Pocock v Citi-Steel Pty Ltd[2018] QDC 81

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff, Raymond Pocock, was employed by Vacuum Excavation Australia Pty Ltd (“Vacuum Excavation”) as a truck driver. He commenced employment on 20 February 2014. The plaintiff was informed that his job entailed making deliveries of steel for the defendant, Citi-Steel Pty Ltd (“Citi-Steel”) which was located across the road.

2. [2]
   There was a commercial arrangement between Vacuum Excavation and Citi-Steel whereby Vacuum Excavation supplied trucks and drivers for the purpose of delivering steel products to Citi-Steel’s customers.

3. [3]
   Although the plaintiff was employed by Vacuum Excavation he was provided with workwear that bore Citi-Steel’s logo.^[1]The plaintiff drove a truck known as “Steel 5” that had the Citi-Steel logo on the door.^[2]There were stickers on the side of the tray advertising Citi-Steel’s products.^[3]

4. [4]
   On 12 September 2014 the plaintiff was making deliveries of Citi-Steel products to its customers. One of the deliveries was to be made at Flow Force Australia (“Flow Force”) at Beaudesert.^[4]The delivery to Flow Force included three steel checker plates which weighed approximately 356kilograms. On previous occasions the customer was present and used a fork lift to unload steel plates.^[5]

5. [5]
   The run sheet prepared by Citi-Steel contained instructions that the delivery was to be unloaded by crane. The note on the run sheet stated “CRANE UNLOAD – no-one there”.^[6]

6. [6]
   The steel plates were located underneath overhanging steel members. The plaintiff encountered difficulties removing the plates. In the process of manoeuvring the plates the plaintiff injured his shoulder.^[7]

7. [7]
   The quantum of the plaintiff’s damages has been agreed at $160,000.^[8]

8. [8]
   The plaintiff’s degree of permanent impairment was not sufficient to bring a claim for damages against Vacuum Excavation by reason of s 237 Workers’ Compensation and Rehabilitation Act 2003.^[9]

The issues

9. [9]
   The main issues for determination are:

1. (a)
   whether Citi-Steel created the risk of injury to the plaintiff and therefore needed to take steps to alleviate that risk;

2. (b)
   whether Citi-Steel was negligent in breaching s 19(1) and s 19(3) Work Health and Safety Act 2011;

3. (c)
   whether Citi-Steel owed the plaintiff a duty analogous to that owed by an employer, and if so whether that duty was breached;

4. (d)
   whether the ordinary duty of care owed by Citi-Steel to the plaintiff was breached;

5. (e)
   if Citi-Steel was negligent, whether the plaintiff contributed to his own injury.

The pleaded cases

10. [10]
    The plaintiff’s case is that his day-to-day duties were primarily managed, directed and controlled by Citi-Steel. The plaintiff contended that:

1. (a)
   the preparation of delivery dockets and selection of items for delivery was undertaken by Citi-Steel;

2. (b)
   Citi-Steel was responsible for the composition of the run sheet which set out the order in which the deliveries were to be made, where the deliveries were to be made, and specific delivery or unloading instructions;

3. (c)
   the loading of the truck, including how and where items were loaded, was performed by Citi-Steel;

4. (d)
   any issues that arose in the course of the day were to be dealt with by Citi-Steel’s dispatch manager.^[10]

11. [11]
    Citi-Steel denies that it primarily managed, directed and controlled the day-to-day duties of the plaintiff.^[11]Citi-Steel contends that the plaintiff was primarily subject to the management, direction and control of Vacuum Excavation.^[12]

12. [12]
    Citi-Steel contends that its activities were limited to the preparation of run sheets, loading the vehicles and advising of the different locations to which its products were to be transported and delivered.^[13]It also contends that the plaintiff had a degree of discretion to vary the run sheet or reconfigure the load if that was considered necessary.^[14]

The evidence in the plaintiff’s case

The plaintiff

Engagement

13. [13]
    On 18 February 2014 the plaintiff applied for employment as a vacuum truck driver at Vacuum Excavation.^[15]The plaintiff attended an interview with Kim Noble.^[16]Mr Noble decided to employ the plaintiff as a steel truck driver because of his experience in similar vehicles.^[17]The plaintiff had no experience in operating cranes on trucks,^[18]but had experience in operating similar machinery.^[19]

14. [14]
    The plaintiff was employed by Vacuum Excavation on an hourly rate. He was paid $22.00 per hour and worked 38 hours each week.^[20]His time sheets were located on Citi-Steel premises.^[21]

Training

15. [15]
    Mr Noble provided the plaintiff with training documents on crane operation, truck loading and unloading, manual handling, back injury and identifying hazards.^[22]The plaintiff, with the assistance of Mr Noble, completed written tests for each training document.^[23]

16. [16]
    The plaintiff’s practical training consisted of a test drive and a crane operation exercise. The plaintiff completed a test drive in a steel truck with Michael Allery, another employee of Vacuum Excavation.^[24]The plaintiff also spent two or three days observing Adrian Parry, another steel truck driver.^[25]

17. [17]
    The plaintiff completed a crane operation exercise with Mark Emery, the previous driver of the truck allocated to the plaintiff known as Steel 5.^[26]This exercise involved manoeuvring the hook of the crane on to pieces of timber placed on the tray of the truck and on the ground.^[27]

18. [18]
    There were no materials on the truck when the plaintiff undertook this training.^[28]The plaintiff was never trained to unload steel plates with the crane.^[29]He was never shown to move steel to one side of the truck to access obstructed steel.^[30]

Procedures and system of work

19. [19]
    Vacuum Excavation allocated the plaintiff Steel 5, a three quarter cab body truck with a tray length of 8 metres and the capacity to carry lengths of steel up to 14 metres long alongside the cab.^[31]Steel 5 had the Citi-Steel logo on its door and advertisements for Citi-Steel products along its side.^[32]

20. [20]
    Vacuum Excavation provided the plaintiff with a yellow high-visibility shirt with the Citi-Steel logo on the left breast.^[33]

