Lenz v Trustees of the Catholic Church

[2005] NSWCA 446

CITATION:	LENZ v TRUSTEES OF THE CATHOLIC CHURCH & ANOR [2005] NSWCA 446
HEARING DATE(S):	22 June 2005
JUDGMENT DATE:	15 December 2005
JUDGMENT OF:	Mason P at 1; Santow JA at 94; Basten JA at 95
DECISION:	Appeal upheld.

CATCHWORDS:	NEGLIGENCE – no breach of duty of care – adequate warning – CONSTRUCTION SAFETY – Construction Safety Regulations 73 and 74 – complex building project involving volunteers – volunteer roofer – fall from unfinished roof – absence of scaffolding – building work – construction work – carrying out construction work – directly or by servants and agents – active involvement – head contractor/sub-contractor – in charge of construction work – preliminary steps or ancillary work – obligation to provide safety equipment – contravention of Regulations – whether plaintiff was sole cause of his accident – whether breach materially contributed to injury. (D)
LEGISLATION CITED:	Construction Safety Act 1912 Construction Safety Regulations 1950 Interpretation Act 1987, s8(b) Occupational Health and Safety Act 2000 Roman Catholic Church Trust Property Act 1936 Scaffolding and Lifts Act 1912 Scaffolding and Lifts Regulations 1950
CASES CITED:	Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 Betts v Whittingslowe (1945) 71 CLR 637 Bhambra v Roet [2003] NSWCA 393 Castellan v Electric Power Transmission Pty Ltd (1966) 84 WN (NSW) 502 F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193 H C Buckman and Son Pty Ltd v Flanagan (1974) 133 CLR 422 Hetherington v Mirvac Pty Ltd [1999] NSWSC 443 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65; (2001) Aust Torts Reports 81-603 Multiplex Constructions (NSW) Pty Ltd v Lopez [2004] NSWCA 319 Todorovic v Moussa [2005] NSWCA 100 Zahner v Andreas Pty Ltd [2001] NSWCA 352
PARTIES:	Jurgen LENZ TRUSTEES OF THE CATHOLIC CHURCH Dennis KENNY
FILE NUMBER(S):	CA 40656/2004
COUNSEL:	Appellant: J Gormley SC/ M Spartalis Respondents: P Garling SC/ J Stewart
SOLICITORS:	Appellant: Coode & Corry, Penrith Respondents: Holman Webb, Sydney

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5308/03
LOWER COURT JUDICIAL OFFICER:	Balla J

CA 40656/04
DC 5308/03

MASON P
SANTOW JA
BASTEN JA

Thursday 15 December 2005

Jurgen LENZ v TRUSTEES OF THE CATHOLIC CHURCH & Anor

BACKGROUND

The plaintiff/appellant was a volunteer roofer recruited to assist with the construction of a church. He was injured when he fell from the roof of the partly constructed building. He sued the corporate trustee of the building, referred to as the Church, and Mr Kenny, a licensed builder on the site, alleging breach of duty of care and breach of Regulations 73 and 74 of the Construction Safety Regulations.

The primary judge held that neither defendant owed a duty of care analogous to an employer’s duty of care towards an employee. Rather the appellant was in a situation analogous to a private contractor, but where neither defendant played such a coordinating role as to generate a duty of care. The claims relating to the Regulations were also rejected. Her Honour held that responsibility to comply with the Regulations rested with the plaintiff.

In the Court of Appeal, the appellant challenged the conclusions on duty of care and submitted that the he did not receive an adequate warning about the danger posed by the unsupported batten. The appellant also challenged the primary judge’s decision relating to the Regulations.

HELD:

Per Mason P (Santow and Basten JJA agreeing) allowing the appeal:

1. Assuming that one or both of the defendants owed the plaintiff a duty of care in the circumstances, there was no breach of this duty, as the plaintiff received an adequate warning.

2. There is no exception to Regs 73 and 74 for a building project involving volunteer workers.

3. The trial judge’s finding that the plaintiff was the person carrying out the relevant construction work for the purposes of the reg 73 is rejected. In the circumstances, the act of climbing onto the roof to survey the site did not make the plaintiff the person carrying out the work in the relevant sense or the person in charge.

4. Each of the respondents was actively involved in the construction work, which attracted the obligations under reg 73. The Church was working both directly and through agents. Mr Kenny was the builder by appointment and reputation, as well as actually performing that function generally and at the time in question. However, Mr Kenny was not “the person in charge”, therefore reg 74(1) did not fall upon him.

5. It was clearly established on the evidence that the Regulations were breached. There was no scaffolding or any other protections specified in reg 74.

6. The plaintiff’s fall occurred while the construction was being carried out and while he was clearly a person within the scope of the protections of the two Regulations. The breach materially contributed to the injury suffered.

Discussion of case law relating to Regs 73 and 74.

ORDERS: Appeal upheld. Verdict and judgment in the District Court set aside.

