Duong v Versacold Logistics Ltd & Ors [2010] QSC 466

SUPREME COURT OF QUEENSLAND CITATION: Duong v Versacold Logistics Ltd & Ors [2010] QSC 466 PARTIES: TUAN VAN DUONG (plaintiff) v VERSACOLD LOGISTICS LIMITED ACN 008 626 793 (first defendant) NMHG MARKETING PTY LTD (formerly known as NATIONAL FLEET NETWORK PTY LIMITED) ACN 094 802 141 (second defendant) APS GROUP (INDUSTRIAL) PTY LTD ACN 096 423 086 TRADING AS AUSTRALIAN PERSONNEL SOLUTIONS (third defendant) FILE NO/S: SC No 8393 of 2009 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 14 December 2010 DELIVERED AT: Brisbane HEARING DATES: 30 November 2010, 1 December 2010, 2 December 2010, 3 December 2010, with the delivery of written submissions up to 10 December 2010. JUDGE: Chief Justice ORDERS: 1. The further hearing of the matter is adjourned to a date to be fixed. 2. Costs reserved. CATCHWORDS: TORTS – NEGLIGENCE – MISCELLANEOUS FORMS OF NEGLIGENT CONDUCT – where plaintiff was employed by the third defendant (APS), a labour hire company – where under an agreement entitled “national service agreement” between APS and the first defendant (Versacold), APS made the services of the plaintiff available to Versacold – where in the course of carrying out his duties at Versacold’s premises on 31 March 2007, the plaintiff used a tiller steered ride-on pallet jack – where the plaintiff gave evidence that while using the pallet jack, the steering mechanism jerked causing the plaintiff to lose balance and fall to the ground – where the plaintiff fractured his right humerus and sustained other injuries – where the second defendant (NMHG) had provided that pallet jack to -- 1 of 22 -- 2 Versacold under an agreement entitled “contract for supply material handling equipment Queensland” – where under that agreement NMHG undertook to repair and maintain the pallet jack – where the plaintiff alleges that the jerking arose from a defect in a pallet jack, wear and tear or its inherent nature, or from its coming into contact with an object on the floor – where the plaintiff alleges that Versacold breached the various duties owed to the plaintiff by failing to provide the plaintiff with adequate training, failing to act on previous complaints about the pallet jacks, failing to maintain the pallet jack properly and failing to ensure that the plaintiff’s workplace was reasonably free from risk – where the plaintiff further alleges that NMHG breached its duty to keep the pallet jack in good repair, remove from service any pallet jack prone to jerking and provide training to the plaintiff – where the plaintiff alleges that as the plaintiff’s employer, APS owed the plaintiff the usual duties, breached in the same respect as against Versacold – where all defendants deny the breaches of duties alleged and claim that the plaintiff caused or contributed to his injuries by attempting to turn the pallet jack while travelling too fast – whether plaintiff’s claims in negligence made out – whether plaintiff was contributorily negligent TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – where Versacold was primarily responsible for the day to day management of the site – where APS inducted the plaintiff and had a presence on the site in the form of an administrator and workplace health and safety officer – where APS was aware of a cleaning problem and failed to ensure that Versacold adequately dealt with it – where Versacold submitted that APS was contractually obliged to identify the existence of any hazard and that APS was liable for the consequences of any failure by the plaintiff and the plaintiff’s co-employees to report the hazard to APS – where each of Versacold and APS bear responsibility for the breach – where the default of APS was not as substantial as that of Versacold – apportionment of liability TORTS – NEGLIGENCE – MISCELLANEOUS DEFENCES – EXPRESS AGREEMENT EXCLUDING LIABILITY – where in the event that the plaintiff succeeds against Versacold, Versacold claims against APS, to be indemnified under the service agreement, or for contribution under s 6 of the Law Reform Act 1995 (Qld) – where APS also claims an indemnity under that provision – whether these claims succeed DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – IN GENERAL – where the plaintiff suffered a fracture of the right mid-humerus, associated radial nerve -- 2 of 22 -- 3 palsy and a wrenching injury to the right shoulder joint either occasioned separately, as a consequence of or in conjunction with the arm fracture – where the plaintiff was hospitalised for six days and wore an elbow to shoulder cast for some months – where the plaintiff suffered interference with amenity for two to three months – where the plaintiff’s present limitations are only that he cannot engage in heavy lifting or repetitive activities – where the plaintiff does not require various household aids – where the plaintiff suffered some psychological disturbance – where the plaintiff has the current capacity to return to full-time work including the job he was performing at the time of the injury – where it is reasonable to assess past earnings lost by reference to a period of 2.5 years – where at the time of suffering his injuries the plaintiff’s net weekly income was $698.94 – where the plaintiff’s need for minor continuing assistance does not warrant a further award of damages – where no established claim for future medical expenses was made out – award of damages Civil Liability Act 2003 (Qld), s 5(1)(b) Evidence Act 1977 (Qld), s 83 Law Reform Act 1995 (Qld), s 6 Superannuation Guarantee (Administration) Act 1992 (Cth) Trade Practices Act 1974 (Cth), s 74 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 306H Workplace Health and Safety Act 1995 (Qld), s 28 CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, applied Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203, considered Griffiths v Kirkemeyer (1977) 139 CLR 161; [1977] HCA 45, cited Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 185, considered Hodge v CSR Ltd [2010] NSWSC 27, considered Maricic v Registrar, Workers Compensation Commission [2009] NSWSC 925, considered Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, applied Suna v Bridgestone Australia Pty Ltd [2008] QSC 125, considered TNT Australia Pty Ltd v Christie [2003] NSWCA 47, considered Vosten v The Commonwealth [1989] 1 Qd R 693, distinguished COUNSEL: J O McClymont for the plaintiff R A Myers for the first defendant R C Morton for the second defendant -- 3 of 22 -- 4 G O’Driscoll for the third defendant SOLICITORS: Shine Lawyers for the plaintiff Thynne & Macartney for the first defendant DLA Philips Fox for the second defendant Mullins Lawyers for the third defendant CHIEF JUSTICE: Introduction [1] As at 31 March 2007, the plaintiff was employed by the third defendant (“APS”), a labour hire company. Under an agreement entitled “national service agreement” between APS and the first defendant (“Versacold”), APS made the services of the plaintiff available to Versacold, which might be styled his “host employer”. [2] In the course of carrying out his duties at Versacold’s premises on 31 March 2007, the plaintiff used a tiller steered ride-on pallet jack to move a pallet from one place to another. It was a Hyster model, serial number QP1032. [3] The second defendant (“NMHG”) had provided that pallet jack to Versacold, under an agreement entitled “contract for supply material handling equipment Queensland” between NMHG and Versacold. Under the agreement NMHG undertook to repair and maintain the pallet jack. [4] The