Elliott v Kleeman & Donna Marie Kleeman t/as Thommo's Roofing - [2006] WADC 118

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ELLIOTT -v- KLEEMAN & DONNA MARIE KLEEMAN t/as THOMMO'S ROOFING & ANOR [2006] WADC 118

CORAM: WAGER DCJ

HEARD: 31 MAY 2 JUNE 2006

DELIVERED : 22 AUGUST 2006

FILE NO/S: CIV 629 of 2004

BETWEEN: PHILLIP BRIAN ELLIOTT
Plaintiff
AND
ADAM THOMAS KLEEMAN & DONNA MARIE KLEEMAN t/as THOMMO'S ROOFING
First Defendants
ANYCO PTY LTD (formerly NUMANS PTY LTD)
Second Defendant

Catchwords:

Tort - Joint tortfeasors - Plaintiff injured in fall through roof in the course of his employment with the first defendant - Nondelegatable duty of care of asbestos removal and demolition - First defendant's claim for contribution against second defendant - Turns on own facts

Legislation:

Law Reform Commission (Contributory Negligence and Tortfeasors' Contribution) Act 1947
Occupational Health Safety & Welfare Act 1984

Occupiers Liability Act 1985

Result:

Order for 20 per cent (one fifth) contribution by second defendant

Representation:

Counsel:

Plaintiff:     No appearance
First Defendants           :     Mr J R Freeman
Second Defendant         :     Ms T A Bennett

Solicitors:

Plaintiff:     Not applicable
First Defendants           :     Lavan Legal
Second Defendant         :     Downings Legal

Case(s) referred to in judgment(s):

BP Refinery (Western Port) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Pennington v Norris (1956) 96 CLR 10
Stephens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Ward v Eagle Mining NL & Ors [2001] WADC 254

Case(s) also cited:

Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410
Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 146 CLR 337
Con-Stan Industries Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Felk Industries Pty Ltd v Mallet [2005] NSWCA 111
Lipman v Clendinnen (1932) 46 CLR 550
Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181
Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mulligan v Coffs Harbour City Council (2005) 221 ALR 764
O'Connor v SP Bray Ltd (1937) 56 CLR 464
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206
Western Australia v Dale (1996) 15 WAR 464
Wheat v E Lacon & Co Ltd [1966] AC 552
Wyong Shire Council v Shirt (1980) 146 CLR 40

WAGER DCJ: In December 2000 a tender was awarded by Serco Australia Pty Ltd to the second defendant to remove an asbestos roof and replace it with a colourbond roof on the C and D blocks of the Carlisle TAFE ("the TAFE site"). The first defendant tendered to carry out the work of removal and replacement for the second defendant. The plaintiff, an employee of the first defendant, fell through an open penetration in the roof of C block at the TAFE site in the course of his employment and sustained serious injuries.
On 17 May 2006 judgment was entered against the first defendant in favour of the plaintiff, and the plaintiff discontinued proceedings against the second defendant.
The issue to be determined is the first defendant's claim against the second defendant for contribution or indemnity, the agreed quantum against which the contribution is to be assessed being $942,500 plus the costs of the plaintiff's action. There is no dispute that the first defendant undertook to provide appropriately qualified competent workers and to supervise the workers and to provide a safe system of work. The first defendant pleaded guilty to offences contrary to ss 19(1) and 19(7) of the Occupational Safety and Health Act in relation to breaches of its obligations to the plaintiff. Contributory negligence on the part of the plaintiff is not in issue.

Pleadings

The first defendant claims against the second defendant:

Damages for breach of contract

The first defendant pleads that it is an express written term of the head contract between Serco Australia Pty Ltd and the second defendant that the execution of the work would be supervised by the second defendant, and that the second defendant or its authorised representative would be on the TAFE site whenever necessary to provide adequate supervision of the execution of the work. It is further pleaded that implied terms of the head contract included:
(a)That the second defendant would supervise and control work being undertaken by sub‑contractors and their employees on the TAFE site including the first defendant and the plaintiff.
(b)That the second defendant had control of and was an occupier of the TAFE site.
The first defendant also pleads that implied terms of contract between the first defendant and the second defendant included:
(a)That the second defendant or its authorised representative would be on the building site whenever necessary to provide adequate supervision of the execution of the work.
(b)That the second defendant would supervise and control work being undertaken by sub‑contractors and their employees on the TAFE site.
(c)That as far as practicable the second defendant would provide and maintain a working environment in which people on the building site were not exposed to hazards.
(d)That as far as practicable the second defendant would ensure that the safety and health of a person on the building site would not be adversely affected as a result of the work being carried out by the person under the second defendant's direction.
(e)That as far as practicable the second defendant would ensure that the safety or health of a person on the building site would not be adversely affected wholly or in part as a result of any hazard that arose from the nature of the work or the system of work carried out by the second defendant.
(f)That the second defendant would take such measures as are practicable to ensure that persons on the TAFE site are not exposed to hazards.
(g)That the second defendant would take all steps necessary to safe‑guard people on the TAFE site from unreasonable risk and provide competent co‑workers, a safe place of work, proper plant and equipment, and a safe system of work.
(h)That the second defendant would show care in respect of dangers due to anything done on the building site that in all the circumstances were reasonable.
(i)That the second defendant would ensure compliance by the first defendants and their employees (including the plaintiff) with the Occupational Health Safety and Welfare Act (1984).
(j)That the second defendant as occupier of the TAFE site would comply with its statutory obligations.
The conduct of the second defendant, its servants or agents is alleged to be in breach of the contract with the first defendant because the second defendant (inter alia):
1.Failed to ensure that the first defendant followed safe working practices in carrying out the removal and replacement of roof sheeting at the building site.
2.Failed to ensure that open penetrations on the roof of the building site were guarded by safety mesh or barriers.
3.Failed to ensure that the first defendant provided safety equipment such as a harness to the plaintiff, and
4.Failed to provide safety equipment such as a harness to the plaintiff.

