Griffin v VWA
[2016] VSC 101
•23 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST
S CI 2014 05515
| DENIS PETER GRIFFIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY & ORS | Defendants |
---
JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 October 2015 |
DATE OF JUDGMENT: | 23 March 2016 |
CASE MAY BE CITED AS: | Griffin v VWA & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 101 |
---
NEGLIGENCE – Contribution between defendants – employee on building site – contribution between employer, head contractor and subcontractors – scope of duty owed by head contractor and subcontractors – contract between defendants – breach of statutory duty – apportionment between defendants – contribution from other tortfeasors – Wrongs Act 1985 (Vic) Part IV.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M.J. Walsh with Ms K.S. Gladman | Barbante & Associates Lawyers |
| For the First Defendant For the Second Defendant For the Third Defendant For the Fourth Defendant | Mr P.B. Jens QC with Mr J.C. Simpson Ms M. Tsikaris Mr J.P. Brett QC with | Hall & Wilcox Meridian Lawyers Norton Rose Fulbright HWL Ebsworth Lawyers |
HER HONOUR:
Prior to the commencement of the trial, the plaintiff, Mr Denis Griffin, in proceeding S CI 2014 05515, settled his claim against the defendants, being his employer, Aluline (Australia) Pty Ltd (‘Aluline’), the head contractor, Probuild Constructions (Australia) Pty Ltd (‘Probuild’), the scaffolding contractor, Tubeway Scaffolding Pty Ltd (‘Tubeway’) and the painting contractor, Higgins Coating Pty Ltd (‘Higgins’). The defendants however could not settle their contribution dispute, which is now resolved by this judgment.
An allied claim by the Victorian WorkCover Authority (‘VWA’) under s 138 of the Accident Compensation Act 1985 (Vic) (‘ACA’) is considered in a separate judgment (‘the recovery proceeding’).[1]
[1]VWA v Probuild & Ors [2016] VSC 102.
The first defendant in the present proceeding, Aluline, was deregistered on 11 September 2014. By consent, an Order was made on 10 November 2015 giving Aluline leave to substitute the VWA as the first defendant to take effect from the commencement of the proceeding. However, to avoid the confusion that may arise given the fact the VWA appears in a separate capacity in the recovery proceeding, for the purposes of this judgment I will refer to the first defendant as Aluline.
While the Writ was amended to reflect that the VWA replaced Aluline as the first defendant, the two parties were separately represented in the contribution and recovery proceedings. The VWA in effect adopted the role of the plaintiff for the purpose of both proceedings. However submissions dealing with contribution were made by Aluline’s representatives in the contribution proceeding.
Section 23B(1) of the Wrongs Act 1958 (Vic) (‘Wrongs Act’) permits a tortfeasor liable in respect of any damage suffered by another person to recover contribution from any other person liable in respect of the same damage. It matters not, whether the liability flows from the same event, or whether an award of damages against the respective parties differs, provided the parties are liable in respect of the same damage.
Most issues factual and legal are in dispute. As at 10 May 2011 a set of apartments was being constructed at 263 City Road, Southbank (‘the Bank Apartments’). Probuild was the head contractor and controlled the building site. Probuild sub-contracted Aluline to perform works involving the construction of balustrading. Mr Griffin was employed by Aluline as a balustrade fitter supervisor to perform such tasks.
Higgins had contracted with Probuild to perform painting works at the premises. In order to perform such works, it was necessary for Higgins to have scaffolding of various types. Its agreement with Probuild included an obligation to make available swing stages to the exterior of the building for use by other trades. Higgins entered into an agreement with Tubeway to perform the scaffolding works, including the supply, hire and direction of the scaffolding and induction of workers who were to use the scaffolding.
Swing stages are suspended cages from which work can be performed to the exterior of the building, at height. Tubeway inducted Mr Griffin on 3 February 2011 in relation to the safe use and operation of swing stages. It rendered an account to Higgins for such induction and in turn, Higgins rendered an account to Probuild.
On 9 May 2011, Tubeway repositioned the swing stage to a point on the eighth floor of the premises so it could be used for the performance of work above that area.
Mr Griffin alleges he suffered an injury to his lower back on 10 May 2011 while entering a swing stage. Mr Griffin claims as a result of the 10 May 2011 incident, he suffered injury including a two level fusion at the L4/5 and L5/S1 levels, spinal root compression, neurological damage to the lower back and anxiety and depression. He claims that as a result of the injuries he is totally incapacitated for all work.
Factual issues in dispute
The following factual issues are in dispute:
(a) did Mr Griffin suffer an injury on 10 May 2011 while accessing a swing stage;
(b) was the swing stage located at the position marked ‘E’ adjacent to the sliding door marked ‘D’ on level 8 on Exhibit P1 on 10 May 2011;
(c) what training did the defendants provide Mr Griffin as to how he should access the swing stage;
(d) what training did the defendants provide Mr Griffin as to the operation of Probuild’s drop zone permit system;
(e) was the door marked ‘C’ on Exhibit P1 barricaded and if so, when and in what way;
(i) on 9 May 2011 when Tubeway scaffolder, Mr John Birt,[2] set up the swing stage;
[2]There were two Tubeway witnesses with the last name Birt – Richard Birt and John Birt. To avoid confusion I will use their full names.
(ii) on 10 May 2011 immediately prior to Mr Griffin using the swing stage;
(iii) was the barricade capable of being removed; and
(iv) who was responsible or had control to remove the barricading over door ‘C’.
(f)was there any signage erected regarding door A as marked on Exhibit P1;
(g)how far was the swing stage located from door A;
(h)who was responsible for the placement of the swing stage at door A;
(i)was the means and manner adopted by Mr Griffin to enter the swing stage unsafe;
(j)what checklists or planning were in place to ensure the swing stage could be safely accessed; and
(k)what were the relevant codes, practices and/or guidelines that were relevant to the safe use of swing stages as at 10 May 2011.
Legal issues in dispute
In broad terms the legal issue for determination in the contribution proceeding is the responsibility of each defendant for Mr Griffin’s injuries pursuant to Part IV of the Wrongs Act.
Specifically the legal issues are as follows:
(a) does Part X of the Wrongs Act apply to the contribution proceeding;
(b) did the defendants owe a duty of care to Mr Griffin;
(c) did the defendants discharge their obligations under the acts, regulations, standards and guidelines set out under paragraphs [15]-[20] of the Mr Griffin’s statement of claim;
Probuild
(d) did Probuild discharge its duty as the principal contractor to:
(i) co-ordinate sub-contractors and their employees on site;
(ii) have a system in place to enable all work to be performed safely on site by sub-contractors and their employees;
(iii) ensure all sub-contractors and their employees were adequately informed of such a system;
(iv) take all reasonable steps to provide adequate access for Mr Griffin to access the swing stage.
(e) was Probuild responsible for barricading door C;
(f) did Probuild assume a responsibility to control and supervise Mr Griffin’s activities;
(g) to what extent can Probuild rely on project safety or management plans provided by Aluline, Tubeway and Higgins to plan and co-ordinate arrangements for sub-contractor workers requiring access to swing stages, including Mr Griffin on 10 May 2011;
(h) which terms, if any, of the sub-contract agreements entered into by Probuild with Aluline and Higgins impose obligations on each sub-contractor, including any secondary sub-contractor, to manage or control the worker’s access to the swing stage on 10 May 2011. Have Aluline, Higgins or Probuild breached any such terms of the Sub-contract Agreement.;
(i) was Probuild responsible for managing the implementation of the permit zone;
(j) what, if any, steps were ‘reasonably practicable’ for Probuild to eliminate or reduce Mr Griffin’s risk of injury whilst accessing the swing stage on 10 May 2011 having regard to s 20(2) of the Occupational Health and Safety Act 2004 (Vic) (‘OH&S Act’)?;
Tubeway
(k) did Tubeway discharge its duty to:
(i)take reasonable steps to provide adequate access for Mr Griffin to the swing stage; and
(ii)adequately induct Mr Griffin about safe access to swing stages?
Higgins
(l) did Higgins owe a duty of care to Mr Griffin;
(m) if so, was it discharged by Higgins retaining Tubeway as an ostensibly competent contractor;
(n) in light of (l) and (m) above, and the determination of the factual issues, did Higgins have tortious liability to Mr Griffin;
(o) is Probuild’s claim that Higgins had a contractual obligation to ensure safe access to the swing stage, made out;
Aluline
(p) did Aluline do all it reasonably should to:
(i)train Mr Griffin about safe access to swing stages; and
(ii)provide safe access to Mr Griffin to the swing stage.
In Mr Griffin’s statement of claim dated 13 October 2014, the following particulars of negligence are alleged against each defendant:
(a) failing to instruct or properly instruct the plaintiff;
(b) failing to provide the plaintiff with any or any adequate supervision;
(c) failing to provide the plaintiff with any or any adequate equipment;
(d) failing to provide and/or enforce the safe system of the work;
(e) failing to ensure a safe system of work was implemented and enforced;
(f) failing to exercise due care and skill for the safety of the plaintiff in all the circumstances;
(g) failing to undertake a risk assessment in regard to the hazardous nature of the work required;
(h) failing to control the risk of injury to the plaintiff in the circumstances;
(i) failing to provide a comprehensive training and education programme for the plaintiff in the performance of his duties;
(j) exposing the plaintiff to a hazardous and unsafe work environment;
(k) failing to provide the plaintiff with any or any proper safety equipment;
(l) failing to provide the plaintiff with any or any adequate assistance;
(m) causing or allowing the plaintiff to be exposed to a danger known to the defendant;
(n) failing to erect the swing cage safely;
(o) failing to provide any or any proper access to the cage;
(p) causing or allowing the plaintiff to enter the swing cage when it was dangerous to do so;
(q) failing to put in place any or any proper system of access to the cage;
(r) causing or allowing the cage door to be barricaded;
(s) failing to allow the plaintiff to use the proper gate to enter the cage;
(t) failing to change the method of access to the cage to allow the proper gate to be used;
(u) failing to comply with the OH&S Act and the regulations made thereunder;
(v) failing to comply with the Occupational Health and Safety Regulations 2007 (Vic) and in particular Regulations 3.1.1, 3.1.2, 3.1.3, 3.5.2, 3.5.23, 3.5.34, 3.5.40, 3.5.41 and 3.5.43;
(w) failing to comply with AS 1470–1986 Australian Standard Health and Safety at Work — Principles and Practices, and in particular s 8;
(x) failing to comply with AS 1428.1–2009 Australian Standard – Design for access and mobility, Part 1: General requirement for access — new building work, and in particular s 11;
(y) failing to comply with AS/NZS 4576.1995 Australian/New Zealand Standard — Guidelines for scaffolding (‘AS 4576 (Scaffolding Guidelines)’);
(z) failing to comply with AS/NZS 4994.1–2009 Australian/New Zealand Standard — Temporary edge protection general requirements;
(aa) failing to comply with AS/NZA 1576.1–2010 Australian/New Zealand Standard — Scaffolding — General requirements (‘AS 1576.1 (Scaffolding General Requirements)’);
(bb) failing to comply with AS 1576.4–1991 Australian/New Zealand Standard —Scaffolding — Suspended scaffolding (‘AS 1576.4 (Suspended Scaffolding)’); and
(cc) failing to comply with scaffolding checklists for builders and building trades contractors — WorkSafe Publication October 2005.
The particulars of negligence are pleaded against each defendant indiscriminately and are of such generality as to be in some instances meaningless. It is regrettable that the pleadings were not more carefully considered and drafted against each defendant. The generality of the particulars contributed to the length and often unnecessary exploration of issues by the parties in the course of the trial. It is incumbent on parties to reflect and ensure particulars are relevant, and if necessary seek clarification, specifically in relation to each party.
Contribution claims against Aluline
A form 11B contribution notice was filed against Aluline by Tubeway[3] claiming it was entitled to contribution from Aluline in respect of any sum Mr Griffin recovered, on the ground that Aluline’s negligence and/or breach of duty contributed to any injury, loss and damage which Mr Griffin suffered.
[3]On 9 July 2015.
