VWA v Probuild & Ors [2016] VSC 102

2 In this proceeding, the VWA seeks to recover from the defendants, under s 138 of the Accident Compensation Act 1985 ('the Act'), payments of compensation made to Mr Griffin in respect of his work-related injury, the subject of the contribution proceeding.

3 The findings made in the contribution proceeding are applicable and binding in this case. However, those conclusions do not address all matters canvassed in the current proceeding. In particular, what needs to be resolved is, what is the proportion of liability of the defendants under Factor X of the formula contained in s 138(3) of the Act.

4 Pursuant to the formula, I have assessed Factor X at 75% [Probuild 50%, Tubeway 25%, and Higgins 0%].

5 Factor A has been agreed by consent by the parties.

The provisions of s 138 of the Act

6 The relevant part of s 138 of the Act reads as follows:

138. Indemnity by third party

(1) Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.

(2) In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Divisions 8A and 9 of Part IV must not be taken into account.

(3) The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of -

(a) the amount of compensation paid or payable under this Act in respect of the injury or death; and

(b) the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958 , in accordance with the formula -

where -

1. is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;

1. is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
2. is the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);

1. is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.

The VWA's further amended writ and statement of claim dated 12 November 2015

7 In its further amended writ and statement of claim dated 12 November 2015, the VWA claims indemnity from Probuild, Tubeway and Higgins pursuant to s 138 of the Act in respect of payments of compensation. The VWA also seeks a further declaration that Probuild, Tubeway and Higgins indemnify the VWA pursuant to s 138 in respect of any further and future payments of compensation as the VWA may be required to make to and in respect of Mr Griffin.[2]

8 The VWA pleads that the incident causing Mr Griffin's injury was caused by the acts, default and/or negligence of Probuild, Tubeway and/or Higgins. The particulars of negligence of the defendants are pleaded at paragraph 10 of the Further Amended Statement of Claim and are as follows:[3]

(a) failing to provide and maintain a safe work premises and/or system for the worker;

(b) failing to provide safe plant and equipment for use by the worker at the premises;

(c) failing to inspect the premises to ensure it provided a safe place and/or system of work for the worker;

(d) failing to take reasonable care for the safety against the worker;

(e) failing to instruct or properly instruct the worker;

(f) failing to provide any or any adequate instructions to the worker as to the safe and correct means of access to the swing stage;

(g) failing to provide any or any adequate supervision to the worker;

(h) failing to monitor the worker to ensure a safe a correct means of accessing the swing stage was employed;

(i) failing to prescribe and/or enforce a safe system of work;

(j) failing to ensure that a safe system of work was implemented and enforced;

(k) failing to carry out any or any adequate risk assessment or hazard identification of the work the worker was to perform;

(l) failing to carry out any or any adequate risk assessment or hazard identification of the swing stage;

(m) failing to carry out any or any adequate risk assessment of the premises;

(n) failing to exercise due care and skill for the safety of the worker in all the circumstances;

(o) failing to provide a comprehensive training and education program for the worker in the performance of his duties;

(p) exposing the worker to a hazardous and unsafe work environment;

(q) failing to provide the worker with any or any adequate assistance;

(r) causing, permitting and/or allowing the swing stage be used by the worker in a state and/or condition which it knew or ought to have known presented as a reasonably foreseeable risk of injury to the worker;

(s) failing to ensure that the swing stage was reasonably safe and fit for use by the worker;

(t) failing to ensure that the swing stage had any or any proper and/or safe access points;

(u) causing, permitting and/or allowing the cage door to the swing stage to be barricaded;

(v) failing to allow the worker to use any or any proper gate to enter the swing stage;

(w) causing, permitting and/or allowing the worker to access the swing stage without a safe means for access and/or entry;

(x) failing to alter the method of access to the swing stage to allow for a proper gate to be used;

(y) failing to ensure that the means of access to the swing stage was clear of obstructions;

(z) failing to provide temporary stairways and/or ladders to assist the worker in accessing the swing stage;

(aa) failing to comply with the provisions of the Occupational Health and Safety Act 2004 (Vic) (as amended) and the regulations made thereunder, in particular Occupational Health and Safety Regulations 2007 (Vic) and the following Regulations:

(i) Regulation 3.1.1 in failing to identify hazardous manual handling tasks;

(ii) Regulation 3.1.2 in failing to ensure that the risk of musculoskeletal disorder associated with a manual handling task is eliminated;

(iii) Regulation 3.1.3 in failing to ensure that any measures implemented to control risks in relation to musculoskeletal disorders are reviewed and/or revised;

(iv) Regulations 3.4.2, 3.4.3 and 3.4.4 in designing, manufacturing and/or supplying plant which includes a confined space;

(v) Regulation 3.5.2 in failing to identify hazards for class of plant;

(vi) Regulation 3.5.23 in failing to identify hazards in respect of use of plant in the workplace;

(vii) Regulation 3.4.24 in failing to:

(A) identify and eliminate hazards associated with the use of plant;

(B) reduce the risks associated with the use of plant.

(viii) Regulation 3.5.34 in failing to control the risks associated with plant use at the workplace;

(ix) Regulation 3.5.40 regarding a plant used to lift or suspend loads;

(x) Regulation 3.5.41 regarding the use of lifts;

(xi) Regulation 3.5.43 regarding the use of scaffolds;

(xii) Part 5.1 regarding construction;

(bb) failing to comply with Australian Standards and/or WorkSafe Victoria guidelines to ensure the swing stages are safe for use by the worker including but not limited to:

(i) AS 4021.1-Series 2006 Australian Standard - Safety of Machinery Standard, including AS 4024.1.1401-2006, Section 5, AS 4024.1202-2006, Section 6, and AS 4024.1301-2006, Section 8;

(ii) AS 1735.2-2001 Australian Standard - Lifts, escalators and moving walks, and in particular Section 12;

(iii) AS 1735.9-1994 Australian Standard - Lifts, escalators and moving walks - Part 9: Special Purpose Industrial Lifts, and in particular Section 12;

(iv) AS 2550.7-1996 Australian Standard - Cranes - Safe Use, Part 7: Builders' hoists and associated equipment, and in particular Sections 2 and 9;

(v) AS 1657-1992 Australian Standard - Fixed Platforms, Walkways, Stairways and Ladders - Design, Construction and Installation, and in particular sections 1, 3, 4 and 5;

(vi) AS 1470-1986 Australian Standard - Health and safety at work - Principles and practices, and in particular Section 8;

(vii) AS 1428.1-2009 Australian Standard - Design for access and mobility, Part 1: General requirements for access - New building work, and in particular section 11;

(viii) AS/NZS 4576.1995 Australian/New Zealand Standard - Guidelines for Scaffolding;

(ix) AS/NZS 4994.1-2009 Australian/New Zealand Standard - Temporary Edge Protection General Requirements;

(x) AS/NZS 1576.1-2010 Australian/New Zealand Standard - Scaffolding - General Requirements;

(xi) AS 1576.4-1991 Australian/New Zealand Standard - Scaffolding - Suspended Scaffolding;

(xii) Scaffolding Checklist for Builders and Building Trades Contractors - WorkSafe Publication October 2005; and

(xiii) WorkSafe Victoria - What you need to know about ... Suspended Scaffolds - issued February 2004, Revision 1 October 2005.

(cc) Breaching its duty of care as an occupier pursuant to Part IIA of the Wrongs Act 1958 (Vic) to take such care as in all the circumstances of the case was reasonable to see that any person at the premises would not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

9 Further and in the alternative, the VWA alleges the incident was caused by the breach of duties owed by Probuild, Tubeway and/or Higgins under the Occupational Health & Safety Act 2004 and Occupational Health and Safety Regulations 2007.[4]

10 There are 30 particulars of negligence alleged against each party in the recovery proceeding. These particulars of negligence overlap with the pleadings in the related contribution proceeding. Although there must be some scope and breadth in the pleadings, the level of generality in the present case has invited difficulties. Certain pleadings were clearly only applicable to one defendant, such as the duties under the OHS Regulations, several of which only apply to employers, and several of which only apply to suppliers.

11 Each particular of negligence could and should have been pleaded against the relevant defendant, rather than the scattergun approach which was adopted. This would have substantially narrowed the issues and reduced delays. Instead, time was spent by each defendant exploring and arguing each individual particular of negligence, even in circumstances where it was clearly not applicable. Additionally, a number of particulars were pleaded which related to legislative provisions or Australian Standards which were not relevant to the present matter. These were never formally abandoned yet ultimately were not pursued at trial.

