Coote (by his next friend Stephen Desmond Coote) v Terry's Crane Hire Pty Ltd
[2017] WADC 28
•3 MARCH 2017
COOTE (by his next friend STEPHEN DESMOND COOTE) -v- TERRY'S CRANE HIRE PTY LTD [2017] WADC 28
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 28 | |
| Case No: | CIV:3722/2012 | 13-15 DECEMBER 2016 | |
| Coram: | BOWDEN DCJ | 3/03/17 | |
| PERTH | |||
| 54 | Judgment Part: | 1 of 1 | |
| Result: | Apportionment 60% Terry's Crane Hire Apportionment 40% Frontline Roofing | ||
| PDF Version |
| Parties: | BENJAMIN STEPHEN COOTE (by his next friend STEPHEN DESMOND COOTE) TERRY'S CRANE HIRE PTY LTD CGU INSURANCE LTD DEBRIS PTY LTD |
Catchwords: | Liability of main contractor to independent contractors and their employees and subcontractors Occupier's liability Effect of conviction under Occupational Health and Safety Act 1984 Section 601AG Corporations Act 2001 (Cth) Breach of statutory duty Whether injured person was an employee or independent contract of crane hire company Apportionment |
Legislation: | Civil Liability Act 2002(WA) Corporations Act 2001 (Cth) Occupational Health and Safety Act 1984 (WA) |
Case References: | Accident Compensation Commission v Odco Pty Ltd [1990] 64 ALJR 606 ACE Insurance Limited v Trifunovski [2013] FCAFC 3 Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; (2005) 62 NSWLR 148 Anyco Pty Ltd v Kleeman [2008] WASCA 30 Australian Mutual Providence Society v Allan (1978) 52 ALJR 407 Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 Department of Housing and Works v Smith [No 2] (2010) 41 WAR 217 Department of Housing and Works v Smith [No 2] [2010] WASCA 25 Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 Fairwater Pty Ltd v QBE Insurance (Australia) Ltd [2012] WASCA 270 Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Howells v Murray River North Pty Ltd [2004] WASCA 276 Humberstone v Northam Timber Mills (1949) 79 CLR 389 Imbree v McNeilly; McNeilly v Imbree [2008] HCA 40 Insurance Commissioner v Joyce [1948] HCA 17 Jeffries v Fisher [1985] WAR 250 Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44 Kondis v State Transport Authority (1984) 154 CLR 672 Laoulach v Ibrahim [2011] NSWCA 402 Lyle v Soc [2009] WASCA 3 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Massey v Crown Life Insurance Co [1978] 2 All ER 576 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Mickelberg v Director of Perth Mint [1986] WAR 365 Morrison v De Bono [2005] WASC 271 MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 Neindorf v Junkovic [2005] HCA 75 O'Connor v SP Bray Limited [1937] HCA 18; (1937) 56 CLR 464 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation [No 3] [2011] FCA 366 Percy v Central Control Financial Services Pty Ltd [2000] QSC 129 Podrebersek v Australian Iron and Steel Pty Ltd [1985] 59 ALR 529 Reilly v Devcon Australia Pty Ltd [2007] WASC 106 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 238 ALR 761 Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] QCA 18; [2001] 1 Qd R 518 Schulz v Schmauser [2000] QCA 17; [2001] 1 Qd R 540 Shire of Manjimup v Cheetham [2010] WASCA 225 Sibley v Kais (1967) 118 CLR 424 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Stratton v Van Driel Ltd [1998] VSC 75 Strong v Woolworths Ltd [2012] HCA 5 Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 704 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Victorian Workcover Authority v Stoddart (Victoria) Pty Ltd [2015] VSC 149 Western Australia v Watson [1990] WAR 248 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
TERRY'S CRANE HIRE PTY LTD
First defendant
CGU INSURANCE LTD
Second defendant
DEBRIS PTY LTD
Third defendant
Catchwords:
Liability of main contractor to independent contractors and their employees and subcontractors - Occupier's liability - Effect of conviction under Occupational Health and Safety Act 1984 - Section 601AG Corporations Act 2001 (Cth) - Breach of statutory duty - Whether injured person was an employee or independent contract of crane hire company - Apportionment
Legislation:
Civil Liability Act 2002(WA)
Corporations Act 2001 (Cth)
Occupational Health and Safety Act 1984 (WA)
Result:
Apportionment 60% Terry's Crane Hire
Apportionment 40% Frontline Roofing
Representation:
Counsel:
Plaintiff : No appearance
First defendant : Mr G Pynt
Second defendant : Mr J Ley
Third defendant : No appearance
Solicitors:
Plaintiff : Not applicable
First defendant : Mills Oakley
Second defendant : Greenland Legal Pty Ltd
Third defendant : Not applicable
Case(s) referred to in judgment(s):
Accident Compensation Commission v Odco Pty Ltd (1990) 64 ALJR 606
ACE Insurance Limited v Trifunovski [2013] FCAFC 3
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; (2005) 62 NSWLR 148
Anyco Pty Ltd v Kleeman [2008] WASCA 30
Australian Mutual Providence Society v Allan (1978) 52 ALJR 407
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Department of Housing and Works v Smith [No 2] (2010) 41 WAR 217
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Fairwater Pty Ltd v QBE Insurance (Australia) Ltd [2012] WASCA 270
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Howells v Murray River North Pty Ltd [2004] WASCA 276
Humberstone v Northam Timber Mills (1949) 79 CLR 389
Imbree v McNeilly; McNeilly v Imbree [2008] HCA 40
Insurance Commissioner v Joyce [1948] HCA 17
Jeffries v Fisher [1985] WAR 250
Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44
Kondis v State Transport Authority (1984) 154 CLR 672
Laoulach v Ibrahim [2011] NSWCA 402
Lyle v Soc [2009] WASCA 3
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Massey v Crown Life Insurance Co [1978] 2 All ER 576
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Mickelberg v Director of Perth Mint [1986] WAR 365
Morrison v De Bono [2005] WASC 271
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Neindorf v Junkovic [2005] HCA 75
O'Connor v SP Bray Limited [1937] HCA 18; (1937) 56 CLR 464
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation [No 3] [2011] FCA 366
Percy v Central Control Financial Services Pty Ltd [2000] QSC 129
Podrebersek v Australian Iron and Steel Pty Ltd [1985] 59 ALR 529
Reilly v Devcon Australia Pty Ltd [2007] WASC 106
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 238 ALR 761
Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] QCA 18; [2001] 1 Qd R 518
Schulz v Schmauser [2000] QCA 17; [2001] 1 Qd R 540
Shire of Manjimup v Cheetham [2010] WASCA 225
Sibley v Kais (1967) 118 CLR 424
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Stratton v Van Driel Ltd [1998] VSC 75
Strong v Woolworths Ltd [2012] HCA 5
Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 704
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Victorian Workcover Authority v Stoddart (Victoria) Pty Ltd [2015] VSC 149
Western Australia v Watson [1990] WAR 248
1 BOWDEN DCJ: In this action the first defendant, Terry's Crane Hire Pty Ltd, (TCH) has accepted liability to Mr Coote in negligence for the serious injuries suffered by him on 20 September 2010.
2 TCH says the Mallon Company Pty Ltd trading as Frontline Roofing (Frontline) is also liable to Mr Coote for those injuries. At the relevant time Frontlines' insurer was the second defendant (CGU).
3 Frontline was deregistered pursuant to s 509 of the Corporations Act 2001 (Cth) and CGU was substituted for Frontline for the purposes of court proceedings pursuant to s 601AG of the Corporations Act (Cth).
General background
4 It is not in dispute that in March 2010 a severe hailstorm occurred in the Perth metropolitan region.
5 Pelican Manufacturing Pty Ltd (the owner) owned a building at 7 Rue Street, Osborne Park which was used as a workshop (the workshop). The storm damaged the roof of the building. Their insurer, coincidently CGU, engaged Frontline to replace the roof in or about August 2010.
6 Frontline subsequently engaged Debris Pty Ltd (the roofing contractor) to carry out the work which included replacing asbestos sheets on the sawtooth roof of the workshop (the roof) and performing work on the adjoining patio extension roof (the patio roof).
7 Frontline also engaged TCH to provide a crane, a crane operator and a dogman to assist the roofing contractors with their work.
8 Tragically on 20 September 2010 Mr Coote, then 18 years of age, was working as the crane's dogman, when he stepped onto a skylight on the patio roof and literally fell through it about 3 m to the concrete floor below and sustained serious injury.
9 TCH admitted its negligence caused the serious injuries suffered by Mr Coote. Mr Coote's claim against TCH was compromised with a deduction for 15% for his contributory negligence.
10 Pursuant to s 7(1)(c) and s 7(2) of the Law Reform (Contributory Negligence and Joint Tortfeasors Contribution) Act (WA), TCH say that Frontline was also liable to Mr Coote for causing that accident and they should contribute towards TCH's liability to Mr Coote in an amount the court deems just and equitable.
11 TCH claims Frontline was liable to Mr Coote on the common law principles of negligence and pursuant to the Occupiers' Liability Act 1985 (WA) (OLA) and as a result of their breach of statutory duty under the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations) and in particular reg 3.57.
The witnesses
12 TCH called five witnesses:
1. Mr John Bromberger, the controlling mind of Pelican Manufacturing Pty Ltd.
2. Mr Terry Brown, a director and shareholder and in effect the controlling mind of TCH.
3. Mr Roger Houghton, a director and shareholder and in effect the controlling mind of the roofing contractor Debris Pty Ltd. He was working on site at the time of Mr Coote's fall.
4. Mr Michael Rylance, an employee of TCH.
5. Mr Ray Houghton, the son of Mr Richard Houghton. He was working on site at the time of Mr Coote's fall.
13 The second defendant called no evidence.
14 I found each of the five witnesses honest and accept each as a witness of the truth doing their best to assist the court.
The factual background
15 Many facts were not in dispute although the inferences to be drawn from them are.
16 The evidence satisfies me that in March 2010 a severe hailstorm caused damage to the workshop roof. The roof structure consisted of two sawtooth sections covered in asbestos and the adjoining flat patio roof. Two distinct areas of the patio roof were covered in skylights made of either fibreglass or polycarbonate sheets. One of those areas was towards the right hand side of the patio roof the other to the left hand side. The relevant skylight is on the right hand side as shown in exhibit 187. Throughout this judgment a reference to the damaged skylight refers to the right hand skylight.
17 In commercial premises skylights normally (ts 202) have wire mesh installed on their underside as a safety barrier with the aim of preventing persons who may fall through them falling further to the ground (ts 124 - 125). The skylights at the workshop did not have mesh fitted under them. During the storm hailstones penetrated the skylights leaving numerous holes in them.