CA 40656/04
DC 5308/03

MASON P
SANTOW JA
BASTEN JA

Thursday 15 December 2005

Jurgen LENZ v TRUSTEES OF THE CATHOLIC CHURCH & Anor

JUDGMENT

1 MASON P: The appellant/plaintiff was injured when he fell from a roof of a partly constructed church building at Wattle Flat on 21 November 1998. He claimed damages in the District Court for negligence and breach of statutory duty. The first defendant sued was the corporate trustee of the building (hereafter the “Church”). The second defendant, Mr Kenny, is a licensed builder who, according to the plaintiff, owed him a duty of care and (together with the Church) was subject to the relevant statutory duties.

2 A six day trial before Balla DCJ resulted in verdicts for the defendants.

The facts in outline

3 Wattle Flat is 40km from Bathurst and within the Roman Catholic Diocese of Bathurst. In 1997 Evans Shire Council granted building approval for the construction of a stone church to replace an existing church building.

4 Mr John Ireland, a retired school teacher, was appointed by the diocesan authorities to the position of Co-ordinator for the project. In this role, he embarked upon many tasks including making representations to the Evans Shire Council, fund-raising, calling for volunteers to help with building work, arranging for prisoners to work on site and general supervision of the entire project. Mr Ireland also rolled up his sleeves and performed labouring tasks as he was able. He also kept records, including a diary recording progress of the building work.

5 Mr Kenny was a very experienced licensed builder who had close associations with the community at Wattle Flat. A number of professional builders donated their services, but Mr Kenny assumed a prominent role at various stages. He was named as the builder in the building application to Evans Shire Council. He was referred to in this role by Mr Ireland and others involved in the planning and delivery of the project. An Accident Report prepared shortly after the plaintiff’s fall was signed:

John Ireland – Co-ordinator
Dennis Kenny – Builder.

6 The project differed in one significant respect from the ordinary. There were no written contracts, nor (it would seem) were there even oral contracts that defined the scope of any part of the work or assigned responsibility for its performance to a named person or body. The whole project was done by volunteers who donated their services as required and available. Work was usually done on weekends and, as indicated, it included work done by prisoners under supervision. Most if not all of the building materials were donated. If there were any commercial or contractual arrangements for particular jobs they were very much the exception and have no bearing on the issues in this appeal.

7 Work commenced sometime in 1998. There was a call for volunteers in the community and a number responded, including the plaintiff.

8 The plaintiff, who was born in 1956, was an experienced roofer. He ran his own roofing business from 1988 onwards. He was mainly involved in commercial roofing, but it is not suggested that his skills were inadequate for the task on which he embarked on the day in question.

9 The plaintiff was recruited to assist with roofing. He lived in the area, but was not a Catholic. On 20 November 1998 he was told that the roof was ready for cladding and he agreed to turn up the following day, a Saturday. He was generally familiar with the project, but had not had any prior involvement with it, nor had he previously inspected the site.

10 The church building has stone walls. It is oblong with a conventional pitched roof. Along the northern wall there is a covered but otherwise open verandah. The verandah roof slopes from the top of the northern wall where it was 3m high down to a height of 2.4m. The high point rests on the northern wall and the low point rests on a series of poles spaced a couple of metres apart. There is a beam running along the top of the poles that supports the load-bearing rafters leading from the northern wall.

11 Battens of 4 x 1 inch wood were attached at right angles to the rafters and Colorbond corrugated iron roofing material was screwed onto those battens.

12 I have been describing the finished building. The plaintiff arrived on site armed only with a cordless screwdriver. At that stage, most of the verandah had been completed as had parts of the main roof. It was not intended that the plaintiff would work alone. He was to be joined by “Crowie and the boys” (ie Mr Crow and two of his assistants) who had apparently done some of the roofing on the previous weekend.

13 The plaintiff spoke to Mr Kenny, who pointed out to him that the last rafter on the eastern end of the verandah was not yet in place. The stonework on the northern wall of the main building that was to support it had not been completed at the relevant point. A dispute in the evidence as to what was said about the rafter was resolved adversely to the plaintiff, but it will be necessary to return to the detail later in these reasons.

14 The Colorbond roof over the verandah had been laid, perhaps fixed, along the northern wall as far as the last rafter in place, ie the penultimate one according to the plans. As indicated, the easternmost rafter that was intended to run in a line from the final pole (which was in place) to the top of the wall was not yet laid. The battens were protruding out from under the Colorbond, bending slightly downwards as they awaited the final rafter to which they would be attached.

15 Elsewhere, on the main roof, cladding work remained to be done.

16 The plaintiff told Mr Ireland that he wished to go on the roof. Mr Ireland lent him his ladder for that purpose.

17 The plaintiff said in evidence that he had no recollection why he was on the roof (Black 12, 59-60). There was however no suggestion that he climbed up to view the surrounding countryside. Contemporaneous records and the cross-examination of the plaintiff indicate the probability that he went up to examine the roof preparatory to working on it (Black 60, Blue 10, CA Tr p44). He had little experience with timber-framed roofing (Black 60M).

