Breach of duty - VSL
50In the events that occurred, there was little, if any, dispute between the parties as to what was physically involved in the lifting, manoeuvring, placing or removing and lowering of the span jacks onto the columns or piers. Sergio Fedeli, who worked with Mr Taboas and who gave evidence before me, gave one description of what was involved:
"Q. Just before I ask you that, when you were performing that part of the job, was there any restriction on the head room above the cherry picker when you arrived?
A. Yeah, there was. Every column or pier was different because bridges tend to want (witness indicated). You want to start low; come up; even out; then come back down again (witness indicated). So, depends on where. The middle section wasn't too bad, but at the ends I was obviously, you come up, you couldn't always bring a cherry picker level, or, you know, you had to crouch or something to get the cherry picker level where you were (witness indicated).
Q. I was going to ask you next about when you got to that, the cherry picker up to the height that you could. What was the method for removing the jack?
A. If, if the jack was flush with the pier, either one of us got out of the, out of the a bit hard. Try to push that weight with one arm or something. So, either one of us would get on top of the pier and pull it towards him or while the other would try to push one arm (witness indicated). That kind of system. I have used planks, if you couldn't get the cherry picker at the same height. We used a plank, like, a bridge, wiggled the jack onto the plate and push it up, go up so far. One would lift the plank up, push the jack on. That didn't happen all the time, but that was another way if we were confined too much with space."
51Mr Taboas and Mr Cetindag also gave similar evidence confirming the method or system of work involved in the placement and removal of the span jacks. It was to this system that the experts were asked to direct their attention on the question of breach of duty.
52Mr Taboas relied upon a report prepared by Robert Fogg from Total Risk Solutions Pty Ltd. His reports dated 5 February 2010 and 2 July 2013 were tendered without objection as part of Mr Taboas' general and liability evidence schedule exhibit "B". Mr Fogg was not cross-examined. Neither of the defendants suggested that any of Mr Fogg's conclusions were wrong.
53Mr Fogg was of the opinion that Mr Taboas' injury was both foreseeable and preventable. He identified what in his opinion were the factors that contributed to it.
54First, the failure to provide Mr Taboas and his co-worker with fit-for-purpose load shifting equipment that could manoeuvre each double hydraulic jack unit weighing a (now) estimated 112kg onto the top of the bridge beam supports and into position so as to negate the need for manual handling of the jacks. Secondly, the failure to develop, institute and maintain a safe system of work, including development and implementation of a risk assessment covering the installation and removal of the hydraulic jacks. Thirdly, the failure to develop safe work procedures. Fourthly, the failure to provide appropriate instruction to Mr Taboas about manual handling and risk mitigation. Fifthly, the failure to heed Mr Taboas' requests to review the process of installing and removing the jacks and to make the task simpler. Sixthly, the failure to comply with the New South Wales Occupational Health and Safety Regulation 2001 section 4.4 Manual Handling, the National Standard for Manual Handling or the National Code of Practice for Manual Handling. Mr Fogg proffered other formulations of these failures to a similar effect.
55Mr Fogg concluded his first report with the following opinion:
"In my opinion, the injury that befell Mr Taboas was a consequence of a working environment that did not afford a safe system of work, and specifically exposed the plaintiff to significant injurious potential when required to perform manual handling tasks that required the plaintiff to lift and manoeuvre (push and pull) the double cylinder hydraulic units into position (including removal) as a team lift and weighing an estimated 180kg, and failed to provide a safe place of work to support the plaintiff in the undertaking of the work of his role. Accordingly, the prospect of an injury arising under the conditions as described, and as occurred to Mr Taboas, would have to be regarded as significant.
Based on the information made available to me, there appears to be a failure by the defendant [sic] to ensure that there was an adequate workplace review undertaken to identify all hazards of the work task and to implement the required risk management controls in order to perform the task safely. As indicated in section 4.1 of this report, there were reasonable preventative actions available which, if implemented, would have significantly reduced the risk to the plaintiff of sustaining a permanent damage type of injury."
56Abigroup did not tender any reports from an expert dealing with the system of work. It relied on the expert retained by VSL.
57VSL relied upon the report of Jonathan O'Brien dated 16 April 2013. Mr O'Brien is a civil and structural engineer. His report was tendered without objection as part of VSL's schedule of evidence exhibit "D2-24". He was not cross-examined. Neither Mr Taboas nor Abigroup suggested that Mr O'Brien's conclusions were wrong.
