VWA v Seventy First Trading Pty Ltd & Anor [2025] VCC 342

VWA v Seventy First Trading Pty Ltd & Anor [2025] VCC 342 | Case summary | Zoe

[8]

In Esso Australia Ltd v VWA & Anor,[4] and subsequently in VWA v Carrier Air Conditioning Pty Ltd,[5] it was held that contribution and contributory negligence for the purposes of determining Factor X should be determined in the same manner as contribution and contributory negligence is determined under the Wrongs Act 1958 (Vic) ("the Wrongs Act"). Section 24 of the Wrongs Act requires the Court to determine contribution based on what is "just and equitable having regard to the extent of that person's responsibility for the damage".[6]
Factor X is established by application of the same principles as inform the contribution between wrongdoers. Therefore, the Court will investigate the circumstances surrounding the accident, identify those parties whose act/s or omissions have a causal relationship to the injury of the worker, and then determine the level of responsibility of each, including the worker.
The test applied in a claim for contribution under Part IV of the Wrongs Act is:
- the degree to which each of the parties has departed from the standard of conduct required of that party; and
- the relative causal potency of each of the parties' acts in relation to the injury sustained by the worker.
There is no reason in principle why the same approach under the Wrongs Act should not be adopted when determining Factor X, although a Court when it has reached the stage of determining Factor X, has necessarily determined that the compensable injury was sustained in circumstances creating a liability to pay damages for the injury. In an appropriate case, Factor X, like contribution under the Wrongs Act, may be nil or 100 per cent, because if a wrongdoer was solely responsible for the personal injury, it would pay 100 per cent, no matter how insignificant its breach, but if there were multiple wrongdoers, the relative responsibility may be such, that the contribution could be either insignificant or nil.
Contribution is assessed on the basis of what is just and equitable having regard to the content of that person's responsibility for the damage. Such an assessment involves two principal considerations, the degree of departure from the standard of care required, and the relative causal potency of the potential tortfeasor's breach.
The determination of Factor X is a discretionary exercise.[7] Accordingly, the discretion must be exercised lawfully, having regard to relevant matters, and disregarding irrelevant matters.
If liability is established in negligence then the VWA becomes entitled to the indemnity from the third party defendant in accordance with the section and the formula earlier described.
The VWA is authorised at law to commence a proceeding to recover money under the provisions of Section 369 of the WIRCA.

[31]

(a) Failing to provide and maintain safe premises for the worker to work;

(b) Failing to provide the worker with a safe working environment;

(c) Requiring the worker to work in a situation of danger;

(d) Failing to undertake a risk assessment of the safety of the premises;

(e) Failing to ensure there were anchor points available for a ladder to be erected;

(f) Failing to inspect the area of the premises in which the worker was working;

(g) Failing to properly supervise the worker;

(h) Failing to have any or any available pre-installed anchors;

(i) Failing to meet the requirements of Sections 20, 21, 22, 23 and 26 of the Occupational Health & Safety Act 2004 and/or the regulations made under or applied by that Act, including but not limited to the Occupational Health and Safety Regulations 2007;

(j) Failing to maintain the premises in a condition that would enable the worker to perform the work safely;

(k) Failing to take adequate steps to eliminate the risk of the worker being injured;

(l) Failing to warn the worker;

(m) Exposing the worker to a risk of injury of which the First Defendant knew or ought to have known;

(n) Exposing the worker to a risk of injury which could have been avoided with reasonable care on the part of the First Defendant;

(o) Failing to provide a safe place of work;

(p) Failing to provide a safe system of work;

(q) Exposing the worker to unnecessary risk of injury.

(r) Failing to devise, maintain and enforce a safe system of work at the premises;

(s) Failing to have any or any adequate system for the management of contractors working at the premises;

(t) Failing to ensure that the plaintiff and/or any other contractor was inducted at the premises;

(u) Failing to undertake any or any adequate hazard identification of works to be undertaken by contractors at the premises;

(v) Failing to require contractors to prepare Safe Work Method Statements and/or undertake hazard identification of intended works at the premises;

(w) Failing to issue work permits such as working at heights prior to contractors commencing work at the premises;

(x) Failing to adequately train and/or instruct contractors with respect to working at heights at the premises;

(y) Failing to instruct the worker, the Plaintiff, the Second Defendant and/or other persons attending the premises of the existence of the external fixed-safety ladder, in circumstances where access to the roof cavity at the premises was required;

(z) Permitting access to the roof cavity at the premises via a manhole when the defendant knew of the existence of the external fixed-safety ladder;

(aa) Failing to have any signage on the manhole or in close proximity to the manhole, advising workers of the existence of the external fixed-safety ladder to access the roof cavity at the premises.

[41]

The worker said that Arthur did not want to relocate the working platform (that is, the scissor lift) because he said it was quite a task to get it into where it was. It was quite tight and had taken quite a number of goes to get it in there, so he suggested that they go up via the ladder.[50]
The worker said this was the extent of discussion about a ladder, and that Arthur then went outside alone and retrieved his ladder from his vehicle. After having obtained the ladder the worker said that Arthur "proceeded to put the ladder up while I went into the cool room to see how the coil was wired, and whether the cables were going to like a junction box or whether they individually come down to fans and whether there was any heaters, et cetera or stuff like that, so I knew what I was going to see."[51]
The worker said he was in the cool room for a few minutes, before he came out and saw Arthur climbing the ladder from the first rung. The worker said he was standing in front of the cool room door approximately three metres away from the ladder which was in the adjacent area. The worker said he watched Arthur climb the ladder, and having done so, he proceeded to climb it.
The worker estimated that he was about 20 centimetres from the top of the ladder when the base of it came out from under him. The ladder fell onto the sink beneath it.
The worker was rendered unconscious. He sustained injuries to his jaw and teeth. He said he had no recollection of the incident, until he was in the ambulance on the way to hospital.
Mr Macnab drew the worker's attention to various photographs of Europa's premises. In them, the presence of an external safety ladder is visible. However, the worker said that no one had told him of the existence of the external safety ladder. He said that if he had been told about it, he would have used it to access the roof cavity.
Mr Macnab asked the worker to identify the area of the manhole's location from which the ladder collapse occurred. The worker drew on the photograph (reproduced below) his recollection of the ladder and how the ladder was set up to allow access to the manhole and into the roof cavity. He marked an X on the ground where he was standing when he observed Arthur climb the ladder.[52]

