Henry v Adelaide Brighton Cement & Anor No. DCCIV-97-1216

HENRY v ADELAIDE BRIGHTON CEMENT LTD & ANOR
[2000] SADC 102

Judge Lowrie
Civil

The plaintiff is an experienced boilermaker who had been in the employ of Allied Engineering Pty Ltd (hereinafter referred to as “Allied”) during September 1994, carrying out maintenance work at premises of Adelaide Brighton Cement Ltd (hereinafter referred to as “Adelaide Brighton”) at Birkenhead. It was a long-established practice for Adelaide Brighton to close its premises for the complete maintenance of its plant. Allied had carried out such maintenance tasks for many years.
Similarly, the second defendant, Complete Scaffolding Pty Ltd (hereinafter referred to as “Complete Scaffolding”), had a large team of men known as “scaffolders” who were in daily attendance at the Adelaide Brighton premises during maintenance of the plant. They were required to erect and maintain scaffolding over various areas of the plant to enable Allied employees to carry out their various maintenance tasks.
The plaintiff alleged that on 28 September 1994, in the course of his maintenance work, he was obliged to remove and replace certain wear plates inside a down chute. This is a large down chute into which various materials flow under pressure and are then funnelled onto a large conveyer belt. Because of the nature and coarseness of the passing material the steel plates inside the chute are subject to extreme wear and are regularly inspected and/or replaced during such periods of maintenance work.
The plaintiff alleged that during such work, it became impossible to reach the wear plates at the top of his arm level. He required scaffolding to be erected in the chute to enable him to have access to the plates. The plaintiff said that planks were inserted in the tapered area of the chute. He eventually climbed onto these planks and they subsequently shifted their position and collapsed. He fell to the conveyor belt level.
The plaintiff said that, as a result of this fall, he suffered personal injury. He alleged that the conduct of Adelaide Brighton and/or Complete Scaffolding was negligent and sought an award in damages. Adelaide Brighton and Complete Scaffolding denied their employees were negligent.

PLEADINGS

The plaintiff recited a detailed summary of the incident. He alleged negligence and/or breach of statutory duty against both Adelaide Brighton and Complete Scaffolding and detailed such particulars.
Adelaide Brighton denied the allegations and pleaded that the scaffolding equipment and incidental labour was provided by Complete Scaffolding. It also pleaded that its employees had not acted in any negligent manner and, in any event, that the plaintiff’s employer, Allied, maintained a supervisory role over the plaintiff’s work activities. Allied is not a party to these proceedings.
Complete Scaffolding denied the relevant particulars of damages. It denied that its servants or agents had been requested to erect scaffolding as pleaded by the plaintiff. In any event, it said that if it had erected scaffolding, it would not have moved in the manner as described unless interfered with by the intervention of another party. In the alternative, it pleaded that the plaintiff was guilty of contributory negligence.

ISSUES - LIABILITY AND QUANTUM

On the first morning of trial plaintiff’s counsel foreshadowed an amendment to the pleadings allegedly consistent with recent psychiatric reports. I expressed some concern, bearing in mind that the incident occurred in 1994. Debate ensued between counsel following this application. I eventually decided that I would, at this hearing, solely concern myself with the issue of liability and, at a later date, if so required, determine quantum.
The action has occupied many hearing days.