58Even though Mr O'Brien was an engineer, he was asked his opinion about the possibility of a person sustaining back injury in the course of positioning the jacks as understood in this case. He uncontroversially identified three phases of the work, being the vertical lifting phase, the second in and out lateral positioning phase and the third lowering phase. With respect to the first phase he said that if there is no height differential between the top of the platform, by which he intended to refer to the platform upon which the jacks were situated, and the top of the pier, then there would be no need to lift the jacks and therefore little risk of lower back injury. However, in cases where there was, or developed, a height differential, the jack would then need to be lifted manually. Mr O'Brien described a 112kg lift shared between two men in such a circumstance as "obviously a large weight and one that both management and worker should deem to be both infeasible and injury-risk unacceptable." He referred to relevant literature that "clearly indicates that any lifting and moving of objects in the range of more than 50kg contains a very high potential for back injury."
59Mr O'Brien then expressed the following significant opinion:
"Given this level of risk, it is my view that the system of work originally conceived by VSL must have involved the use of the boom-lift controls to remove the need to manually lift the span jacks onto the top of the piers."
60Mr O'Brien said this concerning the second phase of the task identified by him:
"Once a span jack is able to be positioned on to the edge of the pier, it may need to be pushed inboard some distance. If the distance is more than one arm's reach, the task may require the worker to enter the gap between the pier top and the bottom of the precast concrete unit. Such working environment is extremely constraining as to movement and pushing, pulling or otherwise manoeuvring a heavy span jack under such circumstances would be very difficult.
However, in my view the task of pushing a 112kg span jack across raw concrete on the top of a pier while being jammed between the top of the pier and the underside of the bridge deck would be nigh impossible for two men. Consequently I assume that the jacks would only need to be pushed across steel surfaces that are either greased or Teflon coated. My estimate is that forces required to do this would be approximately 11kg."
61It is not at all clear that Mr O'Brien's assumptions about lubrication were accurate. Mr Fedeli had some things to say about that as appears in the following evidence:
"Q. Was there any lubricant or other material on the top of the concrete column to help slide the jack?
A. No, not, not on the column itself. Once you got the baseplate, I think it was I can't think of it. We had a rubber thing. It had a white, oh, I don't know of the name.
Q. Was Teflon on there, was there?
A. Teflon. Teflon, yes. I want to say grease. It wasn't. It was something. I think we used Vaseline, whatever, on top. But that went, then Teflon went on top of it, then the jack went on top of that. When you were pushing it up you were pushing the Teflon on over the metal plate, you know (witness indicated).
Q. You didn't get to use the Teflon until you were at the baseplate?
A. On base. You had to struggle actually with the concrete. Sometimes it bit on the concrete. If you were biting the concrete, for whatever reason, you know, you push it with your feet or you push it. Yeah, just push whatever way you could."
62Mr O'Brien described the third phase of the task of removing the span jacks as "the simple opposite of their installation." If that process were done correctly he assumed "that there would be low risk of back injury to the two workers who were manoeuvring the jacks."
63Mr O'Brien had the benefit of a description of this task by Ali Cetindag, who also gave evidence before me. Mr O'Brien observed that Mr Cetindag had apparently undertaken the removal task on a number of occasions and described it as "moderately heavy".
64Mr O'Brien's report concluded with comments upon two questions. First, the system of work in place "with reference to the combined working space" and secondly "whether the provision of equipment outlined by Mr Fogg was feasible in the circumstances of this case and readily available at the time of the plaintiff's injury." In answer to the first question, Mr O'Brien said this:
"Based on the various assumptions and reasonings outlined above, my overall opinion on 'the manually based system of work that was used to manoeuvre the jack in confined working space' is that it was adequate. While the task may have been a physically difficult one and one that was uncomfortable to execute, in my view it is highly unlikely to have been a major factor in the development of any reported lower back injury of Mr Taboas."
65Mr O'Brien's answer to the second question was as follows:
"In my opinion the solutions proposed by Mr Fogg in his report, namely the use of articulated boom type truck-unloader crane and various types of hooks and grapples are solutions that are not technically feasible in this instances - as none of these satisfactorily solves the headroom problem identified [by me]. The reason is that a truck unloader crane supports its load from above while the hooks and grapples that Mr Fogg proposes also require support from above."
66In addition to the tasks identified and commented upon by these experts, the evidence also indicated that the jacks had to be transported between piers. This was occasionally done using Mr Cetindag's utility. Mr Fedeli described transferring the jacks in the following passages:
"Q. When you were transferring the jacks from the bed of the ute to the rail of the cherry picker, was there a difference in height?