18 After the hailstorm but prior to 16 April 2010 Mr Bromberger saw an advertisement for Frontline and contacted Mr Moore, the principal of Frontline, requesting a quote to replace the workshop roof. At that time Frontline advertised itself as providing roofing services including 'asbestos removal, colour bond and zincalume, tile restoration, asbestos coating, insulation' (exhibits 1 - 8). By such advertisements Frontline held themselves out as roof contractors. The advertisements made no reference to their use of subcontractors.
19 Mr Bromberger's evidence was that the re-roofing of the workshop encompassed the removal of the asbestos from the sawtooth roof, the replacement of the two skylights on the patio roof and replacement of the glass window on the perpendicular drop down from the sawtooth roof. Frontline's tax invoice for performing this work is exhibit 31.
20 On or about 16 April 2010 Mr Moore attended the workshop and prepared a rough plan of the roof. That plan had endorsed on it 'damaged sheets on front section, removal and dump old asbestos and install zinc' (exhibit 11). He subsequently forwarded a copy of that plan to Mr Houghton Senior, the roofing contractor, so he could measure and provide a quote to Frontline for the roofing work. In effect the roofing contractor was sub-contracting to Frontline. Mr Houghton Senior recalled receiving that plan months before the job started.
21 On or about 16 April 2010 Frontline provided a quote (exhibit 17) for the roofing work which included roof replacement, removing asbestos and installing zincalume and clear sheeting on the front section (patio roof).
22 Prior to the work commencing on or about 20 August 2010 Frontline's Mr Moore, the roofing contractors, Mr Houghton Senior and Mr Bromberger meet with each other and gained access to the roof of 5 Ruse Street, Osborne Park so they could view the roof of the workshop. At that meeting the removal of a large aerial from the workshop roof was discussed as was the insulation of wall flashings (the meeting). Mr Bromberger recalled that this was the only occasion that Mr Moore came to the workshop prior to the accident.
23 After the meeting Frontline provided a further quote (exhibits 22 and 23) to re-roof the workshop which included roof replacement, removing the asbestos, installing insulating corrugated zincalume sheeting and some clear sheeting on front patio roof, removing and dumping old material and the provision of special flashings. That revised quote was accepted by CGU who engaged Frontline to perform those works.
24 Frontline then engaged the roofing contractor to perform the roofing work and engaged TCH to provide a crane, crane driver and dogman to assist the roofing contractors perform the work.
25 Prior to the re-roofing work commencing, Mr Houghton Senior performed a site visit which involved obtaining more exact roof measurements and preparing a more detailed measurement diagram. He could not recall the date this occurred. This visit was in addition to his attendance at the meeting. Mr Houghton Senior's measurement diagram is exhibit 10. He then sent his materials order to a supplier and the materials were supplied to him on the account of Frontline.
26 Mr Bromberger, after discussions with Mr Moore, moved his business from the workshop to 5 Ruse Street so that the re-roofing work could be carried out at the workshop (ts 40).
27 Other than engaging TCH to assist the roofing contractors Frontline left the re-roofing work entirely up to the roofing contractor. Frontline provided no instructions as to how they were to perform the work nor did they provide any instructions in relation to safety issues.
28 Frontline essentially advertised for work, gave quotes and then subcontracted the work out. Frontline did not perform any roofing work itself.
29 The roofing contractor team was experienced and competent. Mr Houghton Senior has over 30 to 40 years' experience. Mr Houghton Junior has worked approximately six or seven years as a roofing contractor.
30 Frontline were aware the skylights required replacing as is evidenced by Mr Moore's notation on exhibit 11, that there were 'damaged sheets on the front section'. I am satisfied that this referred to the skylights. Further, I am satisfied that the reference in exhibits 22 and 23 to 'clear sheeting on front section as discussed' (6 sheets at 7 m) is a reference to replacing the existing skylights with new skylights of 'clear sheeting'.
31 Mr Bromberger was aware that Mr Houghton Senior would be the one carrying out the roofing work.
The events of 20 September 2010
32 On 20 September 2010 the roofing contractor's team attended the site to commence work at about 7.00 am to 7.30 am. The team consisted of four persons Mr Houghton Senior, his son and two others.
33 Mr Houghton Senior said he considered he was in charge of the job and the safety of the roofing team and he took active and appropriate steps to ensure the team's safety.
34 All four members of the roofing team performed a job safety evaluation by walking around the site examining the workshop and underneath its roof. A job safety evaluation form (exhibit 165) was completed by Mr Houghton Junior. That form identified the potential safety hazards as the rusty sheets on the roof access and the skylights on the patio roof. The form is endorsed 'Be aware'. The team identified an appropriate way to access the roof from a ladder. Mr Houghton Senior also identified the roof's strong point, which was supported by metal trusses, as the area where the removed asbestos was to be stacked and wrapped before being removed by the crane. He also identified a safe manner for the roofing team to perform their work.
35 Mr Houghton Senior noticed the damaged skylight. He said the skylights were typical of old fibreglass sheeting, pretty old and they had holes in them from the hailstorms. He was satisfied that the roofing team were able to perform their task of removing and replacing the roof without the need to walk over or near the skylights. Mr Houghton Junior gave similar evidence.
36 The roofing team were aware that a crane, crane driver and dogman (the crane team) would be provided to assist them and would attend later that day. They had nothing to do with organising the crane team which was left to Frontline.
37 Mr Houghton Senior said he placed 'asbestos' signs and barrier tape around the area so that only authorized persons could come on site and commence work. He 'guessed' that the owner and Frontline were the only people that could authorize other trades to enter the site (ts 130). His team then attached the ladder to the patio roof to provide access and went up the ladder onto the roof and started removing asbestos from the sawtooth roof. As they removed the asbestos they pulled it to the roof's strong point, which was near the air-conditioning unit, and stacked and wrapped it into packs ready for removal by the crane. The team continued to work this way for around 2 - 3 hours before the crane arrived.
38 Mr Houghton Senior said that they removed the asbestos first as they did not want to remove the tin sheeting from the patio roof and replace it with new sheets, and then remove the asbestos from the sawtooth roof because there would be the risk that asbestos fibres would go over the recently laid patio sheets. Mr Houghton Senior wanted to remove the asbestos, put it into the bin and get it off the site as soon as possible.
39 Upon the crane's arrival Mr Houghton Senior removed the tape barriers to allow access to the crane and then immediately reinstated those barriers. He advised the crane driver that he wished to stack, wrap and remove one roofing pack at a time, even though it would take longer, to ensure that there was only the weight of one pack at any time on the roof's strong point.
40 Upon attending the site neither the crane driver nor Mr Coote sought any information from the roofing contractors about the state of the roof or performed any job safety analysis that involved examining the roof.
41 Mr Houghton Senior said he did not see Mr Coote and had no discussions with him. He said he was probably expecting a dogman (ts 135) but did not know whether the dogman would come onto the roof because there had been no discussions with anybody about that occurring.
The fall
42 The effect of Mr Houghton Senior's evidence was that although he had some difficulty with his memory he recalled Mr Coote coming onto the roof a few times. He said that when Mr Coote first appeared on top of the ladder he immediately covered his nose with part of his shirt and was told to go to the trailer and obtain a safety mask. Mr Coote complied immediately and returned to the top of the ladder.
43 Mr Houghton Senior said that when Mr Coote first stepped on the roof he was told to watch out for the skylights (the first warning) and to walk straight from the ladder across the patio roof to an area on the main roof near the air-conditioning unit where the asbestos was being stacked and wrapped before removal by the crane and then to turn and walk along the main roof line to the parapet wall to the area where the crane was landing the new sheets.
44 He said that after Mr Coote came onto the roof the roofing team slung the load and Mr Coote guided the crane then went down the ladder to the bin where the crane was depositing the asbestos. He could not remember exactly how many asbestos packs the roofing team sent down this way but said it would have been at least half a dozen. He said the team eventually removed all the asbestos from the rear sawtooth roof.
45 Mr Houghton Senior said that on one occasion when Mr Coote was on the roof he started to veer off slightly toward the skylight so Mr Houghton Senior yelled out to him 'stay on the base come straight towards the asbestos sheets' which were stacked over near the air-conditioning unit on the roof's strong point and 'don't go off to the side' (veering - the second warning).
46 On another occasion Mr Houghton Senior said he was working on the front sawtooth roof wrapping some asbestos near the air-conditioning unit and saw Mr Coote came up the ladder and walk directly over to the parapet wall walking across the skylight in the process. Mr Houghton Senior yelled at Mr Coote (the third warning) who continued walking over to where the pack was being landed, on the right hand side of the roof, looking from the street, near the parapet wall, and guided the crane to put the pack down.
47 Mr Houghton Senior carried on wrapping the asbestos sheets and noticed that Mr Coote appeared to be having trouble with the ropes around the pack that had just been landed. He said Mr Coote then walked, almost like a run, straight back and 'sort of tripped on the bottom of the pack or something' and went head first straight through the skylight (ts 144).
48 Mr Houghton Junior's evidence confirmed his father's account of Mr Coote appearing on top of the ladder without a mask and being told to go and get one, doing so and then coming back up the ladder.
49 Mr Houghton Junior said that when Mr Coote came back up the ladder there was a pack of roofing sheets being landed near the parapet wall and Mr Coote landed that pack whilst on the ladder. He said he did not think Mr Coote came up onto the roof whilst the asbestos was being lifted off but remained on the ladder 'doing' his communication signals.
50 Mr Houghton Junior said Mr Coote came up the ladder and onto the roof when the second pack of roofing tin was being landed. Once on the roof he said Mr Coote walked diagonally across the patio roof and then jumped across the skylight. Mr Houghton Junior said he and his father both told Mr Coote not to do so with Mr Houghton Junior saying something along the lines of 'you should not go near the skylights'.
51 Mr Houghton Junior said Mr Coote continued to walk to an area near the parapet wall and landed a load of roofing sheets. He then walked on the safe access path from the parapet wall area along the main roof line towards the air-conditioning unit. He then turned and walked across the patio roof over the skylight to an area near the parapet wall where the crane was lowering a new load.
52 Mr Houghton Junior said when Mr Coote walked over the skylight he did so by walking along the line of screws which penetrate the skylight into the purloins below. He said his father told Mr Coote off for having walked across the skylight. I am satisfied that this is the same incident Mr Houghton Senior described when he said he saw Mr Coote walk across the skylight.
53 Mr Houghton Junior said that Mr Coote helped to land that load and then swivelled doing a 180 degree turn on one foot and walked straight onto the skylight sheeting and fell through the skylight falling feet first with his head skimming the metal sheet as he fell (ts 193).
54 There are some differences in the descriptions of what occurred. Mr Houghton Senior saw Mr Coote walk across the skylight on one occasion before he fell. Mr Houghton Junior says Mr Coote walked across the skylight on one occasion before he fell and jumped across it on another occasion. These differences are to be expected as both men were on the roof working observing events occurring at different times.