[57]

The worker said that the answer sworn by Mr Hibbert was "incorrect", and he was not sent to the premises to assess and quote the job.[75] The worker said Mick Hibbert simply told him to go and meet Arthur at Europa, because another employee of CDE had called in sick.
The worker said that he was aware he was going to relocate refrigeration coils at the premises, but he had no details about the location of the coils, or to where they were to be moved. However, he said that coils are generally bolted through a roof, so he expected that the work would be above head height. He said he had not understood that it would follow that because he was required to disconnect coils, he would need the use of a ladder, and said that "generally you'd use a scissor lift to access these things".[76] He said he had performed this type of job before, when he had worked for a previous employer, and his experience generally had been that coils on a roof were accessed by a scissor lift. He said he had previously accessed coils on a roof by a ladder, and had not had a spotter, but had secured the ladder himself.
The worker said he had previously performed jobs with CDR workers on other sites.
Mr Middleton questioned the worker about the general process involved when attending on a new site to perform work. The worker said he would report to reception and "sign on", if the site required it, which he explained depended whether he had been told to do so by Mick Hibbert, and also if there was signage at the particular premises directing visitors to do so. He said he had not been told to do so by Mick Hibbert in this instance.
Mr Middleton asked the worker if it was the case that on arriving at a new site and not having been provided with any instructions from Mick Hibbert of what to do, that he would seek out someone in authority on site to obtain relevant information, such as, for example, whether or not there was a safety ladder that gave external access to the roof. The worker said that based on previous jobs, generally speaking, he would just meet up with CDR employees on site with whom he would be working and go from there, because, as he put it, it was "their job and we do what they ask and what they need".[77]
Mr Middleton suggested to the worker that he wouldn't ordinarily commence working on a site without somehow announcing his arrival. The worker said that it depended on the circumstances, if that would happen, because he was not "in the in the business of standing around doing - not looking for people or doing nothing".[78]
The worker disagreed that it was a policy of CDE or Mick Hibbert to cut corners.[79]
Mr Middleton asked the worker if at some stage after arriving at Europa he thought it was important to have determined if there was an external safety ladder. The worker said, "I went off what Arthur said. Arthur said we need to put an extension ladder up, so I just went by [what he said]".[80] Mr Middleton asked the worker if he knew how many times Arthur had been at Europa previously, and the worker said that the extent of his knowledge was that Arthur had been present the day before.
The worker confirmed that when he arrived at Europa, he drove straight to the car port, because he recognised Arthur's car and so he parked behind him. When he drove in, he said he looked to the right and saw the reception area was dark and the lights were out. He observed the reception sign, but no other signage.
Mr Middleton asked the worker how he would have proceeded with the job had the work he was to undertake been for his employer and he said, "If it was our job we'd go seek someone out to find exactly what they wanted and what they needed".[81] He agreed with Mr Middleton, that in such circumstances, he would not climb a ladder without first assessing the ladder, or if alternatives existed, such as an external safety ladder. However, in this case he said that he relied entirely on Arthur, because he had been instructed by CDE to attend the premises to meet Arthur.
The worker agreed that he had previously signed a SWMS document at CDE's direction to enable him to work on a job for the Melbourne Market Authority. He said it was not the norm for CDE or Mick Hibbert to organise a SWMS or JSA when attending a site they had not been to before, but it would occur for a specific job if required, such as occurred with the Melbourne Market Authority. He said he had only flicked through that SWMS before he signed the back page. He said that he did not read it because he was in a hurry because of the pressure of work.[82]
The worker agreed that he had not seen Arthur's efforts at trying to get the scissor lift into place in the cool room, but he could tell that it was a tight fit and it might have taken some time to manoeuvre it.
Mr Middleton asked the worker if the pressure of work was such that his priority was just to get on with the job regardless, and he said "no, I just followed what Arthur wanted to do".[83]
The worker said he did not ask Arthur if there was another way to get into the roof, and he did not ask him if they could use the scissor lift. He said, "Arthur was quite insistent he didn't want to move it".[84]
The worker said Arthur retrieved his ladder from his vehicle while he went into the cool room and made observations of the fans above from the floor. He said the electrical power had already been shut off. He said that in his absence Arthur had extended the ladder to the manhole in the adjacent area. He came back and watched Arthur go up the ladder. He said he assumed that the ladder was secured, because Arthur went up it. He said that normally a ladder would be tied off. He would have tied it off to the sink,[85] or otherwise, he would have used the scissor lift.[86]
The worker maintained that he was directed by Arthur to use the ladder and that Arthur was insistent that the ladder be used.
The worker could not recall, if after the fall and on his return to work with CDE, he was provided instruction that he must use scissor lifts but said that after the incident, he was given an occupational health and safety checklist document by his employer.[87]

[58]