Breach of Statutory Duty

It is also pleaded that the first defendant is entitled to be indemnified by, or to contribution from the second defendant as a joint tortfeasor pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 WA and that the accident was caused or contributed to by the second defendant's negligence.

The second defendant's pleadings

The second defendant pleads that no express or implied contractual terms were breached and that the plaintiff's injuries were due solely to the negligence of the first defendant that breached its duty of care to the plaintiff. It is pleaded that the second defendant exercised reasonable care in the selection and supervision of the first defendant, and that it was reasonable in all the circumstances that the work undertaken by the first defendant should have included supervision and a safe system of work to ensure that the plaintiff was not exposed to an unreasonable risk of injury. If a common law duty of care was owed to the plaintiff then the second defendant discharged its duty and was not in breach of any statutory obligation it had toward the plaintiff as a result of the first defendant's failure to implement and maintain an agreed safe system of work.

Factual background

Many of the facts are not in dispute and those facts can be summarised as follows.
Serco Australia Pty Ltd carried out contracts for the Education Department of Western Australia and issued a tender document for the removal of asbestos roof sheeting from the Carlisle TAFE. The second defendant's tender for the Carlisle TAFE site was accepted by Serco Australia Pty Ltd by a purchase order dated 13 December 2002 ("the head contract").
The second defendant agreed that for the total sum of $287,265 inclusive of GST it would:
"Replace asbestos roof to D and C blocks. Liaise with the campus manager and Occupational Health and Safety representative to determine suitable time periods and to address all safety requirements required by the campus."
The second defendant was required to hold a class 2 demolition licence WAD0017 in order to tender. The licence authorised the second defendant to carry out class 2 and 3 demolition work pursuant to reg 3.114 and reg 3.117 of the Occupational Safety and Health Regulations 1996 and in accordance with the conditions endorsed on the licence. The endorsed conditions included that:
"Pursuant to reg 3.116 of the Occupational Safety and Health Regulations 1996 this demolition licence is issued subject to the following conditions:
…
2.All demolition work is to be directly supervised by a competent person.
A competent person is one who has completed an approved course relating to demolition work or who the Work Safe Western Australia Commissioner considers to have appropriate experience in carrying out demolition work.
…
Direct supervision means oversighting the work while it is being carried out having regarding to ensuring by way of direction, demonstration, monitoring and checking that the work is being performed in a safe manner in accordance with agreed procedures and that there is a capacity to respond immediately to emergency situations."
By 2.10.2 of the head contract the second defendant was obliged to comply with all statutes, regulations and by‑laws relating to the protection of the environment, and by 2.10.4 to prevent emission of dust, dirt, water and fumes.
2.14.1 of the regulations sets out that the second defendant as contractor shall comply with all regulations contained in the Occupational Health Safety and Welfare Act (1984) and associated regulations, and to comply with the Work Safe format.
A very tight time schedule for the head contract of 20 December 2002 to 6 January 2003 was set.
Pursuant to section E of the head contract the second defendant was required to arrange a site meeting with Serco Australia Pty Ltd prior to the commencement of the work, and the agenda was to include safe work practices. The second defendant was also required to nominate a site supervisor for the duration of the project. The head contract conditions of contract (Serco 10) included:
"G5 Assignment and subcontracting
The contractor shall not without the prior written approval of the principal assign mortgage charge or encumber the contractor or any part thereof or any benefit or monies or interest hereunder. The contractor shall not subcontract any part of the work under the contract unless it has made prior application in writing to the principal giving full particulars of the part of the work under the contract it wishes to subcontract and of the proposed subcontractor and it has obtained the written approval of the principal.
G11Contractor's representative
Execution of the works shall be supervised by the contractor personally or by an approved competent person employed by the contractor whose name shall be notified to the superintendent in writing. The contractor or its authorised representative shall be on site whenever necessary as determined by the superintendent to provide adequate supervision of the execution of the works. Any order given by the superintendent to the contractor's authorised representative shall be deemed to be an order given to the contractor."
The second defendant also agreed to the head contract conditions relating to signage and the responsibility of lock down for the TAFE site.
It is not in issue that the first defendant successfully tendered to the second defendant to carry out the asbestos removal and colourbond roof replacement work on 13 December 2002 ("the first defendant's tender"). The second defendant notified the first defendant of the acceptance of its tender by purchase order that contained a number of printed terms and conditions including:
"(b)They shall comply with all of the conditions imposes (sic) under the Occupational Health Safety and Welfare Act (1984) and indemnify the builder against any cost or losses because of his non‑compliance."
The second defendant was required, pursuant to its licence obligations, to lodge documents with Work Safe including a risk control schedule in which the second defendant's site supervisor, Tony Rhodes, was named as the person responsible for implementation of asbestos removal and working at height. The second defendant listed competent person/s to supervise the demolition work as Allen Campbell, Tony Green, Rick Bowen, Tony Rhodes, Adam Kleeman and Wayne Powney. The second defendant noted that all competent person/s named had five to ten years experience.
The first defendant's removal work on the C block roof commenced on 21 December 2002. The C block has a saw tooth roof line. The perpendicular sections include windows and are approximately two metres high, and the angled sections that join to the next perpendicular section are approximately three to four metres in length. The first defendant's employees were required to stand on the existing roof to remove the asbestos roof sheeting. A layer of insulation was then removed followed by a layer of safety mesh. A further layer of insulation was subsequently removed leaving the ceiling cavity open to be vacuumed by employees of the second defendant. Once clean, the agreement was that the safety mesh was to be replaced followed by the insertion of fresh insulation and new colourbond roof sheeting. The existing roof rafters were approximately three metres apart and wooden purlins, being narrower wooden roof timbers, were approximately 1.2 metres apart. Once removed the original asbestos roof sheeting was to be stacked on the roof adjacent to scaffolding that had been brought to site by the second defendant, and Wayne Powney, an employee of the first defendant then removed the piles of asbestos sheeting from the roof by raising a forklift positioned at ground level to roof height, and lowering the sheets down to the ground level.
The original safety mesh in the roof cavity provided a safety barrier for the workers on the roof because it would support a worker if he fell in an open roof penetration whereas the ceiling alone would not. Once the safety mesh was removed the roof was potentially dangerous because there was no barrier between the open penetration and the ceiling.
The first defendant removed the asbestos sheeting and insulations from the C block roof prior to 27 December 2002 and on that date commenced removing the safety mesh from the C block. At approximately 2.30 pm the plaintiff, an employee of the first defendant, fell through an open penetration in the roof of the C block and sustained serious injuries. The plaintiff was not wearing a harness nor using safety mesh or a plank at the time of the fall. The plaintiff had not worked for the first defendant prior to the commencement of the contract at the TAFE site.