Relevant findings in the contribution proceeding applicable in this case

12 The following findings in the contribution proceeding are relevant to the disposition of this proceeding:

• A swing stage was placed by Mr John Birt at 'D' as marked on Exhibit P1 on level 8 on 10 May 2011.
• Mr Griffin's injuries were caused by the manner in which he entered the swing stage placed at 'D' on 10 May 2011.
• Probuild and Tubeway had a duty to ensure there was a safe system of work to allow all trades to perform their trades safely.
• In the course of Mr Griffin's training by Mr Martino of Tubeway, he was shown the proper and safe way to access a swing stage using the three points of contact. However, Mr Martino did not address the importance of using the three points of contact to Mr Griffin or what could happen if the three points of contact system was not used when accessing and exiting a swing stage. Put another way, he was not educated by Mr Martino that using the three points of contact was paramount.
• Tubeway failed to include in its daily checklist an item dealing with the safe access into the swing stage.
• Door C was barricaded with hoarding and idiot tape. This was contrary to the way in which Probuild witnesses said it ought to be, using inertia reels, demonstrating a breakdown in Probuild's work system and, in particular, in the drop zone areas.
• Probuild's work system and, in particular, the drop zone permit system, which was in place at the Bank Apartments in May 2011, was confusing and not properly understood by Mr Griffin. Probuild, through its general site induction and tool boxing, failed to educate or train Mr Griffin about the drop zone permit system as to -

(a) what he should do if confronted with a barricaded door or area; and

(b) how to determine access to a drop zone in circumstances where there was more than one entry point, as there was when Mr Griffin entered the level 8 drop zone 12, namely, Door C and Door A.

• Mr Griffin accessed the swing stage at 'D' via Door A because Door C was barricaded and it was his understanding that he should not go through a barricaded area under any circumstances.
• It was reasonably foreseeable that a person in Mr Griffin's position, with his level of training and experience, would not have chosen to use the barricaded Door C and would have reasonably considered access via Door A to be an appropriate entry point, requiring only the removal of the inertia reel, which was not the same as the barricading on Door C.
• Mr Griffin was simply carrying out what he perceived to be his job at the time of the accident. He was entering the swing stage to complete the defect work on the balustrading as he was required to do by his employer, Aluline (Australia) Pty Ltd ('Aluline'), at the request of Probuild. Aluline did not provide any instruction concerning the safe entry into a swing stage, in circumstances where the drop zones and swing stages could be dangerous.
• The way in which Mr Griffin entered the swing stage was inappropriate and not in accordance with accepted practice. Probuild was responsible for the placement of the swing stages and, on 10 May 2011 John Birt placed the swing stage at 'D' on Mr Ray's instructions.
• Probuild was responsible for the day-to-day allocation of swing stages and drop zones for the sub-contractors, including Aluline. Aluline was still primarily responsible for its employees at the Bank Apartments.

Part X of the Wrongs Act 1958 (Vic)

13 An issue was flagged in relation to Part X of the Wrongs Act 1958 (Vic) ('the Wrongs Act') to this proceeding and the contribution proceeding.

14 Section 45 of the Wrongs Act provides that Part X does not apply to certain 'claims for damage' including 'a complaint to which Part IV of the Accident Compensation Act 1985 applies'. In addition s 138(3)(b) of the Act proscribes the indemnity amount be calculated disregarding certain provisions including Part X of the Wrongs Act.

15 In VWA v Jones Lang Lasalle (Vic) Pty Ltd ('Jones Lang Lasalle')[5] the issues were discussed in the context of a s 138 recovery action. The discussion arose in the framework of an argument that a s 138 recovery action is not a claim for an award of damages, but it required hypothetical assessment of an award of damages and therefore the ACA did not apply. In addition discussion concerned whether the Part X provisions were to be disregarded in determining the defendant's liability under s 138(1). Beach J noted in the case before him senior counsel for the VWA was content to accept that Part X applied, and indicated his own view that Alcoa Portland Aluminium Pty Ltd v VWA ('Alcoa') 'compelled such a construction'.[6] Beach J said in obiter:[7]

Notwithstanding that it is difficult to discern why Parliament would intend the provisions of Pt X of the Wrongs Act not to be taken into account in the calculation of the formula, in circumstances where they might fall to be taken into account on the question of liability, to hold otherwise would do unacceptable violence to the language in subss (1) and (2) of s 138. In my view, the reasoning in Alcoa, and in particular paras [16]-[26] compels such a construction.

