement pursuant to s 136 of the Evidence Act 2011 (ACT) to the effect that the recitation of the history given by the Plaintiff to various experts who prepared reports for the hearing, was not to be admitted as to the fact of those representations. That must, it seems limit the use to which Mr Lawrance’s account of his conversation with the Plaintiff to representing what was said rather than proving the fact of it occurring.

33. Counsel for the Second Defendant contended that it could not be concluded that the Facilities Manager suggested to the Plaintiff that he and his crew lift items over the top of the skip bin from the ground and it was argued that given that Mr Lawrance was not called and his evidence not tested, it would be unfair to the Second Defendant to make the finding for which the First Defendant argued.

34. While the Plaintiff’s answers to the question posed at page 90 of the Transcript to which reference has been made would appear that he did, in fact, recall it being suggested, the finding is not without its difficulties.

35. In any event, for the purposes of determining the issue of contribution as between the defendants, it is not necessary to decide this particular point.

Relevant duties

36. There was no dispute that the First Defendant owed the Plaintiff a non-delegable duty of care as his employee to provide a safe system in which to work.

37. The Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act) provides the foundation for the formulation of the duty of care owed to the Plaintiff in particular in ss 42 and 43 which say: 42. Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. 43. Precautions against risk–general principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; ...

38. Here, the risk of harm was that the Plaintiff might injure himself if forced to lift and twist in order to place items in the skip bin and that risk was both foreseeable and not insignificant. Further there was a reasonable probability that the harm would have eventuated by being forced to use a system of work which was not one of his preferred safe methods.

39. A reasonable response to the risk was to allow the Plaintiff to adopt one of the two preferred methods of doing the work which would have posed no or minimal burden on the Second Defendant.

40. The First Defendant conceded and it is accepted, that it breached its duty of care to the Plaintiff by not having in place a system or having a system and not enforcing it of allowing the Plaintiff to receive directions when faced with problems in performing his work and, further in failing to give the Plaintiff adequate directions when told of the restrictions imposed by the Facilities Manager on the way in which the work was to be done.

41. The First Defendant further accepted that its breach of duty of care caused the Plaintiff’s injury, loss and damage.

42. However, the First Defendant contends that the Second Defendant breached its duty of care to the Plaintiff and its actions bring it within the scope of liability to the Plaintiff.

43. There was no dispute that the Second Defendant owed the Plaintiff a duty of care as occupier of the premises on which the Plaintiff was sent to work. The scope of the duty is found in s 168 of the Wrongs Act and is not limited to the state of the subject premises. In Thompson v Woolworths (Q’Land) Pty Ltd [2005] HCA 19; 221 CLR 234, the Court said that the occupier’s liability was not limited to the static condition of the premises but also to the Plaintiff being required to conform to systems and procedures established by the occupier.

44. The Court said: [24] The status of the respondent as occupier of the land on which the appellant was injured was one aspect of the relationship that gave rise to a duty of care. It gave the respondent a measure of control that is regarded by the law as important in identifying the existence and nature of a duty of care. There was, however, more to the relationship than that, and, as was agreed on both sides, the problem was not one that concerned only the physical condition of the respondent's premises … … [26] The purpose for which, and the circumstances in which, the appellant was on the respondent's land, constituted a significant aspect of the relationship between them. The appellant, in the pursuit of her own business, was delivering goods to the respondent for the purpose of sale in the course of the respondent's business. To do that, she was required to conform to a delivery system established by the respondent … … [27] Even so, the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury … (Citations omitted.)

45. The Second Defendant however argued that it bore no liability for the Plaintiff’s injury and relied on the contract for services between it and the First Defendant which imposed a responsibility on the First Defendant to ensure accessible access to the premises and in which the First Defendant was to provide suitably qualified people to accomplish the job contracted for and provide necessary tools and equipment to ensure the job was performed in a competent manner.

46. The Second Defendant argued that its role was limited to identifying the items to be removed and where they were to be taken and to “remind” the First Defendant’s crew not to block the roads and thus bore no liability for the Plaintiff’s injury.