21. [21]
    The plaintiff arrived at Citi-Steel for work each day at 6:00 am.^[34]The plaintiff said that at times Joshua Kissell, Citi-Steel’s dispatch manager, would instruct him to attend earlier or later depending on the work he would be undertaking that day.^[35]

22. [22]
    The plaintiff would collect a folder containing his time sheet, run sheet and dockets for the deliveries from a shed at Citi-Steel.^[36]The run sheet and delivery dockets contained instructions from Citi-Steel for how the plaintiff was to deliver the loads.^[37]The truck had been loaded the previous night by Citi-Steel employees,^[38]and the plaintiff would check the load to ensure it was correctly and safely loaded.^[39]If the load was not safely loaded, the plaintiff could request that the load be rearranged before departing.^[40]The plaintiff had done this on occasions.^[41]Once the load was safely positioned, the plaintiff would tie down the load and proceed to complete his run of deliveries.^[42]

23. [23]
    The run was ordered so that the load could be safely unloaded and delivered. The plaintiff said the run was ordered to avoid doubling back.^[43]The steel products would be placed on the truck in such a way that, as an item was removed, the next delivery would be accessible.^[44]Steel plates were always loaded on the back of the tray.^[45]

24. [24]
    The plaintiff said that unloading was mostly undertaken by forklifts operated by the clients.^[46]The truck-mounted crane was occasionally used.^[47]

25. [25]
    The plaintiff was instructed by Citi-Steel to accurately record the time it took to complete a delivery on the run sheet.^[48]The plaintiff said that during his time observing Mr Parry, deliveries took between 20 and 30 minutes.^[49]He said that Mr Kissell told him that all deliveries should take 20 to 30 minutes.^[50]He understood that this time frame was built in to the preparation of the run sheet.^[51]

26. [26]
    If any problems arose with the delivery, the plaintiff was instructed by Vacuum Excavation to contact Mr Kissell.^[52]The plaintiff said that when problems had arisen and he had contacted Mr Kissell, he was told to “take your time and persevere with it to get the delivery done.”^[53]

27. [27]
    Upon completing the run sheet, the plaintiff was instructed to call Mr Kissell to see if he was required to pick up steel for delivery to the Citi-Steel yard.^[54]

28. [28]
    The plaintiff only attended Vacuum Excavation premises when it was necessary to pick up black pipe stored there, repair a problem with Steel 5, or see staff about his wages.^[55]

The incident

29. [29]
    On 12 September 2014 the plaintiff arrived at Citi-Steel to commence work.^[56]The truck had been loaded overnight.^[57]The fifth delivery was to Flow Force.^[58]The run sheet prepared by Citi-Steel stated “CRANE UNLOAD – no-one there.”^[59]

30. [30]
    The Flow Force delivery consisted of three steel plates which weighed approximately 356 kilograms and various lengths of steel bar.^[60]The lengths of steel bar had been placed alongside the driver’s side of the tray.^[61]The steel plates had been placed in the usual position at the rear of the tray.^[62]There was no dunnage between the steel plates to be delivered to Flow Force and the plates to be delivered elsewhere.^[63]Other deliveries of steel overhung the plates.^[64]

31. [31]
    The plaintiff unloaded the lengths of steel at Flow Force without incident.^[65]He then proceeded to unload the steel plates. Previously this had been unloaded by the proprietor using a forklift. However, the plaintiff was not able to operate the forklift.^[66]

32. [32]
    He slewed the crane jib above the centre of the tray of the truck and directly above the steel plates and the obstructing deliveries. He fully extended the crane arm. He then realised that the crane did not quite reach the rear of the truck.^[67]He used a pinch bar to lift the three plates and inserted dunnage to separate the plates from other orders.^[68]He inserted slings on both sides of the plates. The slings were fed from the plates towards the rear of the truck, around the ends of the obstructing steel, and onto the hook of the crane located directly above the plates.^[69]

33. [33]
    To allow him to manoeuvre the plates, the plaintiff grabbed the slings and used his bodyweight to slide the plates towards the rear of the truck.^[70]He placed his feet on the truck to get extra leverage.^[71]The plates would shift approximately half an inch each time he pulled on them.^[72]He would then lift the crane jib a small amount to stop the plates from sliding back in.^[73]The plaintiff repeated this 10 to 12 times until the slings were no longer caught on the obstructing steel and the plates could be wholly removed from the back of the vehicle.^[74]Each manoeuvre caused the plaintiff pain in his shoulder.^[75]

34. [34]
    The plaintiff did not ring Mr Kissell before the delivery because he believed that Mr Kissell would have told him to persist.^[76]The plaintiff tried to call Mr Kissell after completing the delivery at Flow Force.^[77]The plaintiff had intended to tell him that he had hurt his shoulder, but the call was not answered.^[78]

35. [35]
    The remaining deliveries were completed without incident. Upon returning to Citi-Steel the plaintiff attempted to talk to Mr Kissell, however Mr Kissell was with customers.^[79]The following Tuesday the plaintiff’s partner reported his injury to Vacuum Excavation and Mr Kissell from Citi-Steel.^[80]

Scott Boyd

36. [36]
    Scott Boyd is an engineer employed by InterSafe. Mr Boyd prepared four reports.

