East Coast Scaffolding Pty Ltd v Young

[2000] NSWCA 187

CITATION:	EAST COAST SCAFFOLDING PTY LTD v YOUNG [2000] NSWCA 187
FILE NUMBER(S):	CA 41081/98
HEARING DATE(S):	7 July 2000
JUDGMENT DATE:	28 July 2000
PARTIES :	EAST COAST SCAFFOLDING PTY LTD (In Liq) v Peter Wayne YOUNG
JUDGMENT OF:	Mason P at 1; Giles JA at 2; Einstein AJA at 24

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 24/97
LOWER COURT JUDICIAL OFFICER :	Judge P A Twigg QC

COUNSEL:	Appellant: C Gee QC; T A Alexis Respondent: J D Hislop QC; M T Gollan
SOLICITORS:	Appellant: Colin Biggers & Paisley Respondent: Higgins & Higgins
CATCHWORDS:	Negligence - personal injury at workplace - scaffolding- dispute whether appellant erected the scaffolding - ND
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41081/98

DC 1/94

MASON P

GILES JA
EINSTEIN AJA

Friday 28 July 2000


EAST COAST SCAFFOLDING PTY LTD v
PETER WAYNE YOUNG
JUDGMENT

1    MASON P: I agree with Giles JA and Einstein AJA. 2    GILES JA: I have had the benefit of reading the reasons of Einstein AJA in draft. Taking advantage of his Honour’s exposition of the facts and issues in the appeal, I can briefly record my reasons for agreeing that the appeal fails. 3    The first question is whether the scaffolding on which the respondent was injured had been erected by the appellant. 4    The trial judge accepted the respondent’s evidence that he had seen Mr Murdoch of the appellant erecting the scaffolding on which he was injured; he also accepted the evidence of Mr Williams of Crow Industries that he had seen Mr Appleby of the appellant and Mr Murdoch erecting that scaffolding. Unless there be more, sufficient within the well known principles in Abalos v Australian Postal Commission (1988) 171 CLR 167, DeVries v Australian National Railways Commission (1993) 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 to overcome the acceptance of these witnesses, the trial judge’s affirmative answer to the question must stand. 5 Contemporaneous records establish that the respondent was injured on 23 June 1992. The daily report sheets establish that the cell from which asbestos was being removed at that time was cell No 1. The scaffolding on which the respondent was injured must have been the scaffolding around cell No 1. The appellant’s submitted that other evidence established that it had erected the scaffolding around cell No 3 or cell No 4, not cell No 1, and that the acceptance of the witnesses was overcome. 6 The cells were numbered in sequence from 1 to 4. The daily reports showed that the order in which scaffolding was erected around cells and then encapsulated was cell No 3, followed by cell No 4, followed by cell No 1 and then cell No 2. 7 The appellant quoted on 30 April 1992 to “dismantle and re-erect ONE UNIT ONLY”. Mr Woods of the appellant, who prepared the quotation, said that when he inspected the site prior to quoting there was scaffolding around one cell only, one of the middle cells. According to an entry in the diary of Mr Doyle of Pacific Power, the encapsulated scaffolding around cell No 3 was passed as satisfactory on 22 April 1994. In the appellant’s written submissions it said that it followed that the quotation must have been for the dismantling of the scaffolding around cell no 3 and its re-erection around cell No 4. 8    However, photographs in evidence dated in mid-April 1992 showed encapsulated scaffolding around cell No 3 and scaffolding around cell No 4 with encapsulation under way. Mr Woods must have been mistaken. This is destructive of the appellant’s reasoning. Indeed, it suggests that the quotation may have been for the dismantling of the scaffolding around cell No 3 and its re-erection around cell No 1. Mr Vought of Pacific Power said that the scaffolding went from cell No 3 to cell No 1. 9    Perhaps for this reason, in its oral submissions the appellant moved to saying that the quotation was for the dismantling and re-erection of the scaffolding on the same cell, cell No 4. There was nothing in the evidence to suggest either why the scaffolding should have been dismantled and erected around the same cell, or that this was done. There was express evidence to the contrary: Mr Woods said that the appellant dismantled scaffolding around one of the cells and re-erected it around another cell. 10    According to Mr Doyle, in May 1992 Mr Vane of Crow Industries told a progress meeting that he was going to employ the appellant to erect the scaffolding around cell No 4, because it had taken Crow Industries too long to erect the scaffolding around cell No 3 and it was uneconomical for Crow Industries too long to erect the scaffolding around cell No 4. In the appellant’s written submissions it said that this also showed that the quotation was for the erection of the scaffolding around cell No 4, and Mr Doyle gave evidence that he saw Mr Appleby and Mr Woods erecting the scaffolding around cell No 4. However, when the scaffolding around cell No 4 was in place in mid-April 1992 (as the photographs showed), Mr Doyle must have been mistaken in his recollection of the number of the cell. The probability is that the cell to which Mr Vane referred, and on which Mr Doyle saw the appellant’s employees working, was the next cell in the order after cell No 4, that is, cell No 1. 11    When asked which cell the appellant had to re-erect scaffolding around, Mr Woods said that he did not know which one but it was “an end one and it was the second one”. If it was “an end one” it could not have been cell 3, but had to be either cell No 1 or cell No 4. The appellant said that Mr Woods must have meant cell No 4. If by “the second one” Mr Woods meant that it was the second cell in the order in which scaffolding was erected around cells and then encapsulated, the photographs show that he was mistaken. Since the scaffolding around cell No 4 had been erected and it was being encapsulated by mid-April 1992, the cell can not have been cell No 4. This evidence of Mr Woods does not assist the appellant, but tends to support that the appellant erected the scaffolding around cell No 1. 12    Mr Murdoch gave evidence that he had not erected scaffolding, but had only dismantled it. He was not a ticketed scaffolder. He was adamant that he had dismantled the scaffolding around cell No 3 and was not involved in the erection of scaffolding around cell No 1, and that he knew only that the scaffolding he dismantled was put in baskets at the foot of cell No 3. The appellant said that what the respondent and Mr Williams saw was Mr Murdoch dismantling the scaffolding around cell No 3. However, there was also the evidence of Mr Appleby’s involvement, and although he did not specifically refer to it the trial judge was entitled to be sceptical of Mr Murdoch’s asserted lack of knowledge of what was occurring on the site and to prefer the respondent’s evidence that Mr Murdoch was erecting scaffolding. 13    Mr Williams initially identified the cell around which he saw Mr Appleby and Mr Murdoch erecting scaffolding as cell No 3, “I’d say”. He later agreed that he could not recall the order of the cells on which work was done, “I think we started at one end and went to the other”. He said that he meant from cell No 4 to cell No 1. His recollection also must have been mistaken in this respect. The trial judge was entitled to accept his evidence of seeing Mr Murdoch and Mr Appleby erecting scaffolding, while concluding that his identification of the cell was unreliable. 14    The respondent thought that he was working on cell No 3 when he was injured. He had little experience of the site, and the trial judge considered that he was in error. He must have been in error, and this does not assist the appellant. 15    I do not think that any ground has been shown for overturning the trial judge’s conclusion, from his acceptance of the evidence of the respondent and Mr Williams, that the scaffolding on which the respondent was injured had been erected by the appellant. Properly understood, some of the evidence on which the appellant relied tends to support that conclusion; it was otherwise open to his Honour, where there were obscurities and inconsistencies in the evidence before him, to come to his conclusion in the manner he did. 16    The second question is whether the appellant failed properly to secure the planks on the scaffolding where the respondent fell. 17    The trial judge found that the appellant was injured -