16 In the present recovery proceeding all parties agreed the same process taken in Jones Lang Lasalle ought to be adopted. The VWA emphasised that its agreement was specific to this case only and is no way a general concession that Part X applies to a recovery action and I infer from this a contribution proceeding

17 The parties have agreed that they are content for the recovery proceeding and the contribution proceeding to be determined on the basis that Part X applies. The parties note that s 47 of the Wrongs Act, which states that, except as provided, Part X is not intended to effect the common law.

18 I will adopt the course the parties agreed in relation to the application of Part X to the recovery proceeding.

19 Section 82 of the Act proscribes that compensation will be paid where an injury 'arises out of or in the course of employment' or in the case of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury, where 'employment is a significant contributing factor'. Given my finding, I consider that compensation has been properly paid to Mr Griffin by the VWA in respect of the 10 May 2011 incident.

20 The VWA in summary contends that Probuild owed a general duty to Mr Griffin as a worker on its building site to do all things reasonable to ensure its acts or omissions did not cause reasonably foreseeable harm. The VWA specifically contends that Probuild was an occupier of the site and had responsibilities pursuant to s 14B(3) of the Wrongs Act to take care as in all circumstances was reasonable, to see that Mr Griffin was not injured by reason of the state of the premises or things done or omitted to be done in relation to the state of the premises. The VWA submits that, given Probuild's control of Mr Griffin's work, it also assumed the duty akin to an employer, to take reasonable care for Mr Griffin's safety in the performance of his work.

21 While the VWA specifically pleaded occupier's liability against Probuild, Tubeway and Higgins, in oral submissions the VWA confirmed that it did not rely on the occupier's liability provisions pursuant to the Wrongs Act against Tubeway and Higgins.

22 In relation to Tubeway, the VWA submits that it owed a general duty to Mr Griffin as a person within a known class of workers who were using their swing stage to do all things reasonable to ensure its acts or omissions did not cause him to suffer reasonably foreseeable harm. Specifically, the VWA contends that Tubeway had a duty to provide safe access to the swing stage. It submits that accessing swing stages in the manner presented to Mr Griffin posed a foreseeable risk of injury. To that end, the VWA relies upon Tubeway's risk assessment, which identifies accessing swing stages as a task carrying with it the risk of death, serious injury or personal injury.[8]

23 The VWA also refers to the requirement of safe access to and from swing stages as matters included within AS/NZS 1596.1:2010, 'Scaffolding, Part 1, General Requirements'[9] and AS/NZS 4576:1995, 'Guidelines for Scaffolding'.[10] AS/NZS 4576 provides, at s 11.3, the following direction:

Install safe access and egress points for persons using the suspended scaffold.

24 Further AS/NZS 4576 provides a checklist at Appendix J, which includes the prompt: 'Is there access and egress to all working platforms?'.

25 The VWA also refers to the WorkSafe Guidelines 'What You Need to Know About... Suspended Scaffolds' ('the WorkSafe Guidelines')[11] which includes checklists promoting safe access to swing stages, which it alleges were not adhered to.

26 The VWA submits that, given the obvious dangers of using a swing stage and the specific requirements within the applicable standards and guidelines, Tubeway, Probuild and Higgins all had a duty to provide Mr Griffin safe access to the swing stage. Specifically, the VWA refers to the preface to the WorkSafe Guidelines, which was written to assist not just the suppliers of the suspended scaffolding equipment, but also the principal contractors and employers as support the duty applied to all the defendants.

27 The VWA submits that the scope of the duty to provide safe access can be summarised as follows:

(1) Tubeway had four opportunities in which it could have ensured that Mr Griffin had safe access to the swing stage:

(i) planning through site inspection and visualising potential hazards created by swing drop location;

(ii) inducting Mr Griffin in the safe manner of accessing the swing stage and the steps to take if access was denied;

(iii) installing the swing stage with a designated and identifiable access point; and

(iv) providing a checklist which required Mr Griffin to acknowledge the safety of his access.