37. [37]
    In his first report, dated 24 March 2016, Mr Boyd provided an overview of the health and safety risks from manual handling and methods for mitigating such risks. Mr Boyd stated that the run sheet could have been structured so that the steel plates were unloaded last. This would have taken approximately an extra 45 minutes.^[81]The plaintiff could have been provided with extra time to allow him to unload obstructing materials, unload the steel plates, and re-load the obstructing materials. This would have taken an extra 45 minutes to 1.5 hours.^[82]In his oral evidence, Mr Boyd stated that these options would have been preferable to unloading the steel plates in the manner the plaintiff did.^[83]

38. [38]
    Mr Boyd’s second and third reports provided an analysis of the manual forces required to shift the steel plates.^[84]The reports concluded that the plaintiff’s pulling forces exceeded the recommended maximum and had the potential to result in permanent musculoskeletal damage.^[85]

39. [39]
    The fourth report provided a summary of Mr Boyd’s qualifications and expertise.^[86]

40. [40]
    In his evidence Mr Boyd explained and elaborated on his reports. Mr Boyd stated that to him, an obvious solution would have been to move steel to one side of the truck to access the obstructed steel.^[87]Mr Boyd said that Vacuum Excavation should have periodically supervised their drivers to ensure that they were following the training materials provided.^[88]He stated that Vacuum Excavation’s training material was inadequate as it discouraged workers from moving objects that they assess as “too heavy” without elaborating on what “too heavy” means.^[89]

Management of Citi-Steel and Vacuum Excavation

41. [41]
    Company searches were tendered for Citi-Steel, Vacuum Excavation, and Creighton House Imports Pty Ltd (“Creighton House”). All three companies had common directors, Peter Mackenzie-Ross and Noel Macleod.^[90]Vehicle searches for Steel 5 were also tendered. Steel 5 was at all material times owned by Creighton House.^[91]

The evidence in the defendant’s case

Joshua Kissell

42. [42]
    Joshua Kissell is Citi-Steel’s dispatch manager.^[92]He gave evidence that Citi-Steel did not own any trucks.^[93]Citi-Steel primarily used Vacuum Excavation to perform most of its deliveries,^[94]but also used other transport companies as demand required.^[95]

43. [43]
    Each day Mr Kissell would organise the delivery runs for the various steel trucks.^[96]Mr Kissell said that the instructions on the run sheets were inserted by sales representatives of Citi-Steel.^[97]Mr Kissell said that in preparing the runs, he would take into account the client’s instructions, the geographical proximity of customers and the dimensions of the steel to be delivered.^[98]He gave evidence that in putting the run together, the expected time for a delivery was 20 to 30 minutes, but more time was allowed for a crane delivery.^[99]

44. [44]
    Mr Kissell gave evidence that Vacuum Excavation workers who did not wear the yellow and blue uniform were not permitted onto Citi-Steel premises without the knowledge of Citi-Steel.^[100]

45. [45]
    Mr Kissell said that Citi-Steel would invoice Vacuum Excavation for the hours the trucks had been used.^[101]He said that he was responsible for the hours the plaintiff worked.^[102]He ensured that all payments to Vacuum Excavation corresponded to the hours worked. He approved all payments.^[103]Mr Kissell said that the hourly rate was consistent with commercial rates.^[104]The rates did not separately itemise truck hire and driver wages.^[105]

46. [46]
    Mr Kissell said that Citi-Steel had no input in the training of drivers.^[106]

Stephen Price

47. [47]
    Stephen Price is the operations manager at Citi-Steel.^[107]He said that steel plates were placed on the bottom rear of the tray to ensure good weight distribution and ease of removal.^[108]He said that the configuration of the truck on the day of the incident was standard.^[109]He said that he had never heard of a 20 to 30 minute time limit being placed on any driver.^[110]

Adrian Parry

48. [48]
    Adrian Parry was a crane truck driver at Vacuum Excavation in 2014.^[111]He gave evidence that the plaintiff spent two days observing his driving.^[112]Mr Parry did not use the crane during this time.^[113]

49. [49]
    He said that he told the plaintiff that the average crane delivery was 20 minutes, and that if any problems arose the plaintiff was to call Mr Kissell at Citi-Steel.^[114]He said that a specific time was not allocated for each delivery,^[115]and that on occasions, deliveries had taken up to two hours.^[116]He said that he told the plaintiff that Mr Kissell could approve alterations to the run sheet.^[117]

50. [50]
    Mr Parry gave evidence that overhanging steel obstructing deliveries was commonplace.^[118]He said that the obstructing deliveries could be shifted on the truck or removed from the truck to gain access to the items, or the run sheet could be altered to deliver the obstructing steel first.^[119]

Noel Macleod

51. [51]
    Noel Macleod is a director of Citi-Steel, Vacuum Excavation and Creighton House. He gave evidence that Creighton House was a holding company that owned trucks and supplied those trucks to Vacuum Excavation.^[120]He said that Citi-Steel and Vacuum Excavation has a purely commercial relationship, whereby Vacuum Excavation was charged an hourly rate of $72.20 per hour for the truck and the driver.^[121]

52. [52]
    Mr Macleod gave evidence that Vacuum Excavation was the only entity responsible for the plaintiffs’ wages, training, and attendance at work.^[122]

Mark Emery

53. [53]
    Mark Emery was a driver of Citi-Steel trucks.^[123]He gave evidence that there were general guidelines that deliveries were to be made as quickly as possible, but that “there’s nothing set in stone.”^[124]Mr Emery said that it was within the driver’s discretion to determine how to remove obstructed materials, and the driver could move objects around on the truck or remove items to access obstructed steel.^[125]

54. [54]
    Mr Emery said that when he performed the training exercise with the crane, the plaintiffs’ proficiency surprised him.^[126]He said that the training exercise took half an hour.^[127]

Michael Allery

55. [55]
    Michael Allery is employed by Vacuum Excavation. His role consists of maintaining the vehicles and assisting in the recruitment process.^[128]He performed a test drive with the plaintiff on two occasions.^[129]He did not note any problems with the plaintiffs’ competency to drive trucks.^[130]

56. [56]
    Mr Allery gave evidence that he told the plaintiff that if he was to be delayed onsite, he was to call Mr Kissell at Citi-Steel.^[131]He said that deliveries of around one hour to one hour and fifteen minutes were not uncommon.^[132]

57. [57]
    He said that in circumstances where items obstructed steel to be delivered he would remove those items to access obstructed steel.^[133]He also said that this was very common.^[134]

58. [58]
    Mr Allery appeared in a video prepared by Citi-Steel and tendered as part of the agreed documents.^[135]The video simulated the unloading process on the day of the incident. In the video Mr Allery unloaded the lengths of steel to be delivered using the crane, shifted the obstructing steel on the tray, and removed the steel plates. This was filmed by Mr Kissell.^[136]There were a number of stoppages during the process of video recording, possibly due to the need to change batteries in the recorder.^[137]The process that was filmed took approximately 75 minutes.

