Issue 1 - The negligence issue
37In the circumstances of this case, in the context of occupation of the premises, and the deployment of labour in the premises, there can be no issue that the defendants owed the plaintiff a duty of care: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13] .
38The question of whether the plaintiff's injuries arose from, and was caused by a breach of duty of care amounting to negligence on the part of the defendants is to be determined by the requirements of s 5B, s 5D and s 5E of the CL Act . Before approaching that question, the scope of the duty of care owed needs to be identified.
39The defendants maintained that the plaintiff's work at the Primo premises was under the care, control and management of her employer, Kaybron. The defendants further claimed that the system of work had been designed, implemented and maintained by Kaybron.
40The defendants also maintained that in the event of a finding that they are found liable to the plaintiff in damages, then the plaintiff's damages must be reduced to reflect the extent to which the employer is found liable: s 151Z(2) of the WC Act 1987. That stance was pleaded in paragraph 12 of the defence to the amended statement of claim filed in court on 12 April 2011.
41In this case, the evidence was that Primo owned the trolleys and the premises where the incident occurred, and was responsible for the supply of the equipment and the work systems that operated within the premises. The Trust supplied the supervisory staff for production task organisation and sequencing. At the same time, for commercial reasons, Kaybron was the entity that employed some of the staff in the premises, including the plaintiff, who were deployed to operate some of the equipment, as well as to participate in the system of work within the premises.
42Within those arrangements, it was clear from the evidence of the employees who were called, that Primo and the Trust exercised the ultimate control of the premises as to the sequencing and system of work within the premises. This was in connection with Primo's manufacturing processes that included matters of quality control, hygiene, and the ability to control and discipline the employees who worked at the premises.
43In my view, those matters are crucial elements to the determination of the liability issues in this case because they guide the decision as to which entity controlled the works and the workers at the premises on the day in question: Stevens v Brodribb Sawmilling Company Pty Ltd [`986] HCA 1; (1986) 160 CLR 16 and subsequent cases following that line of authority.
44The plaintiff's employer, Kaybron, had a non delegable duty to ensure that reasonable care would be exercised to ensure that the system of work in which the plaintiff was engaged was suitably safe, so that its employee, the plaintiff, would be protected from the foreseeable risks of injury. That duty extended to inspection of the workplace and work system for the safety of its employees. The context of that duty in this case was Kaybron's deployment of labour at Primo's premises, where Primo as occupier, controlled and determined the details of what tasks were required to be carried out in the process of manufacturing of smallgoods within the premises.
45In those circumstances, Primo, the occupier of the premises, was also under a duty of care to ensure that reasonable care would be exercised concerning the arrangement and management of the premises so as to ensure that persons lawfully on the premises, such as the plaintiff, would be kept safe from foreseeable sources of harm. This duty extended to the management, operation and use of its floor area and trolleys used for conveying its goods and equipment.
46The plaintiff's case, simply put, was that whilst she was engaged in fulfilling her work tasks at the premises, Primo's employee, Mrs Lydia Andjelov, had pushed a trolley into forceful contact with the plaintiff from behind. This was where the plaintiff had been lawfully entitled to stand at the point she was located when she was injured, and she had no indication that she was about to be struck from behind. In those circumstances, the relevant question that arises is whether this occurred as a result of negligence on the part of the defendants.
47Therefore, the next matter that requires determination in dealing with the negligence issue is the question of which entity in fact employed Mrs Andjelov. In my view, for the reasons that follow, the evidence overwhelmingly and indisputably points to Mrs Andjelov having been employed by Primo at the time of the incident.
