Plaintiff v Defendant

2 The defendant, which trades under the business name 'One Steel', operated and operates a large steel recycling plant at premises at Dohertys Road, Laverton North. Until 2006, the Kirwan group of companies held the contract with the defendant to provide cleaning services to the site. In 2004, Azzopardi commenced work at the Laverton site as an employee of Kirwan.

3 Baringold is a wholly owned subsidiary of ISS Facility Services Pty Ltd ('ISS'), which is a large national and multi-national company that provides contract services to industrial and commercial premises. In 2006, Baringold took over the cleaning contract of the defendant's site from Kirwan, and, in doing so, took over the employment of Kirwan cleaning staff at the site, including Azzopardi.

4 On 17 October 2008, Azzopardi made a claim on Baringold in respect of a back injury which he sustained while working as a cleaner at the defendant's site. The plaintiff has made, and continues to make, compensation payments to and on behalf of Azzopardi pursuant to the provisions of the Act. There is a dispute, in this proceeding, whether the payments made by it since 2012 have been in respect of the injury that was the subject of the claim made by Azzopardi on 17 October 2008.

5 In the present proceedings, the plaintiff claims that the injury to Azzopardi, in respect of which it made, and continues to make, compensation payments, was sustained as a result of two particular circumstances while Azzopardi was working as a cleaner at the defendant's site in Laverton North. First, it is claimed that on 3 May 2006 Azzopardi injured his back when he slipped and fell on steps outside the bag house area at the site. (I shall hereinafter refer to that incident as the 'slipping incident'). Secondly, the plaintiff alleges that Azzopardi's injury was further exacerbated as a result of being required, as part of his duties as a cleaner at the site, to carry large quantities of cleaning chemicals, and heavy crates of milk, up a set of stairs to the melt shop at the site. (I shall refer to that activity by Azzopardi as 'the carrying work').

6 The plaintiff maintains that the injury sustained by Azzopardi in the slipping incident, and that the further injury sustained by him while performing the carrying work, was caused by the negligence of the defendant, and thus was caused under circumstances creating a liability in the defendant to pay damages in respect of Azzopardi's injury.

7 There are three principal issues in the case which I need to determine, namely:

(1) Whether the injury sustained by Azzopardi, in respect of which compensation has been paid, or is payable, by the plaintiff to or on behalf of Azzopardi, is the injury sustained by Azzopardi as a consequence of the slipping incident in May 2006, and further or alternatively as a consequence of the carrying work performed by him at the defendant's site.

(2) If the answer to question 1 is affirmative, the second issue is whether the injury sustained by Azzopardi in the slipping incident, and further alternatively as a consequence of performing the carrying work, was caused under circumstances creating a liability in the defendant to pay damages to Azzopardi.

(3) If the second question is answered in the affirmative, the third issue concerns the calculation of compensation which the plaintiff is entitled to recover against the defendant pursuant to s 138(3)(b) of the Act. That issue involves two questions, namely:

(a) for the purposes of 'factor X' in s 138(3)(b), the extent, expressed as a percentage, whereby the defendant's act, default or negligence caused or contributed to the injury sustained by Azzopardi;

(b) save as to two relatively minor matters, the computation involved to determine 'factor A' in that equation is largely agreed by the parties. However, depending on my findings in relation to questions 2 and 3(b), it may be necessary to disentangle the injury, sustained by Azzopardi as a result of the slipping incident, from the injury, sustained by him as a result of performing the carrying work at the premises.

The first issue: the injury for which work compensation has been paid or is payable

8 The first question, then, is whether the injury sustained by Azzopardi, for which compensation has been paid, or is payable, by the plaintiff, is the injury sustained by Azzopardi as a result of the slipping incident in May 2006, and, further or alternatively, the carrying work performed by him at the defendant's site.

9 This issue arises for two reasons. First, the defendant submits that compensation, paid by the plaintiff to or on behalf of Azzopardi, up to 2010, was paid in respect of a claim by Azzopardi for compensation on 17 October 2008, which, it is contended, was not a claim in respect of the injuries sustained in consequence of the slipping incident or the carrying work. Secondly, the defendant submits that any compensation, paid or is payable by the plaintiff to or on behalf of Azzopardi after March 2012, was paid or payable in respect of an injury sustained by Azzopardi after he had commenced cleaning work as an employee of Baringold at the Melbourne Airport between 2010 and 2012.

10 In order to address that issue, it is necessary to set out the evidence in a little detail.

11 Anthony Azzopardi was born in April 1965. Although he was educated to Form 5 level, he has limited literary skills.

12 After leaving school, Azzopardi obtained employment at the Footscray TAFE College as a cleaner and handyman. While working there, in 1990, he injured his back when he drove a tractor into a ditch. He consulted his general practitioner, Dr Ansari, who prescribed massage and acupuncture. Azzopardi was off work for two or three days, and then he resumed his employment. Subsequently, in May 1992, he suffered pain in his back, and also concussion, when he slipped while working at the Footscray TAFE lifting some crates. He was then off work for about a week. In cross-examination, Azzopardi stated that during the next six years he saw Dr Ansari on a number of occasions in respect of back pain. Nevertheless, he continued to work as a cleaner, and he took Panadol, and sometimes Tramadol, to alleviate the pain.

13 Between 2000 and 2003, Azzopardi was employed as a car detailer at South City Holden. During that time he did not suffer any further injury to his lower back.

14 In about 2004, Azzopardi commenced employment with the Kirwan group of companies at the defendant's site at Laverton North. According to the records of Dr Ansari, he saw Dr Ansari's partner, Dr Sleaby, in June 2004 complaining of a sore back, for which he received massage treatment. In February 2005, he again saw Dr Ansari, in respect of headache, weakness and some back pain. In May 2005, Azzopardi saw Dr Sleaby about back pain, and he was prescribed Tramadol 100 mg.

15 Mr Azzopardi remained working as a cleaner at the defendant's site after the cleaning contract had been transferred from the Kirwan group of companies to Baringold. Although Azzopardi was not able to recall accurately the date of the slipping incident, and, indeed, on occasions he has believed that it occurred in 2007, there is independent documentary evidence that the incident occurred on 3 May 2006.

16 On that date, Azzopardi had been cleaning the bag house area. As he was descending the stairs outside that area, he slipped on the last two steps before the ground level. He fell on his back and buttocks, and felt a slight pain. As the incident occurred towards the end of his shift, he went home. However, his pain was not alleviated by a hot shower, and overnight it became worse. On the next day, 4 May 2006, he attended the defendant's medical centre. The nurse at that centre completed a notification of injury form, which records that Azzopardi reported that he injured his lower back and left hip when he slipped coming down some steps. Shortly afterwards, the site services superintendent employed by the defendant, Gary Cahoon, filled out an incident report after speaking to Azzopardi and the site supervisor. In the report, it is stated that Azzopardi suffered lower back and left hip injury as a result of slipping on the stairway while descending the steps.

17 In his evidence, Azzopardi stated that although he suffered pain as a result of that injury, he was determined to return to work. He continued to perform his cleaning duties, including the carrying work which I shall shortly describe. According to Dr Ansari's records, the next occasion, upon which his practice was consulted by Azzopardi in respect of back pain, was on 24 November 2006. On 1 March 2007, he prescribed Tramadol medication for Azzopardi because his back was stiff. During that period, Azzopardi was also consulting the defendant's site doctor because it was more convenient for him to do so.

18 In his evidence, Azzopardi described the carrying work in the following terms. About once per fortnight, he was required to replenish the stock of cleaning chemicals in the area in which he worked, which was the melt house. For that purpose, he collected the chemicals from the store, and loaded them on a one wheel trolley, which had been provided to him by the defendant. For that purpose, he would load the trolley with two boxes of the cleaning chemical 'tuff orange'. Each box contained four bottles, and there were five litres of cleaning chemical in each bottle. In addition, he also loaded two boxes, each containing four five litre bottles of a bathroom cleaner, 'lemon scent'. He would also carry other supplies such as bundles of toilet paper. He stated that he would load all of those items onto his trolley, and then push or pull the trolley a considerable distance between the store and the stairs to the melt house.

19 Those stairs comprised 32 open risers, with a landing about half way up them. Azzopardi stated that he would carry his load up the stairs by pulling the trolley over the nosing of each step. That task was difficult, because the wheels of the trolley would lock into the cavity underneath each step, and he would have to pull hard to get it over the nose of the step. He said that he would lift the trolley up the steps by holding it in one hand, with the other hand on the hand rail. In order to effect the lift, he would turn on an angle and pull the trolley vigorously.

20 In addition to that task, Azzopardi was required, each day, to replenish the stock of milk in the area which he cleaned. For that purpose, he would collect a crate, or crates, of milk at the canteen, which he would transport to the stairs on the trolley. He would then lift the crate and carry it up the stairs. Generally, he carried one crate of milk each day. However, before each long weekend, he was required to transport two and a half crates of milk, in order to stock the offices for the long weekend.

