IN THE COUNTY COURT OF VICTORIA
AT Melbourne
common law DIVISION	Revised
Not Restricted
Suitable for Publication	
General List

Case No. CI-19-01070

NATHAN STONE 	Plaintiff	
		
v		
		
KENNEDY PLUMBING SERVICES (VIC) PTY LTD	Defendant	

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JUDGE:	HER HONOUR JUDGE CLAYTON	
WHERE HELD:	Melbourne	
DATE OF HEARING:	23, 24, 25 and 27 August 2021	
DATE OF JUDGMENT:	29 November 2021	
CASE MAY BE CITED AS:	Stone v Kennedy Plumbing Services (Vic) Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1872		

REASONS FOR JUDGMENT
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Subject:	
Catchwords: 	Serious injury – left shoulder – pain and suffering – workplace injury
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013; Occupational Health and Safety Regulations 2007
Cases Cited:	Young v SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd) [2021] VSC 445; Kondis v State Transport Authority (1984) 154 CLR 672; Czatyrko v Edith Cowan University (2005) 214 ALR 349; McLean v Tedman & Anor (1984) 56 ALR 359; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Iannello v BAE Automation and Electrical Services [2008] VSC 544; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112; Thompson v Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619; Caledonian Collieries Limited v Speirs [1957] HCA 14; (1957) 97 CLR 202; Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317; Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837; Wyong Shire Council v Shirt [1980] HCA 12; Victorian WorkCover Authority v Stoddart (Vic) Pty Ltd [2015] VSC 149, Bucic v Arnej Pty Ltd [2019] VSC 330; Govic v Boral Australian Gypsum Ltd [2015] VSCA 130; 47 VR 430; O’Connor v SP Bray [1937] HCA 18; 56 CLR 464; [1937] ALR 461; Deal v Father Pius Kodakkathanath [2016] HCA 31; 258 CLR 281; 90 ALJR 946; Watts v Rake (1960) 108 CLR 158; Malec v JC Hutton Pty Ltd (1990) 92 ALR 545
Judgment:	Damages to the plaintiff assessed in the sum of $175,000.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr P Wheelahan QC with
Mr C Madder	Shine Lawyers	
			
For the Defendant	Mr G Hevey RFD with
Ms D Manova	Lander & Rogers	

HER HONOUR:
	
1	Mr Nathan Stone dislocated his left shoulder on 16 February 2010 when he fell through an asbestos sheet roof whilst employed by Kennedy Plumbing Services (Vic) Pty Ltd (“Kennedys”).  Kennedys provides plumbing and asbestos removal services on a commercial and domestic basis.  
2	Mr Stone sues Kennedys to recover damages for pain and suffering pursuant to s 328(4) of the Workplace Injury Rehabilitation and Compensation Act 2013.  He makes no claim for pecuniary loss.  
3	He claims that Kennedys was negligent and in breach of the Occupational Health and Safety Regulations 2007 in relation to the prevention of falls.
4	The incident itself, that Mr Stone fell through a roof and dislocated his shoulder, is not in dispute, though other aspects of what occurred that day are hotly contested.  Kennedys denies that it was negligent or in breach of its statutory obligations and alleges contributory negligence on the part of Mr Stone.  Kennedys also disputes causation and quantum.  Mr Stone had multiple previous left shoulder dislocations and a previous shoulder reconstruction.  
5	Only Mr Stone’s treating orthopaedic surgeon Mr Anthony Bonomo was required for cross-examination.  Other medical reports and records were tendered without the witness being called.  I have reviewed and considered all the medical material but will summarise it only to the extent necessary for these reasons.
6	The plaintiff’s engineering expert, Mr Scott Boyd, gave evidence, as did a co‑worker, Mr Scott Spence.
7	The director of the defendant, Mr Shannon Kennedy, gave evidence for the defendant.
8	For the reasons that follow I have concluded that Mr Stone sustained a dislocated left shoulder on 16 February 2010, which required reconstructive surgery and which was caused by the negligence of the defendant in failing to provide a safe system of work and as a result of a breach of the defendant’s statutory obligations pursuant to the Occupational Health and Safety Regulations 2007.  The claim made by the defendant that Mr Stone contributed to his own injury has not been made out.
9	I have assessed damages for pain and suffering in the sum of $175,000.
The Incident
10	Mr Stone started working for Kennedys on 13 July 2009.  Prior to commencing with Kennedys, he had worked for many years as a general labourer and had undertaken a training course to obtain his “ticket” in asbestos removal.  The course is “quite detailed” and takes about 80 to 120 hours to complete.  Mr Stone agreed that part of that course involved training about additional precautions required when working at height.  He had “done a lot” of asbestos removal from domestic buildings prior to this incident.  
11	On 16 February 2010 he and a co-worker, Mr Spence, were assigned a job in Spotswood (“the worksite”), about four kilometres from the Kennedys depot (“the depot”).  The job was to remove the corrugated asbestos sheet roof from a shed in the garden of a domestic dwelling.  Mr Stone describes the roofing as being “super six”, a type of asbestos roof manufactured by James Hardie with which he was familiar.  
12	The practice at Kennedys was to assign jobs to workers on a daily or weekly basis, depending on how busy they were.  Workers would be informed where they would be working on the day before a job or the morning of the job.
13	On the morning of a job the workers would pack their car or utility, and a trailer if necessary, with whatever materials were needed.  The depot from which workers ventured was a large factory which included administrative offices.  Within the factory were cars, trailers, trucks, excavators, power tools, ladders, platforms, scaffolding, sewer machines and the like.  Workers were expected to provide their own cordless power tools and hand tools but other power tools and equipment were provided by Kennedys.  If a worker did not own a particular hand tool, Kennedys may have one available to be used, or the worker might borrow such a tool from another worker.
14	At the time of the incident, Kennedys employed about 35 to 40 people.  Mr Kennedy gave evidence that about 40 to 50 per cent of his time was spent in the office and the remainder of his time was spent “out and about” doing “hands on” project management, coordinating resources and labour and liaising with clients.  Whilst it was his expectation that workers would pack their own cars and trailers with the equipment needed for a job, it was his practice to cast his eye over what equipment workers had selected and make sure that they had all the items likely to be necessary.  
15	On this particular day, the job of removing the roofing was assigned to Mr Stone and Mr Spence.  It was agreed by both parties that there was no “SWMS” (safe work method statement) for this job, and no “JSA” (job site assessment) was undertaken.  According to Mr Kennedy, all jobs undertaken by Kennedys would typically include a “yellow”.  This was an assessment undertaken by the workers as to risks and risk management.  The “yellow” for this job is not in evidence.  Mr Stone says he does not recall a yellow for this job, nor does he recall the general practice at Kennedys of completing a yellow.  Mr Kennedy says a yellow would have been completed, because one was done for every job, big or small, but due to the passage of time, that document is no longer available.
16	Mr Stone and Mr Spence got to the worksite sometime between 7.30am and 8.00am.  
17	At around 9.00am Mr Stone fell through the roof.  He landed on his feet and then fell to the floor.  The jolt dislocated his left shoulder.  Someone, most likely his co‑worker Mr Spence, called Mr Kennedy, who attended at the worksite and drove Mr Stone to Williamstown Hospital.  Mr Kennedy arrived within five minutes of the fall and the trip to the hospital took around 10 minutes.  He arrived at the hospital at 9.13am.
18	His shoulder was enlocated.  He had approximately a week off work and returned on 24 February 2010.  He filed a claim form with his employer on 1 March 2010.
Evidence
Circumstances of the fall
19	There was one photograph of the shed in evidence, though it is not clear when this photograph was taken.  The photograph shows a shed, possibly a garage, with cladding walls and either a low-pitched roof or a flat roof.  The roof itself is not visible in the photograph.  Assuming that an adjacent gate pictured in the photograph is of a standard size, the shed would stand at something higher than two metres, but its exact dimensions cannot be ascertained.  
20	Prior to commencing the work, Mr Stone thought he “may have had a look” inside the garage.  He could not recall whether he was able to touch the ceiling of the shed from inside whilst standing on the floor.  He did not think he would have examined the battens, such as by hitting them with a hammer to assess integrity.  He said that “from what I remember they might have looked all right”.
21	He climbed onto the roof by way of an extension ladder.  The roofing was fastened with hex screws.  I understand this to be a hexagonal head, or nut, affixed to a fastener that went through the asbestos roofing and into the wooden batten beneath.  The screws were affixed at the apex of the corrugation, so that looking from the inside of the shed, a section of the fastener would be visible before it connected with the wooden batten below.  The roofing was affixed in sheets and had three rows of screws running horizontally across the sheet.  The top row was near the ridge, and the bottom row was near the edge.  Between these was a middle row of fasteners.  The usual practice was to remove all the screws from a section of the roofing, and then slide the sheet down to the person waiting on the ground, who would receive it.  Mr Stone was unsure whether any of the roofing had been removed at the time he fell.  He said “we may have done one but probably done a lot of unscrewing first.  When there’s only one screw left you get it, you unscrew it and then just slide it (the roofing) down on to the ground”.  Mr Stone says it was while he was unscrewing the middle row that he went through the roof.  Mr Spence thought the fall might have occurred as Mr Stone was beginning to come down from the roof.  