55 I accept Mr Houghton Senior's evidence that he told Mr Coote from the outset the safe way of traversing the roof and to stay away from the skylights.
56 I accept his evidence that on another occasion when Mr Coote appeared to be veering from the safe route, he reminded him of the need to walk directly from the ladder to the area near the air-conditioning unit.
57 I find that Mr Coote walked across the skylight prior to falling through it on at least one occasion and was reprimanded by both Mr Houghton Senior and Mr Houghton Junior for doing so.
58 I find that Mr Coote fell through the skylight shortly after he landed a load on the roof. In the process of unslinging the load or shortly after he unslung the load Mr Coote either stumbled or made a half turn and stepped back onto the skylight. I find that Mr Coote had on a prior occasion deliberately walked across the skylight however I am satisfied on the balance of probabilities that on the occasion he fell he stepped onto the skylight inadvertently, due either to his keen desire to get on with the job or after becoming distracted having experienced some difficulty with the unslinging of the load (the circumstances of the fall).
59 I accept Mr Houghton Junior's evidence that Mr Coote jumped across the skylight although this was not seen by Mr Houghton Senior.
60 I find that the skylight danger was bought to Mr Coote's attention as soon as he appeared on the roof and in total on at least three occasions (when he first got on the roof, when he appeared to be veering, and on the first occasion he walked across the skylight).
61 The day after the accident the damaged skylight was removed and replaced with a new skylight and safety mesh was installed under it. Exhibit 34 shows the charge for the safety mesh was approximately $100.
62 I find that the roofing team were not aware that Mr Coote would come onto the roof until Mr Coote set foot on the roof. I accept Mr Houghton Senior's evidence that he considered he only had control of the roofing team who worked for him. Mr Coote was not part of the roofing team and Mr Houghton Senior assumed that as Mr Coote was a licensed dogman he knew the safe way to perform his job.
63 I find that TCH did not inspect or perform any safety assessment on the site prior to the crane attending the site. Nor did they give any instructions or training to Mr Coote in relation to the work to be performed at the workshop. TCH's standard safety analysis involved keeping a written plan on the wall in their premises and another in the cab for the crane driver. TCH's standard safety assessment or plan did not involve the crane driver or dogman or anyone else on behalf of TCH visiting the site to identify potential hazards either before or after the crane arrived on the site.
64 I find that Mr Coote was a young enthusiastic worker. He was well motivated to work. Mr Brown first met Mr Coote through the latter's father who asked if he could find a job for his son. Mr Brown said that if Mr Coote obtained a dogman's ticket he could get some work. Mr Coote then obtained his dogman's ticket, commenced work for another company and approached Mr Brown to see if he could get more work. He attended Mr Brown's office for an interview and was engaged by TCH.
65 Mr Houghton Senior said that Mr Coote was fast, working at times at '100 miles an hour' and when he fell through the skylight was almost running (ts 144). Mr Houghton Junior said Mr Coote appeared to be in a hurry or rush (ts 214).
66 I find that immediately before he fell through the skylight Mr Coote was performing his role as a dogman in guiding a load from the ground to the roof.
The issues to be determined in this trial are:
1. Did Frontline as principal contractor have a duty of care to Mr Coote? If so:
2. The scope of that duty.
3. Did Frontline breach their duty of care?
4. Was Frontline an occupier of the workshop under the OLA?
5. If so, did Frontline breach any duty owed to Mr Coote under the OLA?
6. Did Frontline breach a statutory duty owed to Mr Coote and if so, did that breach give Mr Coote a civil right of action?
7. If Frontline did breach their duty as principal contractors or occupiers or breached a statute giving a civil right, did that breach cause the injuries sustained by Mr Coote?
8. Was Mr Coote an employee of TCH or an independent contractor?
9. What is the appropriate apportionment of damages?
Did Frontline have a duty of care to Mr Coote as principal contractors ?
67 There is no dispute that Frontline engaged independent contractors to re-roof the workshop.
68 TCH's claim is not based on Frontline's vicarious liability or delegable or non-delegable duties or their liability for the negligence of their independent contractor but rather on a breach of Frontline's common law duties. TCH say that Frontline as the principal contractor owed a duty of care to the independent contractors they engaged and those contractors' employees and subcontractors.
69 The law in this regard is well established. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.
70 The principal was explained by Brennan J in Stevens v Brodribb Sawmill & Co Pty Ltd [20]:
An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 59 ALJR 564, at p 587; [1985] HCA 41; 60 ALR 1, at p 42) and his duty is more limited than the duty owed by an employer to an employee.
The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility. Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 [20].
71 Similarly, in Stevens v Brodribb Sawmill & Co Pty Ltd, Mason CJ said (26):
If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.
72 There is no doubt that Frontline was the principal contractor. Mr Bromberger contacted Frontline to repair the roof. Frontline met the owner and roofing contractor on site. Frontline prepared a rough plan of the roof for the roofing contractors. Frontline provided quotes to the owner's insurer company, the insurer authorized Frontline to proceed. Frontline engaged independent contractors to perform the work. Frontline organised materials for the roofing contractor (ts 132). They engaged the roof contractors to re-roof the premises and TCH to provide a crane, a crane driver and a dogman to assist in that work. They instructed the roofing contractors when to start the work (ts 133).
73 Frontline had a duty to use reasonable care in organising the activity to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised. Mr Coote, irrespective of whether he is an employee of, or independent contractor to, TCH was engaged in the activity that Frontline organised.
The scope of Frontline's common law duty of care and did they breach it?
74 The court's inquiry over a breach of duty must identify a reasonable person's response to the foresight of the risk of occurrence of the injury: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 238 ALR 761.
75 The steps a reasonable person should have taken in response to a foreseeable risk of injury is to be examined prospectively and not retrospectively and not with the benefit of hindsight: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [105], [124], [126] (per Hayne J); Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 [31] - [40].
76 Consideration must be given to the possibility of thoughtlessness, inadvertence or carelessness on the part of people who Frontline knew or ought to have known would be on the roof: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 312; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12].
77 Section 5B(1) and s 5B(2) of the Civil Liability Act 2002 (WA) (CLA) provides a person is not negligent in failing to take precautions against the risk of harm unless the risk was one of which the person knew or ought to have known, the risk was not insignificant and, in the circumstances, a reasonable person in the person's position would have taken those precautions.
78 In determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider, amongst other relevant things, the probability that the harm would occur if care were not taken, the likely seriousness of the harm and the burden of taking precautions to avoid the risk of harm and the social utility that creates the risk of harm.
79 Section 5C of the CLA provides that a determination that negligence caused particular harm comprises firstly, that the negligence was a necessary condition of the occurrence of the harm (factual causation). Secondly, the court must ask is it appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). In determining the scope of liability, the court must consider amongst other relevant things whether or why responsibility of the harm should be imposed on the negligent party.
80 Section 5N of the CLA relevantly provides that, in proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves, on the balance of probabilities, that he or she was not aware of the risk.
81 Section 5O provides, a person does not owe a duty of care to another person to warn of an obvious risk to that other person.
82 Section 5E, s 5F and s 5M provide an obvious risk to a person who suffers harm is one that, in the circumstances, would have been obvious to a reasonable person in the position of that person and include risks that are patent or a matter of common knowledge. It can include a risk that is not prominent, conspicuous or physically observable and a risk which has a low probability of occurring. These sections require consideration of the position of the person who suffers harm (subjective) and a reasonable person in that position (objective). That person is assumed to be in the circumstances in which the harm was in fact suffered and to have the knowledge and experience of the person who suffered it: Streller v Albury City Council [2013] NSWCA 348 (23 October 2013). Something is obvious if it is clearly apparent or easily recognised or understood: Laoulach v Ibrahim [2011] NSWCA 402 [79] - [80]. Whether a risk of harm is 'obvious' is to be determined by reference to the circumstances of the case.
83 The obviousness of the risk of falling through the skylight is relevant to the reasonableness of a reasonable person's response to the risk involved: Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 904 [36].
84 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 determined that at common law the existence of an obvious risk to a plaintiff did not negate the general duty that the defendant owed to the plaintiff. It is a factor that is relevant to whether there has been a breach of the duty of care.
85 Frontline's duty was to use reasonable care in organising the activity to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised.
86 The risk of harm alleged by TCH against which Frontline did not take reasonable precaution was the foreseeable risk that a person engaged in the re-roofing work would walk on the damaged skylight and fall through it and sustain serious injury.
87 TCH's case is that precautions which should have been taken was to ensure that the damaged skylights were planked over or had wire mesh installed under or over them or had some protective barrier placed around them.
88 The damaged skylight was clearly dangerous. All the roofing contractors recognized that fact. It was an obvious danger.
Was Frontline aware of the danger?
89 Frontline was aware that there were damaged skylights on the patio roof. They were noted by Mr Moore on exhibit 11 and the various photographs being exhibits 187, 190, 193, 194, 195 and 196 shows the skylights were weather affected and damaged by hailstones. Frontline was aware that the job description included replacing the skylights.
Did Frontline know or ought they have known that Mr Coote would go onto the roof?
90 Frontline were aware that there would be roofing contractors on site and members of that team would be on the roof. Frontline was also aware that a crane, crane driver and a dogman were assisting the roofing team. Frontline were aware that the re-roofing work entailed lifting material from the ground onto the roof and from the roof onto the ground. A reasonable man in Mr Moore's position ought to have known that a dogman's role is to sling or assist slinging loads and guide the crane driver in manoeuvring those loads.
91 In part of Mr Browns' evidence he said he could not see any reason for a dogman to go on the roof and he did not expect a dogman to go climbing around on roofs. He said it is usually the guys on the roof that land and sling the loads whether licensed or not and that dogmen did not need to access roofs. In another part of his evidence he said dogmen would only have to access scaffolds or roofs if it was absolutely necessary (ts 107). The safety directive issued by TCH after the accident on 12 November 2010 directed to all employees and contractors (exhibit 150) states 'No access to roofs will be entered into unless all hazards and risks have been identified and noted to the dogman.'
92 Mr Browns' evidence was that the only instructions given by TCH were that when a crane arrives on the site the dogman and crane driver should assess the situation and he said he expected them to be able to work out how to perform the job for themselves in conjunction with the people already on site. He said the crane driver knew what he could and could not do (AB 103, 104).
93 Mr Houghton Senior's evidence was (ts 158, 159) roofers often slung loads with a dogman watching and giving advice from a distance.
94 Mr Houghton Junior's evidence was that it was 'fairly rare' or 'very, very rare' for a dogman to go onto roofs, but it happened (ts 190, 217). He said he had only ever seen it on one other occasion in 8 or 9 years (ts 217). This has to be viewed in light of his evidence (ts 127) that most of the work his team performed was domestic work and did not involve a lot of crane work. He said they only dealt with cranes every couple of months and most of the dogmen were bigger and heavier men and not as agile and therefore could not get on the roof.