In Mr Griffin’s statement of claim, it was alleged that Aluline:
(a) was the employer of Mr Griffin;
(b) was engaged by Probuild as a sub-contractor to perform balustrading works on the Bank Apartments;
(c) was an occupier of the premises pursuant to s 14A of the Wrongs Act;[4]
(d) had a duty to take reasonable care for Mr Griffin’s safety whilst he was performing work duties at the premises using the swing stage;[5] and
(e) had the instruction, control and supervision of Mr Griffin while he was working at the premises.[6]
[4]Plaintiff’s Statement of Claim dated 13 October 2014 (‘Plaintiff’s Statement of Claim’), 1 [1].
[5]Ibid 3 [9].
[6]Ibid 4 [11].
Mr Griffin claimed that the incident was caused by Aluline’s breach of its duty and/or its negligence in respect of the matters listed above in paragraph [15] of his statement of claim.
Common law duty to exercise reasonable care
Aluline acknowledges that it had a non-delegable duty of care to ensure that Mr Griffin had a safe place of work and a safe system of work.[7]
[7]First Defendant’s (Aluline) Submissions dated 4 December 2015 (‘Aluline’s Final Submissions’), 15 [79].
Aluline disputes that this duty extended to conducting an assessment of the method to access the swing stage or educating Mr Griffin as to access.[8]
[8]Ibid 15 [81]-[83].
Statutory duty to ensure health and safety
Although raised in Mr Griffin’s statement of claim, it was not pressed at trial that Aluline had any liability under the OH&S Act or the Occupational Health and Safety Regulations 2007 (Vic) (‘OH&S Regulations’).
Statutory duty as occupier of the premises
It was alleged that Aluline was the occupier of the premises and therefore owed a duty to Mr Griffin pursuant to s 14B(3) of the Wrongs Act to take such care as in all the circumstances was reasonable to see that the worker, while on the premises, would not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[9]
[9]Plaintiff’s Statement of Claim, 3 [8].
Aluline does not admit that it was a statutory occupier for the purposes of the Wrongs Act.[10]
[10]Defence of the First Defendant dated 23 October 2014, [1].
I note that this allegation was not pursued with any specificity by any party against Aluline.
Contribution claims against Probuild
Form 11B contribution notices were filed against Probuild by Tubeway[11] and Aluline[12] claiming they were entitled to contribution from Probuild in respect of any sum Mr Griffin recovered, on the ground that Probuild’s negligence and/or breach of duty contributed to any injury, loss and damage which Mr Griffin suffered. No particulars of negligence and/or breach are provided. The document relies upon Mr Griffin’s statement of claim and accordingly the same particulars of negligence of breach as alleged against all the defendants at paragraph [15] of the Mr Griffin’s statement of claim are relied upon.[13]
[11]On 9 July 2015.
[12]On 29 October 2015.
[13]Plaintiff’s Statement of Claim, 6 [16].
Mr Griffin alleges that Probuild:
(a) was the head contractor responsible for the construction of a high rise tower at the premises;
(b) was an occupier of the premises pursuant to s 14A of the Wrongs Act;[14]
(c) had a duty to take reasonable care for Mr Griffin’s safety whilst he was performing work duties at the premises using the swing stage;[15] and
(d) had the instruction, control and supervision of Mr Griffin while he was working at the premises.[16]
[14]Ibid 2 [2].
[15]Ibid 3 [9].
[16]Ibid 4 [11].
Common law duty to exercise reasonable care
Probuild acknowledges that it owed a general duty to Mr Griffin to take reasonable care for his safety. Particularly, Probuild acknowledged that it was under a common law duty of care, as the principal contractor, to exercise reasonable care in coordinating the activities of the various contractors, including Aluline’s use of swing stages to perform external balustrade defect work on site.[17]
[17]Second Defendant’s Outline of Submissions in the Recovery and Contribution Proceedings dated 4 December 2015 (‘Probuild’s Final Submissions’), 9 [7] – 11 [15]; Further Submissions of the Second Defendant (Probuild) dated 21 December 2015, 2 [5].
Statutory duty to ensure health and safety
Under s 23 of the OH&S Act Probuild had a duty as an employer having management and control of the workplace at the Bank Apartments to eliminate or reduce risks to health and safety to persons other than the employees of the employer arising from the conduct of the undertaking of the employer so far as was ‘reasonably practicable’.
Of the regulations pleaded in Mr Griffin’s statement of claim, the most relevant to Probuild are the following:
(a) Regulation 3.5.2 – failure to identify hazards for a class of plant;
(b) Regulation 3.5.23 – failure to identify and eliminate hazards associated with the use of the plant; and
(c) Regulation 3.5.24 – failure to reduce the risks associated with the use of the plant.
Statutory duty as occupier of the premises
It was alleged that Probuild was the occupier of the premises and owed the duty to Mr Griffin pursuant to s 14B(3) of the Wrongs Act to take such care as in all the circumstances was reasonable to see that Mr Griffin, while on the premises, would not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[18] Probuild agrees that it was the occupier of the work site at the Bank Apartments.[19]
[18]Plaintiff’s Statement of Claim, 3 [8].
[19]T 593 LL 26-28.
Contribution claims against Tubeway
Form 11B contribution notices were filed against Tubeway by Probuild,[20] Higgins,[21] and Aluline[22] claiming they were entitled to contribution from Tubeway in respect of any sum Mr Griffin recovered, on the ground that Tubeway’s negligence contributed to any injury, loss and damage Mr Griffin suffered.
[20]On 28 October 2014.
[21]On 1 December 2014.
[22]On 29 October 2015.
In Mr Griffin’s statement of claim, it was alleged that Tubeway:
(a) was the supplier of scaffolding and a swing stage to the premises;
(b) was engaged by Aluline and/or Probuild and/or Higgins to supply, erect and install the swing stage at the premises;[23] and
(c) had a duty to take reasonable care for Mr Griffin’s safety whilst he was performing work duties at the premises using the swing stage.[24]
[23]Plaintiff’s Statement of Claim, 2 [3].
[24]Ibid 3 [9].
Mr Griffin claimed that the incident was caused by Tubeway’s breach of its duty and/or its negligence as pleaded in the Mr Griffin’s statement of claim.[25]
[25]Ibid 7 [17].
Common law duty to exercise reasonable care
It is alleged that Tubeway owed a general common law duty to Mr Griffin, as a person within a known class of workers who were using their swing stage, to do all things reasonable to ensure its acts or omissions did not cause him to suffer reasonably foreseeable harm.
Statutory duty to ensure health and safety
It is alleged that as a designer, manufacturer and/or supplier of ‘plant’, being the swing stages it provided, which included a confined space, a duty arose under the OH&S Regulations for Tubeway to eliminate or reduce so far as was practicably reasonable the risks associated with entering and exiting the swing stage. Additionally it is alleged there was a duty on Tubeway to identify and eliminate or reduce any hazards or risks associated with the swing stage.
Although a number of duties under the OH&S Act and the OH&S Regulations were pleaded by Mr Griffin, many were not applicable to Tubeway. As Tubeway was not a relevant employer, it was not caught by Part 3.1 of the OH&S Regulations.
I have identified the following regulations as the most relevant to Tubeway:
(a) Regulation 3.5.2 – failure to identify hazards for a class of plant;
(b) Regulation 3.5.23 – failure to identify and eliminate hazards associated with the use of the swing stages; and
(c) Regulation 3.5.24 – failure to reduce the risks associated with the use of the swing stages.
Contribution claims against Higgins
A form 11B contribution and indemnity notice was filed against Higgins by Tubeway,[26] in which it was claimed that Tubeway was entitled to contribution and indemnity from Higgins in respect of any sum Mr Griffin recovered, on the ground that Higgins’ negligence and/or breach of duty contributed to Mr Griffin’s injury, loss and damage, and pursuant to terms of agreement between Tubeway and Higgins.
[26]On 19 October 2015.
Mr Griffin’s statement of claim alleges that Higgins:
(a) was an occupier of the premises pursuant to s 14A of the Wrongs Act;
(b) engaged Tubeway to supply, erect and install the scaffolding and a swing stage at the premises;[27] and
(c) had a duty to take reasonable care for Mr Griffin’s safety whilst he was performing work duties at the premises using the swing stage.[28]
[27]Plaintiff’s Statement of Claim, 2 [4]-[5].
[28]Ibid 3 [9].
Mr Griffin further claims that the incident was caused by Higgins' breach of its duty and/or its negligence as pleaded in Mr Griffin’s statement of claim.[29] Tubeway repeated these allegations in its amended form 11B contribution and indemnity notice against Higgins dated 19 October 2015.[30]
[29]Ibid 7 [18].
[30]Amended Notice by One Tortfeasor Claiming Contribution and Indemnity Against Another dated 19 October 2015, 4 [8].
Similarly, Probuild filed an amended statement of claim in the contribution proceedings against Higgins on 19 October 2015. In this, Probuild refers to Mr Griffin’s statement of claim dated 13 October 2014 and alleges that Mr Griffin’s injury was caused by the negligence and/or breach of duty of Higgins. Probuild repeats the particulars of allegations from Mr Griffin’s statement of claim raised in that regard against Higgins.[31] Higgins denies these allegations.[32] The Probuild notice of contribution against Higgins also pleads contribution and indemnity pursuant to an agreement dated 16 November 2010.[33] The indemnity aspect of Tubeway’s and Probuild’s claims against Higgins is to be dealt with separately to the current proceeding.
[31]Amended Statement of Claim in Contribution Proceedings by the Second Defendant Against the Fourth Defendant dated 19 October 2015 (‘Probuild’s Amended Statement of Claim against Higgins’), 9 [7].
[32]Defence to Contribution Claim of the Second Defendant dated 26 October 2015, 2-4 [6]-[7]; Defence to Contribution Claim of the Third Defendant dated 26 October 2015, 2 [8].
[33]Probuild’s Amended Statement of Claim against Higgins, 9-11 [8]-[14].
Common law duty to exercise reasonable care
It is alleged that Higgins, by arranging to provide scaffolding and swing stages for use by workers on the site, had a general common law duty to do all things reasonable to ensure that its acts or omissions did not cause Mr Griffin to suffer reasonably foreseeable harm.
It is alleged that Higgins’ common law duty extends to an obligation to do all things reasonable to ensure Mr Griffin had safe access to and into the swing stage.
Evidence
Mr Griffin is 49 years of age. He is married and has two adult children. He completed year 10 schooling and then an apprenticeship as a motor builder. He worked as a motor builder for eight years. In his early years of work in the mid-80s he suffered a back strain which did not require any time off work. In the 90s when working at Clyde Engineering he had another accident and suffered an injury to his back, which required a few months off work. He continued his employment largely full time without a break in the 90s. In the late 90s he purchased a tray truck to commence his own business. The business was not successful and in 1998 he commenced employment with Newlight Balustrading, installing balustrading. He worked with Newlight Balustrading from 1998 to 2006, and then Bayview Balustrading from 2006 to 2009.
In this period Mr Griffin had a couple of injuries, including a dislocated shoulder while riding a pushbike in December 2007 and a further shoulder injury in 2009 while riding a dirt bike.
In October 2009, Bayview Balustrading went into receivership and Mr Griffin commenced work with Aluline.
Aluline constructs balustrading largely for high rise buildings, the work Mr Griffin did full time from October 2009. While in employment with Aluline, Mr Griffin commenced work at the Bank Apartments, a 41 storey building.[34]
[34]T 108, L 11.
Probuild was the principal contractor for the construction of the Bank Apartments.
Probuild engaged a number of sub-contractors to complete various works, including Aluline.
Higgins was engaged by Probuild to paint, amongst other things, the exterior of the building and supply mobile scaffolding for use by both Higgins and other trades on site.
Higgins engaged Tubeway to erect the scaffolding, including swing stages. The agreement also required Tubeway to induct users of the swing stage into their safe operation. Included were those users employed by other sub-contractors at the site, including Aluline.
In August 2010 Mr Griffin was sent by Aluline to the Bank Apartments. A view was conducted on the Bank Apartments on 4 November 2015. Exhibit P6 consists of three photographs of the Bank Apartments.[35] The first photograph is a view from the west. In the first photograph a pontoon can be seen, which houses the car park. The car park continues for eight storeys. At the top of the car park, there is an open deck on the eighth floor. It is this area where Mr Griffin says he sustained an injury while entering a swing stage on 10 May 2011.
[35]Exhibit P6.
