(a) Whether the applicant had devised a safe system for the removal and loading of bollards;

(b) Whether the respondent had departed from that system when adopting the 'bear hug' approach, including whether he was directed to do so by Matt Slater; and

(c) Whether the witnesses called by each party and who gave evidence about the previous two matters were credible and their evidence reliable.

1. The respondent outlined what he claimed was the process for the removal of bollards. He said that first the bolts securing the bollard to the base plate had to be removed. The bollards were encased in a "collar" which stood two-inches above the footpath. Once the bolts were removed, the plaintiff would "wobble" the top of the bollard to ascertain it was no longer affixed. He would then bend at the knees, bear hug the bollard and lift it from the collar and stand it up on the ground. Relevantly, he said that lifting the bollard upward was required due to the presence of the collar. He performed 90% of bollard removals using this method and alleged he was not told that this method was not correct.
2. In cross-examination, the respondent said that he was shown this method by either Adam Slater or Matt Slater, including that he was instructed to squat down to lift the bollard upward. Notably, this differed from an answer he gave to a pre-trial interrogatory, wherein he stated that he was never instructed how to lift bollards other than to wobble them side to side before lifting them. When it was put to him that Matt Slater never instructed him to bear hug then lift the bollard, his response was 'that is the way we did it the whole time I was on site, and I was never told that that was the incorrect way to do it'.
3. It was common ground that a bollard should be rocked, wobbled or wiggled side to side before any attempt is made to move it to ensure it is no longer affixed. The respondent said he would rock the bollards back and forth then side to side to ensure they were not attached to the base plate. With respect to the bollard he was attempting to remove at the time of injury, the respondent stated he 'did a quick wobble... and it felt like it wobbled okay...'.
4. The respondent also gave evidence as to his relationship with Matt Slater, presumably to provide context for why he continued to use the bear hug approach despite admitting he knew it was unsafe. He said he had his job threatened by Matt Slater many times and that Matt Slater had previously ignored his suggestion to lift bollards using an excavator. The respondent's wife also gave evidence as to the respondent's relationship with Matt Slater. She stated that he had told her Matt Slater was not willing to compromise and that there were unsafe work practices onsite.

1. Matt Slater described the system of work that he claimed was used by the applicant for removing the bollards. He said that after the bolts were removed he would 'roll' the bollard away from the boltholes to ensure it was loose. After that, he would lay the bollard back toward himself and a second person would grab and lift the lower end of the bollard. The two people would then be lifting the bollard and carry it to a trailer. Notably, Matt Slater's evidence was that bollards could be 'rock[ed] off' and did not require lifting to be removed from the base plate. Matt Slater claimed that he told the respondent to adopt this process when removing bollards.
2. Josh Drayton, another employee of the applicant who was onsite the day the respondent sustained his injury, gave evidence that mirrored the evidence given by Matt Slater. Drayton said he had never lifted a bollard by himself. He had also never seen Matt Slater do so, nor heard him instruct someone to do so. Adam Slater gave evidence substantially reflecting what both Matt Slater and Josh Drayton described as the correct process of removing bollards.

1. In reasons published 21 December 2021 ('Reasons'), the judge identified the dispute as follows:[8]

The plaintiff alleges that this lift was performed in a manner which was in accordance with the method he had used consistently on a particular project under the direction of the defendant. If he discharges the onus of proof with respect to this allegation, there is no issue that such a method would be in breach of the employer's duty to him.

The defendant alleges that the lift was contrary to a system of work in which the plaintiff had been instructed.

The defendant further disputes the plaintiff's evidence that it was an accepted practice at the relevant site to remove and load bollards single-handedly and the defendant disputes that the plaintiff was expressly instructed to do so.

...

It is common ground that the plaintiff attempted to lift a bollard by himself, which was still bolted to the ground by at least one bolt, such that the attempt was clearly an unsafe practice, and if either specified or tolerated by the defendant, would clearly sound in negligence.

1. After setting out the brief factual background the judge summarised some of the evidence before him. His Honour's recitation of the evidence largely concerned:

(a) The respondent's evidence as to the method for removing bollards;

(b) The respondent's version of events on the day of the injury; and

(c) The respondent's recount of his relationship with Matt Slater.