21 I interpolate that the plaintiff's evidence, as to the manner in which he moved the cleaning chemicals and the milk crates to his work area, was not challenged in cross-examination. Mr Azzopardi was an honest and candid witness, and I accept the evidence which he gave as to the manner in which he performed those tasks.

22 On 9 October 2008, Azzopardi consulted Dr Ansari in respect of back pain which was then radiating down his left leg. In addition to prescribing Tramadol for the pain, Dr Ansari also prescribed Naprosin, which is an anti-inflammatory agent. In his evidence, Dr Ansari stated that that consultation was the starting point of when Azzopardi's pain got significantly worse. Until then, he had been treated with analgesics, but by then it was necessary to treat him with anti-inflammatory medication.

23 It is in that context that Azzopardi made a claim on Baringold for compensation.

24 In his evidence, he stated that after the slipping incident in May 2006, his back pain deteriorated, and he was experiencing severe leg pain. He said that on one day, some time subsequently, he was cleaning the showers. To do so, he cleaned the mats, and put them down to replace them. As he was performing that task, he suffered a severe bout of pain, and it was difficult for him to stand up. He attended the Bridge Street Clinic. The records of that clinic noted an attendance on 21 October 2008 for low back pain.

25 The claim from is dated 21 October 2008. In answer to the question, 'what is your injury/condition and which parts of your body are affected?' ,the answer was written 'lower back - left hip'. In answer to the question, 'what was the date and time of the injury/condition occurred?', the answer was written '17/10/08 10.30 am'.

26 Azzopardi stated that he continued to attend at the Bridge Street Clinic, and he was prescribed tablets. The doctor also injected his lower back. I note that the plaintiff did not describe any particular incident on 17 October 2008, which caused or exacerbated his lower back pain.

27 After Azzopardi made that claim, he was placed on light duties. He was removed from working in the melt shop, and he was confined to doing some cleaning and mopping work in the change room and store room. He was no longer responsible for restocking the storage cupboard in the melt room with chemicals, because his back pain was worse. He only carried a small quantity of milk in a bag, rather than carrying it in milk crates, when replenishing the milk supply in the area to which he was moved to work.

28 Azzopardi's back continued to deteriorate, and he was in considerable pain. Although the evidence is not entirely clear, I am satisfied that he then was off work, on compensation, between December 2009 and June 2010. Azzopardi was then transferred to work at the Melbourne Airport. When he commenced work there, it was intended that he would work for limited hours, doing light cleaning work. In particular, he was only meant to pick up rubbish using a handle rather than being required to bend to do so. He was also meant to only do light mopping and sweeping work. However, he was soon required to perform more onerous work at the airport. In particular, he was required to empty bins, and to do full cleaning work, including dusting and mopping with a heavy mop. As a result, he experienced even more severe back pain.

29 Ultimately, Azzopardi ceased work in 2012. He made a claim for compensation dated 4 March 2012 in respect of his work at the airport. In his evidence, he stated that, after making that claim, he received a telephone call, and the person who spoke to him 'laughed at me and said we deny it'. He said that he received some payment of compensation after submitting that claim form, but that he was telephoned and told that he would only get a couple of days compensation, he was not getting anything else. He was told that the claim was denied.

30 Azzopardi has not been employed since. Based on the medical evidence, it is common ground that he has been, and will continue to be, entirely incapacitated from engaging in remunerative employment as a result of his back injury. Compensation payments have continued to have been made by the plaintiff to him and on his behalf.

31 Based on the history which I have recited, Mr Grainger, who appeared for the defendant, submitted, first, that the injury, in respect of which the plaintiff paid compensation to and on behalf of Azzopardi, up to March 2012, was an injury sustained by Azzopardi at 10.30 am on 17 October 2008. He submitted that that injury was a separate injury to any injury sustained by Azzopardi as a result of the slipping incident, or as a result of performing the carrying work, which is the basis of the plaintiff's claim in this proceeding. Thus, he submitted that s 138(1) of the Act does not apply to the compensation payments made by the plaintiff up to 2012, because those payments were not made in respect of the injury, which, in these proceedings, was caused to Azzopardi under circumstances allegedly creating a liability in the defendant to pay damages in respect of that injury.

32 Mr Grainger further submitted that the compensation payments, made by the plaintiff under the Act to and on behalf of Azzopardi from March 2012, were made in respect of injury sustained by him while working at the Melbourne Airport. In that respect, he relied on the claim form lodged on behalf of Azzopardi on 12 March 2012. He also referred to the evidence of Azzopardi, in which he described how the work, which he was required to perform at the airport, involved twisting and turning that aggravated his lower back injury, and that that was work which was substantially in excess of the type of work for which he had been certified fit to perform as light work duties. Mr Grainger also referred to the evidence of Azzopardi's wife, who stated that when Azzopardi started at the Melbourne Airport he was supposed to be on light duties, but after a couple of weeks he was put on full duties, and his back got worse as a consequence.

33 Apart from the claim form lodged by Azzopardi on 21 October 2008, there is no evidence of, or reference to, any incident in which Azzopardi sustained injury while working at the defendant's premises on 17 October 2008. Rather, as I have set out above, the unchallenged evidence of Azzopardi was that he commenced to suffer lower back pain following the slipping incident on 3 May 2006. Further, the unchallenged evidence of Azzopardi was that that pain was exacerbated by the other cleaning work which he was required to perform at the defendant's site, and in particular, by the carrying work which I have described.

34 Azzopardi's evidence in that respect is well supported by the medical evidence. As I have already stated, Dr Ansari, in his evidence stated that his consultation with Azzopardi on 9 October 2008 was the starting point of when Azzopardi's pain got worse. He described Azzopardi as a man who was committed to working, rather than receiving compensation, but that the work that he was performing during that time was exacerbating his injury.

35 The medical evidence supports the proposition that Azzopardi's back injury was significantly triggered by the slipping incident on 3 May 2006. The radiological evidence demonstrates that, for some time before that, there had been progressive multi-level degenerative changes in Azzopardi's lumbar spine. Professor Myers, who examined Azzopardi in October 2013, stated, in his evidence, that the fall described by Azzopardi on 3 May 2006 was the type of trauma that can appreciably aggravate pre-existing degenerative disease. Mr Brownbill, a neurosurgeon, examined Azzopardi in March 2014. In his report, which was tendered in evidence, he stated that the fall, described to him by Azzopardi, was consistent with being associated with mechanical forces to the lower back which would aggravate the pre-existing constitutional lumbar degenerative spinal spondylosis. Mr Russell, a general surgeon, examined Azzopardi in February 2010. In that consultation Azzopardi described how he slipped in 2007, when he went down stairs and landed on his left side. Clearly, in that incident, Azzopardi was describing the slipping incident of 3 May 2006. Mr Russell stated that Azzopardi's current problems with his back related to the fall, which he sustained in that incident. He stated that the fall appeared to have aggravated Azzopardi's degenerative process, with a disc protrusion occurring at that time.

36 Similarly, the medical evidence supports the proposition that Azzopardi's ongoing injury was materially aggravated by the carrying work which I have described. Professor Myers stated that the strain involved in the carrying work would have been likely to further aggravate the pre-existing degenerative changes in Azzopardi's spine. He stated that any strain on the already weakened discs or inflamed joints would have worsened the effects of the inflammation and degenerative changes in the discs or in the joints. He further stated that if - as was the case - Azzopardi was pulling a heavy trolley up the stairs, and twisting in order to do so, those twisting movements were more likely to put rotating strains on the discs and joints and thus would have aggravated the problem.

37 The contemporaneous medical evidence also supports the proposition that the injury, in respect of which compensation was paid by the plaintiff, was the injury sustained in the slipping incident and as a result of the carrying work. On 26 November 2009 Dr Ansari took a full history from Azzopardi. In it he stated that he had aggravated his problem from 2007 (which is the date on which Azzopardi, commonly, considered the slipping accident occurred). In June 2009, Azzopardi was referred to Dr Freilich, a neurologist, who stated that for the previous twelve months he had been experiencing numbness in the left leg and lumbar back pain. The report of the physiotherapist, Ms Michelle Tanner, stated that she assessed Azzopardi on 3 December 2009, and he reported severe low back pain for the previous two weeks while working as a cleaner.

38 In early 2010, Dr Ansari referred Azzopardi to Mr de la Harpe, an orthopaedic surgeon. He told Mr De La Harpe that he suffered pain when he fell down stairs at work in 2007, and that his pain was aggravated by lifting work that he was performing at work. He described how, during the previous three months, his back pain had become more worse. In February 2011, he was referred, on behalf of the workers compensation insurer, to Dr Phillip Mutton, a consultant occupational physician. Dr Mutton examined Azzopardi in January 2011. He formed the view that Azzopardi was not fit for his pre-injury duties as a cleaner, and that he was likely to require significant modification in his duties.