By the time Mr Griffin commenced working at the Bank Apartments in August 2010, he had been working with Aluline for 10 to 11 months, working at various sites.[36] In the 11 years’ experience Mr Griffin had as a balustrader he had been in a swing stage once prior to commencing working in the Bank Apartments[37] and had never used a swing stage when working with Aluline.[38] Mr Griffin was Aluline’s leading hand at the Bank Apartments.[39]
[36]T 108, LL 12–15.
[37]T 108, L 28.
[38]T 108, L 18.
[39]T 186, L 27.
At the time Aluline entered into its contract with Probuild, it did not anticipate that its workers would need to access swing stages. This need arose due to defect work in the balustrading which could only be repaired by using a swing stage.[40]
[40]T 514, LL 26-31; T 515, L 1-5.
Roles and responsibilities
Probuild was the principal contractor and was in general control of the worksite.
Probuild had a site office.[41] Each morning, Mr Griffin attended the Probuild site office, where he would sign in other Aluline workers.[42] Mr Griffin would liaise with other Probuild foremen,[43] pick up drop zone permits and discuss the progress of Aluline’s work with the balustrading.[44]
[41]T 112 LL 24-25.
[42]T 112, LL 27-28.
[43]T 112, L 31.
[44]T 113, LL 7-10.
Mr Griffin had a direct Probuild supervisor, Mr John Ray, the façade supervisor,[45] and a direct Aluline supervisor, Mr Baci Canko.
[45]T 112, L 13; T 1039, LL 23-24.
Mr Ray was on site every day, even on Saturdays when he prepared rosters for the trades in the upcoming week.
Mr Griffin’s evidence was that Mr Canko was on site once or twice a week. Mr Canko’s evidence was that he was on site virtually every day and would attend the site office and occasionally consult with Aluline employees.[46]
[46]T 534 LL 9-15, 20-22.
Probuild, through Mr Ray, coordinated the use of swing stages on site.[47] Mr Ray was responsible for the swing stage roster and for giving it to various workers, including Mr Griffin.[48] Probuild, through Mr Ray, coordinated and allocated drop zone permits.[49]
[47]T 124, LL 12-22; T 125, LL 2-4.
[48]T 124, LL 20-22.
[49]T 958, LL 28-31; T 1067, LL 8-31; T 1068, LL 1-5; T 1095, L 30.
Mr Paul Jackson, Probuild’s Health, Safety and Environment co-ordinator (HS&E co-ordinator), created and designed the drop zone system[50] and drew the drop zone map.[51]
[50]T 945, LL 2-12.
[51]Exhibit P1, T 901, LL 1-6.
Mr Canko’s evidence that he assisted in the development of the drop zone system, was strongly refuted by Mr Jackson.[52]
[52]T 542, T 945.
Probuild had practical management control of the site. Probuild inducted all workers onto the site;[53] toolboxed trades on the drop zone procedure;[54] requested sub-contractors toolbox their employees;[55] amended the permit zone procedure;[56] and was responsible for the overall management and risk assessment of the Bank Apartments.[57]
[53]Exhibit D2-2.
[54]Exhibit D2-4.
[55]Exhibits D3-7, D3-8.
[56]Ibid.
[57]Exhibit D3-12.
Mr Ray and John Birt confirmed that Probuild was responsible for implementing and managing the drop zone permit system, including communicating changes to, and supervising the permit system. It was Probuild, through Mr Ray, who determined who could have access to a drop zone. The evidence strongly supports that Probuild was responsible for the access point through which the drop zone was to be entered. Probuild controlled the permit cards, the ‘sign in, sign out’ register book, the provision of keys for access, and the positioning of barricading tape, including what was referred to as ‘idiot tape’ and ‘inertia reels’. Only Probuild could authorise the use of a drop zone.
Probuild had a direct role in Mr Griffin’s day to day activities. Mr Griffin described Mr Ray as ‘always snooping around …’, ‘always checking on us’.[58] Mr Ray was pushing Mr Griffin to get the job done.[59] Mr Griffin dealt with Mr Ray ‘probably every day, most of the days’.[60] Probuild directed Mr Griffin to do the infill work and to undertake the work by accessing drop zone 12.
[58]T 158, L 7.
[59]T 124, L 27; T 125, L 2.
[60]T 124, L 25.
The Probuild induction register[61] describes Mr Griffin’s employer as Aluline and his supervising employer as ‘Probuild’. Mr Joe Cirianni, Probuild’s site manager at the Bank Apartments between 2009 and 2011, said that the reference to Probuild being Mr Griffin’s ‘supervising employer’ was ‘a typo, an error’,[62] because Mr Griffin worked for Aluline not for Probuild and Mr Griffin was the balustrading supervisor on the site for Aluline.[63]
[61]Exhibit D2-11.
[62]T 836, L 24.
[63]T 838, LL 10–13.
Safety at the Bank Apartments
In preparation for the commencement of the works, Aluline prepared its OHS&E Management Plan.[64] The document was prepared at the request of Probuild, who then audited and made comment in relation to it.[65] This document was referred to as Aluline’s ‘subbie pack’. Probuild required Aluline to make changes to its subbie pack prior to coming on site, and gave Aluline a 100% mark for its safe work procedure and safe work method statement (‘SWMS’).[66] Aluline’s SWMS did not include an assessment of the risk of entering the area to access swing stages.[67] The evidence is that when Mr Jackson undertook the audit of Aluline’s SWMS in February or March 2011, he did not address the risks associated with the use of the swing stages by Aluline employees.[68]
[64]Exhibit D2-3.
[65]T 510, LL 22-29.
[66]T 512, L 10; Exhibit D1-1.
[67]Exhibit D2-3 at 38-36.
[68]T 956, LL 23-26.
At the time Aluline’s OH&S management plan was created, Aluline did not consider its employees would be performing any works from a swing stage.[69]
[69]T 741, LL 27-30; T 954, LL 26-29 ; T 955, LL 3-5.
Mr Jackson said that he had an expectation in July 2010 that Aluline would be accessing swing stages as part of their work.[70] Despite this, Aluline was not told prior to submitting its subbie pack[71] that access would be required.
[70]T 886 LL 21-23.
[71]Exhibit D2-3.
Tubeway was contracted by Higgins to supply, amongst other things, swing stages for the Bank Apartments. The contract comprises Tubeway’s quote and terms and conditions.[72] Probuild was not a party to the contract. Higgins authorised Mr Ray to provide instructions to Tubeway employees as to the placement of swing stages. Higgins was responsible, however, for payment of the services. The agreement required Tubeway to provide free induction training regarding the operation of swing stages for three men per swing stage hired.[73] Tubeway had no other responsibility or control over other supervision of users on the swing stages. Once a handover certificate was provided to Higgins as the hirer, or Probuild as Higgins’ agent, Tubeway did not have control over where the swing stage was placed or its use.
[72]Exhibit D3-25.
[73]Exhibit D3-25, 2 .
While Higgins had a contractual obligation to Probuild to make available to other sub-contractors the swing stages that it had arranged,[74] it did not construct, assemble or locate the swing stages. Higgins did not provide Aluline or Mr Griffin with any documentation regarding swing stages, it did not train or induct Mr Griffin in relation to swing stages, nor would it have been entitled to undertake any of those activities.[75] Higgins only had access to swing stages for its own use.[76]
[74]Exhibit D2-10.
[75]T 974, L 5; T 768, L 9.
[76]T 768, LL 21-30.
Higgins, as with other sub-contractors, provided a site safety plan for the Bank Apartments.[77] It agreed that it would work in accordance with codes of practice and regulations, including:
·Occupational Health and Safety Act 2000, No. 40;
·Occupational Health and Safety Regulations 2001;
·AS 4576 (Scaffolding Guidelines); and
·AS/NZS 1576 (various scaffolding).[78]
[77]Exhibit D2-22.
[78]Exhibit D2-22, 9.
Higgins also required that their employees and sub-contractors worked safely. In relation to working at heights, the Higgins site safety plan stated:
Working at Heights
…
Swing Stage Scaffolding
·All Swing Stage Scaffolding will be erected by qualified scaffolding contractors.
·The Swing Stage supplier will induct those personnel using the Swing Stage. They will provide adequate training as to its correct use and a basic daily checklist, which must be completed by all personnel.
·To protect the general public barricading will be erected and appropriate warning signs displayed, whilst work is in progress.[79]
[79]Exhibit D2-22, 17.
Probuild’s site induction
On 3 November 2010, Mr Griffin underwent a general site induction conducted by Probuild at the Bank Apartments.[80] The induction is recorded in Probuild’s site induction register.[81] The matters dealt with included general site matters such as the location of the lunch room, the toilet, reporting systems on site and the various permit systems.[82]
[80]Exhibit P3.
[81]Exhibit D2-11.
[82]T 110 LL 19-31; T 111, L 1-2; T 337, LL 14-24; T 586, L 12-17; T 619, LL 6-24.
In Mr Griffin’s answers to interrogatories delivered on behalf of the first and fourth defendants, Mr Griffin objected to answering whether he attended any training and/or induction at the Bank Apartments but under cover of that objection answered ‘no’.
In evidence-in-chief, Mr Griffin said he remembered the site induction given by Probuild[83] and that the topics of discussion were ‘similar to every other induction, that you don’t touch scaffold and you don’t go through any barricaded area’.[84] Mr Griffin’s evidence was that he was informed about barricading at the general site induction and that he was told:
You just don’t touch barricading, you don’t go through barricaded areas.
QUESTION: When you’re being told in the induction about not going through a barricaded area, what is implied? What are you taking from that? How is an area designated a barricaded area? – – A no go zone. You’re not allowed the other side of the barricade. Whether there is a drop zone there, or there is machinery, it is just what you do.
[83]T 110, L 28.
[84]T 111, LL 4–11.
Drop zones, as the name suggests, are where workers can drop materials and machinery and the like. In the case of the Bank Apartments the area over the car park depicted in the first photograph in Exhibit P6 was utilised as a drop zone. The pontoons were replicated around the building and were used as drop zones. Throughout the course of the trial reference was made to Exhibit P1 a map depicting the drop zones on level 8. Drop zone number 12 identified on Exhibit P1 was the subject of much evidence and is the area where Mr Griffin says that the swing stage was placed on 10 May 2011 when he injured himself.
Exhibit P1 depicts drop zone 12. In the course of the hearing various features of the level 8 drop zone map were marked and identified as follows:
A — a sliding door on western elevation;
B — windows;
C — open door;
D — swing stage – on western elevation, where Mr Griffin says the swing stage was placed on 10 May 2011 and where he sustained his injury; and
E — swing stage on southern elevation, where Tubeway says the swing stage was placed on 10 May 2011.
I will for convenience adopt the above references in exhibit P1.
Mr Griffin’s evidence was that drop zones were used for safety reasons.[85] He said that in the Probuild site induction he was told that you do not go to a drop zone unless you have authority to do so.[86]
[85]T 111, LL 24–7.
[86]T 111, LL 28–9.
As part of the Probuild induction process, workers on the site completed a Probuild site induction personal details form.[87] Mr Griffin completed such a form and signed and dated it 27 October 2010.[88] The Probuild site induction form contained information on a number of matters including that:
(a) a permit system had been introduced to govern all façade work and drop zones; and
(b) only company supervisors could apply for a permit in consultation with Probuild Structure Supervisors.[89]
[87]Exhibit D2–2.
[88]Exhibit D2–2A.
[89]Exhibit D2–2.
Mr Canko’s evidence was that he had undergone the Probuild site induction and that it would have mentioned the drop zone system that was in place, but the specifics about the drop system were not canvassed.[90]
[90]T 585, LL 30–32; T 586, L 1.
Mr Cirianni described drop zones as follows:
A drop zone, we give it stature around the perimeter of the building and we divvy up the perimeter of the building so that we introduce an operation zone, which in turn allows people, at their permitted times, to work either on the elevation of the building or on the immediate terrace, as you see the numbers on the perimeter. The reason we set that up is that only one trade can work on that particular zone at any one particular time and there may be the odd, depending on the shape and style, there may be a second trade, depending how the building is divided up.[91]
[91]T 608, LL 30–31; T 610, LL 1–9.
On the third page of Probuild’s site induction form, under General Requirements, it states:[92]
All personnel MUST have a safe work procedure (SWMS) for the tasks which they will be undertaking. Safe work procedures must be followed at all times. Copies to Probuild.
[92]Exhibit D2–2, under heading 5, General Requirements, at the fourth bullet point.