(i) planning through site inspection and visualising potential hazards created by swing drop locations;

(ii) creating and inducting an effective and easy to understand drop zone permit system;

(i) planning through site inspection and visualising potential hazards created by the swing stage location;

28 The VWA submits that Tubeway breached its duty to Mr Griffin by failing to provide safe access to its swing stage at every juncture. It is submitted that in relation to the planning phase, Tubeway failed to live up to its own risk assessment, which included the following statement:

Our supervisor completes a site inspection report (see Appendix E) to visualise any potential hazards. With this report now certified, trained scaffolders, riggers, we minimise any likelihood of potential injury.

29 The VWA submits that the breach is significant because a trained scaffolder performing a site inspection would have likely identified the hazard created outside Door A and taken steps to improve or at least designate the access point.

30 The VWA submits that Tubeway failed to adequately induct Mr Griffin and that the manner in which John Birt left the swing stage on drop zone 12 demonstrated a further breach. The VWA submits that Tubeway's breach in failing to provide a safe access point upon installation is significant, given the evidence for its finding that Mr Griffin was the first one to access the swing stage after John Birt installed it.

31 The VWA submits that Probuild breached its duty as an occupier by failing to warn Mr Griffin against using Door A to access the swing stage. It is submitted that signage and/or a direction was required, given the intended access route to the swing stage on drop zone 12 was unique, in that instead of proceeding through a sliding door, the worker needed to proceed through an alternate door.

32 It is submitted that Probuild further breached its duty by creating a confusing permit system which it failed to properly explain to workers.

33 The VWA contends that Probuild further breached its duty by failing to identify the hazard at drop zone 12 during the planning phase in circumstances where Mr Ray had identified and rectified 'tricky' access points, but had given insufficient consideration to drop zone 12.

34 Finally, it is alleged that Probuild breached its duty by failing to inspect the swing stage upon its completion and before requiring Mr Griffin to access it.

35 The VWA submits that Higgins also breached its duty by failing to identify the potential hazard posed by the subject swing drop at drop zone 12 during the planning phase. Further, Higgins breached its duty by failing to supervise the performance of its contractor.

36 For the reasons set out in the contribution proceeding, I consider that Probuild and Tubeway breached their duty of care to Mr Griffin and that the breaches were causative of Mr Griffin's injury.

37 On the balance of probabilities, I am satisfied that, but for Probuild and Tubeway's breaches of duty, that is the failure to have an adequate drop zone permit system, including an understanding of the barricading system, and Tubeway's failure to provide proper training in relation to accessing the swing stage and a more comprehensive daily checklist which included an item concerning safe access into the swing stage, the accident would not have happened. I am satisfied that, had there been an adequate drop zone permit system and training stressing the importance of the use of the three points of contact, that these additional steps or activities would have prevented Mr Griffin from suffering his injury.

38 It follows that the VWA has established that Mr Griffin's injuries were caused under circumstances creating a liability in Probuild and Tubeway to pay damages.

39 For the reasons set out at [447] to [453] of the contribution proceeding, I do not consider Higgins has any liability in the recovery proceeding.

40 In the contribution proceeding, I held that Probuild was 50% and Tubeway was 25% liable for Mr Griffin's injury. This does not resolve apportionment in this case. The amount of indemnity in favour of the VWA takes into account Factor X, being 'the extent, expressed as a percentage, whereby the third party's act, default or negligence, caused or contributed to the injury or death.'[12]

41 The defendants to this proceeding assert that two other parties should bear responsibility and therefore reduce their percentage responsibility, namely, Mr Griffin and Aluline.[13]

42 I will not repeat my conclusions in this regard, which are summarised at [363]-[374] and [454]-[460] in the contribution proceeding. It suffices to say that some responsibility for Mr Griffin's accident rests with Aluline. Aluline should have had in place a system of work which ensured that its employees were properly trained in relation to the safe method of accessing a swing stage and a proper understanding of the drop zone permit system and barricading system in place at the Bank Apartments.