The contentions for the plaintiff

59. [59]
    Mr Kimmins, for the plaintiff, submitted that Citi-Steel created the risk of injury by the manner in which it loaded the Steel 5 truck. He submitted that the risk was created by placing steel plates underneath overhanging steel members in circumstances where it was known that the proprietor of Flow Force would not be present and therefore not available to remove the plates with a forklift. It was submitted that the creation of the risk by Citi-Steel gave rise to a duty of care to the plaintiff.^[138]He pointed out that Mr Parry said that a forklift would almost always be used to unload steel plates. Mr Parry agreed that it was very rare for steel plates to be unloaded other than by the use of a forklift.^[139]It was submitted that Citi-Steel should not have created the risk of injury to the plaintiff by arranging the delivery of steel plates on 12 September 2014 knowing that the proprietor of Flow Force was not present. Alternatively, it was submitted that Citi-Steel should have instructed the plaintiff to unload all the overhanging steel members with the crane to enable the steel plates to be unloaded at Flow Force, or to alter the run sheet.^[140]

60. [60]
    Mr Kimmins submitted that in addition to the common law duty of care owed by Citi-Steel to the plaintiff, s 19(1) and s 19(3) Work Health and Safety Act 2011 (“WHSA”) imposed duties on Citi-Steel. It was submitted that those duties are owed by Citi-Steel regardless of whether the duty it owed to the plaintiff was delegable or non-delegable. It was submitted that the duty of care imposed by s 19(1) and s 19(3) WHSA was relevant to the content of the duty.^[141]

61. [61]
    Mr Kimmins argued, by reference to the decisions of McMeekin J in Kerle v BM Alliance Coal Operations Pty Limited & Ors^[142]and Love v North Goonyella Coal Mines Pty Ltd,^[143]that the duty of care owed by Citi-Steel to the plaintiff was analogous to that owed by an employer to an employee. He submitted that:

1. (a)
   Citi-Steel undertook the care, supervision or control of the plaintiff;

2. (b)
   Citi-Steel assumed a particular responsibility for the plaintiff’s safety;

3. (c)
   the plaintiff might reasonably have expected that due care would be exercised.^[144]

62. [62]
    The factors that Mr Kimmins submitted illustrated that Citi-Steel undertook the care, supervision or control of the plaintiff whilst he was engaged in the delivery of steel products are:

• the plaintiff was required to wear distinctive Citi-Steel workwear that had Citi-Steel’s name and logo on it;
• the Steel 5 truck driven by the plaintiff and other steel delivery trucks had the name “Citi-Steel” on them as well as advertising for Citi-Steel products;
• when the plaintiff accompanied Mr Parry the deliveries took between 20 and 30 minutes. Further he was told by Mr Kissell, the dispatch manager at Citi-Steel that unloading deliveries should take 20 to 30 minutes;^[145]
• the plaintiff was instructed by Mr Kissell to ensure that the products were delivered undamaged and that if he experienced any problems with deliveries or encountered obstructions that prevented the items from being unloaded safely, he was to contact him;^[146]
• when the plaintiff commenced work each day he went directly to the premises of Citi-Steel and parked there;^[147]
• if the plaintiff was required to commence his shift earlier or later, he was contacted by Mr Kissell;^[148]
• the plaintiff’s time sheets were kept at Citi-Steel;^[149]
• the steel delivery trucks were loaded by Citi-Steel employees wearing Citi-Steel uniforms;^[150]
• the plaintiff was instructed by Mr Kissell that the orders were to be delivered according to the run sheet. The trucks were loaded to facilitate delivery in accordance with the run sheet;^[151]
• Citi-Steel gave instructions for the deliveries on the run sheet and delivery dockets;^[152]
• the plaintiff was told by Mr Kissell that after making his last delivery he was to contact Mr Kissell to see if there were any pickups on the way back to Citi-Steel.^[153]

63. [63]
    Mr Kimmins submitted that even if Citi-Steel did not owe the plaintiff a duty of care analogous to that owed by an employer to an employee, it nevertheless owed the plaintiff a high duty of care requiring it to establish a safe system of work, including giving appropriate instructions in relation to how to safely carry out the work.

64. [64]
    It was submitted that as a matter of common sense there was a foreseeable risk of injury if a person was required to move steel plates weighing 356 kilograms even if mechanical assistance is provided.

65. [65]
    Mr Kimmins submitted that Citi-Steel should have:

1. (a)
   provided the plaintiff with instructions and training in relation to unloading steel plates without a forklift; or

2. (b)
   delivered the steel plates at a time when the steel members were not overhanging the plates; or

3. (c)
   ensured that the steel plates were delivered at a time when they could have been unloaded by forklift; or

4. (d)
   told the plaintiff to take additional time to unload the items at Flow Force; or

5. (e)
   compiled the run sheet so that the Flow Force delivery was to be the last delivery.^[154]

66. [66]
    It was also submitted that Citi-Steel had not established that the plaintiff contributed to his own injuries.^[155]

The contentions for Citi-Steel

67. [67]
    Mr Collins, for Citi-Steel, submitted that the control, direction, induction and training of the plaintiff were all undertaken by Vacuum Excavation. These aspects included:

• The interview with Mr Noble where the plaintiff’s experience and qualifications were assessed;^[156]
• Vacuum Excavation decided that the plaintiff should drive steel trucks rather than smaller vacuum trucks because of his experience in driving vehicles with a nine speed gear box;^[157]
• Vacuum Excavation provided the plaintiff with training in a Mercedes Benz steel truck;^[158]
• Mr Allery from Vacuum Excavation assessed the plaintiff as being competent to drive steel trucks;^[159]
• Mr Emery explained to the plaintiff the operation of the crane and observed him use it;^[160]
• During the induction process the plaintiff was provided with manuals relating to the operation of a vehicle loading crane, loading and unloading trucks, back injuries and identifying hazards.^[161]The plaintiff completed a questionnaire in relation to the operation of a vehicle loading crane;^[162]
• The plaintiff was instructed by Mr MacKenzie-Ross,^[163] a director of Vacuum Excavation to attend Citi-Steel to carry out his work.^[164]

68. [68]
    Mr Collins submitted that the Steel 5 truck was loaded carefully by Citi-Steel. He submitted that the steel plates were loaded under the lengths of steel members so that they lay flat on the base of the truck. This facilitated weight distribution on the truck.