Summary of evidence – matters in dispute

Matters raised in evidence that are in dispute include the details and attendance at meetings on the TAFE site, the role and responsibility of supervisors, the attendance of supervisors on the roof, and undertakings and implementation in relation to safety obligations. The relevant evidence is summarised as follows.

Adam Thomas Kleeman

Mr Kleeman and his wife had carried on business trading as Thommo's Roofing (the first defendant) for approximately 14 years. The first defendant undertook all roof plumbing work, including the removal of products and re‑roofing and employed a number of people to carry out its work. Throughout 2002 the first defendant undertook a number of contracts for the second defendant. In December 2002 these contracts included removing asbestos and re‑roofing at the Ern Halliday Recreation Camp and at the Carlisle TAFE site. It was Mr Kleeman's role to supervise both contracts however when he was not at the TAFE site Wayne Powney, an employee of the first defendant, was his "go to" man or supervisor.
A number of safety meetings were held including a first meeting on or about 20 December 2002, to discuss precautionary measures for the removal of asbestos in compliance with the Australian Standards.
Mr Kleeman attended a second safety meeting on 23 or 24 December 2002 with Mr Rhodes and Mr Bruce from the second defendant, and with Mr Powney, who also attended on behalf of the first defendant. At the second meeting it was agreed that workers on the TAFE site would have to wear harnesses on the roof once the existing safety mesh was removed because its removal would create an unsafe open penetration. At the second meeting Mr Bruce queried whether there was enough safety equipment on the site, and Mr Kleeman agreed to bring more safety harnesses and other additional safety equipment to site so that there would be a sufficient number of harnesses available for all of his employees on site prior to the two day Christmas break. Mr Kleeman understood that the harnesses could be worn by the worker by being fitted to the body, and that the harness had a connection point that linked to a safety inertia reel that allowed the wearer to walk on the roof but would lock up if there was a sudden jolt, thereby preventing a fall through an open penetration.
It was also agreed that Mr Rhodes, the supervisor of the second defendant, would provide Mr Kleeman with a rope or cable to be looped around each end of the mainframe of the building at the apex of the C block roof so that the first defendant's workers would be able to hook on to the cable with a karabiner. A karabiner is a shock absorber that is in turn hooked to the harness. Mr Kleeman agreed that even without a cable or rope, there were plenty of roof rafters and purlins for a harness to hook on to, although it was his view that the site was not ideal because the strength of the rafters in the mainframe had not been certified by an engineer.
A third meeting was held at approximately 8.30 am on 27 December 2002 following the two day Christmas break. Mr Kleeman attended with Mr Rhodes and others principally to discuss the wearing of harnesses by his employees on site. Mr Kleeman subsequently spoke to a group of his employees soon after the meeting at a time when the employees were having morning tea "smoko" and said:
"I've spoken to Tony and we have to wear harnesses up on the roof once the safety wire starts to be removed."
It was Mr Kleeman's belief that at the time when he spoke to the workers the safety mesh had just started to be removed from the ceiling cavity. After speaking to the group Mr Kleeman went up on to the roof of the C block and noticed that no-one working on the roof was wearing a harness. He specifically recalled that three of his employees, being Mr Keeley, Mr O'Brien and the plaintiff, Mr Elliott, were not wearing harnesses. Mr Kleeman spoke directly to this group of three employees and said:
"We need to harness up. Tony is on my case. He's spoken to me about it this morning. We need to put our harnesses on."

He then told the three workers where the harnesses were located and they responded by saying:
"Okay we will go down and get them".
Mr Kleeman then left the roof and told Mr Rhodes that:
"A couple of the guys hadn't put harnesses on but they were coming down to get the harnesses."
Mr Rhodes responded by saying "yeah no worries". Mr Kleeman then left the site.
Mr Kleeman confirmed that it was at approximately 2.30 pm that day that he was advised that the plaintiff had fallen and sustained significant injury and that the plaintiff was not wearing a harness when he fell. The plaintiff had only been working for the first defendant for three days at the time of the fall and although Mr Kleeman had asked him if he knew how to wear a harness, neither Mr Kleeman nor any representative of the first defendant had made enquiries in relation to whether the plaintiff had any experience in wearing harnesses or whether he had any other safety concerns in relation to working on the site. Mr Kleeman said:
"I should have made sure that they were wearing the harnesses. I didn't actually stay there and put them on. That was a mistake."
Mr Kleeman confirmed that the first defendant's employees had completed a green card safety course and an asbestos removal course that had been organised by the second defendant prior to commencing work on the TAFE site. To Mr Kleeman's knowledge, the plaintiff however had not completed the course prior to commencing employment with the first defendant. Although the plaintiff had told Mr Kleeman that he knew how to use a harness, Mr Kleeman had not checked to ensure that the plaintiff practically knew how to use a safety harness.