95 I find that roofing contractors do on occasions sling loads themselves. Whilst I accept it is not common for dogmen to go on the roof clearly dogmen do go to roofs. Mr Houghton Junior's evidence that it is a very, very rare occurrence seem to be based on the fact that most dogman were older and heavier and unable to get onto roofs and is qualified by the fact that most of the work performed by his team was domestic work not involving cranes.
96 Mr Houghton Senior's evidence that it is common for roofing contractors to sling loads implies that there are other occasions when dogmen are on roofs slinging loads and Mr Brown's evidence was that there were circumstances when dogmen went onto roofs and even after the accident he still envisaged that there would be occasions when dogmen go onto roofs.
97 In this case roofing materials were being landed on and dispatched from the workshop roof. Mr Coote's job was to sling and unsling those loads and guide the crane driver in manoeuvring those loads. In those circumstances I find it was foreseeable that a dogman may go onto the roof to perform his task of slinging loads or guiding the crane. Frontline ought to have known that. Frontline knew that there were damaged skylights on the roof.
98 If a dogman is on the roof landing materials and the roof has a damaged skylight on the flat patio part of the roof it is foreseeable that through inadvertence, accident or inattention the dogman may walk on that skylight.
99 It is also foreseeable that if a dogman walks on a damaged skylight they may fall through the skylight and fall to the ground some 3 m below and sustain serious injury. The risk of sustaining not insignificant harm is clearly foreseeable.
100 The issue is whether the precautions taken by Frontline were sufficient to meet its duty of care.
Frontline's duty
101 Frontline's duty did not require them to retain control of the working systems if it was reasonable to engage independent contractors who were competent themselves to control their system of work without supervision by Frontline. There is no doubt that the roofing contractor was a competent roofing contractor. There is no evidence indicating that prior to this incident TCH was not a competent crane hire company.
102 I find there was no failure to take reasonable care in the engagement of the roofing contractor and TCH. Both were competent to control their own systems of work.
103 However, the circumstances made it necessary for Frontline to retain and exercise a supervisory power.
104 I find that there was a failure to take reasonable care by Frontline in not retaining a supervisory power. There was a need for Frontline to retain supervising power to the extent of ensuring that the skylights were made safe.
105 Frontline exercised control over the workshop. It was after discussions with Mr Moore that the owners vacated the site. Frontline engaged the two independent contractors. The roofing contractor was to do the re-roofing work. The crane driver and dogman were to land and remove roofing materials to enable the roofing contractors to perform their work. The roofing contractors needed the crane contractors to remove the old material and land the new materials. The work of the two contractors was inexplicably bound up. The contractors were required to interact.
106 The skylights were a danger on the roof. Frontline was aware that the roofing contractor knew of the skylights as it had drawn them to their attention on exhibit 10 and was aware they had inspected the roof at the meeting. Frontline booked the crane the day before or a couple of days before (ts 176). Frontline's only conversation with the roofing contractors about the crane was that one had been organised and about the time of its arrival (ts 145). Frontline's only conversation with THC was to book the crane and advise them they were required to lift some sheets (ts 178).
107 Mr Houghton Senior accepted responsibility for the safety of his team but did not consider he had any control over the dogman. For reasons I have explained, it was foreseeable that a dogman would be on the roof at some stage.
108 Frontline organised the job. It knew of the danger, it knew or ought to have known that two trades would be on the roof. They knew or ought to have known that a crane would be lifting materials on and off that roof. They knew or ought to have known that one trade had no control power over the other. The work of the two contractors was inexplicably bound up.
109 It ought to have been obvious to anyone that whilst people were on the roof working there was always a risk that due to inadvertence, particularly whilst performing a task of either guiding a load on or off the roof or slinging or unslinging that load, that someone on the roof could come into contact with the skylight and fall through it.
110 Frontline had a duty of care to exercise a supervisory power over the works organised to the extent of ensuring that the skylights were made safe for the independent contractors they invited to the workshop and their employees or subcontractors by either covering them (planks, temporary sheeting) or meshing them to prevent any inadvertent contact between the dogman and the skylight.
111 The circumstances did not make it necessary for Frontline to prescribe the respective areas of responsibility for their independent contractors if confusion about those areas involves risk of injury. The areas of responsibility were defined. The roofing contractors were to do the roofing work and TCH was to assist them by lifting the materials required to do that work. There was no confusion about their respective areas of responsibility.
112 In this case although the danger was an obvious risk, the consequences to someone falling through the skylight to the ground 3 m below would inevitably be serious injury. The risk of harm was not insignificant. There was a high likelihood of serious harm being caused to a person who fell through the skylight.
113 The risk of harm was that a person working on the roof could fall through a damaged skylight was a risk which Frontline knew or ought to have known. The risk of someone falling though the skylight was not insignificant. It was a moderate risk in view of the size and position of the skylights estimated to be about two sheets wide and 6 m – 7 m long by Mr Houghton Junior (ts 217) and shown in photographs exhibits 186 and 187. The skylights were positioned towards the edge of the patio roof as shown in those photographs.
114 The nature of the activity being undertaken involved the roofing team being on the roof, the crane landing and removing materials from the roof and it was reasonably foreseeable that Mr Coote would be on the roof. All of these factors contributed to the risk.
115 The burden of covering over or meshing the skylight was not high. Meshing was relatively easily and inexpensive. Covering by temporary sheets would I infer be relatively easy and inexpensive considering a team of experienced roofing contractors were on site.
116 Mr Houghton Senior's evidence was that the area could have been cordoned off with rope or a couple of temporary sheets could have been put over the skylights (ts 144). The evidence established that wire mesh was relatively easily installed. It was installed the day after the accident (ts 195 - 197). The invoice shows the cost was around about $100. Installing the wire mesh the day after is not evidence of, or an admission of, any negligence its only evidentiary value is to establish contemporaneously the cost involved and that it could be done quickly and cheaply.
117 Whilst no evidence was given that other planks, as opposed to temporary sheeting, were available or as to the cost of those planks it is inconceivable in my view that other planking would not have been available to Frontline to place across the skylight considering a team of experienced roofing contractors were on site. As a matter of common sense that would not have been expensive bearing in mind the risk of harm and the likely consequences of serious injury being caused to a person who fell through the skylight.
118 The measures required to be undertaken do not adversely affect the high social utility of re-roofing a workshop particularly one with asbestos roof.
119 I have found that the circumstances of the fall where that Mr Coote stepped onto the skylight inadvertently due either to his keen desire to get on with the job or after becoming distracted after having experiencing after experiencing some difficulty with the unslinging of the load.
120 The standard of care expected of the reasonable man required Frontline to take account of the possibility of inadvertent and negligent conduct on the part of others. That possibility may give rise to a foreseeable risk of injury: McLean v Tedman (311 – 312); Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78.
121 A reasonable person in Frontline's position would have taken precautions by ensuring that the skylights were either planked over or installed wire mesh under or over them. This would have prevented the harm suffered by Mr Coote.
122 The danger of falling through the skylight was an obvious risk. It would have been obvious to a reasonable person that a skylight which was sun and hailstorm damaged was likely to give way if walked upon. Mr Coote had been warned effectively on prior occasions when he walked over the skylight of the dangers. I accept that he was aware of that risk of harm and that there was no duty of care on Frontline to warn him of that obvious risk.
Did that breach cause the injuries sustained by Mr Coote?
123 The question of whether a causal connection exists between a breach of duty and the harm suffered is a question of fact to be determined as a matter of common sense: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.
124 The negligent act or omission does not need to be the sole cause of the harm but it must 'materially contribute' to the damage: Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 411 - 413. A material contribution is one that was not negligible: Western Australia v Watson [1990] WAR 248, 286; Lyle v Soc [2009] WASCA 3.
125 The failure to cover the skylight (planks, temporary sheeting) or install meshing was a necessary condition of the occurrence of the harm. A necessary condition is a condition that must be present for the occurrence of the harm. Factual causation under the CLA is a statutory re-enactment of the 'but for' tests, that is, but for the negligent act or omission, would the harm have occurred: Strong v Woolworths Ltd [2012] HCA 5.
126 As a matter of common sense planks or temporary sheeting over the skylights would have made the roof safe. This can be the only inference to be drawn from Mr Houghton Senior, an experienced roofing contractor, evidence that temporary sheeting could have been installed the day before in response to the question of whether there was anything else that could have been done to make the area safe (ts 144). Alternatively mesh under the skylights would have prevented the fall. It was accepted by both Mr Houghton Senior and Mr Houghton Junior that mesh is commonly installed to prevent falls and it was installed the day after the incident. I am prepared to infer from the evidence that the mesh would have prevented the fall.
127 I reject the second defendant's submission that there is insufficient evidence to find that prior to the works commencing Frontline knew that the skylights did not have wire mesh under them. That submission focuses on the wrong question. I have found that Frontline knew the skylight was damaged. They ought to have known a damaged skylight was a danger unless it was planked or meshed. It was their duty to ensure this was done.
128 I reject TCH's suggestion that the danger could have been made safe by cordoning off the area with rope or barrier tape. Although Mr Houghton Senior agreed that the use of rope was possible, I do not accept that would have been sufficient compliance with Frontline's duty as roping or the use of barrier tape was not be likely to prevent any inadvertent fall thru the skylight. The possibility that a person falling would fall through the rope and tape and then through the skylight meant that the reasonable response to make the skylight safe required it to be planked or meshed.
129 It is appropriate that responsibility for the fall should be imposed on Frontline who, after all, organised the work to be performed.
130 Frontline breached its duty of care in organising the activity to avoid unnecessary risks of injury to those engaged in the activity by its failure to exercise a supervisory power over the works by ensuring that the skylights were made safe by either covering them (planks, temporary sheeting) or meshing. This failure can truly be said to have caused Mr Coote's injury.
Occupier's liability
131 TCH also allege that Frontline is liable to Mr Coote under the OLA.
132 That Act defines an occupier of as a person occupying or having control of land or other premise.
133 The OLA provides that an occupier is not liable under the Act where damage is due to the negligence of an independent contractor under certain conditions (s 6). That section does not apply because TCH allege that Frontline's liability attaches not because of the negligence of their independent contractors, but because Frontline breached the duty they owed to Mr Coote as occupier of the workshop.
The scope of the duty
134 The duty of care required by an occupier is contained in s 5 of the OLA and is as follows:
5. Duty of care of occupier
(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
…
(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to —
(a) the gravity and likelihood of the probable injury; and
(b) the circumstances of the entry onto the premises; and
(c) the nature of the premises; and
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e) the age of the person entering the premises; and
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
136 TCH say the key issues are whether there was a danger and whether there was a reasonable response by the occupier to the danger. They say that the skylight was a clear danger for anybody on the roof and that Frontline's response to that danger was not reasonable.