Mr Cirianni’s evidence was that the reason this item was contained under General Requirements was so that if there was any activity out of the ordinary that the employees were to carry out, they knew they needed to have a SWMS and they needed to provide Probuild with the SWMS prior to doing those jobs. As mentioned, at the time Aluline provided its SWMS document to Probuild, the use of a swing stage was not contemplated.
Probuild prepared a document which set out the drop zone permit system and what was required of workers. Two copies of this document were tendered into evidence, Exhibits D2–4 and D3–7. I will return to these exhibits. Probuild witnesses Mr Cirianni, Mr Jackson and Mr Ray gave evidence that the relevant supervisors on site for the various sub-contractors were toolboxed into the drop zone permit system.
Mr Jackson was unable to say whether the Probuild induction educated Mr Griffin on the drop zone or barricading of doors.[93]
[93]T 1006 LL 15-18.
I am satisfied on the evidence that as part of the Probuild site induction, the drop zone permit system was mentioned but in a general way and that it was via the tool boxing system that workers were informed and educated in greater detail as to the drop zone permit system requirements. It will be necessary to return to the issue of what workers and, in particular, Mr Griffin were told in this regard.
Drop zones and training
The systems and procedures for using swing stages required that each sub-contractor understood the drop zone permit system. Probuild had amongst its documentation a ‘Project Risks Assessment for Bank Apartments’ dated 26 August 2010.[94] It stipulated amongst other things, a ‘Probuild drop zone procedure to be in place’, and that ‘only trained competent personnel to use swing stages’.[95]
[94]Exhibit D3-12
[95]Ibid, p. 10.
It was Mr Jackson’s evidence that the systems and procedures devised by Probuild for the various activities on the building site were in place to ensure amongst other things the safety of workers, in circumstances where he, and for that matter, Mr Ray or Mr Cirianni, could not micromanage each subcontractor that came on to the Bank Apartments.[96]
[96]T 892, LL 26-31; T 893, LL 1-7; T 915, LL 7-15.
Mr Ray was responsible for co-ordinating all sub-contracting workers, including those who required access to the drop zone by:
(a) managing the drop zone permit system;
(b) preparing and co-ordinating a swing stage work schedule;[97] and
(c) preparing and co-ordinating a swing stage roster on a weekly basis.[98]
[97]Exhibit D2–12.
[98]Exhibit D2–6.
Probuild submits that the drop zone permit system required all workers to be toolboxed into the following procedure to access drop zones:
(a) an induction card issued by Tubeway to verify that a worker was a ‘competent person’ to use the swing stage must be produced;
(b) if a worker or trade is allocated a drop zone they were to attend to Mr Ray to obtain the passes on to the swing job;
(c) if a worker was accessing the swing stage the trade was required to undertake a checklist prior to the permit being issued;[99]
[99]T 1068, LL 8-22.
(d) the worker must complete and sign a Tubeway ‘daily safety checklist’;
(e) Probuild’s external permit, which was maintained in Mr Ray’s office, was required to be completed. Mr Ray would look at the checklist and issue the green card which was the size of a driver’s licence;[100]
[100]T 1068, LL 23-29.
(f) the green card permitted access for the workers to the designated drop zone area;
(g) the worker was required to display safety/warning signage, ‘Drop Zone Keep Out’ and the like at drop zone areas;
(h) once a green card was issued to a worker, a red card would be pinned up in Mr Ray’s office designating the drop zone that was allocated and the workers would then take their green cards to the site at level 8, put a barrier across and put a sign up saying drop zone was in use;[101] and
(i) the worker was also required to affix barricade tape (red and white) from inertia reels fixed to one side of a doorway access to a drop zone.[102]
[101]T 1069, LL 27-30; T 1070, LL 15-17.
[102]Probuild’s Final Submissions, 15 [23(e)(vii)].
Even though a number of these steps are in part set out in Probuild’s drop zone permit tool boxing document, evidence indicates there was some confusion as to how the permit system actually operated. For example, when the checklist was to be completed was a source of confusion on site. Mr Jackson’s evidence was that an inspection of a swing stage could not take place before a permit was issued.
However Mr Cirianni said that he did the checklist first and then got the permit. Mr Jackson’s response was that Mr Cirianni must be confused, and that you cannot do a checklist accurately unless you have a permit to go into the zone to do the check.[103]
[103]T 953, LL 9-12.
In relation to Probuild’s tool box memorandum regarding the use of drop zones, there were two copies of this document tendered in evidence, Exhibits D2–4 and D3–7. The first, Exhibit D2–4, was tendered by Probuild and Mr Griffin was cross-examined about it. He could not recall having seen the document before.[104] A virtually identical copy was tendered by Tubeway, Exhibit D3–7.
[104]T 194, L 10.
The wording of Exhibit D3–7 was slightly different to D2–4. There had been hand written changes made to Exhibit D3–7 dealing with the use of the inertia reels on levels 8 and 10 of the Bank Apartments. Exhibit D2–4 provided that at the completion of a sliding door all inertia reels would be removed and the drop zone would be governed by the zone signage affixed to the door. Exhibit D3–7 deleted the words ‘will be removed and the’, modifying the use of the inertia reels. It therefore appears that the inertia reels continued to be used after completion of the sliding doors.
No adequate explanation for the difference in these two documents was given in evidence. There was confusion about the use of inertia reels on the site and in particular in drop zones. Mr Jackson was adamant that the inertia reels were the sole method of barricading the drop zone.[105] Mr Jackson was at pains to tell the Court that he had spent several thousand dollars purchasing the inertia reels and hoped that they were used by workers on the site.[106]
[105]T 904-905; T 917, L 20-29; T 973, LL 12–31; T 1010, L 15.
[106]T 973, LL 26-30.
This is inconsistent with Mr Griffin and John Birt’s evidence. John Birt is a Tubeway employee who installed the swing stages at the Bank Apartments. Mr Griffin and John Birt gave evidence that there was extra barricading over door C. Mr Griffin gave evidence the barricading tape, described by Mr Canko as ‘idiot tape’,[107] was used on door C.[108] John Birt gave evidence that there was a hoarding board and idiot tape applied to door C when he attempted to set up the swing stage on 9 May 2011.[109]
[107]T 584, L 25.
[108]T 255, LL 1-4.
[109]T 151, LL 6–13; T 1518, L 3; T 1550, L 19; T 1010–1011; T 1020, LL 8-10.
Although Mr Jackson could not specifically recall emailing either Exhibits D2–4 or D3–7 to Aluline, he stated in cross-examination that he could only assume they were.[110] He also maintained that the inertia reels were always a feature of the drop zone permit process that applied to the Bank Apartments.[111] That is, from initiation of the drop zone permit process until the project got to a point where the inertia reels were no longer required.[112]
[110]T 946, LL 9–10; T 950, LL 1-4.
[111]T 946, LL 11–14.
[112]T 946, LL 14–27.
It is unclear from Exhibits D2–4 and D3–7, which both contain the words ‘at completion of works any temporary barricading is to be removed and the area clean and tidy’, what this instruction is directed to. It seems to imply that there is permanent barricading, which one can only assume is a reference to the inertia reels earlier in the document, as contended by Mr Jackson.[113] But it is not clear what constitutes temporary barricading.
[113]T 905-906; T 101, L 1.
The permit memorandum, Exhibits D2-4 and D3-7, do not provide any information as to what instructions were given in relation to barricading and under what circumstances workers were not to proceed past a barricade.
Mr Jackson sent an email dated 4 November 2010 on behalf of Probuild in relation to drop zones. It was not addressed to Aluline.[114] He said in the email:
As the latest trades to start at Bank I require you to tool box all personnel that are working on or coming and going on the project into the drop zone procedure …
Although the procedure is for the application of DZ permits it gives an indication of how seriously we take these areas. Given the inherently dangerous nature of drop zones it is important that new comers have a clear understanding of what is expected of them. The subject is discussed at inductions however the full procedure needs to be presented to workers as we have caught some out in these areas when permits are in place completely oblivious of the dangers overhead.
Please forward to myself the completed signed off tool box acknowledgement by C.O.B. 12th November 2010.
Paul Jackson.
[114]Exhibit D3–8.
Mr Jackson’s evidence in relation to the 4 November 2010 email was that it was unlikely that he sent that email to Aluline via Mr Canko, on the basis Aluline would have learned about it at tool box or site meetings.[115]
[115]T 950, LL 1–4.
Mr Jackson agreed that it was possible that the importance of the drop zone permit system may not have been imparted to workers if their employers, the sub- contractors, had not reinforced how important it was to follow procedure.[116] Mr Jackson also conceded that he could not confirm which version of the drop zone permit memorandum, Exhibits D2–4 or D3–7, was given to different trades and that there could be some confusion when workers reached level 8 as to what to expect.[117]
[116]T 950, LL 25–8.
[117]T 952, LL 16–18.
Mr Jackson agreed that there was some confusion about the operation of the drop zone permit system, a system that he devised and enforced.[118] He agreed that the confusion was either because workers had not been trained properly in the drop zone permit scheme or that they were not supervised properly in undertaking their work compliantly with the process. He agreed that potentially the implementation of the permit zone process was lacking given the confusion between one document circulating and the existence of another document.[119]
[118]T 952, LL 25–9.
[119]T 953, L 5.
Mr Jackson’s evidence was that there had been incidents where other workers had breached the drop zones and thus the drop zone permit memorandum was distributed to remind those working on the site about the sanctity of the drop zones and observing warning signs.[120]
[120]T 949, LL 16-29.
Findings — drop zone training — control of Door C
The evidence portrays a confusing permit system designed and implemented by Probuild. It is not clear if Mr Griffin was tool boxed into the drop zone procedure. The understanding of the permit zone procedure differed between the witnesses, highlighting the confusion.
The Probuild site induction mentioned the drop zone permit system but only at a general level. Information concerning the drop zone permit was to be disseminated via tool boxing. The 4 November 2010 email[121] does not appear to have been sent to Aluline. Mr Jackson did not think either D2–4 or D3–7 was given to Aluline.[122] The permit memorandum[123] was issued after Aluline first began using the drop zones.[124]
[121]Exhibit D3–8.
[122]T 950, L 1.
[123]Exhibits D2–4 and D3–7.
[124]T 950, LL 1-4.
The difference between Exhibits D2–4 and D3–7 was not properly explained in evidence. It highlights the confusion in the management and co-ordination by Probuild of the drop zones. Mr Jackson was adamant that the inertia reels were the sole method of barricading the drop zones.[125] This is inconsistent with Mr Griffin and John Birt’s evidence.
[125]T 973, LL 9-12, 26-31; T 974, L 1.
Exhibits D2–4 and D3–7 refer to temporary barricading and that temporary barricading should be removed at the completion of works. This would be consistent with signage on inertia reels. It is not clear if there was also permanent barricading and if so, what was expected of workers confronted with permanent barricading. I accept that these were different forms of barricading used on level 8 on 9 and 10 May 2011. I accept that Door C had some sort of ‘idiot tape’ or red and white tape across it. What is not clear is whether the barricading on Door C was to be regarded as temporary or permanent and what was expected of a worker when confronted with such a barricade.
There is no evidence that Mr Griffin was instructed about questioning the sanctity of barricading. Mr Griffin’s evidence was clear that when confronted with a barricaded area you did not go through it.[126]
[126]T 111, LL 4-11.
As discussed it was Mr Griffin’s evidence that he did not access the drop zone 12 on 10 May 2011 through Door C because it was barricaded with more than an inertia reel and to his thinking, not safe to access. As a consequence, he accessed Door A even though it was not designated for entry to drop zone 12 and was not specified by any party as the preferred means to enter the swing stage.
John Birt’s evidence was that he was responsible for positioning the swing stage adjacent to Door A on the afternoon of 9 May 2011 at a distance from the building façade which did not allow Mr Griffin sufficient space to move around the cradle to enter it from the unobstructed side.[127]
[127]T 1585–86; T 1546, LL 25–31.
Probuild submits that the placement of the swing stage on 9 May 2011 by John Birt disregarded what was described as ‘the John Ray agreement’ (discussed later in these reasons) and was in contravention of clauses 6.10 and 6.12 of the WorkSafe Guidelines ‘What You Need to Know About… Suspended Scaffolds’ (‘the WorkSafe Scaffolding Guidelines’)[128] and clause 11.3 of AS 4576 (Scaffolding Guidelines)[129] headed ‘ACCESS’, of the Australian New Zealand Standard — Guidelines for Scaffolding.