48Mrs Andjelov's conditions of employment were issued in the name of Primo: Exhibit "F". Those conditions had all the indications of an employment relationship, referring to the potential of summary dismissal, the provision of sick leave, annual leave, timekeeping, housekeeping, the wearing of uniforms, the personal hygiene requirements, availability of a rehabilitation programme, equal opportunity policies, and other provisions. Primo made a first aid course available to its employees, including Mrs Andjelov: Exhibit "G". Primo kept Mrs Andjelov's personal details and details of her bank account in order to transfer her wages into her account, and entered those details into its wages system: Exhibit "H". Primo issued at least 2 " Official Warning Letters " to Mrs Andjelov concerning her performance at work, threatening her with possible termination of employment, and included copies of that correspondence in the personal file it kept in relation to its employment of her: Exhibit "J". Primo wrote to Mrs Andjelov threatening her with disciplinary action concerning workplace issues: Exhibit "K". Primo kept a record of Mrs Andjelov's employee training record: Exhibit "L".
49It was Primo, and not Kaybron, that had asserted a high level of control over the workplace activities at the premises, including the control of the activities of Mrs Andjelov and other employees on the site. In my view, this indicated that Mrs Andjelov was Primo's employee. The indications of control I have outlined above make it clear that at the relevant time, there was an employer / employee relationship that persisted between Mrs Andjelov and Primo. This is amply demonstrated by the level of control that Primo was able to assert, and in fact asserted, in connection with Mrs Andjelov's employment.
50The next matter to be considered is which entity owned and controlled the equipment being used on the premises.
51Clearly, the equipment that was being used on the premises belonged to Primo: Exhibit "1" and Exhibit "4'. The equipment and the premises were being used in a managed workflow system that was devised, supervised and controlled by Primo.
52In conformity with that formulation, any liability of Primo in connection with its systems of operations on the premises would necessarily include a vicarious liability for its employee, Mrs Andjelov, for any actions that she undertook in the course of her employment.
53The plaintiff's formulation of the negligence of the defendants was principally concerned with allegations of failure to devise and implement a system of work to ensure that the plaintiff would not be exposed to injury due to the movement of trolleys within the premises.
54This was in circumstances where the trolleys in use in the premises were large, heavy and by their size and configuration, and because of the level to which they had been loaded, there was the potential for obstruction to the vision of the persons required to push the trolleys. This was in circumstances where those persons could not see the way ahead because of shelf and load height considerations, thereby creating the risk of a collision, as occurred with the plaintiff in this instance.
55In my view, the risk of a collision of the kind that occurred here was reasonably foreseeable where the plaintiff was required to venture into areas within the premises in order to fetch bins when those areas were regularly traversed by these trolleys. This exposed her to the risk of harm, which I consider to have been avoidable, if reasonable care had been exercised in governing the circumstances and the areas where those trolleys would be foreseeably used.
56The manner in which the negligence argument proceeded against the defendants was that the premises were inadequately laid out for the operations being conducted there. In that regard, there was busy trolley and pedestrian traffic within the premises as part of the day-to-day operations of the factory. Those circumstances made a collision foreseeable, if reasonable care was not taken to address and avoid that risk by providing separately designated areas for the safe use and movement of trolleys and pedestrian workers within the premises.
57In order to sustain these arguments, the plaintiff not only relied upon a commonsense analysis of the events, but also relied upon the expert evidence of the qualified ergonomist, Ms Todd.
58The core factual assumption upon which Ms Todd based her opinion was that the plaintiff got squashed between the pallet jack handle that was in front of her, and a metal trolley that hit her from behind: Exhibit "7".
59Although Ms Todd did not have the opportunity to inspect the premises for the purpose of preparing her report, she was of the view, and I accept, that such an inspection was not an essential component of her analysis, and if she had that opportunity it would have been unlikely to have caused her to change her opinions as the foundation assumptions would not have materially changed.
60The effect of the opinion of Ms Todd was that there was negligence on the part of Primo in failing to provide designated or marked areas for the movement of trolleys and pedestrians separately within the premises because of the obvious risk of collision with pedestrians, as occurred in this case. I consider that argument has obvious application where there was the prospect of intermixing of pedestrian traffic and trolley traffic at the same time. In those circumstances, I consider that it was imperative that pedestrian workers in the premises be kept safe, and separate from potentially injurious contact with trolleys.
61In my view, this was especially so where the plaintiff was required to move away from her immediate work place in order to fetch a storage tub to permit the manufacturing process to proceed, since the plaintiff did not have an empty tub on hand. This meant she had to traverse areas which were frequented by trolley traffic.