1. Under the heading 'The evidence' the judge did not mention any of the testimony of Adam Slater or Matt Slater as to the applicant's version of events. In a section headed 'Analysis' the judge referred to the applicant's purported system for removing bollards as described in an answer to an interrogatory,[9] and the potential hazards regarding bollard removal identified in the site induction booklet and SWMS.[10]
2. His Honour then turned to the system for the removal of bolts on the base of the bollards, noting there was no method specified in the site induction booklet or SWMS for the removal of bolts if they could not be removed by using a drill. The judge drew particular attention to the fact that there was no written material as to how it could be adequately ascertained whether the bolts had been fully removed.[11]
3. Following those observations, the judge determined that the applicant should have had a system in place to ascertain if the bolts had been adequately removed, and what method should be adopted if wobbling the bollard was not sufficient.[12] He held that from the applicant's evidence, there was no system in place for removing bollards that were still affixed to the ground, and that it was left to the respondent or Matt Slater to devise such a system.[13] Finding that the respondent followed a system that was, at the least, tolerated by Matt Slater, and that a safe system was not enforced, the judge found the applicant liable in negligence.[14]

1. In support of its application for leave to appeal, the applicant submitted that the judge correctly identified the issues that needed to be determined but, in fact, failed to determine those issues. To repeat, those issues turned on who should be believed as to the system of work devised by the applicant for lifting the bollards once the bolts were removed, what method the applicant instructed the respondent to use and whether the respondent followed that process.
2. Crucially, the applicant submitted, the judge did not mention, at all, the oral evidence given by Matt Slater or Adam Slater as to the way the task of removing the bollards was performed and made only incomplete reference to the evidence of former employee, Josh Drayton. The only credibility finding addressed in the Reasons was where the judge preferred the respondent's version as to his 'relationship' with Matt Slater.[15] Otherwise, the judge did not address the credibility of the various witnesses with respect to the central issue being whether the respondent was instructed to remove the bollard by a one-man bear hug vertical lift as opposed to laying down the bollards to be lifted up by two people.
3. Furthermore, the applicant submitted, the respondent's case was that the bear hug, one-person lift process was an unsafe system of work and, for that reason, the applicant was negligent in requiring the respondent to use such a system. Instead the judge found in favour of the respondent upon the basis that there should have been an (unspecified) system to adequately ascertain whether the bolts had been fully removed beyond 'wobbling' the bollard to check that it was free of the bolts.[16] The applicant submitted that there had not been any dispute between the parties that a bollard should not be lifted while still attached by a bolt and that the process for detecting whether a bollard was free of bolts was not the focus of the dispute. In any event, without any evidence or proper finding as to what the system should have been for checking that the bollard was free of bolts, it was not open to the judge to find a breach of duty that was causative of injury on that basis.
4. As indicated, the respondent does not intend to contest the appeal and accepts that, on the grounds set out in the application for leave to appeal and the applicant's written case, a retrial should be ordered.

1. We agree with the analysis of the applicant (and adopted by the respondent). It seems to us that both criticisms are made out. First, the judge did not make critical findings about the credibility of the applicant's account, as opposed to the respondent's account, of the system of work and what the respondent was instructed to do, nor make critical findings as to the actual system of work put in place by the applicant based upon those credit findings.
2. Secondly, the judge's conclusion that there was an inadequate system of work, is addressed to the method by which a worker was to check that the bolts had been fully removed before attempting to extract the bollard and lift it to wherever it needed to go. The method of checking that the bolts had been removed was simply not the case put by the respondent, nor one which was in dispute between the parties.
3. For those reasons we conclude that in this case the judge made an error in failing to consider all of the evidence,[17] and determined the case upon a factual finding not arising from the case run either by the respondent or the applicant and, thus, was not open to his Honour to so find.[18] Orders will be made as sought.

[1] Perkins v R Slater & Sons Pty Ltd [2021] VCC 2061.

[2] Summary for the Court of Appeal, filed 8 June 2022, signed on behalf of both parties, [56].

[3] Major Carpets Pty Ltd v Marandos [2018] VSCA 133, [8] (Beach JA).

[4] [2011] VSCA 59.

[6] We assume that one of the parties originally sought trial by jury but, given the circumstances existing during the Covid-19 pandemic, the Court ordered trial by judge alone. Now that circumstances have changed, we are prepared to adopt the joint position of the parties to order that the retrial be heard before a jury.

[7] The parties' agreed summary filed in this proceeding states the injury occurred on this date. The judge's reasons below at [18] state the date of injury as 22 April 2017. Nothing in this proceeding turns on whether the injury occurred on 22 or 27 April 2017.

[17] Mifsud v Campbell (1991) 21 NSWLR 725, 728.

[18] Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1, 10 [36]-[37] (Gleeson CJ and Heydon J); 26-27 [102] (McHugh and Kirby JJ - dissenting as to result); 36-37 [144]-[145] (Callinan J).