[128]Exhibits D2–9.
[129]Exhibit P32, p. 72.
Probuild submits that its employees, Mr Cirianni, Mr Ray and Mr Jackson did not know and could not reasonably have been expected to have known that:
(a) Mr Griffin’s safety when accessing drop zone 12 might be compromised as a result of ‘ergonomic difficulties’ due to the placement of the swing stage outside Door A;
(b) Door C was barricaded in such a way that Mr Griffin perceived it inhibited his own safe access through that door;
(c) Mr Griffin would enter the swing stage through Door A and did so in a manner that was described by Paul Jackson as absurd[130] and which left John Ray speechless;[131] and
(d) Mr Griffin would not follow the safety precautions expected of him by Probuild under the Drop Zone Permit[132] by failing to contact John Ray or someone from Probuild for instructions to clarify whether to use Door A to access drop zone 12.
[130]T 103, LL 1–5.
[131]T 1204, LL 12–20.
[132]Exhibit D2–4, p. 554.
Probuild submits that unless John Birt told Mr Ray that the swing stage could not be properly accessed through Door A, that it was not reasonably practicable[133] for Probuild to micromanage or control precisely where John Birt placed the swing stage, including on 9 May 2011, so as to reduce or avoid the risk of Mr Griffin suffering injury from the awkward manner he entered the swing stage on 10 May 2011.
[133]See footnote 29 of Probuild’s Final Submissions.
Probuild submits that John Ray could not be expected to hold a worker’s hand and walk them to the drop zone[134] once a worker had obtained the necessary drop zone permit. Probuild submits that John Ray had no cause to say anything to Mr Griffin about the ‘pathway’[135] to access drop zone 12 on 10 May 2011 when Mr Griffin left the site office to make his way to level 8 to drop zone 12 as depicted on Exhibit P1.
[134]T 1071, L 5.
[135]T 1071, LL 11–15.
I am satisfied that the responsibility for development of the drop zone permit and induction rested with Probuild. The system had problems with non-compliance which resulted in changes being made during the course of the works on the site. The drop zone and permit system were central to obtaining access to the swing stages safely. Probuild was exclusively responsible for providing access to the level 8 and controlled the process.
Mr Griffin, Mr Canko and John Birt gave evidence that the drop zone procedure required them to obtain keys. In contrast, Mr Cirianni, Mr Jackson and Mr Ray all said there was no requirement for a key on level 8.[136]
[136]T 1072, LL 14-18; T 1076, L 13.
Exhibits D3-8, D3–7 and D2–4 make it clear there were omissions in relation to the operation of the drop zones and that Probuild knew of non-compliance amongst workers on site.
These exhibits also reveal that changes in the operation of the drop zones were made. It is not clear how the changes were communicated and it seems that Aluline, and accordingly Mr Griffin, were not included in the communication about the changes.
Mr Cirianni agreed that with the benefit of hindsight it would have been better for Probuild to have identified workers personally that were the subject of the permit system.[137]
[137]T 782, L 3.
The evidence supports Mr Griffin’s position that the confusion about the barricading led him to use Door A to access the swing stage.
At the time the swing stage was assembled on drop zone 12 on 9 May 2011, there was adequate access via Door C. However, the access was barricaded. John Birt’s evidence in relation to accessing drop zone 12 on 25 June 2011, which is when he says the swing stage was placed at ‘D’ was that it was barricaded with red and white tape.[138] There were no inertia wheels in the corridor because it was too narrow- ‘they just barricaded it with red and white tape and say “No Entry” – or no-one enters red and white tape anyway. It is like a no-go zone’.[139]
[138]T 1550, LL 23–24.
[139]T 1550, LL 27–31.
John Birt’s evidence about the drop zones was telling. He said that ‘anything can change on the site. You could walk away and come back 10 minutes later and it is barricaded in a different way’.[140] He said that ‘a drop zone is always a dangerous place[141] and that every time I’ve left a drop zone, even smoko, lunchtime, it is locked or barricaded, back off, so nobody can go out there …’. [142]
[140]T 1559, LL 8–10.
[141]T 1559, LL 14–15.
[142]T 1559, LL 28–30.
John Birt understood that it was his responsibility to barricade the drop zone when he left it and that he was never instructed by John Ray prior to 9 May 2011 that he should leave a drop zone unbarricaded.[143]
[143]T 1560, LL 1–10.
John Birt said that even if an area was barricaded with red and white tape, he could go through the barricading if he had a drop zone permit from Mr Ray. He said that ‘I would expect everyone to know because in the site induction, everybody that goes on site is inducted and told drop zones are permits only, so everyone has to have a permit’.[144]
[144]T 1558, LL 24–27.
In cross-examination Mr Griffin agreed that the only issue for him was whether he could go through Door C which was barricaded or whether he got to the swing stage through door A.[145]
[145]T 163, LL 5–9.
It was put to Mr Griffin that he had complete access to drop zone 12 once he got the drop zone permit from Mr Ray:
So you agree with me, don’t you, that you can access any part of that area [drop zone 12] because you’re holding the green card? – – – No, we can’t — we didn’t have access to any part of the area. We had access to where the swing took us up and that was it. We couldn’t go anywhere else on that veranda.[146]
[146]T 200, LL 7–11.
Mr Griffin agreed that when he got to level 8 and was confronted with barricaded Door C, Door A and Window B, it was a matter for him as to which way he approached the swing stage[147] and that he took the most direct way.[148]
[147]T 200, LL 28–31; T 201, L 1.
[148]T 201, LL 18–19.
When asked in cross-examination why Mr Griffin did not call Mr Ray to query whey Door C was barricaded, Mr Griffin responded:
We was given that and we worked with what we had.[149]
[149]T 228, LL 2–5.
Mr Jackson’s evidence was that:
‘A’ probably was not the access point.[150]
[150]T 917, L 4.
Mr Jackson confirmed that Door C was the designated access point to drop zone 12.[151] When asked ‘What do you say to the proposition that Door C was barricaded before Mr Griffin had an opportunity to enter onto drop zone 12’, Mr Jackson said:
… so what if the barricading was there? Big deal. If it presented a problem to him — what I don’t understand is why it is he’s not able to proceed past a high vis inertia reel but he’s able to climb over a boat to effectively end up three feet exactly away on the other side of the established barricade.[152]
[151]T 947, L 17
[152]T 197, L 24.
Mr Ray could not recall if there was barricading or a door at ‘C’ in May 2011 and he could not remember the type of access.[153]
[153]T 1075, L 22.
Mr Griffin’s evidence was that the drop zone via Door C was normally barricaded and that he would be given a key by Probuild which gave him access to Door A.[154] Mr Griffin’s evidence was that the drop zone permit entitled him to access the designated drop zone but it did not allow him to go through a barricaded area. Mr Griffin was asked in cross examination:
But you were someone who was supposed to be in the drop zone – – – Yes.
So you’re perfectly entitled to go through that barricade?
As part of our induction at the start of the site, you don’t go through a barricaded …
As part of your induction, you don’t go through barricades on to drop zones unless you’re the holder of a drop zone permit?
That’s right.[155]
[154]T 162, LL 8-16; T 166, LL 13-24.
[155]T 296, LL 27–31; T 2971, L 3; T 297, LL 4–26.
Probuild was aware that there was confusion amongst the workers about the drop zone permit system. There had been breaches of the drop zone permit system, prompting Mr Jackson’s 4 November 2010 email. Probuild issued the drop zone permit tool box memorandum. The two versions of the tool box memorandum highlight the confusion within Probuild’s system about the use of inertia reels and barricading generally. The general site induction did not adequately address the issue of barricading.
Ultimately it was reasonably foreseeable that Mr Griffin, when confronted with the barricaded Door C, would use an alternative point of entry to the swing stage via door A. There appears to have been an inertia reel at Door A. It is the type of barricading which suggests that it is temporary and can be easily removed and replaced. With the benefit of hindsight it is simple to suggest that Mr Griffin should have called Mr Ray given the limited space to enter the swing stage via Door A. However, as Mr Griffin said he worked with what he was given. Door A was an entry point that was not permanently barricaded.
Had Probuild’s drop zone permit system and training in relation to the drop zone permit system, including barricading, been clear, Mr Griffin would have been properly informed and educated as to the ability to use Door C rather than Door A. The very fact that Probuild and, for that matter Aluline, could not be expected to micromanage workers and ‘hold their hands’, means that their safety systems, procedures and training had to properly prepare workers for matters of importance such as drop zones and barricading. This is all the more given the evidence of a number of witnesses that working with swing stages and in drop zones could be a dangerous activity.
Did Mr Griffin access the swing stage at position D on 10 May 2011 and did he suffer injury to his lower back on 10 May 2011?
Mr Griffin’s evidence was that he injured himself on 10 May 2011 whilst awkwardly stepping into a swing stage at the Bank Apartments located outside Door A.[156] Mr Griffin said that either on the morning of 10 May 2011 or the night before he was told by Mr Ray that he and his colleague Mr Mick Hill (an Aluline employee) were rostered on a swing stage to do defect work on balustrading.[157] Mr Ray gave Mr Griffin the apartment numbers that had to be rectified. He could not recall the apartment numbers, but understood the location as being drop zone 12 on level 8.[158]
[156]T 150, LL 5-27; T 142, L 30.
[157]T 129, LL 15–17.
[158]T 129, LL 26–30; T 130, L 2.
Mr Griffin said that he would have gone to Probuild’s site office and signed in the Aluline employees on the morning of 10 May 2011. Mr Griffin knew that he was going to use a swing stage so he got a safety checklist which required him to do a number of things before getting into the swing stage.[159] Mr Griffin said he got ‘a permit to go into that drop zone, a tag with its key on it’.[160] Mr Griffin’s evidence was ‘It is a long time ago, but I’m not sure the key unlocked the doors going out to the balcony’.[161] Mr Griffin’s said that he believed that on 10 May 2011 he would have gone to the roof at level 34 of the building to do a visual check of the swing stage counter weight ‘and anything — make sure nothing looks out of place basically’.[162] Mr Griffin, said Mr Hill, would have checked the swing stage’s position.
[159]T 30, LL 12–17.
[160]T 130, L 24.
[161]T 131, LL 23–24.
[162]T 133, LL 3–5.
After their respective checks were conducted, Mr Griffin completed the daily checklist. There are two daily checklists tendered into evidence, P2 and D3-11. P2 was a blank daily checklist and D3-11 was a daily checklist dated 25 May 2011, signed by Emma Champion, an Aluline employee. There was no daily checklist tendered into evidence for 10 May 2011 signed by Mr Hill or Mr Griffin. Mr Griffin’s evidence was that he would have completed the checklist upon speaking to Mr Hill except for the questions he was not qualified to answer. For example, question 8 which asks ‘Make sure that the power source is properly earthed’. Mr Griffin said he recalls talking to Mr Jackson about not being able to complete all of the daily checklist and was told ‘If you can’t fill it out you can’t fill it out.’[163]
[163]T 134, L 7.
Once Mr Griffin completed the checklist he returned it to the site office and left it on the desk where he got the blank form. After that, Mr Griffin made his way to level 8. Mr Griffin identified the door marked ‘A’[164] on Exhibit P1 as the door he used to access the swing stage at the place marked ‘D’ on P1. Mr Griffin said there was ‘no door, there was just orange barricaded zigzagging from top to bottom restricting someone to walk out there, I presume’ at Door C.[165]
[164]T 144, L 21.
[165]T 137, LL 19–21.
Mr Griffin said he probably noticed the orange barricading on Door C ‘when I was in the swing from the outside. I’m just trying to think common-sense the first time I would have seen it’.[166]
[166]T 137, LL 23–25.
It was Mr Griffin’s evidence that on 10 May 2011 when he got to the door marked ‘A’, he realised it was the point to get through as the swing was on the other side. He said he recalled seeing that the entry marked ‘C’ on P1 as he walked down the corridor, ‘and whether I spoke out loud or — I just thought to myself obviously that seemed permanently barricaded not to go through … So I did have a look at it, but that’s what they set out for us and that’s how we got into the swing’.[167]
[167]T 145, 18–26.