39 In July 2011, Azzopardi was examined by Mr Michael Shannon, a surgeon. Mr Shannon noted the history of Azzopardi falling down some steps and injuring his back. He also noted the history that Azzopardi's injury became worse after lifting chemicals and crates of milk. He formed the view that that work, and the fall, had resulted in aggravation of Azzopardi's pre-existing disc degeneration, and that he was thus not fit for unrestricted work as a cleaner.

40 Pausing there, the evidence to which I have referred, supports the following propositions. First, Azzopardi aggravated the pre-existing degenerative changes in his lumbar spine as a result of the slipping incident in May 2006, and he further aggravated that injury as a result of the carrying work. Secondly, there was no separate incident involving injury to the back on 17 October 2008. Rather, it is clear from all the evidence that the claim for compensation made on 21 October 2008 was in respect of the back injury sustained by Azzopardi, which was substantially due to the two causes I have just described. Thirdly, by the time Azzopardi ceased working at the defendant's site in late 2009, he was not fit to work full time as a cleaner. Rather, he was suited, at most, for light cleaning duties. Fourthly, the work at the Melbourne Airport may well have exacerbated his underlying symptoms. However, the unchallenged evidence of Azzopardi was that the claim for compensation, that he made for injury sustained at the airport, was not accepted by the insurer.

41 That evidence of Azzopardi, which I accept, is supported by the report of Professor Buzzard, which was tendered in evidence. In that report, Mr Buzzard was of the view that Azzopardi's injury resulted from the falling incident and the work involving lifting weights on the trolley. He stated that he could not elicit a history of any specific incident occurring on 2 March 2012 (while Azzopardi was working at the airport). In that context, it is understandable that, having received Mr Buzzard's report (dated 9 October 2012), the insurer denied liability for any injury alleged to have occurred while Azzopardi was working at the Melbourne Airport.

42 It follows, from the foregoing, that I am satisfied, on the balance of probabilities, that the compensation, paid by the plaintiff to and on behalf of Azzopardi, and for which the plaintiff remains liable to pay to and on behalf of Azzopardi, was in respect of the injury sustained by Azzopardi, first, in the slipping incident on 3 May 2006, and which was further exacerbated by the carrying work. Further, it was not paid in respect of the injury sustained by Azzopardi while working for Baringold at the airport. It therefore follows that the injury, for which compensation has been paid by the plaintiff, was in respect of an injury to Azzopardi caused in circumstances, which, in the present proceeding, the plaintiff claims gave rise to a liability by the defendant to pay damages to Azzopardi.

Second issue (part one): liability of the defendant for the slipping incident

43 The second issue, therefore, is whether the injury, sustained by Azzopardi in the slipping incident and as a result of performing the carrying work, which was the subject of compensation payments made by the plaintiff, was caused under circumstances creating a liability in the defendant to pay damages to Azzopardi.

44 The first part of that issue involves the question whether the injury, sustained by Azzopardi in the slipping incident, was caused under circumstances creating a liability in the defendant to pay damages to Azzopardi.

45 Azzopardi was the only witness who gave direct evidence as to the circumstances in which he fell. As I stated, the date of that fall has been fixed, by reference to the documentary evidence, as occurring on 3 May 2006. On that day, Azzopardi had been cleaning the bag house area, which was the location where the defendant kept the eye wash and overhead showers. That area is situated on the first floor of the building in which it is located. It is accessed via a set of steel stairs outside the building. The stairs comprised a number of different flights, which were interrupted by a series of landings. The first flight, on which Azzopardi fell, had five steps. The surface of the steps consisted of a steel grate made from smooth steel bars.

46 On the day of the slipping incident, Azzopardi completed cleaning the bag house area at about 2.30 pm. He then proceeded down the stairs, holding the handrail with one hand, and holding, in his other hand, a bucket for the cleaning materials and a bag of rags. As he reached the lowest two steps on the last set of stairs before the ground level, he stated that his leg 'just went and I fell down'. He said that when he was coming down the stairs, he noticed that they were brown, dusty and slippery. The defendant's employees had been using a hose to wash the extra steel dust off the steps and collect it in a pit underneath it. He said that, as a result, the steps were slippery, and he fell.

47 As I have already stated, on the next day, 4 May, Azzopardi reported the incident to the defendant's medical centre. The nurse, in her report, noted that Azzopardi told her that he slipped while he was coming down the steps, because there were no nonslip pads on the steps. In the accident report form, Mr Cahoon, based on information given to him by Azzopardi, noted that Azzopardi stated that he slipped on the stairway due to the steps being wet and slippery. He said that the stairway was coated in dust and was wet thereby making it slippery.

48 Although Azzopardi's evidence as to the circumstances of the fall was somewhat vague, on the totality of the evidence I am satisfied, on the balance of probabilities, that the incident occurred as a result of Azzopardi slipping on the wet lower steps in the last flight of stairs which I have described.

49 Azzopardi was not crossexamined as to the circumstances of the fall, or as to his evidence that the stairs were slippery. No other lay evidence was called by either party as to the circumstances of the fall, or the condition of the steps. The only other witness, relating to that issue, was Mr Geoffrey Waddell, an engineer, who, at the request of the plaintiff's solicitors, interviewed Azzopardi and then inspected the site on 11 June 2014. Mr Waddell gave evidence in the trial, and two reports, prepared by him, were tendered as part of his evidence in chief.

50 Mr Waddell concluded that the steps were deficient in two principal respects. First, the set of stairs, on which Azzopardi fell, did not comply with cl 4 of the Australian Standards 1657-2013 entitled 'Fixed platforms, walkways, stairways and ladders - design, construction and installation'. Secondly, Mr Waddell was critical of the surface of the steps, and, in particular, the fact that they were not slip resistant.

51 In respect of the dimensions of the steps, Mr Waddell referred to cl 4.3 of the Standard, which requires that:

(a) all risers and goings, in the same flight of stairs, shall be of uniform dimensions within a tolerance of plus or minus 5 millimetres;

(b) each riser shall be not less than 150 millimetres and not greater than 215 millimetres;

(c) each going shall be not less than 215 millimetres and not greater than 305 millimetres;

(d) the product of the going, measured in millimetres, and the riser, measured in millimetres, shall be not less than 45,000 and not greater than 48,000;

(e) the tread width shall be not less than the going and there shall be a minimum overlap of 10 millimetres.

52 Mr Waddell, on measuring the set of steps on which Azzopardi fell, found that the risers measured (from the top down) 168 millimetres, 187 millimetres, 173 millimetres, 179 millimetres and 154 millimetres; and that the goings measured 211 millimetres, 195 millimetres, 197 millimetres and 203 millimetres. He therefore concluded that the risers and goings were not of uniform dimensions within the specified tolerance of plus or minus 5 millimetres. The risers and goings are required to be uniform within that tolerance in order to allow stair users to regulate their stepping on stairs. He said that people tend to anticipate the position of the next step, based on the dimensions of the steps that they have already descended. If the dimensions are not uniform, the risk of slipping on the tread is increased.

53 Mr Waddell further found that while the dimensions of the risers were within the range specified, the goings were not. In that respect, the goings were too short, which contributed to the risk of overstepping on a tread while descending stairs. In such a case, a person is more likely to slip, trip or overstep. In his evidence, Mr Waddell stated that relatively small differences in dimensions can create a quite substantial risk of slipping or falling.

54 Mr Waddell next found that the product of the goings and risers was 34,698, which was well below the minimum allowed. As a consequence, the stairs were too steep, which, he said, contributed to the risk of slip or trip on the stairs.

55 Further, contrary to the Standards, the nosings on the steps were not highlighted. By reference to a photograph contained in his report, Mr Waddell demonstrated how, as a consequence, it would be difficult for a person descending the stairs to easily detect where one step ended and the next step commenced. In particular, a person descending the stairs would, in his or her field of vision, see a number of pieces of metal grating, the ends of which were not visibly defined. He stated that that difficulty increased the likelihood that a person descending the stairs might miss his step, overstep, or lose rhythm, and thereby contribute to a slip, trip or fall.

56 Finally, Mr Waddell noted that the handrail on the stairs sloped at 32 degrees, whereas the stairs sloped at 40 degrees. The Standard required that the handrail be parallel to the angle or slope of the stairway. Mr Waddell stated that where the handrail on stairs does not run parallel with the stairs, a person's perception of where each tread is can be compromised, thus resulting in an increased risk of slip or trip.

57 Finally, Mr Waddell referred to the surface of the steps. He stated the steps had an open grid style, which enabled them to be washed, and which, if a person is wearing chunky boots with a chunky sole, can give a good grip. However, unlike the flight of stairs immediately above the flight in question, the surface of the steps was not castellated or toothed. In his evidence, he stated that the steps only had a smooth grid, so they became more slippery when they became wet.

58 Based on those matters, Mr Waddell considered that the stairs, on which Azzopardi fell, were unsafe. He said it was not surprising that Azzopardi eventually slipped on them.

59 In crossexamination, Mr Waddell agreed that the lighting in the area of the stairs was satisfactory, and that a person descending the stairs has a good vision from the landing to the ground. He said that it would be possible to delineate the nosing of the steps adequately, notwithstanding that the area itself was very dusty. Mr Waddell suggested that it would be appropriate to use a plate nosing with a jagged surface, which would be slip resistant.