18 No one saw the plaintiff fall and he had no memory of his fall. He could have slipped from a position on the main roof. He could have slipped and/or overbalanced over the unfenced edge where the existing verandah roof ended at the penultimate rafter. What is known is that he fell and, in doing so, snapped one of the protruding battens. It is possible, though it would have been careless on his part, that he placed his foot on this batten, which not unexpectedly gave way under his weight.

Issues at trial

19 The party I have compendiously described as “the Church” is a body corporate under the Roman Catholic Church Trust Property Act 1936. It is the owner and occupier of the land at Wattle Flat.

20 The Church was sued on the basis that it was carrying out building and construction work on its land. These allegations were denied. The plaintiff’s final submissions at trial (Black 329) showed that he endeavoured to establish the proposition in the following way:

(i) The church building was erected on Crown land that had been dedicated to the Catholic Church in 1863. As such, it formed church trust property that was vested in the body corporate pursuant to the 1936 Act.

(ii) A priest, Father Owen Gibbons, assumed an initiating role in procuring the requisite building approval on behalf of the corporate trustee.

(iii) Persons of authority within Bathurst Diocese arranged for an architect to approve plans.

(iv) Mr Ireland was appointed by Father Gibbons to coordinate the construction work (Black 224). He used the expression “Co-ordinator” in correspondence within the Church and in dealings with outsiders, including the Shire Council Building Planning Officer.

(v) Mr Ireland was a retired school teacher who had a long association with Wattle Flat and the Catholic Church there. He was not paid for his work. He kept a diary of the events taking place in the construction and he recorded the minutes of the committee that met from time to time. He used to ring the gaol to organise the attendance of prisoners on week-end detention who worked on the site on Saturdays. He described his role as follows (Black 200):
I made sure that there were enough volunteers coming the following Saturday and that there was equipment there, and material there also, so that they just didn’t come along to do nothing.

21 The Church was both owner and occupier of the land. In addition, it was in the position of a proprietor that, through its agents (principally Mr Ireland as co-ordinator), was arranging to have the building erected on its land. Unlike many building proprietors, the Church entered into no contract with a principal contractor (Black 304) or designated builder, nor did it yield up possession of its site.

22 Mr Kenny was sued as the second defendant on the basis, which was denied, that he was carrying out and/or in charge of the construction work, within the meaning of the Construction Safety Act 1912.

23 Mr Kenny represented and permitted himself to be represented as the builder, particularly in formal dealings with the Evans Shire Council such as the building application. He was not a member of the committee that oversaw construction, but he attended some committee meetings by invitation (Black 273). He was not the only licensed builder who worked as a volunteer, but he appears to have been regarded as the most qualified or experienced building professional.

24 Mr Ireland did not agree that Mr Kenny was “the leading builder” (Black 224), but he acknowledged that “he appeared to be the person to whom I referred to, to overcome a technical problem” (Black 225). As Mr Ireland pointed out, Mr Kenny “was a volunteer like the rest of us” (Black 216). He was not the only builder involved, nor were there any contractual arrangements that gave him (Kenny) authority as such in the project. As indicated, Mr Kenny was labelled “Builder” in the Accident Report. He is referred to as “the builder” in correspondence from the architect (Blue 288), reports by Mr Ireland (Blue 296) and minutes of the committee (Blue 297). A published history of the project written by Mr Ireland refers to Mr Kenny as “our building leader” (Blue 556).

25 Particular building tasks that were done by Mr Kenny or under his supervision included laying out the slab (Black 274), checking if there was material for the prisoners to use at the weekend or finding out what was needed (Black 276). He prepared a cost analysis of a proposed revised construction (Blue 301). The work diary shows him at the site on a regular basis, although only on about 20 per cent of the days recorded by Mr Ireland.

26 Mr Kenny denied that he gave directions to the trades as to how they were to carry out their work (Black 275). I read this as indicative of a willingness to let people expert in particular trades go about their business. It is inconceivable that he would have failed to bring his expertise and experience into play from time to time. One example of this role is the discussion that Mr Kenny had with the plaintiff on the day of the accident (see below), a conversation that discloses that he examined the state of the roof and reported its condition to the plaintiff as he came on site.

27 Mr Kenny had no formal authority on site (Black 275-6), a product of the absence of contractual arrangements and the presence of Mr Ireland as the designated, hands-on coordinator. He agreed that he “resolved some problems … because I had the experience”, but he added “I wasn’t ever appointed as the builder for that church, ever by the church” (Black 305).

The claims in negligence

28 The plaintiff claimed that each defendant owed him a duty of care that had been breached. The particulars of negligence related to a safe place and system of work. They focused on failure to provide suitable equipment and scaffolding, failure to warn of the dangers of placing weight on the roof battens and, in the case of Mr Kenny, failure to prohibit the plaintiff from climbing onto the roof in the absence of proper scaffolding.