Was Frontline an occupier?
137 TCH's case is in part based on Frontline's conviction on 19 September 2013 of an offence under s 23D(2), s 19(1) and s 19A(1) of the Occupational Safety and Health Act 1984 (OSH).
138 That offence is contained in the prosecution notice which was marked 'MFI1'. That prosecution notice is admissible and shall become exhibit 201.
139 The prosecution notice provides as follows:
The Mallon Company Pty Ltd t/a as Frontline Roofing
Being a person who, in the course of trade or business, engaged a contractor to carry out work for it, failed, so far as was practicable and in relation to matters over which it had the capacity to exercise control to provide and maintain a working environment in which any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned was not exposed to hazards, and by that failure caused serious harm to such a person, having known that the failure would be likely to cause death or serious harm to such a person, but failing to act in disregard of that likelihood.
140 Pursuant to that prosecution notice the following averments were made:
AVERMENTS
1. The prosecutor relies upon section 53(1)(a) of the Occupational Safety and Health Act 1984 (Act) to aver that, on 20 September 2010, the premises at 7 Ruse Street, Osborne Park, were a workplace (Workplace).
2. …
PARTICULARS
1. The contractor was Terry's Crane Hire Pty Ltd (ACN 120 000 268).
2. The hazard to which a person was exposed was the risk of serious harm or death through falling through damaged brittle fibreglass 'skylight' sheeting, (Skylights) in the roof of the Workplace frontage (Roof).
3. The person exposed to the hazard was Benjamin Coote.
4. The practical measures that the Accused had failed to take on 20 September 2010 were to:
1. Require and/or confirm that Debri Pty Ltd (ACN 009 068 866; Debri) had, or would have, a system of work in place that would adequately address the risk of a person falling through the Skylights, such as:
(a) not carrying out Debri's work replacing the Premises roofing (Re-roofing Work) in such a way that any person was required and/or likely to work in the vicinity of the Skylights; and/or
(b) the installation of safety mesh under the Skylights, prior to any person accessing the Roof for the purposes of the Re-roofing Work; and/or
(c) the installation of scaffolding under the Skylights, prior to any person accessing the Roof for the purposes of the Re-roofing Work; and/or
(d) the installation of temporary metal sheeting over the Skylights; and/or
(e) the replacement of the Skylights with new polycarbonate sheeting; and/or
2. ensure that Terry's Crane Hire Pty Ltd (ACN 120 000 268; Terry's) was aware of:
(a) the existence, height and state of the Skylights; and/or
(b) the consequent risk of a person falling through the Skylights; and/or
3. require and/or confirm that Debri and/or Terry's had ensured, or would ensure, that any person who might be required to access the Roof for the purposes of the Re-roofing Work:
(a) was adequately trained in, and/or informed of, the risk of falling through the Skylights; and/or
(b) was adequately supervised while working on the Roof.
5. The failure to take any or all of these practicable measures caused serious harm to Mr Coote.
141 The conviction is admissible but is not conclusive evidence of the facts established by the conviction: Mickelberg v Director of Perth Mint [1986] WAR 365. It is prima facie evidence that Frontline committed the offence, that prima facie evidence can be displaced. The weight to be given to the conviction is a matter for the trial judge, although considerable weight would be normally given to the conviction: Kennedy J (385).
142 TCH contend that Frontline's conviction establishes by itself that Frontline was in control of the premises and it would be an abuse of process for Frontline or the second defendant to say otherwise.
143 TCH says s 6O1AG of the Corporations Act 2001 (Cth) means the conviction binds the second defendant as they now 'stand in Frontline's shoes' able to raise and maintain any defence that Frontline would have been able to use and subject to whatever effect the conviction has on Frontline.
144 In addition to relying on this conviction TCH say that the evidence establishes that Frontline had control of the premises. Frontline's contract was to re-roof the workshop and this involved Frontline taking control of the premises as the work required the premises to be vacated by its owner and corded off so that the asbestos roofing could be replaced and removed.
145 TCH point out that Frontline invited the roofing and crane contractors to enter the premises to perform the work designated to them. TCH say the roofing contractors were not in total control of the premises or the work to be performed as they were not in charge of TCH's personnel including Mr Coote.
146 Section 601AGCorporations Act 2001 (Cth)provides:
A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if:
(a) the company had a liability to the person; and
(b) the insurance contract covered that liability immediately before deregistration.
147 TCH are therefore entitled to recover against the insurer of Frontline (the deregistered company) an amount payable to the deregistered company under an insurance contract: Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; (2005) 62 NSWLR 148 [19]. The purpose of the legislation is to require the insurer of a deregistered company to stand in the shoes of the company so that a company like TCH may recover from the insurer whatever amounts they were entitled to recover from a company had it not been deregistered: Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [52].
148 The section 'shortcuts' the need to reinstate the company by enabling the ultimate recipient of the insurance proceeds to sue the insurer direct where the company has been deregistered without imposing the additional trouble and expense of first applying to have it reinstated: Almario [35]. Any defence the insurer may have to an action on the insurance contract may be pleaded by its defence, and any defence the insured may have to the claim may be advanced to show the insured has no liability to the plaintiff: Fairwater Pty Ltd v QBE Insurance (Australia) Ltd [2012] WASCA 270 [4].
149 In my view the conviction is as binding against the second defendant as it would be against Frontline.
150 However, I find that Frontline was in control of the premises even without the need to consider the effect of the conviction.
151 Control is a question of fact. It is an error to confine the consideration of whether a person is in control of the premises, to the question of whether they have the power to direct the activities of the workers at the workplace: Morrison v De Bono [2005] WASC 271.152 Two or more entities may exercise control in a practical sense over a worksite: Victorian Workcover Authority v Stoddart (Victoria) Pty Ltd [2015] VSC 149.
153 Frontline had actual control over the premises. As a matter of fact they assumed the responsibility of excluding the owners from those premises so the re-roofing work could be performed. I infer this from the fact that the owners vacated the workshop after the discussions between Mr Moore and Mr Bromberger (ts 40). Frontline assumed the responsibility of and arranged for others to carry out the contractual work. They engaged TCH and the roofing contractors to perform the work at the workshop.
154 Control in this regard refers to controlling in the sense of directing action or commanding as opposed to checking or swaying: Morrison v De Bono. There has been some judicial discussion on whether the narrow test applied by Murray J in Reilly v Devcon Australia Pty Ltd [2007] WASC 106, that control will be found where it can be shown that a direction given would be obeyed or the wider view taken in Stratton v Van Driel Ltd [1998] VSC 75, which was that a multifactorial consideration of all the circumstances applies. The wider multifactorial test looked at matters such as the power to check and direct and exercising the power of direct, regulate, dominate and command.
155 Frontline arranged for the workshop to be vacated and engaged two trades to perform work at the workshop. Mr Houghton Senior's evidence was effectively that he would do as told by Frontline. He considered Frontline and the owner were the only people that could authorize other trades to enter the site (ts 130). He did not consider he had any control over TCH personnel. TCH were there to assist Frontline. In my view, whether the multifactorial or the narrow test is taken, bearing in mind that Frontline arranged for the workshop to be vacated and engaged two independent contractors to perform work at the workshop they can be said to be in actual control of the site and occupiers within the OLA.
156 Frontline was in actual control of the workshop even though they did not direct the activities of the workers at the workplace.
Has the duty been breached?
157 Section 5, s 6 and s 7 of the OLA replace the common law rule in determining the care that an occupier of premises is required to show towards a person entering on the premises in respect of dangers to that person which are due to the state of the premises or to anything done or omitted to be done to the premises and for which the occupier of the premises is by law responsible: The Department of Housing and Works v Smith [No 2] (2010) 41 WAR 217 [60].
158 In cases of alleged breach of duty by an occupier a number of matters must be considered (Department of Housing and Works v Smith [No 2] [2010] WASCA 25, Buss JA [87]):
Firstly, the determination of what, if anything, a reasonable person in the occupier's or lessor's position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is unreasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
159 An occupier's duty to exercise reasonable care varies with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises: Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7, 20 (Mason J).
160 Deciding what is reasonable involves an 'interplay of considerations' including the reasonableness of an expectation that any invitee will exercise reasonable care for his own safety and the possibility that the invitee will sometimes be inattentive or even negligent; the obviousness of the relevant risk of harm and the remoteness or otherwise of the likelihood that others will fail to observe and avoid it: Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [37].
161 The obviousness of the risk of falling through the skylight is relevant to the reasonableness of a reasonable person's response to the risk involved: Thompson v Woolworths (Qld) Pty Ltd [36]. However, that does not relieve an occupier's duty to take reasonable care to see that that person will not suffer injury or damage by reason of any such danger.
162 In Neindorf v Junkovic [2005] HCA 75, the High Court, dealing with the obviousness of a risk, did not treat that obviousness as bearing upon the existence of the general duty owed by the occupier.
163 Frontline are not liable for harm caused by their fault in failing to take precautions against the risk of harm unless a reasonable person in their position would have taken those precautions.
164 The damaged skylight was a danger due to the state of the premises. It presented a risk to people on the roof. Frontline knew of the danger. It was a danger from which people working on the roof required protection.
165 The gravity of the probable injury was high. The likelihood of the probable injury was moderate. Workmen were on the roof and the likelihood of a worker walking on the damaged skylight was moderate.
166 Mr Coote entered the premises as an employee of TCH. TCH were specifically invited to the premises by Frontline. Mr Coote was lawfully entitled to be on the roof. He was assisting the roofing contractors perform their work by assisting in the delivery of roofing materials onto the roof and removing old materials from the roof via the crane.
167 Frontline drew the danger of the skylights to the attention of the other independent contractors that they invited to the premises, the roofing contractors. They did not draw the damaged skylights to the attention of TCH.
168 The nature of the premises was a workshop. Frontline were engaged specifically to replace the roof and damaged skylights. Frontline knew that the roofing contractors would be on the roof. They engaged TCH to assist the roofing contractors to perform their work. Frontline knew that the roofing work required the removal of the old roof material and its replacement with new materials. They knew this involved the use of a crane and dogman. They ought to have known that a dogman's role was to sling or assist in the slinging of the cranes loads and to guide the crane. They ought to have known that where loads are being removed and landed on the roof that it was likely that the dogman may access the roof to either sling the load, assist in slinging the load or guide the crane.
169 Mr Coote was born on 22 January 1992. He was 18 years of age at the time he suffered his injury. Mr Coote was a licensed dogman. It was reasonable for Frontline to expect that he would exercise reasonable care for his own safety. The evidence establishes that he become aware of the obvious danger when he entered on the roof and he was told by the roofing contractors not to walk across the skylights. He was advised on several occasions not to walk onto the skylights.