43 The particulars of negligence alleged against Mr Griffin in summary are as follows:

(a) failing to take reasonable care for his own safety;

(b) failing to adopt a safe posture when accessing the swing stage;

(c) failing to seek assistance in relation to accessing the swing stage if he considered that it required him to adopt an awkward and/or unsafe posture;

(d) failing to follow adequately or at all his induction and/or training in relation to accessing the swing stage;

(e) failing to notify his employer, Aluline and/or Probuild, Higgins or Tubeway of any issues or concerns with respect to adopting an awkward and/or unsafe posture in accessing the swing stage;

(f) failing to meet the requirements of s 25 of the Occupational Health and Safety Act 2004;

(g) exposing himself to risk of injury which he knew or ought to have known; and

(h) exposing himself to unnecessary risk of injury.

44 The defendants submit that there was considerable contribution by Mr Griffin. This substantially consisted of:

(a) Mr Griffin failing to take reasonable care for his own safety and therefore bearing significant responsibility for his injury;

(c) Mr Griffin knew a safe way of entering a swing stage because he had used the three points of contact access method before 10 May 2011;

(d) Mr Griffin was inducted by Probuild to contact Mr Ray if he needed assistance. Mr Ray's evidence was to the effect that Mr Griffin called him five to six times a day;[14]

(e) faced with a difficult entry point to the swing stage, Mr Griffin could have called Mr Ray and explained that Door C was barricaded and the sliding door was obstructed so that he could not get into the swing stage safely. Had he done so, it would have been evident that Door C would have been provided as a means of access to drop zone 12;

(f) Mr Griffin attempted to negotiate access via Door A in circumstances where he was confused about his entitlement to enter a drop zone at all;

(g) Mr Griffin failed to telephone or take other steps to inquire as to the proper method of accessing the swing stage, when he was confronted with an awkward situation; and

(h) Mr Griffin adopted a technique that was unsafe and, to adopt such a technique rather than make further inquiries, was wrong.

45 The relevant findings in relation to the allegations of Mr Griffin's contributory negligence are as follows:

• By the time Mr Griffin commenced working at the Bank Apartments in August 2010, he had been working with Aluline for 10 to 11 months, working at various sites.[15]
• In Mr Griffin's 11 years' experience as a balustrader prior to joining Aluline, he had been in a swing stage only or at most a handful of times and had never used a swing stage when working with Aluline.[16]
• Probuild's drop zone permit system was confusing, and it is not clear that Mr Griffin was tool boxed into the drop zone system.
• Mr Griffin was not instructed about questioning the sanctity of barricading.
• Mr Griffin's evidence was clear that he was taught that when confronted with a barricaded area, he should not go through it.[17]
• Mr Griffin did not access drop zone 12 on 10 May 2011 through Door C because it was barricaded and, to his thinking, not safe to access. Accordingly, he accessed Door A, even though it was not designated for entry to drop zone 12 and was not specified by any party as a preferred means to enter the swing stage.
• The swing stage was positioned at 'D', adjacent to Door A, by John Birt on Mr Ray's instructions on 9 May 2011 at a distance from the building façade which did not allow Mr Griffin sufficient space to move around the cradle to enter it from the obstructed side.
• Mr Griffin did not contact John Ray or anyone from Probuild for instructions to clarify whether to use Door A to access drop zone 12.
• Mr Griffin considered the only issue for him was how close the swing stage was to the building, whether he accessed it through Door C, which was barricaded, or whether he got to the swing stage through Door A.[18]
• Mr Griffin agreed that when he got to level 8 and was confronted with the barricaded Door C, Door A and Window B, it was a matter entirely for him as to which way he approached the swing stage and that he decided to take the most direct way.[19]
• Mr Griffin's evidence in relation to why he did not call Mr Ray to query why Door C was barricaded was that 'We was given that and we worked with what we had'.[20]