29 One difficulty for the plaintiff’s claim in negligence is uncertainty as to direct cause of the fall. The only eyewitness was the plaintiff and he had no recollection of how he came to crash to the ground. Undoubtedly he snapped a protruding unsupported batten slightly to the east of the last secure rafter. There was an unfenced sloping colourbond roof over the verandah at this point. He fell a distance in excess of 2.4m.

30 Senior counsel for the plaintiff conceded in this Court that it is not possible to know or even infer what was the cause of the fall. No one suggests that the plaintiff jumped. Senior counsel argued that it was unlikely that he would have been so foolish as to place his weight on the unsupported batten. Beyond this he might have slipped, lost balance, or even fallen from a position higher on the roof before crashing over at the point where the batten was snapped.

31 The plaintiff was an experienced roofer. He had operated his own business, a role that involved responsibility for work safety. The judge was satisfied that he was well aware of the danger of working at heights without safety equipment.

32 Her Honour held that neither defendant owed a duty of care analogous to that owed by an employer to an employee. Citing Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 at [53], she concluded that the plaintiff was in a situation analogous to that of an independent contractor, but in circumstances where neither defendant had a coordinating role that would have generated a duty of care in the circumstances.

33 This conclusion as to duty was challenged in the appeal. As presently advised, I have strong reservations about its correctness. Regarding the Church as occupier, the plaintiff appears to have been an invitee, to use a category from a former legal era. I shall proceed on the basis that one or both of the defendants did owe a duty of care in the circumstances.

34 I would not however reverse the finding that there was no breach of any common law duty of care.

35 The trial judge’s reasoning as to breach is undeveloped and in places unpersuasive and/or conclusory. It uses compendious terms referring to “reckless indifference”, “the obviousness of the danger” and the plaintiff’s own knowledge as to the danger of working at heights making him “the substantial cause of the accident and the author of his own misfortune”. The difficulties are compounded by her Honour’s debatable conclusion about duty of care.

36 No safety harness was offered to the plaintiff. It was held that the plaintiff could have left the site and collected one of his own safety harnesses, a finding that is challenged on the basis that his own equipment was over 100 kilometres away from the building site.

37 At the end of the day, senior counsel for the plaintiff stated that (in light of the uncertainty as to the mechanics of the fall) the claim in negligence would fail if this Court was satisfied that the plaintiff received an adequate warning about the danger posed by the unsupported batten (CA Tr pp28-9). The plaintiff does not seek a new trial.

38 I am satisfied that such warning was given.

39 It was quite apparent that the last rafter was not in place and that the battens which ran eastwards from the completed portion of the verandah roof were unsupported and dangerous to step on.

40 Mr Ireland agreed that he had not told the plaintiff that the rafter was missing. He said that it was obvious and that anyone with building knowledge would have seen it. I am inclined to agree. The matter is however put beyond doubt in that the trial judge accepted the evidence of Mr Kenny about a conversation he had when the plaintiff told him that he had come to do some work on the roof. “I told him that during the morning I looked at the frame, and it hadn’t been completed; and there was a rafter still to be placed on each side of the eastern end of the church – and that the battens had been placed and nailed down, but they had been left overhanging or cantilevering over the last rafter that was in place” (Black 277).

41 The plaintiff had an uncertain recall of this or any other conversation preceding his fall. The judge accepted Mr Kenny and it is not suggested that she erred in doing so. Her Honour was satisfied on the whole of the evidence that the plaintiff’s fall was caused by his stepping onto the area over the missing rafter.

42 In my view, Mr Kenny’s warning was adequate to discharge any duty of care in light of the concession as to how we should approach that issue in this Court.

Construction Safety Regulations

43 The plaintiff also alleged that both defendants were subject to and had breached Regulations 73 and 74 of the Construction Safety Regulations 1950. They relevantly provided:

73 Any person who directly or by his servants or agents carries out any construction 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 such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74, -
(1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations.
…
(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8m.
…
74 (1) Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold, the person in charge of the construction work shall provide -
(a) a safety belt and safety line or safety harness and safety line complying with the requirements of AS 1891 for the use of that person; or
(b) a safety net complying with the requirements of BS 3913,
while the work is being carried out.

44 The claims were rejected by the primary judge for the following reasons:

“ Regulation 73
The application of this regulation in relation to independent contractors was considered by the Court of Appeal in Kolodziejczyk v Grandview Pty Ltd (supra).
In that case the Court reviewed the circumstances in which the responsibility to comply with the regulation rests solely with the injured contractor. I am satisfied that all of the relevant indicators apply to the plaintiff in these proceedings.
In this case I have found that the plaintiff was on the site as part of a co-operative effort by volunteers. The defendants were not responsible for the co-ordination and supervision of a large number of tradesmen and were not acting as project managers. The plaintiff had not been directed “as to when, where and in what order the work was to be done”. The plaintiff was left to determine for himself the manner in which he did the work, the hours and days worked and the order in which he did the work (para 73).
This is not a case where the plaintiff had been directed by either of the defendants to work at an unsafe part of the premises.
I accept the submission made by counsel for the defendants that the obligation to comply with Regulation 73 rested solely on the person actually carrying out the building works which in this case was the plaintiff.
Regulation 74
The plaintiff claims that the defendants failed to provide a safety belt. It was the evidence of the plaintiff that he would have worn a safety belt if it had been provided.
The regulation applies to the person in charge of the construction work ie it will only apply to entities in the position of the defendants where “the head contractor is in overall charge in the sense of co-ordinating trades and making the site available”. (para 88 Kolodziejczyk v Grandview Pty Ltd (supra)).