plaintiff gave evidence that on that date, while he was using the pallet jack, the steering mechanism jerked, without warning, from one side to the other. He lost balance and fell to the ground, in the process fracturing his right humerus. He sues for damages for that and other injuries and resultant disabilities. [5] The plaintiff alleges that the jerking arose from a defect in the pallet jack, or wear and tear or its inherent nature, or from its coming into contact with an object on the floor. The pleaded claims Against Versacold [6] The plaintiff alleges that as host employer, Versacold was under a duty to provide the plaintiff with a safe system of work, not expose him to reasonably foreseeable risks, provide properly maintained equipment, and ensure the plaintiff’s workplace health and safety (s 28 Workplace Health and Safety Act 1995). Other species of duty are alleged. [7] The plaintiff alleges that Versacold breached those duties in various ways, including failing to provide the plaintiff with adequate training, failing to act on previous complaints about such behaviour by pallet jacks, failing to maintain this pallet jack properly, and failing to ensure that the plaintiff’s workplace was reasonably free from risk. [8] Versacold denies the breaches alleged against it, and alleges that the plaintiff caused or contributed to his injuries himself by, among other things, attempting to turn the pallet jack while travelling too fast. -- 4 of 22 -- 5 Against NMHG [9] The plaintiff alleges that NMHG was subject to a duty to keep the pallet jack in good repair, and remove from service any pallet jack prone to jerking. Among other alleged duties, NMHG was obliged to provide training to the plaintiff. [10] NMHG is alleged to have breached those duties. [11] NMHG denies the breaches alleged against it, and attributes the plaintiff’s injuries to the same cause as advanced by Versacold, that is, his having attempted to turn the pallet jack at speed. [12] In the event that the plaintiff succeeds against Versacold, Versacold claims, against NMHG, to be indemnified under the supply contract or s 74 of the Trade Practices Act 1974, or contribution under s 6 of the Law Reform Act 1995. NMHG opposes those claims. [13] APS separately seeks contribution from NMHG to the extent of any liability in APS to the plaintiff. Against APS [14] The plaintiff alleges that as the plaintiff’s employer, APS owed the plaintiff the usual duties, allegedly breached in the same respects as alleged against Versacold. [15] In denying the negligence alleged against it, APS alleges that the plaintiff was responsible for his injuries, because of conduct including that advanced by the other defendants. [16] In the event that the plaintiff succeeds against Versacold, Versacold claims, against APS, to be indemnified under the service agreement, or for contribution under s 6 of the Law Reform Act. Assessment of witnesses [17] I begin by saying that I found the plaintiff a credible and reliable witness. He answered questions directly and with apparent candour. There was no hint of evasiveness in his demeanour under cross-examination. His recollection appeared to be reliable. He is an obviously intelligent person and genuinely did his best to give an accurate account of the matters on which he gave evidence. [18] On the other hand, I did not accept as reliable the evidence given by the plaintiff’s co-employee, Mr Kamakaris, about how the plaintiff managed the pallet jack. Although Mr Kamakaris gave an account in his evidence in chief of comprehensive observation of the plaintiff in relation to the machine before the plaintiff fell (p 2- 81, 82), it became apparent that his observation was in fact much more limited (p 3- 4, 5). Also, I had the impression he was reconstructing, which provides the explanation for his written statement Exhibit 12 given on 31 March 2007, in which I considered his use of language – “and has turned too quickly” – significant in that regard. Mr Kamakaris gave evidence that pressure to keep up with the “pick rate” was “always prominent” in his mind, and that may have fed his (inaccurate) claim -- 5 of 22 -- 6 that the plaintiff was moving the pallet jack “too quickly”. When interviewed on 3 April 2007 by Ms Tollenaere, an inspector from Workplace Health & Safety Queensland, Mr Kamakaris again appeared to be reconstructing: note, for example, his statement that the plaintiff “must have, I don’t know pushed (the handle) too far forward”. His claim to have had the plaintiff under observation to the point of his falling for “a few minutes” was plainly inaccurate. [19] I will come to what is to be made of the evidence of the engineers Mr Kahler and Dr Gilmore. [20] As to the other witnesses who gave evidence in relation to liability, I had no problem accepting their evidence, save for reservations about the evidence of Craig Gilmour, the Versacold team manager. [21] In the first place, I did not accept that he was not made aware, or did not himself appreciate, a tendency in the pallet jacks, or at least some of them, to wobble. Accepting Wolfgang Bohlen’s evidence that the B60 machines tended to wobble or shake because of an electrical maladjustment, and the plaintiff’s own evidence that some of the machines exhibited a proneness to wobble and jerk, I am satisfied that the tillers of some of the machines would jerk from side to side from time to time without warning, and that Mr Gilmour would have been aware of that. [22] I also did not accept Mr Gilmour’s evidence about the safety or otherwise of turning towards the pick face with the throttle in the 80 per cent position: he said that it should be set in that situation at only five per cent. He was expressing an opinion on the matter. I prefer the contrary views expressed by Mr Kahler, the engineer (p3- 69,70, p 3-75, p3-79). Findings on the evidence in relation to liability [23] At the time of this incident, the plaintiff was 25 years old. When he commenced employment with APS on assignment at the Hamilton premises of Versacold in October 2006, he was appropriately trained in the use of pallet jacks and Mr Muhleck subsequently reviewed his capability. See Exhibits 19, 20 and 21. I accept Craig Gilmour’s description of the plaintiff as a “careful competent operator”. The plaintiff accepted that he was a “vastly experienced” operator, and that to the point of this incident he had accumulated hundreds of hours of experience working with the pallet jacks. [24] On 31 March 2007 the plaintiff commenced work at about 6 am. He was carrying out his usual task, moving crates of milk from various bays to a collection point, from which they would be taken to retail outlets. He had a one half hour break from 10 am and then resumed work. At the time of the incident, about 11 am, he had picked up milk crates from one bay, and then moved towards his destination at the “pick face” as roughly shown in the diagram Exhibit 3. I say “roughly” for two reasons: first, the right handed plaintiff produced that diagram with his left hand while in hospital after the incident, with his right arm in plaster; and second, because it was only ever intended to provide a rough indication of the direction of travel. [25] As the plaintiff neared his destination, he was standing on the platform at the back of the machine, in which position he was facing the tines which were in front of him loaded with the crates, and with his back to the direction of travel, although he was -- 6 of 22 -- 7 angled at about 45 degrees to give him a view, over