The worker agreed that he was 49 years of age at the time of his injury, and had been working in the electrical industry in the order of 34 years, and had used extension ladders to access roof spaces over his working life.
He said he commenced with CDE in December 2013, and the extent of his training was attendance at a safety at height module. When asked by Mr Walsh if he had obtained years of on the job training dealing with safety matters including ladders, the worker said that he had been, "working with other people, yeah, we all know what we're doing".[88]
He said he had not been taken through the CDE OHS booklet, and it had simply been given to him by Mick Hibbert's daughter in July 2014.
The worker agreed with Mr Walsh that there were some basic rules that applied to the use of ladders, such as securing them, having three points of contact and someone who was "footing" or holding the ladder at the bottom. The worker agreed that there was no one footing the ladder on the day he was injured and he did not ask anyone to do so. When asked why not, he said, "I thought it was tied off, that's what I thought".[89]
The worker agreed that a sink was located directly in front of the ladder. Mr Walsh suggested to him, "so it would have been easy for you to tie that ladder off to that sink, wouldn't it, as an extra precaution?" The worker said, "I didn't see that it wasn't tied off".[90] He said Arthur did not mention whether the ladder was tied off or not, but he assumed, after watching Arthur climb the ladder, that it was tied off. He agreed he did not look to see if the ladder had been tied off to the sink. He then said that at any rate he would not necessarily have seen if it was tied off because of all the pipes and "stuff" coming down the wall from the sink.[91]
Mr Walsh asked the worker to explain the mechanism he would have used had he tied the ladder off, and he said that he would have used "fasties" which he had on his ladder that was on the roof of his vehicle.

[59]

The worker said that on the morning he was sent to Europa, no one from CDE discussed the details of the job with him. There was no tool box meeting, or other discussion about the use of equipment that might be required. He was told by Mick Hibbert only that he had to meet Arthur at Europa and to relocate a coil.
The worker said he assumed he would have needed to access the roof space. However, he said he did not take anything from CDE that morning for the purpose of the job. He said he had an extension ladder and two A-frame ladders on his truck. He said he attended at Europa uncertain if he would be able to do the job, as it would have depended on how the coil was wired. He accepted that it might have proved necessary to obtain additional materials in order to undertake the task.
Mr Walsh put to the worker that his account was contrary to Mick Hibbert's evidence in CDE's answers to interrogatories, which was that the worker was sent to the premises to assess and quote the work to be done.[92] The worker said, "that's definitely not correct".[93] The worker said that he "completely disagree[d]" with the answer sworn by Mick Hibbert.[94]
Addressing whether CDE had performed a risk assessment of the area where the accident occurred, the suitability of the use of the ladder at the premises or the state of the flooring at the premises,[95] Mr Walsh referred the worker to a further answer to interrogatories from Mr Hibbert that no risk assessment was undertaken because the worker was tasked only with assessing and quoting the job. Consistent with his earlier evidence, the worker disagreed with Mr Hibbert's evidence.
The worker said that CDE never insisted on a SWMS being in place to complete work.[96] He said that some jobs required a SWMS, but he said that a lot of the work he did for CDE was at premises when no one was around, and so he and others worked "by yourself with no-one around".[97]
Although he had a copy of the CDE OHS booklet in his vehicle, the worker said he had not read it because he had not found the time to do so. He agreed with Mr Walsh that he and other CDE workers were under considerable time pressures because of work demands, but he did not agree with Mr Walsh that there was a cutting of corners by CDE, although he accepted that workers were always under pressure to perform the job. As he put it, "A lot of the times, you're there on breakdowns and you know, you could have $5 million of bananas sitting there, going rotten".[98]

[60]

Mr Walsh questioned the worker about the events on the morning of the injury. The worker repeated that Mick Hibbert told him that another employee was sick and so he was required to attend the job at Europa. He was not given anything in writing. He was told the address of the premises. He said he already had Arthur's phone number from a previous occasion. He said he did not call Arthur en route to discuss the job and did not consider there was any need to do so.
I asked the worker if he would have been required to access the roof even if he was attending the premises to assess and quote the job as was Mr Hibbert's evidence as opposed to performing the works. He said he would have needed to do so in order to know how the coil was wired.
The worker said that when he arrived at Europa, he phoned Arthur who directed him to the cool room. He saw Arthur was on the extended scissor lift and was disconnecting refrigerator pipes from the coils on the roof. He said that when he first walked into the cool room, he did not observe a manhole cover.
The worker agreed with Mr Walsh that he was older than Arthur, but he said he was unaware of Arthur's age, or that Arthur had only recently qualified as a refrigeration mechanic.
Mr Walsh put to the worker that Arthur would testify that when the worker arrived at the premises, he asked him about access to the roof space. The worker said "no, he turned - that's wrong. He turned around to me and said, 'I'll show you what we need to'...".[99]
Mr Walsh said that Arthur would testify that he told the worker about the external stairwell at the rear of the premises. The worker disagreed and said "no. No. Nothing of the sort".[100]
Mr Walsh said that Arthur would testify that the worker told him that he had seen a manhole next to the cool room, and that he wanted to use it to access into the roof, and he asked Arthur to get his ladder so he could do so, but the worker denied this occurred.
Mr Walsh said that Arthur would say that after he retrieved his ladder the worker observed him place it in the position of the manhole, and he then asked the worker if he was happy with the ladder's position and the worker then adjusted the ladder to ensure that it was a safe distance from the wall. Mr Walsh told the worker that Arthur would also testify that he climbed the ladder and as he entered the roof space, he looked around and saw that the worker was already well up the ladder.
The worker denied this account of events and instead said that when he came from the cool room the ladder was already in place, and it was "definitely incorrect" that he adjusted ladder.[101] The worker said he waited until Arthur was off the ladder before he commenced to climb it.
The worker agreed with Mr Walsh that there was no discussion with Arthur whether ladder was fixed or secured in any way.[102]
The worker agreed with Mr Walsh that when he got to top of the ladder it slipped out from the bottom causing him to fall forward.
The worker agreed that his ladder on his vehicle had a fixing clip and would have allowed him to secure it in place.
Mr Walsh suggested to the worker that he could readily have assessed for himself if the ladder was secure before he commenced climbing it. This exchange followed:

[72]

Arthur said he commenced employment with CDR as an apprentice when he was about 18 years old. He completed his apprenticeship in mid-2014 and became a qualified technician. His work involves installing and servicing refrigeration and air conditioning units.
He thought he received training on working from ladders during the course of his apprenticeship with CDR.[109]
Arthur said he had attended Europa on "a number" of occasions in the year before the worker's injury.[110] He said that on his previous attendances at Europa he performed general maintenance work.
Arthur said that the first time he attended at Europa he was asked to sign in at reception. He could not recall if there was an induction conducted on site, but he thought that other tradesman from CDR had familiarised him with the premises, and that this had occurred while he was still undertaking his apprenticeship.
From a photograph of the premises shown to him, Arthur identified the fixed ladder within a cage on a side corner of the building. He said that the ladder was accessible for use, and on the previous occasions he had attended Europa, he had accessed the roof space via the fixed external ladder.
When asked by Mr Walsh if he had ever accessed the roof space via another entry point, he said "no".[111]
Arthur was asked if anyone from Europa had provided him instructions on accessing the roof space, and he said they had not.[112]
Mr Walsh directed Arthur to Europa's visitor register.[113] Arthur identified his name in the register for 21 January 2015, the day before the incident. He said the register was located in reception. He said he thought that he would have signed the register on leaving the premises. He had no recollection of the presence of any member of staff.
Arthur recalled that on the date of the worker's injury, he was performing an initial diagnosis of the evaporator unit that needed replacement.
Mr Walsh asked Arthur if he had received a direction from CDR to provide safety directions to other contractors, or to advise them about access points, and he said he had not. He said CDR had simply told him that someone would be attending at Europa to assist him with the work.

[73]

Arthur said he had met the worker previously but had not worked with him before.
He said that on the date of injury, he arrived at Europa at about 8:00 am. He was tasked that day with changing the evaporator. He said he had a scissor lift to access the evaporator as well as general hand tools. He could not recall when the scissor lift arrived on site but that it was in the cool room when he arrived, although he had no memory who had parked it there, or if he had requested its use.
Arthur said he was telephoned by the worker. They then met face to face. He showed the worker where the evaporator was, and the areas that they would need to work on.
Prior to the worker's attendance, Arthur said he spoke with Stephen Interlandi of Europa. Arthur said it seemed as if that Mr Interlandi knew about the work that was to be carried out, including the areas in which the work was to be undertaken.
Arthur said the worker understood that he needed to disconnect and to reconnect the evaporator in the cool room in the roof space.
Mr Walsh asked Arthur if he and the worker discussed how to access the roof space. Arthur said, "I said to him that we were accessing from the ladder on the far side of the building, and whilst we were walking around, he noticed a manhole. And he asked if he could use that - that manhole".[114] Arthur said that before that day, he had not used the manhole to access the roof and was not aware of the manhole prior to that day and had never used it to access the roof.[115]
Arthur said he told the worker that to access the external safety ladder, he would need to walk to the far side of the building and walk back across the ceiling space to the cool room area.
Arthur said it was the worker who suggested the use of the manhole to access the roof, which was why he offered to retrieve his extension ladder. Mr Walsh asked Arthur why he offered the use of his ladder and he said, "I think at the time, being the younger - younger of the tradesmen on site, and him being the more experienced one, you just sort of help out the older guys, and - and things like that. So I got my ladder off - off my ute and carried it in for him".[116]
Mr Walsh asked Arthur if the worker had instructed him where to place the ladder, and this exchange followed:

[78]

Arthur said that as he stepped off the ladder into the roof space he saw that the worker was already making his way up the ladder and when the worker got to the top of the ladder, "he pretty much rode the ladder down to the ground".[118] He thought that when this happened, that the ladder was positioned in such a way that two or three of the top rungs of the ladder were protruding through the manhole into the roof.
Arthur said his ladder was in good condition.
Arthur said the worker did not ask him at any point before the accident about holding, or fixing, or footing the ladder.
Arthur said that the worker was the last person to touch the ladder and it was the worker who adjusted it into its position. He said the worker adjusted the angle by either pulling the ladder further out, or closer into the wall. He could not recall how far out from the wall the ladder was, or how exactly the worker adjusted the ladder.
Arthur said he could not recall how he got himself down from the roof space after the worker and ladder fell.
Arthur said he completed an incident report for Europa on the day of the accident.[119] He did not give a copy to his employer, but told his employer about it and he also telephoned Mick Hibbert to tell him that there had been an incident.
Arthur said he was not provided with a scope of works to be performed at Europa.
Arthur's signature was not recorded in the sign in book on the day of the accident.
Mr Walsh played Arthur the CCTV footage from the day of injury that identified him driving a forklift, and engaged in a discussion with the identified as Steven Interlandi. Arthur said that he and Mr Interlandi discussed what was happening on site. He could not recall if Mr Interlandi asked him to sign in.
Arthur said the forklift he used belonged to Europa, and he could not remember if he obtained permission to drive it, but he thought that the keys were in it.
Arthur said that he was unaware who had brought the scissor lift on site, and there was no discussion with anyone at Europa about where it would be positioned. He remembered being on the scissor lift in the cool room, but had no other memory of how it came to be in the cool room.
Following the worker's injury, Arthur continued in employment with CDR until 2016 and during that period of time, he undertook further work at Europa. He said that when he returned to Europa he was required to attend an induction. He signed a document dated 13 February 2015,[120]acknowledging that he had been inducted at Europa. He couldn't recall specific details about the induction, but said there was definitely more of a focus on safety after the worker's injury.
Arthur said that when the worker suggested to him the use of an extension ladder to access the roof, as opposed to the external fixed ladder, he did not quarrel with him or suggest that the fixed ladder was a safer means of access. He said, "I just pointed out where it was and how we had been accessing the roof and at that point he sort of suggested the manhole which was closer to where he needed to work and less distance travel for him".[121]
Arthur said he did not have any concern about the safety of the use of an extension ladder compared to use of the fixed external ladder. He said that using an extension ladder through a manhole was not out of the norm so such as to have worried him. He used the fixed external ladder the day prior because it was convenient, and because he was unaware of the manhole until the worker pointed it out to him on the day of the injury.
Arthur confirmed that the content of Europa's induction document he acknowledged he signed subsequent to the worker's injury included "OH&S Guidelines and Rules (SWMS)".[122]
Europa did not provide him with a SWMS about the work he was required to do prior to the worker's injury and had not provided him with information about a risk of falling from heights, or the means of access to the roof, or any risks associated with the use of extension ladders.
Arthur could not recall if anyone from Europa asked him if he held a forklift licence, or if he was provided him with instruction about the forklift prior to him driving it.[123]