I also take into account the obiter remarks of Davies AJA in Bhambra v Roet [2003] NSWCA 393 where he observed that “safety belts and safety harness, are matters which necessarily must be the responsibility of the contractor carrying out the particular work rather than the responsibility of the head contractor” (at para 58).
I accept the submission made by counsel for the defendants that the obligation to comply with regulation 74 rested solely on the plaintiff”.

45 Her Honour had the benefit of very detailed written submissions of counsel. It is possible that she intended to adopt some of the reasoning more fully stated in them, although this is nowhere indicated in terms. Regrettably, the disclosed reasoning is inadequate in its detail and elides critical concepts in the statutory provisions. There is no identification of the relevant construction work, no attempt to grapple with the language of the regulations, and no applied analysis of the body of evidence concerning the roles of the Church, Mr Ireland and Mr Kenny. The conclusion about the plaintiff being responsible for his own safety ignores the extensive body of caselaw about the function and scope of the regulations.

46 There has been a marked shift in the negligence jurisprudence of the High Court of Australia over the past decade. I imply no criticism. It is now widely recognised and, I trust, faithfully followed by courts and practitioners in this State. One consequence of this shift has been a dramatic re-emergence of claims based on statutory counts.

47 The Construction Safety Act 1912 was repealed by the Occupational Health and Safety Act 2000, with effect from 1 September 2001. The scheme of the 2000 Act differs in significant respects from the earlier regime with which the present case is involved.

48 The Scaffolding and Lifts Regulations 1950 were first promulgated pursuant to the Scaffolding and Lifts Act 1912. In 1978 that Act was renamed the Construction Safety Act 1912 and the Regulations renamed accordingly.

49 The leading cases in this Court on the latest form of the Regulations are Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264, Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65; (2001) Aust Torts Reports 81-603; Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; Bhambra v Roet [2003] NSWCA 393; Multiplex Constructions (NSW) Pty Ltd v Lopez [2004] NSWCA 319 and Todorovic v Moussa [2005] NSWCA 100.

50 The 1912 Act contained extended definitions of “building work” and “construction work”. The latter is defined to include “building work” and other types of work. The work on the church building at Wattle Flat was both “building work” and “construction work” within the Act and the Regulations.

51 Building (and therefore, relevantly, construction) work does not necessarily refer to the total work to be performed in a building. Each section of work performed (for example, painting, cleaning, sign-writing, dismantling or demolishing: see s3(1)(a) of the Act for the definition of “building work”) is regarded as building work so that the obligation to take specific safety measures in the sub-pars of reg 73 may be imposed on the person who is carrying out that particular work (H C Buckman and Son Pty Ltd v Flanagan (1974) 133 CLR 422 at 428).

52 In their latest form, regs 73 and 74 contain cross-references to each other. The Regulations have been amended over the years. Some amendments have altered the substance. Others have merely updated references to incorporated concepts and/or been concerned with textual tidiness. Regulation 74 was amended in 1987 in significant respects. The impact of those amendments generally, and specifically on the relationship between Regs 73 and 74, is considered by Santow AJA in Almeida at [120]-[127].

53 The evident purpose of the provisions has not changed since they were expounded in Buckman. For each regulation, the protection enures at least for the benefit of all persons engaged in the construction work calling forth the relevant duty (cf the tentative suggestion in F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193 at [27] as to a wider class of protected persons). Beyond this, it is necessary to identify the person or persons subject to the particular duty, and the scope of the particular duty, depending upon the sub-regulation(s) invoked.

54 Regulation 73 speaks to “any person who directly or by his servants or agents carries out any construction work”. Reg 74 addresses “the person in charge of the construction work”. The terms are not synonymous in expression or identical in application. Neither are they mutually exclusive.

55 Merely to establish that a person is the owner or occupier of a building site will not prove that he or she was also carrying out the construction work (cf reg 73) or in charge of the construction work (cf reg 74) (see Almeida at [143]).

56 Prior to its amendment in 1987, reg 74 contained the words “the contractor or” before “person in charge of the building work”. In 1987 the reference to “contractor” was removed and “construction work” substituted for “building work”. In Almeida, Santow AJA (with whom, in this regard, Priestley JA agreed (see at [8])) held that the removal of “contractor” did not have the effect of excluding the class of head contractors. Rather, the amendment was effected because “contractors” were already subsumed in the reference to “person in charge of the construction work” (see at [126]-[136]).