62The failure of the defendants to address this issue thereby exposed the plaintiff to the risk of injury through a casual act of negligence perpetrated by employees pushing trolleys.
63In that regard, an orderly approach to regulating the flow of pedestrian and trolley traffic was entirely absent in the premises, and instead, the system of operations that prevailed depended upon an assumption that pedestrians and the persons in control of trolleys would be in a position to be able to see each other in order to take any action that was required in order to avoid a collision. In my view, that situation was more akin to an obstacle course or to conditions involving pedestrians and vehicles on roads, rather than to a safe workplace where the risk of injury to pedestrian workers had to be considered, with appropriate measures being taken to avoid collisions of the kind under present consideration.
64In my view, there would have been little difficulty and cost associated with ensuring that walkways and trolley ways would be marked out for separate use in a factory where frequent movement of pedestrians and traffic was to be ordinarily expected in the course of a working day. This is plain from the layout of the premises as shown in Exhibit "4". It seems obvious that traffic flow has to be appropriately considered and managed for both the safety of employees on the factory floor and as well as for ordinary work efficiency considerations.
65In my view, the collision in question could have easily been avoided if a systemic approach to safety had been adopted so as to separate trolleys from pedestrians, as was identified by Ms Todd.
66A prudent approach to safety also required that the weight, size and structural configuration of the trolleys ought to have been such that they could be pushed from place to place comfortably, without having to be pulled backwards in the manner described by Mrs Andjelov. This would have allowed the person moving the trolley to see the way ahead without obstruction or occlusion at eye level, to ensure that they could see any pedestrians who might be present and ahead, and who might be at risk of injury through a collision with a trolley.
67These are obvious and commonsense considerations that should have been prospectively obvious, and do not arise on a hindsight analysis: Vairy v Wyong Shire Council [2005] 223 CLR 442 per Hayne J at [126], p 461.
68The fact that the plaintiff had to leave her work station in order to go and fetch a yellow storage tub or bin and in doing so would have to necessarily traverse areas where there was likely to be trolley traffic bespeaks a deficient workflow and management system that exposed workers to the foreseeable risk of injury from contact with moving trolleys. Ms Todd described this as possibly amounting to poor industrial housekeeping in that storage bins should have been on hand for the plaintiff to use. I agree with that observation.
69In my view, all of the foregoing matters demonstrate that there have been relevant breaches of the duty of care owed by Primo, and that the pre-requisites for a finding of negligence have been satisfied: s 5B of the CL Act .
70The risk of injury to the plaintiff from being struck by a trolley being moved within the premises was plainly foreseeable, as a reasonable person ought to have appreciated the risk: s 5B(1)(a).
71The risk was not insignificant where moving goods around the premises by trolley was the chosen method of operation: s 5B(1)(b).
72In those events, I consider that a reasonable person would have arranged the work system along the lines identified by Ms Todd in order to take precautions against the risk of an accident of the kind under present consideration: s 5B(1)(c).
73I have come to these conclusions because there was a high probability of harm from a collision occurring if steps were not taken to separate pedestrian and trolley traffic: s 5B(2)(a). Such harm was foreseeably serious in that it is well known that even relatively minor collisions can cause serious injuries: s 5B(2)(b).
74The burden of taking precautions against the risk of harm is not great in a large factory where it appears that the floor space as shown on Exhibit "4" could easily have been marked out into separate zones for pedestrian and trolley traffic without great expense: s 5B(2)(c). In any event, any burden imposed on Primo as a result of having to take such precautions seems greatly outweighed by the social utility of avoiding foreseeable injury to workers where there is great social utility for commercial operations like Primo's to continue profitably, without disruption by injury to workers.
75On the issue of causation, in my view, the plaintiff has plainly established legal causation in that, were it not for the identified failures that I have outlined, her injury would most probably not have occurred: s 5D and s 5E of the CL Act 2002.
76This leaves the question of the defence raised pursuant to s 5Q of the CL Act . In my view, the defendants have not made good any defence under that section.