Mr Griffin’s evidence was that he unlocked the door marked ‘A’ with the key he got on the tag that gave him access to drop zone 12.[168] He described the door marked ‘A’ as narrow[169] and that the swing stage was hard against the building, maybe two to four inches from the building.[170]
[168]T 146, L 1.
[169]T 147, L 30.
[170]T 148, L 24.
Mr Griffin then described how he accessed the swing stage:
On the swing there’s a bottom rail or a kick rail, half way up. There’s a mid-rail, and there’s a top rail. We climb the outside step by step until — and held on to the door — until I got my body above the height of the swing … held on to the door frame, used the edge of the swing to climb to the top level until I was high enough to get into it. … once I got into it, I would have been squatted, with both feet on the top rail of the swing stage. … I was squatted on the swing, the door opening was back probably 100 maybe 200 ml from the top of the rail where I was holding on to, so I was sort of in a leaning back position whilst squatting … it was probably the best I could do yeah, yeah. … I got my feet off the top rail and into the swing the best way I could … obviously, it was awkward because I was trying to keep balanced from behind me and try and land my feet in the area that, once I got there, I was stable. It was a bit of a — it would have been a bit of a twisting motion, to the best of my memory … Awkward was just the way that I had to land into it … that’s when I felt a bit of pain in my back … it was down the left side of my back … [171]
[171]T 148, LL 30–31; T 149, LL 1–4, 12–14, 17–19, 21–26; T 150, LL 1–11, 15–18.
Mr Griffin’s evidence was that he mentioned to Mr Hill that his back was hurting a bit getting into the swing stage. He thinks he said it once Mr Hill had gotten into the swing stage.
The next day, 11 May 2011, Mr Griffin attended work at the Bank Apartments and saw Mr Alan Bennett, Probuild’s first aid attendant.[172] Mr Griffin completed an entry in the register of injuries dated 11 May 2011.[173] The entry was completed and signed by Mr Bennett. The details of the tasks being carried out at the time of the injury were recorded as: ‘accessing swing stage (twisted back)’. The parts of the body recorded as injured were ‘strained lower back’. The cause of the injury is recorded as ‘twisting whilst accessing a swing cage’. The register indicated that an ice pack was provided, Mr Canko was notified and Mr Hill was a witness.
[172]T 152, LL 4–11.
[173]Exhibit D2-1.
Mr Griffin was asked whether he did any work on the southern elevation and he said that Aluline did not have any work in that area whatsoever, as there was no balustrading there. This is consistent with Mr Canko and Mr Ray’s evidence.[174]
[174]T 526, LL 24-39; T 1057, LL 20-27.
Mr Griffin made an affidavit in support of his serious injury application on 16 May 2013.[175] He deposed that he injured his back whilst getting into a swing stage on 10 May 2011.
[175]Exhibit D3-3.
Mr Hill gave evidence that Mr Griffin reported to him that he had hurt his back but Mr Hill could not remember when that took place.[176]
[176]T 343, LL 1–2, 3, 6.
Mr Griffin’s WorkCover claim form dated 3 June 2011 describes the injury ‘climbing into the swing and twisted back’ as occurring on 10 May 2011, and records Mr Hill as a witness to the incident. [177]
[177]Exhibit P3.
Mr Griffin saw his General Practitioner, Dr Hormiz, on 17 June 2011. At that consultation Mr Griffin presented with a sore back ‘for over a month and he stated that he hurt his back a few times at work, but he wasn’t very clear in the information or dates or how’.[178] Mr Griffin saw Dr Hormiz again on 21 June 2011. He came for the results of an x-ray that Dr Hormiz had arranged for him which showed that he had mild degenerative arthritis in his lumbosacral spine and Dr Hormiz explained to Mr Griffin that this condition was something that could happen with age and he was to avoid lifting, bending or carrying heavy weights. Mr Griffin asked Dr Hormiz for a certificate for light duties for the rest of the week as he was feeling better and she noted that he went back to work the same day.[179]
[178]T 1224, LL 6–10.
[179]T 1225, LL 16–25.
Dr Hormiz next saw Mr Griffin on 24 June 2011. He presented for a backdated WorkCover certificate. Mr Griffin told Dr Hormiz that the date of the injury was 25 May 2011. The WorkCover certificate of capacity dated 24 June 2011 described the injury as ‘lower back pain since 25/05/2011 as he was climbing up the swing on the side of the building and felt he twisted his lower back while trying to go through a narrow door into swing since he has pain in his lower back and has been feeling tight in both upper thighs. Lower back pain (lumbar) and muscle strain’.
In relation to the 17 June 2011 consultation Dr Hormiz’ evidence was that she recorded ‘for a month’ because Mr Griffin did not give her an exact date. She considered it was about a month or that it could be just over a month or the end of a month.[180] Dr Hormiz issued a second WorkCover certificate of capacity dated 28 June 2011. The same details as in the 17 June 2011 certificate were provided.
[180]T 1231, LL 2–6.
On 27 July 2011 Dr Hormiz issued a further WorkCover certificate of capacity for Mr Griffin. On this occasion the description of the injury was amended to reflect the date as 10 May 2011 rather than 25 May 2011.[181] Dr Hormiz’ evidence is that Mr Griffin corrected her about the date of the injury. She believes Mr Griffin went back to his workplace where he referred to documents which confirmed for him the date of the injury.[182] In cross-examination Dr Hormiz was asked:
How do you account for that change? - - - Obviously he corrected me. He said, ‘No, it is 10 May’, and I believe he went back to his workplace. There must be some document or something there and that is how he corrected himself but the details of the incident were the same.[183]
[181]Exhibit D3–23.
[182]T 1227, LL 27–31.
[183]T 1227, LL 27–28.
In cross-examination Dr Hormiz was asked in relation to Mr Griffin’s attendances:
You’re not there to further his legal case? – – – No — well, obviously when I saw Mr Griffin and when he had the back injury, he never thought it was going to go to this extent. No-one wants to have back surgery.[184]
[184]T 123, LL 26–29.
Dr Hormiz was not challenged on her clinical findings that Mr Griffin’s presentation was consistent with him sustaining an injury on 10 May 2011.
For completeness, I note a number of medical records were tendered into evidence by consent. Mr Garry Grossbard, orthopaedic surgeon, prepared a report dated 13 August 2013, requested by Mr Griffin’s solicitors. Mr Grossbard recorded a history of Mr Griffin climbing into the swing cage which involved crawling through a small entry and jumping down into a cage. As he undertook the manoeuvre he twisted and landed awkwardly.
Mr Michael Shannon, orthopaedic surgeon, provided a report dated 20 August 2015.[185] Tubeway submits that Mr Shannon did not obtain an accurate history regarding Mr Griffin’s previous back complaints.
[185]Exhibit P23.
Dr Malcolm Brown, occupational physician, provided a report dated 29 July 2013.[186] Dr Brown recorded an onset of back pain after an accident at work in May 2011 and reported that Mr Griffin had otherwise been well with no other significant medical history, or history of other accidents.
[186]Exhibit P25.
Mr Daryl Nye, neurosurgeon, recorded that Mr Griffin underwent a knee reconstruction but denied prior back pain.[187]
[187]Exhibit P26.
Dr Ralph Poppenbeek, occupational physician, provided a report dated 17 May 2012.[188] Dr Poppenbeek noted a report of his injury dated 10 May 2011 and that by early June Mr Griffin was having such trouble it lead to his doctor (who was not named) putting him off work for three days. Dr Poppenbeek did not record any prior history of back injury apart from a muscular strain in the back around 20 years ago.
[188]Exhibit P27.
Findings — did Mr Griffin suffer injury on 10 May 2011?
Tubeway submits that an incident in late May or late July 2011 was the most likely cause of Mr Griffin’s injury, not an incident on 10 May 2011. Tubeway relies on the histories given by Mr Griffin to various doctors and experts, whose reports were tendered into evidence, as support for such later incident being the cause of the injury to Mr Griffin.
The difficulty is that at no point were the doctors challenged about their conclusion that the incident on 10 May 2011 was the cause of Mr Griffin’s injury. The overwhelming, unchallenged, medical opinion is that Mr Griffin’s injury is consistent with the stated cause.[189]
[189]Exhibits P17, P18, P23, P20, P21, P22 and P24.
Dr Hormiz completed a series of medical certificates from 25 May 2011 to 27 July 2011. It was not until 27 July 2011 that Dr Hormiz recorded the date of injury as 10 May 2011. Tubeway submits that it is conceivable that Mr Griffin relied on the date of 10 May 2011 given the register of injuries would lend support to a claim for compensation.
When the date of injury was changed to 10 May 2011, Mr Griffin had only put in a claim for compensation on 30 June 2011. The prospect of litigation, surgery, and the ongoing difficulties Mr Griffin has had were not contemplated by Mr Griffin or Dr Hormiz.
Tubeway submits that the delay in seeking medical treatment following the completion of the register of injuries on 11 May 2011 is consistent with Mr Griffin not suffering any real or significant injury on that date. I consider the register of injuries is consistent with Mr Griffin’s description of the events and the mechanism of how he suffered the injury on 10 May 2011. Mr Hill provided corroboration stating that Mr Griffin reported injury to him in the following terms:[190]
He just said, ‘I’ve injured my back’ and I think, from recollection, it was to do with getting out or getting in to the swing stage.
[190]T 343, L 3.
Mr Hill’s evidence was that he discussed with Mr Griffin filling in an incident report.[191] The register of injuries[192] identified Mr Hill as a witness, supporting the findings of the injury reported and confirming events of 10 May 2011. This evidence was not challenged.
[191]T 352, L 16.
[192]Exhibit D2–1.
[414] ‘But-for’ Tubeway’s default.
[415](1991) 171 CLR 506, 516.
The entire rationale behind an apportionment or contribution regime, is the common sense acknowledgment that in many cases, insistence on a single ‘but-for’ does not explain the events that occurred, nor properly allocate responsibility. This is particularly the case where injury occurs at a location at which many overlapping or interrelated activities involving risk take place. I refer again to the decision of Mason CJ in March:
These days courts readily recognize that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers. The common law tradition is that what was the cause of a particular occurrence is a question of fact which "must be determined by applying common sense to the facts of each particular case", in the words of Lord Reid.[416]
[416]Ibid 515 (citations omitted).
Tubeway’s duties under the OHS Act and Regulations
Probuild submits that by virtue of the contract that Tubeway entered into with Higgins for the delivery, supply, erection and relocation of swing stages at the Bank Apartments worksite, Tubeway became a ‘supplier’ of a ‘plant’ for the purposes of the OHS Act and Regulations.[417]
[417]Probuild’s Final Submissions, 34 [82].
As a result, Probuild submits that Tubeway attracted statutory duties under ss 30 and 31 of the OH&S Act to ensure, so far as was reasonably practicable that:
(a) the swing stages it supplied to Higgins were able to be accessed safely and without risks to health. This included the requirement to provide information to Higgins concerning any conditions which were necessary to ensure the swing stage was safe and without risk to health; and
(b) there was nothing about the way the swing stage was installed, erected or commissioned which made its use unsafe or a risk to health.
Section 30 of the OH&S Act creates a statutory duty on suppliers of plant. It provides that:
1)A person who supplies plant or a substance who knows, or ought reasonably to know, that the plant or substance is to be used at a workplace (whether by the person to whom it is supplied or anyone else) must -
a)ensure, so far as is reasonably practicable, that it is safe and without risks to health if it is used for a purpose for which it was designed, manufactured or supplied; and
b)give adequate information to each person to whom the supplier supplies the plant or substance concerning –
i)the purpose or purposes for which the plant or substance was designed, manufactured or supplied; and
ii)any conditions necessary to ensure that the plant or substance is safe and without risks to health if it is used for a purpose for which it was designed, manufactured or supplied; and
c)on request, give such information to a person who uses or is to use the plant or substance.
Section 31 of the OH&S Act creates a statutory duty on those who install, erect or commission a plant. It provides that:
1)A person who installs, erects or commissions plant who knows, or ought reasonably to know, that the plant is to be used at a workplace must ensure, so far as is reasonably practicable, that nothing about the way in which the plant is installed, erected or commissioned makes its use unsafe or a risk to health.