“ … because planks were loose and causing a gap. It follows that looseness was caused by the lashing coming loose. It had not been properly affixed in the encapsulation process by the Defendant”.

He concluded on the balance of probabilities “that the scaffold was not securely or properly tied by the Defendant”. The appellant suggested that his Honour misapprehended the evidence in referring to the encapsulation process, because the appellant erected scaffolding but did not encapsulate it. I think it more likely that there was a slip of the tongue, and that his Honour intended to refer to erection of the scaffolding. The key finding is that the lashing came loose because it had not properly been tied.

18    When the respondent fell the lashing around the planks was seen to be loose, so that the planks parted and his leg went between them. Mr Doyle agreed that in a properly constructed scaffolding the lashing would last for the duration of the asbestos removal. More importantly, because he was a scaffolder, when Mr Woods was asked to agree that if the planks had been “lashed in a way that the wire works itself loose”, that would indicate that the wiring had not properly been tied, he replied, “If it worked itself loose that would obviously be the case”. There were three possibilities. One was that the appellant’s original lashing of the planks was loose; another was that the original lashing of the planks was not loose but, because the wiring had not properly been tied, it worked itself loose; the third was that the lashing had been untied and retied by someone other than the appellant. Only the third would profit the appellant. 19    The encapsulation process included that the planks were wrapped in hessian and plastic. While it is not entirely clear, it seems that the planks were not individually wrapped and that the wrapping occurred when they were in place as part of the scaffolding. The appellant said, that the loose wiring might have been because Crow Industries had undone the appellant’s lashing when the planks were wrapped and had re-tied it improperly. There was no evidence to support that the wrapping of the planks involved untying and re-tying the lashing, and such a process is inherently unlikely. 20    The scaffolding was inspected by Mr Woods during erection, and by Mr Doyle and/or Mr Vought after encapsulation. A number of workers used the scaffolding during the encapsulation process and then during removal of the asbestos. The appellant said that the loose lashing would have been detected on inspection or in the use of the scaffolding. From the descriptions of the inspections, at best they would have revealed moving or tilting planks or visibly loose lashing: indeed Mr Vought said that he would not look for wiring not properly tied until he saw the boards spreading. It would not have detected lashing which had not properly been tied so that the wire worked itself loose. Use of the scaffolding would not have revealed planks moving until the wire worked itself loose. The inspections and use are consistent with discovery of the loose lashing around the planks where the respondent fell only at the time of his fall. 21    On 10 June 1992, during encapsulation of the scaffolding, it was noted that planks had been removed in the scaffolding around cell No 1. Steps were taken to have the planks replaced and lashed. It was not suggested that the planks were where the respondent fell. Mr Vought gave evidence that this had occurred on other occasions, he thought probably to make encapsulation easier by permitting items to be passed directly between levels of the scaffolding. The occasions and places were not identified. The appellant said that the loose wiring where the respondent fell may have been the result of such a happening. The possibility must be recognised, but it requires the combination of removal of the particular planks where the appellant fell and defective lashing when they were replaced. The evidence did not suggest other than occasional removal of planks, with no reason for removal of the particular planks, and it might be thought that particular care would be taken when replacing planks in the circumstances. 22    Bearing each of these matters in mind when determining whether, on the balance of probabilities, the respondent established that the appellant failed properly to secure the planks on the scaffolding where he fell, in my opinion he did. Perhaps the initial lashing was loose but not detected on inspection or in use, more likely the lashing of the planks where the respondent fell came loose in the period prior to his fall because the wiring had not properly been tied; these should be preferred to the third possibility. 23    The appeal fails if both questions are answered in the affirmative, as they are. I agree with the orders proposed by Einstein AJA. 24    EINSTEIN AJA: This is an appeal from judgment of Judge P.A.Twigg, QC delivered on 27 November 1998. 25    The respondent suffered an injury to his right knee on 23 June 1992 whilst working on scaffolding erected around a power cell on the roof of the old Wallerawang Power Station [“the power station”] at a time when asbestos was being removed from a series of such cells at the power station. A real question arose in the proceedings as to the identity of the specific power cell on which the respondent was working at the time he suffered the injury and importantly, as to whether or not the appellant had erected that particular power cell. 26    Pacific Power was at the material time the owner of the power station and Crow Industries Pty Ltd (referred to in the judgment as "the employer ") had been retained by contract with Pacific Power to remove asbestos from the power cells. The respondent was employed by Crow Industries as a lagger and was required to perform general labouring work including working on scaffolding. The appellant, East Coast Scaffolding Pty Ltd, was a subcontractor to Crow Industries in respect of certain of the work. Precisely what work East Coast had carried out and on which cell became an important issue. An important ground of appeal challenged the trial judge's holding that East Coast had erected the scaffolding on the power cell on which the respondent had been working at the time. 27    There was no issue but that there were four power cells on the roof of the power station which were respectively numbered 1, 2, 3 and 4. A sketch plan of these cells had been tendered before the trial judge as exhibit 2. It was also clear that the respondent was injured whilst working on the scaffolding around Cell No.1, which was one of the end cells. 28    Detailed evidence was adduced as to the approach taken in relation to the work carried out on the subject cells. It appears that following the erection of scaffolding around a particular cell, the next relevant step was to encapsulate the walkways and the whole of that cell in plastic [referred to in the daily report sheets as ‘encapsulation’ or ‘building the bubble’], following which the asbestos would be stripped from the cell. The encapsulation works were carried out by Crow Industries. It appears that scaffolding was removed and later used in following a similar process for the other cells. The evidence was apparently however of real uncertainty as to which particular cells at the material time still had scaffolding around them. And notwithstanding the documentary evidence before the trial judge, it seems that a number of mistakes were exposed in cross-examination in relation to certain of that documentary material-see for example the mistakes in the diary retained by Mr Doyle, an employee of Pacific Power who at the material time, was employed as an asbestos inspector and had the responsibility of supervising the work being carried out by Crow Industries. [Transcript at Black appeal book at 120 and 121] 29    The grounds of appeal ultimately pressed were as follows:

1 His Honour erred in finding that the appellant had erected the scaffolding upon which the respondent was injured on 26 June 1992.
2 His Honour erred in finding, on the evidence, that Mr Michael Appleby and/or Mr Stephen Murdoch, employees of the appellant, erected the scaffolding upon which the respondent was injured.
3 His Honour erred in finding that the appellant had not securely or properly tied the planks on the scaffolding upon which the respondent was injured.
4 His Honour erred in finding that the appellant had breached Regulation 86(1) pursuant to the Construction Safety Act , 1912 (NSW) and that the scaffolding upon which the respondent was injured was not in good construction and was not suitable for its intended purpose.
5 His Honour erred in failing to find on the evidence that the planks on the scaffolding erected by the Appellant were properly lashed down, when the scaffolding was handed over to the Respondent's employer, Crow Industries and before Crow Industries commenced to encapsulate the scaffolding with plastic prior to the removal of asbestos.
6 His Honour erred in failing to find on the evidence that the planks on the scaffolding erected by the appellant, became loose after the scaffolding was handed over to Crow Industries, so that the loose planks that were causative of the respondent’s injuries was the result of the conduct of Crow Industries or its employees.

30    Insofar as the appellant's submissions challenged relevant findings of fact on the basis that there was said to be no evidence to support those findings, and/or sought to go behind the trial judge’s acceptance of evidence given by witnesses it was accepted during the hearing of the appeal that the appellant undertook the burden of a party doing so [Abelos v Australian Postal Commission (1988) 171 CLR 167; Devries v Australian National Railways Commission (1992-1993) 177 CLR 472; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in Liq) (1989) 73 ALJR 306, 160 ALR 588)