77Whilst it is true that Kaybron had a non-delegable duty to ensure that reasonable care was taken to ensure that the plaintiff was provided with a safe place of work and safe system of work, thereby generally creating a potential vicarious liability for the failure of others to exercise reasonable care, that is not the end of the specific analysis required in this case.
78In the present case, Kaybron had no power to exercise reasonable care as to the systems in place at Primo's factory because it had no control, either of the system of work, or of any casual act of negligence on the part of another, in this case, Mrs Andjelov. This is because in the present case, the casual act of negligence by Mrs Andjelov, fell outside the tasks with which the defendants were entrusted to take care of in connection with the plaintiff's employment: Galea v Bagtrans Pty Limited [2010] NSWCA 350, per Hodgson JA at [67], following Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, at 32-33.
79In the present case, Kaybron ought not to be required to bear responsibility for Mrs Andjelov's casual act of negligence because the act in question, in striking the plaintiff with a trolley, was outside the scope of the task that Kaybron had entrusted to Primo and to the Trust: Galea , at [67].
80The defendants have argued that the decision in Galea , the context of s 5Q of the CL Act , imposes strict liability on Kaybron for any systemic failure on the part of Primo and of the Trust to exercise the duty of care imposed on those entities. In doing so, the defendants argued there is no actual distinction between the present case and the position that prevailed in Galea . In my view, for the reasons that follow, that submission should not be accepted.
81In Galea , at [70], it was held that a reasonable employer would have instructed Mr Galea to report to it, as well as to any surrogate employer, any safety issues that arose in his employment. That was in the context of a failure to repair or replace a defective driver's seat in a truck used for long distance inter-urban transport.
82In the present case, the plaintiff was allocated to carry out tasks that were new to her to replace the usual employee whose job involved working in the production of frankfurts. The plaintiff only then realised the need to leave the precincts of the frankfurt machine where she was working, in order to take a filled storage container to the storage area, and to then fetch an empty bin, in the course of that newly allocated work. In those circumstances, I consider the defendant's submission in the present case to involve an unreasonable counsel of perfection to require the plaintiff to have both realised that trolley movements posed a risk to her safety, and to report that view to her supervisors at Primo, given her limited language skills and the fact that her supervisors had in fact allocated that task to her. In the ordinary course of events, she was entitled to assume that the assigned task could be carried out safely without danger to herself, until she had sufficient reason to believe otherwise.
83Even if the plaintiff had the opportunity to report the safety problem under present consideration to her employer on the day in question, it is extremely doubtful that the employer would, in such a short space of time, have been able to inspect the premises and peremptorily require systemic changes to Primo's system of operations in its factory so that Primo would then do what was prudently required, as was envisaged would have been the case in Galea , at [70].
84It is clear from the decision in Galea , at [70], that the vicarious liability envisaged by s 5Q of the CL Act is a generally applicable principle, but not necessarily, where the defects in the system are for example, due to a manufacturer's own negligence.
85Significantly, in the present case, the defendants did not tender any evidence to identify what steps should reasonably have been taken by Kaybron, to exercise a duty to take reasonable care for its employee, the plaintiff, in the circumstances of this case: Dib Group Pty Ltd v Cole [2009] NSWCA 210, per Basten JA, at [23].
86The present case is not one of effective maintenance, over which the employer had no control, where the non-delegable duty is to provide safe equipment, as was observed by Allsop P in Galea , at [6]. Rather, this is a case where the system of work was flawed because of the inter-mix of movement of workers and trolleys in the same areas so as to create a danger of collision through a casual act of negligence. That is a matter over which Kaybron have no control, as that risk could only have become apparent to the plaintiff, and therefore to Kaybron, when the plaintiff was allocated to the new tasks that led to her injury on the day in question.
87For those reasons, I do not accept the defendant's submission interpreting the authority of Galea to impose strict liability on Kaybron in the circumstances of this case, especially where, from a practical perspective, Kaybron could not have done anything to change the course of events. Accordingly, I find that the defence based on s 5Q of the CL Act should be rejected.