[79]

Arthur agreed with Mr Macnab that because the induction document he signed dated 13 February 2015 after the worker's accident and provided to him at Europa by Mr Interlandi included an acknowledgement and declaration by him that he had read and understood the areas listed in it, that it was more likely than not, that he had been given the documentation to read, despite his inability to recall it.
Arthur acknowledged that he had attended on many work sites since the worker's injury occurred almost a decade ago.
Arthur could not remember if CDR asked him to complete an incident report. He could not remember if a specific tool box meeting occurred after the incident, or if he spoke to anyone from WorkSafe. He thought it likely he would have spoken to his boss, Phil Dodds, on the date the injury occurred, and that he might have made a statement to Mr Dodds about what had occurred.
Arthur agreed that he had attended Europa on a number of occasions prior to the worker's injury, both as an apprentice, and after he qualified as an electrician. He said he was well versed in what working on evaporators entailed, and it was a type of job that generally would take about a day to complete, although he thought the work on the evaporators had not commenced on the first day he attended, which had been more of a setting up and scoping of what would be involved in the job. He could not say if he was on site for the whole day, and he could not remember if he had used the scissor lift the first day, or who was responsible to ensure the scissor lift was available. He said that he was aware that sometimes CDE organised its own elevated work platform from a hire company, or used a scissor lift that he understood CDE owned, but that sometimes one was already one on site.
On the day of the accident, he recalled being in the scissor lift in the cool room and which he had driven into the cool room to access the evaporator.
Mr Macnab suggested to Arthur that the location of the evaporator in the cool room, being on the wall under the ceiling, but above the pallet racking, meant it was difficult to access. Arthur agreed. He said, "yes. But the scissor lift - it's got a platform that extends, so you can extend over the pallet racking".[124] Mr Macnab suggested that the area between the pallet racks was a confined space in which to position the scissor lift. Arthur said that "there's not a great deal of room, but we - I've driven a lot of them, and it's not an overly challenging task".[125]
Mr Manab suggested that in order to position the scissor lift in the cool room between the pallet racks, the scissor lift required manoeuvring, whereupon this exchange followed:

[84]