Grounds of Appeal 1 and 2

31    His Honour found and there was no real issue in relation to this, that it was the respondent's job to go onto the scaffolding in order to remove asbestos, by collecting the asbestos in bags from one part of the building and carrying it along planks on scaffolding to a place where he threw the bags, weighing about 25 to 50 kg’s and about the size of cement bags, over the edge of the scaffolding to the ground or the next level below. From there it was removed from the site. The respondent was dressed in work clothes and was provided with a mask with respirator. 32    Nor was there any real issue as to his Honour's finding that as the respondent was carrying a bag of asbestos in front of him, using his hands to hold it in front of him, his left leg went into a hole in the planking on the scaffold causing his right knee to strike the scaffold. The respondent also hit his elbow and face on the scaffold. One leg went between two planks and the other twisted and struck the scaffold causing his injury. 33    In his reasons for judgment his Honour found that after the respondent had been lifted out of the scaffold by other workers and laid down nearby on the scaffold, he noticed that the wire lashing required to keep the planks in place and attached to the metal frame, had come loose, so that a gap had emerged in the planking. 34    An important finding of fact involved the acceptance of the respondent's evidence that sometime before his accident, he noticed Mr Stephen Murdoch, an employee of the appellant for a few years, twice erecting scaffolding on the roof of the power station, that is to say, on the same scaffolding on which the respondent was working when he was injured. 35    The trial judge also relied upon the evidence of Mr Williams who was at the material time employed by Crow Industries as a belt splicer, and who had observed a Mr Appleby employed at the time by East Coast, erecting scaffolding. On the evidence Mr Appleby had later been employed for a period (from 22 June 1992), by Crow Industries. His Honour inferred from this evidence that the appellant had erected the scaffolding around Cell No.1. 36    There is no doubt but that the evidence given by the respondent was in certain respects, as he conceded, incorrect. His evidence as to the date when he had suffered the injury was incorrect. He had placed the date as 26 June 1992 when as the trial judge found, the accident had clearly occurred three days earlier on 23 June 1992. The respondent had also been in error on the trial judge's findings, as to which cell he had been working on at the time. A close reading of the respondent's evidence makes plain that his familiarity with the identity [that is to say, the number and position] of the particular cell that he was working on, was vague. He gave evidence on a number of occasions that these were matters which were not clear or very clear to him. But one point in respect of which he gave evidence of which he said the Court could be confident, was that the scaffolding through which he had fallen was scaffolding on the very same cell in respect of which he had actually seen Mr Murdoch of the appellant erecting scaffolding. And he denied the suggestion put to him that his evidence of seeing Mr Murdoch on the roof erecting scaffolding at the time was completely and utterly false. 37    The short point is that the trial judge accepted the respondent's evidence on this point. In doing so the trial judge found that the respondent was a truthful and credible witness. In the trial judge's words "He may be naive, even simple; he may be vague and inaccurate about many matters, some of importance. However, I am satisfied that he was doing his best, at all times during his evidence to give an accurate and truthful account of his accident… To take the view of him suggested in submissions on behalf of the defendant would require me to make a finding either that he has concocted a story about his accident, or that he is so inaccurate as to his account that he has failed to prove his case on the balance of probabilities… I reject both those submissions". 38    The appellant in seeking to challenge the subject finding that the appellant had erected the scaffolding around Cell No.1, submits that the finding was based on two matters namely:

(i) The respondent's evidence, inter alia, that he had seen Mr Murdoch, then an employee of the appellant, erecting the scaffolding on which he was injured.
(ii) An inference from the evidence of Mr Williams who gave evidence that he had seen Mr Appleby erecting scaffolding, that the appellant had erected the scaffolding around Cell No.1 where the respondent was injured.

39    The approach taken by the appellant in submissions dealt seriatim with the documentary evidence and with the oral evidence. 40    As to the documentary evidence, the appellant submits that it demonstrated that the order in which the scaffolding was erected around the cells and then encapsulated within plastic prior to the commencement of the asbestos removal work, was Cell No.3 followed by Cell No.4 followed by Cell No.1 and finally followed by Cell No.2. The submission is that this occurred from April to July 1992 and in this respect the appellant relies inter alia upon the diary of Mr Doyle and upon certain other diary and daily report sheets. 41    The appellant then submits that the quotation from the appellant to the employer dated 30 April 1992 to "dismantle and re-erect one unit only", was prepared by the appellant's project manager, Mr Woods and was prepared after a site inspection of approximately one week before 23 April 1992 when he observed scaffolding around "one of the middle" cells. The submission is that on the evidence there were no other cells surrounded by scaffolding and wrapped in plastic at the time of Mr Woods’ inspection. In cross-examination Mr Woods denied that scaffolding had surrounded two of the cells at the time of this inspection. 42    The appellant then submits that the entry in Mr Doyle's diary for 22 April 1992 demonstrates that the encapsulated scaffolding around Cell No.3 was passed as satisfactory on that day. The appellant submits that in those circumstances, Mr Woods observed Cell No.3 as "one of the middle" cells and provided his quotation to dismantle that scaffolding and to then erect scaffolding around Cell No 4. 43    The appellant also seeks to rely upon evidence given by Mr Vane who was the site manager of the employer and the respondent's supervisor. He had told Mr Doyle and others at a meeting that "he was going to employ East Coast Scaffolding, to do No.4 centre cell as it wasn’t economical for Crows to do it at that time… when they did No.3, it took them too long to do No.3…”. The appellant seeks to rely upon evidence that Mr Vane completed the purchase order dated 4 May 1992 for the appellant to "dismantle and re-erect one unit only". 44    The appellant submits that Mr Doyle gave clear evidence that he observed Mr Appleby and Mr Woods involved in the erection of scaffolding around Cell No.4, consistent with what Mr Vane said he would employ the appellant to do. The appellant relies upon Mr Woods’ confirmation in cross-examination that the appellant erected the scaffolding around the “end one and it was the second one”, sequentially, which it is said could only be a reference to Cell No.4. 45    The appellant relies upon Mr Murdoch's evidence that he had never erected scaffolding on the roof of the old power station but had only dismantled scaffolding and was not a ticketed scaffolder. The appellant seeks to rely upon the cross-examination of Mr Murdoch in which he is said to have confirmed that he dismantled the scaffolding around Cell No.3. The appellant asserts that the Mr Murdoch maintained that he was not involved in the erection of scaffolding around Cell No.1 and submits that this was not challenged in cross-examination. 46    The appellant then submits that what the respondent really saw was Mr Murdoch dismantling the scaffolding around Cell No.3. The appellant points out that the respondent had maintained in his evidence that he was in fact injured on the scaffolding around Cell No.3. 47    The appellant finally refers to the evidence given by Mr Williams that he observed Mr Appleby erecting scaffolding around Cell No.3. Mr Williams was employed by the employer and was a scaffolder. 48    In this regard the appellant relies upon the cross-examination of Mr Williams who is said to have confirmed that he could not remember the scaffolding and the cell that he saw Mr Appleby working on a week or two before the respondent's accident and that it could have been Cell No.3 or could have been Cell No.4. The submission is that Mr Williams gave no evidence to support the inference drawn by the trial judge that the appellant erected the scaffolding around Cell No.1. 49    In the result the appellant submits that the finding of the trial judge that the appellant erected the scaffolding around Cell No.1, is unsupported on the evidence and submits that such evidence demonstrates, in fact, that the appellant did not erect the scaffolding on which the respondent was injured. 50    The respondent gave evidence which the trial judge clearly accepted that he had seen scaffolding being erected by Mr Murdoch, then an employee of the appellant, some weeks before his accident in the area where he had had his accident. As already indicated, this evidence was that “where [the respondent] fell……was the same scaffold which [he] saw Mr Murdoch erecting”. On the respondent's evidence this took place in the period of around approximately 10 or 15 June 1992. 51    Mr Williams gave evidence that he had gone to where the accident occurred which he believed was Cell No.3 and that he had seen the scaffold being constructed around that cell he thought by “East Coast, West Coast” but could not quite remember. It was, to use his words, “different construction-scaffold mob to us anyway”. He was asked and answered as follows:

Q. “What people did you see doing that construction?

A. “There was Mick Appleby and Stephen…

Q. “Who did they work for?

A. “They work for East Coast Scaffolding

Q. “And Stephen, was his name of Murdoch?

A. “That could have been him, yeah. I think it was actually Murdoch, yeah"

52    Mr Williams seemed unclear as to the precise order of work on the particular cells. His evidence at transcript page 85 was that he would not know to be sure, whether or not Cell No.3 was the cell around which scaffolding was erected first. He did not think that it was Cell No.1 that the respondent had fallen on. 53    The trial judge was obviously it seems to me, strongly influenced by the daily report sheets signed by Mr Doyle [exhibit 6] which clearly indicate that at the time of the accident, asbestos removal was taking place in relation to Cell No.1. Those same daily report sheets clearly indicate that at the date of the accident ‘building the bubble’ [that is to say the encapsulating of the scaffolding] works were taking place in relation to Cell No.2. Mr Doyle had also given evidence that Mr Appleby had been in charge of the erecting of scaffolding of Cell Nos. 1, 3 and 4. 54    I have already referred to certain of the mistakes which Mr Doyle made in certain of his diary entries. This extended to mistaken references to cell numbers inspected - as for example the diary entry for 19 June. 55    The difficulties with the documentary evidence led the appellant in written submissions before the trial judge, to submit in relation to all the relevant documentary evidence [including the diary of Mr Doyle [exhibit 4], the diary of Mr Vought [exhibit 11], the daily report sheets [exhibit 6] and the asbestos removal shift report sheets [exhibit 5]], as follows:

"This documentary evidence does not, however, clearly identify the scaffolding 'dismantled' and 're-erected' by the defendant: it is necessary, therefore, to consider the oral evidence of the witnesses called in the defendant's case to conclude that, on the balance of probabilities, the defendant did not erect the scaffolding around Cell No.1".
[written submissions paragraph 3.5]

56    The trial judge effectively took the same view as he made plain, that the documentary evidence, although clarifying what work was done on the respective cells and the order in which the work of enclosure was performed, did not particularise the scaffolding with which the appellant was involved. 57    In consequence the appellant took very special care to closely examine before the trial judge, the oral evidence of the witnesses called in the defendant's case descending in the course of it’s submissions, to the matters put in cross-examination to the defendant's witnesses. The difficulty which the appellant faces in relation to the question of fact now in focus is simply that the trial judge was entitled to reject the evidence given by the defendant's witnesses on this point and effectively did so in stating that the evidence of those witnesses did not convince him that the scaffolding on Cell No.1 was not erected by the defendant at the relevant time. 58    In the circumstances in which the appellant was unable to produce any documentary evidence as to which cell or cells it had erected the scaffolding upon and in which there was some conflict on the evidence as to the precise dates of the erection and dismantling of particular cells and in which the appellant did not contend that it had erected the scaffolding on Cell No.2 (which, being the last to be scaffolded and encapsulated may safely be left out of consideration), and in which the trial judge had evidence from the respondent which supported the proposition that the appellant had erected the scaffolding from which the respondent had fallen, to my mind the appellant has not established that there was no or insufficient evidence before the trial judge to permit a finding that the appellant had erected the scaffolding around Cell No.1. Nor has the appellant established that this finding was not open to his Honour in terms of a somewhat complex set of facts and one in relation to which the precise order of works in relation to the subject cells, was the subject of contradictory evidence in a number of ways. 59    Whilst the evidence of Mr Williams seems a somewhat unsatisfactory base from which to draw the inference referred to in paragraph 15(ii), the trial judge accepted the respondent’s above described evidence and has not been shown to have clearly erred on what was a hotly contested question of fact. 60    Mr Woods evidence had been that the appellant commenced work on dismantling and re-erecting the scaffolding soon after receipt of the formal purchase order (probably between 4 and 11 May 1992, a facsimile copy of the purchase order having probably been received before the original). Mr Wood’s evidence was also that the appellant’s scaffold erection had been on an end cell. 61    If the appellant had erected scaffolding around Cell No.4 then (in the absence of the appellant having first dismantled scaffolding from Cell No.4 only to then re-erect the scaffolding around Cell No.4), it would not be possible to find that as of 16 April 1992 scaffolding had already been erected around Cell No.4. And yet the photographs exhibits AA and AB clearly show Cell No.4 surrounded by scaffolding on 16 and 23 April 1992. 62    Mr Vought had given evidence in his statement that as at 31 March 1992 the erection of scaffolding was progressing around Cells No’s.3 and 4. 63    As to the possibility that the appellant had dismantled scaffolding from Cell No.4 only to re-erect it around that same cell, Mr Woods’ evidence clearly negated that proposition [statement paragraph 4 - where Mr Woods gave evidence that the appellant dismantled scaffolding around one of the cells “and then re-erected around another cell”]. Mr Murdoch had also given evidence of the dismantling of scaffolding which was immediately then used by the appellant to erect another cell. 64    The photographs make plain that Mr Woods’ evidence of observing scaffolding around only one of the cells approximately one week prior to 23 April 1992 had to have been mistaken. 65    The trial judge had evidence before him given by Mr Vought that “the first two cells from which scaffold was dismantled and erected involved Cell No.3 to Cell No.1. And Mr Vought’s diary note for June 5 indicates that as at this date roof bubble erection was continuing on Cell No.1. Hence the erection of scaffolding on Cell No.1 had to have been completed prior to 5 June 1992. 66    Clearly the trial judge had evidence before him to permit the findings that the appellant had erected the scaffolding around Cell No.1 upon which the respondent was injured on 23 June. 67    If indeed it be that in fact, the trial judge erred in his holding as to the respondent having suffered the injury whilst working on Cell No.1, so that for example, he was in fact injured whilst working on another of the cells, then as I understand the position, as long as the respondent's evidence was accepted to the effect that he had personally observed an employee of the appellant erecting the scaffolding on that same cell, presumably the very same result would have followed in terms of the liability of the appellant. 68    In the result grounds of Appeal 1 and 2 are not made out.

