Mackie v Central Coast Leagues Club Limited - [2010] NSWSC 960

No judgment structure available for this case.

CITATION: Mackie v Central Coast Leagues Club Limited [2010] NSWSC 960

HEARING DATE(S): 17, 18, 19, 20, 21, 24, 25, 26, 27, 28 May, 1, 2, 4, 7 June 2010

JUDGMENT DATE :
1 September 2010

JUDGMENT OF: Smart AJ

DECISION: Verdict for the defendant on all counts

CATCHWORDS: COMMON LAW - Plaintiff seriously injured when ladder of Club's Tallescope tilts and he is thrown head first onto thrust stage - Plaintiff former employee of defendant with much experience as light and sound operative in safely operating Tallescope while adjusting lighting on lighting bar immediately below ceiling of auditorium - engaged as independent contractor but envisaged by defendant that plaintiff would use Tallescope - probable cause of accident that locking mechanisms not secured before plaintiff climbed ladder - Tallescope contains warnings that before climbing the locks shoud be secured - ladder top-heavy because of attached workbox - no negligence by defendant nor breach of implied term of contract - statutory counts under former Factories, Shops and Industries Act 1962 and former Construction Safety Act 1912 and Regulations 1950 inapplicable.

LEGISLATION CITED: Construction Safety Act 1912
Construction Safety Regulations 1950
Factories, Shops and Industry Act 1962
Occupation Health and Safety Act 1983
Scaffolding and Lifts Act 1912

CATEGORY: Principal judgment

CASES CITED: Stevens v Brodribb Saw Milling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204

PARTIES: David Mackie (Plaintiff)
Central Coast Leagues Club Limited (Defendant)

FILE NUMBER(S): SC 2008/289206

COUNSEL: DT Kennedy SC/ R de Meyrick (Plaintiff)
J Sleight (Defendant)

SOLICITORS: CBD Law (Plaintiff)
Hunt & Hunt (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Smart AJ

Wednesday 1 September 2010

2008/289206 David Mackie v Central Coast Leagues Club Ltd

JUDGMENT

Index Paragraph nos:

Introduction
1 – 11

Pleadings

Negligence and Contract counts

12 – 21

Statutory and Regulatory counts

22 – 31

Background
32 – 38

Defendant’s order and the work
39 – 46

Use of Tallescope by plaintiff and others
47 - 50

Preparation of document as to Safe Work Practice (SWP)
51

Warning markings on Tallescope
52

Tallescope testing
53 – 56

Improvement Notices
57 - 61

Tallescope no longer in use
62

Evidence supporting statutory and regulatory counts
63

Operation of Tallescope
64 - 68

Extension of time application
69 – 82

Plaintiff and Mr Fogg and plaintiff’s credit
83 - 98

Storing and movement of Tallescope
99

Plaintiff’s use of Tallescope
100

Plaintiff’s evidence
101 – 116

Change in characteristics of Tallescope (alleged)
117 - 119

Lack of complaint
120

Independent contractor
121 - 125

Re-examination
126 - 128

Mr Russo
129 – 147

Inspector Sibilant of WorkCover
148 – 156

Mr Mitchell
157

Mr Fogg – Engineer
158 – 209

Mr Ng – TestSafe Australia
209 – 267

Dr Heathcote
268 – 304

Resolution of conflicting causes of accident
305 – 320

Contract and tort – independent contractors
321 – 328

Decision on negligence and contract counts
329

Factories Shops and Industries Act
330 – 338

Safety Construction Act and Regulations
339 – 347

Decision on statutory (or regulatory) counts
348

Introduction

1 By his Second Further Amended Statement of Claim (SFASOC) the plaintiff sued the defendant for damages when he sustained serious head and other injuries in an accident at the defendant’s premises at Gosford on 7 September 2000. The plaintiff had been engaged under a contract to perform duties as an audio and lighting contractor. This involved the erection and alteration of lighting on a lighting bar immediately below the ceiling of the Regency Room. About 4.15 pm the plaintiff was using an extendable ladder owned and supplied by the defendant, being a portable and adjustable scaffolding device known as a Tallescope Model 50512 (or 512), for the purpose of the erection and alteration of lighting above the thrust stage of the Regency Room when the ladder holding the plaintiff moved from a vertical towards a horizontal plane and the plaintiff was thrown head-first onto the thrust stage. That room was a large auditorium capable of seating about 1100 people in one format. It was being prepared for a Lions Club function, namely a fashion parade. The auditorium had a stage from which a thrust stage could emerge and be placed into position. Beyond the thrust stage was a catwalk. The parts of the catwalk were placed into position. The Tallescope consisted of three major parts; a base part, a ladder part, which could be swung from a horizontal position into a vertical plane and a workbox affixed to the upper end of the ladder. There was a pivot point which allowed the operator to swing the ladder from the horizontal position, being the position in which it was stored when not in use, to the vertical position. Below are representations of the Tallescope Model 512 in its horizontal and vertical positions.

2 This brief description was given in the engineering report of Mr David Ng on Tallescope Model No 50512 or 512, Product Name “Topdek”, manufacturer – Instant Scaffolds:

“Aluminium construction, single person work box, mounted at the top of an extending ladder which pivots about a scaffold base with 4 castors. Working height is adjustable from 3.1 m to 4.4 m with the ladder locked into its vertical position. Ladder can be rotated into its horizontal park position when being moved. Rated capacity 200lb (91 kg).”

3 The evidence in support of the plaintiff’s case included his past practice of always locking the two sets of hooks, one set being located on each side of the ladder and each set comprising a triangular steel hook and beside it a clamp. Both the hook and the clamp on each side of the ladder locked onto an anchor tube at the base of the Tallescope and, when in place, secured the ladder. The plaintiff alleged that in about 1993 the hooks and the clamps locked into place by gravity once the top-heavy ladder (with the workbox) was placed in the vertical position, but increasing force had to be applied over the years to ensure the clamps clicked into place. The plaintiff relied on the Tallescope not being properly maintained, but there was an issue whether the lack of maintenance caused or contributed to the accident.

4 The plaintiff also relied on the evidence of Mr Fogg, an experienced engineer, who prepared three reports and gave oral evidence. The plaintiff also called Inspector Sibilant of WorkCover who attended at the Club some five days after the accident and Mr C Mitchell. I have not overlooked the evidence of the plaintiff’s wife. That principally went to the difficulties he has experienced since the accident and to damages. She was not an important witness on liability.

5 Both Inspector Sibilant and Mr David Ng, an experienced engineer and the then Head of the Mechanical Unit of TestSafe Australia, the testing body for WorkCover, were interested in ascertaining if there was evidence of a possible breach of work and safety laws. They were trying to ascertain the cause of the accident.

6 The defendant relied on the detailed report and the oral evidence of Mr D Ng who supervised tests of the Tallescope on 22 September 2000 and the written report and oral evidence of Dr K Heathcote, an experienced and highly qualified engineer.