his shoulder, of the direction in which the vehicle was moving. The way he was standing may generally be gathered from the subsequently taken photograph Exhibit 2. [26] At this time, the plaintiff held the throttle so that it would generate 80 per cent maximum power. The maximum speed of the vehicle was approximately nine kilometres per hour, so that it was travelling at or moving towards a speed of about seven kilometres per hour, roughly walking speed. I accept the engineer Mr Kahler’s evidence that these machines gently or gradually accelerated and decelerated. As the plaintiff began to turn towards his point of destination, the handle or tiller without warning jerked hard to the right. The plaintiff let go with his left hand. It then jerked to the left, dislodging the plaintiff from the platform. The plaintiff was still holding the handle with his right hand and he heard a snap then felt pain in his right arm. He fell to the ground. [27] Up to that point, the machine had behaved normally that day – that is, over some four or five hours. [28] I accept that the plaintiff was operating the pallet jack normally, as he had been instructed. I find that the plaintiff was not moving the machine too quickly, or turning too sharply: he knew a turn had to be executed at “relatively low speed”. He knew that to turn the vehicle sharply at speed would be dangerous. There is no reason why he would have done so, even acknowledging the pressure to keep to the “pick rate”. There is no basis for Mr Myers’ contention that the plaintiff “panicked”. [29] Mr Myers, who appeared for Versacold, relied on the final resting position of the pallet jack as shown in exhibit six, photograph 55, and the angle of the tiller, between 45 degrees and 70 degrees, as supporting the conclusion that the plaintiff was making a severe turn at the time of his injury. I do not consider that conclusion should reasonably or safely be drawn from the scene depicted in the photograph, in circumstances where on the evidence the machine moved out of control into that final position. [30] Although Mr Myers drew attention when cross-examining the plaintiff to some suggested lack of comprehensiveness in the account given to the inspector, Ms Tollenaere (Exhibit 4) and the description of the incident in para 9 of the notice of claim (Exhibit 5) lodged by the plaintiff’s solicitors (which is debatable), I did not regard those accounts as materially inconsistent with his account given in oral evidence, about which he was extensively cross-examined and to which he credibly adhered. The same observation applies in relation to the abbreviated versions recorded in the doctors’ reports. Mr Myers relied on the plaintiff’s not mentioning, in his initial accounts, the second jerking motion, which Mr Myers described as “recent fabrication”. I do not accept that. The plaintiff dealt satisfactorily with that aspect when challenged in cross-examination. Findings as to cause of jerking A defect in the machine? [31] The question arises why the handle jerked unexpectedly as it did. I am satisfied that the plaintiff did nothing to cause the machine to behave that way. The way the case was pleaded and run, two other possible causes fell for consideration. -- 7 of 22 -- 8 [32] The first is that the pallet jack the plaintiff was using was defective, because it was prone to behave that way. I have referred already to the evidence which I accepted that some machines were prone to unexpected jerking in the handle. I was impressed by the evidence of the mechanic, Mr Bohlen, who was in charge of Versacold’s machinery. His evidence was not challenged. He said that the wobbling (or jerking) problem was confined to a model of Hyster other than the P20 model which the plaintiff was using that day. (Consistently, the plaintiff said some but not all the machines were prone to jerk.) It was the B60 model which tended to wobble, and that was because of electrical maladjustment. Mr Bohlen was shown the service history of the machine the plaintiff was using, which recorded nothing to suggest that the machine had exhibited this particular problem at any stage. The gravamen of Mr Bohlen’s evidence was that had the machine been taken to the “tag out” area, as being defective, it would have been examined and the nature of any problem, or the absence of any problem, would have been recorded in the service history, suggesting that no problem such as a tendency to jerk had been asserted, or identified on inspection. Relying on Mr Bohlen’s evidence, I find that the jerking of the handle on this occasion was not the result of any deficiency in this particular machine (by contrast with some of the B60 machines). Debris? [33] The second possible cause agitated at the trial was that when beginning the turn, the machine ran over some piece of debris on the floor. The plaintiff told the engineer, Mr Kahler, that he had previously experienced similar jerking of handles when the machine ran over a piece of wood on the ground. The wood might be a fragment from a pallet, for example. [34] The plaintiff told Rachel Corcoran, the Versacold work health and safety officer, that he had not seen any debris on the floor. But the plaintiff’s range of view as he drove the machine was limited by his position – elevated on the platform and angled to his rear. Ms Corcoran inspected the floor herself, having arrived at the scene 15 to 20 minutes after the incident, and she found no debris. She said under cross- examination that she got down on her hands and knees to look under the machine, which I accept was then in the position it was in when the plaintiff fell, evidenced in the photograph number 55 in Exhibit 6. The machine is quite wide and close to the ground, raising the possibility that there was fragment which was not visible to Ms Corcoran or missed (she acknowledged in cross-examination the limit on her capacity to view the area beneath – p4-21 l 40); and alternatively, if the vehicle hit a fragment of wood, the fragment may have been dislodged some distance out of the way. There had been other intrusion into the area between the time of the incident and Mr Corcoran’s arrival. [35] Excluding operator error and deficiency in the pallet jack, I turn then to the expert engineering evidence bearing on whether contact with a fragment of wood could cause the behaviour of the machine to which the plaintiff was subject on this occasion. Application of the engineering evidence [36] In his report Exhibit 17, Dr Gilmore raised as an “alternative explanation” for what occurred, that the plaintiff turned the tiller “quite quickly through a sharp angle” while he was driving the pallet jack at speed. Mr Kahler said that could occur only -- 8 of 22 -- 9 if the operator “deliberately made a severe turn of the handles ... at a very sharp angle”, such as 90 degrees (Exhibit 16, letter of 24 November 2010). [37] I have found that the plaintiff was beginning to turn, but not at a sharp or severe angle: there was no call for him to do so to get to where he was headed. I have also found that the plaintiff was not moving the machine at any excessive speed. If such an incident could occur by these means, I am therefore satisfied that that was not the applicable explanation here. [38] In para 3.1 of his report Exhibit 16, Mr Kahler explains the mechanism by which hitting a piece of debris may cause the tiller to jerk and destabilise the pallet jack. Dr Gilmore accepted the theory behind that view (Exhibit 17 para 3.2), but considered it an unlikely explanation, because