Ground of Appeal 3

69    It is convenient in commencing to examine the submissions on this ground of appeal to note that, as was conceded by the appellant during submissions, it is impossible to be certain from the evidence, of the number of days which had elapsed between the completion by the appellant of the construction of the scaffolding on Cell No 1 and the date of the accident. All that the evidence reveals is that by 5 June, the encapsulation process was taking place, so that completion by the appellant of the scaffolding works had to have taken place at some time prior to 5 June 1992 [see Mr Vought’s diary entry for 5 June]. On this basis there had to be at least some 18 days which had elapsed between completion by the appellant of its scaffolding erection works and the date of the accident. 70    His Honour held that the scaffolding was not securely or properly tied by the appellant. The appellant contends that there was no evidence that it was responsible for such failure but does not contest the proposition that on the evidence, the scaffolding was not securely or properly tied. The appellant submits that there was no evidence before the trial judge to establish that at the time when the scaffolding erected around Cell No.1 was handed over to the employer (as distinct from the time of the respondent’s accident), the planks on the scaffolding were not lashed down properly. 71    The appellant refers the court to the trial judge's finding that the lashing “had not been properly affixed in the encapsulation process by the defendant” [emphasis added]. The appellant's submission is that there was no warrant whatever in the evidence for the trial judge to have found that the ‘encapsulation process’ (as opposed to the ‘scaffolding erection process’), comprised any part of the works which the appellant contracted to and in fact carried out. The respondent accepted that on the evidence the works carried out by the appellant did not relate to the encapsulation process but submitted that trial judge clearly intended to refer to the "erection process" and must be taken to have simply used the incorrect word which may be excused in the circumstances of such an obvious mistake. In all of the circumstances this is a submission of substance. 72    The gravamen of the appellant's submissions went to a very close examination of the evidence before the trial judge in an endeavour to establish that the respondent had not proven, on the balance of probabilities, that the scaffolding through which the respondent had fallen, had not been interfered with between the time when the scaffolding was handed over to the employer and the occurrence of the accident. 73    The appellant sought to rely upon evidence given by Mr Woods as to his inspections of the scaffolding during and at the completion of the erection of scaffolding around the cell. In his statement he had given evidence that he carried out inspections on approximately three separate occasions. His evidence was that he walked along the planks and gave them “a bit of a kick to make sure that they’re tied down properly, walk on them to make sure that they don't wobble”. He was asked whether as he was walking over the subject planks during his inspections, he would have been able to feel something if the planks had not been lashed down. His evidence was that this would have been if the planks were not level in which event they would wobble as one walked on them but that if they were “laying flat” it was very difficult to determine whether they were tied down or not. At the same time he also gave evidence that the boards that he had inspected were in fact lashed down on both ends. On his evidence his first two inspections took place during the erection stages and his third inspection had taken place at completion of the scaffolding erection. The appellant relies upon the last inspection as well as the earlier inspections and upon the term of the contract pursuant to which the appellant carried out its works, which term had required that upon completion of each scaffold, a representative of Crow Industries inspect the scaffolding and issue a site instruction acknowledgment that the scaffolding had been completed to the client's satisfaction. The appellant also relies upon evidence given by Mr Woods as a matter of company practice to the effect that before handover of scaffolding to a customer, a representative of the appellant together with a representative of the client, would inspect the scaffold to make sure that it was exactly what the client wanted and that during the course of such inspections, as a matter of company practice, the inspections included making sure that planks were lashed down. 74    The appellant also drew the court's attention to the evidence given by Mr Vought that after the encapsulation process was complete Mr Doyle and/or Mr Vought inspected the encapsulated cell which inspection involved walking over the various levels of the scaffolding to ensure that the encapsulation was completely air tight. This evidence was that the inspection included a thorough look over the scaffolding to ensure that there were no trip hazards or gaps in the scaffolding planks and to ensure that all of the scaffolding planks were completely wrapped in plastic and tied down and to check that the planks were secure so that they did not have the capacity to move at all when the stripping work was to be undertaken. 75    There was no evidence before the trial judge that the process of covering the planking in hessian and plastic involved the undoing of the lashing of planks during the erection process. In argument Mr Gee accepted that it was not likely that this procedure would have been adopted as it would have seemed extraordinarily inefficient for the scaffolders to first lash the planking down and then to have the employer unlash during the later encapsulated process. 