PLAINTIFF’S EVIDENCE

The plaintiff, who is now aged 50, was born in Scotland and is a boilermaker by trade. He has an extensive work history in boilermaking, both in Scotland and this State. I accept he is an experienced and competent boilermaker. He has a very broad Scottish accent. He gave evidence of leaving school at 15 and being apprenticed in shipyards, eventually obtaining his trade qualifications. He has been involved in boilermaking work which he described as light, medium and heavy. The work in shipyards was of a very heavy nature, including work in the construction of barges, trawlers, tankers, supertankers and submarines. The plaintiff has worked in his trade not only in Scotland, but in South Africa and Central Africa.
The plaintiff said that he eventually decided to migrate to Australia, arriving here in about 1981 with his wife and sons. He said that he read an advertisement in Glasgow and attended a job interview. He accepted the job offer and came to Australia. The plaintiff’s immediate employment was with the firm, O’Connor’s. He said that this involved heavy construction work. He remained there for approximately five or six months and then went to Eglo Engineering as they were building a rig, something with which he had experience, and there was also a pay increase.
The plaintiff remained at Eglo’s for approximately two years and was then sent by his employer to Moomba where he was involved in the construction of the gas pipeline. He said that he worked at Moomba for about eight months, including a short period away from work when he hurt his back. He said he had some physiotherapy and returned to normal work.
The plaintiff said that he was next employed by a “labour hire” company called “Rexco”, where he carried out all manner of boilermaking work for approximately a year. He was subsequently employed by a number of similar companies, including Skilled Engineering, Manpower, and Drake Industrial. He was also employed by the firm, Allied, and, at the time of the accident, was so employed.
The plaintiff said he remembered the incident which occurred in September 1994, and thought the date was the 28th of that month. At that time, he was working in a chute at Adelaide Brighton. He said that he had been at this site for a couple of weeks as they were doing general maintenance and repair work. In fact, he said that he had worked at this site on many occasions, probably commencing in about 1981.
The plaintiff said that at various periods, the plant would have what he called “a shut-down”. He believed it was an annual shut-down. Although the Adelaide Brighton plant had smaller shut-down periods, there was certainly a large annual shut-down period when maintenance to the plant was carried out. He said he believed that the shut-down period was either for four to six weeks, depending on what work had to be carried out. He said that, in his experience, there was always much maintenance work to be carried out at the site.
The plaintiff identified the large metal chute numbered “CS4” through which material flowed into a smaller rectangular chute and then in turn onto a conveyor belt. He confirmed that he was working in and around this chute on the day of his injury. He described the nature of the coarse pellet material which poured through this area and onto the conveyor belt. The chute is lined with half-inch thick plates and, because of the force of the pellets, the plates wear extensively, often away to nothing, and have to be replaced. He said he believed that Adelaide Brighton provided Allied with the dimensions of the plates and Allied would manufacture and transport them to the site. It was his duty, with another boilermaker, to remove the worn plates and replace the same. To remove the bolted plates, one boilermaker is positioned outside and one inside the chute.
The plaintiff said he remembered that he stood on the conveyor belt and replaced the bottom plates. To do this, he was obliged to position himself on the inside of the rectangular chute immediately above the conveyor belt. A drawing of this chute is an addendum to this judgment. A photograph of the chute, being Exhibit P12, has the identifying mark “CS5”. The plaintiff said that he had reached a stage when he “couldn’t reach any more”. He explained that he had entered the chute through the doorway or hatch at the top of the chute. That chute has the marking “CS4”. A ladder was placed in the chute and down onto the conveyor belt. The plaintiff said that he was able to climb into the chute, down the ladder and stand on the conveyor belt to work on the bottom plates. He said that after he had reached the base of the conveyor belt the ladder was removed enabling him to proceed with his work. He proceeded to unbolt the plates. He said that he thought there were about six bolts for every plate and three sections of plates.
He said that when he inspected the plates for wear he was obliged to brush the cement residue from them as sometimes it was impossible to see the bolts because of this residue of material. An allen key was used to remove the bolts with the aid of the boilermaker on the outside of the chute. He said that there was continual communication between himself and his “mate” and when the nuts and bolts were released, the plates would fall onto the conveyor belt and be subsequently removed. The new plates would then be lowered into the chute and manhandled into their position.
The plaintiff described the work as not hard but awkward because of the confined space in the chute. As appears from the diagram, the large CS4 metal receiving box is approximately 1.8 metres square and contains the entrance door. There is a square box underneath that large square metal receiving box, and then a funnel area which leads to a smaller rectangular box of approximately 1 metre by .5 of a metre. The bottom of this box is approximately .5 of a metre above the conveyor belt.
The plaintiff’s workmate was another experienced boilermaker, Alec McCrone.
The plaintiff’s evidence about the incident was as follows:
“A.... Well as I say, we got to a certain place where I couldn’t reach any more, and he was in the same position from the outside, so we requested we needed scaffolding.
HIS HONOUR
Q...... You’ve got the habit we all say, ‘we’.
A.I was meaning me and Alec.
Q...... Okay, you can say what you said, ‘I said’. Did you say something to someone.
A.Yes, we -
Q...... Who did you say it to.
A.Who did I say it to? I think to Malcolm Kidd, he’s the supervisor, he’s our supervisor.
Q...... Who is he employed by.
A.He’s employed by Allied Engineering. So I informed him that we needed scaffolding.
XN
Q.At some point in time you realised you needed some scaffolding.
A...... Yes.
Q.Do you remain within the chute when you start to take some action to get scaffolding, or do you leave it.
A...... I leave it, I come out, I come out of the chute.
HIS HONOUR
Q...... You’re there with Allied under an Allied supervisor are you. Is he supervising you. Who are you responsible to.
A.Well, yes, possibly him, he tells us ‘this is the job; they gave us a list of jobs and this is one of your jobs’ and he tells us right, these are going to be changed, and you got on with the job. You got no supervision, you’ve got to -
Q...... So he in effect just indicates what you have to do.
A.Yes.
Q...... But after you said to him ‘We need scaffolding’ you don’t know who he spoke to. Did you see him speaking to anybody.
A.I couldn’t tell you that, but we requested scaffolding for the outside and the inside.
XN
Q.Was your workmate on the outside to your knowledge also needing some platform structure to continue this part of the work.
A...... Yes, well you can see - I don’t know if you can see in diagram one, you can see - photograph one - you can see the -
.....
Q...... We’ll talk about the need of your workmate on the outside needing some foothold. You’re out of the chute.
A.Yes.
Q...... How did you get out of the chute.
A.Well the ladder got put in, and I climbed back up again, the ladder.”
The plaintiff said that all Allied employees were required to make any requests for scaffolding through their supervisor, Mr Kidd. Mr Kidd would then contact the scaffolders direct.