in his view the requisite fragment of wood would need to be largish, such that the wheel of the pallet jack could not negotiate it – and because of that size, visible to an operator. [39] The plaintiff’s own past experience again becomes relevant here. In what he said to Mr Kahler, the plaintiff compared the jerking on this occasion to the jerking he had previously experienced when his machine ran over a fragment of wood on the floor (p 2-57 l 40 to p 2-58 l 20). Mr Kahler points out that the plaintiff’s position on the platform of the vehicle this day “put any approaching floor level objects strongly in the operator’s peripheral vision where they are least likely to be seen and avoided”. The plaintiff’s own past experience of running over fragments leading to jerking motion is of course consistent with that. [40] Reference should also be made to Mr Muhleck’s evidence about his own experience: “It’s just something the wheel doesn’t like and it responds negatively to.” [41] I find, as the most likely explanation for what occurred, that the wheel of the pallet jack ran up against a stray fragment of wood on the floor which had not been noticed but was in its path. Versacold’s “housekeeping” [42] There was sparse evidence of steps taken by Versacold to keep the floor free of debris. The greater focus of the evidence was on cleaning up spilt milk. The company’s workplace health and safety officer at the time, Ms Corcoran, gave this evidence: “Can you indicate to us what is the system of maintenance and cleaning in existence at Versacold? -- If there are spills, there are spill stations with mops and buckets to clean up milk spillage and there is a clean-as-you-go process in place so that if staff members see debris or rubbish on the floor, then it is to be picked up in the normal course of their duties. And is there any regular system of cleaning of the floors -----? -- Yes. ----- apart from the individual responsibility of an operator? -- Yes, particularly the milk area, there’s what’s called a milk scrubber and the milk scrubber, which is a piece of equipment, would clean the -- 9 of 22 -- 10 floors and make sure that there was no film on the floor for milk spillage. And how regularly would that milk scrubber, for example, go over the floor where the incident that Mr Duong was injured -----? -- I’m unsure ----- ----- daily, weekly? -- ----- of how frequently that is.” [43] It would appear from that evidence that the removal of debris substantially fell to the operators of the pallet jacks. That was in an inadequate system, bearing in mind the limited capacity of the drivers to notice the presence of debris as they moved their machines along. (Obstructions on the floor were apparently sufficiently prevalent to warrant Versacold’s instructing its operators not to run over things: p4- 69 lines 25-35.) [44] In his report Exhibit 16, Mr Kahler draws together the issues of the visibility of debris and the operator’s position on the vehicle, and relates those matters to the need to maintain a good system of housekeeping: “2. Housekeeping and floor quality. Given the potential for pallet trucks to jerk or wobble when encountering debris on the floor, housekeeping standards for removing debris from the floor are extremely important. In addition to the scenario of pallet truck drive-wheels hitting debris, the other pallet truck wheels have small diameters and are susceptible to jamming on similar debris. This has potential ramifications for both driver stability and product stability. A regular systematic cleaning regimen would therefore be an essential part of managing health and safety of pallet truck operators and protecting product.” [45] I find that the system of cleaning debris from the floor was not adequate in the context of the risk posed to an operator should a pallet jack encounter such debris. Ultimate findings on liability Liability of Versacold [46] I find that Versacold breached its duty to the plaintiff, as the plaintiff’s “host employer”, to provide a safe system of work, and not to expose him to a risk of injury to which a reasonably prudent employer would not expose him, because of its failure to have an adequate cleaning program in place. [47] Versacold owed the plaintiff “duties analogous to the duties of an employer having regard to the daily control and instruction that [Versacold] gave him” (Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, para 40). Contributory negligence [48] The plaintiff was not contributorily negligent. In the position he was in, his failure to see the fragment of wood was understandable and did not involve unreasonable conduct on his part, or a failure which should properly be regarded as having contributed to the injury he sustained. He was keeping as adequate a lookout as was -- 10 of 22 -- 11 within his capacity. I have already found that he was driving the vehicle in a normal manner and in accordance with his training and instruction. Liability of APS [49] As the plaintiff’s employer, APS was subject to a non-delegable (viz a viz the plaintiff) duty of care towards him: Pollard v Baulderstone Hornibrook Engineering Pty Ltd. [50] As between itself and Versacold, APS delegated to Versacold the day to day discharge of its duty of care to the plaintiff. That emerges from Schedule 3 to the National Service Agreement between Versacold and APS, which is in these terms: “As a labour hire company we do not have direct control over the environment in which our contractors work. Current legislation requires that occupational health and safety is a shared responsibility between the client and the labour hire company. We at Australian Personnel Solutions are eager to comply with both the spirit and the letter of this law and are seeking your cooperation in achieving safety in the work place… We are confident that you are as anxious as we are to create a safe work environment for contractors. Realising that your participation in this program is vital to its success we outline the following: • Australian Personnel Solutions would like to perform initial hazard identification in conjunction with your company’s qualified OH&S representative. This will allow us to get better acquainted with your operations so we can provide you with more productive and safer placements. We also request an Australian Personnel Solutions’ representative be permitted to visit your premises periodically and work with your qualified OH&S representatives to ensure that we have the most up to date information on your site as well as your needs. Of course we would like you to work with us to correct any hazards identified during these checks. • Overall responsibility for the day to day supervision of the contractor at your site lies solely with the client. • We agree that you will induct all contractors placed at your site into any relevant health and safety information prior to them actually commencing work. It is further agreed that this induction will include a briefing on emergency response evacuation procedures to the plant and who should be contacted if they require emergency or first aid assistance.” [51] But as against the plaintiff, APS’ duty of care was non-delegable. [52] In order to discharge that duty, APS did a number of things: 1. APS inducted the plaintiff on 14 August 2006 and gave him a handbook which included a section on health and safety and guidance on pallet jacks, and conducted a safety audit of Versacold’s premises on 2 -- 11 of 22 -- 12 February 2007 (as admitted in the plaintiff’s reply to the second