Jones v Walker and CTR Pacific Pty Limited and Construction Control Act Pty Limited and Tereel Pty Limited t/as Celtic Plastering Company

LIAM PATRICK JONES v RONALD LLOYD WALKER & Ors
[2012] ACTSC 93 (31 May 2012)

NEGLIGENCE – personal injury – building site – sand delivery truck coming into contact with scaffolding during unloading – driver directed into position by labourer employed by bricklaying subcontractor – damage to scaffolding causing dislodgment of plank on walkway – plaintiff injured falling through walkway – truck driver and bricklayers’ labourer both negligent and equally to blame – company in control of building site not negligent – company employing and controlled by plaintiff not negligent.

Civil Law (Wrongs) Act 2002 Pt 4, ss 42, 43, 44, 45, 46, 47, 48
Scaffolding and Lifts Act 1957
Scaffolding and Lifts Regulation 1950 rr 86 (12), 73
Legislation Act 2001 ss 82, 88, 150A

Jones v Walker & Ors [2008] ACTSC 117
Rangott v Leaseplan Australia Limited [2008] ACT SC 98
Seip v Riley [2005] ACTSC 68

No. SC 699 of 2004

Judge: Master Harper
Supreme Court of the ACT

Date: 31 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 699 of 2004
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:LIAM PATRICK JONES
Plaintiff

AND:RONALD LLOYD WALKER
First Defendant

AND:CTR PACIFIC PTY LIMITED
ACN 064 405 232

Second Defendant

AND:CONSTRUCTION CONTROL ACT PTY LIMITED
ACN 089 635 218

Third Defendant

AND:TEREEL PTY LIMITED t/as CELTIC PLASTERING COMPANY
ABN 86 008 559 411

Third Party

ORDER

Judge:  Master Harper
Date:  31 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the plaintiff against the first and second defendants for $606,789.45.

the first and second defendants pay the plaintiff’s costs.

judgment be entered for the third defendant.

judgment be entered for the third party.

judgment be entered for the first defendant against the second defendant for $303,394.72.

the first and second defendants each contribute to the other one-half of the plaintiff’s costs.

the proceeding be stood over to 26 June 2012 for submissions as to any further orders.

On 1 March 2001 the plaintiff was injured when he fell from scaffolding on a building site at Canberra Airport.
The plaintiff was the controlling director, and also an employee, of the third party Tereel Pty Limited, which traded as Celtic Plastering. The company had been in business for some twenty-five years and had about ten employees. The company was a subcontractor on the building project, which involved the construction of an office building of some three or four storeys. The brickwork shell of the building had been constructed and was surrounded by scaffolding. It appears from documents in evidence that the scaffolding had been erected by another subcontractor, Waco Kwikform.

The proceedings and the parties

The plaintiff’s then solicitors commenced the present proceedings in the Magistrates Court in February 2003 against the present first and second defendants only. The first defendant, Mr Walker, is sued as the driver of a truck which came into contact with the scaffolding in the course of delivery of a load of sand to the site. Mr Walker was the owner of the truck. He had been a truckdriver for more than forty years, and had owned and operated his business as a truckdriver for about ten years. All of the work of his business was done pursuant to a contract with a company, Canberra Sand and Gravel Pty Ltd, and generally involved the delivery of the products of that company to building sites.
The second defendant, CTR Pacific Pty Limited, was in business as a bricklaying contractor, and was in that capacity a subcontractor at the building site at the airport. Mr Walker was in the process of delivery a load of sand ordered by CTR Pacific from Canberra Sand and Gravel. The plaintiff’s case against the second defendant is that effectively it was responsible for the positioning of the truck at the time of delivery of the load of sand, and failed to carry out that responsibility in such a way that the truck did not come into contact with the scaffolding.
In May 2004 the plaintiff’s solicitors joined the third defendant, Construction Control ACT Pty Limited. The case pleaded against the third defendant was that it was “in possession of and the head building contractor at” the building site. The amended particulars of claim asserted that the plaintiff’s company, Tereel Pty Limited, was engaged at the site in concrete plastering work as a subcontractor to the third defendant. The third defendant owed the plaintiff a duty of care to provide a safe place of work and to take all reasonable steps to ensure that the scaffolding was safe and free of defects which might result in injury to the plaintiff. Additionally, the third defendant was said to have owed the plaintiff a duty to supervise and control the site adequately, and to give such directions, orders and commands as might be reasonably necessary to avoid exposing the plaintiff to injury from hidden or other dangers of which it knew or ought reasonably to have known.
The plaintiff’s case as pleaded was that the first defendant, Mr Walker, reversed his truck so as to come into contact with the scaffolding, due to his own negligence and that of an employee of the second defendant responsible for directing the first defendant as to where to position the truck.
The particulars then asserted that after tipping the load of sand, the first defendant, failing to appreciate that the truck was in contact with the scaffolding, drove forward, pulling the scaffolding out of alignment and causing damage to it.
The particulars then alleged that after the scaffolding had been damaged in that manner, the plaintiff, who had been up on the scaffolding, alighted and spoke to Mr Gregory White, an employee of the second defendant whom the plaintiff understood to be the site foreman. Mr White directed the plaintiff that he and his staff should stop work on the scaffold until it had been inspected by the scaffolding contractor and declared safe. The plaintiff went up the scaffold to pass this direction on to his staff, and retrieve his tools and equipment. As he was descending the scaffold, several planks forming part of the scaffold suddenly gave way in such a manner as to cause him to fall heavily to the ground and suffer injury. The asserted negligence of the third defendant was in permitting the plaintiff to go back onto the scaffolding in its damaged condition; failing to act with alacrity following the collisions to cause all persons to come down from the scaffolding; failing to give adequate directions as to how they should dismount from the scaffolding; failing to tape off the damaged parts of the scaffolding immediately; failing to have in place a barrier around the base of the scaffolding preventing vehicles from getting too close to the scaffolding; otherwise failing to take steps to prevent sand being unloaded at the base of the scaffolding; and failing to comply with the applicable Australian standard as to scaffolding.
Additionally, the amended particulars pleaded a cause of action against the third defendant in breach of statutory duty, the legislation being the Scaffolding and Lifts Act 1957 (NSW) in its application to the Territory and the regulations under the Act.
In November 2004 the third defendant joined the plaintiff’s company, Tereel Pty Limited, as a third party, claiming contribution or indemnity by reason of asserted negligence on the part of the third party in failing to ensure that its employees, including the plaintiff, were not exposed to a risk of injury of which the third party knew or should have known. Particulars of negligence included failing to comply with a direction by Mr White that no staff were to mount the scaffold in its damaged condition, and failing to take reasonable steps to prevent its employees from doing so. The particulars of negligence were later amended to add a failure to prevent its employees (including the plaintiff) from descending from the scaffold through an area which it knew or should have known was at risk of being damaged or unsafe, and failing to instruct its employees to that effect.
In December 2004, on the plaintiff’s application, the action was removed to this Court.
In late 2008 the third party applied to join the plaintiff as a fourth party, seeking indemnity or contribution from him. That application was refused: Jones v Walker & Ors [2008] ACTSC 117.
Notices claiming contribution have been exchanged between the defendants.

Issues for determination

At the commencement of the hearing I was told that the parties had reached agreement about damages, and as to contributory negligence as between the plaintiff and each of the three defendants. The third party accepts the agreement as to damages but not as to any contributory negligence on the part of the plaintiff, so that the latter remains a live issue between the third defendant and the third party.
During addresses, I was informed that the parties had agreed that I was to be provided with a sealed envelope containing the agreed damages figure, on the understanding that I would not open it until I had completed my draft reasons as to liability. As this was agreed between all of the parties I accepted it, although the arrangement seems suggestive of some suspicion that my determination of the issues as to liability might be influenced if I were aware of the figure in advance. Such a suspicion needs only to be articulated to be seen as completely unwarranted. The legal profession should not assume that the judiciary will in the ordinary course accept such a condition or arrangement.

My task is accordingly to decide whether the plaintiff has established negligence on the part of one or more of the defendants; if more than one, to apportion liability between them; and to decide whether the third defendant, if found negligent, has made out a case for contribution by the third party, and if so in what percentage.

The documentary evidence

It is common knowledge in the Australian Capital Territory that some time before the plaintiff‘s fall, the Canberra Airport was sold by the Commonwealth to Canberra International Airport Pty Limited, a privately owned company (that is, not a government instrumentality). That company took advantage of the opportunity to develop a number of office buildings in the southern part of the site. The building surrounded by the scaffolding from which the plaintiff fell was one of those buildings. Senior counsel for the plaintiff sought to establish that there was a written contract between the airport company and the third defendant to construct the building, but in the event no such document could be located and there is no such evidence. Senior counsel for the plaintiff sought to tender a copy of a contract between the airport company and the third defendant which was dated some eighteen months after the plaintiff’s fall. The tender was not admitted, and there is no specific evidence of any contract between the airport company and the third defendant, or indeed any evidence of the formalities of the arrangement by which the third defendant was on site. Nor is there any evidence of any written contract between the third defendant and the second defendant or the third party, or indeed any other entity.
There are in evidence copies of minutes of two meetings, described as “contractors site meetings”, recorded as having been held at the Brindabella site office (which I infer to have been at the airport) on Thursday 22 February and Thursday 1 March 2001. The minutes record that at the earlier meeting there were eight persons present, including Messrs Mark Iremonger and Greg White of Construction Control and ‘Dave’ of CTR Pacific. The others present are identified with other entities which I take to have been subcontractors, not including any parties or witnesses in the present proceedings.
There were also eight men at the second meeting, including Messrs John Gasson, Mark Iremonger, Alan Carey and Greg White of Construction Control. ‘Dave’ of CTR Pacific is listed as one of those to whom the minutes were distributed although he was not at the meeting. Others on the distribution list were apparently subcontractors, again not including any parties or witnesses in the present proceedings. The minutes listed various aspects of the construction, the only relevant ones for present purposes being “Brickwork” and “Render”. In both sets of minutes, there were stated to be no issues in relation to Brickwork. The earlier minutes recorded “Render to south core brickwork to start 26/2/01”. The second minutes recorded “Render to south core brickwork commenced”. I can infer from other material before the Court that Mr Gasson was the managing director of Construction Control. Mr White has been mentioned earlier as the assumed site foreman. Mr Carey is mentioned in documents produced by ACT WorkCover, an instrumentality of the ACT Government.
On 2 March 2001, the day after his fall, the plaintiff completed a workers’ compensation claim form. He noted that his injury had occurred at 2.45 pm the previous day, and that he had given notice of the injury at the site office at 3.15 pm. He gave the following description of the incident:

A truck had hit the scaffolding delivering sand to bricklayer. Apparently the driver was directed too close and tipping load hit scaffolding causing a lot of damage. We were working other side. Shortly after we were directed to leave scaffold. I stayed a while longer to make sure that everyone was off. As I made my way to the only access ladder I fell.

The form called for the names and addresses of any witnesses. The plaintiff listed Tom Moric, Rob Taylor and Brian Moran, employees of Celtic Plastering.

The form provided seven lines for the description of the accident, and the plaintiff used the whole of the space available, in handwriting.

The plaintiff made (at least) three further signed statements. He was cross-examined about them, and each was marked for identification at the time, but only one was tendered and is in evidence. The statement in evidence is undated. The plaintiff could not remember when and in what circumstances he made it, but accepted that he had signed it at some time in the past. It is not witnessed. From other evidence I infer that it was prepared in May 2001. The statement is in the following terms:

On or about 1 March 2001, I was working with some of my employees at a building site near the Canberra airport.

We were working on the scaffolding. We moved from curved wall to wall adjacent. We were approximately 8 metres from the ground.

At the same time a truck attended the site for the purpose of delivering sand. When the truck went to leave I heard a noise. I was still on the scaffold, adjacent to the scaffold which the truck hit.

I went around the scaffold, and I saw that there had been some impact on the scaffold.

I was not advised that the scaffold was dangerous, or that we should leave the scaffold.

We continued to work.

After some time I was going to organise the pays for the employees of mine. I saw the foreman, and advise him that there had been an impact. He said that he had not seen it.

The Foreman, I believe, then went to have a look, and he rang the scaffolding company to come out to fix it.

Meanwhile, we continued to work.

Greg then said that the scaffolding was banned, and that the people should get off the scaffolding. He put some para-webbing around the scaffold. I went up the scaffold to tell my employees to leave, and to collect my gear. We all then left the scaffold. I believe my employees left by climbing down the scaffold. I went down and went through the para-webbing, as that was the only way I could get down off the scaffold. When I was down to about 2 metres from the ground, a plank on the scaffold gave way from underneath me, and I fell.

I then attended my doctor, Patrick O’Callaghan. As a result of the accident I had injured my feet and my shoulder.

Counsel for the second defendant showed the plaintiff two other statements, both typed and both signed by the plaintiff. The plaintiff agreed that these were statements he had made, but that he was unable to cast any further light on when or in what circumstances he had made them.

One of the statements was dated, apparently in the plaintiff’s handwriting, 17 February 2003. It was headed as “supplementary statement of Liam Jones made at 161 London Circuit, Canberra City, ACT”. The statement seems to have been prepared by the solicitors then acting on instructions from the workers’ compensation insurer for the present third party, coincidentally on the day when the plaintiff commenced his proceedings in the Magistrates Court, but long before the third party was joined.

The statement commences “I refer to my earlier statement dated 2 April 2004 (sic)”.

No statement bearing that date was referred to during the hearing, but the other statement on which the plaintiff was cross-examined was dated 2 May 2004. That statement was witnessed by one M Hall and is said to have been made at the plaintiff’s home and compiled from information dictated by the plaintiff. There is nothing in the body of the statement which would assist as to whether the date it bears is correct. It would appear to have been prepared by an investigator, more probably than not on instructions from the workers’ compensation insurer for the third party.

These two statements were not tendered and are not in evidence. It has been necessary for me to make reference to them in order to understand the cross-examination about them, but otherwise I have not taken their contents into account and have been conscious that they are not evidence of the truth of their contents. Each of the statements is significantly longer and more detailed than the statement which is in evidence and set out above.

There is a hint that the statement witnessed by Mr Hall and dated 2 May 2004 might in fact have been prepared and signed in May 2002. I shall come to this in a moment.

A statement was tendered by senior counsel for the third party by Mr LK Stuckey, who also gave oral evidence. Mr Stuckey’s statement was as follows:

I have been a foreman for approximately fifteen years. I have been employed by Celtic Plastering Company approximately twenty-three years.

On 1 March 2001, I was fixing the beads on the wall for render. I was doing this on scaffolding approximately two to four metres high. During the day I was working on two levels.

A truck backed in to tip the sand, and went too far. The brickies’ labourer had guided it in, but apparently the tailgate caught on the scaffold. When he attempted to drive away he pulled on the scaffold.

Approximately half an hour to three quarters of an hour later the foreman came up and put tape across the round section of scaffold on every level. Approximately three quarters of an hour to one hour we were told that the scaffolding was unsafe. I then climbed down the scaffold to exit the area.

Mr Stuckey was cross-examined on that statement and also on a statement which was marked for identification but not tendered, which he had signed and dated 3 May 2003. That statement was also witnessed by M Hall and seems to be in the same typeface as the plaintiff’s statement so witnessed.

When admitting the statement set out above as an exhibit, I noted at counsel’s request that the third paragraph was clearly based on hearsay, that is on what Mr Stuckey had been told and not on his direct observation.

A copy of that statement tendered bore a “received” stamp dated 18 May 2001, I accept that the statement was made and signed no later than that date. The statement is similar in layout and font to the statement by the plaintiff in evidence, and I infer that it also probably came into existence at about the same time.

The statement signed by Mr Stuckey and dated 3 May 2002 was not tendered and is not in evidence. Again, I have made limited reference to it for the purpose of understanding the cross-examination on it by senior counsel for the third party, but again I acknowledge that I cannot take it into account as providing any support for the truth of its contents.

Also admitted into evidence with some deletions following objections by counsel, was a statement of the plaintiff’s son, Brendan Jones, made in January 2005. The statement, after deletions, was as follows:

I work for Celtic Plastering as a tradesman. I was working on the site when the truck impacted into the scaffold. At the time of the accident I was doing plastering of some kind. I am not sure what the job was that afternoon. Then bang, the scaffold had been hit by the truck.

I saw the truck come in. I noticed when the truck came in that they were awfully close to the scaffold. I did point it out to the bricklayers that they were delivering too close but nothing was done of that. It was delivered by the CTR. Sure enough as I thought might happen as you do when trucks are that close, there was a bang, the scaffold was hit and it had actually torn not just hit, torn out, as the truck got caught as it was on its way out.

Some time progressed. I’m not sure what it was. We still had some men working higher on the scaffold that weren’t sure what was going on , and what not. My dad and I went and spoke to Greg and told him about it. We asked him to come around and have a look at the scaffold and what had happened. . . . after having a look at it, Greg asked my dad if he could make sure that everybody was off the scaffold. He said to my dad ‘You’d better go and get your men off the scaffold’.

My memory at the moment is hazy at this point in time about . . . thinking it was unsafe. I am not sure if the scaffolders or if the safety guys were called in by then, but Greg did call some men to come and check it out . . .

My dad was instructed by Greg to go and get the men off the scaffold, and that was why my dad was on the scaffold. Then my dad was on the scaffold and . . . he fell on the ground.

I am not a foreman for Celtic Plastering and I have never been employed as such. Les Stuckey was the foreman.

I was never given instructions by Greg. The talking was between Greg and my father. Greg was unaware of the accident and there were people still on the scaffold working . . . Otherwise it could have been any matter of time before Greg had even found out about it. We did as one by getting the foreman to come and have a look at the accident.

The first defendant (the truck driver) made a handwritten statement, subsequently typed and signed, within a few days of the incident. His statement was as follows:

While delivering sand to CTR Pacific bricklayers I was instructed by CTR’s brickies’ labourer to wait while congestion at delivery point was cleared. Congestion consisted of an excavator placing dirt in an already dug trench on the left hand side of delivery point and a mobile crane set up on right hand side. Immediately at rear was scaffolding surrounding the building under construction.

I inspected the drop point while rolling up my sand cover and could see no impediment to delivering load.

As in the majority of previous drop, at the instruction and direction of a person in authority, usually the brickies’ labourer, I proceed to reverse following hand signals by that employee. As in hundreds of occasions on many sites throughout the ACT I trusted his skill, judgment and common sense to safely guide me to the tipping point. I reversed as per instructions and at his signal stopped and at the thumbs up sign I engaged hoist and proceeded to tip. As the sand emptied from the body the tail gate lifted as sand heaped up underneath it. All this is obscured from me and the employee is still at the rear of the truck watching the operation so I assumed everything was proceeding as normal.

Unknown to me the tailgate had passed between two support legs of scaffolding as it moved outwards and upwards. As I slowly moved forward off the heap a lug on the tailgate caught a supporting leg of the scaffold, bending it and nearly toppling the whole structure.

We extracted the tailgate from the scaffolding without further problems, but obviously the damage had been done.

I must stress all this procedure was watched by the brickies’ labourer and at least four other men working near the trench. My vision was blocked by the tipping body so was unaware of events taking place. In answer to what measures be taken to prevent further happenings of this nature it would seem a policy be adopted by myself to cease to trust all instructions of so called experienced employees and alight from cab at set stages and inspect tipping procedure to ensure that all is proceeding safely.

The evidence is that this statement was prepared not for the purpose of the present litigation but for an investigation by ACT WorkCover into the incident.

Also tendered was a statement by Mr WT Penson, signed in April 2003, and apparently prepared by an investigator, presumably instructed by the second defendant’s insurer. Mr Penson’s statement was as follows:

1. I have been employed by CTR Pacific Pty Limited for the last eight years as a labourer. At approximately 2.30 pm on 1 March 2001 a ten tonne dump truck from Canberra Sand and Soil (Fyshwick) delivered approximately five cubic metres of brickies sand.

2. I guided the truck to an area near the scoffold [sic] in close proximity to the hoist. The driver stopped approximately 1 – 1 ½ metres away from scaffold and then proceeded to dump the sand. He then moved forward hitting the brakes allowing the remaining sand to unload. Due to the fact that the soil was wet he created a groove in the soil which required him to rock backwards and forwards. I noted as he reversed he left two distinctive tyre marks in the sand. He did not close the tailgate which was swinging during the course of this action.

3. I noted that he had the window wound up and the radio reasonably loud. I saw that the tailgate had caught the scaffold and I immediately yelled out to him. However, he did not hear my calls. As he proceeded forward he caused damage to the scaffold. He immediately upon realising what had happened, stopped the vehicle, got out of the vehicle and stated that he would take no responsibility for that. He then rang his boss.

4. Mr Greg White, foreman of Construction Control, was advised of the incident. The driver informed Mr White that his boss was coming and he said that he had a docket saying that they did not accept any responsibility for any damage.

5. I then heard Mr White say “don’t go on the scaffold” and I heard Mr White arrange for webbing and warnings to be put on all entry/exit points to the scaffold. At this time I was of the view that there were no persons on the scaffold.

Mr Penson gave oral evidence which was not entirely consistent with his statement.

A number of documents were produced in response to a notice for production by ACT WorkCover. These included an “injury and dangerous occurrence report form” lodged by the third defendant and completed by Mr Alan Carey, who identified himself as project manager. His brief description of the cause of the incident was “tip truck latched onto a scaffold standard and drove away buckling the scaffold”. Mr Carey signed the form on 7 March 2001. There is no evidence that he was on site at the time of the incident and I think it most likely that he prepared it on the basis of information provided by other employees of the third defendant.

On the same date Mr Carey prepared a typed incident report for WorkCover, which read as follows:

At approximately 1.15 pm on 1 March 2001 the sand delivery firm for the bricklaying company on site (CTR Pacific) reversed his truck into an area adjacent to the materials hoist to deposit the sand.

The labourer for CTR Pacific directed the truck to reverse adjacent to the building perimeter scaffold. While unloading the sand the tailgate of the truck hooked onto an adjacent scaffold standard. The truck driver and the labourer were unaware of this. The truck proceeded to drive away with the scaffold hooked on. This bent the scaffold standard and distorted a large area of it (the scaffold is approximately 10 metres high).

At the time approximately five renderers were working on an adjacent scaffold and three plumbers were working in an adjacent trench.

All workers on the scaffold and adjacent area were immediately directed by our site foreman Greg White to exit the area. Bunting, barricades and incomplete scaffold signs were erected immediately to prevent anyone entering the risk area.

One worker did however enter the damaged scaffold area to try to get down from the first level. He walked across some dislodged planks that gave way and he fell with the planks approximately 2 metres. Injuries included bruising to the back and legs.

Since the incident the entire scaffold has been dismantled and re-erected by Waco Kwikform and clearance as to its structural adequacy has been provided.

Counsel for the third defendant objected to the inclusion of the word “dislodged” in the penultimate paragraph. Senior counsel for the plaintiff pressed the tender but was content not to rely on that word. I accordingly treat the word “dislodged” as not being in evidence.

Mr Carey on behalf of Construction Control also provided to ACT WorkCover a page headed ‘Preventative measures statement’. This was in the following terms:

To reduce the risk of a similar occurrence Construction Control has implemented or is about to implement the following preventative measures:

- Provide clearly identified and bunted sand dump areas that are a minimum of 1 metre away from any adjacent scaffold. These areas will be the responsibility of the contractor to maintain and ensure sand and materials are contained within it.

- Provide clear areas for access to the drop zones so vehicles have clear site [sic] lines.

- Re-instruct contractors who are guiding trucks into the drop zones to always keep the driver in view in the mirror and to walk around to the rear of the truck before allowing the truck to leave.

- Re-instruct drivers of delivery vehicles to ensure their vehicle is clear of all obstructions before proceeding.

Additional measures

All scaffold around the building that is at risk of being hit by passing vehicles has now been clearly identified and fenced a minimum of 1 metre from the scaffold.

The oral evidence for the plaintiff

Evidence was given in the plaintiff’s case by the plaintiff himself and by two men who were employees of his company (the third party) at the date of his fall: the foreman Mr Les Stuckey, and the plaintiff’s son Brendan.

The plaintiff’s evidence was that he had a team of four or five men at the building site on the day of his injury. He usually arrived on site at 6.30am and as far as he recalled had done so on that day. The team were preparing for rendering, to commence the following day. This involved checking and preparing the external wall surfaces of the building, at all levels.

There was scaffolding surrounding the building to roof level, which included a steel stairway and a hoist or elevator for materials. The hoist was contained within a tower attached to the scaffold. The levels of the scaffolding were at intervals of two metres in height, and did not correspond with the four levels of the building which were something like four metres apart. The plaintiff’s recollection was that there were six to eight levels within the scaffolding. During the morning the plaintiff left the site and returned. At about lunchtime he was on the third or fourth level of the scaffolding, checking the preparation of the walls for rendering the next day. Mr Stuckey was in the same general vicinity. The plaintiff heard a loud noise and felt a shudder of the scaffolding. He was aware that a truck driver was waiting to tip a load of sand, and he walked along the scaffolding to the hoist area, where he observed that the truck was against the scaffold. He saw the truck driver and a bricklayers’ labourer near the truck arguing. The rear of the truck appeared to be in contact with the scaffolding, a couple of metres from the hoist.

The plaintiff returned to the area where he had been working. He said that a few minutes later there was another vibration and a bang or crunching sound, which appeared more violent than the earlier one. He went back along the scaffolding to see what had happened. He observed that the truck had tipped its load of sand and moved forward from the scaffolding. He saw that the tailgate of the truck had got caught in the scaffold. He saw the driver and the bricklayers’ labourer unhook the tailgate. The driver then moved the truck forward and tipped the rest of the sand. The plaintiff went back to work on the scaffolding, continuing to work for half an hour to three-quarters of an hour.

It occurred to him that the incident might have affected the working of the hoist, which he and his men would need the next day to get their rendering materials to the appropriate levels on the scaffolding. He decided to speak to Mr Greg White, who he understood to be the general foreman and safety officer for the site. He found Mr White in the vicinity of one of the other buildings under construction. He told Mr White that a truck had hit the scaffolding, and asked him to come and have a look, to see what damage had been done and whether any damage needed to be rectified so that the rendering work could proceed the next day. Mr White came back with him to inspect the scaffolding. The plaintiff then went back up the scaffolding to his work. He continued working for about three-quarters of an hour. He noticed that no one seemed to be fixing the tower to get the hoist operational for the next day, and went back down the staircase within the scaffolding to speak to Mr White again. He asked whether the hoist would be in order for work the following day. Mr White told him that the scaffolding contractor had inspected the scaffolding and determined that it should not be used until the tower had been repaired. Mr White told the plaintiff to get his men off the scaffolding. The plaintiff did as directed, ascended the scaffolding and told his men to come down from it. The men were at different levels and in different areas of the scaffolding.

By this time it was, from the plaintiff’s recollection, about 3.00 pm, almost knock-off time. After speaking to the men, the plaintiff came down the stairway to get off the scaffolding himself. As he was walking along the first floor level of the scaffolding, one of the planks gave way and he fell through, a distance of a little over two metres.

Within days of the incident, steps were taken to prevent vehicles coming within two metres of the scaffolding. Steel pickets were put in place, with wire, webbing and fluorescent tape.

In cross-examination, the plaintiff said that the area where the bricklayers mixed their mortar was one or two metres from the scaffolding and the hoist, with their concrete mixer adjacent to their sand area.

It was put to the plaintiff that in one of his earlier written statements, made soon after the incident, he had not stated that there had been two impacts. He was adamant in his oral evidence that there had been two separate impacts, as he had said in chief.

The plaintiff’s understanding was that the planks which formed the walkway at each level of the scaffolding had been, in his words, dropped into the frame. He agreed that they sat neatly within the frame. They were not otherwise fixed in place.

The plaintiff was asked whether he had observed any visible damage to the scaffold. He said that he had seen damage to the tower for the hoist, but no damage to any other part of the scaffold. The damage he observed to the tower was some buckling or twisting to one or perhaps two pieces of vertical tubing. He said that each of the pieces of tubing was two metres in length. Asked to elaborate as to the buckling he said that one of the tubes was bent and “had a bit of a bow in it”. It was this observation which gave rise to the plaintiff’s concern that the hoist might no longer be operative.

It was put to the plaintiff that Mr White had arranged to have the scaffolding taped off, to prevent access to it. The plaintiff’s evidence was that as he was coming down, just before his fall, he saw someone going around the scaffolding putting tape up. Three had been no such tape in place when he ascended the scaffolding for that last time. Mr White had told him that he was to get his men down from the scaffolding so that the scaffolders could pull the tower apart and replace it with a new one so that the hoist would be operative on the following day. The plaintiff unequivocally denied a suggestion that the scaffolding had been taped off within fifteen minutes of the incident involving the truck. He also denied that he had on any occasion got under the tape to ascend the scaffold.

The plaintiff’s evidence was that he and all of his company’s employees were qualified as plasterers, but none had any experience or qualifications in relation to scaffolding. On previous occasions when his company had had a contract where he had had to provide the scaffolding, he had always engaged a scaffolding contractor for that purpose. He explained that the hoist tower had been, to use his expression, “clipped” onto the tower. The tower had not had any decking or planking of its own and could not be entered by a workman. The image which emerged from his evidence as to the tower was something similar to a lift shaft, with gates at each level of the scaffolding. The hoist itself consisted of a platform with a cage, large enough to take a wheelbarrow.

The plaintiff’s evidence was that whilst he had concerns about the integrity of the tower and hoist, he had no reason for any concern about the stability of the walkways or stairs on the scaffolding itself. If he had had any such concern, he would have ordered his men off the scaffolding immediately.

He described the walkways on the scaffolding as five planks wide. He agreed that he had not inspected every plank before walking on it. He had walked on the section of walkway where he eventually fell a number of times after the impacts involving the truck, without any reason for concern. Mr White had given him the impression that he had no concern as to the safety of the scaffolding, and this was reinforced in the plaintiff’s mind by the lengthy period of time which passed before he was given a direction to get his men down. He was conscious in particular of Mr White’s status as safety officer for the building project, as he understood it.

He could not be sure that he had previously placed his feet on the plank or planks which eventually gave way, but he was definite that he had walked a number of times along that same section of walkway during the afternoon. At no time had he noticed anything which gave rise to any concern in his mind about its stability.

He said that once he had been directed by Mr White to get his men off the scaffolding, there was no means available to him to comply with the direction other than to climb up the scaffolding and pass the direction on to his men. When he did so he went up the same way he had been up and down a number of times since the impact with the truck. He said that there was no tape blocking his way, or in place at all, at that time. There was nothing about the stairs or walkways on the scaffolding which caused him any concern as to safety or stability. When he communicated the direction to his men, they came down from the scaffolding, as far as he was aware without any difficulty. In the period between the impact between the truck and the scaffolding his fall, nothing had happened which created in his mind any suspicion or concern that it had not been safe for his men to continue with their work on the scaffolding.

It was on his way down for the last time that the plaintiff came across a man putting tape up around the scaffolding, on the first level. The man was himself on the stairs and walkway of the scaffolding.

The plaintiff’s foreman, Mr Stuckey, had worked with the plaintiff for twenty-seven years. He started work on the day of the plaintiff’s fall before 7.00am. His task for the day was to fix beading to the wall, preparatory to cement-rendering the next day. He confirmed that the scaffolding was in place all around the building, which to his recollection was to three storeys. He had been working on the second, third and fourth levels of the scaffolding. His evidence was that there were two jolts to the scaffolding on the day, with the second being the more substantial. His recollection was that the second jolt was only a couple of minutes after the first. After both jolts, he went to look and see what had happened. He saw the truck close to the scaffolding but not in contact with it. He then kept working until he was told by the plaintiff to get off the scaffolding. This was twenty minutes to half an hour before the normal knock-off time of 3.00 pm. The plaintiff told him that the foreman, Mr White, had directed all staff to leave the scaffolding, which was to be inspected by the scaffolding contractors. Mr Stuckey packed up his tools and climbed down from the scaffolding. He did so through an opening in the wall which gave him access to internal stairs on the other side of the building. When he got down to ground level, he went to the front of the building and realised that the plaintiff had fallen from the scaffolding, in the vicinity of the hoist.

In cross-examination Mr Stuckey slightly altered his evidence, to the extent that he recalled that he had gone to have a look at what had happened twice, after the first jolt and again after the second jolt. On both occasions he saw the bricklayer’s labourer at the back of the truck.

Mr Stuckey’s recollection was that at some time after the second jolt and before he came down from the building, he had seen Mr White placing tape around the scaffolding, which he understood was intended to close off access to the scaffolding. He thought that this was within an hour of the second jolt. He conceded that within his written statement in May 2001 he had said that Mr White had put tape around the round section of the scaffold on every level.

His recollection was that it was the plaintiff who told him that the scaffolding was unsafe, and that this happened fifteen to twenty minutes after the second jolt. He conceded that in his earlier statement he had said that the time interval between the second jolt and being told that the scaffolding was unsafe was about three quarters of an hour to an hour, and he agreed that his recollection was likely to have been better at that time than at the hearing more than eight years later. On reflection he thought that the earlier estimate of three-quarters of an hour to an hour was more likely to be accurate.

He agreed that he had not seen tape across the scaffolding at every level but had made an assumption that all levels were taped. He had seen tape only on the level where he was working. He took it that he was not to go past the tape, and that he had to find another way of getting down. He got down through a gap between the decking and the building, which was narrow, just wide enough for him to get through (at least at the time they gave their evidence, the plaintiff was clearly a larger and more thick-set man than Mr Stuckey, who was relatively slightly built). Mr Stuckey did not think that the plaintiff would have been able to get through the gap.

Mr Stuckey also said that the gap which he went through took him outside the line of the decking of the scaffold, exposing him to the risk of falling to the ground if he lost his grip or foothold. Once he had got inside the building he was able to walk across to partially completed concrete stairs which he was able to walk down to ground level.

Mr Stuckey agreed that during the period of three-quarters of an hour to an hour between the second jolt and being told to get down from the scaffolding, he had no concern about his safety or the stability of the scaffolding.

After further questions in cross-examination he agreed that he had not actually seen Mr White put the tape up on his level, but had seen Mr White there and assumed that he must have done so.

The plaintiff’s son Brendan Jones was employed by the plaintiff’s company as a plasterer. He had been working for his father’s company for about ten years by 2001, and he was at work on the day of his father’s fall. He and his colleagues were preparing the walls of the building for rendering the next day. His recollection was that the building was three or four storeys high, with four or five decks of scaffolding around the building. On the day in question he had been working on all levels of the scaffolding at different times. Access from the ground level to the scaffolding was by a ladder near the hoist.

He was at ground level when he noticed the sand truck arriving. There was already sand on the ground near and partially under the scaffolding, and running into the area of the tower around the hoist, from previous deliveries. He thought that it was close to 1.00 pm, when the bricklayers would have been at lunch. He recalled the bricklayers’ labourer being present. Mr Jones said that he asked the labourer why the sand was being dumped so close to the scaffold. He put the question in a joking way. He continued to observe the truck reverse in to drop its load. He remained in position but took his eyes away from the truck to attend to his own work. There was a loud noise of metal hitting metal, and he turned around again. He saw the truck driver out of the truck, in conversation with the bricklayers’ labourer. Other workers on site were in the vicinity, or appeared from nearby. Mr Jones continued to watch the truck as it tipped sand onto the existing pile. Some of the sand ran into the hoist tower area. Mr Jones saw and, I gather, heard, another contact between the truck and the scaffold, which resulted in the truck becoming caught on the scaffolding. He saw the truck move forward, dragging the scaffolding and then pulling free. He did not immediately observe any damage to the scaffold.

The first time he realised that some damage might have been caused was about twenty minutes later, when there was a need to bring a load down on the hoist. The hoist would not work. Mr Jones had a conversation with his father about the problem, being aware that they would be using the hoist extensively for the rendering work the next day. He and his father went over and spoke to Mr White, the site foreman, in his office. They told him that the scaffolding had been struck by a truck and that the hoist was not working. Mr White said that he would contact the scaffolders to look at it. This conversation, from Mr Jones’ memory, took place fifteen to twenty minutes after the contact between the truck and the scaffolding. He then went back to work, going up and down the scaffold three or four times to different levels. After a time Mr White returned and said that he had contacted the scaffolders who were coming to the site. Some time later Mr Jones saw scaffolders inspecting the hoist. A little later he was present during a conversation between his father and Mr White, when the latter directed that the men come off the scaffold. His best recollection was that this conversation took place between 2.30 pm and 3.00 pm on that afternoon, reasonably close to the hoist. He then saw his father go up the scaffold to pass the direction on to his workers. He said that he was standing next to Mr White as his father went back up the scaffold.

He next observed his father descending the scaffold, talking to someone on the second deck for a short time, then climbing down to the first deck and walking along the walkway. Mr Jones had a wheelbarrow in his hands and must have taken his eyes off his father. He heard a loud crash and quickly turned around to see his father in mid-air between the first deck and the ground. He saw his father hit the ground, and saw two or three planks land on him.

Mr Jones said that during the period between 2004 and 2007 he “had a few personal issues . . . a few inner demons”. He accepted the proposition that this affected his clarity of thought and recollection, and would explain any discrepancy between a statement he made in January 2005 and his oral evidence. He further said that his writing skills were generally poor, and sought to give the impression that this might have affected the content of the statement he made at that time, which was taken by a solicitor acting for his father. In the course of his oral evidence, Mr Jones said that his recollection was that access to the various levels of the scaffolding was by ladder. In cross-examination, he adhered to that recollection, but agreed that scaffolding varied at different building sites, sometimes using ladders and sometimes using staircases or steps.

Mr Jones’ evidence was that, like his father, he had walked along the section of decking where his father later fell a number of times during the afternoon, without anything to suggest that it might be unstable or unsafe.

The first defendant’s case

By the time of the hearing Mr Walker had retired as a truck owner-driver some two years earlier. He had owned the truck and essentially contracted to a single sand and building material supplier, Canberra Sand and Gravel. He had been a truck driver prior to his retirement for about fifty years. He had bought the business in 1992 and upgraded to a new truck in about 1997. The truck was described as a rigid tipper. Mr Walker had been driving such trucks for many years.

His day-to-day work involved the delivery of sand and other materials to building sites. On the day of the plaintiff’s injury, he had a load of sand to deliver to the building site at the airport, ordered by the second defendant CTR Pacific (the bricklaying sub-contractor). He had delivered sand for CTR to numerous building sites around Canberra, but could not recall whether he had previously been to the airport site. He was aware that they generally required their sand to be unloaded adjacent to the hoist tower on a multi-storey building site. When he arrived at the site he found the bricklayers’ labourer employed by CTR Pacific, Mr Penson. Mr Penson told him that there was an excavator blocking his access and he would have to wait a few minutes. Mr Walker used the time to climb onto the back of the truck and roll up the cover over the sand. He estimated that where he stopped to wait was about twenty to twenty-five metres from the eventual drop-off point. After the excavator moved out of the way he moved the truck in what he described as a semi-U-turn and then reversed towards the tipping point to where Mr Penson wanted the sand put. He reversed using large external rear-vision mirrors, one on each side of the truck. Mr Penson was behind the truck and to the driver side near where he wanted the sand tipped. Mr Walker could see him through his right mirror. As he reversed, Mr Penson signalled to him, motioning him to continue reversing until Mr Penson put up his hand as a signal for him to stop. Mr Penson then gave him a thumbs-up signal which he understood as the usual signal to commence tipping.

The tipping mechanism for the truck was controlled from the driving seat and was hydraulically operated. There was also a lever which opened the tailgate, which was hinged at the top. The mechanism lifted the tray so that its front (nearest to the driver’s cabin) lifted up. The back of the tray was anchored and effectively hinged at the rear. The tray was enclosed by three fixed bin walls and the tailgate. The effect was that as the tray was raised, the tailgate hung vertically from its top allowing the sand to tip out. The force of the sand pushed the bottom of the tailgate out from the truck, away from the vertical, as the sand was unloaded. When the tailgate was closed in normal driving position, it was kept in place by lugs which rotated to lock it in place, and rotated in the opposite direction to release it.

On the day in question, Mr Walker operated the tipping mechanism to raise the tray. Through his mirror he could see sand coming out. His normal practice was to allow the sand to pile up at the base of the truck and, at a point during the tipping process, to move the truck forward so as to drag the tailgate over the top of the heap of sand. After moving forward a short distance he would brake sharply, causing the tailgate to swing forward and hit the back of the tray, to ensure as far as possible that all the sand ran off the tray. His evidence was that with a load of sand, it was usually enough to undertake this manoeuvre once, whilst it might be necessary to do it two or three times if unloading what he called sticky material.

His evidence was that on the day in question, after seeing the sand coming out of the tailgate swinging open, he drove forward. He felt a jolt and heard a noise. He immediately realised that something untoward had happened. He stopped, braked and jumped out. He realised that he must have hit something but did not know what it was. He walked around to the back of the truck. A lug on the tailgate had caught on one of the upright posts of the scaffolding. He was able to extricate the tailgate from the scaffolding, by removing a pin which permitted the tailgate to swivel to the side. The design of the tailgate was such that it had two available movements: swinging from the top, and opening from one side, hinged at the other. This was something Mr Walker had had to do on occasions, for example if his load included a rock too large to fit under the tailgate.

Mr Walker then drove the truck a little way forward, and stopped again for what he described as a general conference about the problem. He was able to see that the scaffolding upright had been bowed outwards from the building, about four feet above ground level. After some discussion, a person in apparent authority, who Mr Walker assumed was a site foreman, gave him permission to leave the site, which he did.

When he returned to the depot at Canberra Sand and Gravel, he was requested to, and did, handwrite a statement as to what had happened, which is set out earlier in these reasons. He thought that he had written it within three or four days of the incident, but was not certain about this. The handwritten statement was subsequently transcribed into typing, and Mr Walker signed it again.

Mr Walker said that he had performed a similar sand-unloading operation as a truck driver hundreds of times before, and had never had any previous problem.

It was put to Mr Walker in cross-examination that when making the delivery, he reversed the truck and moved a few times backwards and forwards. He denied this and said that it would not have been possible for him to reverse because of the sand behind him.

It was put to him that it would have been a simple matter to have alighted from his cabin to check before tipping his load whether there was enough space for him to do so safely. He agreed with the benefit of hindsight that he could have done so but said that in accordance with his usual practice he had relied on the bricklayers’ labourer to direct him into position. He agreed that he had not previously known the bricklayers’ labourer and had had no personal knowledge of his skill or experience.

He agreed that the engine of the truck had been running during the tipping process, and that the noise was such that if a person in the position of the bricklayers’ labourer had called out to him with his window up, he would probably not have heard him. He would be even less likely to have heard anything if he had had his radio on. He did not remember whether he had had the radio on or the windows up.

He was unable to recall how close to the hoist the truck was during the unloading procedure.

Mr Walker accepted that it was possible that the lug, located roughly at the bottom driver side of the tailgate, and protruding a little out to the driver’s side, had made contact with the scaffolding twice, first during the unloading procedure as the tailgate pushed out, and secondly as he drove the truck forward. He agreed that if the evidence of witnesses who deposed that they had felt the scaffold move twice were accepted, this could be explained by the lug having hit the upright on its way back and again when moving forward. He also accepted that the second impact would be likely to have been louder and more severe than the first, as the lug was moving under greater force as the truck moved forward. Mr Walker also agreed that there was a great deal of noise on a building site, particularly when operating a large tip truck, with clanging and bashing and shuddering. He agreed that one clang might sound much like another, and that the noise of a lug hitting a scaffolding upright would not necessarily be distinguishable from a clanging noise somewhere else on the site. What really drew his attention to something going amiss on the day was his feeling a resistance as he moved forward, as the lug caught on the scaffolding and applied a stopping pressure to the rear driving wheels of the truck, perhaps causing one of those wheels to spin momentarily.

Mr Walker also accepted that the angle of the rear view mirrors on the truck was such that there was an area immediately behind the truck which he could not see from the driving seat.

Mr Walker was asked in re-examination about the noise of the hydraulic operation of the tipping mechanism. He explained that the engine needed to be running and indeed to be revved up to trigger the power takeoff which pumps oil into the cylinders which lift the tray. The engine itself is noisier than usual for this reason and the lifting mechanism in addition makes what he called a type of squealing noise. The noise would be louder to him with the windows down than up, but either way it would be difficult for him to hear anything else.

He also explained that it was in practical terms necessary for a truck driver delivering a load to rely on the directions of a person on site to reverse the truck into position. It would not be practical for the driver to get out and go to the back of the truck a number of times during the process to ensure the truck was in the correct unloading position.

The case for the second defendant

Counsel for the second defendant called the bricklayers’ labourer, Mr Penson. By the time of the hearing he had advanced to a position as materials manager for a building company. His recollection was that on 1 March 2001 the bricklaying subcontract for the building that they were working on at the airport was coming to an end. His duties included making sure that the bricklayers had the blocks and materials they needed. The area for the bricklayers was five or six metres to the left of the hoist. His starting time on the site was 6.30 am, with a twenty-minute break at 9.30 am and a half-hour lunchbreak at 12.30 pm.

Mr Penson recalled that he was at the bricklayers’ area when the truck turned up to deliver sand. He first saw the truck about thirty metres away. The driver stopped. Mr Penson signalled and pointed to where the sand was to go. He then moved the concrete mixer and cleared the space for the sand to be dropped. For most of the time while he was moving the mixer he had his back to the truck, but as the truck got close to the sand area he was watching and getting ready to signal to the driver when to stop. He stood where he wanted the truck to stop, and when the truck came up to him, he signalled with his hand to the driver, through the external mirror on the driver’s side of the truck. He said that the truck stopped three to three and a half metres from the scaffolding. He watched the tray of the truck lifting and the sand falling through the tailgate. When the sand was out, he turned around to move the mixer into position. As he did so he heard the engine of the truck revving as though the truck was stuck and not moving. He said that the truck then went into reverse and “was like jerking forward and back a couple of times”. The tailgate was swinging. Mr Penson said that “then he leaped back into the sand and the tailgate swung up catching the scaffold”. Mr Penson yelled at the driver to stop but he drove forward pulling the scaffold forward.

This evidence was the subject of objection by counsel for the first defendant, for the reason that it had not been put to the truck driver, Mr Walker, in cross-examination. Faced with this objection, counsel for the second defendant said that he did not press that part of the answer which related to the scaffolding being hit during the process of the truck moving forwards and backwards (it was clear to me from Mr Walker’s evidence that if this aspect of Mr Penson’s version of events had been put to him, he would have denied it).

Mr Penson said that he was unable to attract the driver’s attention by shouting. He ran to a position near the driver’s door. He observed that the window was up. The driver looked down and saw him, stopped and opened the door. Mr Penson noticed that the radio was on and quite loud and that the heater was blaring. Mr Penson told the driver that he had hit the scaffold. They walked to the back of the truck, where Mr Penson could see a bent upright or standard of the scaffolding and part of the scaffold bay leaning off the wall. The damage was about two bays from the hoist, or about five metres. The site foreman was called over and the area was immediately tapped off.

Mr Penson revealed in cross-examination that the foreman for CTR Pacific, Dave Macgregor, had been in the area at the time of the incident also, closer to the hoist. Mr Macgregor came up to Mr Penson immediately after the incident. Later on the same day Mr Penson said that both he and Mr Macgregor made written statements at the request of one of the proprietors of CTR. His recollection was that he and Mr Macgregor had been called to give statements by the solicitors for the second defendant, and that they did so. It seems clear that Mr Penson’s statement is the one set out at paragraph 38 of these reasons. Mr Macgregor’s statement is not in evidence. It seems a reasonable inference that Mr Macgregor was the “Dave” who attended the site meeting on February 2001 for CTR, and was on the distribution list for the meeting on 1 March that year.

Mr Penson said that he had not seen his handwritten statement since the day of the accident. Counsel for the second defendant was unable to produce the earlier statement in response to a call.

Mr Penson did not remember any conversation with the truck driver when he first arrived, nor did he remember the truck driver having to wait for an excavator to get out of the way. He did not remember the truck driver getting out to unroll the cover of the loaded sand. His evidence was that there had been no cover, or at least that he had never seen it.

Mr Penson accepted that to his knowledge the truck driver would not have been able to see directly behind the truck, and that was the reason he needed to stand at the back of the truck to guide the driver in. He accepted that he was effectively the driver’s eyes at the back of the truck, and that it was his responsibility to guide the truck to a position where the drop could be undertaken safely and without incident. He agreed that he had been aware that in the course of the tipping procedure the momentum of the sand forced the tailgate back and up well beyond the vertical. He also accepted that it had been his responsibility to direct the truck into a position where there was sufficient safe clearance between the back of the truck and the scaffold. He considered that a distance of three to three and a half meters was a safe distance for that purpose. He would not have let the back of the truck get as close as two and a half metres from the scaffolding. Any closer would have been even more dangerous and would have given rise to a serious risk that the truck would come into contact with the scaffolding.

His attention was drawn to the fact the he had said in his 2003 statement that he had guided the truck to a position approximately one to one and a half metres from the scaffold. He said that this must have been a mistake, either his mistake or a mistake by someone else in taking down what he had said. He was asked whether the statement he was shown was the same statement as the one he had been sent by solicitors about four months earlier. Initially he said he thought it was, but on reconsideration he said that he thought it was not the same statement. He thought so because he was sure he would have picked up the mistake when he read the statement four months earlier (there was no suggestion that any other statment was in existence other than the handwritten one on the day of the accident). He ultimately accepted that it might have been the same statement but said that he had not read it correctly or perhaps had not read it at all.

He said that if he had permitted the truck to reverse into a position where it was only a metre and a half from the scaffolding, there were other people around including his foreman Mr Macgregor who would have intervened. It was put to him that one of the renderers (Brendan Jones) had said something to him about the truck being too close to the scaffolding. Mr Penson denied that any such conversation had taken place.

Mr Penson knew who the plaintiff was, and knew he had a son working on the site, who he said “the labourers used to bag . . . out all the time”. He denied that the plaintiff’s son had said anything to him about the truck being too close to the scaffold.

Cross-examined about differences between his 2003 statement and his evidence in chief, he conceded that his memory of the events would have been much better in 2003 and that what he had told the investigator was more likely to be accurate.

Mr Penson said that at the time of the incident he was an experienced bricklayers’ labourer and had overseen many, perhaps hundreds, of deliveries of sand to building sites. He had performed that function in the past without any incident.

In cross-examination by counsel for the third defendant, Mr Penson said that Mr Greg White arrived at the scene of the contact between the truck and the scaffold within about five minutes. It was pretty soon after his arrival that he issued an instruction that workers were not to go onto the scaffold. Mr Penson said that at about the same time he heard Mr White arrange for webbing to be put on the access points to the scaffold. Within ten minutes of Mr White giving those directions and making those arrangements, Mr Penson observed workers placing webbing around the access points.

Mr Penson was quite clear that there had been no contact between the truck and the scaffolding around the hoist. The point of contact was some distance away from the hoist.

He agreed that he had not included any estimates of time in his 2003 statement. He could not remember if he had been asked, prior to his cross-examination by counsel for the third defendant, how long it had been after the impact before Mr White arrived on the scene. He agreed that his estimate of five minutes might well have been “a bit out” but was sure that it could not have been as long as half an hour. At the same time, he was clear that by the time Mr White gave his instruction for no one to go on the scaffold, the renderers had come down and there was no one on the scaffold.

He said that he did not see or hear anything of the plaintiff’s fall until well after the event, until after he had made his statement to a woman from CPR Pacific who had driven from Queanbeyan after being informed of the impact between the truck and the scaffolding.

The other parties

No oral evidence was adduced by the third defendant or the third party.

There was no suggestion that Mr White was unavailable to give evidence, and I cannot avoid the conclusion that counsel for the third defendant made a forensic decision not to call him. Counsel for the third defendant had put propositions to witnesses called for the plaintiff and the first two defendants, in relation to which Mr White might have been expected to give evidence inconsistent with portions of the evidence of those witnesses. I draw the available inference that if Mr White had been called, his evidence would not have assisted the third defendant’s case.

Mr Penson identified Mr Macgregor as a potential witness. Mr Macgregor was not called in the case for the second defendant. There was no explanation for this, although it may be that those representing the second defendant were unaware of any direct involvement by Mr Macgregor until Mr Penson mentioned him in cross-examination. It is far from clear from Mr Penson’s evidence that Mr Macgregor was an eyewitness to the impact between the truck and the scaffolding. The inference that his evidence would not have assisted the second defendant’s case is a neutral one, and will not assist me in determining the plaintiff’s case against the second defendant.

The plaintiff in cross-examination named three other men who he thought had been at the site on the day of his injury. None of their names are mentioned in contemporaneous documents or elsewhere in the evidence. Counsel for the third defendant submitted in his closing address that I should draw an adverse inference from the fact that none was called to give evidence, nor was there any explanation for the failure to call them.

In the absence of any reference to the taking of a statement from any of them, or even to their names, elsewhere in the evidence, I infer that none of them made contemporaneous statements or statements at all, for the purpose of the present litigation or for any other purpose. Until the trial no need for their support as witnesses is likely to have been apparent to those advising the plaintiff. By then the plaintiff’s company was no longer operating the rendering business. If any of those former employees could still be located it seems to me highly unlikely that their memories of the events of the day would have been reliable as to matters of detail on timing. I decline to draw any inference from their absence as witnesses.

Applicable legislation

The standard of care for negligence was governed by the common law until the enactment of s 42 of the Civil Law (Wrongs) Act 2002, which is in the following terms:

Standard of care
For deciding whether a person (the defendant ) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

Section 43 of the same Act provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, a risk of which the person knew or ought to have known); the risk was not insignificant; and in the circumstances, a reasonable person in that position would have taken those precautions.

In deciding whether a reasonable person would have taken precautions, the court is required to consider, inter alia, the probability that the harm would have happened if the precautions had not been taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk; and the social utility of the activity creating the risk.

Section 44 provides that the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and that the subsequent taking of action which would have avoided a risk of harm does not give rise to or affect liability in relation to a risk, or may be taken as an admission of liability.

These provisions, if applicable, will be of particular relevance in considering the plaintiff’s claim against the third defendant. The plaintiff asserts that the third defendant should have had barriers in place to stop a truck getting too close to the scaffolding (such barriers were installed after the incident) and should have prevented access by workers to the scaffolding immediately on becoming aware of the incident.

As to causation, s 45 of the Act provides as follows:

General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation');
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability ).

(2)However, if a person (the plaintiff ) has been negligently exposed to a similar risk of harm by a number of different people (the defendants ) and it is not possible to assign responsibility for causing the harm to any 1 or more of them—
(a)the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b)the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.

(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.

Section 46 provides that the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

There is an issue between the parties, in particular between the plaintiff and the third defendant, as to whether chapter 4 (negligence) of the Civil Law (Wrongs) Act is applicable to the present proceedings. That chapter comprises ss 42-48. The chapter commenced with effect from 9 September 2003, well after the incident in which the plaintiff was injured. With effect from that same date, s 150A of the Act was inserted. That section provided that specified provisions of the Act did not apply to a claim based on a cause of action that arose before the commencement of the provision, including the present chapter 4. The section was expressed to expire three years from its commencement, but the operative subsection was declared to be a law to which s 88 of the Legislation Act 2001 applied. Section 88 provides that the continuing operation of a transitional law is not affected only because the law is repealed. Further, where a subsection declares that s 88 applies to the section, neither the effect of the section nor the effect of the declaring subsection ends only because of its repeal.

Repeal is defined in section 82 of the Legislation Act to include “expire”.

I had occasion to consider provisions of the same Act, and the impact of s 88 of the Legislation Act upon them, in Rangott v Leaseplan Australia Limited [2008] ACT SC 98. Connolly J had considered the same issue in Seip v Riley [2005] ACT SC 68. Consistently with those decisions, s 150A must be construed as having continuing operation notwithstanding its expiry, so that the present chapter 4 (negligence) continues to have no application to a cause of action that arose before the commencement of the provision.

Regardless of the date of commencement of proceedings, the plaintiff’s cause of action against each of the three defendants must be regarded as having arisen on the date of his injury, 1 March 2001, a date before the commencement of operation of chapter 4 of the Civil Law (Wrongs) Act. Hence the provisions of that Act do not govern the determination of the issues which arise in the present action, which must be determined pursuant to the pre-existing general law. I am not sure this will make much practical difference.

By virtue of the Scaffolding and Lifts Act 1957, the regulations under the Scaffolding and Lifts Act 1912–1948 (NSW), as in force in 1950 but with some local modifications, apply in the Australian Capital Territory. The regulations include extremely detailed provisions about the design, construction, erection and use of scaffolding. Regulation 86 (12) provides that any scaffolding that has been damaged or weakened by any cause shall be immediately repaired and workmen shall not be permitted on such scaffolding, except for the purpose of effecting repairs, until all repairs have been completed.

The plaintiff relies in his claim against the third defendant on portions of reg 73, as to safeguards and measures to be taken for measures ensuring the safety of persons engaged in building work, which I set out:

SCAFFOLDING AND LIFTS REGULATION 1950 - REG 73

(1)Any person who directly or by his or her servants or agents (including every independent contractor from time to time engaged in that work) carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in the building work and for this purpose, without limiting the generality of the foregoing, the person shall—
(a)provide suitable and safe scaffolding, which shall conform to the requirements of this regulation, for all work that cannot be done safely by a person standing on permanent or solid construction . . . ;
(b)provide and maintain safe means of access to every place where any person has to work at any time;
(c)provide means by fencing or otherwise for securing the safety of any person working at a place from which the person would be liable to fall a distance of more than 6 feet;
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(r ) take all practicable precautions by the use of adequate temporary guys, stays, supports and fixings or otherwise to prevent danger to any person through the collapse of any part of a building or structure during any temporary state of weakness or instability of the building or structure or part before the building or structure is completed;
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

In addition to the plaintiff’s claim against the third defendant in negligence, the plaintiff pleads a cause of action in breach of statutory duty, based upon breach of the quoted provisions of the Regulations.

Assessment of the credibility of the witnesses

The view I formed was that all of the witnesses who gave oral evidence at the hearing were doing their best to give their evidence truthfully. I must take account of the fact however, that the events which they were asked to recall had happened between eight and ten years earlier. In such circumstances it is helpful to the tribunal of fact to have access to contemporaneous statements, or at least statements taken a number of years before the hearing and much closer to the events, assuming that the statements represented a genuine attempt by those making them to recount their versions of the events truthfully and honestly (and I have no basis for doubting that all did their best in this regard). The statements immediately after the events are likely to be more accurate than those made two or three years earlier. By the time the witnesses are asked to recall these events at trial, so many years later, it is to be expected that their memories to some extent will have faded and that their versions of events will be less reliable.

With that general caution, I came to the view at the time I heard the evidence that the plaintiff was generally a reasonably reliable historian. I was also favourably impressed with the evidence of the truck driver, Mr Walker. I was influenced in coming to that opinion both by their demeanour in the witness box and by the consistency of their oral evidence with their earlier statements.

I thought that Mr Stuckey was doing his best, but was not sure that his recollection was quite as good as that of the plaintiff or Mr Walker.

The plaintiff’s son, Mr Brendan Jones, frankly conceded that he had been through difficult times mentally and emotionally over the years, and I was a little less impressed with the accuracy of his recollection. There were specific matters where he recalled things differently to all other witnesses, for example whether the scaffolding was equipped with stairs or with ladders. Where his evidence is inconsistent with that of his father and of Mr Walker, I prefer their evidence.

Mr Penson’s evidence I found generally less reliable. I would not place a great deal of weight on his memory of times or distances. I do not intend in saying this to be critical of him. I have no reason to suppose that he did not do his best to remember events as they happened, although on one or two issues I had a general feeling that he might have, perhaps subconsciously, tailored his evidence to deflect criticism of his actions on the day. It is enough to say that where Mr Penson’s evidence was inconsistent with that of the other witnesses, particularly the plaintiff and Mr Walker, I would have less confidence in its accuracy. Having said that, there were some matters which Mr Penson recalled which I think were probably accurate. His credibility was the subject of attack by counsel for parties other than the second defendant in closing addresses, but there was no suggestion that he was doing other than his best to remember the events. I am reasonably satisfied that he took his oath seriously and did his best to answer the questions honestly and truthfully.

The events took place on what was simply one of many days on a busy and noisy building site. Even after the contact between the truck and the scaffolding, there was no reason for most of those involved to think that anything particularly serious or memorable had happened, and this remained the case until the plaintiff’s fall. It is then hardly surprising that no particular notes were made of the precise times when events happened or of precise positions or measurements in relation to those events.

Factual findings

The handwritten statement made by Mr Walker, the truck driver, was made quite soon after the incident and I accept it as a generally accurate account of what happened from his perspective.

Mr Penson’s statement that is in evidence was not made until April 2003, two years after the incident, and does not merit the same acceptance as to precision in timing or distance. However, it seems to me that his estimate in his statement that the back of the truck was one to one and a half metres from the scaffolding when the unloading commenced is probably reasonably accurate. The incident is explicable only if the rear of the truck was very close to the scaffolding. I am satisfied that the truck stopped in a position with its tailgate approximately parallel to the scaffolding and close enough to it for the tailgate to become caught in the scaffolding when pushed back by the weight of the falling sand. I am satisfied that Mr Penson directed the truck to stop in a position where it was too close to the scaffolding and that Mr Walker reversed the truck to a position where it was too close to the scaffolding.

Whilst Mr Walker’s evidence may have confused elements of recollection of his usual practice with his recollection of the events of the day, what happened is consistent with the tailgate having been pushed backwards by the sand, so that the lug on the driver side bottom corner of the tailgate was pushed past one of the upright posts of the scaffolding and got caught behind it. It is entirely feasible that the lug catching on the pole caused some jolting or shuddering of the scaffolding which was capable of being felt by those at a higher level on it, but which might not have been detected by the truck driver or noticed by Mr Penson, having regard to the noise of the truck engine and lifting mechanism, as well as the other general noise on a busy building site.

It then seems likely that Mr Walker adopted his usual practice of accelerating from a stationary position forward for a short distance with a view to braking sharply so as to cause the tailgate to swing forward against the bin and tray of the truck, helping to dislodge any remaining sand. It seems to me more probable than not that this is what happened: in his attempt to move sharply forward, the tailgate caught on the scaffold post, pulled forward and bent or pulled it out of shape, and when Mr Walker realised something was wrong, that he braked and stopped to check the tailgate. The pulling of the tailgate against the scaffold upright would be consistent with workers on upper levels of the scaffold feeling another shudder or jolt, which would be likely to have been more substantial than the first jolt.

The evidence is reasonably clear that Mr Walker was able to extricate the tailgate from the scaffolding by removing a pin and allowing the tailgate to swing on its lateral hinge on the rear nearside of the bin and tray.

None of the earlier statements by those who gave evidence at the trial focused on the time when this happened. It became important at trial but was probably not seen as important when the statements were taken. The earliest contemporaneous documentation which gives a time was the material produced by ACT WorkCover. Mr Carey of the third defendant, Construction Control, signed the injury and dangerous occurrence report form and a typed, more detailed report of the incident. Both were dated 7 March 2001, less than a week after the incident. The typed report gave the time of the incident as 1.15 pm and the occurrence report form as 1.30 pm.

The plaintiff completed his employee compensation claim form the day after the accident. He gave the time of the injury as 2.45 pm, and the time of reporting it to the site office as 3.15 pm. He gave the impression in the form that his fall had happened not long after the impact between the truck and the scaffolding. He expanded on this in his statement of February 2003, saying that it was at least an hour to an hour and a half between the impact and his fall. The documents signed by Mr Carey on behalf of the third defendant for WorkCover purposes were based, I infer, on information provided to him by Mr White. I infer from this that it was Mr White’s recollection, within a few days of the incident, that the impact with the truck had happened at 1.15 or 1.30 pm. If this were not correct I would have expected Mr White or Mr Carey or both to have been called to explain how those times came to be recorded in the documentation.

I place less weight on the oral evidence of the various witnesses so many years after the event as to times, but as I have said I thought that they were generally doing their best to remember the details and give accurate evidence.

It was led from the plaintiff that the first jolt happened at about lunchtime. His evidence was that the second jolt happened a few minutes later, and that he first spoke to Mr White about the matter half an hour to three-quarters of an hour later, because of his concern about whether the hoist was working.

His next conversation with Mr White had been, he thought, about 3.00 pm, shortly before knock-off time. It was during that second conversation, he said, that Mr White directed him to get his men off the scaffold.

In cross-examination, he estimated that about two hours had elapsed between the impact and his fall. He recalled seeing the delivery truck while he and his men were having their lunch.

Mr Stuckey’s recollection was that the jolt happened after lunch, but he could not recall the precise time. His recollection was that the plaintiff passed on to him a direction to get off the scaffold at about fifteen minutes to thirty minutes before knock-off time. He agreed in cross-examination that he saw the tape placed on the scaffold by Mr White less than an hour after the jolts. He also accepted the proposition that the plaintiff told him that the scaffold was unsafe about fifteen or twenty minutes after the second jolt. He subsequently reverted to his estimate of three-quarters of an hour to an hour after the jolts.

The plaintiff’s son Brendan Jones gave evidence that the truck arrived to deliver the sand soon after 1.00 pm, while the bricklayers were at lunch. He did not immediately observe any damage to the scaffolding, but after working for twenty minutes or so after the impact between the truck and the scaffolding he discovered that the hoist was not working. He spoke to his father, who then found Mr White and spoke to him about it at his office. Brendan Jones then went back to work. After some little time Mr White returned to the site and said that he had contacted the scaffolders who were coming out to look at the hoist. Some time later Brendan Jones saw scaffolders examining the hoist. Some time after that he was present at a further discussion between Mr White and his father, when he heard Mr White say that they were going to have to get the men off the scaffold. His recollection was that this conversation took place between 2.30 pm and 3.00 pm, 3.00 pm being the normal knock-off time.

It was put to Brendan Jones in cross-examination that his oral evidence was inconsistent as to timing with the statement he had made in January 2005, set out at paragraph 35. That statement does not include timings and I am not at all sure that there is any real inconsistency.

Mr Walker did not mention the time of any of the events of the day of the incident in his written statements, and he was not asked about times in his oral evidence.

Mr Penson said in his statement of April 2003 that the delivery of sand took place at about 2.30 pm on the day. In cross-examination by counsel for the third defendant, he said that Mr White was on the scene of the incident within five minutes, and immediately arranged for the scaffolding to be taped off, at the same time directing that workers leave the scaffold. Within ten minutes of that direction he saw workmen putting tape on the scaffolding. In cross-examination by senior counsel for the third party, he denied that it could have been as long as half an hour before Mr White came to look at the damage. His evidence at that point was that at the time he heard Mr White direct that workmen were not to go onto the scaffolding there was no one on the scaffold. Further cross-examined by senior counsel for the plaintiff, he agreed that the sand delivery had taken place just after lunch, at something like 1.00 pm or 1.30 pm. He had not made any record of times on the day or since and was relying entirely on his memory.

It seems to me that the best evidence of the time of the incident involving the truck and the scaffolding is to be found in the form and statement signed by Mr Carey of Construction Control for the WorkCover authority, less than a week after the incident. I am satisfied that the incident happened at about 1.15 or 1.30 pm on 1 March 2001.

On the whole of the evidence I think it more probable that the sequence of events was that Mr White came on the scene within a short time of the incident and saw the damage to the vertical standard. At that time I think it likely that no one considered the possibility that the damage to the scaffolding might be any more extensive. It seems likely that this did not come into anyone’s mind until, some twenty minutes or so later, it was realised that the hoist was no longer working. The plaintiff saw this as significant because the hoist would be needed the following day. He got Mr White back and told him that the hoist was not working. Although there is no specific evidence about it, I draw the inference that the working of the hoist was within the specialist expertise of the scaffolding sub-contractors, and outside the expertise of other trades on site. Mr White understandably called for the scaffolding contractors to attend the site to see what was wrong.

I think more probably than not that it occurred to Mr White that the fact that the hoist was not operating might have been connected with the incident involving the truck. However I do not think it occurred to Mr White or to the plaintiff or to anyone else that the impact might otherwise have compromised the integrity of the scaffolding, or the safety of the walkways.

It seems more likely than not that it was only after the scaffolders had inspected the scaffolding and reported to Mr White that the issue of the scaffolding generally came up. There is no evidence as to precisely what the scaffolders told Mr White. I think it unlikely that they told him that the scaffolding was in immediate danger of partial collapse. It is more likely that they told him that the scaffolding, or part of it, would have to be dismantled and re-erected, and that until then it should be treated as out of bounds. The evidence did not suggest any sense of urgency on anyone’s part as to ascertaining who was on the scaffolding and whether there was some way they could get down safely. There does not seem to have been any direction for those descending to keep a firm grip on handrails as they did so, in case of collapse of a walkway plank. Such a direction might conceivably have avoided the plaintiff’s injury, or at least greatly lessened its severity.

It seems likely that the directive from Mr White to workers not to go up the scaffolding, and for those on it to descend, was given at about 2.30 pm or 2.40 pm.

I accept the plaintiff’s evidence that he did not go through a tape barrier in ascending the scaffolding, and that there was no tape barrier there until he was on his way down just before his fall. I also accept his evidence that there was nothing about the scaffolding which gave any cause for concern that the walkway might be unsafe.

I think it likely that as the plaintiff stepped on one of the planks on his way down, that plank gave way and that he fell through to the ground. The only known eyewitness (apart from the plaintiff) to the fall was the plaintiff’s son Brendan, who turned round to see him hit the ground and saw two or three planks land on him. That portion of Brendan Jones’ evidence was not challenged and I accept it.

There is no evidence that there was any visible damage to the scaffolding apart from the bent or buckled upright post which had been pulled by the lug on the tailgate of the truck. It is possible that there was other damage detectable by a person with the expertise of the scaffolding subcontractors, but there is no evidence one way or the other about this. I find that there was no other damage to the scaffolding which was visible to a person in the position of the plaintiff or of Mr White.

The precise mechanism of the collapse of the plank or planks as the plaintiff stepped on it or them at the moment of his fall must remain unknown. It is possible that some damage was caused to that portion of the scaffold at the time of the first, or more likely, the second jolt. It is perhaps more likely that the physical forces involved caused some movement in the scaffolding, which became more pronounced as the afternoon wore on and as workers moved about on it.

Counsel for the third defendant submitted that in the absence of expert evidence it was not open to the court to find any causal connection between the incident involving the truck and the later collapse which caused the plaintiff’s fall. It was submitted that any connection between the two was a matter of conjecture only.

In my opinion the evidence in this case takes the causation issue well beyond conjecture. The evidence is that the scaffolding had been in place for some time (the project was nearing completion) and that workers had been working on it during the construction of the building without incident. An event occurred an hour or two prior to the plaintiff’s fall which caused some damage to the scaffolding. I can take judicial notice of the fact that scaffolding around a building under construction is comprised of joined metal components. It is a matter of common sense that an incident such as occurred between the truck and the scaffolding might cause movement of parts of the scaffolding, perhaps even some distance away from the point where the force causing the primary damage was applied.

I can further take judicial notice of the fact that properly erected scaffolding does not collapse for no apparent reason.

Here there is evidence of an event capable of explaining the collapse of a plank or planks. There is no evidence of any other possible cause. I am satisfied that more probably than not the forces applied by the tailgate of the truck to the scaffolding were the cause of the collapse of a plank or planks less than two hours later which was the direct cause of the plaintiff’s injuries.

Liability of the parties

The truck driver, Mr Walker, reversed his truck into a position where his tailgate was close enough to the scaffolding to become caught up with it. As the driver of the truck, he had a duty to keep a proper lookout and not to drive so close to obstacles as to come into contact with them where such contact might cause damage. Notwithstanding that Mr Penson was guiding Mr Walker into position, Mr Walker retained that duty personally. He committed a breach of it which caused damage to the scaffolding.

At the same time, Mr Penson must bear his share of the responsibility. It was his function to guide the truck driver into a safe tipping position. He was an experienced building worker, and was aware that the tipping process would force the tailgate of the truck back beyond the vertical. He guided the truck into a position where it was too close to the scaffolding. This resulted in damage to the scaffolding.

Mr Penson was employed by the second defendant and was at all times acting in the cause of his employment. The second defendant is vicariously liable for any damage caused by his negligence.

I accept that neither the plaintiff nor Mr Penson realised that the tailgate had struck the scaffolding on its way back and become caught against a pole. It was only when Mr Walker moved the truck forward under acceleration that he became aware of the restraining force. I accept that he did not immediately realise what was causing it. More probably than not it was this pulling forward of the pole which damaged the scaffolding, including the area of the walkway where the plaintiff later fell. Although that damage was somewhat more remote from the area of contact, it must be taken to be reasonably foreseeable that a negligent act which causes damage to scaffolding around a building at one point may cause more extensive damage, including damage by way of disruption of components of the scaffolding some distance away.

Accordingly I find both the first defendant and the second defendant negligent and liable to the plaintiff.

I am not satisfied that negligence on the part of the third defendant has been established by the evidence. Firstly, I am not satisfied that the third defendant can be held responsible for the fact that the truck was positioned too close to the scaffolding. The negligence in that regard is said to have been an omission rather than an act, the omission being the failure to put in place some kind of barrier which would have prevented delivery trucks from getting too close to the scaffolding. There is no evidence of any building industry practice in that regard. A barrier was put in place after the event. For claims in negligence to which pt 4 of the Civil Law (Wrongs) Act applies, such an action after the event is not of itself evidence of negligence, or an admission of liability. The position was the same under the general law. Whilst it was no doubt prudent for the barrier to be put in place just in case anything similar happened again, the situation must be looked at prospectively. Nothing like this had happened before at the site. The position of the third defendant in this regard is supported by Mr Walker’s evidence that he had been delivering loads of sand to building sites for many years without any such incident ever occurring, and Mr Penson’s evidence that he had supervised the delivery of loads of sand on hundreds of occasions at building sites without incident. I am not persuaded that the failure of the third defendant to have a barrier in place was negligent.

The plaintiff relies also on the failure of Mr White to act more quickly in closing off the scaffolding to workmen. However, when one examines his conduct on the afternoon in question, and looks at the events prospectively, that criticism seems to me unjustified. Mr White was informed of the impact between the truck and scaffolding promptly, and attended the scene to inspect the damage. He observed damage to one scaffolding post, but no other damage. I have already found that there was no other visible damage, at least to a person who was not an experienced scaffolder. At that time, I am satisfied that there was no reason for Mr White to have even contemplated closing the scaffolding off, or even immediately requiring the attendance of the scaffolding subcontractors.

The next information which came to his attention was that the hoist was no longer working. It was this which prompted him to call the scaffolding subcontractors in, though not because of any perception that the scaffolding itself was dangerous. His concern, and that of the plaintiff, was to have the hoist working by the following day. The mere fact that the hoist was not working was not, in my view, enough to put Mr White on notice that there might be any safety concern as to the scaffolding generally.

The scaffolding contractors came to the scene. They conducted an inspection. They advised Mr White to close the scaffolding to workmen, and told him that they would need to dismantle a portion of it and re-erect it. There is no evidence as to what portion they were referring to. It may have been merely the tower enclosing the hoist. There is no evidence before the court that the scaffolder detected any potential danger in the balance of the scaffolding, or in particular the walkway where the plaintiff subsequently fell.

When given this advice by the scaffolders, Mr White acted promptly in giving a directive that workmen were to leave the scaffolding and not use it until further notice. He arranged reasonably promptly for the access points to the scaffolding to be taped off. As I have said, there is no evidence that the advice he was given by the scaffolders carried with it any urgency or any concern that persons then on the scaffolding were at immediate risk or had to take any particular care in coming down.

Accordingly I am not persuaded that the negligence pleaded against the third defendant is made out.

Counsel for the third defendant submitted that in any event I could not be satisfied that the third defendant was the head contractor as pleaded, or had any particular function in relation to the building site which might expose it to liability. If it had been necessary, I would have been satisfied from the WorkCover material and from the minutes of the site meetings that the third defendant, whatever the contractual arrangements, exercised a general control over the building site. I am satisfied that it held itself out as having the authority to give general directives as to safety on site, and was accepted by the various subcontractors as having that authority. I am satisfied that Mr White held himself out as, and was accepted as, the safety officer for the site.

It is in the circumstances unnecessary for me to determine the issues between the third defendant and the third party. The third party was the plaintiff’s employer and was a separate legal entity from the plaintiff, but was a company of which the plaintiff was a director and the controlling mind.

It is also strictly unnecessary for me to consider whether or not the plaintiff was guilty of contributory negligence, that issue having been agreed between the plaintiff and each of the defendants. However, I was informed at the commencement of the hearing by senior counsel for the third party that his client was not a party to the agreement and did not regard itself as bound by the agreement. I should accordingly say that if it had been necessary to do so, I would have found that the plaintiff was not guilty of contributory negligence. It is apparent from my factual findings that he did not go on to the scaffolding past or under tape, and that he only went back up because he knew that employees of his company under his direction and control were still up on the scaffolding and were unaware of the direction to come down. There is no evidence of any means by which he or anyone else might have conveyed the directive to them, other than by climbing up to their level on the scaffolding and telling them.

The second defendant did not allege contributory negligence by the plaintiff. The negligence alleged by the first and third defendants by the plaintiff is not in my view made out on the evidence. The negligence asserted by the third defendant against the third party is not established.

Contribution between defendants

I have found both the first defendant and the second defendant negligent and responsible for the plaintiff’s injuries. Normally one might expect the driver of a motor vehicle, particularly a heavy truck, to be primarily responsible for a collision. The present circumstances are, however, a little different from the usual. This is not a case where the plaintiff was injured by direct contact with the truck. Further, the incident took place on a building site on private property, not on a public road, and in circumstances where the labourer guiding the truck driver into position was much more familiar with the building site than the driver, who could not recall whether he had been to that site previously. The truck driver was also in a position where he was entitled to place a considerable degree of reliance on the labourer directing him, although not to such an extent as to absolve him from personal responsibility to keep a proper lookout.

Additionally, this was not the usual case of a vehicle coming into collision with a structure or object whilst in motion. The collision, if that is the right word, did not happen until the truck was stationary, and involved only its swinging tailgate.

Taking all of those matters into account, I am unable to conclude that either the first defendant or the second defendant was responsible for the plaintiff’s injuries to a greater degree than the other. Both the first defendant and the second defendant are responsible in equal shares for the plaintiff’s damages.

Damages

Since preparing the foregoing reasons in draft form, I have opened the sealed envelope, and am now aware that it is agreed between the parties that in the event that the plaintiff succeeds, he is entitled to recover damages of $606,789.45 plus costs.

Conclusion

There will be judgment for the plaintiff for $606,789.45 against the first and second defendants.

Each of those defendants will have judgment against the other in the contribution proceedings for half of that sum, that is $303,394.72.

There will be judgment for the third defendant and for the third party.

Pursuant to the agreement between the plaintiff and the defendants, I order that the first and second defendants pay the plaintiff’s costs, with each to have contribution from the other as to half of the costs recoverable.

I shall hear the parties as to what other orders as to costs should be made.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 30 May 2012

Counsel for the plaintiff:  Mr RL Crowe SC
Solicitors for the plaintiff:  Capital Lawyers
Counsel for the first defendant:  Mr WM Fitzsimmons
Solicitors for the first defendant:                  Sparke Helmore
Counsel for the second defendant:                Mr DC Morgan

Solicitors for the second defendant:              Boyd House & Partners by their agents Ken Cush & Associates
Counsel for the third defendant:                   Mr MJ Windsor SC
Solicitors for the third defendant:                 Mallesons Stephen Jacques
Counsel for the third party:  Mr SG Campbell SC & Mr AR Muller
Solicitors for the third party:  Moray & Agnew

Date of hearing: 7, 8, 9, 10 December 2009, 23, 24 August 2010
Date of judgment: 31 May 2012

[2012] ACTSC 93

May 31, 2012