7 A considerable body of medical and related material was placed before the Court by the parties. I heard the oral evidence of Dr S Buckley and Associate Professor RF Jones. It is unnecessary to review it. The plaintiff was in the witness box for a lengthy period over a number of days. This gave me the opportunity to assess his evidence, his pre and post accident conditions, his recollection and his disabilities. It took considerable time for the full picture to emerge. Mr Mackie said that during the period from about 11:50 am to 1 pm on 25 May 2010 his concentration was affected for probably about 15 to 20 minutes (T 384).

8 In Mr Ng’s report this further description of the Tallescope, along with some observations, appears:

“Scaffold base

The scaffold base consists of a framework using standard 50 mm aluminium scaffold tubing and connections. It has four adjustable height legs, which are fitted with castors. Each castor has a braking arrangement operated by a lever, which moves the castor wheel against a catch, thus restraining the wheel from rotating. Two adjustable outrigger supports are mounted on the centre vertical tubes on each side of the base, with telescoping rubber-soled foot sections. A small platform is placed at one end of the lower tubes of the base to serve as a stepping off point when climbing the ladder.

The scaffold base appears to be in reasonable condition, with no apparent damage other than some depressions on a short horizontal tube, which may be due to movements against tie-downs during transportation. Two of the castors had tape and other loose debris caught up around axle. One of the wire frame brake catches was missing from a workbox side castor.

Extending ladder and work box

The ladder swivels at a position about 1400mm from its base, and the longer top end with the workbox is therefore heavier, with a tendency for it to fall forward if the latches are undone. The ladder is maintained in a horizontal position, when at rest and not in use, by means of an articulated Y-shaped tie from a rung fitted to the back of the stiles to a horizontal tube spanning across the vertical members of the scaffold base. This tube also serves as the anchor for the ladder when it is raised in the vertical position. Two sets of latches, mounted on the inside of stiles of the lower section of the ladder, are used to secure the ladder to the tube. The outermost hook–shaped set nearest the stiles, are made from 4 mm thick steel plate and have tapered leading sections which ride over the tube allowing the tube to enter the mouths of the hooks by gravity, thus latching the ladder. A second scaffold snap-hook type set, mounted adjacent to the first such that they are raised by the action of the first set, has self locking spring-loaded toggles which are shaped to grip the tube when locked in. The top section of the ladder slides inside the stiles of the lower section, and is raised by pulling on a hauling rope, one end of which was tied to the anchor tube. Latches mounted inside the stiles hang the upper ladder onto the rungs of the lower ladder when being extended. In the horizontal position, a hinged catch prevents the upper section from sliding forward when being transported.

The workbox has a 460 x 465 mm aluminium sheeting floor, with 25 mm diameter aluminium guard railing located 1080 mm above the floor level. The guard railing had suffered some old damage and temporary repairs were carried out using PVC adhesive tape. The front tube of the railing was observed to be partly flattened.

The straight section of the Y-piece strut connecting the ladder to the anchor tube was observed to be slightly bent.”

9 Immediately before the accident the ladder was in the vertical position. It is probable that the plaintiff climbed up the ladder. When he was in the workbox, or climbing into it, or about to climb into it, the ladder tilted or fell forward and the plaintiff was thrown headfirst onto the stage. The ladder fell towards the floor of the stage with the attached workbox ending up towards the floor of the stage on the underside of the level of the ladder. The plaintiff was taken to Gosford Hospital and then transferred to Royal North Shore Hospital. At first it was not realised how serious the head injuries were. That was discovered some years later.

10 The plaintiff had used the Tallescope on many occasions as an employee of the Club between 1993 and July (or possibly August) 1999 when he resigned from the defendant. Almost if not immediately he commenced to carry on business as a sound and lighting contractor under the name of Mackie Audio Visual and was frequently engaged by the Club. When so engaged he frequently used the Tallescope in connection with the work he was doing for the Club. He gave evidence of his practice (allegedly invariable) when he used the Tallescope. At one stage after about August 1999 his firm carried out work for the Club on a wider basis. That terminated in January 2000 (Exhibit 2).

11 The plaintiff remembered that on the day of the accident he went back stage to look for the Tallescope, it often being kept there when not in use, but he did not remember wheeling it out. His next recollection was waking up in hospital.

Pleadings

Negligence and Contract Counts

12 The plaintiff sued the defendant for damages for negligence alleging, inter alia, failure to maintain the equipment adequately, providing equipment for the plaintiff to use which was not safe for use by the plaintiff and failure to ensure that the plaintiff was properly instructed and trained in the use of the equipment provided by the defendant. He also relied on the failure of the defendant to clean or maintain the Tallescope adequately, or at all, including a failure to clean, lubricate and/or maintain the dual locking mechanisms in the Tallescope so that they properly and reliably locked into place. The plaintiff also alleged that the defendant failed to ensure that the Tallescope was properly and securely locked into the upright position before the plaintiff came to use it.

13 The plaintiff alleged that the defendant owed the plaintiff a contractual duty implied by operation of law to provide the plaintiff with a portable scaffold ladder that was as safe for use by the plaintiff as anyone could make it and had breached that duty.

14 The plaintiff relied on various alleged breaches of statutory and regulatory duties; first, under the Factories, Shops and Industry Act 1962 and, secondly, under the Construction Safety Act 1912 and Construction Safety Regulations 1950.

15 The defendant admitted the allegation in paragraph 1 of the SFASOC that it was the owner and occupier of the Central Coast Leagues Club premises at Gosford and the allegation in paragraph 2 of the SFASOC that the plaintiff was lawfully present upon such premises in the course of his engagement by it under a contract to perform duties as an audio and lighting contractor, which also involved the erection of lights on a lighting bar below the ceiling of the Regency Room and/ or the alteration of the focus of lighting on the lighting bar and which duties were being performed under the overall supervision and management of the defendant.

16 The defendant admitted the allegation in paragraph 3 of the SFASOC that, at about 4.15 pm, the plaintiff was using a ladder owned by and supplied by the defendant (being a portable and adjustable scaffolding device known as a Tallescope) for the purpose of carrying out the tasks referred to in paragraph 2 of the SFASOC above the stage in the Regency Room, save that no admission was made as to what the plaintiff was doing with the lights, if anything, immediately prior to the alleged injury. There was no serious dispute that the plaintiff was adjusting the lights on the lighting bar. The reservation arose out of the activities on which the plaintiff was engaged immediately before the ladder tilted and he was thrown to the stage. At that point he had probably climbed up the ladder and probably was in the workbox, or climbing into the workbox, or about to climb into it. His exact position cannot be established.

17 In paragraph 4 of the SFASOC it is alleged that the ladder failed causing the plaintiff to fall to the ground. Save that the defendant admitted that the plaintiff was found on the ground, it denied that the ladder failed as alleged. It was established on the evidence that the ladder probably tilted and that the plaintiff was thrown onto the (thrust) stage floor.

18 In paragraph 5 of the SFASOC it was alleged that, by reason of the defendant retaining the plaintiff under contract to perform duties at and about the premises it occupied, including the erection and/ or alteration of ceiling lights in the Regency Room, the defendant was at all material times under a duty to the plaintiff to take reasonable care for his safety by providing a safe place of work for him, proper and safe plant and equipment for carrying out its operations, a proper and safe system of conducting its operations and provide proper and efficient supervision. In paragraph 6 of the SFASOC the plaintiff alleged breach of the defendant’s duty in negligently failing to do so. In paragraph 7 of the SFASOC it was alleged that injury to the plaintiff was caused by the defendant’s negligence.