amended defence of APS, paras 7(a) and (c)); 2. APS maintained a presence of APS personnel at Versacold’s premises, to ensure that training was kept up to date; 3. APS conducted safety audits on 2 February 2007 as mentioned, in accordance with the National Service Agreement, as confirmed in documents 10 and 11 of Exhibit 10 (the last audit report records that as at that date, inspections were carried out weekly to identify hazards, and as at that date, floors were “quite free from debris and spills”); and 4. so-called “tool box meetings” including representatives of APS were held with employees for the purpose of their ventilating any concerns. [53] In the audit report dated 2 February 2007, the representative of APS records: “Warehouse much cleaner and safer than previously. Only found a problem with broken pallets – this is due to them being received on the docks. Procedures are currently being put into place to combat.” [54] There was no evidence from Versacold or APS as to what those “procedures” were, or as to their effectiveness. [55] Aware of a problem with cleaning bearing on safety, APS was unable, by the means taken above, to ensure that the situation which led to this injury did not subsequently arise. In discharging its duty to the plaintiff, APS should have taken more comprehensive steps to ensure that Versacold maintained a sufficient cleaning regime. [56] APS is therefore liable for the breach of its non-delegable duty to the plaintiff constituted by the breach by Versacold and its own direct breach just covered. Apportionment of liability: Versacold and APS [57] As to the apportionment of the respective liability between APS and Versacold, I note the following: 1. Versacold was primarily responsible for the day to day management of the site, as occupier and the entity in control; 2. APS inducted the plaintiff and gave basic instruction in relation to his work; and 3. APS had a presence on the site (administrator and workplace health and safety officer) and conducted safety audits and “toolbox” meetings; yet 4. APS was aware of a cleaning problem, and failed to ensure that Versacold adequately dealt with it. [58] Mr Myers referred to Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203, a labour hire case where the employee was injured through the insecure use of a ladder. Forty per cent responsibility was apportioned to the labour hire company, and 60 per cent to the host employer. -- 12 of 22 -- 13 [59] The responsibility of the actual employer in that case was greater than in this. That employer had taken no steps at all to secure the safety of its employees. It had not visited and inspected the site, for example, and in addition, had given its employee no instruction in the safe use of the ladder. As put by Giles JA (para 47): “In the present case the defendant did nothing towards safe working conditions at the warehouse, not even visiting the site to see what the working conditions were. The particular use of the ladder might have been a ‘chance occasion’, but use of the ladder was not, and the defendant did not look to how Concrete would allow a ladder to be used or instruct or train its inexperienced employee against an occasion of using a ladder.” [60] In this case, the default of APS was not so substantial: APS had given the plaintiff requisite instruction and training, had conducted safety audits and maintained a presence at the site. Each of Versacold and APS bore responsibility for the breach which occurred here. The question is by how much the departure of Versacold exceeded that of APS, bearing in mind that it was Versacold, not APS, which in terms of the agreement had “direct control” over the work place. That put Versacold in a substantially more serious situation in terms of responsibility here than APS. [61] Drawing guidance from the previous apportionment cases (especially TNT and Maricic) and approaches discussed in Pollard paras 40-45, Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 185 and Hodge v CSR Ltd [2010] NSWSC 27 paras 44, 45, I apportion liability as follows: 70 per cent to Versacold and 30 per cent to APS. [62] Mr Myers primarily submitted, however, that APS must indemnity Versacold in respect of Versacold’s liability to the plaintiff, because: (a) APS was directly, contractually obliged to identify the existence of any hazard; and (b) APS was in any event liable for the consequences of any failure by the plaintiff and the plaintiff’s co-employees to report the hazard to APS. [63] As to (a), the “partnership in safety agreement” makes it clear that the day to day supervision lies solely with Versacold which has “direct control” over the work place. The agreement contemplated periodic checks of that work place by APS, and records the wish of APS that the parties work together “to correct any hazards identified during these checks”. The agreement does not stipulate that APS must be in a position to identify and report all hazards. [64] As to (b), the material relating to the engagement of workers refers to “reporting hazards”, but not specifically that they should be reported to APS. The evidence was that difficulties were reported to Versacold. But it would not in any event follow that a failure to discharge a reporting obligation to APS would render APS liable to indemnify Versacold its being the host employer on the spot and in direct control. [65] Mr Myers relied on Vosten v The Commonwealth [1989] 1 Qd R 693, 709, where the right to indemnity arose because the party in the position of APS had “warranted that [Versacold] need not – there is no necessity – take the very precautions for the -- 13 of 22 -- 14 failure to take which [Versacold] has been held liable to [the plaintiff]”. There was no such warranty given here. Indeed, the terms of the “partnership in safety agreement” are quite to the contrary. Third party proceeding claims: Versacold/APS [66] In the third party proceeding, Versacold claims against APS an indemnity for breach of the National Service Agreement or under s 6 of the Law Reform Act, or contribution under that provision. For its part, APS claims an indemnity under that provision. [67] None of these claims succeeds. [68] As to the National Service Agreement, s 2 spells out the obligations of APS in relation to the provision of labour. There is no need to set out the provision here, for tellingly, Versacold has effectively pleaded, as follows, compliance by APS with its contractual obligations: “In terms of the obligation imposed upon it: • the Third Defendant inducted the Plaintiff on the 14 th August 2006; • provided him with a copy of the Contract Induction Handbook which included a section on occupational health and safety, general information and guidance on electric pallet jacks; • performed a risk assessment in August 2006 in relation to electric pallet jacks; • required daily pre-operational checks to be conducted on the pallet jacks; and • conducted a safety audit of the First Defendant’s premises on the 2nd February 2007.” Liability of NHMG [69] As the injuries were sustained because of the pallet jack’s encounter with debris, there is no liability in NHMG as supplier of the machine. [70] If NHMG had been held liable to the plaintiff, it claimed indemnity from Versacold under cl 6 of the rental agreement Exhibit 25. It is unnecessary for me to deal with that. Quantum Findings of fact Injuries [71] The plaintiff suffered a fracture of the right mid-humerus, associated radial nerve palsy, and a wrenching injury to the right shoulder joint either occasioned