Arthur said he knew he was going to be sent someone to assist him with the work at Europa.
Arthur thought that he had already been up into the roof cavity via the external ladder before the worker arrived on site. He could not recall the path he took to get to the external stairs, such as for example, it was through the factory or not. He said he had gone into the roof cavity to examine what would be required in removing the evaporator.
Arthur was played CCTV footage from 8:48 am that depicted him carrying an A-frame ladder into the area of the cool room and manhole's location. He said this was to enable access to the exterior units that were positioned on a smaller sub-exterior roof (not the highest part of the roof) on the outside of the factory.
He could not recall to whom he was observed in CCTV footage speaking to on his phone in the car port area.
Although Arthur could not remember the specifics of the telephone conversation he had with the worker, he agreed it would have made sense for him to have told him that he was in the cool room and for the worker to meet him in there. He agreed that when the worker came into the cool room, he was elevated on the scissor lift that extended over the pallet racking to permit him access to the pipes connected to the evaporator but he could not recall if the scissor lift was hard up against the racking.
He agreed that he lowered the scissor lift and had a conversation with the worker in the cool room. He agreed he said to the worker, "I'll show you what you need to do".[130]
Mr Macnab suggested to Arthur that he told the worker, "'It's too difficult to move the scissor lift, I'll go and get my ladder". Arthur said he did not "remember the conversation going that way." When Mr Macnab suggested to him that the conversation may have gone that way, Arthur did not agree.[131] He said he did not recall saying to the worker that it was too difficult to move the scissor lift.
Arthur said it was not good practice to "jump out of a scissor lift" as would have been required had it been used as the means to access the manhole.
Arthur said that he explained to the worker that they needed to remove the evaporator. He said of the worker that "he, obviously being an experience[d] electrician, knew what work was needed to be done".[132] He said the worker knew that he would have to get into the roof cavity, but he disputed that he told the worker about the manhole or that he said to him that "I'll go and get my ladder".[133] He also denied that he pointed out the manhole to the worker.
Arthur agreed that he went to his car and retrieved his ladder.
Arthur maintained that he was unaware of a manhole in the cool room until the worker saw it and asked to use it despite him having attended Europa over some years and having accessed the roof cavity on multiple occasions. He said that when in the roof cavity, or in the factory, manholes were not readily observable because their covers were made out of the same material as the ceiling panels.
Arthur denied that whilst he was setting up the ladder the worker went into the cool room to assess the evaporator. He said that the worker was with him "the whole time",[134] whilst he set up the ladder.
Arthur could not remember how they removed the manhole cover to position the top arms of the ladder into it.
Arthur said it was wrong to suggest that the worker came out of the cool room and observed him climbing the ladder.
Arthur said that "initially" he set up the ladder.[135]
Arthur agreed that he did not tie the ladder off. When asked if there was anything stopping him tying the ladder off to the sink, Arthur said "tying off to a sink is not correct practice".[136] Mr Macnab suggested that it would have been the better option, but Athur insisted that it would not have been appropriate.
Arthur said he was sure that he did not remove the manhole cover earlier in the day and whilst he was in the roof cavity. However, he accepted that someone needed to have pushed the top of the ladder through the manhole cover, and he said that the cover must have been able to give way to have enabled the ladder to rest on the edge of the manhole. He said he believed that the manhole cover was hinged. He thought that two to three rungs of the ladder might have extended into the manhole.
Arthur said he remembered bringing the ladder inside and putting it in place, but not pushing it through the manhole cover to rest it in position before the worker made the adjustments to it Arthur described.[137] Arthur said that the worker was standing next to him, on the left side, when he placed the ladder into the manhole. Arthur said he then stepped to the side, whilst the worker adjusted the ladder. He could not remember whether the worker moved the ladder backwards or forwards. The worker then stepped aside and Arthur commenced to climb the ladder, and was aware that it had not been secured. Arthur repeated his evidence that as he stepped off the ladder into the roof cavity, he looked down and saw that the worker was already on the ladder. He did not think the worker was on the bottom rung of the ladder when he first saw him, but had already commenced to make his way up it.
Arthur said that he was standing in the roof cavity, and was watching the worker climb when he saw the ladder fall. The worker hit the ground. He said he could not remember how he got down from the roof, but he thought he must have used the external stairs.
I asked if Arthur in light of his evidence that he had not previously used a manhole to access the roof cavity, why when the worker suggested doing so, he did not tell him that it would be easier to go around to the external safety ladder. He said, "yeah, look, in hindsight I probably should've forced him to - use that exterior ladder".[138] Arthur said that his initial suggestion to the worker had been to use the external safety ladder, but the worker "pointed out the manhole and said, 'this is closer'".[139]
Arthur said he did not suggest to the worker the use of the scissor lift because it was being used to access the evaporator and "you're not supposed to jump out of the scissor lift".[140] He said he was familiar with the WorkSafe recommendation on the topic because he had obtained an elevated work platform license in 2015.
Arthur said he did not remember having a conversation with the worker to the effect that he did not want to use the scissor lift because it was too difficult to extricate it out of the cool room.
When asked if he regarded himself as in charge of the job, Arthur said "not so much. Like, we work with electrical contractors, and we do our part of the job, they do their part of the job".[141] He agreed he had told the worker where the evaporator was located, but insisted that he was not in charge of the worker.
Mr Macnab put the following questions to Arthur:

[93]

Mr Walsh referred to Arthur's evidence, that he had no role to perform for the safety of the worker or how the worker went about performing the job he was sent to undertake at Europa, which Mr Walsh submitted, should be treated as governed entirely by the worker's employment relationship with his employer, CDE.
Mr Walsh referred to Arthur's evidence that he had only used the external fixed safety ladder at Europa but had not previously used the manhole and was unaware of its existence and had complied with the direction of the worker.
Mr Walsh addressed a discordance in the evidence between CDE's sworn interrogatories that the worker attended the premises to assess and quote the work, and the worker who denied that this was the case. Mr Walsh contended that irrespective of which account was preferred, there is no question but that the worker needed to access the roof.[147] Mr Walsh submitted that CDE's system of work to protect the worker from the risk of falls when working at height and in ensuring that he was inducted on site at Europa was inadequate.
Mr Walsh submitted that CDE knew that the worker was attending at Europa and directed him to attend on site, and it should have appreciated that the worker would require access to the roof given the nature of the work he was sent to address, but it failed to conduct a risk assessment of how the worker would safely access the roof, and nor did it provide him with a SWMS or JSA addressing a safe method of accessing the roof space.
Mr Walsh referred to the worker's evidence that CDE told him not to sign in at the premises, which he submitted appeared contrary to the evidence of usual practice.
Mr Walsh emphasised that the worker was an experienced electrician. The injury occurred on his first day at the premises. Mr Walsh submitted that it was not sensible or reasonable for the worker to have relied on Arthur for his safety, whom it should have been apparent to the worker was younger and, therefore, probably a less experienced refrigeration mechanic.

[133]