76    The appellant took the court to a close examination of certain of the evidence before the trial judge to the effect that some planks had been removed during the encapsulation process. A diary note of Mr Vought of 10 June 1992 was referred to. This stated that encapsulation had been inspected in Cell No.1 and that scaffold planks had been found to have been removed. According to the note the problem had been reported to the supervisor on that particular cell. In this regard and although difficult to decipher, the note appears to read “Nigel informed the planks to be reinstalled due to the safety hazard and exposed asbestos to be sealed”. Mr Vought gave evidence before the trial judge in relation to this note to the effect that on one of the levels he had noticed that someone had removed some planks-this being while the encapsulation process was continuing. His evidence was that he thought that it was probably to make the job a little easier so that items could be passed directly up instead of climbing up and down ladders. His evidence was that he immediately referred the matter to the supervisor requesting that those planks be immediately reinstalled and lashed back down. His evidence was that in this particular instance work had not stopped because the matter was addressed immediately when someone was required “to lash it down and that's what happened”. It was plainly open to the trial judge to infer from the terms of this answer that the missing plank or planks were replaced and lashed down. Mr Vought’s evidence was that this type of thing had occurred in other instances. He was asked whether he recalled whether these instances were on scaffolding up on the roof and his answer was “Not in particular on the roof…”. 77    A similar note appears in the diary of Mr Doyle also for 10 June. In this case the note reads inter alia: “plank (sic) have been removed on various level (sic) which has caused a safety hazard Nigel informed that they have to put (sic) back in place”. 78    Insofar as the evidence before the trial judge clearly disclosed that the subject scaffolding was inspected a number of times on each day, the trial judge was entitled to take the view that the respondent’s submission that the absence of one or more missing planks would have been in all likelihood an obvious matter, was a submission of substance. The respondent submits that there was no evidence before the trial judge in the documentary inspection records, of missing planks having been detected on any occasion otherwise than that which was the subject of the 10 June diary notes. Importantly the respondent draws the court's attention to the photographs of Cell No.1 which clearly show a number levels of scaffolding in respect of which there would have been a large number of planks forming part of the subject scaffolding. There was no particular material in the evidence linking the 10 June missing plank episode to the specific area where the respondent had fallen through the scaffolding. The trial judge was clearly entitled to assume that the missing planks referred to in the 10 June diary notes had been attended to well before the accident in terms of rectification of the problem. 79    Broadly the appellant's submission was that the encapsulation process by definition involved a number of steps being taken by those undertaking that process, the appellant having had nothing whatever to do with that work. In this regard the appellant has taken the court to a close examination of the evidence before the trial judge as to the detailed process involved in the encapsulation process. Mr Vought gave evidence in his statement to the effect that the encapsulation involved making a timber frame on the scaffold and then attaching plastic sheets to that timber frame around the scaffold so as to quickly encase the scaffolding and the particular cell. It seems not to be in issue but that, as Mr Doyle indicated in the course of his giving evidence, the encapsulation process included the placing of hessian on the walkways and the wrapping of scaffolding around the planks, although it was not suggested that each plank was individually wrapped. Ultimately all of the walkways became wrapped in plastic as did the whole of the cell, to the extent that a smoke test was carried out to ensure the integrity of the plastic seal. 80    The trial judge was entitled to infer from the body of evidence before him that there was no particular reason why the encapsulation process should have interfered with the tying down by the appellant of the planking in any way which would not have been shortly detected by those carrying out daily inspections. 81    The real question which underlies the appellant's attack upon the trial judge's findings in relation to this matter goes to the particular evidence as to how the appellant had tied down the planking as a general matter prior to its handover of the scaffolding and as to the state of affairs which obtained at the precise point in the scaffolding closest to where the respondent had fallen through the scaffolding, at which point the scaffolding had been found to be no longer secured. 82    Mr Gee QC, leading counsel for the appellant, accepted in submissions that there was no evidence as to precisely how the planks might have come to separate to permit the emergence of the gap through which the plaintiffs leg had fallen. One possibility was that in some fashion one plank may have risen to ride up on top of another. Another possibility may have involved some horizontal movement of planks. Another possibility involved a deliberate removal of planks later replaced without being properly lashed down hence permitting of movement. As will appear from the following section in this judgment, either of the first of these could well have ultimately resulted from a failure by the appellant during the carrying out of its scaffolding erection works, to properly tie down particular planks where they extended onto or through some stairs. 83    It seems clear from the evidence that very close to the place where the appellant had fallen through the scaffolding it was noticed that although one end of the planks were securely lashed down, at the other end of the planks and where they came onto a step or under some steps, the lashing had been found not to be secure. 84    The evidence given in chief by Mr Finneran at transcript page 138 related to the point where the respondent’s leg had gone between the planks. The evidence included:

Q. “Now can you tell us where these planks ran to and from?

A. “Well I don't know exactly how many planks there were, but there were placed-one end was correctly tethered I suppose-call it, in scaffolding, and the other end was lashed, or roughly lashed, I don't know, it was-they just weren't tied down very well, under some steps . They hadn't been secured properly I thought.