Evidence of Wayne Powney

Mr Powney was employed by the first defendant for approximately nine years prior to the plaintiff's fall. It was his role on the TAFE site to operate a fork lift to lower the removed asbestos sheets from the roof level to the ground level. Accordingly, he was not working on the roof of the C block with the other employees of the first defendant.
If Mr Kleeman was not on site to supervise then Mr Powney who considered himself to be the most senior person on site employed by the first defendant acknowledged that he would be in charge of the first defendant's employees, and that he would be required to supervise their day to day tasks and make sure that everything went all right. Mr Powney considered that Mr Rhodes was "running the show" on the roof at the TAFE site and that his role related to work at the ground level on the TAFE site, however the first defendant's employees were working on the roof.
Mr Powney attended a first safety meeting with Mr Kleeman, Mr Bruce and Mr Rhodes prior to the first defendant commencing work at the TAFE site. At that meeting he stated that someone with experience, qualified, was needed to come in and tell the boys where they can hook up their harnesses. He recalled raising the need for a safety meeting before the job started. Mr Powney said that this meeting did not happen.
On the morning of 27 December 2002, Mr Powney had an argument with Mr Rhodes in his capacity as supervisor for the second defendant. Mr Rhodes said that all workers should put harnesses on, however, Mr Powney replied that they needed a professional to give the workers somewhere to hook up to in case the building had white ants or dry rot because the building was of a fair age. Mr Powney agreed that there was discussion about preparing a static rope line to run across the apex of the roof, but that Mr Kleeman had said that a static rope line was not viable and that there were other ways of doing it. Mr Powney did not elaborate on the other ways of fixing the safety line, nor on any further comments made by Mr Kleeman. Mr Powney gave evidence that Mr Rhodes' only response to the safety concerns he raised was to say that the workers were to put the harnesses on just in case someone, such as government officers, drove past. Mr Powney said that that was the end of the argument between him and Mr Rhodes on the morning of 27 December 2002, and that he just walked away. He did not put on a harness nor did he direct any of the first defendant's workers to wear harnesses on that day. He chose to ignore the instructions of Mr Kleeman and of Mr Rhodes to ensure that the first defendant's employees hooked up to a cable or to the rafters because he considered it was unsafe to hook up without the timbers being tested. He did not tell anyone who had attended the meeting that he chose not to comply. Although he considered that the roof was potentially unsafe once the safety mesh was removed from the roof cavity and he agreed that he had a supervisory responsibility to warn the workers of unsafe practices, he did not stop the workers from going on to the roof, nor did he supervise the first defendant's employees on the roof on the day of the plaintiff's fall. Mr Powney also acknowledged that he chose to ignore Mr Kleeman's instructions in relation to the cables and harnesses for his own reasons. He had no recollection of whether Mr Rhodes was working on the C block or the D block of the TAFE site on the day of the plaintiff's fall.

Evidence of Troy Gowan

Mr Gowan worked intermittently for the first defendant carrying out roofing work for approximately six years. He completed a safety course relating to working from heights, and he thereby obtained a green card prior to the date of the plaintiff's fall. Given his roofing experience he thought that he needed limited instruction to carry out his work and he received that instruction from Mr Powney or Mr Kleeman.
Mr Gowan considered that Mr Rhodes was the supervisor for the whole of the TAFE site, however, Mr Rhodes never spoke to him directly, nor did he work with him. At no stage during his employment on the TAFE site did he see Mr Rhodes wearing a harness or using safety equipment.
During the lunch break on the day of the plaintiff's fall, Mr Kleeman mentioned to Mr Gowan that the second defendant was "on his back" and that the employees of the first defendant were to wear harnesses and to hook up. Mr Gowan thought that the roof was a potentially dangerous location once the safety mesh in the roof cavity was removed, however he did not put on a harness nor did he use any other safety device. Mr Gowan agreed that Mr Rhodes spent most of his time working in a different section of the TAFE site from the first defendant's employees, and he cannot recall whether he saw Mr Rhodes on the C block roof of the TAFE site after Mr Kleeman had spoken to him on 27 December 2002. He also agreed however, that given the angle of the C block roof and its saw tooth design, he could only see those people who were on the same level of the C block roof as himself.
Mr Gowan recalled that the comments made by Mr Kleeman in relation to the wearing of harnesses were not made at a formal tool box meeting, and he did not receive any formal direction as to how to wear the safety harness from anyone on site. He recalls that Mr Kleeman said words to the effect that the workers were to wear harnesses however neither Mr Kleeman nor Mr Powney came on the roof to see whether harnesses were in fact being worn.

Evidence of Paul William Knight

Mr Knight was employed by the first defendant as a roof plumber for approximately 12 years. He had completed a safety course in relation to the dangers of falling from heights prior to commencing on the TAFE site. Mr Knight agreed that Mr Rhodes' role was to co‑ordinate all of the workers at the TAFE site and that Mr Rhodes had given general directions relating to the job however he had not issued directions on how the work was to be carried out nor had he spoken about any safety or clothing issues.
Although Mr Knight considered that walking around on an exposed roof surface without safety mesh in the roof cavity was probably not a safe practice, he does not recall anyone telling him to wear a harness and he was unaware that there was any safety equipment available on the site. He recalls Mr Powney speaking to the first defendant's employees approximately once a day to give directions on the work to be carried out but he does not recall Mr Kleeman speaking to the workers on the TAFE site.

Evidence of Steven Brian Lovett

Mr Lovett was employed by the second defendant as a roof plumber in 2002. He considered that Mr Rhodes was his boss and he received his day to day direction from Mr Green. Mr Lovett had fallen through the roof on the TAFE site on one occasion but he was unsure of the date. Fortunately, he was able to hang on to the wooden purlins thereby stopping his fall, and he did not suffer any injury.

Evidence of Anthony Paul Green

Mr Green worked casually for the second defendant in 2000 and 2002 although he had had significant prior experience as a roofer. He did not undertake any formal training nor any safety training prior to the TAFE job commencing, and he did not find out what a safety harness was until after his work on the TAFE site had finished. Mr Green, as an employee of the second defendant, reported to Mr Rhodes. Mr Green had used a sheet of steel mesh as protection when working on the TAFE site roof where there was an open penetration caused by the removal of safety mesh. He found that the steel mesh was a trip hazard and accordingly continued to work on the roof without using any safety measures at all.