69. [69]
    Mr Collins submitted that the system in place for unloading steel products was entirely a matter for Vacuum Excavation as independent contractors. It had provided training to its drivers in relation to the method to be adopted for removing the steel products. Mr Collins submitted that the video recording illustrated that the crane could be utilised to remove other steel products in order to allow access to the steel plates. Mr Collins pointed out that Mr Boyd from InterSafe agreed the preferable procedure was to use the crane to lift and remove the items that were obstructing access to the steel plates.^[165]

70. [70]
    Mr Collins submitted that it was not uncommon for some steel products to obstruct other products. He submitted that in those circumstances the options available to the driver included continuing the run and returning to the subject premises after the tray was clear, or moving the steel to one side using the crane so that access to the steel plates was obtained or returning to Citi-Steel without delivering the items in question.

71. [71]
    Mr Collins submitted that the order of delivery set out in the run sheet was determined by a number of factors including the location, proximity and number of deliveries as well as customer requirements in relation to delivery times. He also pointed out that certain materials such as reinforcing mesh would have to be delivered first because it can be easily bent if placed underneath other steel items. He therefore submitted that it was expected that Vacuum Excavation drivers would be trained to unload Citi-Steel products safely using the crane and to be able to reconfigure the load if necessary. Mr Collins submitted that Citi-Steel imposed no time restrictions for deliveries because a number of variables could be encountered during deliveries which might result in delays.^[166]

72. [72]
    Mr Collins submitted that the method of unloading steel products from the truck was a matter for the plaintiff to determine in accordance with his training and instructions given by Vacuum Excavation. He submitted that Vacuum Excavation provided a specialised vehicle together with a skilled operator for the purpose of making deliveries of Citi-Steel products. Mr Collins submitted that the plaintiff’s injury arose from the unloading process as a consequence of alleged deficiencies in training by Vacuum Excavation.

73. [73]
    Mr Collins submitted that the primary issue is whether the plaintiff established that Citi-Steel occupied “host employer” status. He pointed out that such a relationship can be readily established in circumstances where there is the pure supply of workers alone by labour hire companies to mine operators who then exercise almost complete control.^[167]He submitted the issue is usually determined by reference to the degree of control exercised over the workforce, the workplace and the systems of work by the host employer.^[168]

74. [74]
    It was pointed that while there would be an expectation that deliveries would be carried out efficiently, there was no suggestion that Citi-Steel imposed any unreasonable time constraints upon the plaintiff. Mr Collins submitted that there was an insufficient degree of management and control to enable a finding that Citi-Steel occupied a position as “host employer” to be made.

75. [75]
    It was submitted that any duty of care owed by Citi-Steel was limited to the manner in which the truck was loaded so that the items could be safely unloaded.

76. [76]
    In relation to the nature and scope of the duty owed to the plaintiff by Citi-Steel, Mr Collins submitted that the plaintiff had received adequate training from Vacuum Excavation and he had a degree of control over aspects of his work such as altering the order of deliveries.^[169]

77. [77]
    It was conceded by Mr Collins that in the event that Citi-Steel was found to owe the plaintiff a duty of care analogous to that owed by an employer to an employee, there was limited scope for a finding of contributory negligence.^[170]Mr Collins submitted that based on the plaintiff’s alternative case in relation to the duty of care owed to an independent contractor, a finding of contributory negligence to the extent of 50 per cent was open.^[171]

Factual findings and conclusions

78. [78]
    The parties raised no issues in relation to the credibility of witnesses.

79. [79]
    There is a minor conflict between the plaintiff and Mr Emery in relation to the plaintiff’s experience operating cranes. The plaintiff said that he had no experience, although he had operated machinery with similar controls such as bobcats and excavators.^[172]Mr Emery said that the plaintiff told him he had used cranes before^[173], although he conceded in cross-examination that the plaintiff may have said that he had operated machinery with similar controls.^[174]

80. [80]
    As there are no credibility issues to be determined it is sufficient to state that I accept the evidence of all witnesses. The ultimate conclusions do not depend on an assessment of the credibility of witnesses.

81. [81]
    There are some particular aspects of the evidence that should be mentioned.

82. [82]
    The difficulty the plaintiff experienced in unloading the steel plates at Flow Force occurred when he realised that the crane did not reach the end of the truck.^[175]The InterSafe report dated 24 March 2016 states that the head of the crane had a maximum reach which was about 500mm short of the end of the truck’s tray.^[176]

83. [83]
    The training manual in relation to the operation of a vehicle loading crane stipulates that it is important for the operator to know the operating radius in order to determine the crane’s capacity.^[177]

84. [84]
    The plaintiff had not previously operated a crane. Moreover, he had poor reading skills. He did not understand all the words in the documents and required assistance from Mr Noble.^[178]

85. [85]
    I accept that the plaintiff had not operated a crane before he commenced employment with Vacuum Excavation. The training conducted by Vacuum Excavation in relation to the operation of the crane was quite basic and somewhat inadequate. The plaintiff simply demonstrated his proficiency in crane operation by manoeuvring the hook over a piece of timber on the back of the truck, and then after it had been placed on the ground.^[179]

86. [86]
    The commercial arrangement between Vacuum Excavation and Citi-Steel provided for the supply of trucks and drivers. Citi-Steel was entitled to assume that the drivers had the necessary skills to undertake the delivery tasks. There is no suggestion that Citi-Steel was aware of any deficiencies in the training of drivers by Vacuum Excavation.