170 The skylights were obvious dangers. I accept that even without those warnings the danger of walking across skylights was obvious. Mr Coote ought to have appreciated the danger of walking on the skylight. I have found that on the occasion he fell he stepped onto the skylight inadvertently.
171 By the time Mr Coote entered onto the roof and he first became aware of the danger the roofing contractors had already, on Mr Houghton Senior's evidence, removed part of the sawtooth roof and had it wrapped, stacked and packed ready to be removed by the crane and the crane was already on the premises.
172 Frontline ought reasonably to have anticipated that a person in Mr Coote's position, anxious to get on with the job, working in the area where the danger was located may while he was on the roof performing his work, have been inattentive to the danger or his own safety or negligent in his regard to it or not immediately conscious of what was going on around him and may be rushing to complete the work or distracted by some work incident.
173 That possibility was more than just a remote possibility. It was a moderate possibility bearing in mind that people were working on the roof. The old sawtooth roof was being uplifted, stacked and wrapped on the sloping sawtooth roof. In addition, roofing materials were being landed on the right hand side edge of the sawtooth roof. The damaged skylight was on the right hand side of the flat patio roof in relatively close proximity to where the crane was landing materials. It was a busy workplace and Mr Coote was working in an area close to the damaged skylight. It was a moderate possibility that due to inattention or negligence a worker could step on a damaged skylight despite previously being aware of its existence and warned of the danger.
174 The burden of eliminating or protecting Mr Coote from the danger compared to the risk the danger presented was relatively modest. The precautions were practical, reasonable and inexpensive. This would have prevented the harm suffered by Mr Coote.
175 For reasons previously explained I find it was foreseeable that a dogman may go onto the roof to perform his task of slinging loads or guiding the crane. Frontline ought to have known that.
176 Frontline knew that there were damaged skylights on the roof.
177 I also find that it is foreseeable that if a dogman walks on a damaged skylight they may fall through the skylight and fall to the ground some 3 m below and they would inevitably sustain serious injury. The risk of sustaining not insignificant harm was clearly foreseeable. There was a high likelihood of serious harm being caused to a person who fell through the skylight. There was a significant risk of serious injury.
178 The duty owed was to take reasonable care to ensure that Mr Coote would not suffer injury by reason of any danger due to the state of the workshop or any activity being undertaken thereon: Shire of Manjimup v Cheetham [2010] WASCA 225 [23].
179 The risk of harm was that a person working on the roof could fall through a damaged skylight. This was a risk which Frontline knew or ought to have known. It was a not insignificant foreseeable risk that required a response.
180 I find that there was a failure to take reasonable care by Frontline in not ensuring that the skylights were made safe by either covering them (planks, temporary sheeting) or meshing them to prevent any inadvertent contact with the skylight. A reasonable person in Frontline's position would have taken these precautions. This would guard against the risk that a person would fall through the skylight to the ground if they walked on it. Particularly in circumstances where a dogman was on the roof performing the very task that he had been engaged to perform.
181 Insofar as s 5(2) of the OLA is concerned it cannot be said that Mr Coote willingly assumed the risk on the basis that he was advised of the danger of the skylight and then told not to walk on it on at least two occasions.
182 I infer that Mr Coote had knowledge of the risk because of the warnings he was given but knowledge of a risk alone is insufficient: Jeffries v Fisher [1985] WAR 250. There must also be a willing assumption of that risk. There is no evidence that could lead me to conclude Mr Coote freely and voluntarily with full knowledge of the nature and extent of the risk agreed to incur it. A person cannot be said to willingly accept that danger if he has exposed himself to the danger only because of the exigency of the situation in which he stands: Insurance Commissioner v Joyce [1948] HCA 17; Imbree v McNeilly; McNeilly v Imbree [2008] HCA 40.
183 A reasonable occupier would have taken the steps I have referred to.
Causation
184 Having found that Frontline breached their duty under the OLA by their failure to cover or mesh the skylights, I am satisfied that breach caused the harm to Mr Coote and incorporate my remarks in respect of causation appearing earlier in the judgment.
The effect of Frontline's conviction
185 It is not necessary for me to deal with the submission that Frontline's conviction alone establishes that they were the occupiers of the premises as I have found they were irrespective of the conviction.
186 However, one of the elements of the offence that TCH says the conviction proves is that Frontline had the 'capacity to exercise control over matters in the working environment'. Accepting that the conviction establishes a capacity to exercise control over matters in the working environment does not by itself establish that Frontline were occupiers of the workshop even considering the averments. It is the evidence at trial not the conviction which satisfies me that Frontline were occupiers for reasons previously explained.
Breach of statutory duty
187 TCH also allege that Frontline breached their statutory duty under the OSH. TCH says that breach creates a civil action for Mr Coote and in addition is evidence that assists establish Frontline's negligence at common law.
188 TCH rely on theOSH Regulations which are regulations made pursuant to theOSH. In particular they say Frontline breachedreg 3.57.
The regulations
189 TheOSH Regulations:
Regulation 1.3:
construction site means a workplace at which construction work is done and includes any adjoining area where plant or other materials used or to be used in connection with that work are located or kept and over which the main contractor has control for the purpose of doing the construction work;
construction works means –
(a) the construction, erection, installation, alteration, repair, maintenance, cleaning, painting, renewal, removal, excavation, dismantling or demolition of, or addition to, any building or structure, or any work in connection with any of those things, that is done at or adjacent to the place where the building or structure is located; or …
…
main contractor means –
(a) the person for whose direct benefit all the work done at a construction site exists upon its completion;
(b) if the person mentioned in paragraph (a) has engaged another person, other than as his or her employee, to do or cause to be done all the work at the construction site, the other person so engaged; …
person having control of a workplace means a person other than an employee who has, to any extent, control of a workplace where persons who are not employees of that person work or are likely to be in the course of that work and where the control is in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not); and includes a person who has, by virtue of a contract or lease, an obligation of any extent in relation to the maintenance or repair of a workplace; …
…
1.6 Main contractor, extent of duty of
Unless the contrary intention appears, where a main contractor has a duty under a provision of these regulations to do or not do something in relation to a construction site, the main contractor's duty –
(a) relates only to a matter over which, and the extent to which, the main contractor has control or can reasonably be expected to have control at the site; and
(b) is limited to any person who may be affected wholly or in part as a result of the work done at the site.
1.7 Person having control of workplace, extent of duty of
Unless the contrary intention appears, where a person having control of a workplace has a duty under a provision of these regulations to do or not do something in relation to the workplace, the person's duty –
(a) relates only to a matter over which, and the extent to which, the person has control or can reasonably be expected to have control having regard to the person's interest in the workplace; and
(b) is limited to persons who are at the workplace.
…
3.57 Brittle or fragile roofing, duties of employer etc. as to work on
(1) A person who, at a workplace, is an employer, the main contractor, a self-employed person or a person having control of the workplace must ensure that if a person is required to work on or from a roof at the workplace where brittle or fragile material forms the whole or any part of the roof then –
(a) the person to work on or from the roof is informed that the roof is wholly or in part brittle or fragile, as is relevant to the case; and
(b) the person to work on or from the roof is provided with a safe working platform and safe access way; and
(c) the person to work on or from the roof is trained and instructed on -
(i) the precautions to be taken; and
(ii) how and where to access the roof; and
(iii) how and where to gain access to the working platform or access way referred to in paragraph (b);
- and
(d) to the extent practicable, a warning notice bearing the words 'DANGER – FRAGILE ROOFING – USE WORKING PLATFORM' is placed at each place where a person who is to work on or from the roof is to access the roof.
Penalty: the regulation 1.16 penalty.
(2) Without limiting regulation 3.1, if at a workplace brittle or fragile material forms the whole or part of a roof that is to be removed, a person who, at the workplace, is an employer, the main contractor, a self-employed person or a person having control of the workplace must before the roof is removed –
(a) identify which areas of the roof are made of a brittle or fragile material; and
(b) assess the stability of the structure that supports the roof and the soundness of the roof.
Penalty: the regulation 1.16 penalty.
(3) A person who, at a workplace, is an employer, the main contractor, a self-employed person or a person having control of the workplace must ensure, if a person is required to work on or from a roof at the workplace where brittle or fragile material forms the whole or any part of the roof and there is a risk that that person might fall through the roof, and if there is no other practicable means of preventing the person falling through the roof, that –
(a) non-corrosive safety mesh that is capable of preventing a person falling through the roof is securely fixed directly over the top of, or directly underneath, the brittle or fragile areas; or
(b) barriers are securely fixed and adequately maintained around the brittle or fragile areas.
(4) A person must not remove a notice referred to in sub regulation (1) without the authority of the person who caused the notice to be placed.
Penalty for a person who commits the offence as an employee: the regulation 1.15 penalty.
Penalty in any other case: the regulation 1.16 penalty.
191 The forward to the code of practice (exhibit 833) states:
Codes of Practice
A code of practice is defined in the Act as a document prepared for the purpose of providing:
• practical advice on prevention strategies, and
• a practical means of achieving any code, standard, rule, provision or specification relating to occupational safety and health in Western Australia.
192 A code of practice may contain explanatory information:
The prevention strategies outlined in a code of practice do not represent the only acceptable means of achieving the standard to which the code refers. A code of practice does not have same legal force as a regulation and is not sufficient reason, of itself, for prosecution under the Act.
193 The code of practice provides (exhibit 833, s 16, pages 56 - 58):
16. Brittle or fragile roofing
Brittle or fragile roofing materials including roofing made of asbestos, cellulose cement roof sheets, glass, fibreglass, acrylic or other similar synthetic moulded or fabricated material used to sheath a roof or in a roof, which are likely to endanger a person standing on them.
…
Work on brittle or fragile roofing materials checklist
If a person is required to work on or from a roof of material that can break, easily snap or shatter or is weak or perishable, the employer, or the person who has control of the workplace must ensure:
• the person is informed that there is fragile or brittle roofing;
• safe access to the work area is provided, as set out in Section 6 of this code, to enable employees to step directly onto a safe platform or area;
• work is carried out from a safe working platform that is located and constructed to allow work to be performed safely;
• an adequate fall injury prevention system is installed and used;
• there is another person present at all times when work is being performed on a brittle roof in case there is an emergency;
• training and instruction is provided on precautions to be taken and safe access;
• training in rescue techniques has been provided and rescue equipment is readily available for use at the workplace;
• warning signs are displayed at access points to any work area where fragile material is present;
• warning signs are fixed securely in a position where they will be clearly visible to persons accessing the working area; and
• before the roof is removed, the brittle or fragile areas are identified and the stability of the structure and soundness of the roof is assessed as part of the risk management process.