I am satisfied that at common law CDR was responsible for the supervision, direction and control of the worker whilst he was at Europa because CDR had engaged CDE and this gave rise to a common law duty of care owed to the worker.
CDR owed the worker a duty of care to ensure that he was not exposed to unnecessary risk of injury while performing his duties at Europa. CDR was Arthur's employee. Arthur set up his ladder to enable the worker to access the roof cavity.
CDR exercised control over the worker at least in a de facto if not a de jure sense. The worker had worked with employees of CDR on occasions prior to the day of his injury. As to the worker's understanding of a line of authority on sites on previous occasions, he said that CDR was in charge, and that "When we do these jobs the general hierarchy is its refrigeration in charge of the jobs. It's their job and we do what they ask and what they need".[181] The worker said that because he attended Europa on the understanding it was a CDR job, he did not consider he needed to find anyone in authority to speak to from Europa on his arrival, but that had he attended Europa on a job for CDE, he would have acted very differently and this would have included endeavouring to report to someone with authority to speak to the job required, and to ask whether or not there were safety ladders and if there was an induction, any requirement for a sign in, and he would have sought those type of instructions from the client. He did not do so on this occasion, and he agreed with Mr Middleton, that he relied entirely on Arthur because CDE told him on arrival to see Arthur.[182] The worker's evidence on these matters was not disturbed on cross-examination by CDR. I accept his evidence on these matters.
I am satisfied that the worker was sent to the Europa on 22 January 2015 by his employer CDE. He was sent to Europa by CDE in answer to a request of it from CDR for assistance with the performance of refrigeration works that it was undertaking at Europa. CDR required the skill set of the worker that CDE provided. I accept the worker's evidence that having been sent by CDE to perform works required by CDR, that it was CDR who was in charge of the job. I accept that the worker's understanding of what he was tasked to do that day was to meet the needs of CDR. I am satisfied that the worker's expressed attitude and approach to the job on the day of his injury of who was directing the work required would seem consistent with his evidence of how other such type of jobs CDE had sent him to perform for others prior to the day of injury was approached and understood by him.
Arthur explained the details of the work he undertook in the period leading up to the worker's attendance on site. He described that he was attending for refrigeration works and replacing an evaporator that "involved disconnecting refrigeration pipe work, electrical cables, and then removing the unit from the ceiling and putting up a new unit, and reestablishing all the connections".[183] Arthur said his boss from CDR, Phil Dodds, told him that someone from CDE would be attending to assist him with the works.[184] That is the extent of evidence of information given to Arthur by CDR. There was equally scant evidence from CDE about what it expected of the worker, and I have taken into account that the task the worker was sent by CDE to Europa to assist CDR with on the day he was injured was the subject of a dispute between the worker and CDE.
There is little evidence adduced in the hearing to identify what Arthur understood his involvement on the morning the worker attended at Europa needed to be greater than meeting the worker, and pointing out to him a means of access into the roof to permit the worker to attend to the task CDR required him to perform. According to Arthur's evidence, this is what he did. Was more required of him?
The causative potency of CDR's conduct in any assessment of its proportionate responsibility to the worker's injury, rests significantly on the judgment I have formed of the contested evidentiary accounts of the worker and Arthur, and of Arthurs's obligation, if any, to do more that he maintained he did that day.
There is no contest that Arthur retrieved his own ladder with the intention that it be used by him and the worker to access the manhole. Arthur agreed that he set up the ladder including resting the top of it inside the manhole. He opened the manhole to lean his ladder through it.
I accept that the content of CDR's duty of care extended to the supervision and direction and control of the worker while on site at Europa and that the duty involved at least Arthur telling the worker about the presence of the external caged safety ladder and the use that could be made of it to access the roof space. This was a reasonable and simple thing to do and would have been consistent with the Arthur's evidence that he had used that method as the sole access point by him to the roof before the worker arrived on site on the day of his injury.
I find that it was Arthur who identified the existence of the manhole to the worker and not the other way around.
Arthur said he discharged the duty of care when he told the worker about the external caged ladder but that the duty did not extend to him requiring the worker to use it, or to him prohibiting the worker to gain access to the roof cavity via the manhole, and by the use of a ladder. Did the obligation extend to directing the worker to enter the roof cavity via the fixed external staircase and, therefore, be prescriptive of the worker of the means of access and egress he was to take to the roof as propounded by the VWA? I am not satisfied that it did. Should Arthur have contacted his employer CDR, or the worker's employer CDE, and have them direct the worker to use the external safety ladder? I am not satisfied that the duty of care extended to that extent.
I agree with the gist of the VWA's submission that Arthur's evidence that he was unaware of the manhole's existence until it was pointed out to him by the worker, is incongruous. On balance, I prefer the worker's account that he was not told about the external safety ladder access by Arthur, and that it was Arthur, who pointed out the manhole as a convenient point of access to the roof cavity. I prefer the worker's evidence because it makes greater sense that Arthur would refer to and rely on access to the roof through the manhole given its proximity to the area in which he had been working on the scissor lift when the worker arrived on site, as opposed to the need to walk to the external ladder and traverse back to the area where the worker was so as to assess what was required of him to assist Arthur in performing the works and then walk back and exit that way, even if it was not apparently far to walk to the external ladder.
The manhole provided a ready point of access for the worker to the area in which he needed to concern himself with the scope of works expected of him that day.
Arthur's offer to the worker of his use of his ladder was made with some deference having appreciated that he was the younger and likely far less experienced.
It is not disputed that Arthur set up his ladder in the room in which the manhole was located. Arthur placed it through the manhole cover and into the roof cavity where it leaned. However, and despite it having been the worker's election to access the manhole, but because Arthur offered to provide access with his ladder and because he put his ladder into the manhole, his duty of care also extended to taking steps to ensure that it was safe before he ascended it or allowed the work to ascend it into the roof cavity.
I am satisfied that Arthur failed in the exercise of reasonable care owed to the worker based on the knowledge he had at the time of the worker's injury.
I am also satisfied that an alternative and a safe means to access the roof cavity would have been the use of the scissor lift. Arthur rejected this suggestion because it would have required what he described as "a jumping off from it" and into the roof cavity, and that apart from its awkwardness, it may not have been any the safer than a properly secured ladder. It is not apparent from the evidence why there would have been a need to jump off the scissor lift into the roof as opposed to pulling oneself up into the roof cavity from the raised platform that itself would have given added protection because of its raised caged and would have prevented a fall of the distance the worker fell from the ladder. On balance, I prefer the worker's evidence that Arthur was reluctant to manoeuvre the scissor lift out of the cool room into the adjacent space from which access to the roof cavity would have been facilitated.
By reason of Arthur not having identified the existence of the external safety ladder, and not having been willing to position the scissor lift as means to access the roof cavity, but instead having offered up his ladder as the means of access into the manhole, it placed an obligation on Arthur to take reasonable steps to secure the ladder before the plaintiff ascended it. The question then is whether he discharged that duty, and if not, whether if he had taken some step that was available to him that he did not, the worker would not have suffered his injury.
Two possible means of securing the ladder arise on the evidence. When it was suggested to Arthur that a ladder such as was used that day might be secured by anchor bolts in the ground, he said proper practice would not be to use anchor bolts to secure a temporary ladder such as his extension ladder.[185] I accept that explanation.
When it was suggested to him that his ladder could have been tied off to prevent it falling, Arthur agreed that the method was something that is done "where it is possible to tie it off".[186]
Later it was suggested to Arthur that given his awareness that ladders can be tied off for safety that he should have tied the ladder off to the sink. Arthur said that tying off fasteners to a sink would not be "correct practice". To the suggestion that it would have been better to have done so than not at all, and that he could have tied it off to a pipe close to the sink, Arthur said, "you're not supposed to tie ladders off to unrated anchor points".[187] Arthur's evidence is revealing and it leads me to conclude that he did not turn his mind to the matter of securing the ladder at all. Had he done so, and if the difficulties of or inability to tie off the ladder had presented themselves to him, then quite simply he should have used the scissor lift or directed the worker that they would use the external safety ladder.