22	When he fell, he fell through both the asbestos and the broken batten and landed on his feet directly underneath.  There is no suggestion that he fell through a cavity in the roof created by removing some of the roofing.  There was broken asbestos and batten on the floor of the shed after his fall.  He could not recall whether and how his body fell to the ground after he landed on his feet.  He may have fallen to the left or the right.  He said his shoulder dislocated through the force of the fall and subsequent jolt through his body, rather than dislocating from falling onto his left shoulder.
The Instructions given to Mr Stone
23	Mr Stone says he was not given any instruction as to how to remove the asbestos roof.  He says “we’ve done it that many times” and that he was just doing what he would normally do, which was “just get up there, unscrew it” and remove the roofing.  Mr Stone admitted that he did not remember this incident clearly as “it was a long time ago”.  He said he would have unscrewed the bottom row first with the drill, and then got onto the roof.  He agreed that if he had seen that the battens were obviously not fit to weight bear, then he would not have got on the roof. 
24	He was asked whether he was told not to climb onto the roof.  He said “If you didn’t climb onto the roof how would you unscrew it then?  Because you can’t come from underneath and do it”.  It was suggested to him that, rather than unscrewing the fasteners, they could be cut from inside the shed.  He said “It would take forever and a day to do it that way”.  He then said “Well, we didn’t have bolt cutters the way you were saying it then.  We couldn’t do it that way”.  He said that “they didn’t have that type of tool for removing the screws.  They did it all by drills, Kennedys, from what I can recall”.  Later he said that the task could be performed from inside the shed and underneath “but it would take probably a lot longer to complete the job doing it that way”.  When it was put that this would have been a safer way he said “The way I looked at this job though, it was a cash job for them.  Just get down and do it, get out and on to the next one.  We normally have JSAs for a job but this one we didn’t.  It was only around the corner …. Every job we went to – we did a lot of big jobs for Kennedys but this job didn’t have any paperwork or nothing.  It was just get round, get it done and on to the next one.” 
25	He could not recall whether he saw Mr Kennedy prior to leaving the depot.  He did not think that Mr Kennedy had attended at the worksite before the incident.  He said “Just me and Scott would have been there”.  On further questioning he said “I don’t think he was there, no.  I can’t remember.  All I remember is when I came through (the roof) he was there”.  It was put to him that Mr Kennedy would say that he had attended the worksite before the incident.  He said Mr Kennedy “might have” been at the site but he could not remember and then said “I think he just came down to check on us and see how we were going”.  If Mr Kennedy did attend the worksite, Mr Stone does not recall him giving any instructions as to how the work was to proceed.
26	Mr Spence was called to give evidence but, other than recalling the fact that Mr Stone had fallen through the roof, he had very little recollection of the events of that day.  He could not remember Mr Kennedy being at the site or giving any instructions.  He said he had been on a lot of asbestos roofs over the course of his career.  
27	Mr Kennedy says after assigning the job, he told Mr Stone and Mr Spence to set up and that he would get there “not long after they set up because I wanted to run through the job with them”.  He said that he remembered this occasion, even though it was a long time ago, because Mr Stone subsequently fell through the roof.  He said “I recall I had some hesitation around the structure, or confidence in the structure and the sheet so I didn’t want the guys to do the removal from on top of the roof”.  He made this assessment based on the age of the building and his own experience.  He had looked inside the shed when he attended the worksite to quote the job but could not recall how long he had spent except that it would have been at least five or ten seconds.  He said that he “would have” looked at the rafters because he wanted to work out how the job could be done but he had no specific recollection of this.  
28	He said he gave instructions to remove the roofing “from the underside”.  It was quicker to do it from on top of the roof but there were a number of ways to approach the job from the underside.  The “hard way” would be to break up the sheeting from underneath.  An easier way would be to use bolt cutters or a gas torch to remove the fasteners from underneath.  Another possibility was to remove the fasteners at the closest access point along the side of the shed and then progressively work the sheet up from the inside.  Mr Kennedy said “I would have thought on a job like this you would remove the external flashing on the accessible side, remove the couple of fixings that you can get access from which are on that south end and then progressively work the sheet up from the inside”. 
29	He was asked whether he could remember explaining how the workers were to take off the roofing.  He said he could not recall having a conversation about how to start or how to go about it “but the expectation would have been – my style that I get the information across is I ask the question and I say to guys, ‘Do you know where to start?  Are you confident with where to start and then how to go about it?’ ”  Mr Kennedy said he told them why he wanted them to take it off from underneath and that “they agreed with me as to why it should be taken off underneath at that point”.  He does not recall whether he had a specific conversation with Mr Stone about using bolt cutters.  He said that the reason he wanted it taken off from underneath was that he did not have confidence in the structure, it looked brittle and did not look well supported.  Mr Kennedy said that the job was expected to take about four or five hours and that the job could have been completed within that time without getting on the roof.
30	In cross-examination the following exchange occurred: 
“Mr Wheelahan: You didn't give a specific instruction not to stand on the roof of the shed, you just had an expectation that they wouldn't; is that right?
Mr Kennedy: No, that's not right.
Mr Wheelahan: You didn't give any detailed instructions to them of how to get the first roof sheeting off, did you?
Mr Kennedy: That's not right either.
Mr Wheelahan: You don't have a recollection of telling them which sheet to take off first?
Mr Kennedy: You start on an edge. They can take their choice on what edge they want to start from.
Mr Wheelahan: My question is slightly different. I know you might have expectations and what would have, could have, should have. You don't recollect as you sit here and give your evidence giving instructions as to which end and how to take off the first piece of sheeting?
Mr Kennedy: I told them to start at the south end.
Mr Wheelahan: You said start at the south end?
Mr Kennedy: Yes. 
Mr Wheelahan: How long did you speak to them at the site giving these instructions?
Mr Kennedy: Fifteen minutes.”
31	Mr Kennedy said he did not stay at the site after giving directions about how the work was to be done.  
The Equipment available
32	Mr Stone said he “would have been using Scott’s (Mr Spence) drill on the day and I would have had my own pinch barrel and all that and nippers, nips, just for the cleaning up and what not”.  He explained that labourers just had to bring hand tools, and plumbers were expected to have their own power tools.  He did not think Kennedys had bolt cutters for removing screws.  He said that there were always extension ladders on the roof racks of the cars.  He did not recall ever having seen a platform ladder at the depot and said that there was not a platform ladder at the worksite.  He agreed that he could have returned to the depot for any equipment needed that was not at the worksite. 
33	Mr Kennedy gave evidence that, whilst it was his expectation that workers would pack their own cars and trailers with the equipment needed for a job, it was his practice to cast his eye over what equipment workers had selected and make sure that they had all the items likely to be necessary.  If all items needed were not packed, then the workers would either have to return to the depot or the necessary equipment would be taken out to them, causing delay.
34	He gave evidence that, on the day of the incident “I would have run my eye over it (the trailer) and made sure the vacuums were there, made sure the ladders, access equipment was there.  As far as hand tools, I wouldn’t have checked their own hand tools”.  The following exchange occurred:  
“Mr Wheelahan: You gave evidence that in the morning you cast your eye over what the men are taking out to site before they leave?
Mr Kennedy: That was the general rule, correct.
Mr Wheelahan: Are you able to recollect that when you cast your eye over did you pay any attention to the fact that there was no such oxyacetylene torch in their trailer?
Mr Kennedy:  I would have made sure there was something in there with regards to bolt cutters, along those lines.
Mr Wheelahan: My question was about an oxyacetylene torch?
Mr Kennedy: No. 
Mr Wheelahan: Do you have any recollection of noting that it wasn't in their trailer?
Mr Kennedy: No. I have no recollection of that.
Mr Wheelahan: Do you recollect - their evidence was that the only ladder on the trailer was a vertical roped pull ladder. Do you accept that or do you have a different actual recollection?
Mr Kennedy: No, I debate that. They wouldn't have been able to do the job with it.
Mr Wheelahan: If you are debating it I'm asking what your actual recollection is on the morning of 16 February 2010. Do you recollect there being any other ladder than the one I have just described to you, being in their trailer or their ute before going to site when you cast your eye over what they were taking?
Mr Kennedy: Yes. There was a stepladder and a platform ladder. It was in the trailer.
Mr Wheelahan: It was in the trailer, was it?
Mr Kennedy: Yes. 
Mr Wheelahan: When you arrived at the site - Mr Stone's evidence is that there was no such platform ladder there?
Mr Kennedy: Yes.
Mr Wheelahan: You now say. Do you now say that when you arrived at the site you saw such a ladder?
Mr Kennedy: That stuff was there. They took it with them. Whether it was set up or whether it was in the back of the trailer it was on the site.
Mr Wheelahan:	You have a recollection of that, do you?
Mr Kennedy: Yes. Leaving the workshop.”