A. Yeah, there was. I, I can't, I don't know how much difference in height. But what we used to do, we used to put one foot on the ute, on the tail of the ute. You would have one foot on the second row of the cherry picker. I'd say, I don't know, you would be (witness indicated). Something like that. And you go, you grab these jacks and you go; '1, 2, 3' and just reef them up. But that's a two-man lift. But you couldn't, you couldn't do a two men pick up and walk, like, to across the room. It's just too heavy.
Q. You are taking them off the cherry picker onto the bed of the ute. Was it the reversal of what you just described?
A. Exactly the same: One foot on the cherry picker. One foot on the ute. A control, a control push, because you wouldn't try to hold. Just; '1, 2, 3' let them fall. But sort of, try, you know, guide them (witness indicated)."
67It appears clearly from the way in which this case was conducted, and from the evidence touching the issue of breach of duty, that the system of work in accordance with which Mr Taboas was required to perform his tasks was unsafe and dangerous. It represented both a failure to provide him with a safe place of work and an unsafe system of work. In purely lay terms, Mr Taboas was required to manipulate and manoeuvre a very heavy and very awkward object in a confined space with inadequate equipment from a precarious position on a cherry picker onto the top of a limited area on the upper surface of concrete column or pier. The headroom was limited by the underside of the supported roadway sections above.
68Although the task was occasionally facilitated by the use of Teflon mats, these were not always available or effective. The span jacks themselves were not designed or manufactured with a Teflon coating in place. Brute manhandling of the span jacks both in the course of placement and removal was commonly required to complete the work. Loading and unloading of the jacks into and out of vehicles between jobs was also required without any mechanical or similar assistance. Manhandling of the jacks from the ground a distance of approximately 900mm up onto the steel platform constructed upon the cherry picker was also required. Mr Taboas and his co-worker would manually perform these tasks. Half the weight of the span jacks alone exceeded the safe weight for manual lifting. Mr Taboas asked whether there was some simpler way of doing the job. He was given no satisfactory response, or none that translated into any alteration to the method of performing the work.
69Section 5B of the Civil Liability Act 2002 is in the following terms:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
70So far as s 5B(1)(a) of the Act is concerned, VSL specifically accepted that it knew or ought to have known of the risk of harm associated with repetitive lifting of heavy weights such as span jacks. In my opinion, the risk that Mr Taboas would suffer harm was in any event clearly foreseeable. I have earlier referred to Mr O'Brien's opinion that, given the level of risk identified by him, it was his view that the system of work originally conceived by VSL must have involved the use of the boom-lift controls to remove the need manually to lift the span jacks onto the top of the piers. I take that opinion to be a specific recognition of the existence of a foreseeable risk of injury associated with the manual performance of the work. Be that as it may, it is doubtful in the industrial atmosphere in this State that any reasonable supervisor of labour that was required to perform the tasks performed by Mr Taboas would not have foreseen the risk that he might suffer an injury of the type that he sustained.
71Mr Taboas carries the onus of establishing that the risk was not insignificant. VSL contended that Mr Taboas had failed to establish that the risk of harm arising from repetitive lifting of heavy weights such as the span jacks was "not insignificant". This was said to be for a number of reasons. First, VSL's system involved the use of a crane for the most part to remove and place the span jacks onto the columns. This was said to follow from Mr Cetindag's evidence in these terms:
"Q. All right. Now, if you're able to, if you can't please tell me, in terms of a percentage of time, are you able to give a percentage of how often the span jacks were placed on top of the columns using the crane?
A. No.
Q. No, that's all right. In terms of how often it was done, can you give us a...was it more often than not or less often than not done by crane or manually?
A. Well, like I said, originally it was all done by crane. To put it up the top we would use the crane, and it was just in the last couple of months we - where we had the jacks the crane would do it. When we didn't, we would have to do it manually with the cherry picker."
72Secondly, lifting the span jacks was a two-man process and involved a controlled lift and movement. Thirdly, whenever it was necessary to lift the span jacks into the back of the utility from the cherry picker or ground level, or vice versa, the method involved the use of a controlled lift or push or a plank to make it easier. Fourthly, the Abigroup workers were all inducted by Abigroup and supplied to VSL as experienced construction labourers, and as such were aware of safe handling techniques. Fifthly, there were regular toolbox meetings at which safety methods and techniques were discussed and Abigroup employed a fulltime safety officer who regularly walked through the site. Finally, apart from Mr Taboas, Mr Cetindag was not made aware of any other worker who may have suffered a similar injury while lifting span jacks.