[144]

It is an essential aspect in reaching a concluded judgement about the wrongdoing by CDR that I pay due regard to and assess the causative potency of others who were 'on the field' as it were, and made a contribution to the worker's injury. A central submission made on behalf of CDR is that in the event of a finding of liability such as I have reached in regard to it, that its liability should be reduced by the negligence of the worker's employer CDE.
CDE was the worker's employer. CDE owed the worker a non-delegable duty of care to take reasonable care to not expose him to unnecessary risk of injury and that the duty comprised taking reasonable steps to devise, implement and enforce a safe system of work. It failed to meet and discharge that duty. It should have had a SWMS or a JSA to address the works that it sent the worker to perform at Europa but it did not do so, and it was apparently not its practice to do so, despite the fact that the implementation of such methods is a process the purposes of which includes an assessment and reduction of risks of injury to employee.
However, the failure by CDE cannot be assessed in terms of its seriousness, without a determination of the probable effect on the plaintiff's injuries caused by its failure to devise and implement a SWMS or JSA.
A SWMS or JSA should have been prepared by CDE and it should have at least addressed the manner in which the worker was to gain access to the roof cavity. The VWA accepts that CDE not having prepared such documents was a failing by it of its obligations to assess and reduce the risk of injury to its employees. The risk of injury was palpable and the duty of the worker's employer was clear. A SWMS is simply a document that sets out the high risk construction work to be carried out at a workplace, the hazards arising from these activities, and the measures to be put in place to control the risks and by regulation is to be brought into existence before the work commences.
The VWA arguments of CDE's omissions had a tendency to suggest that they were more failures of form over substance, and that the worker's experience with ladders from a practical standpoint gained over his working life, stands as a sufficient substitute or antidote to CDE's failure to provide a SWMS or JSA. I am unable to adopt that characterisation.
In my judgment, the VWA contention that CDE's liability is no more than 10% is misplaced. I assess its contribution at 25%. I regard such an assessment as justly recognising the fact that on either view of the conflict in evidence between the worker and Mr Hibbert, it was apparent that the worker would have been required to access the roof space and thus I am not satisfied by Mr Hibbert's evidence that a risk assessment was not warranted. In addition there was a relevant disconnect between the worker's and his employer's evidence of when a spotter was required. CDE's safety guide provided that a ladder should be held in place at the base by a person or otherwise prior to climbing the ladders but Mr Hibbert's answers to interrogatories that the use of a spotter was at the worker's discretion. The fact is that there may be occasions when no one else is on site to spot and the risk of the same is a good additional reason for the undertaking of a risk assessment being undertaken by the worker's employer.
I have considered the submissions made by both the VWA and CDR in relation to Europa. The CDR submission is that any liability apportioned to it should also be reduced by reason of the negligence of Europa. The VWA contended that the causative involvement of Europa should be assessed as 'nil'. I regard the contribution by Europa is not 'nil' but that it is comparatively minimal.
I do not agree with the submission made on behalf of the VWA of there having been demonstrated as absence of causative contribution to the worker's injuries by Europa.
There was no evidence before the Court of a contractual arrangement, or formal agreement or an arrangement between Europa and CDE.[198] Europa's Mr Interlandi, although aware of Arthur being on site, would not seem to have been aware that the worker was present.[199] There is no evidence to suggest that Europa was aware, or had any reason to be aware, that CDR had arranged CDE for its employee to attend Europa. Mr Interlandi spoke to Arthur prior to the worker's arrival on site. Arthur's evidence was that he spoke with Mr Interlandi about the jobs to be performed that day. The work to be performed by both Arthur and the worker was an essential part of the Europa cheese business.
Europa relied on CDR to devise their own system and methodology of work as the specialist trade,[200] being refrigeration mechanics. Europa relied on CDR to supply the necessary equipment for the contract works for which CDR had been engaged.[201] CDR's responsibility to supply that equipment is highlighted by its supply of the scissor lift for the works at Europa. I am satisfied that even had Europa been aware of the worker's presence, the worker and Arthur would have been working under their own supervision and control as the expert trades.[202]
Arthur and Tom West, another employee of CDR, attended Europa in respect of the refrigeration works on 21 January 2015. Arthur signed in at Europa on 21 January 2015, and was aware of the access to the roof cavity via the external safety ladder.[203] The activity of the evaporator repair works had been organised and the operation of the activities were in the hands of CDR as competent, expert contractors. The work clearly involved the need of working at heights, for which CDR had arranged specialist equipment in the form of the at least the scissor lift.
Brennan J's reasoning in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47 is relevant to the allegations and the arguments made by CDR against Europa. As to the circumstances in which a duty to exercise reasonable care to ensure a safe system of work for an independent contractor may be enlivened, his Honour said this:

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (207 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)