35	Mr Kennedy went on to say “Every day on a job of mine that I was organising I would run my eye over what the guys were taking.  I know for a fact that this job wouldn’t have been able to get done without those things so I would have picked it up if it wasn’t in the trailer”.  
36	He said that bolt cutters are generally considered hand tools and therefore would be provided by the worker, but that Kennedys had two types of bolt cutters available.  One type was as shown in the report of Mr Boyd, which I will come to later, and the other type was for use from above, which would have required the job to be undertaken on the roof rather than underneath.
The risk assessment 
37	It was common ground that there was no SWMS or JSA done for this job.  Mr Kennedy said that a “yellow” would have been done as it was done for all jobs.  Mr Kennedy gave evidence that “there’s a control plan within the yellow paperwork that the guys do at the job”.  The “yellow” is apparently part of the safety and quality documentation required for certification.  It provides details of the job, the hygienist, the people who are undertaking the job and a control plan.  Mr Kennedy described it as a document that is filled out by the workers at the site.  The workers would identify risks and how they were to be controlled.  He said it is “very much like a small SWMS”.  
38	Mr Stone had no recollection of “yellows”.  He remembered JSAs and SWMSs but not yellows.  A blank “yellow” was exhibited to the affidavit of Maree Kennedy sworn 8 September 2020.  This has sections for the client name, site location and the scope of works.  There is then a table of various risks and a box to tick if the risk is present.  The risks are:
(a)	working at heights
(b)	manual handling
(c)	confined space entry
(d)	excavation
(e)	hot work
(f)	asbestos
(g)	isolation of electricals
(h)	access equipment
(i)	operating plant and/or machinery
(j)	exposure eg effluent
(k)	other.
39	There is then a table showing the likelihood of the risk ranging from “almost certain” to “rare” and the severity of the risk, ranging from catastrophic to insignificant.  An “almost certain”, “likely” or “possible” risk that would be “catastrophic” rates 1.  A “possible”, “unlikely” or “rare” risk that is “insignificant” rates 4.  The person completing the form is required to assess the risk and the risk rating and then to assign a “control method” to it.  The control methods are, in order of effectiveness:
(a)	elimination – most effective way of managing risk
(b)	substitution – next most effective way of managing risk
(c)	isolation/engineering eg barrier controls, shoring
(d)	administration eg training, instruction
(e)	PPE – least effective control, last line of defence.
40	After assessing the risk and determining the appropriate control method, the person completing the form is required to assess the “residual risk”.
41	There are then further pages dealing specifically with control plans for asbestos containing materials.
42	An example of a completed yellow shows, for example, a number of risks, including a risk of electrocution rated as 1.  The control method is to have a licensed electrician disconnect lights on eaves prior to removal works.  This then leaves a residual risk rating of 4.  
43	I accept Mr Kennedy’s evidence that it was the practice of Kennedys to require a yellow to be completed for all jobs.  I cannot conclude, given the passage of time, that the lack of a yellow in this instance establishes that one was never completed.  
44	Mr Stone did not recall completing a yellow and thought that the lack of paperwork for the job was because this was a “cash” job.  I take from that evidence that Mr Stone means a job that was off the books for taxation purposes and therefore did not have the relevant documents completed.  It is not clear from his evidence why Mr Stone thought this was a cash job.
45	Mr Kennedy denied that it was a cash job.He said his company rarely did cash jobs as most of their work is commercial and those sorts of jobs “just don’t come our way”. 
The report of Mr Boyd
46	Mr Stone relied on a report from Mr Boyd dated 21 May 2021.  Mr Boyd is a mechanical engineer who currently works on the development and implementation of occupational health and safety management systems, risk management systems, accident investigations and industry training.  
47	Mr Boyd opines that, in terms of removing or reducing the risk of working on a roof, the first step is to avoid working on the roof.  He sets out a number of ways in which the roofing could have been removed without the need to get on the roof.  These are essentially the methods identified by Mr Kennedy:
(a)	removal of the first row of sheets along an edge to create an opening and then using a small elevated working platform or platform type ladder to go up through the opening and remove the remaining sheets in sequence (essentially the ladder method identified by Mr Kennedy above though using a platform rather than extension ladder);
(b)	using an oxy-acetylene torch to cut each of the fasteners from below;
(c)	using a reciprocating saw with a long blade to cut the fasteners from below, with the worker elevated using a small elevated working platform or platform ladder.  There is a risk associated with this method which is that the saw would come into contact with the asbestos roofing on either side of the fastener, creating asbestos dust.  Measures could be taken, such as the application of silicone paste, to reduce dust generation; and
(d)	using bolt cutters to cut through the fastener from underneath.  However, he is unsure as to whether bolt cutters would be appropriate as he was not able to find a set that would fit in the gap available in Hardies super six sheeting.
48	In addition, if the work was undertaken from the roof, Mr Boyd outlines measures to reduce the risk of fall, including using an elevated work platform, erecting scaffolding and using a harness, or using a catch-platform, safety mesh or fall-mat to reduce injury in the case of a fall.
49	Mr Boyd was heavily criticised by the defendant for: not having relevant experience with asbestos and his lack of familiarity with corrugated sheeting; the extent of his investigations into different types of bolt cutters; the extent of his questioning of Mr Stone about the presence of a reciprocating saw; and other matters.
50	However, the substance of Mr Boyd’s report was not significantly in dispute.  Mr Boyd considered that the best way to ameliorate the risk of working on the roof was to do the job without getting on the roof.  The defendant’s case was that Mr Stone had been specifically told not to get on the roof.  Despite the points of dispute, both sides were in agreement that the job should not have been done from the roof.  
51	Had the defendant relied on a case that the job could not be done other than from the roof, then the feasibility of each of the alternative methods would need to be considered.  But given that both sides agreed that there were a number of methods available that did not require Mr Stone to be on the roof, I accept that any of the “non-roof” methods would have removed the risk of Mr Stone falling through the roof.
52	Consequently I do not think it is necessary to engage in an assessment of the feasibility or otherwise of using other methods to reduce the risk of working on the roof, such as using an elevated work platform, scaffold with harness, or crash mats and the like.  These would only come into play if there was no alternative to doing the job from the roof.  Accordingly I give no weight to the expert opinion of Mr Boyd.
Assessment of the evidence
Mr Spence
53	Mr Spence was straightforward and honest but could remember little about the day, other than the fall itself.  He cannot recall being instructed not to do the job from the roof, or to do the job from underneath.  It is possible that a fall that occurred in circumstances where the worker had directly contradicted his boss’s instructions might be more likely to stick in the memory, but I cannot be satisfied that Mr Spence’s lack of recollection about instructions means that no instructions were given.  From his evidence I infer that a plumber and labourer, assigned to remove a roof, would not expect to receive any specific instructions about how to set about the task.  This was an unremarkable job, of the kind that both men had undertaken frequently.  They approached it in the typical way they would approach of job of this type.  
Mr Stone
54	Mr Stone was not an impressive witness.  Whilst he understandably could not recall many aspects of the day of the incident, he gave the impression under cross-examination that he was, at least on occasion, making up answers as he went along to assist his case by explaining discrepancies or to cast Mr Kennedy in a negative light.  The following are examples of this: 
Falling from a ladder
55	The hospital notes of the incident record that he fell from a ladder.  When asked whether he had given that history to the hospital he initially said he could not recall.  He was then shown the hospital note and asked whether he could remember telling anyone that he had fallen off a ladder.  He said no.  He was then shown the discharge summary from the day of the incident which included a referral from the Emergency Department doctor which said “thank you for seeing Mr Stone who has previously had recurrent shoulder dislocations”.  In the midst of this document being read to him Mr Stone volunteered “I remember I got there and Shannon told me to say I fell off a ladder because he drove me there”.  He maintained that Mr Kennedy had told him to tell doctors at the hospital that he had fallen off a ladder, rather than through the roof.  Notably this was not in response to a direct question about the history given.
56	Mr Kennedy denied ever having given Mr Stone such an instruction and appeared genuinely baffled as to what his motivation for doing so could possibly be.  He did not dispute that Mr Stone had fallen through a roof.
57	Mr Stone’s evidence was not believable.  I had the impression that he was trying to come up with a reason why the hospital notes would be wrong and fabricated an explanation.  All the witnesses called accepted that he fell through the roof and not off a ladder.  It seems most likely that the hospital note was simply incorrect.  I accept Mr Kennedy’s evidence that he did not give this instruction and conclude that Mr Stone made this up to make it appear as though Mr Kennedy had something to hide. 
Physiotherapy
58	During cross-examination Mr Stone said that Mr Kennedy had stopped him from accessing physiotherapy appointments.  “I wanted to get physio.  I think I had about three of four sessions and then he (Mr Kennedy) goes – I was recommended to have 10 and he goes ‘You don’t need to have the whole 10’.”  He was asked “it’s Mr Kennedy that stopped you from having physiotherapy treatment; is that what you are saying” to which he responded, “pretty much”.  He went on “He didn’t stop me.  He wanted me to not have the 10 or 12 visits I should have had.  I had about four or six”.  He then said “It was pretty much, you know, ‘You don’t really need all of them’.”
59	Mr Kennedy denied having stopped or tried to stop Mr Stone from attending physiotherapy.  There is no obvious reason why Mr Kennedy would stop Mr Stone from having physiotherapy and again, I formed the view that Mr Stone was just saying something that he thought would make Mr Kennedy look bad.
Threats by Mr Kennedy to sack Mr Stone
60	Mr Stone gave evidence that Mr Kennedy would make threats to sack him and other workers.  He said “It was like you want the job or you are getting the flick”.  When he was asked whether he was ever threatened with “getting the flick” he said “What I remember that morning down at the [depot], he was quite – to me, he was quite, you know …. He was quite rude and abrupt about it - If you don’t do the job, see yas later”.  This purports to be an actual recollection by Mr Stone about Mr Kennedy’s attitude on the day of the incident.  The clear implication is that Mr Stone was made aware by Mr Kennedy that he would lose his job if he was not prepared to do jobs that might be risky or unsafe.
61	Mr Stone said “I really remember that he was quite moody a few times from what I can recall”.  When asked to state precisely when Mr Kennedy had ever threatened Mr Stone with the sack, Mr Stone said “on other jobs with other boys he did it as well… He was saying, ‘all youse, the door’s there …. If youse didn’t want to do the job, the door’s there’.”  He said that this phrase “the door’s there” was not directed just at him but that it was directed at him three to five times over the time he was there.  When asked to give a specific example he said “Puckapunyal”.  He then said that he did not take the words “the door’s there” as a threat that he would be sacked if he did not do things Mr Kennedy’s way, because “he knew I was the best worker there.”  I did not find any of Mr Stone’s evidence on this to be credible.  He appeared to be making it up and embellishing it as he went along.  I accept Mr Kennedy’s evidence that he did not tell workers generally or Mr Stone specifically that “the door is there” as a way of threatening them to comply with orders, nor that any overt or implied threats were made to Mr Stone on the day of the incident or at other times.  Again, this was an attempt by Mr Stone to cast Mr Kennedy in a negative light.
The ambulance
62	In cross-examination the following proposition was put to Mr Stone: “on that day 16 February 2010, I specifically put it to you that Mr Kennedy did not tell you to lie to the people at Williamstown Hospital and I am also obliged to put to you that he did not threaten to sack you on that day for any reason”.  In response Mr Stone said “He didn’t want me to get into an ambulance”.  Mr Stone said that Mr Kennedy had told him that he did not need an ambulance and that Mr Kennedy would drive him to hospital.  
63	Mr Kennedy was asked whether he considered calling an ambulance to take Mr Stone to the hospital.  He said “I have had first-hand experience.  I know it’s painful but it’s not going to kill you.  I knew if I called an ambulance that would have been slower than me getting him to hospital, taking him to Williamstown Hospital which is, once again, 10 minutes down the road”.  At the time Mr Stone gave evidence about Mr Kennedy not wanting him to get in an ambulance, he was not being asked anything about an ambulance.  This seemed to be something that Mr Stone thought of whilst under cross-examination as a potential allegation to throw up to cast Mr Kennedy’s actions in a negative light.  The implication is clearly that Mr Kennedy had something to hide and did not want ambulance officers turning up at the scene of the incident.  I accept Mr Kennedy’s evidence on this point, that his reason for taking Mr Stone in his car was because it was quicker than calling an ambulance and the circumstances, where Mr Stone was injured but was clearly not in a critical condition, did not warrant an ambulance. 
64	These aspects of Mr Stone’s evidence, which I have found are not true and were said by Mr Stone to try to either cast Mr Kennedy in a negative light or to explain discrepancies in his case, lead me to approach all his evidence cautiously.  
Mr Kennedy
65	I found Mr Kennedy to be generally a straightforward witness who was doing his best to recollect events that happened more than eleven years ago.  However there are some aspects of his evidence that I do not accept.  I formed the view that his recollection of actual events was clouded by his memory of his usual practice and what he thought he would, or perhaps should, have done.  Under cross-examination he tended to solidify his answers to describe actual recollection of events which I do not accept that he had.  
66	He said he told Mr Stone and Mr Spence to attend the worksite to set up and he would meet them there to go through the job.  He says it was at the worksite that he told them to do the job from underneath.  However in order for Mr Stone and Mr Spence to have selected the appropriate tools for the job, they would have had to know prior to departing the depot if they were expected to do the job from “underneath”, as this would have required a different type of ladder and different equipment than doing it from the roof.
67	He said he did not step through how the job was to be done at the worksite, and that there were a number of methods available to do the job from underneath:
(a)	breaking up the sheeting;
(b)	cutting the fasteners with bolt cutters or a reciprocating saw; or
(c)	burning through the fasteners with a gas torch.
68	These methods would all have required the use of a step ladder and/or a platform ladder.  The extension ladder would be of no use inside the shed until at least some of the roofing was removed.
69	Another available method to avoid getting on the roof was to start at one end and remove the screws as far as could be reached from the extension ladder, then break or remove the first piece of sheeting to create a space and then insert the ladder into the space created to access the remainder of the fasteners which could be unscrewed from above.  For simplicity I will call this the ladder method.
70	Prior to cross-examination it was clear that Mr Kennedy had not formed a conclusion about the method by which the roofing should have been removed.  The methods he discussed aligned with some of the methods outlined in the report of Mr Boyd.  When explaining the ladder method, he said that, with this method, the workers could choose where to start.  This is compatible with his evidence that it was his general practice to leave the way in which the work was done to his workers, and to ask them questions to ensure that they knew where to start and how to go about it.  It is also consistent with his evidence that, even if the workers had settled on the ladder method, they could choose where the best place to start would be, rather than being directed as to where to start by him.
71	He said he did not go into the shed when attending the worksite on the day to see whether the fasteners could be removed using bolt cutters of the type he would expect his workers to have or whether they would need a gas torch or a reciprocating saw or some other device.  If he was not going to assess the best method of performing the task, it is not clear why he would have attended the worksite.  He could have simply told Mr Stone at the depot not to get on the roof.
72	However in cross-examination he settled on the ladder method as the method he says he directed Mr Stone to use.  Despite having previously said that he did not give Mr Stone instructions or directions about how to remove the roofing at the worksite, other than to tell him not to get on the roof, he then said that he had in fact had a 15‑minute conversation with him and told him to start at “the south end”.  If this is correct, then the job could have been done with just the extension ladder and the impact driver and not from “underneath” as elsewhere he said he had directed.  The fasteners would be removed from above, as they were if the worker was on the roof.  
73	However Mr Kennedy said he had an actual recollection that he had checked that a platform ladder and step ladder were in the trailer as it would not have been possible to do the job without that equipment.  The platform ladder and step ladder were only required if the roof was to be removed from inside the shed.  The ladder method as described by Mr Kennedy required an extension ladder, as it would need to be inserted into and balanced against the hole created in the roof, once the first piece of sheeting was removed.
74	It does not make sense that, if Mr Kennedy attended at the worksite before the workers started the job, he would do so only to tell them to do it from the underside, or from underneath, and would then leave it to them to determine the appropriate method.  He would have had to have told them at the depot to do the job from underneath so that they could take the appropriate equipment which would have to have included bolt cutters, a gas torch or a reciprocating saw.  Then there would have been no point in attending at the worksite if, as he initially said, he was intending to leave them to determine the appropriate method of removal.  
75	I accept that he may well have had reservations about the integrity of the roof based on the age of the shed and his own experience.  He may have expressed those reservations to his workers.  In his mind he may have formed an expectation that they would not, or should not, get on the roof.  However the sequence of events that he describes does not make sense. 
76	On his evidence he variously:
(a)	checked that his workers took all the equipment they needed to do the job from underneath, prior to being told to do the job from underneath; then
(b)	attended the worksite in order to tell them to do the job from underneath but left it to his workers to determine the best method; but
(c)	did not go into the shed when attending the worksite on the day to see whether the fasteners could be removed using bolt cutters of the size and type he could expect his workers to have, or alternatively whether they would need a gas torch or a reciprocating saw or some other device; but also
(d)	had a fifteen-minute discussion with his workers about how to undertake the task; and then
(e)	directed them to use the ladder method and to start at the south end of the shed.
77	His view that the ladder method was the best option appeared to be an opinion he formed during the course of the trial with the benefit of hindsight and after reviewing the photographs and the evidence about what tools were available.  
78	If the ladder method was the method that Mr Kennedy had told Mr Stone to employ, it is not clear why a step ladder and platform ladder would have been required, or why Mr Kennedy would have checked that this equipment was in the trailer as it left the depot. 
79	Because of these inconsistencies in the evidence, I am not satisfied that Mr Kennedy’s evidence that he gave instructions to his workers to do the job from underneath, and the manner in which they were to proceed, is reliable.  If I were to accept Mr Kennedy’s evidence, I would have to accept that he had a fifteen-minute conversation with Mr Stone and Mr Spence in which he explained the way he wanted the roof removed, starting at the south end, using the extension ladder to remove the first layer of fasteners, removing the first sheet of asbestos roofing and inserting the ladder into the gap created to progressively remove the rest of the roof.  I would have to accept that both Mr Stone and Mr Spence agreed with his assessment that the roof was unsafe and, having been directly instructed as to the method by which the roof was to be removed, and having been told exactly where they were to start, went against those clear instructions and decided to do it in the usual way, exposing Mr Stone to a clear risk of injury.  
80	I am left with two very different accounts, from witnesses who, for different reasons, are not reliable.  Much of the difficulty with assessing the evidence in this case is the passage of time.  It has been more than eleven years since the incident and one can assume that Mr Stone, Mr Spence and Mr Kennedy have all worked at many different worksites, and likely removed many roofs, since that time.
81	Neither Mr Stone nor Mr Spence can recall being told not to get on the roof, or being instructed in how to undertake the task.  However that does not mean that such direction was not given.
82	Mr Kennedy says he did give a direction to perform the job from underneath but, for the reasons set out above, I am not persuaded that his evidence about that is an accurate recollection of events, or that, if such a direction was given, it was clear to his workers what was expected of them and how they were to undertake the task. 
83	I must therefore determine, on the balance of probabilities and making an assessment of probable behaviour in the circumstances, what happened on the day.
84	There was little evidence about the appearance of the roof.  Mr Kennedy said he had not seen the roof.  Mr Stone said that the sheeting was not brittle.  He was aware that asbestos sheeting could be brittle but this sheeting was not. 
85	There was little evidence about the condition of the battens.  Mr Stone said the battens “looked alright” as far as he could remember.  Mr Kennedy gave no evidence about the battens specifically.  His concern was with the structure as a whole because of its age and because it “looked brittle” and did not look like it was well supported.
86	Mr Kennedy thought that the job could be completed in the time specified by doing it from underneath.  Mr Stone was a full-time employee.  He would not be paid either more or less if it took a longer or shorter time.  It was Mr Kennedy’s evidence that he got on well with Mr Stone.  Mr Stone was a good worker and he assessed that Mr Stone and Mr Spence were suitable for the job.  The job was a small job, of a type with which both Mr Stone and Mr Spence were extremely experienced.  Mr Stone accepted that the job could have been done in other ways, including from underneath, though he thought it would take longer.  There was no evidence that Mr Stone was a worker who did not follow directions.  There was no reason for Mr Stone not to follow a direction, had it been given, not to get on the roof.  He was the person at risk if the roof was not sound.  
87	Although he may have a motive to lie, dissemble or fabricate when giving his evidence at trial, there is no obvious reason for both Mr Stone and Mr Spence to have disregarded a direct instruction given on the day of the incident.  There was no obvious benefit to Mr Stone to take a risk on a dodgy roof.  To the extent that Mr Stone implied in his evidence that he was encouraged to take a risk on the roof in order to get the job done quickly because it was a “cash” job, I do not accept that proposition.  There is no evidence upon which I can be satisfied that the job was a cash job or that, even if it was a cash job, this would have meant that Mr Stone was required to take an unnecessary risk. 
88	Having assessed all the evidence, I am not satisfied that Mr Stone was instructed to do the job from underneath, or to not get on the roof.  On the other hand, there is no evidence that Mr Stone was directed or required to get onto the roof.  His own evidence is that he was not told to get on the roof in order to perform the job.  I do not accept that he was told he had to do the job quickly, so as to make removing the roofing from the roof the only feasible option. 
89	I find that the most likely scenario was that Mr Stone and Mr Spence were assigned the job and undertook the job in accordance with the usual system of work in place at Kennedys and in accordance with their skills and expertise.
The Claim in negligence
90	The allegations of negligence include that the defendant failed to provide the plaintiff with a safe system of work and failed to instruct or properly instruct the plaintiff.  Most of the other allegations of negligence relate to failures in relation to working from heights, including the provision of appropriate and safe methods and equipment when working at heights.
91	The defendant says that, on this occasion, it did not require the plaintiff to work at heights and thus the consideration of what steps should have been taken to discharge its duty when work at heights was required do not arise.  I accept this proposition.  
92	The question is therefore whether, in circumstances where the plaintiff was given no direction as to how to undertake the work, the defendant discharged its duty.
93	Forbes J in Young v SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd) (“Young v SMYBB”) recently explained the duty carefully:  
“The employer has a duty of care in devising a safe system of work. This extends to the provision of suitable tools and premises.  The reason for the non-delegable duty is set out by Mason J in Kondis v State Transport Authority:
The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters.  
The employer is to take reasonable care to avoid exposing employees to unnecessary risks of injury.  It includes not only devising the system of work that is to be used, but also the implementation of that system and the provision of appropriate tools to carry out the tasks required.”
94	The Court, in determining a claim in negligence, must identify the risk which should have been foreseen with some precision.  The Court can then undertake the appropriate enquiry as to what steps, if any, should have been taken to remove or reduce that risk. 
95	In Hardy v Mikropul Australia Pty Ltd J Forrest J stated:
“It is necessary to identify with some specificity the nature of the risk which must be foreseen. It is not sufficient to address the issue generally, although it is unnecessary for a defendant to foresee the precise risk of injury or damage or how it may occur. ... .” 
96	In characterising the risk that a particular plaintiff is exposed to, the Court must take into account the harm that occurred in the particular case and the circumstances of that case.  However it is not confined to the specific combination of circumstances in which the plaintiff sustained his or her injury. 
97	Thus, in Chapman v Hearse, the High Court stated the principle as follows:
“... one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant’s carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of.
98	Where the risk of injury is foreseeable, the Court must consider the content of the duty that is consequently owed by the defendant to the plaintiff.  In determining that question, in Wyong Shire Council v Shirt, Mason J stated:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.” 
Application of the law to the facts
99	The system of work in place at Kennedys was that workers were assigned to a job the day before or the day of the job.  They were then expected to select the tools required for the job.  Mr Kennedy or someone else would be at the depot to assign the job and issue any necessary instructions.  Mr Kennedy’s usual practice was to cast an eye over the trailers to inspect the equipment selected by workers to ensure they had everything they would need.  Workers were expected to provide their own hand tools and cordless electrical tools.  Ladders and other equipment were provided by Kennedys.  In most jobs an SWMS or JSA would be completed but there was no evidence before me as to when a job would require this assessment, who decided whether an SWMS or JSA was required and who undertook that assessment when it was deemed necessary.  It was common ground that there was no SWMS or JSA for this job.  
100	The system of work then required workers, once allocated a task, to determine what equipment would be required.  This, in turn, would require the worker to decide the best means to perform the task.  In a small job like this, where an SWMS and a JSA were not completed, Kennedys expected the workers to complete a “yellow” which, as described above, is a risk assessment and control document.
101	Mr Stone assessed that the job should be done from the roof as this was the way that he had done many similar jobs in the past.  
102	Mr Spence said he had been on many asbestos roofs in his career.  I understand from this that it is not unusual to get on the roof in order to remove it.
103	Mr Kennedy did not suggest in his evidence that removing roofing from the roof was unusual or unacceptable practice.  His evidence was that he had concerns about the roof in this particular case, because of the age of the building.  Logically, those concerns must have arisen because it was usual or at least common to get on the roof.
104	I therefore conclude that removing roofing from the roof, as was done on this occasion, was the common and usual way of approaching the job and was not outside the standard practice of experienced asbestos removalists.  
105	The adequacy of the employer’s response to the risk requires analysis of the following questions:
(a)	Did the system of work, operating as it was designed to, adequately respond to the risk a worker was exposed to when removing a roof?
(b)	If the system of work was adequate, was it operating as it was designed to on 16 February 2010?
106	An employer is entitled to take into account a worker’s skills, training and experience when formulating a system of work.  However:
“... an employer cannot avoid that duty by relying solely upon the expertise of the employee. It may be that experience is a matter to take into account when formulating the system of work – but there must be consideration of the issue. Further, it may, in an appropriate case, be a relevant consideration to the issue of contributory negligence, but experience, simpliciter, of an employee cannot, and must not, relieve an employer of its obligation to give appropriate consideration to devising and implementing a safe system of work where there is, as there was in this case, a real risk of serious injury.” 
107	The defendant submits that Mr Stone was an experienced tradesman in asbestos removal.  It was not, the defendant submits, its obligation to “hold his hand” as to how to do a job when given a specific task.  
108	I accept that the defendant does not have to “hold the hand” of an experienced worker.  In some circumstances it may be appropriate to have workers determine for themselves the appropriate method of removing a roof, provided that the employer can be satisfied that the workers are trained in identifying the most appropriate method, having regard to the risks.
109	What was required on this job was an assessment of whether a departure from the usual manner of doing the job – that is, removing the roofing from the roof – was required.  It is a matter of agreement between the parties that the roofing could have been removed without getting on the roof.  
110	Mr Stone had obtained his “red ticket” for the safe removal of asbestos.  This included some component on working at heights.  He agreed that when working at heights he would have to take greater precautions than might otherwise be necessary.  He agreed he had no concerns working at heights and was aware of the occupational health and safety requirements he had to comply with when working at heights.  He said that on 90 per cent of the jobs he did, there were occupational health and safety measures in place when working at heights, but not on this job.  
111	Other than a component on working at heights, the asbestos training he had received was mostly focused on identifying different types of asbestos and the risks associated with its removal.  
112	Mr Stone said he had received no training in relation to roofing work from the defendant.  He said he may have had received an “induction in relation to roofing work” from the defendant but he could not recall this very well.  No evidence was led as to the content of any roofing induction provided by the defendant.
113	In the present case, the risk of injury from working on a roof is obvious.  The risk is that the worker will fall off or through the roof.  There are steps which will ameliorate the risk.  Some of those were taken by Mr Stone.  He looked at the battens that were holding the roof in place and made sure they did not look rotten.  Mr Stone agreed he would not get on a roof which had obviously rotten or defective supporting battens.  When on the roof Mr Stone walked along the line of fasteners, as they indicated where the battens were and therefore where the roof was strongest.  He was aware that asbestos roofing could be brittle and he would not get on a brittle roof.  However he did not consider that this roofing looked brittle.  These were measures that he was aware of and took to reduce the risk of injury from working on a roof.
114	There was no evidence that he had received any training in assessing risks including identifying whether battens were sound, whether asbestos was brittle or whether a structure was stable.  There was no evidence that he had received any training at all in relation to the removal or reduction of identified risks.
115	The “yellow” requires a worker to both identify the risks and identify the means to remove or reduce those risks.  Neither Mr Stone nor Mr Spence could recall the system of “yellows”.  There was no evidence that the “yellows” represent industry practice.  Having reviewed the “yellow” it is not clear to me how a worker could be expected to complete this form unless training in risk identification and reduction had been provided, or unless an SWMS had been completed so that a worker could use that as a reference.
116	It is for the defendant to design the safe work system.  This is a non-delegable duty.  If the defendant’s work system is to require the worker to undertake the identification of the risk and the removal or reduction of the risk, then, in order to fulfil its duty to the worker, the defendant must either provide the appropriate training, or satisfy itself that the worker had the appropriate training.  Mr Stone says he had not received any such training.  There was no evidence called by the defendant to establish that he had received such training.  I am satisfied that Mr Stone had not received any training in assessing and managing risk of the kind that would have enabled him to determine that it was unsafe to perform the job from the roof and that an alternative method should be used.
117	In this case the system of work required the workers, Mr Stone and Mr Spence, to attend the worksite, determine the risks and decide on the appropriate means of removing the roof.  Mr Stone was very experienced in asbestos removal.  Mr Spence had undertaken asbestos removal for about a year at the time of the incident and was a qualified plumber.  They performed the task as they had performed many other tasks both before and, according to Mr Spence, subsequently – that is, by getting up on the roof to remove the fasteners.  In the absence of obviously rotten battens or some other significant and obvious defect, it was reasonable for Mr Stone and Mr Spence to undertake the job as they usually did.
118	The system of work – that is, leaving the assessment of the risk and the determination of the method of removal to workers who had not been given any, or any adequate, training in assessing risks – did not adequately respond to the risk that Mr Stone was exposed to.  A safe system of work would have required a risk assessment of the job to be undertaken by someone with appropriate training in identifying and reducing risks.  It was reasonably foreseeable that a worker without such training would not identify the risk.  Experience in asbestos removal does not provide the necessary skills and experience to undertake this sort of risk assessment.
119	Accordingly the defendant has not discharged its obligation to provide a safe system of work to the plaintiff.
The Claim in statute
120	Mr Stone claims that the defendant breached its statutory duty pursuant to Part 3.3 of the Occupational Health and Safety Regulations 2007.  The relevant parts of the regulations provide as follows: 
“3.3.3	Hazard Identification
An employer must, so far as is reasonably practicable, identify any task that an employee is required to undertake at a workplace that involves a fall hazard including – 
(a)	on any plant or structure being constructed, demolished, inspected, tested, maintained, repaired or cleaned;
(b)	on a fragile, slippery or potentially unstable surface;
(c)	using equipment to gain access to an elevated level or to undertake the task at an elevated level;
(d)	on a sloping surface on which it is difficult to maintain balance;
(e)	in close proximity to an unprotected edge;
(f)	in close proximity to a hole, shaft or pit that is of sufficient dimensions to allow a person to fall into the hole, shaft or pit.
3.3.4	Control of risk
(1)	An employer must ensure that if an employee is required to undertake a task at the workplace that involves a risk of a fall, the risk is controlled, so far as is reasonably practicable, by arranging for the task to be undertaken – 
(a)	on the ground; or
(b) 	on a solid construction.
(2)	If it is not reasonably practicable to comply with subregulation (1) or only part of a task may be undertaken in accordance with subregulation (1) and a risk of a fall remains, the employer must reduce the risk, so far as is reasonably practicable, by ensuring that a passive fall prevention device is used.
(3)	If it is not reasonably practicable to comply with subregulation (1) and (2) or only part of a task may be undertaken in accordance with those subregulations, and a risk of a fall remains, the employer must reduce the risk, so far is reasonably practicable, by using a work positioning system.
(4)	If it is not reasonably practicable to comply with subregulation (1),(2) and (3), or only part of the task may be undertaken in accordance with those subregulations, and a risk of a fall remains, the employer must reduce the risk, so far as is reasonably practicable, by putting in place a fall arrest system.
(5)	If it is not reasonably practicable to comply with subregulation (1), (2), (3) and (4) or only part of a task may be undertaken in accordance with those subregulations, and a risk of a fall remains, the employer must reduce the risk, so far is reasonably practicable, by ensuring that – 
(a)	a fixed or portable ladder is used in accordance with regulation 3.3.5; or
(b)	an administrative control is used.
121	Regulation 3.3.5 provides that a fixed or portable ladder used to control the risk of a fall must be:
	(a) fit for the purpose; and
	(b) appropriate for duration of the task; and
	(c) set up in a correct manner. 
122	A fall is defined as a person’s involuntary fall of more than two metres.  Mr Stone submitted that the height of the shed was between two and three metres.  Mr Kennedy agreed that it was higher than two metres.
123	Mr Stone pleads that the defendant failed to undertake hazard identification or to control the risk.
124	The regulations are dependent on the employee being required to undertake a task that involves a fall hazard.  The relevant fall hazard in this instance is the risk of a fall from or through the roof.  I have found that Mr Stone was not required to undertake the task from the roof.  He was left to determine for himself the most appropriate method of removing the roofing.  The defendant submits that, as the plaintiff was not required to undertake the task from the roof, it is not in breach of its statutory duties.
125	As highlighted in Young v SMYBB:
“The Regulations are remedial legislation passed for the protection of employees and are construed to afford the protection that Parliament intended. They require an employer to undertake prescribed tasks in relation to certain hazards in the workplace. In Govic, when considering the statutory breach claim involving the manual handling provisions of the 2007 regulations, the court described the objective of the regulations as:
… providing for the health and safety of workplaces that involve hazardous manual handling by providing a double incentive – criminal and civil liability – for employers to comply with the prescribed safety requirements. 
Risk minimisation is central to the purpose of the regulations. The civil liability, like the criminal liability, arises from the employer’s failure to take the specific measures that are legislatively imposed. In explaining why the common law duty, which requires proof of a reasonably practicable precaution or system to establish breach, is not imported into an action for breach of statutory duty, Dixon J said in O’Connor v SP Bray:
… a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty is laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right. … The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.”
126	It was no part of the High Court’s reasoning that in bringing a claim for breach of the employer’s statutory obligation, it was for a plaintiff to undertake the very task which the regulation imposed on the employer – the identification of measures that might reduce the risk of injury.  The majority in Deal v Father Pius Kodakkathanath said of the statutory duty to control risk (albeit in relation to manual handling regulations):
“An employer cannot escape responsibility by identifying that there is one or even a number of ways of carrying out the task which do not attract such risks and assuming, without ensuring so far as is reasonably practicable, that the task will be carried out in those ways.  Unless and until the employer has done what is reasonably practicable to prevent the employee performing the task other than in the safest way, the employer will be potentially liable for breach of regs 3.1.1 and 3.1.2.”
127	The regulations require the identification of a fall hazard.  The defendant says it identified the fall hazard and instructed its workers to control the risk by working from a ladder.  However, as I am not satisfied that those instructions were given to Mr Stone, I am not satisfied that the hazard was identified and controlled as required by the regulations.  Requiring a worker to identify and ameliorate the hazard is insufficient.
128	The defendant was in breach of regulation 3.3.3 by failing to identify the fall hazard, and 3.3.4 by failing to control the fall hazard by requiring that the task be undertaken from a ladder.
129	I am satisfied that, had the defendant complied with the regulations, the fall would not have occurred and the injury would have been avoided.
Contributory negligence
130	The defendant claims that Mr Stone contributed to his injuries by his own negligence by:
(a)	if he was standing on the roof, then doing so contrary to instructions and when he knew it was unsafe to do so;
(b)	placing himself in a position of danger;
(c)	if the plaintiff required assistance and/or further instruction (which is not admitted), then:
(i)	failing to seek and/or obtain the same;
(ii)	failing to notify the defendant, its servants and/or its agents; and
(iii)	working or continuing to work in the circumstances;
(d)	failing to take reasonable care for his own safety;
(e)	failing to use his common sense and experience; and
(f)	failing to adhere to instructions properly or at all.
131	Mr Stone was standing on the roof, but I have found he was not instructed not to do so.  To the extent that he placed himself in a position of danger, he was putting himself, to his knowledge, in no greater position of danger than in many other similar jobs he had undertaken.  He was not aware that the battens would not support him, and therefore was not intentionally, or negligently, placing himself in a position of danger.
132	He did not require assistance, and there is no evidence that assistance would have made any difference to the outcome.  There was no dispute that this was a two-person job, and two people were in attendance, both of whom set about undertaking their task in the usual way.
133	There is no evidence that he failed to take reasonable care for his own safety.  The use of the “yellow” was inadequate in circumstances where there was no evidence that Mr Stone had ever been adequately trained in assessment of risk.
134	Mr Stone used his common sense and experience in undertaking the task.  His experience was that roofing of this kind would usually be taken off from the roof, not from underneath, and that walking along the fastener line was safer as his weight would be supported by the battens.  There is no evidence that his experience should have resulted in him undertaking the task in a different manner, nor that common sense would require this, in the absence of obviously rotten battens or another obvious defect.
135	Other than the evidence that Mr Kennedy told Mr Stone not to get on the roof, which I do not accept, there is no evidence that Mr Stone failed to adhere to instructions, or what instructions it is said that he failed to adhere to.
136	The claim of contributory negligence accordingly fails.
Causation
Medical history
137	Mr Stone previously had numerous shoulder dislocations following a traumatic dislocation in 2003 when he was stripping formwork for another company.  On that occasion his shoulder was enlocated at the Epworth Hospital, but re-dislocated within about 2 weeks, requiring treatment at the Austin Hospital.  Radiology from 17 February 2003 showed a depression within the superolateral left humeral head consistent with Hill-Sachs lesion.  No Bankart fracture was detected.  Throughout 2003 and 2004 he experienced multiple dislocations and eventually underwent a shoulder reconstruction with orthopaedic surgeon Mr Anthony Bonomo on 18 May 2004.  
138	Mr Stone said that after the 2004 surgery he did have a stable shoulder which was generally good.  He said he had no further dislocations of the shoulder until he fell through the roof.
139	There is no dispute that the fall caused Mr Stone’s shoulder to dislocate, albeit that there is some doubt as to whether this was from the force of the fall, or from falling on the shoulder after initially landing on his feet.
140	After his shoulder was enlocated at Williamstown Hospital, Mr Stone had a few days off work but was able to return within a couple of weeks on a graduated return-to-work program.  He says he did have some pain, but he got back to “full duties” before resigning on 9 July 2010.
141	Over the next five years he had what Mr Ash Chehata describes as “slow progression of recurrent dislocations”.  The defendant says he had no dislocations for five years, but this is not necessarily correct.  It appears he had no dislocations that required medical reduction until 8 April 2015.  However on that occasion the hospital records note “spontaneous dislocation of L shoulder.  Has had multiple previous.  Usually self-reduces.  Unable to this time.  Thinks was from rolling over in sleep.  Previous shoulder reco on same side – 10 years ago.  Says has dislocated 3 times this week.”  Mr Stone gave evidence that his shoulder had dislocated many times before the presentation to the Austin Hospital.
142	Following this attendance, he had numerous dislocations requiring medical intervention in fairly quick succession; on 18 April 2015, 18 May 2015, 5 September 2015, 12 September 2015 and 3 November 2015.  Most of these dislocations resulted from simply leaning forward, moving or putting his hand behind his head.  One occurred after he jumped a fence at home.  X-ray on 18 April 2015 confirmed a Hill-Sachs lesion within the humeral head.
143	On 30 May 2016 he dislocated his shoulder whilst in Loddon Prison.  Hospital records note that he fell onto an outstretched arm.  He denied in cross-examination that this occurred in the context of a fight in the prison and said that he had fallen playing basketball.
144	In addition to the dislocations that required medical reduction, Mr Stone said he had numerous dislocations which he was able to enlocate arising from non-traumatic incidents, such as rolling in bed.  These were spontaneous and unpredictable. 
145	He underwent further shoulder reconstruction surgery with Mr Bonomo on 7 March 2017 for arthroscopic anterior capsular repair.  Since that surgery he has had no further dislocations, though he says he is now very careful with his shoulder and is limited in his movements.  
146	In addition to his presentations to hospital for shoulder dislocations, he had various other health issues between 2010 and the surgery in 2017.  These included a laceration to his hand whilst pulling down a fence in 2011, multiple presentations to emergency with epigastric pain, a head injury from falling whilst intoxicated and a hand injury after being bitten. 
147	He also had various periods of incarceration and convictions for a variety of offences.  His complete work history is not before the Court, and he makes no claim for loss of earnings or loss of earning capacity.  However he was employed after 2010, including in manual work.  Whilst working at an abattoir in 2014, he was hit in the chest by a carcass and likely fractured his ribs.
148	Although he has had no further dislocations since his second surgery, he has ongoing pain and restriction of movement.  Any above-shoulder movement causes sharp pain.  His shoulder is worse in cold weather.
149	Since the surgery he has had other health complications.  In February 2018 he sustained a severe laceration of tendons in his hand, after he intervened in an assault and was attacked.  This has required multiple surgeries and an extended hospital stay.  He still has significant restrictions in the function of his hand and will require further procedures.
150	In summary, Mr Stone had multiple shoulder dislocations of his left shoulder prior to surgical reconstruction in 2004.  After that surgery he says his shoulder was “good” and he was able to work full-time in manual occupations.  He says he had no further dislocations after his surgical reconstruction, until the fall on 16 February 2010.  If he did have any dislocations during this period they appear not to have required any medical intervention.
Expert opinion
151	Mr Stone’s treating orthopaedic surgeon, Mr Bonomo described the shoulder joint as like a “big beach ball in a shallow dish”.  When a shoulder dislocates both the “ball” and the “dish” can show signs of trauma.  A Hill-Sachs lesion is the eponymous name for an impaction fracture of the humeral head ( the “ball”).  When the shoulder dislocates traumatically the humeral head gets compressed by the glenoid.  He described it as “a bit like crushing an eggshell”.  The presence of a Hill-Sachs lesion is a sign that the humeral head has been traumatically dislocated.  A Bankart lesion is a sign of damage caused to the glenoid at the front (the “dish”).  It might involve just the soft tissue or might also involve bone and ligaments.  There is a spectrum of severity of injury.  Where a Bankart lesion involves only soft tissue it will not be demonstrated on x-ray.
152	The radiology demonstrated a Hill-Sachs lesion in Mr Stone’s humeral head following the 2003 traumatic dislocation, but no Bankart lesion. 
153	Mr Bonomo explained that when the joint is very unstable it can become dislocated in almost any situation, for example rolling over in bed, or turning a steering wheel.  Multiple dislocations cause the surrounding ligaments to stretch and potentially traumatise the joint surfaces further.  This can irreversibly damage the cartilage and result in osteoarthritis of the shoulder.
154	Mr Bonomo describes the surgery he undertook in 2004 as the “gold standard” for persistent shoulder dislocations.  The surgery was an open anterior operation and he did not visualise the Hill-Sachs lesion during that operation, as it necessarily sits at the posterior of the humeral head.  The Hill-Sachs lesion remained unrepaired.  Mr Bonomo agreed that, as a general rule, the larger the Hill-Sachs lesion, the more likely the patient will experience persistent instability of the shoulder.  He said that if the lesion involved less than 25 per cent of the humeral head, then it is unlikely to lead to dysfunction of the joint and is “probably compatible with otherwise normal function”.  Lesions involving more than 25 per cent of the humeral head can leave a patient susceptible to future dislocations.  As a rule, a Hill-Sachs lesion is not repaired during reconstructive surgery “unless it’s massive”.  The focus during the reconstruction is on repair of the Bankart lesion at the front and addressing the capsulolabral detachment that allows the shoulder to fall out of the socket.  Every progressive episode of dislocation causes the surrounding ligaments to stretch more, which potentially further traumatises the joint surfaces.
155	Mr Bonomo agreed that once a shoulder has dislocated for the first time, there is a greater risk of a future dislocation.  That risk likely increases with each subsequent dislocation, though he said he was not aware of any study that conclusively proved the proposition but that it “seems a logical and plausible way of reasoning”. 
156	He agreed that recurrent dislocations were more likely in people under 40 than over 40, and the younger a person was when they experienced their first dislocation, the greater the risk of recurrent dislocation.  He agreed that it was “probably” the case that once a Hill-Sachs lesion had occurred, further dislocations were likely, even with surgery.  He agreed that even with skilful reconstructive surgery, a shoulder joint that had sustained multiple dislocations would probably never be restored to pre-injury condition.
157	At the time of the 2004 surgery Mr Bonomo assessed the Hill-Sachs lesion as “small”.  He said it was difficult to know whether the persistence of the Hill-Sachs lesion would have any role to play in any future dislocations.  He said that, barring another “traumatic event like falling out of a roof”, the shoulder should not dislocate spontaneously again and any such spontaneous dislocation would indicate surgical failure.  The reported failure rate following surgery is in the “single digit percentages”.  Following the surgery Mr Bonomo said that Mr Stone could have expected a “stable shoulder.  Not a normal shoulder, a stable shoulder”. 
158	Mr Chehata, orthopaedic surgeon, says “The idea that the fall was the sole cause or even a significant cause for the subsequent dislocations, reflects the level of instability that he had in the initial dislocation in 2003.  Although the fall from the two metre roof caused a dislocation, he was very likely always to suffer from further dislocations, or at the very least, had a high propensity to suffering further dislocations, as evidenced from the current nature of the dislocations prior from 2003”. 
159	Dr Chehata says the 2010 dislocation was “nothing more than… one more incident in the line of events”.  Barring a traumatic injury of the kind he sustained in 2010, Mr Chehata estimates that Mr Stone had a probability of further dislocation of between 15-20 per cent.  He says “even after the operative intervention, over the years he began to develop recurrent instability with further dislocations, with one of the episodes occurring when rolling over in bed …. This is a clear sign of recurrent instability with the initial surgery having failed”. 
160	However in a later report Dr Chehata concurs that “falling through the roof in 2009 [2010] was the inciting event that caused multiple dislocations, which could certainly be explained by the 2.5 metre fall and certainly would exacerbate a pre-existing dislocated shoulder and would certainly be a significant contributing factor to further recurrences.”
161	Dr Chehata’s opinion is not entirely consistent.  On the one hand he accepts that Mr Stone’s fall was a significant contributing factor to further recurrences, but also suggests it was just another incident in a line of incidents.  He seems to have disregarded Mr Stone’s history that, after the 2004 surgery, he had a period where he had no further dislocations, until he fell through the roof.  Further, an assessment that after the 2004 Mr Stone’s risk of recurrent dislocation was 15-20% does not equate with the 2010 dislocation being “one more incident in the line of events”.
162	Dr Peter Boys says the 2010 fall aggravated a “pre-existing but stable condition”. 
163	Dr Jonathan Hooper, orthopaedic surgeon, considers that Mr Stone has an excellent prognosis, and his condition is now stable.  He says he does have restrictions in use of his shoulder, particular heavy activities which would preclude him from some work.  He is at slight risk of developing arthritis.  He said that after an anterior capsular repair the healed scar tissue is not as elastic as normal tissue and this may make the shoulder slightly more liable to injury than a normal shoulder.
164	Dr Ralph Poppenbeek, occupational physician, opines that if the second injury (the 2010 dislocation) had not occurred Mr Stone would “very likely have not needed any further treatment for the left shoulder”.  He noted that after the first surgery Mr Stone had only very minor restrictions, was managing his pain well and retained a capacity for full-time employment.  He now had significant, permanent restrictions in his shoulder function, including social, domestic and recreational activity, as well as in relation to employment.  His prognosis is guarded and he has a risk of developing arthritis.  
Assessment
165	Whilst any shoulder that dislocates once has an increased risk of further dislocation, and each dislocation increases that risk, after reconstruction the risk is, in Mr Bonomo’s opinion “in the low single digits”.
166	In Mr Stone’s case, Mr Bonomo considered at the time of the 2004 surgery that the Hill-Sachs lesion was small, did not require repair, and reattachment of the capsulolabral complex at the front was sufficient to secure a stable shoulder.  It was put to him that the incidence of re-dislocation after surgical repair was, conservatively 15 to 20 per cent.  He said “that’s a little bit high but after the sort of procedure that was performed in 2004 the failure rates – the recurrence rates are relatively small.  It’s the gold standard operation.  Of course, barring another traumatic event like falling out of a roof and resulting in another injury.  The shoulder should not re-dislocate spontaneously”.  
167	In Mr Bonomo’s view, the shoulder was unlikely to dislocate without another traumatic event.  It was put to Mr Bonomo that, as Mr Stone’s fall did not cause his right shoulder to dislocate, a normal shoulder in such circumstances would not have dislocated.  Mr Bonomo agreed it was plausible that a normal shoulder would not have dislocated.  I do not understand Mr Bonomo to be conceding that this meant that the original surgery had failed.
168	The fact that the left shoulder was more likely to dislocate does not mean that the fall from the roof was just “one more event” in a line of episodes which would inevitably have caused Mr Stone to have a further dislocation after the 2004 surgery.
169	There is a distinction between a dislocation caused by a traumatic event, and a spontaneous dislocation.  A traumatised shoulder might be more prone to spontaneous dislocation but this does not mean that, after the 2004 surgery, Mr Stone’s shoulder would inevitably have a recurrence.  It must be the case that the surgical repair would afford some benefit by reducing the risk of recurrence otherwise there would be no point in undertaking the procedure.  Indeed Mr Stone got the benefit of surgery, which was a stable shoulder that did not re-dislocate for six years.
170	This is evidence that the shoulder surgery in 2004 was a success and that Mr Stone, whilst at some small risk of a recurrent spontaneous dislocation, had a stable shoulder that was functioning normally. 
171	He started having further spontaneous dislocations after the 2010 traumatic injury.  On the basis of Mr Bonomo’s description of the mechanism of injury, after suffering the traumatic injury in 2010, Mr Stone was at increased risk of spontaneous dislocation, a risk that increased with each recurrence.
172	Mr Bonomo did not agree that, if Mr Stone’s shoulder had become unstable following the fall in 2010, he would have expected further dislocations sooner than occurred.  He explained that, following a traumatic dislocation, the shoulder may become unstable, but may not re-dislocate because the patient is able to compensate and engage in avoidance behaviour – that is avoiding using the shoulder in a way that would exacerbate the instability or cause a dislocation.
173	I note that the timing of the next dislocation post the 2010 fall is not known.  The first dislocation that required medical intervention was on 8 April 2015, but Mr Stone’s evidence was that his shoulder had dislocated on multiple occasions before this attendance, and he had been able to deal with it himself.  This is supported by the hospital notes of that attendance.
174	In any event, there is no evidence of another traumatic incident after 2010 that would be the catalyst for the subsequent shoulder instability.  To the extent that the defendant suggests that Mr Stone’s injury was inevitable, it has not discharged its burden to exclude this accident as a, or indeed the, cause. 
175	The fall in 2010 caused a traumatic dislocation which, in turn, caused multiple further dislocations and ultimately required surgical intervention.
176	In assessing the damages appropriate as compensation for such an injury, I must consider the probability that Mr Stone would have suffered a further dislocation of his shoulder in any event against the injury that he sustained.
177	Barring a traumatic injury of the kind he sustained in 2010, Mr Chehata estimates that Mr Stone had a probability of further dislocation of between 15 to 20 per cent.  Mr Bonomo considers that too high.  He says the failure rate of the operation he performed is “single digit percentages”.  However these risk rates are across a whole population.  In assessing the probability as it relates to Mr Stone, I take into account that he had six years with no recurrence which strongly suggests that the operation had not failed.  Mr Bonomo says that Mr Stone would not have suffered the 2015 dislocations if he had not had the fall in 2010 and was unequivocal that the surgery in 2015 was because of the fall in 2010 and he would not have needed that surgery but for the 2010 fall.  Given that Mr Bonomo was the treating surgeon in both instances, I prefer his evidence to the evidence of Mr Chehata.
178	Mr Stone had a pre-existing vulnerability to his shoulder, with a relatively small risk of a further recurrence.  Had that risk eventuated, the outcome for Mr Stone would be less serious than the outcome he in fact experienced.  A spontaneous dislocation would be likely to cause less trauma to the shoulder and consequently less trauma to the adjacent surfaces, than the traumatic dislocation he experienced in 2010.  It would not necessarily lead to multiple further dislocations, or the need for surgical reconstruction.  
179	Applying the principles in Malec v JC Hutton Pty Ltd, I have taken into consideration the probability that Mr Stone would have had a recurrence of a dislocation in any event, but do not weigh this probability heavily.  
Consequences for Mr Stone
180	Including and subsequent to the 2010 fall, Mr Stone has sustained numerous shoulder dislocations requiring medical reduction.  These episodes were painful, sometimes excruciatingly so.
181	He has undergone surgery to repair the shoulder and although it appears that he has had a good result and has had no further dislocations, he has ongoing pain and stiffness, restriction of movement and loss of strength.  He has a sharp and stabbing pain in his shoulder blade and a “chill on the bone”.  He says that his shoulder injury has impacted his life in various ways, including his ability to engage in rough and tumble with his children when they were smaller.
182	I note that Mr Stone has other conditions that also have an impact on his life, including a knee injury and a significant hand injury.
183	Having considered all the medical material and the evidence of Mr Stone, I consider that $175,000 is an appropriate award of damages for pain and suffering.