19 In paragraph 4 of its defence the defendant denied paragraphs 5, 6 and 7 of the SFASOC and the allegations that the defendant:

a) owed the plaintiff a duty of care in the circumstances. (The defendant averred that the plaintiff was an independent contractor upon whom fell the very duty alleged against the defendant); and

20 The defendant denied the many particulars of negligence alleged in paragraph 8 of the SFASOC and the allegation in paragraph 9 that, by reason of the negligence alleged, the plaintiff continued to suffer the loss and damage alleged. The defendant denied the allegation that it owed the plaintiff a contractual duty to provide the plaintiff with a portable scaffold ladder that was as safe for use by the plaintiff as anyone could make it and the allegation in paragraph 9B that the defendant breached its alleged contractual duty. The defendant alleged that the plaintiff was an independent and specialist contractor with extensive experience as a sound and lighting technician.

21 The nub of the dispute as to negligence and breach of contract revolved around the defendant supplying a Tallescope which appeared to be poorly maintained for use by the plaintiff, whether any of the alleged lack of maintenance and defects caused, or contributed to, the accident, whether the plaintiff secured the locking devices on the Tallescope before starting to climb the ladder on 7 September 2000, whether such devices were in a serviceable condition and the plaintiff’s responsibilities to check the Tallescope 512 as an independent contractor with extensive experience using the Tallescope as a former employee and then as an independent contractor.

Statutory and Regulatory Counts

22 The plaintiff contended that the defendant’s premises met the definition of a “Factory” within s 4(1) of the Factories Shops and Industries Act 1962. The plaintiff contended that the defendant was the occupier of the Club premises and that the premises were a building in which four or more persons were engaged in a “manufacturing process” and that the premises were a building in which mechanical power (which includes electrical power) was used in aid of a manufacturing process and that the defendant was engaged in a “manufacturing process”. The plaintiff also relied on ss 4(1)(a)(iv)(b) and 4(1)(a)(v) of the Act. He also contended that the premises constituted a bakehouse and thus a factory. The plaintiff further contended that, by reason of his work at the time of the accident within the defendant’s factory of which the defendant was the occupier, the defendant by itself, its servants or agents, owed the plaintiff the statutory duties set out in ss 34(d) and 40(1), and breached them. Section 34(d) required that in every factory the ladder provided be of sound construction and properly maintained. Section 40 states that, so far as is reasonably practicable, there shall be provided and maintained in every factory safe means of access to every place of work (paragraphs 13, 15(f) and 15(g) of SFASOC).

23 As to the claim under the Factories, Shops and Industries Act, the defendant contended that the Regency Room in which the plaintiff was working was a large auditorium and could not be classed as a factory or a bakehouse. The defendant further contended that s 34(d) of the Factories, Shops and Industries Act had been complied with in that the Tallescope 512 met the requirement that all ladders shall be of sound construction and properly maintained in relevant respects.

24 Section 40(1) of that Act requires “that there shall so far as reasonably practical be provided and maintained in every factory a safe means of access to every place at which a person has at any time to work”. The defendant doubted whether this could apply to maintenance because it is not a place of work in a factory. The defendant also contended that it had provided, so far as reasonably practicable, a safe means of access to the lights and was not in breach of any of its obligations under s 40(1).

25 The plaintiff contended that at the time of the accident he was performing and the defendant was engaged in “construction work” and “building work” within the meaning of the Construction Safety Act and Regulations 1950 (paragraph 14(a) of SFASOC). The plaintiff alleged that he was engaged on one or more of the following aspects of building work in relation to a building or structure and/or at or adjacent to the site thereof:

“… constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, sheathing, dismantling or demolishing.”

26 The plaintiff alleged that by reason of such work he was engaged in work whereby he was required to access a workplace from which he was potentially liable to fall a distance in excess of 1.8 metres and his position on the ladder at the time it failed was in excess of 1.8 metres from the floor level upon which that device stood. The plaintiff was provided by the defendant with the Tallescope for the purposes of performing his work under the contract. No other means of accessing the lights within the Regency Room was provided by the defendant or was otherwise available to the plaintiff.

27 The plaintiff alleged that the defendant was in breach of the following:

28 The defendant denied paragraphs 11 to 15 of the SFASOC. These alleged sundry breaches of the Factories Shops and Industries Act 1962, the Construction Safety Act 1912 and the Construction Safety Regulations 1950 as briefly summarised. The defendant contended that it was not engaged in “construction work” and “building work” within the meaning of the Construction Safety Act and Regulations and thus it was not bound to comply with any of the Regulations on which the plaintiff relied.

29 As to Regulation 73(1), the defendant contended that, if it was bound to comply with that regulation (which it disputed), it provided suitable and safe scaffolding, assuming it was operated correctly. Similarly, the defendant contended that it provided a safe means of access (Regulation 73(2)). As to Regulation 73(3), the defendant contended that it did provide fencing by means of the workbox. The defendant further contended that the failure to provide adequate fencing at the place of work did not cause the accident.

30 As to Regulation 74, the defendant additionally contended that it was not required to provide a safety belt, safety line, safety harness or safety net because there was no absence of any adequate handhold or foothold.

31 As to Regulation 75, the defendant contended additionally that, if the Tallescope was operated correctly, an adequate platform was provided.

Background

32 Mr Mackie left school in 1977 having obtained his school certificate in 1976. From 1978 to 1980 he was an apprentice electrician and undertook a course to qualify as an electrician at a Technical College. He did not complete that course or gain a qualification. He joined a band. Between 1982 and 1988 he worked as a sales clerk. From 1988 to 1991 he worked for Trafalgar Studios setting up and recording bands, engineering and reproducing the sounds. In 1993 he was employed by the defendant and did audio-visual work. He set up and operated the Club’s audio and lighting equipment in various rooms at the Club. He also maintained that equipment, namely PA systems and stage lighting systems. He worked in the auditorium on the first floor, the Regency Room, from 1993 for a variety of functions until he ceased employment with the Club in about July 1999. He worked in other rooms of the Club which accommodated smaller functions.

33 The plaintiff relied on a reference dated 25 October 1999 and signed on its behalf by Mr Colin Towson as the Facilities Manager. Mr Mackie was described as “trustworthy enthusiastic, reliable and professional in the execution of his duties as Sound and Light Technician“ at the Club. The reference continued that Mr Mackie:

“… has serviced and maintained the sound/audio and lighting equipment at the Club as well as performing duties as operator for many of the Club’s shows.”

34 The plaintiff’s evidence was difficult to assess. While he appreciated that portion of his brain had been damaged and he sought compensation, he did not realise the full effect and extent of the damage he had suffered. He over-estimated his ability to cope with giving evidence and to deal with sustained questioning. His memory was poor. He struggled hard to cope with the questions he was asked but not always successfully. He was not dissembling or being dishonest. He was functioning but partially. At times this was obvious but at other times it was not, due to the plaintiff’s desire to keep going so as not to waste the Court’s time and resources. Much of the time he endeavoured to, and partially succeeded in, creating a brave front.