The plaintiff said that he contacted Mr Kidd and told him that he and Mr McCrone required scaffolding to be erected both inside and outside the chute in order for them to be able to complete the job. The plaintiff estimated that it would have been approximately 10 to 15 minutes after contacting Mr Kidd with the request for scaffolding that two scaffolders approached him. He said that he believed they may have been working in the area and that Mr Kidd would have contacted them.
The plaintiff identified the persons to whom he spoke as scaffolders. He said that he knew they were scaffolders because scaffolders wear belts containing distinctive equipment. Also, he believed that he had seen them before. The plaintiff said that following the arrival of the scaffolders:
“A.... ..... They asked me what we wanted. I showed them. We says, right, we work on the outside and we work on the inside, we’ve got to change these plates. We need the outside extended and I also need, what do you call it, the inside, I need a couple of planks in the inside for a certain part of the job that I’ve got to get done. I said I can’t do it without a couple of planks in there for me to reach it and so we told them about that and then we says, right, how long is it going to take you. They says possibly a couple of hours and we went away and done another job.
Q.When you say ‘we’ that’s you and your trades assistant.
A...... No, me and Alec McCrone. He’s a boilermaker. We’ve got a list of jobs that we’ve got to do. We went and done another job and then just as we’re finished the other job and we come back they were finishing. I says to them, right, how is that and I says inside, he says yes. I says is it secure. He said you can do a tap dance on it. That was the words he says to me, you can do a tap dance.”
The plaintiff was then asked:
“Q.... What did you observe about the inside of the chute compared with when you’d left it prior to the request of the scaffolders.
A.I’m looking in from the top and I can see two planks, two planks down there, I can see a couple of planks down there, so as far as I’m concerned they said it was safe, the scaffolder said to me it was safe and I seen the planks there, so I’m taking his word for it.
Q...... Do you recall who was the watcher when you re-entered the chute.
A.The same - Warren Moore, the same fellow.
Q...... Did you sign the book, the in/out book to go back in.
A.Yes, I can see that there.
Q...... Did you then re-enter the chute and did you then stand on the planks that you had seen before you went back in.
A.Yes.
Q...... What work did you do when first standing on those planks.
A.What I was doing I was just there with that small brush and I was brushing away the dust that had formed again on the new plates and I was just brushing away to where we were going to take the next plates away.
Q...... And you started, before you hurt yourself, to loosen the bolts of any further plates before replacing them.
A.No.
Q...... How long were you in the chute before you hurt yourself.
A.Probably five or 10 minutes, I can’t really recall how long I’d been in it.
Q...... During this five or 10 minutes, was anyone to your knowledge, on the outside of the chute, ready to be your co-worker working with the bolts etc.
A.Yes, Alec.
Q...... So can you tell us, from the time you went into the chute and started dusting, what happened until you had your accident and fell.
A.I’d probably been standing in the centre, so I was standing in the centre and that was probably all right, of the scaffold, but as soon as I - you can actually stand in the centre and get around, but I moved and the plank just gave way, it was insecure, it slipped, and I fell down.
Q...... What happened.
A.I fell down onto the conveyor below, that’s possibly about a metre, a metre and a half, two metres.
Q...... And how were you positioned when you were falling.
A.Upright, and the conveyor was sloping so I was standing upright but my left leg was lower, sort of.
Q...... What happened to the planks.
A.The planks just fell away. They must have - one went down and then it must have knocked the other one down as I was falling, and they kind of wedged me in a wee bit.
Q...... Did you go down before the planks or they before you or together.
A.I can’t say.
Q...... When you were on the bottom on the conveyor belt, where were the planks in relation to your body.
A.One of them, I don’t know where the other one was, I don’t know - I can’t really recall. I never took much notice of that. I was more concerned about the falling.
Q...... Can you describe the movements of your body as you fell from having been standing on the planks and landing on the conveyor belt.
A.I just felt my whole body went like that (DEMONSTRATES), just like a concertina.
Q...... You moved your hands up and down. When you say ‘concertina’ what do you mean by that.
A.I just felt a shudder around my whole back, right up my whole spine, I just felt the pain kind of shooting up.
Q...... When you had stopped falling were you aware of any feeling in your body that was different from before.
A.I just felt - I felt sick, I felt you know, like a sickness, you know, I just -“
The plaintiff said he returned to the site after lunch at about 2.00pm and finished the job. He said Mr McCrone went into the chute and he completed the outside work.
An Adelaide Brighton accident/incident investigation report was tendered, being Exhibit P2, showing that on “28 September 1994” he “fell from scaffold planks” in the CS4 area. The exact nature of his injuries was described as “neck back and ® knee pain”. The name of his supervisor at that time was Mr Kidd and Mr Armstrong was a witness. Treatment of the plaintiff’s injuries was as follows:
“Inspected areas of neck back & knee. No swelling or deformity and has full range of movement. Ice to neck & knee.”
The plaintiff confirmed that, at the commencement of maintenance jobs for Adelaide Brighton, there is an induction course when various safety matters are outlined to the workers, including the use of tags on dangerous areas. A green tag meant that it was safe to proceed and a red tag meant that it was unsafe to enter and entry was prohibited.
The plaintiff outlined the permit system that was in operation for entering confined areas like the chute:
“Q.... Before you entered this chute was there any paperwork required of you.
A.Well we’ve got to get a clearance to get in, to go in the place, in a confined space, and I think that is the responsibility of Brighton Cement, they send a person down there and he checks for gases and all sorts of things and then he fills out a form, maybe a hot pass, a hot day thing, or a cold one, he writes on it what we’re going to do in there and so we can’t get in there until we get that.”
The plaintiff gave evidence about the requirement to sign such permits upon entering and leaving such areas. The permit is called a “confined space entry register”. The plaintiff’s memory was that he had entered this chute just before lunchtime on 28 September 1994. He believed that he had started work at 7.00am that morning and his name was on the confined space entry permit of that date, going in at 12.25 and out at 12.50, going in again at 2.00 and coming out at 5.00. He said he believed that he fell at about 12.35, or, just before lunch and reported his fall to the medical staff shortly thereafter.
In cross-examination, the plaintiff was asked many questions about the time of his entry into the chute. Exhibit P1 showed the first entry time as 12.25. The plaintiff confirmed that it was a 24 hour permit which was issued at 0815 on 28 September 1994 by Adelaide Brighton and confirmed by its employee, Mr Mudge. He was particularly asked:
“Q.... Just coming to the register, what I am suggesting to you is in fact you went into that CS4/CS5 confined space for the first time at 12.25 on that day, 28 September.
A.No, I went in straight from when we got permission, we were there, to see - to get this, this permit, we have got to be there, we have got to be there with this guy who goes through all the things. He asks what we are doing and he ticks it off, that’s what all the ticks were, what you are allowed to do and things like that. As soon as we get permission to go there, to get in there, that’s when we get in.”

Mr Henry maintained that in his view he was in the chute before 12.25. The plaintiff did add that there may be another form for the morning showing an earlier time that he entered the chute.
The plaintiff again outlined that he had replaced plates in the top area of this chute being the rectangular steel portion marked “CS4”, but added that it was six years since this incident. However, he was certain that he had replaced liners in the CS5 area. He called the top area the “rock box” but considered on reflection that he had replaced some liners in the rock box.
The plaintiff’s memory was that the planks, as placed in the chute by the scaffolders, were timber and extended across the full width of the chute. He believed that he climbed into the rock box and was then able to climb onto the planks without the use of a ladder. The plaintiff said it was his memory that he was standing in the centre of the scaffolding, brushing. He said that he may have stepped back and off-centre and that was when the planks gave way, or, collapsed and he fell.
The plaintiff said he believed that the observer, who was at the top of the chute, as well as Mr McCrone, were aware of his fall. He confirmed that he returned to the chute after lunch, re-entered and completed the work. He said that the work in manoeuvring and installing the wear plates would take about three hours. He said that he could not recall what type of scaffolding had then been installed, but, he was certain that he made sure it was safe. He believed he made more checks to ensure that it was safe in that later period and they continued working in the area until about 7.00pm. The plaintiff said he believed that he returned the next day and worked the full shift. The plaintiff was uncertain of exactly what work he had carried out following his fall.
A further entry permit for 29 September 1994 was produced which showed both the plaintiff and Mr McCrone involved in work in the chute.
Counsel for Adelaide Brighton asked the following questions about the nature of the work and no doubt from material in the confined space entry permit:
“Q.... No, we will come to that. All I want to suggest to you at the moment, if you had gone in, on the 28th, at 12,25, and worked to 12.50, had then gone back at 2 o’clock and worked until 5 o’clock then Mr McCrone had gone in at 5.30 and worked to 6.50, and then on the following day Mr McCrone had gone in at 8.15 and worked to 9.20 and you’d worked in there from 10.35 to 11.50 and Mr McCrone had worked from 10.35 to 11.15 and that you worked from 2.10 to 2.30, all of that time put together would be about the right time to do the whole job.
......
HIS HONOUR
Q.What do you say about that.
A...... I couldn’t comment on it. I can’t comment.
Q.You don’t digress from proposition that you felt you were in there on the morning of the accident.
A...... Yes.”
It was obvious during this case that the significant difficulty is the fact this accident occurred almost six years ago. Clearly, in that time, recollections which might have been accurate in 1994 or a year or so afterwards have now become vague. Having said that, I do not make any criticism of the plaintiff. The plaintiff was cross-examined at length. Where there are two defendants, unfortunately, at times, there is much repetition in questioning. I accept there may be criticism of the plaintiff about lack of certainty of some relevant facts surrounding his fall, but accept he was doing his best to recall the relevant events without any embellishment.
I have difficulty in trying to justify the long period of delay between the accident and the hearing.
The confined space entry permit was only produced to the plaintiff in recent times. This is apparent when questions were put to the plaintiff about there being an observer when he went into the chute to carry out his work. I have no doubt an observer was present.
Over long periods of cross-examination, the plaintiff maintained that he believed he fell before lunch. He said:
“I had the fall - well obviously they heard me shouting, they heard me screaming a few choice words I wouldn’t like to repeat, and somebody said ‘What happened?’ and I fell off, and he looked and seen us, you know. They put the ladder down and I climbed out, and I just took it from there.”
He considered that when he landed he was upright. In cross-examination, the plaintiff did express some surprise that he had worked in the CS4/CS5 chute on 29 September 1994.
The plaintiff was cross-examined about the height of the scaffolding that had been erected in and about the CS4/CS5 area. The plaintiff was unable to accurately recall what scaffolding had been put in place.
The plaintiff was also cross-examined about his reference to his supervisor, Mr Kidd, and a request for scaffolding to complete the job. It was apparent in cross-examination that there was some reconstruction by the plaintiff of the events after he came out of the chute on the first occasion. This probably would have been the manner of his approach to rectify the problem. The plaintiff believed he would have said words to Mr Kidd like, “We went as far as we can, we’d like the scaffolding raised”. He felt he would have been directed to another job, but he was unable to exactly recall what happened in the interim period.
However, the plaintiff maintained, when looking at photograph 1, that the scaffolding in the CS5 area, ie, immediately above the conveyor belt, was similar in manner to what appears in that photograph. However, he felt that when he was in the interior of CS5, and Mr McCrone was on the outside, they were both attending to the bolting of the plates. He felt that Mr McCrone could do that from the existing scaffolding as shown in photograph 1. The plaintiff was of the opinion that the scaffolding was in fact no higher on the date of the accident as it appears in photograph 1, but later, following the request, the scaffolding was raised to a higher level.
The plaintiff accepted that on the confined space entry permit of 29 September 1994, Mr McCrone was shown as being in the confined space (Exhibit D1-3) from 8.15 to 9.20. Apart from this, the plaintiff could not say whether he was working on the outside of the chute.
The plaintiff maintained under cross-examination that he could not now recall whether he worked two days on this chute, but, did maintain that he had contact with the scaffolder concerning the addition of further scaffolding to complete his job. In fact, he did enquire if it was secure and someone said “you can do a tap dance on it”. I accept that the plaintiff was doing his best to recall what happened on this day and was relying on what he viewed as his general practice. His evidence came down to a reiteration that he requested planks from the scaffolders but, because of the long delay, he was not able to recall exactly what wear plates had been removed and replaced.
The plaintiff again said he believed that he had replaced plates in what he called the “CS5” area and the “CS4” area, which was referred to as the “rock box”, and the planks were installed either in the top of CS5 or the bottom of the CS4 chute.

Alec McCrone

Mr McCrone, like the plaintiff, is an experienced boilermaker by trade. On 28 September 1994, the day of the accident, he had been employed by Allied to carry out boilermaking tasks in and around the premises of Adelaide Brighton. He confirmed that on the day of the accident, he was engaged in replacing wear plates in the hopper or chute. He confirmed the nature of the major shut-down of the plant to carry out maintenance and repairs.
He was directed to work with the plaintiff. He had never worked with him before, nor since that period. They had carried out a number of jobs in the plant and one was the work involving replacement of wear plates in the CS4/CS5 chute. He described that replacement plates were:
“.... usually made from manganese or hard steel, bissalised steel, about 20 to 25 ml thick, 400 to 600 or 800 whatever size they need, and they stop the abrasive wear of the chute.”
He said the job of the plaintiff and himself was to assess what plates were worn and replace them. They would measure the required plates, give those measurements to the foreman and replacement plates would subsequently arrive. He recalled that they first worked on the lower part of the chute, CS5. He said Mr Henry was inside the chute and because of their observations, they were obliged to replace plates in that section. He did not believe that they replaced any of the wear plates in the CS4 rock box area.
Mr McCrone’s evidence, on which I place reliance, was as follows:
“Q.... Where did you start.
A.If I can remember, from my recollection, we worked out what plates had to be replaced, we brought them to Malcolm Kidd, who was the foreman, and we measured them all up. We’d given him the measurements and then we proceeded to take the wear plates out by cutting the heads of the bolts off.
Q...... Where did you start, whereabouts of the three sections that I’ve identified from the plan.
A.From what I remember, from the bottom; start from the bottom and work your way up.
HIS HONOUR
Q.The plates have a bolt both sides.
A...... No, the bolts are tapered with an allen key head; you go through the hole and the nut is on the other side.
Q.The nut is on the inside.
A...... On the outside.
Q.What’s in the inside.
A...... It is a tapered bolt with a key.
Q.With a key.
A...... Yes, that’s normally it.
Q.To get that plate off someone has to fit an allen key inside.
A...... No, you can’t do that.
Q.How do you get it off.
A...... You burn the head off and then you knock it through with a pin.
Q.Burn the head off on the inside.
A...... On the outside.
Q.On the outside.
A...... Yes.
Q.When you say ‘burn it off’, you’re -
A...... Oxy cut.
Q.Then you knock it through.
A...... That’s right.
XN
Q...... Was that part of your task, to burn the head off on its outside.
A.That’s right.”
Mr McCrone said the plaintiff worked on the inside of the chute and he did the exterior work. The plates would be fitted from the inside. He explained that when the plates were placed in position they would put a bar through to line up the holes and then bolt the same. The bolt was inserted from the inside of the chute and tightened from the exterior. He said the plates were very heavy, 20 to 30 kilograms in weight, and varied in size. Mr McCrone said he believed the plaintiff was standing on the conveyor belt working in the confined area.
Mr McCrone, like the plaintiff, explained his problem now was the difficulty in trying to recall exactly what happened. The risks are apparent not only to the plaintiff, but the defendants.
He was then asked:
“Q.... Did he stay standing on the conveyor throughout the whole process.
A.No.
Q...... Something changed, did it.
A.We had to build a scaffold to get to the upper section.
Q...... When were you made aware of a need for a scaffold.
A.It was a consensus of opinion; the two of us decided.
Q...... Where were you and where was Mr Henry when you two decided that a scaffold was needed.
A.He came out of the chute and then we worked it out together.
Q...... Can you remember for how long that was after he had first started to commence working inside the chute.
A.It would have been straightaway.”
Mr McCrone’s view was that scaffolding was not only required inside, but on the exterior of the chute for the work to continue. Mr McCrone’s memory was that they had made the request of their supervisor, Malcolm Kidd, for scaffolding to complete the job. He said:
“There was one crew that came, and they set up scaffold, and at the same time, they built another scaffold on the other side of the chute, and the first scaffold collapsed.”
Mr McCrone said that when the scaffolding crew came he was in the vicinity of CS4 and said words to them like “We need a scaffolding on the conveyor”, and added “that’s all we would have said, very simple”. He felt that they would have made an observation from the door in the CS4 area. It was his memory that Mr Kidd was not present. He also felt that the plaintiff was in the vicinity of the chute when this conversation occurred with the scaffolders.
He was then asked:
“Q.... What did they do.
A.They just threw some planks down.
Q...... On what.
A.I can’t really remember.
Q...... Threw where.
A.Longitudinally where the conveyor was, up from the conveyor.
XN
Q.How long did it take them.
A...... Half an hour.
Q.After it was completed, did you have a look inside the chute to see what, if anything, had changed.
A...... I could see there was planks there and there was something to stand on and I thought it was secure, so that’s when Thompson Henry climbed in.”
It was Mr McCrone’s evidence that he felt the planks had been placed in the vertical section of this chute immediately below the rock box, and, above the rectangular section, he thought “halfway up the bottom rectangle”, but he could not remember the manner in which they had been placed. He said he looked at the planks and felt they were secure and “that’s when Thompson Henry climbed in”. He said after the scaffolding was erected on the outside “I started to undo the bolts, and then he climbed in, and that is when the scaffold collapsed”. It collapsed, he said, within some minutes of them resuming their work. He said that he heard the movement inside the chute and heard the screaming of the plaintiff. He could not remember how they extricated the plaintiff from the chute.
Mr McCrone’s memory was that they stopped for about half an hour while the plaintiff calmed down and the new “safe” scaffold was erected. He said he went back and reported the incident to Malcolm Kidd and told him that new scaffolding was required. He said that subsequently new scaffolding was inserted in the chute. He believed another scaffolding crew returned and re-built the scaffold. He said he watched this work being done, “I made sure of it, because I was the one that had to stand on top of it”. He explained that:
“They made a little box frame with scaffolding pipes, and then they laid the planks across, and then they lashed the planks to the pipe, and I made them jump up and down on it to make sure it was secure.”
Mr McCrone had difficulty with the exact recall of the confined space entry permits. This again, is no criticism of Mr McCrone. Mr McCrone said he has “done hundreds of jobs since then” and could not exactly recall the details.
Mr McCrone recalled that after the fall, the plaintiff attended the medical centre and returned to the job. His memory was that after they returned, he worked inside the chute and the plaintiff worked outside. He felt this was consistent with the confined space entry registers.
In cross-examination, Mr McCrone reiterated his vagueness about the insertion of the first scaffolding or planks into the interior of the chute. He said:
“No, I’ll not sure. I don’t know how they built the first one really. All I remember they put the planks in and that was it. Maybe they had a box frame as well, I’m not sure. I know for the second one they lashed it with wire and that made it secure.”
His memory was that after the fall and, when he looked in the door into the interior of the chute, the plaintiff was lying on the conveyor belt. The scaffolding had collapsed and the bearers, or wood, were “standing up”. However, with the new scaffolding, he remembered that he made one of the scaffolding crew jump on that construction.
He could recall working with Mr Henry following this incident, particularly a job involving measuring pipes. When he looked at the confined space entry permit for 29 September 1994, he confirmed that both he and the plaintiff were working on the chute. He felt that at that time, the plaintiff was helping him put the plates onto the chute.
Mr McCrone refreshed his memory from the confined space entry register of 28 September 1994. He confirmed:
“Q.... Returning to Exhibit P1, that shows that Mr Henry worked from 12.25 to 12.50 inside.
A.Yes.
Q...... Then Mr Henry worked from 2 o’clock until 5 inside.
A.Yes.
Q...... Then you worked from 5.30 to 6.50 inside.
A.That’s right, we used to swap around because it was hot and dusty.
Q...... So you couldn’t have, in the time necessary to construct the scaffold around the chute, in the time that someone is not actually working, there wouldn’t, I suggest, have been anywhere near sufficient time to construct the scaffold around the chute.
......
A...... At the time we had our break we would have told them to do it then.
Q.When you went off-site between 12.50 and 2 o’clock.
A...... Yes, we would have told the scaffolders to come over and build a scaffold.
Q.You never told them at the time of the first scaffold, did you.
A...... I might have, or Thompson Henry might have.
Q.You didn’t, did you.
A...... I might have.
Q.You told us you told Mr Kidd.
A...... I might have, I can’t remember. It might have been me, it might have been Thompson Henry.
Q.Might it have been neither of you.
A...... Then the job wouldn’t have got done.
Q.I thought you said earlier Mr Kidd was the person told to provide the scaffold.
A...... That’s right.
Q.What I am suggesting to you is that you went to the office to see Mr Kidd to request scaffold.
A...... That’s right, if it wasn’t Mr Kidd it would have been his leading hand.
Q.So you don’t know from whom you requested the scaffold.
A...... No.
Q.And did you go to the office to request a scaffold.
A...... I can’t remember, I could have talked to Malcolm Kidd, one of the leading hands, he might have come over to us on the job and said ‘You need a scaffold there, we’ll get one to you’.
Q.So you don’t really now how it was arranged.
A...... No.
Q.No idea.
A...... No.
Q.And I suggest to you that the external scaffold took about five hours to construct.
A...... Could have done.
Q.So it took five hours and you had requested the scaffold on the first day, given the times that you and Mr Henry are in the chute, it wouldn’t have been possible to work during that time.
A...... Might not have. Like I said, we used to wait all the time for scaffolding.
Q.But if Mr Henry or you were in the chute, the person on the outside would have to be working.
A...... Yes.
Q.And you wouldn’t be working from scaffolding in the course of construction, would you.
A...... No
Q.That would be instant dismissal.
A...... That’s right. What are you saying, I wasn’t allowed to build the scaffold?
Q.Yes.
A...... No, I wouldn’t be allowed to do that.
Q.And you wouldn’t be allowed to work off any scaffold until it was completed and had the scaff tag on.
A...... That’s right.
Q.And the penalty for that everybody knows.
A...... Yes.”
I think what was apparent from the various questions put to Mr McCrone about the measurement and replacement of the liners, was that his evidence, as with the plaintiff’s, relied very much on reconstruction because of the time lapse.
Mr McCrone confirmed that they were working 12 hour days on this job.

Warren Moore

The plaintiff called Mr Warren Moore a young man who, at the time of the incident, was towards the end of his school years. Mr Malcolm Kidd had asked Mr Moore if he would like to work during his holidays. At that time, he said he thought he was aged approximately 17. He said his work was as an official observer of work at the premises of Adelaide Brighton. His job was to sign people in and out of confined spaces and observe the work that was being carried out.
Mr Moore was an impressive young man.
He said he met the plaintiff while at that job. He remembered the plaintiff had a fall. He was asked:
“Q.... Tell us what you remember.
A.Basically all I can - I can vaguely remember bits and pieces but I think we basically walked to the site and when we got into the part where there was the confined space I saw some scaffolding that looked a bit out of character to the rest of the scaffolding around and it was sort of wedged in a V-shape you know, in a chute sort of thing, and I’m not sure how long he had been working or whether he’d just got up but I just remember the actual fall itself, with one of the boards slipping up and he just went down the chute basically.”

He was then further asked:
“Q.... Did you see him fall or did you -
A.No, I saw - yes -
Q...... You saw him standing there and fall.
A.Yes, I basically was staring right at him.
Q...... Staring right at him when he fell.
A.It gave me quite a shock because you can imagine sitting there, just sitting there and all of a sudden something like that happens, so yes.”
He said that to the best of his memory he thought the plaintiff was, at the time of the fall, standing on a couple of boards and felt when looking at Exhibit P13 that the boards were in the “funnel” section.
I had no difficulty in accepting Mr Moore’s evidence. He clearly is an independent witness to the fall. Mr Moore has not worked in this industry since this time. He has made his livelihood in other areas.

Christopher Hall

Finally, the plaintiff called the consulting engineer, Mr Christopher Hall, who, at the request of the plaintiff’s solicitors, examined the chutes in question and prepared the diagram, P13, the addendum. He subsequently prepared a report. In preparing this report, Mr Hall had examined the actual engineering drawings relating to the chute. In that report Mr Hall commented:
“From the measurement of the chute, it would appear that the taper angle was in the order of 30°. When a downward load is applied to the centre of a plank spanning between the tapered walls, an equal downward force is applied at the interface of the plank and the walls, and a side and upward force (on the opposite wall) results from the taper. Since the downward force will always exceed the upward force at the wall, the plank remains stable. However, when the load is applied only at one end, the other end experiences very little downward force, and depending on the angle of the taper and the frictional resistance between the plank and the wall, the resultant sideways and upwards force due to the taper can exceed the downward force at the unloaded end. Then the plank will slip and collapse.
From the fact that the planks collapsed, it would appear that testing, if it occurred, was confined to applying weight to the central area. Loading at each end would have revealed the potential for the scaffold to collapse. There does not appear to have been any attempt to provide secondary support to prevent any movement of the planks ends.
Not being an experienced scaffolder, it was unlikely that Mr Henry was aware of the potential for the planks to shift if his weight was concentrated at one end. Collapse of the scaffold could have been avoided by placing a post between the planks and the roof of the chute.”
Mr Hall explained:
“It may be a situation where the frictional resistance at the ends is insufficient to support the plank in position. So if you go to one end, the other end may slip up the wall and, in doing so, the plank will rotate and you will then fall down at the end that you are standing.”
A question was put to him:
“HIS HONOUR
Q...... if the platform was going to be constructed it should have had supports under it at both ends and maybe the middle to make it safe so it couldn’t -
A...... Yes, or it could be quite easy to put some props above it because for it to fall down it required one end to go up and if you prevented that from happening.
Q.So either props underneath or above.
A...... Yes.
Q,And that’s a simple procedure.
A...... Yes. Well, one would assume.”

EVIDENCE OF ADELAIDE BRIGHTON CEMENT LTD

The evidence tendered by Adelaide Brighton was of its on-site supervisor, Mr Mudge.
Mr Mudge is a qualified fitter and turner. He had been employed by Adelaide Brighton for many years and, in recent times, had resigned because of health reasons. However, in the early 90s, he explained that there was an upgrade of plant and that plant required maintenance. He explained that once a month they would have a “down” day in specific areas and what eventually evolved was the plant would run for twelve months and then there would be a five week shut-down period so that all repairs and maintenance could be carried out. However, because of the wear and tear on the plant and the abrasive nature of the substances being manufactured, shut downs occurred after about eight months, particularly in what he referred to as the “clinker” area, “that just kills everything off”.
He described “clinker” as the material that goes into the making of cement. It has a limestone base and is bonded in a kiln of about 1800 degrees temperature and comes out in small black balls of clinker material. It then goes through a grinding process and is eventually formed into cement. From that description, one can appreciate the very abrasive nature of this product which entered the CS4 and CS5 area.
He said that in 1994 he was the foreman in charge of the area of the CS4 and CS5 chute and explained the nature of the wear on the plates in these chutes. He explained that initially the abrasive material caused much damage in what he referred to as the “number 3” area. Consequently, in about 1992, they had installed a “number 4” called the “rock box”. Within about six months they had replaced that box because of substantial wear on two occasions. Subsequently, they made additions to the box, as seen in photograph numbered 4, by the installation of steel plates.
The instrument shown protruding from the left side of that box in photograph number 4 and hanging in what appeared to be the approximate middle of the chute, is a probe. As suggested by Mr Hall, when there was a build up of material then that would automatically turn off that area of the plant.
Mr Mudge explained that during the shut-down period the firm, Allied, was employed as contractors to replace the wear plates. He knew the foreman of that company, Mr Malcolm Kidd. Mr Mudge said his practice was that he would go around the premises on the first day of the shut-down with Mr Kidd and decide what areas had to be repaired or maintained and he would “lock off” these areas. That simply meant a cutting off of all power to conveyor systems.
Confined space entry permits were also a requirement. He said that he would complete those then hand them to Mr Kidd who would no doubt hand them to his company’s employees. He explained that employees could not enter the areas until such permits were obtained and completed. He identified the confined space entry permit issued by him on 28 September 1994 at 8.15am that morning. He believed that he gave that permit to Mr Kidd, and, at this time, he said the card that accompanied such permit would be completed. As well, a two-way radio was provided which was normally in the possession of the observer.
Mr Mudge confirmed that during the shut-down, personnel on the site included the employees of Allied as well as Complete Scaffolding. Complete Scaffolding personnel were the only people on site erecting scaffolding. If the subcontractors, Allied, required scaffolding they would directly contact an employee of Complete Scaffolding. Mr Mudge explained that this had always been the work practice of his employer over many years. He said his firm, Adelaide Brighton, did not have any scaffolding personnel on their staff. However, he could be contacted by radio. Allied was in sole charge of the maintenance programme. Mr Mudge said Mr Kidd was “wholly and solely in charge of it.”
Mr Mudge was aware of the nature of CS4 and CS5. He was not aware of scaffolding being required inside the chute. However, he had seen scaffolding in that chute when a drum head was replaced. He confirmed the firm, Complete Scaffolding, had been employed by his company since about 1981.
In cross-examination, Mr Mudge confirmed that is was common practice for him to confer with, for instance, Mr Kidd and they would agree on what plates had to be replaced. In cross-examination it was apparent, and I accept Mr Mudge’s evidence, that in the area in question, it was his responsibility to “lock up the area and make it safe and it’s just handed over to Allied ..... It’s up to Allied themselves to decide when they want to actually do the job”. The following questions were asked:
“Q.... If the Allied bloke on the job when he’s on the job says he needs more scaffolding here, does he come to you.
A.No, he would just go to his boss and go from there or the worker himself might go straight to Completes.
Q...... Straight to Completes but if he goes to his boss does his boss contact you and say ‘We want more scaffolding.’
A.I don’t have to have any jurisdiction over them.
Q...... So you would always say the boss would contact Complete Scaffolding.
A.Themselves, yes.”

EVIDENCE OF COMPLETE SCAFFOLDING PTY LTD

The evidence called by the second defendant was its managing director, Mr Cosgrove, Mr Malcolm Kidd, an employee of Allied and Mr Dean.

Mr Cosgrove

Mr Cosgrove outlined his position as the proprietor of the company, Complete Scaffolding Services Pty Ltd. He said that he has very much a hands-on control of the company operation and has been so involved for approximately 18 years. He has been involved with Adelaide Brighton in providing scaffolding services for something like 18 years. Mr Cosgrove has been a licensed scaffolder since 1970 and clearly is a very competent man in this industry.
Mr Cosgrove confirmed the nature of the shut-downs that occur at the Birkenhead premises, the need to carry out repairs and maintenance and how scaffolding is required in various areas. He outlined the nature of Complete Scaffolding’s relationship with Adelaide Brighton. His company was required to be permanently on site at the Birkenhead premises during shut-down and used a huge tonnage of scaffolding. He said that, at all relevant times, they probably have four teams of scaffolders usually comprised of five members. He explained how the confined entry space permits applied to his company and their strict adherence to the same.
Mr Cosgrove said he was aware that his company had provided scaffolding in and around the CS4/CS5 area and that he had seen scaffolding erected by his employees in this area. He described the manner in which scaffolding was erected in and around such areas. Mr Cosgrove did say that he believed at about the time of the incident, he had approximately 40 scaffolders on site. Each gang had a leading hand and the gangs were allocated to various tasks on site.
Mr Cosgrove produced a diary containing the relevant entries concerning work his firm had carried out at the CS4/CS5 chute. He confirmed that he had a note on job No. 29844 on 28 September 1994 - erect inside CS4 chute - and there was an entry of five men for five hours. He explained that the hours related to his employees measuring the job, getting the gear ready, taking it over to the chute which included walking up the stairs, building the scaffold, cleaning the site up, stacking the gear and returning to the site office. He said they had erected such scaffolding in that area since approximately 1991.
There is a note that scaffolding was altered on 29 September 1994 for a period of three hours. That entry was for a different team. That entry was “ALT CS4/CS5 CONVEYOR” and made no reference to “inside”. Adelaide Brighton was charged three hours for that work.
Mr Cosgrove said that he had heard the plaintiff’s evidence about a request for the insertion of planks which were not lashed, but there was no record in his material that any of his employees had entered the chute on 28 September 1994. He also heard evidence of a request to build a further platform and, again, there was no reference in any of his material of this work.
Mr Cosgrove said he was aware that the company, Adelaide Brighton, had employed riggers themselves, whose appearance in the way of belt and tools was similar to that of his own men.
In cross-examination, Mr Cosgrove confirmed that his firm had erected scaffolding to assist in the maintenance work on the outside of the chute, bearing in mind that he expected there would be another employee on the inside of the chute. He believed from his records that none of his employees did any work on the interior of the chute on 28 September 1994. He was quite adamant that his employees would not have placed material or planks inside the chute. He said:
“Q.... You are quite sure that none of your scaffolders would do that.
A.Look, to be honest with you, if you have a look at photograph number 2, you would virtually have to lean as far as you could in and then drop them in there. So, you couldn’t place them in there.
Q...... You couldn’t.
A.No.
Q...... But if some ignorant person could do that, if he or she wanted to -
A,If they are silly enough.
Q...... But you are quite sure none of your employees would.
A.No.”
Mr Cosgrove was reluctant to admit that any planks were placed inside the chute, but, said if they were, it would have been done by Mr Henry, Mr McCrone or a rigger. Certainly in his view this work would not be done by any of his employees.

Mr Dean

Mr Dean outlined that he has been a scaffolder for some 22 years and, in 1994, was employed as a leading hand by the second defendant, Complete Scaffolding. He still occupies that position. He is familiar with the premises of Adelaide Brighton, having worked there over many years. He believed he learned some months after the incident that the plaintiff had been injured in a fall.
He said that he had erected scaffolding in and around the CS5 chute area. His normal practice was to proceed to the area and measure up. He was aware that there was scaffolding on both sides of the chute. He outlined the scaffolding that he would erect. He looked at the photograph and confirmed that he had built scaffolding similar to what appears in the photograph. He confirmed that they had erected scaffolding on the outside of chute CS5. This was carried out by his team of five scaffolders. He believed before this work started that he spoke either to the Allied foreman, Mr Kidd, or Mr Mudge.
He agreed that scaffolders wear belts containing the relevant equipment at all times. Riggers, on the other hand, do not necessarily wear belts for the whole period of their activities. He confirmed that an experienced boilermaker would be able to distinguish between a scaffolder and a rigger.

Mr Malcolm Kidd

Mr Kidd confirmed that at the relevant time he was employed by Allied as a site supervisor and had attended court in answer to a subpoena. He was well aware of the work practices at that site, including the nature of the confined space entry permit. He confirmed the nature of the work practices of his company in and around the maintenance of the CS4 and CS5 area. Indeed, he outlined the nature of the removing of plates or liners from the chutes and the work practices involved in such work.
It was his view that he could not see any reason why wooden planks should be placed in the chute to remove wear plates. He was not aware of any request being made to him as the foreman for such scaffolding to be erected inside the chute. He was asked:
“Q.... Could it happen.
A.Could have. I can’t see any reason, it could.”
He said he believed the plaintiff had advised him he had hurt his knees, but he had carried on working the next day.
He confirmed in cross-examination that he now had no recollection of what plates were replaced in the chutes during the September 1994 shut-down. From his memory, he believed that work took approximately two days. Mr Kidd did confirm that if he had been approached by an employee for more scaffolding he would have passed on that request to the scaffolders. Such a request would always come through him and indeed the men under him were not allowed to approach the scaffolders direct.

CREDIT

I am rather repetitive in saying that the long passage of time since the accident has not assisted any of the evidence in the case. I cannot be critical of any witnesses who were no doubt all doing their best to recall this event. Having said that I have no hesitation in accepting the evidence of the plaintiff. Despite his rather difficult accent, he presented well. I accept his evidence about the significant events of entering the chute, eventually being unable to reach the plates, requesting scaffolding including discussion with the scaffolders, re-entering the chute and falling.
I view the evidence of Mr McCrone similarly. However, clearly because of the ongoing nature of his work over the years, his recall in some respects was not as detailed as the plaintiff’s. I have no hesitation in accepting his evidence.
The young observer, Mr Moore, I regard as an exceptionally good witness who viewed the result of the fall clearly from his observation post.
I can make a similar observation in regard to the other witness, Mr Mudge. A very able and competent man as seen from his involvement in the preparation of the confined space entry registers. His work effort as a supervisor could in no way be questioned or queried, nor, for that matter, the work practices of Adelaide Brighton.
Mr Kidd, the supervisor of Allied, did not add much. In particular, he could not remember whether there was any request made of him by the plaintiff for scaffolding.
Mr Cosgrove’s evidence was merely about the work practices of his company and the professional manner in which they carried out their work. I accept that was the position. He was loath to admit the plaintiff had a fall. He was adamant that his employees would not involve themselves in the construction or insertion of the planks in the chute. However, I note that the supervisor or supervisors of the team worked in that area, particularly on 29 September 1994. The team included four or five members who were not called.

FINDINGS

Adelaide Brighton, on 28 September 1994, had shut down their industrial premises so that maintenance could be carried out on various items of plant which included the CS4/CS5 chute. The company put in place all proper steps to ensure the safety of contractors and/or subcontractors, including mandatory lectures on safety to all persons on site and forms for the entry into possible hazardous or dangerous areas. All persons realised that any breach of such safety procedures would result in strict censure or dismissal.
Adelaide Brighton employed Allied as an engineering contractor with special skills to complete all maintenance of the plant. Adelaide Brighton was in no way involved in the overall supervision of such work, the same being left to Allied and its supervisors. The shut-down procedures employed by Adelaide Brighton can in no way be criticised.