Evidence of the second defendant

Evidence of Anthony John Rhodes

In December 2002, Mr Rhodes was a director of the second defendant, a provider of building maintenance to facility managers. The second defendant employed seven full‑time employees and 40 to 50 revolving full‑time staff. Mr Rhodes was aware that the second defendant had tendered to Serco Australia Pty Ltd for the highly specialised job of removing asbestos from the TAFE site. The second defendant was required to carry out the overall running of the roofing contract on the TAFE site, being the head contract, and the first defendant had tendered for the work of asbestos removal and colourbond replacement in its capacity as a specialised roofing contractor. The first defendant had provided its services to the second defendant on approximately 20 prior occasions. Mr Rhodes understood that Mr Kleeman was the owner of the first defendant and that Mr Powney was its on-site manager. He considered that both Mr Kleeman and Mr Powney were appointed as supervisors for the first defendant.
Given that asbestos was to be removed the TAFE site was a lock‑down site and a site induction for every worker was held before the job commenced. Mr Rhodes told all of the workers on the TAFE site that Work Safe would be on the site so the workers would have to comply with the law. He did not elaborate on what the law required nor the safety requirements of Work Safe, and his discussion in relation to the specific safety requirements was with Mr Kleeman and Mr Powney only.
Prior to work commencing on the TAFE site, Mr Rhodes discussed the order of work and the manner in which it would be carried out with Mr Kleeman and Mr Powney.
On 24 December 2002, Mr Rhodes, Mr Kleeman, Mr Powney and Mr Bruce, the second defendant's general manager, met together and Mr Rhodes had a fairly extensive conversation with the others in relation to the removal of the safety mesh and the use of harnesses on site. It was his intention the workers would be required to use safety harnesses for protection if there were any fall hazards on site. Mr Rhodes supplied a wire rope to the site with the intention that it would be run from one side of the building to the other. The first defendant agreed to supply the inertia reels and shackles, and Mr Powney agreed to hook the wire rope up. Mr Rhodes also supplied planks, safety mesh and boards that could be placed over any areas that were considered to be a fall hazard.
On 27 December 2002, Mr Kleeman arrived early at the site and Mr Rhodes repeated to him that he required all workers on site to be hooked up to harnesses. He confirmed with Mr Kleeman that the requested safety equipment was on the site, and he checked its condition with him. Mr Rhodes stated that at 9 am he asked Mr Powney whether the workers had hooked up in accordance with their earlier discussions, and that Mr Kleeman replied "yes we have".
At about lunch time on 27 December 2002, he again checked about the harnesses by asking Mr Powney "are they all hooked up?". Mr Powney replied "yes they are".
In cross‑examination Mr Rhodes confirmed that anyone who came onto the TAFE site had to report to him, and that he had accompanied the asbestos inspector around the site on his inspection. Mr Rhodes knew that a class 2 licence for demolition work had to be supervised by a competent person, and that a competent person was one who had a knowledge of the industry and of asbestos procedures. Further, he knew that the competent person was required to have completed an approved course relating to demolition work. Mr Rhodes completed the Work Safe document in relation to named supervisors, and although he agreed that he misstated the experience of Mr Green, he considered that all of the supervisors were qualified. He also completed the risk control schedule and noted in relation to the C and D blocks and the task of working at height, that there was a fall hazard that required an implemented control measure that included training. The control deadline was listed as 16 December 2002. He said that it was agreed that the use of safety harnesses was to be enforced on the TAFE site from 27 December 2002, and conceded that prior to this date people had been walking on the roof without harnesses. He agreed that an engineer had not checked the roof for harness points, nor had an engineer been directed to do so and he had relied on Mr Powney to check the anchorage points to hook up to because Mr Powney had agreed that he would do this.
Mr Rhodes believed that the second defendant had paid for the first defendant's employees to be trained in relation to safety. He confirmed that before commencing on site, sub‑contractors were made aware of all of the local instructions regarding safe working practices and the general conduct to which they were expected to conform. It was the second defendant's position that all employees should report all incidents where safety procedures were ignored whether the breach was by the second defendant's employees or by any other worker on site. The names of those on site were recorded daily by Mr Rhodes in the second defendant's site diary.
He did not consider it to be his concern whether the harnesses were hooked up to the safety lines because it was his understanding that the first defendant was going to implement the safety line based on what Mr Kleeman and Mr Powney had said to him. Mr Rhodes agreed that he went on to the roof area where the first defendant's employees were positioned on 27 December 2002 prior to the plaintiff's fall and he did not notice whether the first defendant's employees were wearing safety harnesses or whether they were working near open penetrations. He did not check if any other safety measures such as mesh were being used on the roof immediately prior to the plaintiff's fall.

Evidence of Alan James Bruce

Mr Bruce was the general manager of the second defendant in 2002 and is also a qualified roof plumber. It was his role to bring the company into line procedurally and contractually. Mr Bruce prepared most of the Work Safe documents filed prior to the commencement of work on the TAFE site and prepared the documents relating to the head contract. He attended a meeting on site prior to Christmas 2002 at approximately 6 am on a Monday morning, and confirmed that Mr Rhodes, Mr Kleeman and Mr Powney were also present. The meeting took place because of the involvement of the subcontractors in the contract and he recalled that all four men present discussed the issues of personal protective equipment, personal protection and the need to "hook up", which was a reference to wearing harnesses and lanyards or full restraints. He said that the four men at the meeting together derived a plan to use a 20 millimetre cable that traversed the roof, and that each worker was to hook up to it via a karabiner when working on the roof. Mr Rhodes brought a cable on to the site to assist the first defendant. Mr Bruce noted that Mr Kleeman considered that two cable lines may be required and this was acknowledged by Mr Powney. The men discussed that they would use some safety mesh as a safety mechanism. Safety mesh and planks were delivered to the site after lunch on Monday, 23 December 2002 to be available if required.
Although Mr Bruce did not have any formal training in assessing the weight bearing of timbers or structures he considered that the timbers on the roof were of adequate strength to hold a harness. He did not recall Mr Powney raising the issue of an engineer examining the timbers to ensure that they were adequate, however he agreed that it was possible that this may have been raised. He did not ask an engineer to inspect the building and did not consider it was necessary to do so. He confirmed that the decision of the four men present was to choose the exterior points which were the largest and the most structurally sound. He was aware of the occupational safety and health requirements in relation to checking anchorage points before the attachment of cables and harnesses.
Mr Bruce understood that the term "a competent person" referred to in the Work Safe documents, was a reference to someone with previous experience in the role and that direct supervision was needed to ensure that the second defendant engaged people who were competent to undertake the work and to do the job adequately. He believed that Mr Rhodes was on site at all times to provide direct supervision on behalf of the second defendant.
He confirmed that as general manager of the second defendant, he did not want people on site acting in an unsafe manner, and he expected the site supervisor to be vigilant in relation to the conduct of workers on site to ensure that they did not conduct themselves in an unsafe manner. He had not received feedback in relation to the use of safety mesh being a trip hazard.
Mr Bruce was responsible for drafting the terms and conditions on the standard form purchase order document received by the first defendant to confirm that the first defendant's tender had been accepted by the second defendant. Mr Bruce attached the printed terms and conditions to the purchase order because he tried to formulate, as best he could, a safety procedure for both the second defendant and for the contractors, and because he wanted the contractors to be aware that the second defendant was looking after everybody's safety on site.