87. [87]
    The plaintiff was told by Mr Kissell that deliveries would usually take 20-30 minutes. However, that was not a strict time limit. The plaintiff said “…if it did take longer, it would naturally take longer.”^[180]

88. [88]
    Mr Price said that there was no strict time limit. The deliveries were to be made as quickly, efficiently, and safely as possible.^[181]

89. [89]
    The loading of trucks and the order of deliveries was dictated by Citi-Steel. However, in the event that drivers encountered any difficulties, Mr Kissell could be contacted.^[182]There was a degree of flexibility in relation to delivery times and the order of delivery in the run sheet. The loading of trucks by Citi-Steel was intended to facilitate efficiency in the delivery system.

90. [90]
    The delivery of steel plates by using the truck-mounted crane was a very rare occurrence. In order to complete the delivery in the manner demonstrated in the video recording would have taken in excess of 75 minutes, a period which would be unusually long.^[183]

91. [91]
    Mr Emery described the way in which he would unload steel plates that were obstructed where a forklift was not available. He said he would move the obstructing steel on the truck to gain access to the steel plates, or he would unload the obstructing steel. He said that the method of unloading would be up to him to decide.^[184]

92. [92]
    Although Mr Emery said that on occasions the truck-mounted crane was used to unload steel in order to give access to the steel plates, he did not suggest that this was a common occurrence. When asked about the frequency of that occurring, he said “not every day” and “it does happen on occasions.”^[185]

Scope and content of the duty of care

93. [93]
    Citi-Steel conceded that it was likely that it owed the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury. However it contended that the scope of that duty was limited to the loading of the truck with reasonable care so that the goods could be unloaded safely. I do not accept that Citi-Steel’s duty of care to the plaintiff was limited to the manner in which the truck was loaded. Citi-Steel was aware that the proprietor of Flow Force would not be present, and as stated in the run sheet this meant that the delivery was required to be unloaded by the truck-mounted crane. I accept Mr Parry’s evidence that a crane unload of steel plates was a very rare occurrence.^[186]Mr Price explained that the placement of the steel plates on the truck was due to weight distribution and to provide ease of access upon delivery. He added “… hopefully the customer has a forklift. It – just drive up, pick it up and reverse out.”^[187]

94. [94]
    The plaintiff had not previously unloaded steel plates using the truck-mounted crane.^[188]

95. [95]
    While I accept that there was a degree of flexibility in the order of deliveries, there was a clear expectation that for reasons of efficiency the orders would be delivered according to the run sheet. The convenience of following the order in the run sheet is illustrated by the diagram contained in the InterSafe report dated 24 March 2016.^[189]

96. [96]
    The foreseeability of the risk by Citi-Steel gave rise to a duty on its part to use reasonable care to avoid an unnecessary risk of injury to the plaintiff: Stevens v Brodribb Sawmilling Co Pty Ltd.^[190]

Work Health and Safety Act 2011

97. [97]
    The WHSAimposed obligations upon Citi-Steel to ensure as far as was reasonably practicable, the health and safety of the plaintiff. Section 267(a) provides that subject to certain exceptions that are not relevant in this case, the Act does not confer a right of action in civil proceedings.

98. [98]
    Nevertheless the decisions in Beven v Brisbane Youth Service Inc^[191]and Kerle v BM Alliance Coal Operations Pty Limited & Ors^[192]illustrate that the statutory duties are relevant to the content of the duty of care.

99. [99]
    Further, as was explained in Koehler v Cerebos (Australia) Ltd^[193]:

“Questions of breach of duty require examination of the foreseeability of the risk of injury and the reasonable response to the risk in the manner described in Wyong Shire Council v Shirt. But to begin the inquiry by focusing only upon questions of breach of duty invites error. It invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account.” (citations omitted)

100. [100]
     The fact that the WHSA imposes statutory duties of care does not create a more onerous duty than the duty to take reasonable care.^[194]

101. [101]
     The relevant provisions of the WHSA are:

“19 Primary duty of care

3. (1)
   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of–

1. (a)
   workers engaged, or caused to be engaged by the person; and

2. (b)
   workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

…

3. (3)
   Without limiting subsections(1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable–

1. (a)
   the provision and maintenance of a work environment without risks to health and safety; and

2. (b)
   the provision and maintenance of safe plant and structures; and

3. (c)
   the provision and maintenance of safe systems of work; and

4. (d)
   the safe use, handling and storage of plant, structures and substances; and

5. (e)
   the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

6. (f)
   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

7. (g)
   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.”

102. [102]
     Section 19(3)(c) required Citi-Steel to ensure as far as was reasonably practicable that a safe system of work was provided and maintained.

103. [103]
     A non-delegable duty of care may arise due to the nature of the relationship between the parties: Kondis v State Transport Authority.^[195]

104. [104]
     A non-delegable duty of care to that analogous to that owed by an employer to an employee will be imposed where the day-to-day control of the worker’s activities is taken over by the host employer. In TNT Australia Pty Ltd v Christie^[196]an employee of a “body hire company” was sent to work at a brewery operated by TNT. The worker’s daily activities were assigned by the TNT warehouse manager. The duties of the worker were the same as permanent employees of TNT. Mason P said:

“It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer. I am not saying that every client of an employment bureau will assume such a relationship with the person at whose workplace he or she attends. But here the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT. TNT’s relationship was more than that of an occupier of the factory. In all respects relevant to the imposition of a duty of care the plaintiff was in an identical position to that of the four TNT employees with whom he worked.”^[197]

105. [105]
     Similarly in Love v North Goonyella Coal Mines Pty Ltd^[198]it was held that a mine operator exercised almost complete control over workers employed by a labour hire company. McMeekin J found that the mine operator exercised almost complete control over the workers. His Honour said:

“Where people worked, what tasks they performed, what equipment they used, and indeed how they carried out their tasks all came under the control of North Goonyella or the people the company had put in charge.”^[199]

106. [106]
     On the other hand in Kerle v BM Alliance Coal Operations Pty Limited & Ors^[200]it was held that complete control over the worker had not passed from the employer to the host employer. McMeekin J referred to various aspects of the employment arrangement including that one of the conditions of employment was that the worker was to contact his employer’s supervisor if he was unable to work on any particular day or if an accident or injury occurred.^[201]The issue arose in a very different factual context to the circumstances in this case. The plaintiff was injured while driving home from work at a mine. He was employed as a dump truck operator. He had completed four consecutive night shifts and was travelling home to Monto, a distance of 430 kilometres from the mine. The plaintiff claimed damages against his employer, his host employer, and the mine operator. The employer sought to divest itself of responsibility on the basis that the plaintiff’s services had been transferred to the host employer which exercised effective control and supervision of the plaintiff.