Q. “So this went from scaffold, the planks went from scaffold to a step ?

A. “Yeah, that's right.

Q. “And was it where the planks came onto the step…that they’d split?

A. “That's where they’d come apart.

Q. “And was the step used as a means of support for one end of the plank ?

A. “Well it had to be, because you couldn't get scaffolding in the there, yeah. That's what it had been used for.

……..You couldn't get scaffolding in

Q. “You couldn't get the tubular scaffold in there?

A. “That's right, so they’ve lashed them to the steps…"
[emphasis added]

85    The evidence given by Mr Finneran in cross examination at transcript page 146 was inter alia as follows:

"One end was-it was-the planks were fixed into the scaffolding. Now there’s a correct piece of scaffolding that the end of the planks sit in. And then the other end, where it had come apart, they-the planks were just pushed through two steps of the stairwell .

Q. “So the end that you described as being correctly tethered was one end of the two planks that had separated, is that right?

A. “Well two ,three, four planks.

Q. “And then if we can come down to the other end, your evidence was that that was lashed or tied down, but not properly?

A. “That's what I thought, yes.

Q. “And that was the view you formed when you saw it on the day?

A. “Yeah, when I'd seen what had happened.

Q. “It hadn't been lashed or tied properly?

A. “That's what I’d thought.

Q. “And is really what you're saying to his Honour that the end of that plank, or those two planks, had been lashed down, but I suppose through wear and tear it had just worked loose?

A. “It had come loose somehow. Whether it hadn't been lashed tightly enough, or had come loose through wear and tear, that's what had happened …

Q. “And so… it appeared to you, did it not, that this lashing had through wear and tear simply got a bit loose, and that's why…

A. “ I don't know whether-I couldn't say if it was wear and tear or whether it hadn't been lashed correctly . All I seen (sic) was that just (sic) parted, and he'd fell straight through.

Q. “But one thing you did see was that there was lashing wire around that end of the planks?

A. “There seemed to be, yeah.

Q. “And it would be quite wrong to suggest that there was no lashing there are at all, wouldn't it, because of what you were able to observe standing next to Mr Young?…

A. “Yes."
[emphasis added]

86    The appellant submitted before the trial judge that if the observations of Mr Finneran were accepted, the respondent’s case against the appellant could only be based upon an inference to the effect that the subject planks had not been lashed down properly by the appellant. The trial judge expressly accepted the evidence of Mr Finneran and went so far as to detail the precise segments of this witnesses evidence which were accepted. 87    The trial judge had evidence before him as to the manner in which the wire, once lashed around the planks, was tensioned off. The evidence was that this occurred through a process using crescent pliers, where two sections of wire are twisted together. This is of course a common method of securing strands of wire by twisting them usually using a pair of pliers. 88    In the result the respondent submitted that on the evidence, the trial judge had open to him a finding that in the particular circumstances in which the subject planks had apparently been pushed through two steps of the stairwell, the probabilities were in favour of the inference that an incorrect attempt to tie the subject planks down prior to and as at the date of handover by the appellant following its completion of its section of the works, was the cause of the later working apart of the planks at the point where the respondent's leg had fallen through the scaffolding. The trial judge was entitled to regard this as a submission of substance borne out by the evidence. 89    The trial judge was satisfied from all of the evidence that the planking was loose and expressed his finding as follows:

"To stand away from the evidence and regard it as a whole story, and avoid comparing one part with another, leads to the resounding conclusion that the plaintiff was injured because planks were loosened causing a gap. It follows that that looseness was caused by the lashing coming loose. It had not been properly affixed in the encapsulation process by the defendant"

90    The appellant’s submission that there was no or insufficient evidence to support this finding is rejected as without substance. In particular it is to be noted that evidence was adduced before the trial judge from Mr Doyle under cross-examination that he would expect that if scaffolding was properly constructed, the lashing would last for the duration of the asbestos removal. Additionally the respondent himself gave evidence that in his experience this type of wire simply did not break or come apart in the ordinary course of working on scaffolding. 91    There is also significance to be attached to the absence of evidence that the systematic covering of the planks with hessian and plastic involved an equally systematic unlashing and re-lashing of the planks to the scaffolding. Had there been any such evidence, the appellant's submission that on the probabilities the movement of planks through which the respondent fell was more likely than not to have taken place in those works (which followed the conclusion of the appellant's scaffolding erection works), may well have been compelling. In those circumstances it would have been for the respondent to show that the movement in the planks which resulted in his fall and injury had not been caused by the later unlashing and re-lashing of relevant planks during the encapsulation process.
92    In the result it was open to the trial judge to conclude as his Honour did, that the gap between the planking and the subsequent injury to the respondent was caused by the appellant's failure to properly tie the scaffolding planks. On the evidence the trial judge was entitled to infer that the parting of the lashing tie or the separation of the planks due to that parting could have occurred at any time shortly before the plaintiff’s injury without there having been any pre-existent sign or indication of this likely to have been picked up on the inspections.

As to Ground of Appeal 4

93    The appellant accepted during the hearing of the appeal that ground of appeal 4 relating to the statutory count, raised no separate considerations to the matters dealt with in relation to the common law count dealt with relation to grounds of appeal 1-3 and must stand or fall with the court's decision in relation to those grounds of appeal. In that circumstance ground of appeal 4 is not made out.

As to the Grounds of Appeal 5 - 6

94    Grounds 5-6 cannot stand consistently with the above reasons. 95    I propose the following orders:

1. Appeal dismissed.
2. The appellant to pay the respondent’s costs of the Appeal.
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