Findings of fact

Mr Rhodes was a supervisor for the second defendant, and had the co‑ordination role in relation to the second defendant's subcontractors and their employees on the TAFE site. The first defendant had worked on over 20 contracts for the second defendant prior to the TAFE site, and the second defendant considered that the first defendant had the skills and qualifications to carry out the work. The second defendant understood that Mr Kleeman and Mr Powney had supervisory positions on behalf of the first defendant. The second defendant had arranged for some employees and supervisors of the first defendant to be trained in safety and the risks of falling from heights prior to commencing on the TAFE site. Given that training had been arranged by the second defendant, the first defendant knew or ought to have known that it was necessary for its employees to have undertaken a safety course.
The second defendant had initiated three meetings with the first defendant on the TAFE site. The first meeting was attended by Mr Kleeman, Mr Rhodes, Mr Powney and others. The meeting was to co‑ordinate the work and to determine the order in which tasks were performed. There was general discussion in relation to safety and apparel. The meeting took place prior to the first defendant physically commencing work on the TAFE site.

The second meeting was held on or about 20 December 2002. Mr Rhodes, Mr Bruce, Mr Kleeman and Mr Powney attended. The meeting was in relation to ensuring that workers' safety was addressed after the job had commenced, but before the safety mesh was removed from the ceiling cavity. As a result of the meeting, a number of safety harnesses and related equipment such as safety mesh, planks and wire cable were brought to the site. The majority of those attending the second meeting considered that the building had sufficient hook up points for personal harnesses given its wooden structure even if a wire cable was not used. If Mr Powney raised concerns about the strength of the timbers or the need for an engineer to inspect the timbers and to assess the suitability of the hook up points, then these concerns were not shared by the others at the meeting. Mr Rhodes, Mr Kleeman and Mr Bruce understood that the agreement was that Mr Kleeman and Mr Powney would arrange for the cable to be hooked up.
The third meeting occurred early on the morning of 27 December 2002, the day of the plaintiff's fall. Mr Rhodes, Mr Bruce, Mr Kleeman and Mr Powney attended. Mr Rhodes directed that harnesses were to be worn on the roof on site when the safety mesh was being removed and Mr Kleeman understood that the safety mesh would be removed from the ceiling cavity on that day. The consensus was that the first defendant would hook up the cable so that the first defendant's employees could wear safety harnesses when work commenced on 27 December 2002. The second defendant understood that Mr Powney would be physically responsible for the installation of the cable. Although Mr Powney recalls an argument with Mr Rhodes on this day in relation to the suitability of the structure and its hook up points and the need for an inspection to be carried out by an engineer before the harnesses were implemented. Nobody else recalls the argument, and it was understood by the other three that Mr Powney would arrange for the workers to be wearing harnesses. I find that if Mr Powney had concerns then he did not raise them with the three men at the meeting on 27 December 2002. Mr Powney was outwardly compliant in his responses to the other three at the meeting and none of the others present recalls an argument or any disagreement. Mr Powney did not tell the other three at the meeting that he would personally not wear a harness nor did he say that he would not direct employees to wear harnesses. He chose not to follow the agreed direction for his own reasons, and he did not tell anyone at the meeting that it was his intention to ignore the direction. Although it was Mr Powney's view that it was potentially dangerous to be on the roof without proper safety measures in place and he knew that he held a supervisory role, he chose not to raise safety concerns with any of the workers who were on the roof. His passive resistance to the instructions placed the safety of the first defendant's employees at risk because they were neither properly harnessed nor adequately warned of the dangers of working on the roof when there was an open penetration in the absence of safety mesh. I find that Mr Powney's evidence was tainted by his subsequent understanding that his failure to warn and direct his employees contributed to the plaintiff's injuries. I accept Mr Rhodes evidence that at lunchtime, Mr Powney confirmed with him that the first defendant's employees were wearing harnesses. Accordingly, rather than voicing a disagreement in relation to harnesses, Mr Powney positively misled Mr Kleeman into believing that the first defendant's employees were properly harnessed as agreed at the meeting prior to the commencement of work on 27 December 2002.
Immediately after the meeting of 27 December 2002, Mr Kleeman told a group of the first defendant's employees at morning tea "smoko" that they must harness up at the insistence of the second defendant. The words spoken in relation to the second defendant's insistence on compliance with the direction indicate that the need for employees to wear harnesses was a direction from the second defendant, and it was expected to be complied with immediately. At the two earlier meetings the second defendant had ensured that the appropriate number of harnesses in good working order were available on site and had arranged for a cable to be brought to site. There was no reason why the second defendant's direction should not have been followed on 27 December 2002.
After Mr Kleeman spoke to the first defendant's employees at morning tea "smoko", he went on to the roof of the C block and told three employees, including the plaintiff, Mr Elliott, that they must put their harnesses on. Mr Kleeman understood that the three indicated that they would follow the direction. It was as a result of his understanding and belief that the direction to harness up immediately would be followed, that he confirmed with to Mr Rhodes that the three would arrange to get their harnesses. Mr Kleeman recognised that he should have stayed to supervise the employees being harnessed up, and states that that was his mistake.
Given the 20 previous contracts with the second defendant, the second defendant's safety training of the first defendant's employees and the clear undertaking given by both Mr Kleeman and Mr Powney that all employees were harnessed, Mr Rhodes reasonably concluded that the second defendant's direction confirmed at the meeting of 27 December 2002 was being carried out.

