Contribution and the moving feast
May 3, 2016
Griffin v VWA & Ors  VSC 101 (23 March 2016)
The plaintiff, employed as a fitter/supervisor, allegedly injured his back while entering a ‘swing stage’ [a suspended cage that allows work to be performed on the exterior of a building]. The defendants settled with the plaintiff leaving alive the issue of contribution for hearing.
The parties to the contribution proceedings were:
- Probuild, the head contractor who controlled the building site
- Higgings, the painting contractor engaged by Probuild
- Tubeway, the scaffolding contractor engaged by Higgins to erect the swing stage
- Aluline, the employer subcontracted by Probuild to perform balustrading works.
Section 23B(1) of the Wrongs Act 1958 (Vic) (‘the Act’) permits a tortfeasor liable with respect to any damage suffered by another person to recover contribution from any other person liable in respect of the same damage. Claims for contribution require a determination of what is just and equitable, having regard to the extent of that persons responsibility for the damage. The two principal relevant considerations are the degree to which each defendant has departed from the standard of conduct required of them, and the relative causal potency of each of the defendant’s acts.
In broad terms, the legal issue for determination in this case was the responsibility of each defendant for the plaintiff’s injuries.
Justice Zammit held that Probuild was responsible for designing and implementing a confusing ‘drop zone’ system that involved dropping tools and machinery, and also generally responsible for coordinating the various subcontractors (including Aluline) and the swing stages. Probuild’s system was central to obtaining safe access to the swing. Probuild was aware that workers were confused by its system and did not comply with it. Further, Probuild was aware that an access point had been barricaded. These failures created a foreseeable risk that the plaintiff would incorrectly enter a door and encounter ergonomic difficulties resulting in injury.
Tubeway was primarily responsible for educating the plaintiff about safely accessing the swing. Tubeway’s staff provided the plaintiff with training and an induction that stressed the importance of using three points of contact during access (that is, holding onto something). However, Tubeway failed to stress what could happen if the three points of contact were not used. Tubeway’s documentation lacked daily checklists and induction notes referring to safe access. This suggested that Tubeway placed little importance on safe access. In addition, the failure to have a checklist was held to be contrary to record keeping standards and guidelines in relation to scaffolding, and a breach of regulation 3.5.2 of the Occupational Health & Safety Regulations 2007 (Vic).
Aluline attended the worksite daily and had an expectation that Probuild would ensure that its workers would receive the necessary training. As the plaintiff’s employer, Aluline had a non-delegate duty of care to the plaintiff of a special or stringent kind. This duty included an independent obligation to satisfy itself of the safety of the system in which its employees were engaged, notwithstanding the fact that its employees worked at another premises.
Justice Zammit held that Aluline failed to take any steps to assess the risk of entering an area to access the swing stage, and that it knew that if the swing stages were used incorrectly, then this posed a risk of serious injury. Aluline ought to have assessed the risk of its employees entering the swing stage, but made no effort or enquiry about inspecting the premises to which it had assigned its employee.
In Her Honour’s view:
…to discharge this non-delegable duty of care, Aluline had to adopt measures by way of both warning and/or training to require persons such as Mr Griffin to report dangerous conditions and to seek instructions as to what to do in the circumstances and in relation to accessing the swing stage where the three points of contact could not be used.
Probuild submitted that it discharged its duty of care by relying on Tubeway and Higgins in relation to the drop zone system. In doing so, Probuild sought to delegate its liability by attracting protection through the principles set out in Stevens and Leighton Contractors. Justice Zammit rejected Probuild’s contention and analogies with the above cases, as the site was a ‘moving feast’, the drop zone system was not self-contained, and the requisite training was not that of a specialist trade.
Justice Zammit held that there had been a significant departure from the standard of care expected of Probuild, Aluline, and Tubeway. Her Honour held that:
- Probuild’s causal potency was much greater than Aluline and/or Tubeway’s, because its departure occurred over a significant period of time and over a significant aspect of the work site. Particularly noting that Probuild had exclusive control over the drop zone system and access areas. That it failed to properly train workers on site in relation to the system and permitted a system that was confusing, leaving the plaintiff in a position where he was left ‘in the lurch’ and in a position of danger.
- Aluline breached its non-delegable duty to the plaintiff by failing to ensure that there was adequate training and understanding of systems, but this breach was regarded as less significant than that of Probuild.
- Tubeway breached its duty to the plaintiff by not emphasising the importance of the three points of contact, and the need to seek assistance where appropriate. It further breached its duty by not including safe access into its daily checklist.
- Higgins did not have any liability to the plaintiff, despite Probuild’s submission that there was an implied contractual term that Higgins was responsible for providing safe access to workers.
In Justice Zammit’s assessment, the appropriate and common sense way to deal with contribution to the plaintiff’s injury was to apportion contribution as follows:
- Probuild – 50%
- Aluline – 25%
- Tubeway – 25%.
Griffin serves as a reminder that in considering contribution, courts will have regard to the degree to which each defendant has departed from the standard of conduct required of them, and the relative causal potency of each of the defendants’ acts. In making this ‘fact rich’ assessment the trial judge will have regard to all of the facts, matters, and circumstances giving rise to the accident, such as:
- Who controlled the premises, workers, contractors and sub-contractors
- What were the respective roles played in devising, instituting and maintaining the unsafe system of work
- How long the relevant hazard had been in existence
- The respective states of knowledge of the hazard
- Who had responsibility for the employee’s training, and the adequacy of the training
- Whether the non-delegable duty of care owed by the employer was one that could be discharged by doing very little.
A principal contractor in command of the worksite and systems should ensure that such systems are clear and that workers are not left in any doubt when encountering potential hazards. Any confusion should be addressed in a timely manner in order to limit the increase of causal potency over time. Confusing systems without clear delineation of responsibilities may also limit a principal’s ability to delegate its liability to contractors and subcontractors.
Those in charge of inducting and training workers should ensure that such programs are comprehensive, and that documentation complies with relevant standards and guidelines. Special attention should be made to bring serious risks associated with the non-compliance of a system to the attention of workers who adopt the system.
Employers have a high duty of care to their employees, and should not assume that others will adequately provide safe work systems, or properly train and induct its workers. Rather, an employer must satisfy itself that its employees are engaged in safe work practices at other sites. Workers should be warned and trained to report dangerous conditions and to seek instructions.
Authored by Brett Weir, Partner and Oliver Lesage, Lawyer, Melbourne.
 Stevens v Brodribb Sawmilling Co Pty Ltd  HCA 1; Leighton Contractors Pty Ltd v Fox  HCA 35.
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