separately (Dr Duke) or as a consequence of or in conjunction with the arm fracture (Dr -- 14 of 22 -- 15 Gillett). He was hospitalized for six days, and wore an elbow to shoulder cast for some months. Interference with amenity [72] The plaintiff said that whereas prior to the accident, he did the mowing, mopping and some other cleaning at the house where he and his wife lived with his parents, afterwards he could not carry out those tasks for some two to three months, and other family members assumed that burden, spending on his estimate six to seven hours per week inside and one to two hours per week outside in that regard. After a couple of months, he regained some capacity to help with those chores, and the additional burden cast onto the others reduced somewhat, to five hours per week inside. When the arm had healed, he needed help only with the mowing and gardening, of the order of three hours per week. His wife now assists him to a limited extent, about one hour per week, but the plaintiff told Dr Gillett about a year after the incident that he had no problem with personal care. [73] Dr Duke considered that the plaintiff would have required some assistance for four to six weeks, and that he would have been able to resume performing heavy household tasks and gardening after six to 12 months. The plaintiff told Dr Low on 22 April 2010 that he (the plaintiff) could not think of anything in the house which he could not do. The plaintiff told Dr Gillett that he needed assistance with personal care over three months, and that he was driving a motor vehicle and mowing the grass by the end of December 2007. [74] Two years after the incident, the plaintiff told Dr Duke that he had no significant hand or neurological symptoms; he felt an ache in his arm around the fracture sight when using the arm, but had no problems when he was still; he had some minor problems in the shoulder; none of his symptoms bothered him sufficiently to warrant seeking further attention, surgically or through physiotherapy; he suffered no significant problems in an ongoing fashion and the symptoms he had would not influence his ability to earn an income or participate in sporting activities; and that he was fit to return to work but stayed off because his wife wished to keep working. While the plaintiff could not recall, when cross-examined, having said those things to Dr Duke at that time, he confirmed that they reflected the true position. [75] The plaintiff’s present limitations are only that he cannot engage in heavy lifting or repetitive activities. He can no longer play tennis as he did previously. [76] Following his injury, the plaintiff tried to work at a family member’s bakery, but could not manage that. He trained as a real estate salesman, an endeavour in which he was unsuccessful. He has made some effort in relation to computer work. His wife started working, to earn money for the family, and by the time the plaintiff was able to resume work, there had been a “role reversal”, with the plaintiff having taken on the role of carer of their two young children at home, with his wife as the breadwinner. [77] There was not a great deal of significant difference between the views of the orthopaedic surgeons Drs Duke and Gillett, the former saying that the fractured arm precluded the plaintiff’s working for three to six months in the case of manual work, and one to two years for the nerve damage. But he could have taken on light work earlier, in fact as soon as about a fortnight after the accident by which time the pain -- 15 of 22 -- 16 could have been managed. I accorded particular weight to Dr Duke’s opinions because of his upper limb specialty. [78] In May 2009 Dr Gillett assessed a four per cent loss of “whole person function”. Dr Duke made a similar assessment in February that year. [79] The occupational therapist Ms Aitken provided a report dated 14 January 2009 in which she set out a variety of aids to be installed at the plaintiff’s residence, and she recommended a course of occupational therapy and physiotherapy and rehabilitation counselling. She was cross-examined on those views, to which she adhered, while acknowledging that on the basis of Dr Gillett’s report of 14 March 2008, no claim for ongoing care for the plaintiff after nine months from the accident could be sustained. Overall I was reluctant to accept the detail of Ms Aitken’s assessment, which I felt assumed a much greater disability in the plaintiff than in fact existed and endures. [80] A specialist in occupational medicine, Dr Ian Low, said this in his report of 21 April 2010: “In my opinion, Mr Duong does not require the household equipment, as suggested by Vanessa Aitken, occupational therapist. He initially told me that he could not think of anything in his house that he can not do. On specific questioning, there are certain activities, such as mopping, vacuuming and mowing, which he can do for only limited periods of time but he could still perform these activities in and around the house without his wife’s involvement, even though it would take him longer, compared with prior to the injury, to complete them. Alternatively, his wife performs these activities. He did not inform me of any heavy maintenance activities around the house for which they require assistance. He does not require any further physiotherapy although he needs to undergo an appropriate gym program to further settle the aching in his right shoulder. He does not require occupational therapy or rehabilitation counselling but, instead, needs to commence suitable work as soon as possible. Although Mr Duong told me that he feels ‘a bit down’ on most days, he did not present as clinically depressed. He does not, in my opinion, require psychological counselling or a referral to a psychiatrist. I would expect his mood to improve when he begins work.” [81] In light of the plaintiff’s own evidence, and what he told the doctors at various times as to the limitation on the residual effect of his injuries, I am satisfied that I should prefer the views expressed above by Dr Low rather than the opinion advanced by Ms Aitkens. Psychological disturbance [82] A psychologist Ms Abella provided a report dated 11 December 2009 diagnosing an adjustment disorder with mixed anxiety and depression, but said that the prognosis was good. Ms Abella recommended psychological treatment, but I prefer Dr Low’s -- 16 of 22 -- 17 rejection of the need for that, based on his consultation with the plaintiff on 22 April 2010. [83] The psychological state to which the psychologist refers seems to be primarily referable to the plaintiff’s being out of work. In her report Ms Abella said: “Having been unemployed for almost three years, Mr Duong’s self- confidence diminished and he became more dependent on his wife. Compounded by his physical state of chronic discomfort and intermittent pain, he clearly demonstrated psychological regression. He may be able to get job offers and perhaps successfully commence employment. However, adapting to his new social environment whilst learning new and totally unfamiliar skills will likely aggravate his stress condition. Hence, it is unlikely that he would be able to maintain any employment without psychological treatment and support.” That was in December 2009. [84] The significance of that statement in relation to the assessment of damages is affected by the feature that the plaintiff could have resumed some work within that period, he is now able to work in most applicable lines save probably those involving heavy