As a result of Tubeway’s statutory duties under ss 30 and 31 of the OH&S Act, Probuild submits that Tubeway was also required to comply with the Part 3.5 of the OH&S Regulations. In particular, Probuild submits that Tubeway breached regulation 3.5.2 by failing to carry out procedures for the identification of any hazards to health or safety in relation to the swing stages. Probuild submits that Tubeway failed to provide sufficient information with the swing stage in relation to the risks and hazards associated with unsafe access into and from the swing stage.[418]
[418]T 1782 LL 1-23.
It is also submitted that Tubeway failed to comply with clauses 6:10 and 6:12 of the WorkSafe Scaffolding Guidelines and clause 11.3 of AS 4576 (Scaffolding Guidelines). It is also alleged that Tubeway failed to comply with provisions of AS 1576.1 (Scaffolding General Requirements) and AS 1576.4 (Suspended Scaffolding).[419]
[419]Particulars (aa) and (bb) to paragraph 15 of the Plaintiff’s Statement of Claim.
Tubeway submits that of the statutory duties pleaded against it, only r 3.5.2 was relevant, with the other regulations pleaded against it only being applicable to employers, not suppliers of a plant.[420]
[420]T 1838 LL 18-31.
In relation to r 3.5.2, Tubeway contends that it fully complied with its statutory requirement to carry out procedures to identify any risks or hazards to health and safety in relation to the swing stage.
Tubeway submits that its duty of care in the supply of swing stages in 2011 included compliance by Tubeway with AS 1576.4 (Suspended Scaffolding).[421] Tubeway accepts that this Standard is to be read in conjunction with AS 1576.1 (Scaffolding General Requirements).[422] Part 3.11 of AS-1576.1 sets out requirements for access to and from working platforms.
[421]Exhibit P13.
[422]Exhibit P9.
Part 3.11 of AS 1576.1 (Scaffolding General Requirements)deals with safe access to and from working platforms. Tubeway submits that the requirements that ‘safe access to and from working platforms [shall] be provided’ is referrable to the means of access into and out of the swing, not the means of access to the swing, which is the responsibility of Probuild. When one looks at the text of Part 3.11, it states:
Safe access to and from working platforms shall be provided. Such access shall take the form of temporary stairways, access platforms, ladders or other suitable means. The following requirements apply to access to and from working platforms …
Tubeway submits that it provided safe access to and from the swing stage through:
(a) John Birt ensuring there was proper access on 9 May 2011, before he handed over the swing;
(b) Mr Martino inducting the workers as to the three-point access method, including requiring them to access the swing stage using that method, during the inductions undertaken at the Bank Apartments, including Mr Griffin’s February 2011 induction; and
(c) all relevant safe use instructions and checklists were provided in a swing stage pouch which was left in the swing stage at all relevant times (Exhibits D3-13 and D3-13A).[423]
[423]Tubeway’s Final Submissions, 24 [106]; T 1837 LL 9–17.
Tubeway submits that the lack of reference to access on the daily safety checklist completed by workers before using a swing stage was not a failure to comply with the requirements of AS 1576.4 (Suspended Scaffolding). It submits that the fact that it does supply a checklist is evidence of its safety awareness and that the failure to refer to safe access into swings in the checklist is explained by reason that Tubeway does not control access around the site premises and it generally is not present at the premises once it hands over the swing stage. Tubeway submits that compliance with AS 1576.1 (Scaffolding General Requirements), and the scope of its duty of care to Griffin does not extend to a requirement that Tubeway include provision in the daily safety checklist for checking access, nor does it require Tubeway to provide employees responsible for installing and relocating swing stages to complete a checklist with the requirement for checking safe access.
Analysis
As noted above at para [345], the liability question can be answered wholly by reference to the common law claim on negligence, which I have found in the present case to be made out against Tubeway. Nevertheless, I will make some comments about Tubeway’s statutory liability under the OH&S Act and Regulations. Tubeway’s duties here assist in informing the existence and scope of its common law duty.
There is no controversy about the fact that Tubeway was a ‘supplier’ or plant for the purposes of the OH&S Act and Regulations by virtue of its contract with Higgins to provide swings stages at the Bank Apartments.[424]
[424]T 1838 LL 18-22.
By virtue of the fact that Tubeway owed a statutory duty under ss 30 and 31 of the OH&S Act, Part 3.5 of the OH&S Regulations also applied to it.
In relation to Part 3.11 of AS 1576.1 (Scaffolding General Requirements), when one considers the text in full, I do not think that Tubeway’s submission can be accepted. The requirement for safe access to and from working platforms shall be provided clearly goes beyond the means of access into and out of the swing.
Reference was made to the guidelines for scaffolding, AS 4576 (Scaffolding Guidelines) (Exhibit P32), which sets out under Part 1.1 Scope:
This Standard gives practical guidance for the training and certification of scaffolders, the preparation of sites for scaffolding, and the safe selection, supply, erection, alteration, dismantling, maintenance, inspection and use of scaffolding and scaffolding equipment.
Section 11.2 contemplates in effect the provision of something akin to the handover certificate that was provided by John Birt to Probuild. It states, amongst other things:
At the completion of the installation or alteration, the competent person in control of the works should issue a written statement of completion to the person in charge of the workplace. This statement should be retained until the suspended scaffold is further altered or dismantled.
At s 11.3, access is considered. It states:
11.3 Access
Install safe access and egress points for persons using the suspended scaffold. …
Under s 11.2, there are guidelines for the scaffolding and swing stage while unattended. Section 11.2 states, amongst other things:
11.2
While unattended for overnight and longer periods:
·The cradle should be left in an accessible position …
Section 12.4 provides guidelines for the use of swing stages and scaffolding during use. It states:
12.4
During use –
12.4.1 Responsibilities of users
Once a scaffold has been accepted as a working platform, the users are responsible for using a scaffold in a way that minimises risk to themselves and others. Their employers must ensure that they possess sufficient knowledge and have undergone adequate training to use the scaffold correctly. Also, they must know all the emergency procedures relating to the scaffold, especially those relating to suspended scaffolds and mast-climbing or at a platform.
At s 13.1 there are guidelines for record keeping which state:
13.1 Record keeping
Records of all test maintenance, inspections, commissioning and alterations must be kept by the employer and made available upon request to employees or health and safety representatives. Appendix J gives a convenient checklist that may be photocopied and used …
When one looks at Appendix J under ‘6 Access and egress’, it states:
6 Access and egress
Explanatory notes
6.1 Is there access and egress to all working platforms?
Means of safe access and egress to working platforms should be provided. This can be achieved with stairways, access ways, ladders or other suitable means.
6.2 Are temporary stairways correctly installed?
6.3 Are portable ladders of an industrial grade serviceable and correctly installed?
Portable ladders used for access and egress should be industrial grade ladders. They should be checked for defects and deterioration.
6.4 Are access ways correctly installed?
Access ways need to be 450mm wide for persons or 675mm wide for persons and materials.
The relevant standards and the guidelines support the contention that Tubeway should have included in its daily safety checklist safe access to the swing stage. Tubeway submits that AS 4576 (Scaffolding Guidelines) is just that, guidelines, and that they are not tantamount to an Australian Standard.
The guidelines, however, are detailed and it seems appropriate that Tubeway have regard to them. If nothing else, the guidelines assist in determining the scope of the duty owed by Tubeway to Mr Griffin in this case. In this case, neither Tubeway’s daily safety checklist nor Mr Martino’s induction checklist[425] addressed issues concerning safe access.
[425]Exhibit D3-29.
I am satisfied that the failure to include a point on safe access to the swing stage within the daily safety checklist constituted a breach of regulation 3.5.2.
I consider Tubeway breached its duty of care to Mr Griffin by not including such an item on its daily checklist[426] and/or Mr Martino’s induction checklist.[427] I consider the breach was causative of Mr Griffin’s injury.
[426]Exhibit P2.
[427]Exhibit D3-29.
Mr Griffin gave evidence that when he completed the daily checklist, he raised with Mr Jackson the item dealing with the electrical components, in that he was not qualified to make the assessments.[428] This demonstrates that Mr Griffin carefully completed the daily checklist and took the task seriously. His evidence was also that he would not check for access to the swing stage if it was not on the daily check list.[429] Inclusion of an item dealing with access on the daily safety checklist would more likely than not have alerted Mr Griffin to the potential danger he was exposed to by entering the swing stage in the manner he described he did through Door A, and would have prompted him to make enquiries about entering via Door A.
[428]T 134, L 7.
[429]T 305, LL 8-12.
Apportionment
Tubeway submits that if the Court finds a breach of duty by all defendants, liability should be apportioned in the following percentages:[430]
(a)Probuild - 50%
(b)Aluline - 30%
(c)Higgins - 15%
(d)Tubeway - 5%
[430]Tubeway’s Final Submissions, 33 [141].
One of the reasons why Mr Griffin accessed the swing stage in a dangerous manner was his failure to appreciate the potential danger of not using the three points of contact method. It could reasonably be anticipated that this failure to appreciate, with respect, an inherently dangerous method of entering the swing stage, could result in injury. In line with J Forrest J’s analysis in Zealley, I consider:
(a)Tubeway departed, to a significant degree, from the standard of conduct required; and
(b)Tubeway’s failures were causally significant to the injuries sustained by Mr Griffin.
Higgins Contractual Liability
Probuild’s Submissions
Probuild relies on the terms of the Higgins Subcontract No 514-042[431] entered into between Probuild and Higgins on 21 June 2010 (‘the Subcontract’), and alleges, put broadly, that Higgins:
(a) breached the Subcontract; and
(b) is vicariously liable for breaches of the Subcontract by both Tubeway and Aluline.
[431]Exhibit D2-10.
Implied term to provide safe access
Probuild particularly relies on special condition 5 (‘SC 5’) of the Subcontract, which provides:
The Subcontractor acknowledges and accepts that they will provide swing stage access to the exterior of the building for their works, and in locations to give adequate access to all faces of work.
The swing stage will be made available to all other subcontractors requiring access, to programs as agreed with the Contractor. It is acknowledged that the Contractor will have the right to determine access program should there be any dispute. [sic]
The rental rate per swing stage for use by other contractors shall be $150 per day, with a minimum hire period of one day, except where the subcontractor uses the swing stage on the same day when the rental will be shared pro-rata. [sic]
Probuild submits that the effects of this clause are that:
(a) ‘Higgins was required to ensure personally that (inter alia) safe and proper access was provided to all other subcontract employees requiring the use of swing stages for external site works’;
(b) an obligation of strict liability was imposed to ‘make available [the swing stage] to all other subcontractors requiring access’;
(c) this required Higgins to provide safe and proper access to the swing stages in accordance with the ‘Subcontract Warranties’ defined in clause 44.13.[432]
[432]Probuild’s Final Submissions, 24 [50]-[51].
Probuild refers to the following particular ‘Subcontract Warranties’:
‘Subcontractor Warranties’ means warranties that the Subcontractor:
(b) will at all times be suitably qualified and experienced, and will exercise due skill, care and diligence in the execution and completion of the Subcontract Works;
(d) has taken into account all of the Subcontract Risks;
(e) has informed itself as to all matters which might impact on the Subcontract Risks;
(n) will comply fully with all of its obligations under the Subcontract
‘Subcontract Works’ are defined as:
the works generally described in the Subcontract Documents and any other work not described in those documents if that other work:
(a) should reasonably have been anticipated by an experienced and competent contractor as being necessary for the carrying out of the Subcontract Works;
(b) was otherwise capable of inference from the Subcontract Documents; or
(c) results from the performance by the Subcontractor of the Subcontractor’s Design Obligations
Subcontract Risks are defined as, relevantly:
all risks associated with the carrying out of the Subcontract Works (whether ascertainable or not) including, without limitation risks associated with or arising in relation to:
(a) all Industrial Matters; and
(b) delays, cost increases, re-execution of work or modification of the methodology for the carrying out of the Subcontract Works caused by:
…
(c) the availability of labour or materials necessary for the carrying out of the Subcontract Works;
Probuild contends that Higgins led no evidence at trial to suggest that it had complied with its obligations under SC 5.
Probuild submits the obligations placed upon Higgins pursuant to SC 5 carried with it the following implied term:
Higgins shall ensure that when making available swing stages to all other subcontractors requiring access that such access into the swing stage will be made safe.