1. I confirm my findings at paragraph [136] in the contribution proceeding that it was reasonably foreseeable that Mr Griffin, when confronted with the barricaded Door C, would use an alternative point of entry to the swing stage via Door A. The real issue is whether Mr Griffin should have contacted Mr Ray, Mr Jackson or someone else from Probuild, or from Tubeway or Aluline to query whether he should have used Door A. Mr Griffin was equipped with a mobile telephone[21] and he had already used it that morning.[22] The evidence was that Mr Griffin would frequently contact his supervisor, Mr Canko, on various matters[23] and he would also telephone Mr Ray.[24]
2. It was Mr Jackson and Mr Ray's evidence that this was precisely the situation in which Mr Griffin should have telephoned for assistance.[25]
3. The evidence also supports a finding that the technique adopted by Mr Griffin to enter the swing stage on 10 May 2011 via Door A was unsafe. Mr Jackson and Mr Ray considered that Mr Griffin was wrong to adopt such a technique, rather than make further inquiries.[26]

1. As discussed in the contribution proceeding at paragraph [291]-[297], the parties, by consent, have agreed that Part X of the Wrongs Act applies to the contribution proceeding and the recovery proceeding.
2. Division 10 of Part X provides, in relation to contributory negligence:

62. Standard of care for contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose -

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

1. Section 47 of the Wrongs Act provides that, except as provided, Part X is not intended to affect the common law.
2. The onus is upon the defendants to prove contributory negligence. At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed.[27]
3. Section 5R of the Civil Liability Act 2002 (NSW), for present purposes, has the same wording as s 62(1) and (2) of the Wrongs Act in relation to contributory negligence.
4. In Pollard v Baulderstone Hornibrook Engineering Pty Ltd ('Pollard'),[28] the New South Wales Court of Appeal noted that:[29]

The words "reasonable person in the position of that person" in s 5R are equivalent to the words "a reasonable person in the plaintiff's position"...

Section 5R reflects "the expectation that, in general, people will take as much care for themselves as they expect others to take for them".

55 In personal injury in the course of employment cases, the law recognises the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other. In Podrebersek v Australian Iron & Steel Pty Ltd,[30] the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:

It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether, in those circumstances and under those conditions, the appellant's conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence.

56 In this case, Mr Griffin was not Probuild's, Tubeway's or Higgins' employee. Different considerations arise in the case of contributory negligence on the part of such persons.[31] In Pollard, the New South Wales Court of Appeal stated:

In an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the plaintiff to unnecessary risks. In such a case, the question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker's conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage.

The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff's position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety.[32]

57 As discussed I have found that Probuild and Tubeway owed Mr Griffin a duty of care. Their respective duties are discussed at [319]-[329], [345]-[353], [391]-[397], [410] to [425], and [427] in the contribution proceeding. I have also found that Probuild and Tubeway have breached their duty of care and that the breaches are causative of Mr Griffin's injury. For the following reasons, in the circumstances of this care, bearing in mind the duties owed by Probuild and Tubeway, I make no finding of contributory negligence against Mr Griffin. Despite the manner Mr Griffin adopted to enter the swing stage on 10 May 2011, I do not consider he failed to take reasonable care for his safety.

58 In this case, the evidence is that accessing a swing stage and drop zones involved some risk. Mr Griffin was not properly instructed or trained in relation to the drop zone permit system, and that included not being properly trained in relation to permanent versus temporary barricading, or when it was appropriate to go through a barricaded area. Although he was taught how to access the swing stage using the three points of contact system, Mr Griffin was not instructed as to the importance of only using that method. That is, that if he could not use the three points of contact system to access the swing stage, he should not enter the swing stage and should make contact with an appropriate person or make further inquiries as to how he should access the swing stage. As such, he cannot be criticised for accessing the swing stage in the manner he did. The daily checklist did not alert Mr Griffin to the safe access into the swing stage.

59 On the day in question, Mr Griffin was confronted with two possible means of accessing the swing stage. The first, through Door C which was barricaded, and the second, via Door A which was barricaded but only by an inertia reel.

60 As discussed, the barricading on Door C consisted of either red and white barricading and/or idiot tape, which, to Mr Griffin's understanding, meant he should never go through it. The inertia reel, on the other hand, by its very nature, is something which is designed to be easily removed and replaced once you had entered and exited an area.

61 In the circumstances, Mr Griffin was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendants. Entering the swing stage in the manner he did was not, in my opinion, in his own interest or for his own convenience, but was so that he could perform his duties to fix the defects in the balustrading and to ensure that he did it in a timely manner.