35 He had a poor recollection of what took place in about May 2006 when he swore his affidavit of 15 May 2006 in support of an application to extend the time in which proceedings could be brought against the Club for damages. While he gave evidence of what he appreciated he had to disclose to the Court in such an application, the evidence he gave represented his present understanding. He left the drafting of his affidavit to his solicitor and adopted what was drafted without close examination. He was in no position to asses the contents of that lengthy affidavit and could not have done so realistically and advise of any mistakes or matters not sufficiently covered. I do not criticise the plaintiff’s solicitor as Mr Mackie tends unwittingly to be deceptive because he tends to overstate his level of understanding and what he can do. This is part of his attempt to cope and is not dishonest.

36 Mr Mackie also had a poor recollection of what took place at the meeting he had with Mr Fogg about 15 October 2006 and referred to in Mr Fogg’s report of 22 May 2007. Mr Mackie was not capable of responding to the invitation in Mr Fogg’s report to correct any mistakes in the report as to the facts. Mr Mackie did not regard it as his place to comment upon the engineering approach and contents of Mr Fogg’s report.

37 There appeared to be some confusion in Mr Mackie’s evidence in that he appeared, at T48 lines 10 – 14 and at T 385 lines 30 – 45, to be saying that the outer metal hooks next to the clamps had not been and could not be locked into place. In other instances he appeared to be saying that the outer metal hooks had been locked into place. Contrast T 47 lines 17 – 43, T 48 lines 4 – 14 and T 385 lines 30 – 45, inter alia. At T 90, when asked if there was more that one locking mechanism, he replied: “in the pairs, one piece was a locking mechanism, the other was a safety hook”. The larger piece was the locking mechanism (or clamp). At T 91 Mr Mackie demonstrated what he was intending to convey. Beside the clamp (or locking mechanism) was a metal hook. On occasions the phrase “locking mechanism” was used to include both the clamp and the safety hook.

38 Mr Ng’s report and evidence, especially that as to the test where one of the outer hooks grabbed hold of the anchor tube and was sufficient to hold the ladder in the vertical position, made the function of the outer metal hooks in grabbing hold of the anchor tube clearer. Mr Ng’s use of the English language, while reasonable, at times caused difficulties. It was not always possible to follow completely what he was saying.

Defendant’s order and the work

39 On 25 August 2000 the Club sent to Mackie Audio Visual, the firm of the plaintiff and his wife, the following order:

Quantity	Description
Light & Sound Operator for following:
5.30pm	Wed 6/9/2000	Youth Design Awards & (illegible) (Parade) (6.30 pm)
6 pm	Thurs 7/9/2000	LIONS CLUB GOWN OF THE YEAR (Parade) (illegible) at 8 pm”

(The copy tendered was hard to read.)

40 Mr Mackie said that for a fashion parade he had to adjust the stage lighting, light the catwalk correctly and set up the sound system (including the microphones). Additional lights were probably attached to the lighting bar. The lights on the lighting bar needed to be re-focussed. He operated the stage, catwalk and room lighting and the audio equipment from a console within the Regency Room. The power for the various lights was in the ceiling. The height from the stage to the ceiling was about six metres. The stage consisted of floorboards. There was no material on top of them.

41 Mr Mackie explained that on the Tallescope there were pairs of matching locking mechanisms on either side of the ladder. The locking mechanisms consisted of a large metal hook, beside which was a clamp which was spring-loaded. (This is further explained in Mr Ng’s report.) Mr Mackie said that when he first started at the Club and elevated the ladder into the vertical plane the ladder locked into position through force of gravity. It was not necessary to apply any force or pressure to the clamps. He said that over time when he elevated the ladder he pushed the clamps down and made sure that they were seated in, that is, locked onto the bottom rung of the base. He said that when you pushed the clamps in, i.e. onto the bottom rung, there was a clicking sound as they locked. Mr Mackie said at one point that the outer hook did not lock on the bar or tube. It just rested there (T 385 lines 30 – 45). I doubt if this is correct.

42 Mr Mackie said that as time went on it became increasingly difficult to get the ladder, when elevated, to click into place and he had to force the clamps on both sides of the ladder with his hands. The left side was more difficult. He noted that there was black gaff tape on the Tallescope. He did not put it there and it was not there when he was first employed by the Club. He noticed it sometime later. He had difficulty in pinpointing the time when he first noticed the tape. He thought it was probably a couple of years previously, but he was not sure.

43 Mr Mackie could not recall whether he used the Tallescope on 6 September but he thought it was “more than likely” that he did so to adjust the lighting. Mr Mackie said that he did not have the equipment to be able to get into a position to refocus the lights. From the time he ceased being an employee of the Club there was no objection to him using the Tallescope and various employees of the club saw him using the Tallescope. After Mr Mackie ceased being an employee of the Club he went to the Club on many occasions to carryout work for the Club. Mr Mackie explained that being a light and sound operator involved setting up for the event.

44 Mr Mackie’s usual practice when re-arranging the lighting was to wheel the Tallescope to the location he needed it in the horizontal position and, when he had the Tallescope in about the right location, to elevate the ladder with the attached workbox to the vertical plane and secure the ladder. When the Tallescope had been wheeled to the desired location, it was Mr Mackie’s practice to lock its wheels in place before using the ladder so the Tallescope could not move. Sometimes the Tallescope’s position needed a slight further adjustment before the wheels were finally locked. The Tallescope had two outriggers (poles or aluminium members) which were slid out at right angles to the main frame, pushed down to the floor and locked in place. They provided stability. They were about one and a half metres long and locked into place before the ladder was climbed.

45 Mr Mackie could not remember what plane the ladder was in when he found it, nor could he recall wheeling it out. The Tallescope had a traditional extension ladder. There was a rope and pulley system. When the Tallescope was on the stage, it was necessary to elevate the ladder about three rungs. The latches went over the rungs at the stipulated height. He said that the workbox at the top of the ladder had a metal base plate and there was a metal surround attached to the base plate about 75mm high. There were vertical members which went up to the top of the workbox. At the top of the workbox was an aluminium railing. Mr Mackie thought that the railing was about a metre or a bit more from the base of the workbox. The railing was fixed. The worker climbed into the workbox by ducking under the frame.

46 Mr Mackie explained that, because of the length of the light bar, he could not adjust all the lights from the one location, that rather than go up and down the Tallescope half a dozen times to adjust all the lights that had to be adjusted, he reached out and did as many as he could to the left or the right from one spot and then he would dismount, move the Tallescope along and adjust the other lights that required movement. On average, he found that from one position he could alter about four lights. He could safely stretch about one and a half metres. Mr Mackie said that if he reached out of the workbox it moved, made a creaking sound and swayed.