lifting or overhead work, and the “role reversal” situation which developed, but which I think does not feature in the assessment of damages against the defendants. That role reversal ensued, in the context of the plaintiff’s temporary unemployability, but could itself now be reversed. Dr Low’s assessment, para [80] above, which I accepted, also bears on what Ms Abella says. Capacity to work [85] I record now the doctors’ views as to the plaintiff’s capacity to work. [86] The plaintiff was first seen by Dr Cunningham on 16 April 2007. Dr Cunningham expected the plaintiff to be able to return to sedentary office duties by the end of the month, to restricted duties in his usual work place within two to three months, and to unrestricted duties within three to four months. That was however an extremely early prognosis and of no assistance in relation to the plaintiff’s current position. [87] In his report dated 26 February 2009 Ex 11, Dr Duke said, of the plaintiff, that “he was fit to return to work after an appropriate period of time, but stayed off because his wife wished to keep working”. Asked under cross-examination to define “an appropriate period”, the doctor said this (p 2-73): “[O]ne waits until the fracture has healed and that is in the order of three to six months…[t]he nerve recovery is in the order of one to two years, or up to one to two years. When the strength has returned from the usage of the arm after fracture union and then the strength has returned after the nerve function has returned, so it would normally be somewhere in the order of six to 18 months after this type of injury before one could expect to return to manual work.” Dr Duke’s report Ex 11 refers to an x-ray on 8 January 2008 showing a “united fracture”. -- 17 of 22 -- 18 When the plaintiff spoke with Dr Duke on 26 February 2009, the plaintiff presented the picture set out in para [74] above, leading to Dr Duke’s opinion, two years after the incident, that the plaintiff “has no barrier to returning to full employment in any sphere to which he is suited by training, skills or experience. This would include the job he was performing at the time of the injury.” It is not crystal clear when the full capacity to work was first restored, and allowing for the plaintiff’s reasonable perceptions as to his capacity to work and the need to organize work, I consider it reasonable to assess past lost earnings by reference to a period of 2.5 years. Assessment Pain, suffering and loss of amenities [88] I allow $40,000 in relation to pain, suffering and loss of amenities (which includes a small component in respect of the minor ongoing limitation.) [89] I allow interest on half at two per cent per annum for 3.8 years, $1,520. Psychological disability [90] I allow $10,000 on this account (which cannot be awarded against APS), and interest at two per cent for 3.8 years, $760. This cannot be awarded against APS because it was not an accepted injury under the legislative regime. Care [91] The assistance given to the plaintiff by his wife and brother after he sustained the injury was not of great magnitude. Dr Duke considered that the plaintiff would have required some personal assistance over a period of four to six weeks, but I accept the plaintiff’s evidence he needed domestic help as well. The plaintiff’s wife and brother did not give evidence. [92] The threshold under the Civil Liability Act 2003 (six hours per day for at least six months) does not apply because of s 5(1)(b). [93] In relation to APS one looks to the Workers’ Compensation and Rehabilitation Act 2003. Section 306H of that Act precludes any allowance here, because the “services” provided by the plaintiff’s wife (re personal care) and brother (driving) were not required or provided before the plaintiff was injured. [94] The section provides: “306H Services not required by or provided to worker before injury (1) This section applies if the worker usually did not require or was not provided with particular services before the worker sustained the injury. (2) A court cannot award damages for the cost or value of any services provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid -- 18 of 22 -- 19 services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services.” (Mr O’Driscoll referred to a s 308E in the same terms, but I believe the provision is s 306H.) [95] The term “services’ is defined as: “services means service of a domestic, nursing or caring nature. Examples of services – • assisting with personal hygiene needs • changing bandages • cleaning • cooking • dressing wounds • gardening • housekeeping • mowing the lawn” [96] The provision excludes Griffiths v Kirkemeyer claims in the employment context. [97] Reverting to Versacold, I note the agreed rate for post care of $24 per hour (and $25 for the future). I accept on the plaintiff’s evidence an assessment of $10,716 for the past, and interest for 3.8 years at five per cent per annum of $2,036.04, but I do not accept any need for future care allowance, allowing for the medical evidence. [98] The assessment for past care is based on these periods drawn from the plaintiff’s evidence: (a) For three months the plaintiff required assistance for all household tasks as well as grooming, showering and feeding, being six to seven hours per week plus one to two hours per week mowing and gardening (104 hours); (b) for a further two months, the plaintiff required about five hours per week domestic and personal assistance, plus one to two hours per week mowing and gardening (58.5 hours); (c) for a further period, say to the end of the year after the incident, he needed about three to four hours per week domestic assistance and gardening (105 hours); (d) he thereafter required one to 1.5 hours assistance per week in relation to mowing, gardening and basic household cleaning (179 hours to 31 December 2010). [99] As to the future, notwithstanding the plaintiff’s reference to needing some minor continuing assistance, I do not consider this warrants an award of damages especially having regard to the medical evidence and particularly the position as at February 2009 referred to above (para [74]), in relation to what the plaintiff told Dr Duke. The plaintiff’s oral evidence about any need for continuing assistance was rather vague and unparticularized, and I did not consider it reached the point where it could properly found any award in respect of continuing care from here on. -- 19 of 22 -- 20 [100] Much of the evidence concerned the transfer of the burden in and out of the house from the plaintiff to other family members. The plaintiff, his wife and (then one) child lived with the plaintiff’s parents in the parents’ house. The plaintiff and his wife performed household chores effectively in return for free accommodation. It was a family endeavour influenced by Vietnamese cultural approaches. [101] The plaintiff was cross-examined on the basis this assistance should be regarded as assistance to his family not to him: when he could not do the work about the house, some other family member took it on, thereby assisting them all. So far as it goes, that is true. But stopping there ignores the feature that his attending to these chores was reasonably expected of him in return for the provision of “board and lodgings” for him and his family. See p2-25 l 20 and p 2-27 l 10. Effectively others filled the breech and discharged his obligations for him. The claim is therefore properly characterized as a Griffiths v Kirkemeyer claim. [102] No allowance can be made in respect of