Consequently, Adelaide Brighton had no legal obligation to monitor the actions of expert contractors with the expertise to plan, carry out and complete such maintenance work.

Adelaide Brighton had, with much care, prepared the confined space entry permit system solely to ensure the safety of all persons working on the site. That system included the scaff tags which were well-known to the workmen. These scaff tags either permitted or refused entry into hazardous work places. The permit was issued by Adelaide Brighton on 28 September 1994 to Allied and gave Allied and its employees permission to enter and control all access and egress of the relevant chute. I find the permit procedure as put in place by Adelaide Brighton as a most efficient manner of securing the upmost safety of the site. My finding is at all relevant times, Allied was the sole occupier of the CS4/CS5 chute by reason of the confined space permit at the time of the incident.
I accept the evidence of the plaintiff, supported by Mr McCrone and the independent observer, Mr Moore. That evidence amounts to as follows.
(i).... At a time, probably in the morning on 28 September 1994, the plaintiff commenced work inside the chute. Mr McCrone was working on the exterior. Ingress to the chute had been attained by the plaintiff entering from the top of the rock box by a ladder and he was probably standing on the top of the conveyor belt working inside the base rectangular box undertaking preliminary work.
(ii)At some time, and it may well not have been a lengthy time, after the plaintiff had entered that rectangular box, it became apparent to him that he could not satisfactorily reach the wear plates. After a short discussion with Mr McCrone, he then climbed out of the chute. The probabilities are that both workmen spoke to their supervisor, Mr Kidd, and then scaffolders for the need for scaffolding inside the chute. I accept that this request was given to scaffolders.
(iii).. The plaintiff and Mr McCrone were both experienced boilermakers and would not in any way attempt work other than in their own specialist area. They would not embark on any other defined area of work. At this time there were numerous groups of specialist scaffolders in the employ of the second defendant. I do not accept that anyone other than the employees of Complete Scaffolding were approached with the request for scaffolding.
When they returned to the chute, the plaintiff and Mr McCrone were advised by the scaffolders that scaffolding was in place. The plaintiff entered the chute and stood on wooden scaffolding planks. His action could not in any way be criticised.
A short time after standing on the planks, and when his weight left the centre area, the planks collapsed and resulted in him falling to the conveyor belt. The sound of his fall was heard by Mr McCrone and Mr Moore.
(iv)Much has been put to me concerning the entries on the various confined space entry registers. However, the important register of 28 September 1994 does record the plaintiff at 12.25 entering the chute and leaving at 12.50. Again, to support his fall is the evidence from Adelaide Brighton’s first aid report showing a report made on 28 September 1994 at 13.45 and the accident occurring at 12.45. Debate has centred around the report of 29 September 1994 a day when workmen re-entered this area. I reject any suggestion that this was the date of the accident. Considering the evidence, I find that accident occurred during the morning of 28 September 1994.
(v).... The placing by scaffolders of the wooden scaffolding planks in the chute in no way secured or firmly supported was unsafe and created an inherently dangerous situation for any person standing on such planks. It was inevitable that such planks, bearing in mind their position in the chute would collapse. The act of so placing the wooden planks by the scaffolders was negligent. Complete Scaffolding owed a duty of care to the plaintiff and by reason of the acts of its employee/s was in total breach of such duty. See Australian Safeway Stores v Zaluzna (1970) 162 CLR 479.

CLAIM AGAINST FIRST DEFENDANT

I have outlined the procedures undertaken by Adelaide Brighton to ensure that its site was a safe working area for all contractors and subcontractors, which included the entry of the Allied employees into the chute. Adelaide Brighton was aware of the nature of the chute and the work to be carried out. It could expect this work would be carried out competently and in a safe manner by its expert subcontractors, Allied and Complete Scaffolding. Adelaide Brighton would be aware that boilermakers and scaffolders would be competently supervised by their respective supervisors. The conduct of Adelaide Brighton can in no way be criticised.
Section 23 of the Occupational Health, Safety and Welfare Act 1986 provides an obligation on an occupier to ensure as far as reasonably practicable to ensure that the workplace is safe. “Occupier” is defined in section 4 of the Act as
“Occupier in relation to a place means a person who has the management or control of the place.”
That section received much attention in the recent case of Cox Constructions Pty Ltd v Dawes and Ors [1999] 73 SASR 557. As appears from the judgment, particularly of Perry J, the obligations of an occupier depend on all the factual circumstances of each case. There may be cases where separate occupancies are established. An owner may give occupation to a builder during the course of a building. In this case, the evidence establishes a strict procedure whereby the control of space was placed in the hands of Allied which had full measure of control and supervision of the chute at the time of the fall.
I would view Adelaide Brighton as not being the occupier within the definition of this Act at the time of the fall. Further, if I am wrong, I would find that the work practices, as carried out at that time by Adelaide Brighton, were all that was reasonably practicable in the circumstances to ensure that its workplace was safe.
Because of this finding, I do not have to concern myself with the contract of indemnity pursuant to the contract entered into by Adelaide Brighton with Complete Scaffolding and the rights that arise pursuant to clause 8 of that contract. If I am wrong in the finding, Adelaide Brighton has, I would think, a substantive claim under that clause.

CLAIM AGAINST SECOND DEFENDANT

I have outlined my reasons for finding that the actions of the employees of Complete Scaffolding in placing the scaffolding planks in such a temporary fashion in the chute for the use of the plaintiff was negligent.
The plaintiff is entitled to succeed against the second defendant in his claim.

CONTRIBUTORY NEGLIGENCE

I do not believe that this plea can be substantiated. I find that the plaintiff was given an assurance by the scaffolders that the scaffolding was safe. He relied upon the words of the experienced scaffolders. Entering the chute and moving away from the centre position was an error in judgement on the part of the plaintiff. Having said that, such an unsafe situation was not readily visible to him. It may have been from the floor or conveyor belt area. The plaintiff was not in this area, but ready to enter from the hatch on the top of the CS4 rock box. It could not possibly be said that the plaintiff’s work was in any way slipshod in the manner as expressed in Gipson v BHP Ltd (1985) 120 LSJS 450 at 460. There was no slipshod performance by the plaintiff of his duties or any careless unwillingness to observe the appropriate safety precautions.
The plaintiff was well aware of safety precautions. He was well aware of his own duties and demarcation of rights and strictly observed the same. I do not believe that this conduct in any way contributed to his injuries.
Consequently, I would dismiss the plaintiff’s claim as against Adelaide Brighton, but enter judgment against Complete Scaffolding for the plaintiff’s damage to be assessed.

[2000] SADC 102

18 August 2000