60 Based on that evidence, Ms Sheehan, who appeared for the plaintiff, submitted that, as the occupier of the site, the defendant had breached its duty to take reasonable care to ensure that the plaintiff would not be injured by reason of the state of the stairs on which he fell. In particular, she relied on the combined effect of the disconformity of the stairs with the Australian Standard, and the fact that the stairs did not have a slipresistant surface while wet, to establish the proposition that the condition of the stairs, at the time of Azzopardi's fall, constituted a reasonably foreseeable risk of injury to Azzopardi. She acknowledged that Baringold, his employer, had a nondelegable duty to ensure that Azzopardi's workplace be reasonably safe. However, she submitted that the condition of the stairs, and the removal of any hazard in relation to those stairs, were very much in the control of the defendant, and not Baringold. Accordingly, she submitted that liability for the fall should be apportioned as to 75 per cent to the defendant, and 25 per cent to Baringold.

61 In response, Mr Grainger submitted that the fact that the stairs, on which Azzopardi fell, could have been made safer, did not mean that the condition of the stairs was such that the defendant had breached its duty of care which it owed to Azzopardi as the occupier of the premises. Mr Grainger pointed out that there was no evidence that anyone else had slipped on the stairs. The defendant's manufacturing works had been situated at that location for a long period of time. The stairs were used regularly on a daily basis. There was no evidence that the defendant had any knowledge that the condition of the stairs, on which Azzopardi fell, was in any way unsafe.

62 Mr Grainger further submitted that, if the defendant is liable to Azzopardi in respect of the fall, there was contributory negligence on behalf of Azzopardi, in failing to keep a proper lookout. He submitted that the damages, to which Azzopardi would be entitled at common law, should be reduced by 20 per cent in consequence of that contributory negligence. In addition, he submitted that the condition of the premises, on which Azzopardi was working, came within the responsibility of Baringold as the employer of Azzopardi, who owed a nondelegable duty of care to Azzopardi in that respect. Mr Grainger submitted that, accordingly, if the defendant were held to be liable to Azzopardi in respect of the circumstances of the fall, Baringold should also bear 50 per cent of the legal liability in respect of any damages to which Azzopardi would have been entitled in respect of the injuries sustained by him in consequence of the fall.

63 As occupier of the site, the defendant owed a duty to Azzopardi, pursuant to s 14B(3) of the Wrongs Act 1958, to take such care as in all the circumstances was reasonable to see that Azzopardi, or any person in Azzopardi's position on the premises, would not be injured or damaged by reason of the state of the premises. Mr Grainger submitted that the provisions of Part 10 of the Wrongs Act, and in particular ss 48, 49 and 51 of the Act, apply to the question whether in all the circumstances the defendant had breached that duty of care to Azzopardi. Ms Sheehan did not submit to the contrary. The submission made by Mr Grainger is supported by the decision of Beach J (as his Honour then was) in Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd.[1] I respectfully consider that his Honour's conclusion, in that respect, is correct. Accordingly, in determining whether there was a breach by the defendant of the duty which it owed to Azzopardi as the occupier of the site, it is necessary to take into account the matters prescribed in ss 48 and 49 of the Wrongs Act.

64 The question as to whether the defendant, in the circumstances, breached its duty of care to Azzopardi, is somewhat difficult. The description, which Azzopardi gave in relation to the incident, in his evidence, was quite brief. Understandably, he does not have a detailed recollection of the precise circumstances in which he fell. However, as I stated, I am persuaded on the balance of probabilities, that the fall occurred because he slipped on the wet steps as he was descending them.

65 The fact that the steps were, in a relevant sense, slippery, is supported by the evidence of Mr Waddell. His unchallenged evidence was that the surface of the steps was smooth and, on becoming wet, slippery, particularly if, as would have been the case, Azzopardi would have had dust on the soles of his boots. Further, the nosing of the steps did not have a slipresistant surface, which would have assisted to prevent the type of fall in which Azzopardi was injured.

66 Taken on its own, the evidence of Mr Waddell, as to the disconformity of the dimensions of the steps with the Australian Standards, would not, in my view, be sufficient to constitute a breach of the duty of care owed by the defendant to Azzopardi. However, as Mr Waddell explained, each of those aspects, in which the steps did not conform with the Australian Standards, increased the risk that a person descending the stairs might slip or fall. In circumstances in which the stairs in question were, it would seem, regularly made wet to wash away the dust on them, and in circumstances in which those stairs did not have a slipproof surface, those matters of disconformity with the standards compounded the risk of injury, resulting from the slip, to a person descending the stairs.

67 There was little evidence as to the extent to which the steps were used on the defendant's site. However, they did provide access to the bag house, which, from its description, was a functional part of the defendant's premises. It might therefore be inferred, as a matter of probability, that the stairs were in reasonably common use at the time. As Mr Waddell explained, a person or persons, descending the stairs, might do so safely on a number of occasions, notwithstanding the matters to which Mr Waddell drew attention. However, each of those matters, as a matter of probability, increased the risk of someone eventually slipping, falling and suffering injury.

68 The question whether, in those circumstances, the condition of the stairs on which Azzopardi fell, was such as to constitute a breach of the defendant's duty of care to him is, I consider, a rather borderline issue. However, taken together, in my view, the wet and slippery state of the stairs, the lack of the slipproof surface on them, and the disconformity of the stairs with the Australian Standards referred to by Mr Waddell, did constitute a not insignificant hazard of slipping to a person descending those steps. In this respect, I note that, as remedial action, Mr Cahoon implemented a system whereby the cleaners would be provided a bag in which to carry their materials, so that they would be able to maintain threepoint contact while descending the stairs. The lack of that remedial action, before the injury to Azzopardi, does not, of itself, bespeak negligence on behalf of the defendant. However, it does highlight the risk which the stairs posed to persons descending them, particularly in circumstances where they might not necessarily be able to maintain a threepoint contact on the stairs while doing so.

69 In those circumstances, I am persuaded, on the balance of probabilities, that the defendant failed to exercise reasonable care to ensure that the plaintiff did not sustain injury by reason of slipping on the stairs, and that the injury to Azzopardi was a consequence of that negligence on behalf of the defendant.

70 Mr Grainger submitted that, in the event of such a finding, I should also be satisfied that there was contributory negligence on behalf of Azzopardi. However, he did not point to any particular action or omission by Azzopardi, which would constitute relevant contributory negligence on his part. It was not suggested that Azzopardi was failing to keep a proper lookout, that he was walking too quickly, or that he was performing some inappropriate action at the time. In those circumstances, I am not persuaded that there was any contributory negligence on behalf of Azzopardi.

71 It is, of course, common ground that Baringold, as the employer of Azzopardi, at all times owed a nondelegable duty of care to Azzopardi, as its employee, to take reasonable care to avoid exposing him to unnecessary risks of injury.[2] That responsibility included an obligation by the employer to take reasonable care to ensure that the employee's place of work was reasonably safe, so as to avoid exposing the employee to unnecessary risk of injury. In this case, Baringold had little control over the physical state of the defendant's premises, and, in particular, the state of the stairs on which Azzopardi fell. However, it was responsible for ensuring that Azzopardi be provided with adequate equipment, and that he receive adequate instruction, so as to protect him from any aspect of the premises which might be unsafe. In that respect, it is relevant that Baringold had not provided Azzopardi with a bag with which to carry his materials, so that he could maintain threepoint contact while descending the stairs. In those circumstances, and taking into account the nondelegable duty of care owed by Baringold to Azzopardi in respect of the condition of the premises, in my view it is appropriate to apportion liability for the slipping incident, as to 70 per cent to the defendant, and as to 30 per cent to Baringold.

Second issue (part two): whether defendant liable for injury to Azzopardi resulting from the carrying work

72 The next issue is whether the further injury to Azzopardi's lower back, caused by the performance by him of the carrying work, occurred in circumstances creating a liability in the defendant to pay damages to Azzopardi in respect of that injury.

73 I have already set out Azzopardi's evidence about the work, which he performed in replenishing the chemical cleaning material supplies in the area in which he worked, and in distributing milk each day to that area. As I have already noted, a critical feature of that work involved Azzopardi, approximately once per fortnight, hauling a trolley laden with heavy chemical cleaning supplies up the flight of stairs to the melt room. It also involved him, on a daily basis, carrying a heavy crate of milk up the same stairs. In addition, I have noted the medical evidence, which satisfies me, on the balance of probabilities, that that work, as described by Azzopardi, substantially aggravated the degenerative changes in his lower spine, and caused his back condition to become significantly more symptomatic.