107. [107]
     I am not satisfied that Citi-Steel owed the plaintiff a higher duty similar to that owed by an employer. The situation is distinguishable from cases where a host employer assumes complete control of the activities of the work.

108. [108]
     The fact that the plaintiff wore a Citi-Steel uniform and drove a truck with its name and product advertising is not significant in relation to the extent of control exercised by Citi-Steel. The case is different to Hollis v Vabu Pty Ltd^[202]which related to the negligence of a bicycle courier who caused injury to another person. The bicycle courier was held not to be an independent contractor. The fact that the bicycle courier’s wore the defendant’s uniform was simply one aspect that determined the relationship between the parties.

109. [109]
     The fact that Citi-Steel and Vacuum Excavation had common directors is not significant. I accept the evidence of Mr Macleod that the relationship between Citi-Steel and Vacuum Excavation was a purely commercial arrangement. The hourly rates charged were commercial rates.^[203]

110. [110]
     The drivers were employed and trained by Vacuum Excavation. Citi-Steel had no role in training.^[204]

111. [111]
     Further, the drivers were able to ask for loads to be rearranged.^[205]Citi-Steel did not impose strict time limits for deliveries.^[206]The drivers had a degree of discretion in the way in which they carried out their tasks.

General duty of care

112. [112]
     Citi-Steel nevertheless had a duty to establish a safe system of work which included giving the plaintiff appropriate instructions on how to safely carry out his work.

113. [113]
     In Stevens v Brodribb Sawmilling Co Pty Ltd^[207]Mason J (as His Honour then was), discussing the duty of care owed to independent contractors said:

“Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.”^[208]

114. [114]
     In Thompson v Woolworths(Qld) Pty Ltd^[209]the plaintiff was required to adopt Woolworths’ delivery system. Woolworths therefore had an obligation to exercise reasonable care for the safety of drivers so that they were not exposed to an unreasonable risk of physical injury. The court said:

“Even so, the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came on to its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury. A number of aspects of the facilities and procedures for the delivery of goods into the respondent’s store might have involved issues of health and safety. Many, perhaps most, of the people who made the actual deliveries were outside the respondent’s organisation, and were not subject to the direct control it exerted over its employees. Even so, they were regular visitors to the premises, for a mutual commercial purpose, and it was reasonable to require the respondent to have them in contemplation as people who might be put at risk by the respondent’s choice of facilities and procedures for delivery.”^[210]

115. [115]
     In Woods v Multi-Sport Holdings Pty Ltd^[211]Gleeson CJ explained that the relationship between the parties and the context in which the relationship was entered into may be significant in determining whether in a particular case, it is reasonable that a party provide protection or give a warning to the other party.

116. [116]
     The relationship of principal and independent contractor does not of itself give rise to a duty of care. In Leighton Contractors Pty Ltd v Fox,^[212]the High Court considered the liability of the principal contractor at a construction site for serious injuries suffered by an independent contractor who was engaged to carry out concrete pumping. The Court observed that the principal contractor, as occupier of the site owed a duty to use reasonable care to avoid persons coming on to the site suffering injury. The Court said:

“The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken.”^[213]

117. [117]
     In J Blackwood & Son Steel & Metals Pty Ltd v Nichols^[214]the plaintiff, an experienced driver of prime movers, was employed by DNR Boyle Enterprise Pty Ltd (“employer”).  The employer entered into a contract with J Blackwood & Sons Steel & Metals Pty Ltd (“J Blackwood & Sons”) to provide a prime mover, trailer and driver for the purpose of transporting J Blackwood & Sons’ steel products to its customers. The plaintiff had undertaken this work for the whole of his six year period of employment. The plaintiff was injured at the premises of J Blackwood & Sons when he was standing on a load of steel on the trailer in order to tighten a chain. The load moved underneath him and he lost his balance and fell. The plaintiff received workers compensation payments from the employer’s insurer. He brought proceedings for damages for personal injuries only against J Blackwood & Sons.

118. [118]
     The New South Wales Court of Appeal considered that J Blackwood & Sons did not have day-to-day control over the task of securing the loads on the vehicles. Tobias JA (with whom Mason P and Handley AJA agreed) said:

“[87]It follows from the foregoing that in my opinion the primary judge erred in finding that (J Blackwood & Son) owed a duty of care to the (plaintiff) to provide him with a safe system of work with respect to the securing of his load. The relationship between (J Blackwood & Son) and the (plaintiff) was not such as to give rise to any such duty given that (J Blackwood & Son) had no control over the manner in which the (plaintiff), not being an employee of (J Blackwood & Son), carried out a task which he was at all times experienced in performing.

[88]Although it is true that (J Blackwood & Son) was in a position, if it so wished, to advise the (plaintiff) in the performance of the task in question, it was under no duty of care which could be breached by its failure to do so.”^[215]

119. [119]
     The authorities illustrate that an independent contractor will be owed a duty of care in circumstances where the way in which the work is required to be carried out exposes the contractor to a risk of injury.^[216]

120. [120]
     The risk of injury to the plaintiff which was created by the delivery system required Citi-Steel to establish a safe system of work.