Use of Tallescope by plaintiff and others

47 Mr Mackie used the Tallescope several times a week in the last three months of the year in 1999 and previous years. At other times he used it about every three weeks. Mr Mackie saw the cleaners use the Tallescope in the auditorium and outside the building around the car park area when they put a gel on part of the building to keep the pigeons away. To transfer the Tallescope outside the building the Tallescope was taken down the main auditorium stairs to the ground level. The Tallescope was taken to other areas of the Club. Mr Mackie also saw road crews from touring rock bands, maintenance staff, members of disco groups in the auditorium and, very occasionally, the electrician use the Tallescope. It was taken down some steps from the stage to the auditorium floor. If Mr Mackie could not get anyone to help him he would take the Tallescope down the steps from the stage to the floor of the auditorium one step at a time. The Tallescope was heavy. It was a heavy lift for two people.

48 Mr Mackie never saw or recalled anybody carrying out any maintenance on the Tallescope, or anybody inspecting it to see how it operated. The Club had a maintenance department controlled by an officer.

49 Mr Mackie never placed any tape of any description on the Tallescope, nor did he see anyone from the Club do so. No manual as to the use of the Tallescope was made available to Mr Mackie, either while he was employed by the Club or between the time of ceasing his employment with the Club and the time of the accident.

50 No one from the Club told Mr Mackie that he should not force parts of the Tallescope that did not fit freely.

Preparation of document as to SWP

51 Mr Mackie recounted that Mr C Towson, who ran the maintenance department, asked him to prepare a document for SWP (Safe Work Practices) for the Tallescope. Mr Towson said that they needed SWPs for all the equipment in the maintenance department. Mr Mackie, who had no qualifications in engineering or occupational health and safety, prepared a document by including the instructions on the markings on the Tallescope and using his common sense. Mr Mackie was not provided with any document prior to preparing the SWP document. The document prepared by Mr Mackie relevantly states:

“ SWP

AUDIO & LIGHTING DEPARTMENT

1. Wheel ladder to desired location.

2. Ensure area above ladder is clear.

3. Pull out-riggers away from frame.

4. Pull down on bottom rung of ladder and push forward until ladder is upright.

5. Ensure base of ladder is locked into position on each side, and wheels are locked.

6. Secure out-riggers at 90 degrees to mainframe of ladder and to the floor. Lock into position.

7. Pull rope to raise ladder to necessary height. Make sure it is locked into position.”

That was Mr Mackie’s usual practice. Item 5 is of particular importance in the context of the accident which occurred.

Warning markings on Tallescope

52 According to the TestSafe report, the markings on the Tallescope include:

(A) A sticker on the plate attached to the Y piece strut which reads:

STOP BEFORE CLIMBING	BEFORE TILTING UP OR DOWN
(1) LOCK LADDER HOOKS	(1) BRING DOWN UPPER PART OF LADDER
(2) LEVEL & LOCK LEGS	(2) CLEAR PLATFORM OF EQUIPMENT
(3) LOCK CASTORS	(3) CHECK OVERHEAD CLEARANCE
(4) EXTEND & LOCK OUTRIGGERS
Diagrammatic instructions follow	Diagrammatic instructions follow

CAUTION

1. LOCK SAFETY HOOKS BEFORE CLIMBING

2. RETRACT UPPER SECTION OF LADDER BEFORE UNLOCKING SAFETY HOOKS

(C) The metal plate riveted to the side of the stile is headed:

CAUTION

“BEFORE TILTING, MOVING OR CLIMBING
1. LEVEL & LOCK ADJUSTABLE LEGS
2. LOCK CASTOR BRAKES
3. CHECK OVERHEAD CLEARANCE
4. ADJUST & LOCK OUTRIGGERS

TOPDEK

CAUTION

(The word “ROLL” may be incorrect. It is hard to read.)

STOP

(E) White sticker with manufacturer’s details on side of stile.

Tallescope testing

53 About 15 September 2000 the Tallescope was conveyed by truck from the Club at Gosford to the premises of TestSafe at Londonderry. Tests were carried out on 22 September 2000 with the use of 91 kg (200 lb) sand bag in the workbox, ropes and an overhead crane.

54 For the testing:

“The outriggers were extended, the castor wheels were locked and the ladder was raised to the vertical position without extending the upper section. A 91 kg (200 lb) sandbag was placed in the workbox and a rope tied to the rear section of the guardrail. The outer latches with the spring-loaded toggles were undone and allowed to rest on the anchor tube. The left (in respect to a person climbing the ladder) latching hook was then raised and held in place by allowing it to contact the hinged catch, described at the end of the first paragraph (under the heading ‘Extending ladder and work box’). With only the right hook holding the ladder to the anchor tube, the rope was pulled and tugged in a forward direction so as to cause the ladder to topple forward, …” (3.1 of TestSafe Australia report)

“The hook at the left fell back into its latching position, increasing the security of the ladder. At no stage, even when a force high enough to lift the rear castors of(f) the floor was applied, did the ladder come undone from the latches.”

“The test was repeated with the loop and knot of the ladder hauling rope moved underneath the left side hook and latch to prevent their proper engagement with the tube. Again, the ladder did not detach from the anchor tube, shaking it only caused the left side hook to engage on the tube.”

“[w]ith the spring latches unhooked, it was found that as soon as a person’s weight was transferred to the bottom rung of the ladder, this action assisted in the proper engagement of the latches.”

55 The tests carried out at TestSafe Australia were unable to establish what caused the accident.

56 The Court was referred to a letter of 20 April 1972 from the Department of Labour and Industry NSW to Instant Scaffolds referring, inter alia, to Standard Tallescope Model 512 advising that the design of the Tallescope appeared satisfactory for light duty work. Approval in terms of Regulation 86(11) under the Scaffolding and Lifts Act 1912, as amended, was granted subject to specified conditions.

Improvement notices

57 On 20 October 2000 WorkCover Authority, by Inspector Sibilant, issued two Improvement Notices (215992 and 215993) to the Club under s 31R of the OH&S Act 1983. Notice 215992 stated this reason for its issue:

“Persons may be exposed to risks from single person workbox (50512) due to

58 Notice 215992 required these measures to be taken:

Occupational Health and Safety Act

59 Notice 215993 states as the reason for its issue:

“Persons may be exposed to risks from Single Person Workbox (Model no 50512) due to maintenance issues.”

Occupational Health and Safety Act

60 The Notices were served on Mr John Payne, the defendant’s Human Resources Manager.

61 By letter of 21 November 2000 Mr Payne wrote to Mr Sibilant, Consumer and Business Services, referring to the two Improvement Notices. The letter continued:

“It was expected that as a consequence of the Improvement Notices an inspection of the workbox would be conducted and minor maintenance carried out prior to any further use of this piece of equipment.

The Club has considered this matter carefully and due to the age of the workbox we have decided to purchase a new workbox within the next few weeks from Instant Access of Newcastle.

…

Tallescope no longer in use

62 Mr Mackie said that when he returned to the Club to do work after the accident the Tallescope was not in use. It was the case of the defendant that none of the defects associated with Model 512 played any part in causing the accident. The plaintiff relied on poor maintenance of Model 512 over the years and having to force the clamps down onto the anchor tube. It was a major complaint that neither the plaintiff nor his expert advisers had been able to inspect the Tallescope on which the accident had happened.