73VSL contended that Mr Taboas had not established that the work involved repetitive lifting of heavy weights such as the span jacks. For this reason, VSL submitted that he had not established that the risk of harm was not insignificant.
74Determination of whether or not the particular risk was or was not insignificant must be determined prospectively from VSL's position. The phrase has not yet been the subject of any comprehensive exposition by the Court of Appeal. However, in Benic v State of New South Wales [2010] NSWSC 1039, Garling J considered it at [101] as follows:
"[101] I will now attempt to draw together this variety of sources to state what approach, in my opinion, is the appropriate one to interpreting the phrase "not insignificant":
(a) The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;
(b) The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;
(c) The phrase 'not insignificant' is intended to refer to the probability of the occurrence of the risk;
(d) In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning;
(e) Whether a risk is 'not insignificant' must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula."
75Whilst it is always possible that serious harm can occur in any accident, that is in itself unlikely to be sufficient to satisfy the test imposed by s 5B(1)(b). The mere possibility that there might be serious harm is not sufficient without more to fulfil the requirement of identification of the harm as not insignificant.
76The risk of harm in this case was not insignificant. Mr O'Brien described the task of manhandling the jacks on the top of the column as "nigh impossible for two men." His assumption was that the jacks would therefore only need to be pushed across steel surfaces that were either greased or Teflon coated. The evidence does not support that assumption. For example, Mr Fedeli referred to the jacks biting on the concrete. Mr Taboas' evidence was to the same effect.
77Mr Cetindag was the supervisor on site employed by VSL. His evidence is referred to below in more detail. However, he gave the following evidence on this aspect of the dispute when cross-examined by Mr Fleming:
"Q. And it is scarcely a two man lift?
A. Yes.
Q. You would expect that that would be outside of the weight that they would have been taught could be lifted safely?
A. Correct.
Q. So if these men were lifting 112 kilos, two of them, that would be an unsafe system wouldn't it?
A. I'd say so."
78There was in these circumstances what I consider to have been a significant risk of harm.
79Section 5B(1)(c) requires an analysis of the conduct of the reasonable person, in all of the circumstances of the case, when faced with the relevant risk of harm. Any assessment of this element requires that attention be given to the provisions of s 5B(2). However, as the provision makes plain, the list of factors referred to in s 5B(2) is not exhaustive.
80VSL contended that Mr Taboas has failed to prove that any of the precautions suggested by the experts were reasonable. On the contrary, VSL contended that they were not. It submitted that, "as unfortunate as it might be, in respect of the handling of the span jacks on and off the concrete columns, even though not the pleaded risk of harm, there was no other reasonably practical way for them to be put up and taken down." That submission was energised by the following evidence given by Mr Cetindag:
"Q. It was suggested to you that if two men were lifting 112 kilograms it would be an unsafe system, and I think you agreed with that?
A. Yeah.
Q. As far as you were concerned, were you in charge of a crew of men involved in any unsafe system of work?
A. No.
Q. It was put to you that at one stage Mr Taboas, Robert, asked you whether there was a simpler way to do this, meaning, manoeuvring and getting the jacks up or down, and in your mind was there a simpler way of doing it, leaving aside using the crane, was there any other way to make it simple?
A. I wish there was."
81VSL contended that Mr Taboas had failed to satisfy s 5B(1)(c).
82For my part I am not prepared to accept either that there was no other way of doing the job, or even if there was, that such a circumstance relieved VSL from taking precautions against the risk of harm. The proposition can be simply tested. It could never be an answer to the present inquiry for someone in the position of VSL to say that running the risk of injury to Mr Taboas was permissible if there was no other way of performing a particular task. That would promote the commercial imperative above the importance of the duty to take reasonable care for his safety or, in other words, to allow the end to justify the means. Such a proposition has only to be stated to be rejected. If the task could not be performed without an unacceptable risk of injury or death, the task could not be performed at all.
83It is clear that a reasonable person would take precautions against a known and not insignificant risk of harm. It is not correct to say that the absence or unavailability of such precautions means that the risk can then be ignored. In the present case employing another worker to assist Mr Taboas and his co-worker would have been one possible precaution that could have been taken. An additional cherry picker giving access to extra workers could have been utilised.
84There was a high probability that Mr Taboas would have injured his back if required to perform the work in the way that was implemented. The lifting protocols for weights on flat ground were not met in respect of the span jacks. There was a complete disregard for the same protocols in the limited and awkward conditions on the top of the columns. The burden of taking precautions to avoid the risk of harm, such as the provision of extra workers, was small in comparison to the likely seriousness of the harm.