Supervision

Mr Rhodes co‑ordinated the day to day running of work on the TAFE site in relation to the second defendant's subcontractors and their employees. Mr Kleeman and Mr Powney were the supervisors for the first defendant. Mr Kleeman was supervising two jobs, and accordingly was not on the site at all times to supervise the workers. Mr Powney was occupied on an almost full‑time basis on the ground and was therefore not present on the roof to supervise workers. Further, although Mr Powney considered himself to be in a supervisory role and acknowledged his obligations to his employers, he did not consider it was appropriate for him to direct other employees in relation to safety issues because he was "only a worker". He was either unclear on his role or chose not to take the delegated responsibility and he therefore failed to adequately supervise the employees. I find that he downplayed his understanding of his supervisory obligations because he felt responsible for the plaintiff's fall.
Given that the first defendant had carried out approximately 20 contracts for the second defendant and had received safety training and that Mr Powney and Mr Kleeman attended the three meetings in their capacity as supervisors the only reasonable inference open to Mr Rhodes as supervisor when told by Mr Kleeman and Mr Powney that the direction in relation to the wearing of harnesses had been carried out by the employees was that this was correct.
I accept the evidence of Mr Rhodes that he was probably on the D block roof on 27 December 2002, however he acknowledges that he went on to the roof of C block for an inspection prior to the plaintiff's fall. Given the undertakings and assurances given to him by the supervisors of the first defendant and the sight restrictions of the saw tooth roof, the fact that he cannot remember whether the first defendant's employees were working near an open penetration or whether they were wearing harnesses does not indicate an inadequacy of supervision on the part of the second defendant.

Is the second defendant an occupier of the TAFE site?

Section 2 Occupiers Liability Act 1985 defines an occupier as a person occupying or having control of land or other premises. There can be more than one occupier of any premises and the issue to be determined is whether the second defendant was one of them. The second defendant determined who came onto the site and who left because all visitors had to report to Mr Rhodes given that it was a locked site. The second defendant kept a diary to record the names of workers on the site, whether employed by the second defendant or by a subcontractor. Mr Rhodes had the overriding supervision of the site. He did not instruct the first defendant's workers in relation to how to carry out their tasks but gave them general directions as to what was required and when it was to be performed. I find that the second defendant was an occupier of the TAFE site.

Is there a breach of contract?

The contract with Serco Australia Pty Ltd relates to the removal of asbestos and replacement with colourbond roofing. The dangers of any demolition work, particularly work involving the removal of asbestos are recognised by the requirement that a class 2 demolition licence be held and complied with and that the Occupational Safety and Health Regulations 1996 subdivision 7 (Demolition) be followed.
In order to tender for the Serco Australia Pty Ltd head contract relating to the TAFE site the second defendant was required to hold a licence.
The conditions of the head contract expressly required the second defendant to comply with its statutory obligations under the Occupational Safety and Health Act and comply with cl G5 and cl G11.
The second defendant, in contravention of cl G5 did not seek approval for the task of removal of the asbestos to be subcontracted to the first defendant. The second defendant is therefore in breach of its contractual obligations to Serco Australia Pty Ltd. The ramifications of that breach are not the issue to be determined because that is between Serco Australia Pty Ltd and the second defendant, however the requirement for compliance demonstrates the duty of care and the strict procedures to be followed given that the contract relates to demolition and the removal of asbestos.
As a holder of a class 2 demolition licence the second defendant had obligations relating to asbestos removal and its duty of care to others extended beyond the parameters of the terms of the head contract. A licence requires the holder to carry out asbestos demolition work pursuant to reg 3.114 and reg 3.117 of the Occupational Safety and Health Regulations 1996, and the conditions attached to the licence include the need for training of all persons directly engaged to carry out demolition work by a trained organisation registered under the Australian National Training Authority framework and direct supervision by a competent person (as defined).
Further, a licence holder is, pursuant to the Occupational Safety and Health Regulations 1996, required to notify the Commissioner of its intention to do class 2 demolition work in accordance with standard AS2601 at least five days before commencement.
The second defendant, as holder of a licence, therefore has a responsibility in relation to the safety of people who enter a demolition site as notified to the Work Safe Commissioner. Given the requirement to hold a licence and the restrictions placed on the licence holder, the obligations and conditions cannot be avoided by subcontracting the very act that is the subject of regulation, that is the demolition and removal of asbestos.
Although this duty is not expressly a part of the first defendant's tender agreement, the second defendant's obligations in relation to safety and the provision of a safe system of work are reasonable, necessary and so obvious that it goes without saying that the obligations apply (BP Refinery (Western Port) Pty Ltd v Hastings Shire Council(1977) 180 CLR 266). In Stephens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at p 31, Mason J stated:
"Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. 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 coordinate 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 a manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."

The duty of care

The second defendant's duty of care extended beyond a supervisory role only. The second defendant had a duty to provide and implement a safe system of work for the plaintiff.

Did the second defendant discharge its duty of care?