74 In his report, Mr Waddell stated that, in his opinion, the carrying work performed by Azzopardi exposed him to a risk of injury, because of the high and unsafe compressive sheer and torsional stresses to which his lower back was repetitively exposed when carrying the trolley upstairs. He stated that there was information, readily available to employers, concerning the risks of strain from unsafe manual handling, together with advice on the methods which might be adopted to prevent such injury. In particular, he stated that alternative methods of performing the carrying work were available, including by installing a dumb waiter, or a similar device, to carry the items upstairs, by ensuring that adequate assistance was provided to the plaintiff by other workers, or by providing a three wheel stair climbing trolley which would have been more suitable to the task performed by Mr Azzopardi. In his evidence, Mr Waddell explained that such a trolley has three wheels on each side of the axle, arranged in a triangular formation. In that way, when the trolley is pulled upstairs, there is always one wheel on the next step up, and two wheels on the step beneath it. Such a configuration makes it a lot easier to pull the trolley over the steps and over the nose of the steps.

75 That evidence of Mr Waddell was supported by some evidence given, in cross-examination, by Mr Cahoon, the site services superintendent of the defendant. Mr Cahoon stated that he was not aware that the cleaners had been using a trolley laden with cleaning materials to transport them upstairs. He stated that such a method of transporting the chemicals would be particularly difficult, and would, indeed, be unworkable. He stated that the trolleys at the defendant's premises are single wheel trolleys, which are not designed for such a task. Rather, it would be necessary to use a three wheeled trolley to haul material up steps in the manner utilised by Azzopardi.

76 Based on that evidence, I am well satisfied that there was a clear breach of the duty of care owed to Azzopardi by Baringold as its employer. Indeed, Ms Sheehan did not seek to contend to the contrary. The system of work adopted by Azzopardi was clearly unsafe and involved a significant risk of injury to him. He was not provided with adequate equipment, such as a three wheeled trolley. Nor was he given proper instruction, his work was not adequately supervised, and he was not given adequate assistance. While I appreciate that the one wheel trolley had been provided to Azzopardi by the defendant, nevertheless, the obligation to ensure that Azzopardi be provided with adequate equipment to perform his task lay squarely on the shoulders of Baringold, the employer.

77 Thus, I am satisfied, and indeed it was accepted, that the injury to Azzopardi's back, arising from the performance by him of the carrying work, was caused by the breach by Baringold, of its duty of care to Azzopardi as his employer. The critical question is whether that injury occurred in circumstances in which the defendant was also liable for breach of a relevant duty of care owed by it to Azzopardi.

78 Ms Sheehan, on behalf of the plaintiff, submitted that there were a number of aspects, relating to the performance by Azzopardi of that work, which had the effect that the defendant had assumed a duty to take reasonable care to ensure that he did not suffer injury as a result of carrying out that work at the defendant's premises. She relied on the fact that the premises, on which the injury occurred, were the defendant's. In addition, the defendant supplied the trolley by which Azzopardi performed the carrying work. It was the defendant who delegated to Baringold's cleaning staff, and thus Azzopardi, the task of carrying quantities of milk each day to the areas which were the responsibility of each cleaner. Ms Sheehan also relied on the response by the defendant to the report by Azzopardi of the slipping incident in May 2006. She pointed out that as a result of that report, the defendant instituted changes to the work practices at the site, including reinforcing to Baringold's employees the need, at all times, to retain threepoint contact when ascending and descending stairs at the premises. Ms Sheehan submitted that that action by the defendant evidenced the exercise by it of a degree of control over the manner in which Baringold's employees carried out their daily tasks at the defendant's premises.

79 In response, Mr Grainger submitted that there was nothing about the carrying work performed by Azzopardi that had the effect that the defendant assumed to him a duty of care in respect of that work, over and above its duty as the occupier of the site. Mr Grainger pointed out that, as the employer of Azzopardi, Baringold had a special non-delegable duty to take reasonable care to avoid exposing Azzopardi to unnecessary risks of injury while performing the carrying out.[3] In that respect, he submitted that the decision of the High Court in Leighton Contractors Pty Ltd v Fox & Ors[4] reinforced the proposition that the special duty of care owed, by an employer at a worksite to its employees at the site, did not extend to a duty of care owed by that employer to an independent contractor, or to an employee of an independent contractor, at the site.

80 Mr Grainger submitted that, in order to establish that the defendant owed a duty of care to Azzopardi in respect of the carrying work performed by him as an employee of Baringold, the plaintiff must demonstrate that the defendant had a relevant degree of control of the manner in which Azzopardi performed the work, or of the risk associated to Azzopardi with the performance of that work, or that it had sufficient knowledge of that risk in circumstances in which Baringold was unaware of it. Mr Grainger submitted that there was no evidence to that effect in this case. Rather, Baringold had its own supervisor at the defendant's site. Baringold, and not the defendant, retained the right to direct the manner in which Azzopardi performed the carrying work. Accordingly, Mr Grainger submitted that the defendant did not assume any duty of care to Azzopardi in respect of the performance by him of the carrying work, apart from the duty which it owed to him as the occupier of the site.

81 The principles, relating to the question whether a party, in the position of the defendant, assumed a relevant duty of care to an employee of a contractor who works on its site, have been considered in a number of authorities, and are relatively settled.

82 The seminal authority is the decision of the High Court in Stevens v Brodribb Sawmilling Company Pty Ltd.[5] In that case, the defendant saw miller engaged sniggers, as independent contractors, to move felled trees. An employee of the defendant had general supervision over the operations, but he did not exercise any control over the manner in which the sniggers and truckers carried out their tasks. While a log was being manoeuvred onto a truck in the work area, a trucker, engaged as an independent contractor, was injured by the negligence of a snigger. The High Court held that neither the trucker nor the snigger was an employee of the defendant, so that the defendant was not vicariously liable to the trucker for the negligence of the snigger. It further held that the defendant did assume a duty of care to the snigger, on the basis that the defendant organised the system of work undertaken by the truckers and the sniggers, and thus organised the system which involved a risk of injury to those who were engaged in it. However, the court (Deane J dissenting) held that the defendant, in the particular circumstances, did not breach its duty of care to the injured trucker.

83 In the course of his judgment, Brennan J stated the relevant principles as follows:

An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk ... and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury.[6]

84 That passage, from the judgment of Brennan J in Stevens, was subsequently quoted with approval by the Court, in its joint judgment, in Leighton Contractors Pty Ltd v Fox & Ors.[7] In that case, the High Court reinforced the critical distinction between the position of an employer and the position of an independent contractor at a worksite, in determining whether an occupier of the site owed any duty of care to an employee of a contractor on its site.[8]

85 In order that an occupier of a work site be found to owe a duty of care to an employee of a contractor who is engaged to work on the site, it is necessary that there be some particular circumstance or element in the relationship between the occupier and the employee, or in conduct of the activities on the site, which was such as to give rise to a duty of care on behalf of the occupier.

86 As I have already noted, in Stevens, the High Court considered that a duty of care arose because the saw miller organised the felling, snigging, loading and logging operations on its site, which were performed by both the snigger and the injured trucker, and which involved a risk of injury to those persons.

87 Similarly, in Thompson v Woolworths (Queensland) Pty Ltd,[9] the owner of a supermarket was found to owe a duty of care to a contractor engaged to deliver bread to the supermarket, who was injured while attempting to move heavy industrial waste bins that obstructed access to the delivery bay. In that case, the plaintiff was required to conform to the delivery system established by the defendant, she was directed by the defendant where, when and how she was to deliver the bread, and she was required to unload it at a designated place. In those circumstances, the Court held that the defendant had assumed a duty to exercise reasonable care to ensure that its system did not expose people, who made deliveries to its premises, to an unreasonable risk of physical injury while conforming with the system of delivery prescribed by the defendant.[10]

88 In Pacific Steel Constructions Pty Ltd v Barahona,[11] the New South Wales Court of Appeal held that a principal contractor for a construction site was not liable to an employee of a subcontractor who fell from a ladder at the site while attempting to work on a steel beam. In reaching that conclusion, the court noted examples of cases in which a principal contractor has been held liable to owe a duty of care to an employee of an independent contractor. Those examples included: cases where the configuration of the principal's work site brought with it a safety risk; cases where the principal created the conditions in which there was a risk in the system of work and the principal retained some control of it; and cases in which the principal exercised overall control over the activities on the premises.[12]

89 In Pacific Steel, the court quoted with approval a passage from the judgment of Basten JA in Sydney Water Corporation v Abramovic,[13] in which his Honour stated:

..., the principal may also owe a duty to a worker who is an employee of an independent contractor. The legal question is to identify the criteria which must be satisfied to give rise to such a duty of care. The cases suggest that satisfaction of one of the following criteria may give rise to such a duty:

(a) The principal directs the manner of performance of the work;

(b) The work requires the coordination of the activities of different contractors;

(c) The principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;

(d) The principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;

(e) Although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.

90 In addition to those factors, it is also relevant to take into account the contractual arrangements between the occupier of the site (or the principal contractor), and the employer of the injured worker on the site. In particular, a relevant inquiry is whether those contractual arrangements involved an obligation by the occupier of the site to assume any particular role in assuring the safety of the employer's workers on the site.[14]

91 In light of those principles, it is necessary to refer to some of the evidence that was given in relation to the manner in which Azzopardi performed his work at the defendant's site.