Statutory and regulatory counts – evidence

63 In support of the statutory and regulatory counts evidence was led that there was a restaurant and bistro within the Club. Meals and sweets of all sorts and cakes were produced. There were refrigerators in the Club. There were glasses, alcohol, soft drinks and beer. The bottles and cans were chilled in the refrigerators. There was a generator which operated in the Club until the time of the accident. There was a bar in the Regency auditorium. Mr Mackie said that he regularly saw cakes and confectionery being made on the Club premises. He estimated that the Club bar staff at the time of the accident, including casuals, numbered about 30. Mr Mackie said there was no safety harness either on the ladder or in the workbox. There was no safety net.

Operation of Tallescope

64 Mr Mackie said that he made sure that the piece of rope on the anchor bar did not interfere with the clamping. This refers to his usual practice.

65 Mr Mackie agreed that, if the characteristics of a tool of another changed, he would tell the owner as it may be that the tool was becoming unsafe to use. Mr Mackie accepted that with maintenance it is best carried out when it is appreciated that there may be a problem rather than allow that fault to continue.

66 With the Tallescope, Mr Mackie contended that it first locked in by virtue of gravity, then manual pressure had to be applied to engage the clamp of the locking mechanism. Thereafter force had to be applied. There was a change in the characteristic of the operation of the Tallescope. As to force, Mr Mackie did not have to use two hands to lock the clamp, but he did have to put some effort into locking the clamp in. He recollected that he last used the Tallescope some weeks before the accident. He could not remember specifically how much force he had to apply, but he had to press the clamp down firmly and that involved using one hand to exert force on the clamp to make sure it was seated properly. He made sure the clamp was clicked into place. He heard the clamp click into place. When the clamp is not properly engaged that is apparent from an inspection.

67 Mr Mackie relied on the ladder collapsing and the changing characteristic of the clamps needing the application of manual pressure. Such pressure was not needed in 1993 and the need for such pressure and its extent developed over a period of time. He thought that this might help to explain why the ladder collapsed.

68 The evidence established:

(a) On each side of the ladder there is a flat steel hook and next to each hook is a clamp – they hook onto a horizontal anchor tube.
(b) When the ladder comes into its vertical position the outside flat hooks ride up over the anchor tube and as they do so they raise the inner clamp. This enables the inner clamp also to ride up over the anchor tube.
(c) As the outside flat hooks pass over the top of the anchor tube, the jaw of each hook falls down on to the anchor tube.
(d) When the outside flat hooks did fall down the clamp engages the anchor tube.
(e) The hooks have not always fallen down (seemingly, per Mr Mackie).
(f) Over a matter of time Mr Mackie had to manually press down on the hook and the clamp to ensure that they had engaged fully and were seated on the anchor tube and when he did that they made a clicking sound so that you got a positive sound to indicate that they had engaged on the anchor tube. (This was Mr Mackie’s stated experience.)
(g) Before the clamp engaged on the anchor tube an operator could see that the clamp had not engaged because there was a gap between the clamp and the anchor tube.

Extension of time application

69 Mr Mackie made an application to extend the time to bring these proceedings. In paragraph 18 of his affidavit of 15 May 2006 he said, “I accepted the official report from WorkCover and as they were not going to take any action against the Central Coast Leagues Club I thought at the time there was no point in my doing so”. He agreed he had read the report and agreed with the factual findings and conclusions of the report. He would have said so if there were factual findings in the report with which he did not agree. I doubt if Mr Mackie had this capacity. He probably had the WorkCover report in time to commence the proceedings, but decided not to. He agreed that if, between the time of receiving the report and making his application for an extension of time, it had come to his notice that there was some matter in the report with which he disagreed he would have mentioned that in his affidavit.

70 Mr Mackie believed that to be correct, but having observed Mr Mackie give evidence over an extended period, I doubt if that is correct. He gave evidence with great difficulty. There were particular difficulties in assessing Mr Mackie’s evidence. Initially, he gave the impression of understanding what he was being asked and saying. He became confused and it became necessary to evaluate what he truly remembered and understood. A conventional approach could not be adopted. He could not and would not have remembered all that was in the WorkCover report and still less was he able to isolate the matters in that report with which he disagreed, did not accept or had reservations about. His memory and analytical functions had been severely impaired. He became confused during cross-examination. This passage appears in his evidence at T 207 in cross-examination:

“Q. When you swore this affidavit, did you still accept the report?
A. Oh, I see what you mean. Well, I hadn't thought of it like that. What the case was was I had realised that my thinking and judgment were impaired, therefore my judgment at the time may have been incorrect, but I didn't actually put that into words in this affidavit.

…

71 At some stage prior to swearing his affidavit the WorkCover report made sense to him and sounded valid. By the time he swore his affidavit Mr Mackie stated that he had a different perspective on that report and that his perception of it may have been wrong.

72 After Mr Mackie had confirmed that in May 2006 he disagreed with the WorkCover report, he was asked by me (T 209) if he remembered what part of the report he disagreed with and he replied:

“Well, the only way I can express it is that I suppose I came to a realisation that the testing done on it by Test Safe may not have been extensive enough.”

“You thought the testing wasn’t extensive enough?”

“That’s the realisation I came to.”

73 On further consideration, I do not think that Mr Mackie was able to isolate what parts of the WorkCover report he did not accept. Mr Mackie accepted that in his affidavit of 15 May 2006 he did not criticise the WorkCover report. It was Mr Fogg who raised the issue of the adequacy of the testing and that was after May 2006. Until the issue was raised by Mr Fogg this issue would probably not have occurred to Mr Mackie.

74 Mr Mackie agreed that when he made the application to the Court for an extension of time he understood he had to explain to the Court why he wanted to bring the application at that time and had not done so before. While Mr Mackie probably appreciated this in May 2006, he did not appreciate fully what that involved.

75 Mr Mackie said it did not occur to him to tell the Court when seeking an extension of time of his criticism of the report, or his non-agreement with parts of it, for example, that the testing was not extensive enough. He was guided by his solicitor. He did not recall whether he told his solicitor that he now disagreed with the WorkCover report.

76 In the second sentence of paragraph 27 of his 15 May 2006 affidavit Mr Mackie said “I viewed the WorkCover report as finding that there was no possibility to pursue legal proceedings”.

77 As well as raising the question whether the testing was sufficiently extensive, Mr Mackie also queried whether errors could have been made in the testing.

78 In paragraph 43 of his affidavit of 15 May 2006 it is stated, “I was also advised the WorkCover report would not preclude a finding of negligence against the Central Coast Leagues Club and may support the claim”.

79 Mr Mackie said that on the last occasion he recalled using the Tallescope prior to the accident the latching hooks securing the ladder to the anchor tube appeared to be working properly once they were firmly seated in place. He thought that he “needed to use an unnecessary use of force to secure the hooks”. He had previously said he could not remember specifically how much force he had had to apply. Mr Mackie said that the hooks worked correctly once they were seated in place. By “the hooks” Mr Mackie assumed that the whole mechanism was being referred to, including the two outside hooks and the two clamps.