Foreseeability

121. [121]
     There is clearly a foreseeable risk of injury where a person is moving steel plates weighing approximately 356 kilograms. The InterSafe report dated 24 March 2016 contains published data which demonstrates that the risk of injury to the plaintiff was plainly foreseeable. The report states:

“Manual tasks, and particularly manual handling, has been and continues to be over-represented in producing damage (often permanent) to people. The pattern of damage has been well documented for many years.”^[217]

Breach of duty

122. [122]
     As I have already mentioned the removal of steel plates from the truck by use of the truck-mounted crane was a rare occurrence. Usually steel plates were removed by the use of a forklift. On previous occasions when deliveries were made to Flow Force the proprietor was present and unloaded the steel plates using a fork lift. The plaintiff had not been given any specific instructions in relation to how to remove the steel plates by use of the truck-mounted crane. Mr Kissell said that steel products obstructing other products was not a frequent occurrence.^[218]

123. [123]
     The plaintiff had not previously operated the crane at full extension.

124. [124]
     I accept the plaintiff’s evidence that if he had been specific instructions as to how to unload the checker plates he would have followed that method.^[219]

125. [125]
     The plaintiff estimated that to unload the material obstructing the plates and then lift the plates and reload and resecure the other materials would have added approximately one hour to one and a half hours to his schedule.^[220]The video shows that to have undertaken these tasks would have taken in excess of 75 minutes.

126. [126]
     The plaintiff encountered a difficulty in the method he adopted because the crane hook was approximately 50 centimetres short of the back of the back of the truck.^[221]

127. [127]
     In the circumstances Citi-Steel should have:

• provided the plaintiff with specific instructions in relation to the unloading of steel plates without the use of a forklift; or
• delivered the steel plates at a time when the plates were not obstructed by steel members; or
• ensured that the metal plates were delivered at a time when the proprietor of Flow Force was present and able to unload the steel plates with a forklift; or
• told the plaintiff to take additional time to make the delivery at Flow Force; or
• made the Flow Force the last delivery on the run sheet.

128. [128]
     Those measures would have been a reasonable response to the risk of injury to the plaintiff.

129. [129]
     I conclude that Citi-Steel breached its duty of care to the plaintiff by failing to establish a safe system for unloading the steel plates at Flow Force on 12 September 2014. This resulted in the plaintiff suffering the injury to his shoulder.

Contributory negligence

130. [130]
     Citi-Steel’s written submissions in relation to the issue of contributing negligence are:

“105. In considering the most probable outcome, if it is found there has been a breach of the duty of care by the defendant in respect of the order of the run sheets giving rise to the possibility of this type of injury occurring from repetitive conduct and this is found to be a reasonably foreseeable outcome then it is unlikely there will be any finding of contributory negligence. (underlining as in written submissions)

106. If the plaintiff has received training and instruction in that regard which he has not properly adhered to or he should have called and received further advice or altered the timing of deliveries, this may support an argument that the plaintiff ought to bear a degree of responsibility for what has occurred.”

131. [131]
     In oral submissions Mr Collins argued that there was greater scope for a finding of contributory negligence based on the duty of care owed to an independent contractor.

132. [132]
     In Joslyn v Berryman,McHugh J said:

“At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed.”^[222]

133. [133]
     Citi-Steel has the onus of proving that the plaintiff contributed to his injury by his own negligence.

134. [134]
     I have concluded that the delivery system itself created the risk of injury.

135. [135]
     In Thompson v Woolworths (Qld) Pty Ltd,^[223]the High Court considered that the appellant’s relationship with the respondent as an independent contractor was a relevant factor. The Court said that different considerations arise in considering contributory negligence on the part of employees. The appellant was aware of the risk, and had complained about it. The Court considered that the appropriate apportionment was that allocated by the dissenting judge in the Court of Appeal (McMurdo J as his Honour then was). McMurdo J had found that Woolworths had created the risk and should therefore bear most of the responsibility for the accident. However the plaintiff had deliberately disregarded the risk and therefore the judgment should be reduced by one third.^[224]

136. [136]
     In the present case, the plaintiff had received instructions on the operation of the crane. The working radius of the crane was an important consideration. The crane operation manual states:

“One of the most important things you need to know in order to work out the crane’s capacity is the operating radius. This is the distance of the hook from a known point on the crane at which a crane can operate safely with a known load. The operating radius changes depending on the angle of the boom.”^[225]

137. [137]
     In the course of the plaintiff’s assessment in relation to crane operation, he correctly answered the following question:

“6.So before you can start to do any work with the crane you have to know?

[]That you have controlled any potential hazards and obstructions.

[]That you have taken into account the working radius of the crane.

[]Check the run sheet for the weight of the steel.

[✔]All of the above items.”^[226]

138. [138]
     Notwithstanding the plaintiff’s limited reading ability, Mr Noble provided assistance to him in going through the documents. Mr Noble provided assistance with “certain words.”^[227]There was no suggestion that the plaintiff did not have an understanding of fundamental aspects of crane operation.

139. [139]
     The plaintiff had been given a general direction to contact Mr Kissell if he experienced any problems with deliveries.^[228]On previous occasions when he had contacted Mr Kissell in relation to delivery issues he had been told to take his time and persevere so that the delivery was completed.^[229]

140. [140]
     When the plaintiff began to encounter difficulties he should have followed directions to contact Mr Kissell. I accept that Mr Kissell would not have instructed a driver to make a delivery where it was unsafe to do so.^[230]The plaintiff’s experience when he contacted Mr Kissell on previous occasions did not seem to involve the same sort of risks that arose on the occasion of the delivery to Flow Force.^[231]

141. [141]
     I consider that the plaintiff’s injury occurred partly because of his failure to take reasonable care: s 10(1) Law Reform Act 1995. However Citi-Steel created the risk of injury and should therefore bear the greater degree of responsibility.

142. [142]
     The apportionment of responsibility requires a consideration of what is just and equitable having regard to the plaintiff’s share of responsibility for his injury.

143. [143]
     The plaintiff failed to follow training guidelines for the operation of the truck-mounted crane or failed to adequately familiarise himself with fundamental procedures. Having commenced the operation of the crane, he should have contacted the dispatch manager, Mr Kissell, as he had been instructed.

144. [144]
     In the circumstances, I conclude that the plaintiff’s damages should be reduced by 25% ($40,000).

Order

145. [145]
     There will be judgment that Citi-Steel pay the plaintiff the sum of $120,000.00.

Costs

146. [146]
     I will hear submissions in relation to the issue of costs.