Maintenance and repairs
Where it is necessary for maintenance or repairs to be carried out on an area containing fragile materials, the employer of those persons should:
• inspect the under-side of the work area to determine the extent of fragile material, presence of safety mesh and the structural soundness of the work area and the safety mesh;
• provide temporary walkways of at least 450 mm width with edge protection as a means of access to and egress from any work area, where permanent walkways are not provided;
• provide timber cleats on temporary walkways where the slope of a walkway exceeds 70 or one vertical to eight horizontal. Timber cleats of 50 mm (width) x 25 mm (thickness) should be fixed to the top side of the walkway planks at distances of 450 mm along the walkway. The walkway should be secured adequately;
• provide temporary roof ladders or crawl boards of sufficient strength, where any person is required to carry out work on or adjacent to any part of a sloping roof sheathed in fragile material;
• provided individual fall-arrest systems and devices for any person required to work on or adjacent to any fragile material, when safety mesh, safety nets or similar fall protection have not been provided. Safety harnesses should be attached by an individual fall-arrest device to a static line positioned above the ridge line or an individual anchorage point; and
• provide training and instruction in the correct us of fall protection and ensure that employees understand the information.
Where the work involves removal of a considerable amount of fragile material, fall-arrest systems and devices should be worn by all personnel engaged in the work, if the perimeter of the roof is not guarded by a solid balustrade, scaffolding or a guard rail that extends not less than 900 mm or more than 1100mm above the roof level at the perimeter and includes a mid rail and toe board.
194 A breach of a statutory regulation may create a private right of action and found an action for damages. The question of whether it does depends upon the proper construction of the statute as a whole: O'Connor v SP Bray Limited [1937] HCA 18; (1937) 56 CLR 464; Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438; Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181.
195 A breach of statutory duty may also provide evidence of a breach of duty in an action for negligence. However, proof of a breach of a statutory duty is not determinative of negligence: Sibley v Kais (1967) 118 CLR 424; Drexel London (a firm) v Gove (Blackman) [214].
196 As Leighton Contractors v Fox recognised obligations under a statute are relevant to determine the existence and scope of a common law duty. However, the court said it was necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OSH and the OSH Regulations into a duty of care at common law.
197 The factors relevant to determine whether legislation such as the OSH gives rise to a private right of action have been summarised as follows:
1. The historical legislative context.
If the legislation replaces legislation which gave rise to a private cause of action without any intention expressed by the legislation to abolish such a cause of action, this may lead more readily to the inference that the legislation was intended to give rise to a private cause of action.
2. Benefit of a particular class of the public.
There must be some limitation on the group to whom the duty is owed.
3. Legislation for employee safety.
Rights of action based on a statutory duty to employees are in a special category. Legislation directed at employees' safety is generally considered as giving rise to a correlative private right unless the scope of the legislation suggests otherwise. The legislation may be restricted to a specific place such as a workplace.
4. Specificity.
Generally expressed statutory duties can give rise to a cause of action. Usually however the right to a private cause of action will be more readily implied where there is a duty to take a specific precaution for the safety of others not just a duty to act safely. Generality of expression is a relevant factor, although not decisive.
5. Duty of care.
If the statute refers to a duty of care it is likely to be interpreted as being intended to reinforce or supplement the common law duty of care. The duty found under statute is not exactly the same as under the common law. Negligence need not be established. However, there should be a causal connection between an act or omission on the part of the tortfeasor and the injury. The language may suggest limitations on liability such as practicability. The use of a language of duty will suggest the section creates a civil cause of action.
- (O'Connor v SP Bray Limited (477, 478) (Dixon J); Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, 404; and generally Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] QCA 18; [2001] 1 Qd R 518; Schulz v Schmauser [2000] QCA 17; [2001] 1 Qd R 540; Percy v Central Control Financial Services Pty Ltd [2000] QSC 129)
198 Clearly a breach of the code of practice could not by itself, in view of the forward, found a civil claim.
199 In respect of reg 3.57 and the OHS, TCH did not make any specific submissions in relation to the historical legislative context (ts 280) however the objects of the OHS are, inter alia, to promote and secure the safety and health of persons at work and to protect persons at work against hazards. Non-compliance with other provisions of the OHS, s 19(1) for example, has been found to give rise to liability for prosecution and support a claim for damages see, for example: Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44; Anyco Pty Ltd v Kleeman [2008] WASCA 30; Howells v Murray River North Pty Ltd [2004] WASCA 276; MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110.
200 Regulation 3.57 is specifically directed to a particular class of the public, i.e, a person required to work on or from a roof where brittle or fragile material forms the whole or any part of the roof.
201 The regulation is clearly directed to the safety of people who are required to work on or from a roof at a workplace, be they employees or independent contractors, when the roof is wholly or partly brittle or fragile.
202 The regulation is specific in its requirements. It requires, inter alia, the person working on or from the roof to be provided with a safe working platform and safe access way, trained and instructed on precautions and how and where to access the roof. A warning notice is required if practicable to be placed near the access point to the roof. It identifies the use of safety wire for prevention of falls at the workplace where there is no reasonable alternate.
203 The regulation is couched in terms of duty. It is safety legislation. It imposes liability on the main contractor or the person having control of the workplace. It is for the benefit of people working on roofs and is limited to those persons. It is specific in its requirements. The objects of the legislation are to promote workplace safety. Whilst only a penalty is proscribed for a breach and generally that indicates that no right of civil action is intended I consider that it does create a civil cause of action.
204 However essentially the same facts that constitute the common law and occupiers liability claim are relied upon to establish the breach of statutory duty. The regulation does not impose any greater obligation on TCH than I have found were breached at common law or under the OLA. Therefore I do not consider this issue any further.
205 If I am in error in finding that Frontline has breached its duty under common law and/or under the OLA, my findings at common law that Frontline should have kept a supervisory power to the extent of ensuring that the damaged skylight was covered over or meshed or that they were liable under the OLA because they were in control of the premises must be erroneous.
206 If that was so the very basis upon which it is said that Frontline breached their statutory duty would have been found not to exist because for Frontline to have breached reg 3.57 they would need to be either the main contractor or a person having control of the workplace.
207 Under reg 1.6 the extent of a main contractor's duty is confined only to matters over which, and to the extent to which the main contractor has control or can reasonably be expected to have control at the site.
208 Either way, that is, whether Frontline was the main contractor or a person having control of the workplace to find a breach of reg 3.57 they must have had 'control at the site' or 'control of the workplace' and if I am in error in finding that Frontline has breached its duty under common law and/or under the OLA, that must mean Frontline could not have 'control at the site' or 'control of the workplace' and could not therefore be in breach of the statutory duty. Therefore I do not consider this issue any further.
Was Mr Coote an employee of TCH or an independent contractor?
209 There are practical difficulties in applying the test for determining an employment relationship: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Accident Compensation Commission v Odco Pty Ltd (1990) 64 ALJR 606. At one stage the 'control test' was paramount however this test is difficult to apply in more modern times: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 [40] - [41]. It is settled that the modern approach requires consideration of a variety of criteria.
210 The criteria that must be considered include the control test, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax and the ability of the putative employee to delegate work, whether the worker was carrying on trade or business of their own or were serving the employer in its business and whether and how the parties have defined their relationship: Humberstone v Northam Timber Mills (1949) 79 CLR 389, 404; Hollis v Vabu Pty Ltd.
211 It is important to consider the totality of the working relationship including the systems operating and work practices applicable to that relationship: Hollis.
The relevant evidence
212 Mr Brown said he explained to Mr Coote at the initial interview that the position was for a contract dogman and Mr Coote was required to have his own ABN.
213 Mr Brown said he told Mr Coote that he was required to be on time, punctual and professional and do the job as expected. His role was to help the crane driver set up, assist with slinging and guiding the loads and work with the crane driver (ts 64, 74).
214 Mr Coote was required to provide his own qualifications and provide his own vehicle. He was paid at the rate of $35 per hour including $6 per hour for the use of his vehicle with no overtime, holiday or sick pay although superannuation was paid. TCH guaranteed a minimum of 4 hours if Mr Coote was called to work and Mr Coote was expected to be present for the duration of the assigned job. There was no restriction on Mr Coote obtaining work from other companies.
215 Mr Coote was expected to have his own personal protection equipment but if he did not TCH would supply a hard hat, boots and high vis jacket and if he purchased his own boots he would be reimbursed up to $120. Mr Coote was required to complete an invoice for the hours worked addressed to TCH and complete a timesheet which was to be forwarded to TCH.
216 Mr Coote was required to liaise with TCH's controller Mr Rylance on a daily basis to ascertain the work he was to perform. He was expected to check his phone in the evening for text messages advising the work available for the following day and respond to those text messages. If he was unable to accept the assignment he was required to notify TCH and they would find a replacement. If he did not respond to the text messages he would be reprimanded (ts 75).
217 Mr Brown said Mr Coote rarely came to the office and 'might' come in to give the invoices and timesheets but otherwise did not attend. Mr Brown said that if Mr Coote was between jobs on the same day he might come to the crib room for a coffee but if he had only one job and that was finished he would just knock off and still be paid for the 4 hours minimum.
218 Mr Brown acknowledged that some of the dogmen working for TCH were employees but said they were mainly crane drivers who had dual crane driving and dogman qualification.
219 Mr Brown said TCH did not give any instructions about not entering on to roofs. TCH did not give any safety training because they expected Mr Coote to have the appropriate qualifications.
220 Exhibits 44 - 48 show that Mr Coote obtained his Licence to perform High Risk Construction Work and Certificate to perform Dogging work prior to commencing engagements with TCH. Mr Coote had worked as a dogman on a casual basis for another crane hire company for about three months before he commenced with TCH.
221 Exhibits 51 - 81 show that Mr Coote completed the timesheets as requested and exhibits 83 - 91 show he submitted invoices to TCH for work performed quoting his own ABN albeit in the wrong place on the invoices.
222 Exhibits 113 - 115 a Workers' Compensation Employer form completed by Mr Brown described TCH as the employer and Mr Coote as the contractor.
223 Exhibit 133 - 143, Mr Coote's income tax return, lists $320 as paid from an employer (Focused Recruitment) and $33,450 as income from personal services (exhibit 112 shows TCH paid approximately $6,490 to Mr Coote prior to the accident).
224 It is important to consider the totality of the working relationship including the systems operating and work practices applicable to their relationship.
Control
225 Control is to be considered in the sense of considering not only the actual exercise of control but also whether ultimate authority over the person in the performance of his work resides in the employer so that the person was subject to their orders and directions: Stevens v Brodribb Sawmilling Co Pty Ltd (24).
226 The crane drivers on Mr Brown's evidence were all employees of TCH. Mr Coote was required to assist the crane driver, liaise with the crane drive, sling the loads and direct the crane. Although he was not told how he was to perform his duties it is a fallacy to suggest that Mr Coote was not subject to the control of an employee of TCH in circumstances where he was required to assist, liaise and go from site to site with that employee.