47. I do not accept that argument. The Second Defendant’s role was not so limited. The Second Defendant’s restrictions imposed on the way in which the Plaintiff and his colleagues were to do the job, that is refusing to allow them to open the back of the bin to put the material in or to back the truck up to the side of the bin at right angles, which would, albeit briefly blocked the road, interfered with the preferred, safe way in which they wished to work and exposed the Plaintiff to an unreasonable risk of injury because working within the imposed restrictions, the Plaintiff and his crew had no option but to adopt an unsafe system of work.

48. I find that the Second Defendant breached its duty of care to the Plaintiff by forcing on him an unsafe system of performing the work and is thus liable for his injury loss and damage.

Contribution between the Defendants

49. Section 21(2) of the Wrongs Act provides that there may be contribution between tortfeasors in an amount that the Court considers just and equitable having regard to the extent of the contributor’s responsibility for the damage.

50. In determining this question, it is necessary to take into account the relative culpabilities of the two defendants.

51. The First Defendant failed to have in place a system of providing direction to its employees when faced with difficulties in performing their work, particularly as here, when the difficulties render the method of performing the work unsafe. Having found that the Plaintiff called Mr Pahl and informed him of the difficulties, Mr Pahl sought no details nor enquired how the difficulties identified by the Plaintiff impacted how the work could be done safely.

52. While the Second Defendant argued that it relied on the First Defendant to send suitable qualified and experienced workers to perform the job contracted, the Second Defendant’s imposed conditions on the way in which the work could be done, stopped the workers from using two safe methods of performing the work and exposed them to risk of injury from employing an unsafe system. In so doing, the Second Defendant by setting the parameters in which the work would be done, assumed a duty of care to the Plaintiff that the way in which the work was to be done would not expose the Plaintiff to unreasonable, foreseeable risk.

53. In assessing the contribution of each of the defendants, it is necessary to look at the entirety of the conduct of each in relation to the circumstances of the accident. So far as the First Defendant is concerned, its liability lies in knowing from the Plaintiff that there were problems and in failing to provide direction to him as to how to approach the job. It is tolerably clear and was acknowledged in submissions for the First Defendant that the Plaintiff, in his position, was unlikely to refuse to do the job at all, and so the failure of the First Defendant exposed him to using an unsafe system even though it is accepted that the First Defendant was not told what that was, but, of course, Mr Pahl made no enquire of the Plaintiff about how the problem might be solved.

54. The Second Defendant argued that they bore no responsibility for the Plaintiff’s injury and contended that they engaged the First Defendant’s employees as experts to move the material and in setting the restrictions on how the work was to be done did so from a position of not knowing what was or was not a safe way of performing the task. In the alternative, it was argued that the contribution to the Plaintiff’s injury by the Second Defendant was not equivalent to that of the First Defendant and would be something in the order of 10 to 15%.

55. The Second Defendant having imposed conditions on the way in which the work was to be done created a circumstance in which the work was not going to be done in the way favoured by the Plaintiff and which was patently unsafe. It is true that the contract between the First and Second Defendants made parking and access the responsibility of the First Defendant and its employees, however here, the Plaintiff and the crew indicated how they wanted to park the Pantech to unload the material and were told they could not, and it seems took away from the First Defendant the responsibility otherwise attributed to them in the contract. It is also important to note that the Plaintiff’s unchallenged evidence was that during the time he was at and around the skip bins no car passed on the road.

56. In the result, there are as submitted two separate and complete torts each causative of the Plaintiff’s injury loss and damage. The First Defendant argued that if it was found that the Plaintiff did speak to Mr Pahl, the extent of the First Defendant’s contribution should be as to 50% because, while Mr Pahl was told there were problems, he was not told the system to be adopted was unsafe and unsafe to the understanding of the Plaintiff, which, it was argued, had he known, the First Defendant’s contribution would have to be greater.

57. Having considered the relative culpabilities of each of the Defendants I am of the view that it is just and equitable that they bear the contribution equally, that is 50% of the verdict sum and costs.

Orders

58. For these reasons, (1) I order each Defendant to pay 50% of the Plaintiff’s verdict sum together with costs and direct a minute of orders reflecting that finding to be prepared and delivered to chambers for the order to be made in chambers.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: