Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd

COMPLETE SCAFFOLD SERVICES PTY LTD v ADELAIDE BRIGHTON CEMENT LTD AND HENRY
[2001] SASC 199

Full Court: Doyle CJ, Williams and Martin JJ

1. DOYLE CJ           Mr Henry is a boilermaker employed by Allied Engineering Pty Ltd (“Allied”).  In 1994 Allied entered into a contract with Adelaide Brighton Cement Ltd (“ABC”) to carry out maintenance work for ABC at its premises.  In connection with that maintenance work, ABC contracted with Complete Scaffold Services Pty Ltd (“Scaffolding”) for Scaffolding to provide and to erect scaffolding at ABC’s premises as might be required during the course of the maintenance work. 

2. In September 1994 Mr Henry was working at ABC’s premises, in the course of his employment with Allied, carrying out maintenance work for ABC.  He had to carry out some work inside a large chute.  He needed scaffolding inside the chute, to enable him to work inside the chute and to reach the upper part of the chute.  He asked for scaffolding, and two planks were placed by others inside the chute, across a tapered section of the chute.  The planks were resting on the sides of the chute.  Mr Henry climbed into the chute and stood on the planks to do some work.  The planks were unstable.  Mr Henry fell and was injured.

3. He brought an action in the District Court claiming damages. He did not sue Allied, because s 54 of the Workers Rehabilitation and Compensation Act provides that in the circumstances in question no liability attached to Allied.

4. Mr Henry obtained judgment for damages to be assessed against Scaffolding.  The Judge found that the planks were put inside the chute by employees of Scaffolding, and that the employees were careless because the planks were unstable and unsafe.  I gather that it was never disputed that the planks were unsafe.  The issue was who put them there, assuming the accident happened as described by Mr Henry.  Mr Henry’s claim against ABC was dismissed.  The Judge found that ABC took all reasonable precautions for the safety of workers, bearing in mind that the work in question was being carried out by a specialist contractor.  The Judge held that ABC was not in breach of any statutory requirements relating to safety. 

5. Scaffolding now appeals against the finding that it is liable.  It also appeals against the Judge’s decision that, if it is liable, it is not entitled to contribution or indemnity from ABC.  It claims that ABC was in breach of its obligations to Mr Henry.  Mr Henry appeals against the dismissal of his claim against ABC.  ABC argues that if it is liable to Mr Henry, or to contribute to the damages payable by Scaffolding, ABC is entitled to be indemnified by Scaffolding pursuant to a provision in the contract between ABC and Scaffolding.

   The accident

6. Mr Henry’s action was not instituted until September 1997, some three years after the accident.  The action came to trial in the District Court in May 2000, almost six years after the accident.  On several occasions…