57 Regulation 73’s class of persons who “directly or by servants and agents carry out any construction work” is capable of embracing persons involved at different layers of responsibility or particularity of work. The reference to agency is expansive. Regulation 73 does not restrict itself to imposing an obligation on an employer as such, or limiting its safety measures to employees as such. “By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured”. (Buckman at 427-428 per Barwick CJ (McTiernan and Stephen JJ agreeing), Maggiotto at [16]-[17]).

58 It is, however, clearly established that reg 73 only places the obligation upon “the active person, that is the one who carries out the work in actual fact” (Davey v Skinner [1961] SR (NSW) 648 at 651; Buckman at 428; Maggiotto at [17], [24]; Multiplex at [56]-[61]. See also Hetherington v Mirvac Pty Ltd [1999] NSWSC 443).

59 It follows that reg 73 does not apply to a head contractor who has wholly delegated the task in question to a sub-contractor (Buckman at 428; Almeida at [117] (Santow AJA)). Independent contractors who themselves carry out the work they have contracted to do are not thereby the agents of the head contractor who thereby expose the head contractor to reg 73’s obligations with reference to the construction work they are performing (Buckman at 428; Almeida at [117]; Maggiotto at [16]).

60 But, as Heydon JA pointed out in Kolodziejczyk at [83] (Ipp AJA agreeing), it is important to remember that the opening words of reg 73 raise a factual question, not a normative question. Heydon JA illustrated this proposition by reference to the facts of that case (at [83]):

The question is not whether in all the circumstances the defendant should have closely examined the question whether the plaintiff was unable to diagnose and solve problems relating to dangerous cladding operations on steep roofs before effecting a full delegation of the cladding construction work and everything connected with it. The question is whether as a matter of fact the defendant effected that delegation. If the defendant had realised that the plaintiff was relevantly unable to work out safe solutions to obvious problems, that might be an evidentiary factor pointing against the likelihood of full delegation. But there is no evidence either of any relevant inability on the part of the plaintiff or of the defendant having perceived that that inability existed.

61 In some circumstances, a head contractor or building owner who has otherwise delegated the performance of particular construction work to a sub-contractor, may participate in that building work and thereby become one of the persons carrying out the construction work (Maggiotto at [24]-[25]). This was the basis for liability under reg 73 found against the head contractor in Maggiotto. Ipp AJA, with whom Meagher JA and Stein JA agreed, said at [38]:

Gordon [the sub-contractor] was instructed merely to do the carpentry work at unit 33 and to do so without there being stairs in place. He was not directed to do the specific work necessary to protect himself from the dangers and risks caused by the void. Nor was he supplied with scaffolding or other appropriate material. Additionally, the obligations of co-ordinating and supervising the work remained with Maggiotto, and these obligations had direct relevance to the safety of the work Gordon was instructed to perform. It follows that the performance of Maggiotto’s duties under Regulation 73 was not “wholly delegated” to Gordon. Maggiotto still had to do construction work in regard to unit 33. That work involved co-ordinating and supervising the activities to be performed by Gordon and others, and supplying the necessary materials to Gordon.

62 Similarly, a head contractor fell within reg 73 when it engaged in an activity so “intimately connected” with the construction activity (organising “dewatering”) as to constitute part of it (Multiplex); when an employee of the head contractor actually participated in the building activity in question (Buckman); and when the head contractor became involved in coordination and supervision of different trades on the site or the supply of building materials to sub-contractors (Maggiotto at [36]; Zahner v Andreas Pty Ltd [2001] NSWCA 352 at [33]-[34]; Todorovic at [26]-[27]; F & D Normoyle at [20]-[26]). See also Mason J’s reference to participation “by act or approval” in Buckman at 444. The line between delegation and continuing participation on the head contractor’s part may be a fine one on the facts (see for example how Maggiotto was distinguished in Kolodziejczyk at [73], [83]).

63 Furthermore, when a head contractor delegates a particular aspect of building work, circumstances may arise that require preliminary steps or ancillary work to be undertaken to ensure the safety of those who will be working on the delegated task. The task of doing the work necessary to complete the preliminary steps or ancillary work may not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. It is a question of fact in each case as to whether the sub-contractor has been instructed to perform the preliminary steps as well as the work the subject of the express instructions (Buckman at 446 (Jacobs J); Maggiotto at [26]-[29], Kolodziejczyk at [72]; Todorovic at [27]).

64 If no more can be said than that the building is for and at the expense of a person, then reg 73 does not impose obligations on that person (Castellan v Electric Power Transmission Pty Ltd (1966) 84 WN (NSW) 502 at 504). The activities of owner-builders who engage in rudimentary coordination of various trades or who occasionally act in the capacity of builder’s labourer are not generally sufficient to bring such persons within the ambit of reg 73 (Bhambra at [41]-[48]).

65 In contrast to reg 73, reg 74 is directed at “the person in charge of the construction work”. It is always necessary to identify the relevant construction work. However, a head contractor, with or without an interposed sub-contractor, is usually “the person in charge of the construction work”. This is borne out by the language of reg 74 and is consistent with the relatively passive obligation to “provide” items of safety equipment that forms the main content of the regulation.