(‘Implied Term’)
Probuild relies on the Implied Term, and contends that it meets the requirements listed in Codelfa Constructions Pty Ltd v State Rail Authority (NSW) to ‘ground the implication of a term’.[433]
[433](1982) 149 CLR 337, 347 (Mason J) (‘Codelfa’).
Vicarious liability
Probuild contends that Tubeway, having been engaged by Higgins, became both a ‘Secondary Subcontractor’ and ‘Subcontractor’s Agent’, as each of those terms is defined by clause 44.13 of the Subcontract. By accepting Tubeway’s quotation,[434] a ‘Secondary Subcontract’ was created. Clause 44.13 of the Subcontract defines these terms as follows:
[434]Exhibit D3-25.
‘Secondary Subcontract’ means any agreement between the Subcontractor and a Secondary Subcontractor or between Secondary Subcontractors.
‘Secondary Subcontractors’ means any contractor or supplier to the Subcontractor, whether engaged directly or indirectly by the Subcontractor.
…
‘Subcontractor’s Agents’ means any consultant, supplier or agent of the Subcontractor, any of their employees, and any Secondary Subcontractor and its employees or other person for whom the Subcontractor is ultimately responsible.
Probuild then contends that the obligation of Higgins under SC 5, to ‘make available to all other subcontractors requiring access’ results in any subcontractor at the site to whom the swing stage is made available becoming both a Secondary Contractor and a Subcontractor’s Agent under a Secondary Subcontract. The corollary of this is that Probuild contends that both Aluline and Tubeway are Secondary Contractors and Subcontractor’s Agents by having entered into Secondary Subcontracts with Higgins.
Consequently, Probuild suggests that Higgins becomes vicariously liable for any failure by Tubeway or Aluline to comply with any ‘Legislative and Industrial Requirements’ and ‘Contractors Policies’, by virtue of clause 3.1(j) of the Subcontract which provides:
The Subcontractor must:
…
(j) ensure that all employees of the Subcontractor and all of the Subcontractor’s Agents comply with all Legislative and Industrial Requirements and Contractor Policies (to the extent that such policies are not inconsistent with the Legislative and Industrial Requirements);
Probuild also argues that consequently, to the extent that Tubeway failed to provide safe access to the swing stage, this amounts to a breach of the Implied Term by Higgins. Probuild submits that Higgins should be directed to provide a complete indemnity to Probuild pursuant to section 24(2) of the Wrongs Act.
Higgins’ submissions
Implied term to provide safe access
Higgins contends that the obligation imposed by SC 5 was simply an obligation to make the swing stage available. Contrary to Probuild’s submission that this imports a duty to supply the swing stage in safe condition, Higgins contends that ‘make available’ should be given a limited meaning, that is, no more than it says, in circumstances where:[435]
[435]Higgins’ Supplementary Submissions, 6 [25].
(a) John Ray determined the swing drops;
(b) Probuild established the drop zones;
(c) Probuild allocated the swing stage roster;
(d) Probuild directed Mr Birt where to place the swing stage;
(e) Probuild directly instructed Tubeway as to the movement of the swing stages; and
(f) after the swing stage had been ‘made available’ in the limited sense by Higgins, Probuild controlled almost all aspects of swing stage use.
Accordingly, the Implied Term ought not to be implied. Additionally, Higgins submits that the implied term does not ‘go without saying.’[436] It is outside what the Subcontract required Higgins to do, and what Higgins did do.[437]
[436]Codelfa (1982) 149 CLR 337, 347 (Mason J).
[437]T 1956, LL 4-6.
Vicarious liability
Higgins describes the allegation that Aluline is a Secondary Contractor to Higgins as ‘nonsensical’, and notes that Higgins had no contractual arrangement with Aluline.[438]
[438]Higgins’ Supplementary Submissions, 6 [27].
Higgins accepts that Tubeway was a Secondary Subcontractor for the purposes of the Subcontract. However, to the extent that Probuild suggests that Tubeway failed to comply with the ‘Contractor Policies’, this submission is not given any content by Probuild and ‘it can only be assumed that there is no identifiable breach of such policies.’[439] Higgins also contends that insofar as it is alleged that there was a vicarious liability for the failure of Tubeway to comply with the ‘Legislative and Industrial Requirements’ in the contribution proceeding, the argument is simply ‘not made out’[440] and there was no such breach.
[439]Ibid 6 [28].
[440]Ibid 7 [30].
Higgins final submission in this regard is that any liability that Probuild would have in the contribution proceeding would be ‘a liability for its own failures, unconnected with the construction, assembly or location of the swing stage. Probuild’s liability, it is submitted will depend on its control of the drop zones, and its provision of training. These are matters outside any contractual obligations Higgins had to Probuild.’[441]
[441]Ibid 7 [31]; see also Higgins’ Final Submissions, 7 [30].
That is, ‘there is no nexus between the alleged contractual breaches, and Probuild’s liability, and even if the contractual breaches were made out, that would not establish any basis for a different allocation or assessment of Probuild’s own liability’.[442]
[442]Higgins’ Final Submissions, 7 [31].
Conclusions – Higgins’ Liability
Implied term
In Codelfa Mason J said:
The conditions necessary to ground the implication of a term were summarized by the majority in B.P. Refinery (Westernport) Pty. Ltd v. Hastings Shire Council(56): "(I) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract."[443]
[443]Codelfa (1982) 149 CLR 337, 347 (Mason J); B.P. Refinery (Westernport) Pty. Ltd v. Hastings Shire Council (1977) 180 CLR 266.
Probuild offered no submissions as to how the Implied Term satisfied these conditions. I am not satisfied that the Implied Term does so. Certainly, it appears that the Subcontract was able to operate effectively without the term. Nor is the Implied Term so obvious that ‘it goes without saying’.
In any event, even if such a term should be implied, I am not satisfied that it has been breached, in that there has been a failure to provide safe access. I agree with Higgins that ‘access’ in the context of the Subcontract must be given a restricted meaning. ‘Access’ in the context of the contract cannot sensibly extend beyond ‘the point where it is not within the control of the assembler of the swing stage.’[444] Tubeway assembled the swing stage in a manner which allowed for clear and safe access, through Door C. It was Probuild’s management of the barricades, and the flawed permit system, which ultimately rendered access, in the broader sense, to the swing stage unsafe.
[444]Higgins’ Final Submissions, 6 [27].
In line with my findings above, the Australian Standards are not incorporated into the Subcontract.
Vicarious liability
I agree with Higgins’ submissions in this regard. There is no evidence that any of the fundamental requirements for the formation of a contract between Higgins and Aluline have been satisfied. Accordingly this argument must fail.
With regard to Tubeway I again accept the submissions made by Higgins.
To conclude, I note that Higgins has correctly identified that in this proceeding, Probuild’s liability will be assessed with regard to its own failings, which have been earlier identified in these reasons. These matters have no connection with the contractual dealings between Higgins and Probuild.
Assessment of contribution between Aluline, Probuild, Tubeway and Higgins
The various claims for contribution are brought pursuant to Part IV of the Wrongs Act. Part IV of the Wrongs Act requires a determination of what is ‘just and equitable having regard to the extent of that person’s responsibility for damage’.[445]
[445]Section 24(2) of the Wrongs Act.
The two principal factors are the degree to which each defendant has departed from the standard of conduct required of them, and the relative causal potency of each defendants’ acts. In this case, Probuild’s causal potency is much greater than Aluline and/or Tubeway’s causal potency.
There has been a departure from the standard of care expected of Probuild, Aluline and Tubeway. However, Probuild’s departure occurred over a period of time and over a significant aspect of the safety of the work site, the barricading and the drop zone system.
In apportioning responsibility, a court is required to look at the respective roles of the defendants in terms of the culpability for the plaintiff’s damage and the causal potency of the acts or omissions which resulted in the injury. J Forrest J, in Zealley said:[446]
[446][2015] VSC 62, [143]-[144].
In determining what is just and equitable contribution under the statutory provision it is established that there are two relevant considerations:
(a)the degree to which each of the parties has departed from the standard of conduct required of them; and
(b)the relative causal potency of each of the defendants’ acts in relation to the injuries sustained by [the plaintiff] Ms Zealley.
It is also accepted that in analysing the relevant factors the Court must eschew the application of a formulaically mathematical approach. As Beach J put it in Papadopoulos:
Questions of apportionment involve questions of balance and relative emphasis. They involve the weighing of different considerations. Value judgments upon which reasonable minds might differ are involved. Some of these do not readily admit of articulation. (footnotes omitted)
With regards to Probuild and Aluline, the considerations referred to by Beach J in Papadopoulos v MC Labour Hire Services Pty Ltd[447] are also relevant:
[447](2009) 24 VR 665, 691.
In Hoad v Peel Valley Exporters Pty Ltd, Harrison J set out some of the questions that need to be answered when considering what, if any, contribution should be ordered against an employer whose employee is working for an occupier when the negligence of the occupier results in injury to the worker. His Honour identified the questions as follows:
1. What were the respective degrees of access to the premises as between the employer and the occupier and what was the employer’s opportunity to inspect them?
2. What were the employer and occupier’s respective states of knowledge of the hazard?
3. Was the employee located on the occupier’s premises for a short time or indefinitely or was she moved around?
4. Did the employer have an ability independently of the occupier to avert the hazard by itself or only with the consent or approval of, or in consultation with, the occupier, sometimes called the employers [sic] capacity to “shield” the employee?
5. How long had the relevant hazard been in existence?
6. Had any prior injury been caused by the hazard to anyone else apart from the employee?
7. Did the relevant hazardous conditions at the occupier’s premises vary from day to day or were they constant?
8. Was the employee injured in the course of her normal duties or were those duties relevantly different to what was usual for that employee?
9. Was there any dissimilarity in the employee’s ability to draw the hazard to the attention of the occupier as compared to the employer?
10. Who was responsible for the employee’s training?
11. Was the non-delegable duty of care owed by the employer one that could be discharged in the circumstances by doing nothing at all, such as (arguably) a casual and unforeseeable act of negligence on the part of the occupier?
12. What were the respective roles played by the employer and the occupier in devising, instituting and maintaining the system of work that was found to be unsafe?
13. Who controlled the premises?
14. Who supplied any plant and equipment to the employee required for use in carrying out the work?
My findings appear at [280]-[290], [319]-[329] and [363]-[374]. These findings address all relevant considerations raised by the above questions. I am satisfied that Probuild should bear the lion’s share of responsibility for the injuries sustained by Mr Griffin when entering the swing stage on 10 May 2011. Its acts and omissions were both greater in culpability and causal potency than those of the other defendants. Probuild had control of the worksite at the Bank Apartments and, in particular, had exclusive control of the drop zone permit system and access to drop zone areas. Not only did it fail to properly train workers on the site in relation to its drop zone permit system, its actual drop zone permit system was confusing and left Mr Griffin in a position where he was not able to properly assess the safest access path to the swing stage located at D. In effect, the inadequacy left Mr Griffin in the lurch when he arrived on 10 May 2011 to Door C and Door A. There was no realistic prospect of Mr Griffin, who did not have a proper understanding of the drop zone permit system and the barricading system employed at the Bank Apartments, being able to assess and determine the safest access point to the swing stage. The inevitability was that the lack of training and the confusing drop zone permit system placed Mr Griffin in danger.
Aluline, as the employer, owed a non-delegable duty of care to Mr Griffin. Aluline breached that duty by failing to ensure that there was adequate training and understanding of its workers of the drop zone permit system, the barricading system employed at the Bank Apartments, and training in relation to the use of the three points of contact when entering a swing stage. However, I regard this breach to be of less significance than the breaches of Probuild.
Tubeway, as the supplier of the swing stages, had a duty of care to ensure that its training in relation to accessing the swing stage stressed the importance of safe access into the swing stage. It breached its duty in that while it demonstrated to workers the use of the three points of contact as the proper method to enter the swing stage, it did not emphasise the importance of the three points of contact and that if three points of contact were not possible, then the worker should not endeavour to enter the swing stage at all, and should seek assistance. It further breached its duty by not including the item about safe access into the swing stage in its daily checklist.
I do not consider that Higgins has any liability to Mr Griffin.
In my opinion, the appropriate and common sense way to deal with the contribution to Mr Griffin’s injury is to apportion contribution in the following percentages:
(a) Probuild - 50%
(b) Aluline - 25%
(c) Tubeway - 25%
There may be other orders which the parties require, and I will give them time to consider these reasons.
5
3
0