the additional burden borne by the others, in light of the High Court’s overruling of Sullivan v Gordon (1999) 47 NSWLR 319, and thereby Sturch v Willmott [1997] 2 Qd R 310, effected in CSR Ltd v Eddy (2005) 226 CLR 1, although some allowance may be included for impairment of the amenity to assist others in the computation of general damages (p 33). [103] But because of the way I have characterized the assistance given to the plaintiff, it is not a case of a reduced capacity to render assistance to others, but meeting the plaintiff’s reduced capacity to meet his own needs and obligations, so that no further allowance should be made on this sort of basis. Past economic loss [104] At the time he suffered his injuries, the plaintiff’s net weekly income was $698.94. Having regard to the evidence of the doctors, as I have found, the plaintiff was fully capable of returning to remunerative employment of the nature of that previously undertaken after two to 2.5 years. He did not do so because of the so-called “role reversal”. [105] It is reasonable however to allow 2.5 years’ loss at that rate, which amounts to $90,862.20. In saying that, I note that in the year ended 30 June 2006, the plaintiff’s net income was only $11,400.03, and for the previous year the much lesser sum of $6,606. The reasons for those differences were not explored in detail, though the plaintiff mentioned changing jobs, going overseas to marry, and taking time off (six months) to care for his wife stricken with illness. Allowing a full 2.5 years’ loss for the period following the injury may seem generous, but I was satisfied that he would have worked but for this injury and that the Versacold work would have been available. The plaintiff was a well-respected, highly experienced employee. [106] I have not reduced the rate per week to be applied in the calculation over that period of 2.5 years for past lost earnings to allow for the availability of light work which the plaintiff could have taken up during that period, because of two matters: first, I am satisfied that the plaintiff conscientiously attempted other work, but unsuccessfully (the bakery, the real estate work, the computer business); and second, I am not satisfied that lighter work for which he would have been qualified, such as office work, would have been available to him in that particular period. But there is no doubt that the plaintiff should be regarded as having been fully able to -- 20 of 22 -- 21 work after that 2.5 years, and that his failure to do so – effectively because of his taking on the role of home carer for his children, should not sound in damages to the account of the defendants. I return to this aspect shortly. [107] An additional amount should be awarded for the loss of any employer’s contribution towards the plaintiff’s superannuation entitlements, at nine per cent under the Superannuation Guarantee (Administration) Act, amounting to $8,177.59. [108] I allow interest on $90,862.20 less $9,353.44 (WorkCover benefits) at five per cent per annum for 3.8 years, which is $15,486.66. Future economic loss [109] No allowance can be made for reduced earning capacity in relation to the future. The plaintiff’s capacity to earn income in the future has not been reduced because of these injuries, in light of the medical evidence. He experiences some continuing limitation, but it is minor and does not reduce his capacity for work. It is a case where up to the present, the plaintiff, though able bodied, has effectively elected to stay at home. I rely substantially on Dr Duke’s assessment. [110] Ms McClymont, who appeared for the plaintiff, referred me to Suna v Bridgestone Australia Pty Ltd [2008] QSC 125, where a plaintiff with continuing disability stayed at home to look after his children while his wife went out to work. The trial judge there apparently accepted the plaintiff’s rejection of a contention that he and his wife had “chosen the role of house husband for him” (para [42]). It was a case where that plaintiff was disabled and looking for work, needing “assistance and employee tolerance to find suitable work”. Here the plaintiff has been fit for all relevant work for some time, but apparently settled into the home role after his wife took on employment. The point for the present is that this plaintiff has been able to work in all relevant situations for quite some time. Special damages [111] These were agreed as $5,472.86. [112] I do not accept there was an established claim for future medical expenses. There is no sufficient chance of future surgery, on the medical evidence, to justify any allowance. Fox v Wood [113] This was agreed in the amount of $2,520. Quantum summary 1. Pain suffering and loss of amenities (excluding psychological injury) $40,000.00 2. Interest on that component 1,520.00 3. Psychological injury (not allowable against APS) 10,000.00 4. Interest on that component (not allowable against APS) 760.00 5. Past economic loss 90,862.20 6. Interest on that component 15,486.66 -- 21 of 22 -- 22 7. Past care (not allowable against APS) 10,716.00 8. Interest on that component (not allowable against APS) 2,026.04 9. Special damages 5,472.86 10. Fox v Wood 2,520.00 Total amount recoverable against first defendant: $179,363.76 Total amount recoverable against third defendant: $155,861.72 Ruling on admissibility [114] I reserved the question admissibility of the hazard report marked C. Mr O’Driscoll, who appeared for APS, tendered it, but after discussion withdrew the tender (p 4- 92). Mr Myers then tendered the document. [115] None of the signatories to the document was called as a witness. The first part of the document records a version of events allegedly given by the plaintiff, upon which Mr Myers cross-examined the plaintiff. The second part sets out among other things someone’s opinion as to the cause of the incident. I infer that sparked the interest that it be admitted into evidence. [116] Mr Myers tendered it under s 83 of the Evidence Act 1977, as a “document used in the ordinary course of [an] undertaking…to record anything acquired or otherwise dealt with by, produced in, held for or on behalf of, or taken or lost from the undertaking and any particulars relating to any such thing”. In the absence of any evidence as to the provenance of the document, it is difficult to place it within that category. But assuming the document should be so described, the opinion set out in the second half of it is not admissible simply because it is an opinion. The document might evidence that opinion (s 83), but the opinion is irrelevant in this proceeding. [117] I rule the document inadmissible. Were it admitted, I would accord it no weight. Conclusion [118] I thank Counsel for furnishing written submissions in a timely way. [119] The further hearing of the matter will be adjourned so that Counsel may prepare minutes of judgment to reflect these reasons, allowing for the apportionments I have indicated and the limitations on the damages which may be awarded against the third defendant (APS). (Any arithmetical error should obviously be drawn to my attention for correction.) [120] With the entry of judgment in accordance with those minutes, the question of costs will have to be addressed. [121] I would be content were that done by the presentation of written submissions, unless any of the parties requires an oral hearing, but that is a matter which can be resolved through contact with my Chambers next year. In the meantime, the matter is adjourned generally, with costs reserved. -- 22 of 22 --