66 The case law establishes that the “person in charge of construction work” includes the head contractor (without an interposed subcontractor) or the person with overall responsibility for the construction work, that person being the person responsible for the work to the proprietor, co-ordinating the various trades and making the site under its control available to those doing the work (Almeida at [130]-[131] per Santow AJA; Kolodziejczyk at [88] per Heydon JA). Because the head contractor remains responsible to the proprietor for the work done, it could not discharge that responsibility if not in overall charge of the work and the site (Almeida at [130] per Santow AJA).

67 The scope of the particular obligation depends on the language of the sub-paragraphs in the two regulations. It may be observed that those obligations that are expressed merely in terms of being to “provide” specified safety equipment do not impose a duty to enforce its use.

Application of the Regulations

68 There could be no suggestion that regs 73 and 74 are incapable of applying to a project such as the present. The provisions are not confined to “commercial” ventures and there is no exception for volunteer workers. I hasten to add that this was accepted by the respondents (CA Tr p77).

69 The issues that arise are:

(i) Whether either or both of the respondents were persons who directly or by servants or agents carried out any construction work (reg 73) and/or were persons “in charge of” (relevant) construction work (reg 74);

(ii) Whether the Regulations were contravened;

(iii) Whether the contravention(s) caused, in the sense of materially contributed to, the plaintiff’s injury.

70 As to (i) (application), the plaintiff submits that the judge erred in finding that he alone was the person upon whom any obligation fell under the two Regulations. I agree. The accident occurred on the first day that the plaintiff turned up, to assist as a volunteer, in a partly finished building project. The mere fact that he climbed onto the roof to survey the unfamiliar job site did not make him the person carrying out the construction work in the relevant sense or the person in charge, let alone solely responsible for his own safety. The plaintiff was not working as a sub-contractor, nor was he the only volunteer roofer.

71 A building task of this complexity required co-ordination, planning and general oversight. That was the appointed role of Mr Ireland, a role performed not for his own benefit but for the benefit of the Church. This was sufficient to make him the Church’s “agent” for the purpose of reg 73. The need for oversight, co-ordination and planning also explains why the finding that the plaintiff was the person carrying out the relevant construction work must be rejected.

72 The plaintiff submitted that each regulation applied to each respondent. This was so, whether one regarded the relevant construction work as erection of the whole building or the particular task of constructing the roof frame and laying the Colorbond on it. In the latter situation, the respondents were said to be in a situation analogous with that of Multiplex in the “de-watering” task discussed in Multiplex Constructions at [56]-[61].

73 In my opinion, each of the respondents was actively involved in the construction work in circumstances attracting the obligation of reg 73. The absence of contractual arrangements and of any person remotely approaching a head contractor meant that the Church was “directly” carrying out the construction work, particularly through the co-ordinating role of Mr Ireland. The Church was also working through “agents”, including the agency of Mr Ireland.

74 Mr Kenny was also a person carrying out the construction work, both directly and through agents, having regard to his role and functions summarised above. At the relevant time he was “the builder” by both implied appointment and reputation. But even more significantly, in light of reg 73, he was the person actually performing that function generally and on the day in question.

75 The submission of senior counsel for the first respondent drifted at times towards the proposition that, while there was construction work, there was no one carrying it out either directly or by servants or agents. Once such an untenable proposition is rejected, then the task of identification of the person or persons bound by reg 73 at the relevant time falls into clearer focus.

76 The first respondent submitted that it was not carrying out construction work (within reg 73) because its co-ordinator, Mr Ireland, was a volunteer. This submission must be rejected, because it fails to recognise the expansive effect of the words “directly or by his servants or agents”. The voluntary nature of the project as a whole provided no exemption from the Regulations. Mr Ireland may not have been a servant (in the eye of the law) but he was certainly an agent. Alternatively, the Church was carrying out the construction work “directly” given the absence of an arms-length contractor and the respective functions of the volunteer committee and co-ordinator each of whom were ultimately answerable to and replaceable by the clerical hierarchy in the parish and the diocese.

77 Undoubtedly, relevant construction work was being carried out on the day of the accident. It matters not whether it is viewed as the erection of the church or the installation of the roof. The roles of the key dramatis personae (ie Mr Ireland and Mr Kenny) were similar on either characterisation.

78 The respondents accepted in this Court that the plaintiff climbed onto the roof to survey the unfamiliar building site in preparation for working on it. This implicitly recognised that the fall occurred while “the work” was being carried out (cf reg 74).

79 Nevertheless, with reg 73(1) in view, the respondents contended that the plaintiff’s climb onto the roof was unnecessary given that the unfinished section at the eastern extremity of the verandah was visible from the ground. I find this unpersuasive, given that the higher portion of the sloping verandah was three metres above ground. In any event, the argument fails to meet the fact that there were substantial portions of the roof that were appropriate for inspection by the plaintiff. Most of the roof of the main building awaited the attachment of the Colorbond sheeting. Regulation 73(1) requires suitable and safe scaffolding to be provided “for all work which cannot be done safely by a person standing on permanent or solid construction” (emphasis added). An undifferentiated portion of the inspection work being performed by the plaintiff immediately before his accident required him, in the circumstances, to climb up onto the roof, thereby engaging reg 73(1).