The questions are:
1.Did the second defendant fail to provide a safe system of work for the plaintiff?
2.Did the second defendant provide a safe system of work but fail to ensure that the plaintiff was adequately trained to properly access the safe system available?
The second defendant discharged its duty to physically provide adequate safety measures on the TAFE site.
It was established prior to Christmas and before the safety mesh was removed that safety harnesses would be worn once the removal process commenced. The second defendant through the actions of Mr Rhodes ensured that an appropriate number of harnesses and complementary equipment in working order was brought on to site, and the second defendant itself provided a cable. Planks and safety wire mesh were also made available in advance of any risk of open penetration. I find that Mr Powney agreed to put the cable in place on 27 December 2002, and that it was Mr Kleeman's understanding that Mr Powney had agreed to do so.
All four supervisors present at the meetings understood that cable would be in place so that harnesses could be attached before the first defendant's employees commenced work on 27 December 2002.
I do not accept that an argument took place between Mr Powney and Mr Rhodes. Mr Powney's answers in evidence were inconsistent in that he agreed that he was the supervisor for the employees and was responsible for giving directions, however he attempted to exonerate himself from any responsibility by saying that he did not tell workers what to do because he himself was "only a worker". Although he had witnessed employees not wearing harnesses and he regarded the failure to wear harnesses as an unsafe work practice he did not raise this with the employees nor warn them in any way. He further stated that he chose to ignore Mr Kleeman's instruction for his own reasons. Mr Powney positively asserted to Mr Rhodes at about midday on 27 December 2002 that the first defendant's employees were wearing harnesses in the course of their employment on the roof of D block. The comment is consistent with his erratic conduct and failure to communicate accurately on that day.
On 27 December 2002 Mr Rhodes was advised by both Mr Kleeman and Mr Powney that the first defendant's employees were in the process of being harnessed or had complied with the instruction. Although the second defendant had a responsibility in relation to safety, I find that it had discharged its duty of care because appropriate serviceable equipment was physically available on site and timely instructions had been given to the first defendant and accepted by the supervisors of the first defendant. The supervisors advised that their employees had complied with the instruction. It would be unreasonable to expect Mr Rhodes to anticipate that this was not the truth given that the second defendant had had 20 prior contracts with the first defendant, and given the nature of the undertakings that had taken place at the meetings on site.
Mr Rhodes acknowledged that although he was working on a different roof from the first defendant's employees on the day of the plaintiff's fall, he was on to the C block roof prior to the plaintiff's injury. He did not recall if there was an open penetration or whether the employees were wearing harnesses. Given the nature of the saw tooth roof limiting visibility to one roof panel only, there is no evidence that Mr Rhodes should have seen the first defendant's employees at work at that time. Further, there is no evidence from the first defendant's employees that they saw him on the roof prior to the plaintiff's fall and the verbal assurance of compliance given by Mr Powney only hours prior to Mr Rhodes being on the roof would not give him any reason to make investigations of his own in relation to whether workers were complying with the safe system of work as directed.
The second defendant had provided training for supervisors and for a number of workers employed by the first defendant and the second defendant prior to the commencement of work on the TAFE site. Mr Rhodes as the authorised officer completing the risk control schedule for Work Safe in relation to the TAFE site noted that, in relation to the location of blocks C and D and the task of working at height with the hazard of a fall, he was the person responsible for implementing control measures including training. He also noted that the control deadline was 16 December 2002, five days before the first defendant's workers commenced on the TAFE site. Mr Rhodes gave evidence that all workers on site were provided with a safety induction prior to the commencement of work on site. There is no other evidence that this occurred, and, if an induction did take place, that it related to training relevant to the hazard of a fall. Mr Green, a supervisor for the second defendant knew nothing of harnesses or safety equipment being on the site, nor did he have any knowledge of the use of harnesses until after the plaintiff's fall. Mr Knight and Mr Green gave no evidence of attending any on site training relevant to the hazard of a fall. There is no evidence that the plaintiff had any safety experience or training relevant to his position, or that he attended any safety or induction sessions on site prior to 27 December 2002. Although a number of workers had been trained, it was incumbent on Mr Rhodes to ensure that all of the workers on the TAFE site were familiar with safety procedures in accordance with the risk control schedule.
Mr Rhodes kept a daily record of the workers on site in the site diary, however the skills and understanding of safety procedures of each worker were not recorded. Mr Kleeman acknowledges that although he told the plaintiff where the harnesses were, he made no enquiries as to whether the plaintiff knew how to wear one and there is no evidence that the second defendant provided this information to the plaintiff either. To this limited extent the second defendant failed to adequately train the plaintiff on how to use the safe system available and failed to advise the plaintiff as to why the safe system should be used.

Section 7(1)(c) Law Reform Commission (Contributory Negligence and Tortfeasors' Contribution) Act 1947 WA

The Law Reform Commission (Contributory Negligence and Tortfeasors' Contribution) Act addresses the requirement for an apportionment of damages if there are two or more tortfeasors.
The second defendant discharged its duty to provide safety equipment and did everything reasonably necessary to ensure that the first defendant was aware of the agreed safety plan. I am satisfied however that the second defendant failed to discharge its duty of care to the plaintiff by failing to ensure that he was adequately trained in the use of the relevant safety equipment relating to potential falls from heights. This breach was a cause of the accident that resulted in the plaintiff's injury. I am satisfied that if the plaintiff had proceeded against the second defendant, the second defendant would have been found liable.
The first defendant is entitled to recover contribution from the second defendant and that amount is to be "such as may be found by the Court to be just and equitable" (s 7(2) Law Reform Commission (Contributory Negligence and Tortfeasors' Contribution) Act 1947).

The amount of contribution must involve an apportionment of responsibility as between the first defendant and the second defendant of responsibility for the damage.
A just and equitable apportionment of responsibility for damage must also include a comparison of the culpability of each party. "Culpability" does not mean "moral blameworthiness but the degree of departure from the standard of care of the reasonable man. (Pennington v Norris (1956) 96 CLR 10 at 10; Ward v Eagle Mining NL & Ors [2001] WADC 254).
The second defendant's degree of culpability was towards the lower end of the scale. Doing the best I can, I consider that a just and equitable apportionment for the damage is for a one fifth contribution by the second defendant.
Accordingly, the first defendant is entitled to a contribution from the second defendant in the sum of $188,500. There will be judgment against the second defendant for that amount.