80 Mr Mackie disagreed with this statement of Mr Ng in the TestSafe Australia report, “the latching hooks securing that ladder to the anchor tube appeared to be working properly with the inner ones clicking into place with the application of light pressure”. Mr Mackie disagreed because he was of the view that force was required to engage the latching hooks (T 229). That is his present view. He understood that if force was needed this would assist his case. He did not mention in his affidavit his disagreement with the quoted statement. He did not have the analytical capacity to do so.

81 Mr Mackie said that his disagreement with the statement about the latching hooks occurred some time after he first read the WorkCover report. Initially he had agreed with the proposition that the inner clamps clicked into place with the application of light pressure. He explained that he changed his agreement when (a) his thinking cleared up and (b) his memory cleared up. I doubt whether this explanation is correct.

82 Mr Mackie said that his disagreement with the WorkCover report in respect of the operation of the hooks had arisen by the time of his application for an extension of time. I do not think his disagreement with the WorkCover report in respect of the operation of the hooks had arisen by the time of the plaintiff’s application for an extension of time. Indeed, I think that the plaintiff probably lacked the capacity to assess and evaluate all that was written in the WorkCover report.

Plaintiff and Mr Fogg and plaintiff’s credit

83 Mr Mackie was present in October 2006 when Mr Fogg, a consulting engineer retained on behalf of the plaintiff, examined a Tallescope at Erina, albeit a different model which was larger and heavier than the 512. The model inspected had cross bracing, whereas the 512 did not.

84 Mr Mackie could not recall whether he told Mr Fogg about the latching hooks on the Tallescope at the Club becoming stiffer to operate over time. Mr Mackie agreed that would be an important matter to tell an expert retained on his behalf to support his case. That is his present belief. I doubt if he realised this in October 2006. Mr Mackie rejected the suggestion that he did not tell Mr Fogg that the operation of the latching hooks was becoming stiffer because at that stage that was not his opinion. That fact was not mentioned in his affidavit of 15 May 2006.

85 Mr Mackie agreed that he read Mr Fogg’s first report. It does not refer to the latching hooks becoming stiffer or requiring the application of increased force. Mr Mackie did not recognise this as an omission.

86 The defendant was strongly critical of the plaintiff for:

87 My assessment of Mr Mackie was that he would not have been able to hold in his mind the whole of the substance of the WorkCover Report or its salient points. It comprised a detailed text, contained technical data and was supported by some ten pages of photographic material. Nor do I think he was sufficiently discriminating to isolate the points in the report with which he disagreed. That has come later after discussion with others. He left the preparation of his affidavit of 15 May 2006 to his solicitor and relied on his judgment as to what should be included. Mr Mackie did not feel it was his place to seek to influence, change or add to parts of Mr Fogg’s report of 2007, despite its terms. I do not think that they registered with him.

88 In my opinion the defendant made insufficient allowance for the plaintiff’s medical condition. His memory, his understanding and his powers of concentration were adversely affected by the accident but this was not realised until some years after the accident when he saw Dr Crimmins, a neurologist. Nor was it fully realised in 2006 by the plaintiff. I thought that a clear distinction had to be drawn between the capacity of Mr Mackie before the accident and after the accident.

89 A neuropsychological assessment by Mr S Wigley of Gosford Hospital in 2005 revealed that Mr Mackie’s ability to concentrate was low average. Mr Wigley wrote that Mr Mackie appeared to lack some insight into the extent of his poor memory and that his only real impairments were in the areas of learning and memory and were characterised by slowed speed of encoding, both pro and retroactive interference and inability to discriminate out phonetically and semantically related information. Mr Wigley thought that Mr Mackie suffered from “some residual, but now very mild, further cognitive impairment sustained in his fall from the ladder”. Mr Wigley also referred to “a general deterioration of Mr Mackie’s cognitive ability”. Poor memory, lack of concentration and impairment of cognitive ability on the part of Mr Mackie were noted by me as Mr Mackie gave his evidence. It took some time for the full effect of these disabilities to emerge.

90 The sustained attack by the defendant on the credibility of the plaintiff, although conducted with propriety, failed in my opinion. The plaintiff struck me as a decent but much damaged person who has tried his best to tell the truth, but not all of his evidence was accurate and reliable. He relied heavily on practices he adopted prior to 7 September 2000.

91 In Mr Fogg’s report, he writes:

“I understand that Mr Mackie set up the scaffold/ workbox structure as per the written procedures he had previously developed for the Club and in accordance with the safety signage on the scaffold/ workbox and then climbed the structure. I am advised that Mr Mackie has difficulty remembering any activity following this point due to injuries arising from the incident.”

92 Mr Mackie could not recall whether he told Mr Fogg that he (Mackie) had set up the scaffolding workbox as per the written instructions he had previously developed or someone else did. Mr Mackie added:

“I initially thought that I had wheeled out the scaffolding box myself and it wasn’t until … years later that I revisited Tony Russo’s eyewitness account where it says I wheeled it out in the vertical position.”

93 Mr Mackie accepted that Mr Fogg’s report does not mention the difficulty Mr Mackie experienced in pushing the latches into position. In retrospect Mr Mackie regarded that as an omission. Mr Mackie could not think of any reason why he did not tell his solicitors about the matters he now raises. The defendant contended that the omission was of some importance and that you would expect such a matter to be mentioned in Mr Fogg’s report. The explanation for the omission is to be found in Mr Mackie’s damaged condition.

94 On p 7 of Mr Fogg’s report it is written:

“Mr Mackie stated that he believed the main locking mechanism on the unit as inspected was similar to the unit that he had used at the time of the accident.”

Mr Mackie did not recall specifically telling that to Mr Fogg. Mr Mackie only vaguely recalled inspecting the locking mechanism on the Tallescope that Mr Fogg examined at Erina. Mr Mackie’s memory was such that he could not now say that the locking mechanism on the Tallescope examined by Mr Fogg at Erina was similar to the locking mechanism on the Tallescope at the Club without seeing it (the locking mechanism on the Tallescope examined by Mr Fogg).

95 At p 7 of the report Mr Fogg has recorded:

“Mr Mackie stated that he believed that the main locking mechanism on the unit as inspected [Tallescope Model 50518] was similar to the unit that he had used at the time of his accident. This locking mechanism is depicted in Figure 4. … Mr Mackie also stated that the instructions for use of the Tallescope unit are very similar, if not the same to (sic) that of the unit that he was using at the time of his accident.”

96 At pp 8 – 9 of his report of 22 May 2007, Mr Fogg wrote:

“I spent some time with Mr Mackie at this inspection [15 October 2006] discussing his system of work in the use of this unit [Model 512]. Mr Mackie stated that he would roll (push) the unit to the required location and then fold out the outriggers and lock them into position prior to locking the wheel castors.

I am advised that Mr Mackie would then rotate this structure to a vertical position and ensure that the main locking mechanism was in place and secure. Mr Mackie stated that this was required because of the ‘top heavy’ nature of the scaffold/ workbox. I am advised that he would then ‘haul’ up the ladder to the required height and again confirm that the ladder height locking mechanism was in place and secure.