62 This was not a case where Mr Griffin's conduct was due to inattention borne of familiarity and repetition. Much was said in evidence that Mr Griffin should have contacted Mr Jackson or Mr Ray when he was confronted with accessing the swing stage via Door A. However, there was no evidence as to how Mr Griffin was trained, or that it was communicated to him to do so. This is in circumstances where Mr Griffin's evidence was that Mr Ray was always 'snooping around' and he was keen for Mr Griffin to get the work done.

63 It should not be understood that Mr Griffin was shy about calling Mr Ray when he had to. Mr Griffin's evidence was that he was regularly under pressure from Mr Ray to get his work done properly. However, I consider on 10 May 2011, Mr Griffin did not consider, due to his lack of training and experience, that there was an issue about accessing the swing stage through Door A. He was able to do it by simply removing the inertia reel, which he understood was permissible, and using a technique different to the three points of contact. Again, he was not trained about the three points of contact method being paramount and, nor that if such an entry method was not possible, that he should not attempt to enter the swing stage. It is not at all clear that Mr Griffin was inadvertent in entering the swing stage. He certainly was not negligent. I consider he was doing his reasonable best when he entered the swing stage through Door A and adopted a method of entry which was not the three points of contact.

64 When you combine Probuild's failure to educate or train Mr Griffin about the circumstances in which barricades can be breached and Tubeway's inadequate training in relation to the three points of contact, it is foreseeable that Mr Griffin decided to access and enter the swing stage in the manner he did on 10 May 2011, which caused his injuries. To his mind, all Mr Griffin had to do was access the swing stage via Door A.

65 In all of the circumstances, Mr Griffin's decision to enter the swing stage via Door A, in particular adopting the technique that he did, was the product of nothing more than misjudgement. I do not consider that Mr Griffin's actions were deliberate, intentional, nor in disregard of a direction or order from Probuild, Tubeway, Aluline or Higgins. Accordingly, I make no finding of contributory negligence.

66 The VWA has succeeded in establishing that Probuild and Tubeway are liable to pay damages to Mr Griffin because his injuries were caused by their negligence. Probuild and Tubeway are therefore liable to indemnify the VWA under s 138(1) of the Act for compensation paid to Mr Griffin in respect of his injuries.

67 It is appropriate to apply apportionment of 50/25 Probuild:Tubeway as determined in the contribution proceeding. Factor X is 50% as against Probuild and 25% as against Tubeway That is Factor X in the formula specified in s 138(3)(b). Probuild and Tubeway are liable to indemnify the VWA to an amount to be calculated according to the formula on that basis.

68 I will ask that the parties consider appropriate orders.

[1] [2016] VSC 101.

[2] Further Amended Statement of Claim dated 12 November 2015, [A]-[F].

[4] Further Amended Statement of Claim dated 12 November 2015 [11].

[5] [2012] VSC 412.

[6] [2007] VSCA 210; [2007] 18 VR 146, [16]-[18].

[7] Jones Lang Lasalle [2012] VSC 412 [37] (citations omitted).

[8] Exhibit D3-14, pp 671-2. At p 671 entering the swing stage is identified as a task carrying with it the risk of death or serious injury, while at p 672 entering or exiting the swing stage is identified as a task carrying with it the risk of personal injury.

[13] Higgins Defence dated 19 March 2015, [17]; Tubeway's Defence to the Further Amended Statement of Claim dated 25 November 2015, [16] and [17]; and Probuild's Defence dated 3 July 2014, [17], [17.1] and [17.2].

[19] T 200 LL 28-31; T 201, LL 1, 18 - 19.

[25] T 1027, LL 29-31; T 1028, LL 1-6; T 1196, LL 10 - 17.

[26] T 939, LL 19 - 25; T 1028, LL 24 - 27; T 1203, LL 4-5, 23-26; T 1204, LL 1-3, 12-13, 19-20.

[27] Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, 558 [16].

[28] [2008] NSWCA 99.

[30] [1985] HCA 34; (1985) 59 ALR 529, 531.

[31] Thompson v Woolworths (Queensland) [2005] HCA 19; (2005) 221 CLR 234, 247-8 [40].

[32] Pollard [2008] NSWCA 99, [15]-[16] (citations omitted).