92 I have already summarised the evidence of Azzopardi relating to the performance by him of the carrying work. In addition to that evidence, he also stated that when he commenced at the defendant's site, the defendant conducted an induction session on safety as to the matters of which to be aware, such as overhead cranes. He was instructed that if he was climbing stairs and if he had a trolley, he must have one hand on the rail and one hand on the trolley. The defendant also provided him with safety equipment that he was required to wear at the site.

93 Baringold had approximately ten employees on site, including a supervisor, Paul Harrigan. Mr Harrigan also carried out cleaning work in the medical centre and the storage area. Each morning, Mr Harrigan conducted a meeting at about 6.00 am, in which he would detail to Baringold's employees their tasks and tell them as to any particular matters which were relevant. During the day, he would attend at their work areas to see if they were alright, and he would also then tell them what work they were to do on the next day.

94 In respect of the carrying work, Azzopardi stated that he used a trolley that had been supplied by the defendant. He described that work in terms I have already summarised. He said that he was supposed to move the cleaning chemicals with the assistance of a fellow employee, but that the person, who had been allocated that task by Baringold, was then trying to obtain employment at the defendant, and he would always 'disappear' in order to try to achieve that end.

95 Azzopardi stated that from time to time, at the daily meeting, he would ask that a dumb waiter be installed at the premises in order to assist him with moving the cleaning chemicals and the milk supplies. He said that Paul Harrigan would attend the meetings together with personnel from the defendant.

96 In cross-examination, Azzopardi stated that the Baringold cleaners were first given the task of conveying the milk supplies to their cleaning areas at a meeting attended by the defendant's employees, who told them that their duties were changing, and that part of their new duties was to deliver the milk, and related supplies such as coffee and sugar, to the work areas. Azzopardi stated that, from time to time, employees of the defendant would attend the meetings to advise of a particular event, such as if a furnace was closing down for maintenance. However, the defendant's employees did not give Baringold's cleaners day to day operational instructions, as it was Paul Harrigan who would do that.

97 Azzopardi, in cross-examination, also maintained that he complained to Gary Cahoon, the defendant's site safety manager, every day about the stairs, and he said he would ask if there was another way of carrying the chemicals up the stairs. In particular, he asked if he could have a dumb waiter installed.

98 Mr Victor Molina, a fellow employee of Azzopardi, gave short evidence in support of the plaintiff's case. He had been employed at the defendant's premises for about seven years as a cleaner. He confirmed that each day Baringold's employees were required to carry a crate containing cartons of milk for the relevant work areas. He said that he attended a meeting, at which it was suggested putting in a lift, in order to avoid having to carry the milk upstairs.

99 Patrick Dalton, the regional client services manager of ISS Facility Services, gave brief evidence as to the relationship between ISS and the defendant. He stated that the contract was a labour only contract, by which ISS[15] supplied employees to carry out tasks. Dalton attended the site about once each fortnight, to discuss any operational matters with Paul Harrigan, such as invoicing. He stated it was not part of his role to supervise or check the work done by the employees.

100 The final witness on behalf of the plaintiff, on this aspect of the case, was Mr Paul Harrigan. Mr Harrigan stated that when he worked at the defendant's site, he answered to Charlie Borg, an employee of the defendant, who controlled site services, and who was overseen by Gary Cahoon. He said that Borg would tell him what work was to be performed by Baringold's cleaners.

101 Mr Harrigan confirmed that each morning he would have a meeting with the cleaners and discuss work practices, and remind them about safety matters. He said that if there was any change in the duties, or in the areas to be cleaned, Charlie Borg would attend and explain what the change was. Mr Harrigan stated that, after the meeting, he would then carry out his own cleaning duties in the medical centre, the human resources centre and the locker room.

102 Mr Harrigan said that the defendant's supervisor would give the Baringold cleaners a requisition telling them how much milk needed to be taken to a particular area. The cleaner in question would proceed to the canteen and receive the milk, and then convey it to his area.

103 In cross-examination, Mr Harrigan said that he was the only supervisor employed by Baringold at the site. He said that Charlie Borg would tell Baringold's cleaners what areas needed to be cleaned, and that he (Harrigan) would arrange the cleaners to attend to those areas. For that purpose, he would pair the cleaners into a team. Mr Harrigan stated that he did not ever see Mr Azzopardi moving the milk or moving chemicals on a trolley.

104 In response, the defendant called two witnesses, Gary Cahoon, and Carmelo (Charlie) Borg.

105 Gary Cahoon was the site services superintendent at the defendant's site. He said that Paul Harrigan was the supervisor in respect of the ISS employees. Harrigan was responsible for determining which employee worked in a particular role. If the defendant had an issue relating to the cleaning of the site, Cahoon would speak to Harrigan, and he would determine how many people had to do a particular task. Mr Cahoon said he did not exercise any day to day supervision or inspection of the cleaning staff, because that was Harrigan's role. He would only become involved in Baringold's work if there was a complaint from someone about the work.

106 Mr Cahoon further stated that the defendant did not have any control over where the particular cleaners worked. The only control, that the defendant had over the equipment used by the cleaners, was that they were required to use a particular mop for the toilet areas, and a different particular mop for the lunch room. The defendant also supplied buckets, wipes, consumables, and trolleys. He said that the defendant conducted an induction process for all workers attending on the site, whether they be employees or contractors. However, the defendant did not instruct the cleaners how to clean, because they were expected to know how to perform their own work.

107 In cross-examination, Mr Cahoon stated that there was no written contract between the defendant and ISS. He said that during the time that ISS was the contractor, he did not undertake an assessment of the weights that the cleaners were required to carry on the site. He confirmed that generally it was not his role to supervise the cleaners.

108 Mr Cahoon agreed that Paul Harrigan not only supervised the cleaners, but that he also did cleaning work. He confirmed that part of the cleaners' duties included to deliver milk, but he understood that they carried the milk in a carry bag with a shoulder strap. He had never seen anyone carry milk upstairs in a crate. He was not aware that cleaners carried more than half a dozen bottles in a carry bag up the steps. Mr Cahoon also stated that he had not seen cleaners pull trolleys, laden with cleaning chemicals, upstairs. As I have already stated, he considered that that would not be possible, because the trolleys were not suitable for carrying items upstairs. He said that the storage cupboards in the local areas were not large, so that the cleaners would not be required to carry large quantities of cleaning chemicals there at any time.

109 Mr Borg, the supervisor of building services of the defendant, stated that Paul Harrigan was his point of contact with Baringold's cleaners. If there was any task that needed to be performed, he would inform Harrigan, who would then arrange for it to be done. He did not give Harrigan any specific instruction as to how Baringold's cleaners were to perform their work. They were professional cleaners, and they were expected to know how to do their work. Mr Borg only occasionally attended the meetings which Harrigan conducted with the cleaners. He said he never saw Tony Azzopardi, or any other cleaner, carrying crates of milk upstairs, or drag a trolley upstairs. He said that Paul Harrigan was around the site all the time supervising, and the cleaning work he performed would only have consumed about two hours of each day.

110 In cross-examination, Mr Borg said that it was the responsibility of Mr Harrigan to ensure that they were carrying out their work safely. Mr Borg only attended the morning meetings with cleaners, when there was something particular that needed to be communicated to them. He agreed that, in order to convey the milk to the work areas, it had to be carried upstairs, and it could have been conveyed in a crate. He said that the defendant did have carry bags available for conveying the milk. He did not recall seeing the cleaners carrying cleaning chemicals upstairs. Nor could he recall Tony Azzopardi or Mr Molina suggesting that a dumb waiter be installed to take heavy items upstairs from the ground level.

111 The main point of difference, in the evidence that I have just summarised, concerns whether Mr Azzopardi and Mr Molina complained to any relevant employee of the defendant about the work of conveying the milk and the chemicals, and, in particular, the absence of a dumb waiter or a similar device to assist with that task.

112 I consider that each of the witnesses, who gave evidence before me, were honest, and that they each endeavoured to give truthful evidence based on their recollections. However, Mr Azzopardi was not an accurate historian, and his memory as to some matters did not seem particularly good. Mr Molina had a number of health issues, and, although I considered him to be honest, I did not consider his evidence to be reliable. On the other hand, I considered Mr Cahoon and Mr Borg had reasonably good recollections of the events about which they gave evidence. In those circumstances, I am not satisfied on the balance of probabilities that the difficulties involved in carrying the milk crates, and in conveying the chemical cleaning supplies, particularly up the stairs to the melt room, were at any relevant time communicated to the defendant. Nor am I satisfied, on the balance of probabilities, that the desire of Mr Azzopardi and Mr Molina, that a dumb waiter be installed, was conveyed to an employee of the defendant, and, in particular, to Mr Cahoon or Mr Borg.