227 TCH also organised and allocated the work.
228 In my view the control test points to Mr Coote being an employee.
Mode of remuneration
229 Mr Coote's remuneration of $35 per hour including $6 per hour for the use of his car with a guarantee of 4 hours work if called in is intractably neutral. Many employees and independent contractors are paid an hourly rate with a guarantee of a minimum number of hours of work.
Provision of maintenance and equipment
230 Mr Coote was expected to have his own personal protection equipment including high visibility shirt, boots and hard hat although he was told that if he did not have these items TCH could provide them and if he purchased his own boots he would be reimbursed $120.
231 The supply of PPE points to an employment relationship as does the reimbursement of monies spent on purchasing safety boots.
Obligation to work
232 Mr Coote was not obliged to work solely for TCH. He was free to accept work from other crane hire companies and was not obliged to accept work provided by TCH. He was expected to reply to their nightly texts in relation to the work that was available the next morning. In my view the lack of obligation to work points towards Mr Coote being an independent contractor.
Hour of work
233 Mr Coote did not have set hours of work. He worked as TCH made work available to him.
234 In my view this is intractably neutral as many employees and independent contractors are in the same position.
Provision of holiday
235 Mr Coote was not provided with holiday pay or sick pay. This is more consistent with an independent contractor than a position of employment.
236 Mr Brown said TCH paid superannuation that is more consistent with an employment relationship than an independent contractor.
Deduction of income tax
237 Comparing the invoices forwarded by Mr Coote to TCH (exhibits 83 - 91) with the amounts paid by TCH (exhibit 112) shows that there was no deduction for taxation. This is more consistent with being an independent contractor.
Delegation of work
238 Mr Brown's evidence was that once Mr Coote accepted the job he was required to remain at the job until the end. He said that if Mr Coote declined work that was offered to him, TCH would try to organise somebody else to do that work (ts 75). I infer from that evidence that Mr Coote did not have the right to decline to perform the work himself and provide another person's service in substitute.
239 This indicates an employment relationship; contracts for services often allow the party who is to provide the services to do so by providing another person's services: ACE Insurance Limited v Trifunovski [2013] FCAFC 3.
Indicia of a separate business
240 Mr Coote had his own ABN number. He was free to take on work from other sources and free to decline jobs that were forwarded to him. This points to an independent contractor relationship.
Parties description of their relationship
241 Whether and how the parties have defined their relationship will be given weight although it is not determinative. In Stevens it was said 'the actual terms and terminology of the contract will always be of considerable importance' [37]. However it is acknowledged that the parties cannot themselves determine the relationship to be something that it is not: Hollis [45].
242 In Australian Mutual Providence Society v Allan (1978) 52 ALJR 407 the court applied Lord Denning MR remarks in Massey v Crown Life Insurance Co [1978] 2 All ER 576, 580 that:
… if the relationship is ambiguous and is capable of being one or the other [that is, either service or agency], then the parties can remove that ambiguity by the very agreement itself which they make with one another.
243 TCH consistently referred to Mr Coote as an independent contractor.
244 It seems from the use of his ABN and presentation of tax invoices and the completion of his tax return Mr Coote considered himself an independent contractor.
245 Clearly the parties cannot determine their relationship to be something that it is not but in cases of ambiguity the way the parties describe themselves is of some significance. Mr Coote's use of tax invoices, his own ABN and the non-deduction of PAYG permits the inference to be drawn that he regarded himself as an independent contractor.
Whose business was it and integration within the organisation?
246 TCH's business was hiring out cranes with drivers, who were their employees, and dogmen some of whom were employees and some of whom were at least in TCH's eyes 'independent contractors'.
247 Mr Coote's role onsite with the crane was to assist and liaise with the crane driver. Those activities were clearly an intricate part of TCH's business. Mr Coote was integrated into that business travelling from site to site to assist the crane driver. Mr Coote was free to accept business as a dogman from other sources. Many employees work for more than one business.
248 It seems to me that integration with the organisation points to Mr Coote being an employee.
249 In Hollis emphasis was given to identifying the business in which the work was conducted.
250 Whilst it is accepted that a contractor may work in the business of another and still on his own account, the majority in Hollis determined that the distinction between an employee and an independent contractor was 'routed fundamentally' in the fact that when personal services are provided to another business an independent contractor provides those services while working in and for his or her own business, whereas an employee provides personal services whilst working in the employer's business. Unless the work is being provided by an independent contractor as a representative of that entrepreneur's own business and not as a manifestation of the business receiving the work the person providing the work is an employee: Hollis [39], [40], [47], [57]; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation [No 3] [2011] FCA 366 [207].
251 Mr Coote had his own ABN however a further consideration is whether Mr Coote was aspiring to make profits.
252 An entrepreneur seeks profits and not simply remuneration for his personal services. In On Call Interpreters and Translators Agency Pty Ltd the court looked at whether the person was financially self-reliant, rather than economically dependent upon the business of another and was chasing profit rather than simply seeking payment for his time, skill and effort [214].
253 Mr Coote did not appear to be taking any risks in the pursuit of profit, but rather to be receiving a payment for his time, skill and effort. TCH gave him work. TCH had the capacity to control and direct the manner in which he performed his duties because his role was to assist the crane driver and the crane driver was an employee of TCH. The risks associated with providing the equipment or assets (the crane) required to perform his work were largely born by TCH. I acknowledged that Mr Coote provided his car however many employees take their car to the workplace and receive reimbursement for the expenses particularly when their work takes them to different sites.
254 In my view it can be said that the economic activities being performed by Mr Coote was being performed a part of TCH's business and this is an indicator of an employment relationship.
The totality of the relationship
255 Some of the factors that I have referred to are common to both an employment and independent contractor relationship. These include the manner of remuneration, the hours of work, the lack of holiday pay. Some of the criteria are normally associated with independent contractors including the parties' description of their own relationship, the fact that Mr Coote was responsible for his own taxation and registered an ABN. Other criteria are more commonly found in employment relationships including TCH's preparedness to provide personal protection equipment, the payment of superannuation, and the inability of Mr Coote to delegate the work.
256 Recognition must be given to the fact that, for example, the provision of superannuation is equally consistent with complying with the statutory obligation as opposed to establishing an employment relationship and the provision of protective equipment is more a recognition of the statutory obligations under occupational health and safety legislation.
257 Considering all the factors the relationship is an employment relationship. TCH effectively determined the work they would make available, the place of work, the rate of remuneration, they provided the essential equipment to enable Mr Coote to carry out his work being the crane and a crane driver. Mr Coote's role of slinging loads and assisting the crane driver effectively meant that he was being directed in his task by an employee of the crane company. Mr Coote was not in the true sense an entrepreneur looking for profit but rather being paid a wage under another guise. The fact that he could obtain work from other people is not inconsistent with that relationship. At the end of the day he was advancing the business of TCH and an integral part of their business of supplying cranes. The matter is not free from doubt but on balance I find that Mr Coote was an employee of TCH.
258 Other matters such as Mr Coote submitting timesheets does not displace my conclusion that Mr Coote is an employee.
Apportionment
259 In determining what is 'just and equitable' the court must consider the degree to which each defendant has departed from the standard of conduct required of them and the relative causal effect of each defendant's acts.
260 This involves questions of balance and relative emphasis, the weighing of different considerations and the exercise of value judgments. The whole conduct of each negligent party must be considered and the relative importance of the acts of the parties in causing the damage considered: Podrebersek v Australian Iron and Steel Pty Ltd [1985] 59 ALR 529.
261 In my view the primary obligation rests with TCH. They were Mr Cootes' employer. They had primary responsibility for his safety at work. An employer owes a personal, non-delegable duty to its employees to take all reasonable care to institute a safe system of work and to ensure that it is carried, so that its employees will not be exposed to unnecessary risk: Kondis v State Transport Authority (1984) 154 CLR 672.
262 TCH knew of Mr Coote's limited experience. He was injured in the course of his normal duties. TCH sent him to the site knowing it was going to be re-roofed and knowing that this would involve landing and removing materials on the roof. They ought to have known that in those circumstances it was reasonably foreseeable that to perform his job he would go onto the roof. They failed to provide any training. They failed to carry out any site inspection. They gave Mr Coote no specific instructions and left it entirely for him to determine whether to go onto the roof. Their system of work in my view was unsafe.
263 On the other hand, Frontline was the occupier of the premises. They were aware of its dangerous state. They had primary responsibility for the premises. They drew the danger to the attention of the roofing contractors. They did not draw the danger to TCH's attention.
264 However, the cause of the fall was not Mr Coote's lack of knowledge of the danger. It had been pointed out to him by the roofing team. The cause of the fall was his presence on the roof whilst the skylight was unsafe and inadvertently walking on the damaged skylight whilst performing his duty.
265 TCH did not provided any instruction to Mr Coote as to what to do in circumstances where he found the roof was in a dangerous state or if others pointed out potential dangers to him. On the other, hand Frontline had not issued any instructions to their roofing contractors to make the roof safe.
266 In those circumstances I would apportion liability as to 40% to Frontline, 60% to TCH.
267 If I am in error in my conclusion that Mr Coote was an employee and he was an independent contractor then TCH owed him the duty to use reasonable care to avoid unnecessary risk of injury by retaining a supervisory power to the extent of ensuring that Mr Coote did not go onto that roof unless the dangers had been made safe. I accept that duty is not as high as TCH's duty to an employee.
268 If Mr Coote was an independent contractor TCH have sent him to a site where they knew that roofing contractors would be working and sent him to perform a job which involved landing loads and slinging and unslinging loads on that roof. They ought to have known, as they were hired to assist in re-roofing, that at least part of the roof was in damaged condition. They ought to have known that the roofing contractors had no control over TCH's independent contractors.
269 TCH ought to have known of the likelihood that Mr Coote would go onto the roof. They ought to have known that it was a foreseeable and not insignificant risk that he could fall through that roof if part of it was in a damaged condition and not made safe. There was a high probability that such a fall would result in serious injury.
270 A reasonable response required that something be done. A reasonable response, inexpensive, practical and not burdensome, in light of the harm that would be caused was to ensure that Mr Coote did not go onto that roof unless those dangers had been made safe. TCH had a duty to retain a supervisory power to that extent. It is appropriate that they be held liable for their failure to take precautions against a reasonably foreseeable risk of harm to Mr Coote.
271 Notwithstanding that an employer's duty to an employee in law is greater than a contractors duty to another contractor factually in the circumstances of this case it makes no real difference as TCH's breach of duty is in my view greater than Frontline's and I would apportion liability in the same manner as to 40% to Frontline and 60% to TCH.
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