80 Regulation 73(3) was also clearly engaged, given that the lowest portion of the verandah roof was 2.4m above ground.

81 The respondents submitted that reg 74(1) was not engaged because there was adequate hand hold or foot hold for the plaintiff. This was because the plaintiff was able to stand where he stood and do his work of inspection. The respondents relied upon the uncertainty as to the point from which the plaintiff fell. This submission must be rejected in light of the unchallenged evidence about the potential fall height, the steep pitch of the main roof, the slope and unprotected edge of the verandah roof and the nature of the surfaces of the unfinished roofing. See also Mr Trethewy’s report at Blue 243.

82 The situation was distinguishable from that of the home-owner in Bhambra, upon which some reliance was placed by the respondents (CA Tr pp53-55). Mr Bhambra was an unskilled landowner who introduced trades successively on the unfinished building project of renovating his house. There was no coordination of the work generally, let alone in relation to the particular activity (timber laying) in which an accident occurred (see at [42]-[47]). By contrast, Mr Ireland was actively involved as “co-ordinator”, organising the presence of tradesmen and equipment at this stage of the project.

83 The respondents had common representation at trial and on appeal. The submissions of Mr Garling SC contemplated that a possible outcome of the appeal might be that one but not both could be liable on the statutory counts. In particular, it was contended that Mr Kenny was not “the person in charge” within reg 74(1).

84 Regulation 74 does not require that there must be a single person in charge of the construction work (cf Interpretation Act 1987, s8(b)). On the other hand, one would not lightly infer that different persons at different layers of command were each “in charge”. Mr Kenny was not the only licensed builder involved at the site on the day in question. “Crowie” (ie Mr Wayne Crow) was a local builder (Black 7). The evidence summarised above satisfies me that Mr Kenny exercised a measure of supervision and control of the building work. This however, is not conclusive of the question whether he was the person in charge of the construction work within the scope of reg 74(1). The active control exercised by Mr Ireland (who was on site on the day of the accident) and the absence of contractual definition of Mr Kenny’s status in the project lead me to the conclusion that reg 74(1) did not fall upon Mr Kenny.

85 As to (ii) (breach of the Regulations), the plaintiff submitted that the primary judge had effectively found in his favour. I cannot agree. Her Honour did not address the matter, once having taken the (wrong) turning as to the Regulations imposing obligations only on the plaintiff.

86 Nevertheless, it was clearly established in the evidence that the Regulations were breached in various respects.

87 Sub-regulations 73(1) and (3) were breached given the absence of any scaffolding, fencing or other securing of the safety persons (like the plaintiff) working at a place from which they would be liable to fall a distance of more than 1.8 metres.

88 Turning to reg 74, there was undoubtedly a risk that a person engaged in construction work on the roof might fall because there was no adequate hand-hold or foot-hold. The unchallenged expert evidence disclosed that it would have been possible to have several measures, including perimeter free-standing scaffolding, a purpose-built scaffold or handrail or safety harness system (Blue 243-4). The plaintiff gave unchallenged evidence that he would have “used” any such protection had it been made available (Black 17-18).

89 There was simply no scaffolding on the outside of the party-completed church building. Nor were any of the other protections specified in reg 74 provided.

90 As to (iii) (causation), the plaintiff was lent a ladder by Mr Ireland so that he could climb up onto the roof. He commenced working on the roof, within the ambit of the concluding words of regs 73(3) and 74(1). He was therefore undoubtedly a person within the scope of protection of the two regulations.

91 The respondents submitted that the plaintiff was effectively the sole cause of his own accident. He was experienced, the unfinished nature of the verandah roof was obvious and it had been pointed out. It was also submitted that the plaintiff could have returned home to pick up his own safety harnesses (over 100 km away!) (Black 105).

92 These submissions must be rejected. The plaintiff is only required to prove a material contribution of the breach to the injury. A fall is the type of accident that one would expect to result from the breaches established in the present case (cf Betts v Whittingslowe (1945) 71 CLR 637 and 648-9). Nothing in the evidence suggests a reason for thinking otherwise. The proposition that the plaintiff should have gone home and got his own safety equipment repeats the unsatisfactory reasoning of the District Court and ignores the specific and positive duties imposed by the two regulations.

93 Accordingly, I would uphold the appeal, set aside the verdict and judgment in the District Court, enter a judgment in favour of the plaintiff for damages to be assessed. The respondents should pay the appellant’s costs in the Court of Appeal and have a certificate under the Suitors’ Fund Act 1951 if qualified.

94 SANTOW JA: I agree with Mason P.

95 BASTEN JA: I agree with Mason P.

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