113 Based on that evidence, I do not consider that there was any circumstance or factor upon which to base a duty of care by the defendant to Azzopardi, apart from its duty to him as the occupier of the premises.

114 The clear evidence is that the defendant contracted the function of cleaning the premises to Baringold, Azzopardi's employer. That function included conveying stocks of cleaning chemicals to the areas which were to be cleaned, and conveying quantities of milk to those areas. The defendant did not, in any respect, assume any degree of control or direction in relation to how Baringold's employees were to perform those tasks. On the contrary, Baringold's supervisor, Mr Harrigan, was responsible for allocating the tasks to Baringold's employees, and for supervising their work. There is no evidence that the defendant exercised, or agreed to exercise, any degree of direction or supervision in respect of the manner in which Baringold's employees carried out their work at the premises.

115 Further, I am satisfied that the defendant's relevant employees, namely Mr Cahoon and Mr Borg, were not aware that Azzopardi was conveying the cleaning chemicals up the stairs to the melt room by use of a one wheel trolley. On the other hand, it was the responsibility of Baringold, as Azzopardi's employer, to sufficiently supervise him, and, if that duty had been discharged by it, Baringold would have been aware of the manner in which Azzopardi was performing that aspect of his employment.

116 It is correct, as Ms Sheehan points out, that the trolley was provided by the defendant. However, as Mr Cahoon stated, the trolley was provided for the purpose of conveying supplies and materials on a flat surface, not up a set of stairs. The responsibility for devising a safe method of conveying the cleaning materials, and the crates of milk, up the stairs, was that of the employer, Baringold.

117 Ms Sheehan also relied on the fact that after the slipping incident of May 2006, the defendant instituted some changes, including reinforcing its instruction to the employees of contractors at the site that they must at all times maintain threepoint contact when ascending and descending stairs. However, in taking those steps, the defendant was not, in any way, assuming the responsibilities of, or standing in the shoes of, the employer. Rather, it was discharging its responsibility as the occupier of the site, by taking reasonable care to ensure that the type of slipping accidents, in which Azzopardi was injured, not recur.

118 In summary, then, the defendant engaged a specialist cleaning firm, Baringold, to clean its premises. It did not in any way retain the right to instruct Baringold's employees how to carry out their work. It did not devise the system of work for the Baringold employees. Nor did it purport to supervise their work. On the contrary, Baringold maintained its own supervisor on the site for that purpose. It was Baringold's supervisor who allocated particular employees to carry out particular tasks, and who had the responsibility for supervising them, and instructing them how to perform those tasks.

119 In those circumstances, I am not persuaded that the defendant assumed any duty of care to Azzopardi in respect of the carrying work performed by him at the site, apart from its duty to him as the occupier of the premises on which Azzopardi was working. It is not suggested that the defendant was liable to Azzopardi for the carrying work in respect of any breach by it of its duty of care as an occupier of the site. Accordingly, the injury sustained by Azzopardi as a result of the carrying work was not caused in circumstances giving rise to any liability by the defendant to Azzopardi in respect of that injury.

120 The remaining question concerns the calculation of factor A specified by s 138(3)(b) of the Act, namely, the amount of damages for pecuniary loss and non-pecuniary loss, which the defendant is, or would have been, liable to pay to the plaintiff in respect of the injury sustained by him as a consequence of the slipping accident. That amount, of course, constitutes the 'cap' on the amount of compensation which the plaintiff is entitled to recover from the defendant in this proceeding.

121 By the conclusion of the evidence in this case, there was substantial common ground as to the calculation of the amount, which the defendant would have been liable to pay to Azzopardi at common law, on the basis that the defendant were held liable for the injury sustained by Azzopardi as a consequence of both the slipping accident and the carrying work. There were two main points of difference between the parties in respect of that calculation. While I have concluded that the defendant would only be liable to Azzopardi in damages in respect of the slipping accident, and not the carrying work, nevertheless it is useful, first, to resolve those differences.

122 It is common ground between the parties that, as a result of his lower back injury, Azzopardi would have been entitled to loss of weekly earnings for a period of 154 weeks. It is also common ground that Azzopardi will not be able to engage in any form of remunerative employment in the future. The calculation of Azzopardi's past loss of income, past loss of superannuation, past and future medical expenses, and past and future Griffiths v Kerkemeyer[16] damages are all agreed. The only components that remain the subject of any disagreement consist of, first, the amount of general damages that would have been paid to Azzopardi, second, in respect of Azzopardi's claim for loss of future earning capacity, the age at which he would have otherwise retired, and third, the appropriate discount for vicissitudes for future losses.

123 In those circumstances, it is not necessary for me to relate the evidence as to the effects of Azzopardi's injury and disability in any detail. It is sufficient that I am satisfied, on the evidence of both Azzopardi and his wife, that he has been, and will remain, significantly disabled, not only from pursuing his employment, but also from enjoying his day to day life. He suffers chronic back pain, which appears to be deteriorating. His pain, disability and injury have, not surprisingly, taken a toll of his psychological health. I am satisfied on the evidence of Azzopardi, his wife and Dr Ansari, that Azzopardi was a dedicated employee, who enjoyed working, even when he was not fit to do so. He has been deprived of the capacity to engage in gainful employment, and he is clearly distressed that he is now reliant on the income earned by his wife to assist to sustain himself and his family.

124 The overwhelming weight of the medical evidence - apart from that of Associate Professor Graeme Brazenor - is that Azzopardi has sustained significant aggravation of pre-existing degenerative changes in his lumbar spine. As a result, each of the medical practitioners, whose reports were tendered in evidence, came to the view that he has been, and will continue to be, significantly incapacitated from his employment activities and in his day to day life. That evidence was given by Dr Ansari, and by Professor Myers both in his report and in evidence before me. It is also contained in the reports of Mr Russell, Dr Mutton, Mr Shannon, Mr Buzzard and Mr Brownbill. In addition, Dr Kaplan, a psychiatrist, who examined Azzopardi in March 2014, concluded that Azzopardi has developed an adjustment disorder with mixed anxiety and depressed mood as a result of his injury, his chronic pain, his physical limitations, and his inability to work.

125 Ms Sheehan contended that, in those circumstances, Azzopardi would be entitled to general damages in the sum of $230,000. In response, Mr Grainger submitted that the appropriate sum for general damages was $150,000. In my view, if Azzopardi were to be awarded damages in respect of the injury he sustained as a consequence of both the slipping accident and the carrying work, he would be entitled to general damages in the sum of $200,000.

126 There is also an issue between the parties as to whether Azzopardi would have worked to the age of 60 years or 65 years, if he had not sustained injury in the course of his employment with Baringold. In cross-examination, Dr Ansari expressed the view that, by the time he commenced work at the defendant's site, Azzopardi already had degenerative changes in his back, which reflected the fact that hitherto he had already been involved in heavy work. In addition, I note that he had already been involved in two previous incidents involving injury or pain to his back. In my view, if Azzopardi had not suffered the injuries as a result of the slipping incident and the carrying work, he would not have been able to continue work beyond the age of 60 years. On that basis, I consider it is appropriate to apply a 20 per cent discount for vicissitudes in respect of the calculation of his future losses.

127 Accordingly, and using the tables helpfully supplied by counsel for the plaintiff and the defendant, for the purposes of calculating factor A, Azzopardi would have been entitled to damages at common law in respect of the injury sustained as a consequence of both the slipping accident and the carrying work as follows:

128 The computation of factor A is, of course, complicated by the fact that I have concluded that the defendant would be liable to Azzopardi for damages in respect of the slipping incident, but not in respect of the carrying work. The question as to the calculation of factor A, in those circumstances, was not addressed before me. The principles, which apply to such a calculation, are reasonably well established. The difficulty arises in their application in this case.

129 As I have already stated, the evidence demonstrates that, at the time at which Azzopardi commenced his employment at the premises of the defendant, he already had pre-existing degenerative changes in his lower back, which rendered him vulnerable to future injury. I assume that that vulnerability has been taken into account by the parties in their calculation of the relevant discount rates to be applied for the computation of damages for future economic loss.[17]

130 The issue, which remains for me, is an assessment of the damages payable by the defendant in respect of the injury sustained by Azzopardi as a result of the slipping incident, in circumstances in which the defendant is not liable in respect of the further injury sustained by Azzopardi as a consequence of the carrying work.

131 The applicable principles in such a circumstance were helpfully identified by Malcolm CJ in State Government Insurance Commission v Oakley.[18] In that case, his Honour stated:

In my opinion, where the negligence of the defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:

(1) Where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;

(2) Where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and

(3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained included no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.[19]

132 In my view, the circumstances in this case fall within the second category outlined by Malcolm CJ. In his Honour's judgment, he referred to the difficult issue of the evidentiary and legal burdens of proof in such a case. Malcolm CJ adopted the principles stated in the well-known passage of the judgment of Windeyer J in Purkess v Crittenden[20]. In short, in such a case, the defendant bears the evidentiary onus of proof to adduce, or indicate, some evidence 'disentangling' the effects of the two injuries, but the plaintiff carries the legal onus of proving, on the balance of probabilities, the injury sustained by him as a consequence of the negligence of the defendant.

133 The propositions stated by Malcolm CJ in Oakley have been applied subsequently in a number of cases; see, for example, Caltex Tanker Co (Aust) Pty Ltd v Kerr[21]; Government Insurance Office of New South Wales v Aboushadi[22]; Tolhurst v Cleary Bros (Bombo) Pty Ltd.[23]

134 The medical evidence did not, specifically, address the issue as to the contribution of the slipping incident, alone, to Azzopardi's injury, including the fact that it rendered him more vulnerable to further injury in the course of his employment. Professor Myers noted a history involving both the slipping incident, and also the fact that Azzopardi was regularly required to carry heavy items up and down stairs with assistance. In his report, he considered that those matters (globally) resulted in aggravation of the long standing spondylitis and degenerative intervertebral disc disease in the lumbar spine. In evidence, he expressed the view that the fall was the type of incident that could appreciably aggravate pre-existing degenerative disease. As I have already stated, when Azzopardi's evidence as to the work, which he performed pulling a heavily laden trolley upstairs, and carrying milk crates of milk upstairs, was put to him, Professor Myers was of the view that that work was likely to have imposed significant strain on his already weakened discs. In that respect, Professor Myers was particularly concerned that the work performed by Azzopardi, pulling the trolley up the stairs, involved twisting movements, which would have placed rotating strains on his discs.

135 Mr Shannon, the orthopaedic surgeon, examined Azzopardi in July 2011. He took a history which involved a description of the fall down the stairs, and also the work involved lifting the chemicals and crates of milk. In his report, he considered that those matters, combined, resulted in the aggravation of pre-existing disc degeneration, but he did not address the issue as to the contribution of each of those two matters separately to the injury.

136 Mr Russell, who examined Azzopardi in April 2010, took a history in which the fall was described. However, it does not appear that the history involved a description of the carrying work. Mr Russell considered that the fall appeared to have aggravated the degenerative process with a disc protrusion occurring at that time. Dr Mutton, who saw Azzopardi in January 2011, on the other hand, took a history that only included a description of the carrying of a large number of items, including chemicals, in the hand trolley, and moving them up the stairs. The history did not appear to include a description of the fall. Dr Mutton considered that the carrying work might have aggravated the degenerative changes in Azzopardi's lower back.

137 Mr Buzzard, the surgeon, examined Azzopardi in October 2012. The history he took did not seem to include a description of the fall, but rather a description of the work involving lifting supplies upstairs without any assistance, and by using a trolley. Mr Buzzard considered that that work represented an aggravation of the pre-existing degenerative disease in Azzopardi's back. Finally, Mr Brownbill, who saw Azzopardi in March 2014, took a history of the fall. However, that history did not appear to refer to the carrying work, or indeed any other heavy work. Mr Brownbill was of the view that Azzopardi had long-standing multiple level constitutional lumbar spine degenerative changes, which was likely to have been aggravated by his repetitive heavy work activities and, in particular, by the fall. As I have already stated, Mr Brownbill expressed the view that the fall was associated with mechanical forces, which would have aggravated his underlying degenerative changes.

138 The medical evidence, that I have just recited, only assists the exercise of disentangling the injury sustained as a result of the fall from the injury sustained as a result of the carrying work in a general sense. That medical evidence needs to be viewed in light of the history of the progress of Azzopardi's back condition between the time of the fall, and the time when he ceased to work at the defendant's site. In that respect, it is noteworthy that Azzopardi did not seek any medical assistance in relation to his back injury until November 2006, and the first significant consultation was in March 2007. Dr Ansari considered that the consultation which he had with Azzopardi in October 2008 marked the period at which Azzopardi's lower back injury became really serious.

139 Based on that evidence, I am satisfied, on the balance of probabilities, that the slipping accident played a material role in aggravating the pre-existing degenerative changes in Azzopardi's lumbar spine. Notwithstanding the pain that he suffered from that fall, he was nevertheless able to continue working, and indeed performing the heavy carrying work which he described in his evidence. It would appear, from the medical evidence, that the fall not only aggravated his underlying pre-existing changes in his back, but also rendered Azzopardi vulnerable to further injury. On the other hand, it is clear from the evidence that the performance by Azzopardi of the carrying work significantly contributed to, and aggravated, the degenerative processes in his back, and thus made a substantial contribution to his injury.

140 On that basis, I consider that the general damages, which would be payable by the defendant to Azzopardi as a consequence of the slipping incident, would be assessed in the sum of $120,000. In the absence of the carrying work, it would seem that Azzopardi's back would have continued to deteriorate, and that the slipping incident would have played a material role in that process. In those circumstances, the defendant would be liable for a significant part, but not the whole, of Azzopardi's past economic loss. I would also expect that, in the absence of the carrying work, the injury from the fall would have progressively incapacitated Azzopardi in the future, and would have resulted in significant interruptions to his working life. In those circumstances, it would be appropriate to calculate the damages payable to Azzopardi in respect of past and future economic loss, past and future loss of superannuation, past and future medical expenses, and past and future Griffiths v Kerkemeyer damages, as consisting of 60 per cent of the total sum of damages which would have been paid to Azzopardi, if the defendant were liable both for the slipping incident and the carrying work.

141 Based on that conclusion, I would calculate the damages which would be payable in respect of the slipping incident to be as follows:

142 Thus, I conclude that the amount calculated in respect of factor A in the formula contained in s 138(3)(b) of the Act is $410,000. I have earlier stated my conclusion that the percentage in respect of factor "X" (reflecting the extent by which the defendant's negligence caused or contributed to the injury sustained in the slipping accident) is 70 per cent. I shall leave the calculation of the balance of the formula, contained in s 138(3)(b) to counsel.

143 For the foregoing reasons, I have reached the following conclusions:

(1) The injury sustained by Anthony Azzopardi, in respect of which compensation has been paid, or is payable, by the plaintiff pursuant to the Accident Compensation Act 1985, is the injury which is the subject of the plaintiff's claim for indemnity in this proceeding, namely, the injury sustained by him in consequence of the slipping incident of 3 May 2006 and in consequence of the performance by him of the carrying work (that is, the work involving Azzopardi carting cleaning chemicals on a trolley upstairs to the melt house, and the work involving him carrying crates of milk up those stairs).

(2) The injury sustained by Azzopardi, as a result of the slipping incident, was caused in circumstances creating a liability in the defendant to pay damages in respect of that injury.

(3) There was no contributory negligence by Azzopardi in respect of the slipping incident.

(4) For the purposes of factor X in the formula prescribed by s 138(3) of the Act, the extent to which the negligence of the defendant contributed to Azzopardi's injury resulting from the slipping incident was 70 per cent.

(5) The injury sustained by Azzopardi, as a result of performing the carrying work, was not caused in circumstances creating a liability in the defendant to pay damages in respect of that injury.

(6) For the purposes of factor A in s 138(3)(b) of the Act, the amount of damages which the defendant would have been liable to pay to Azzopardi, in respect of the injury sustained as a consequence of the slipping incident, is the sum of $410,000.

[1] [2012] VSC 412, [34]-[37].

[2] Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, [12].

[3] Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, [12].

[4] [2009] HCA 35; (2009) 240 CLR 1 ('Leighton').

[5] [1986] HCA 1; (1986) 160 CLR 16 ('Stevens').

[7] [2009] HCA 35; (2009) 240 CLR 1, 11-12 [20].

[8] See also Elphick v Westfield Shopping Centre Management Company Pty Ltd (2012) Aust Torts Reports 82-107, 66,249-66,250, [61] and following (Whealy JA).

[9] [2005] HCA 19; (2005) 221 CLR 234.

[11] [2009] NSWCA 406 ('Pacific Steel').

[13] [2007] NSWCA 248; (2007) Aust Torts Reports 81-913, 70,255, [98].

[14] Compare Elphick v Westfield Shopping Centre Management Company Pty Ltd (2012) Aust Torts Reports 82-107, 66,252, [73]; Hennessy v Patrick Stevedores Operations & Anor [2014] NSWSC 1716 [58] (Campbell J).

[15] Mr Dalton, and some other witnesses, referred to the employer as ISS. However, it was accepted that Baringold was the employer of Azzopardi, for the purposes of this proceeding.

[16] [1977] HCA 45; (1977) 139 CLR 161.

[17] Compare Clark v Tieman Industries Pty Ltd [2011] VSC 500 (4 October 2011), [136] (Kyrou J).

[18] (1990) Aust Torts Reports 81-003 ('Oakley').

[20] [1965] HCA 34; (1965) 114 CLR 164, 171.

[21] [1999] NSWCA 115 (30 April 1999) (Mason P, Giles JA and Fitzgerald JA).

[22] [1999] NSWCA 396; (1999) Aust Torts Reports 81-531, 66,431-66,432, [22].

[23] [2008] NSWCA 181; (2008) Aust Torts Reports 81-964, 62,002, [121]-[122].