97 While Mr Mackie could not recall the details of all that was said and done on 15 October 2006 when Tallescope Model 518 was inspected, Mr Fogg has recorded the essence of what occurred on that day when he discussed the system of work with Mr Mackie who accepted and adopted Mr Fogg’s account. I do not think that in 2010 the plaintiff’s injuries permitted him to give a more detailed account of what happened on 7 September 2000 and 15 October 2006. Mr Mackie needed to view Tallescope Model 518 to answer the comparison questions put by counsel for the defendant. On 15 October 2006 Mr Mackie had the advantage of viewing Tallescope Model 518.

98 Mr Mackie agreed that if the operation of the locking mechanism of the Tallescope at the Club was something that he ought to have discussed with Mr Fogg and that if the operating mechanism of that Tallescope was becoming stiff it would appear that he would have told Mr Fogg at the time that the Tallescope Model 518 was being examined. I would substitute the word “should” for “would”. I do not agree that Mr Mackie would have realised in October 2006 that he should have told Mr Fogg. That is Mr Mackie’s present realisation.

Storing and movement of Tallescope

99 Mr Mackie had never known the Tallescope to be left at the back of the stage in a vertical position. Other than when he moved the Tallescope along the light bar, Mr Mackie could not recall a time when he wheeled the Tallescope to its place of work in the vertical position. Mr Mackie explained that he moved the Tallescope in the horizontal position because, first, that was the way it was stored, secondly, because of the difficulties its height caused, for example, in doorways, and thirdly, it would be unstable to move it in the vertical position for any great distance. He agreed with the statement in Mr Fogg’s report that, after rotating the ladder to the vertical position, he ensured that the main locking mechanism was in place as this was required because of the top-heavy nature of the scaffold/ workbox. This was Mr Mackie’s usual practice. It would be about 10 – 12 paces from the back of the stage to the light bar. Mr Mackie did not have a recollection of moving the Tallescope in a vertical position more than a couple of metres. Mr Mackie estimated that he would have moved the Tallescope from the back of the stage to underneath the light bar on dozens of occasions.

Plaintiff’s use of Tallescope

100 When Mr Mackie began his employment at the Club the Tallescope Model 512 from which he fell was there. He was shown how to operate the Tallescope and put it in the vertical position, how to extend the ladder and how to operate the outriggers. He said that he was not told specifically that the latches that held the ladder in the vertical position must be securely locked or fastened before climbing the ladder. At that time (commencing employment), the latches locked in automatically by gravity (T 47 – 48). Mr Mackie said he was not shown how the latches worked and that he did not operate the latches when he was being shown how the Tallescope operated. Mr Mackie agreed that when he put the ladder back from the vertical to the horizontal position he had to disengage the latches. He was not shown how to disengage the latches. He agreed that he must have disengaged the latches when he first operated the ladder on his own. It became apparent to him how the latches worked.

Plaintiff’s evidence

101 Mr Mackie said that if the hook (or hooks) was (were) not engaged he would press down on the clamps and hear a click as the clamps engaged.

102 Mr Mackie agreed that there came a time when the clamps had to be manually engaged and that when they needed to be manually engaged the clamp(s) demonstrated a gap as shown in Exhibit T. (T 326)

103 Mr Mackie was asked to concentrate on the year before the accident. He was asked by me at T 327:

“In the year before the accident, did you have to push down on the hook or did it always automatically engage?”

“I can't recall. Is it pushing down on both of them together?” (T 328)

“Q. … you never saw the hook once you'd put the ladder in its vertical position, you never saw the hook not engaged, did you?
A. Not engaged?

Q. Yes?
A. Yes, that's right.

Q. What caught your attention was there was a gap between the clamp and the anchor tube?
A. Yes.

Q. And it's that gap that caused you to use manual pressure to close the gap?
A. Yes.

Q. So you have never seen the hook in a position where it's only partially engaged?
A. No.

104 I do not think that Mr Mackie knew the answer to the last question. He was making an assumption.

105 Mr Mackie could not recall whether the rope used to haul the ladder up and down was attached to the anchor tube (T 328). He did not attach the rope to the anchor tube, but at some stage it had been placed there. Mr Mackie said that the clamps on each side of the ladder operated independently of each other (T 329).

106 Mr Mackie was referred to the yellow sticker attached to the Tallescope and agreed that he read it before preparing the document “Standard Operating Procedure” and that item 5 required the operator to lock the safety hooks at the bottom and that was referring to the latches that held up the ladder in the vertical position. That had to be done before climbing.

107 Mr Mackie agreed that it would not be necessary to lock the safety hooks manually at the bottom if reliance could be placed on gravity to do that task. It was Mr Mackie’s complaint that the safety hooks used to lock with gravity. He understood that if the safety hooks did not lock by gravity he had to check them before climbing whether he found the ladder in its vertical position or he had placed the ladder in its vertical position (T 333).

108 Mr Mackie had read the placard on the Tallescope at various times and under the heading “BEFORE CLIMBING” it stated “LOCK LADDER HOOKS”. He understood that as being an instruction to ensure that the hooks that latched the ladder in the vertical position locked before you climbed the ladder. Mr Mackie agreed that the outer flat hooks next to the clamps cannot be locked (T 334) as the latter can be. The inner clamps are hook shaped and have a locking mechanism. Mr Mackie said that when the placard referred to “LOCK LADDER HOOKS” it would only refer to “clamps”. It was an instruction that, before climbing, he should ensure that each clamp has been locked into place that therefore there would be no gap between the clamp and the anchor tube (T 334 – 335).

109 Mr Mackie remembered seeing the red coloured label on the Tallescope and agreed that it cautions the operator to lock the safety hooks before climbing. He understood that the red-coloured label required him to ensure that the clamps were locked before climbing (T 335). Mr Mackie agreed that when climbing the ladder the operator was climbing to get into the workbox on the ladder. He realised that when the operator was in the workbox that he was maintained in that vertical position by the safety latches and that if they do not properly secure the ladder that puts the operator in a position of peril. It was common sense to ensure that those safety hooks (latches) were properly engaged prior to ascending the ladder (T 336).

110 In item 5 under the heading of Operation of Scaffold Ladder of the standard Operating Procedure which he prepared (Exhibit P) he wrote: “ensure base of ladder is locked into position on each side”. He was referring there to the safety latches that keep the ladder in the vertical position. He was under no doubt that before climbing up the ladder he should ensure that the safety latches were locked into position. He said he always followed this standard operating procedure as described in Exhibit P.

111 Mr Mackie said that he always ensured that he locked the castor brakes on the individual wheels at the bottom of the Tallescope before he climbed the ladder.

112 In paragraph 4.5 of his report Mr Ng refers to photographs taken of the workbox assembly at the site of the accident shortly after it occurred as shown to him (Ng) by Inspector Sibilant, indicating that the ladder was fully retracted and in a horizontal orientation, the outriggers were not used and at least two of the three functional castor brakes were engaged.

113 Mr Mackie was shown Exhibit AK, said to be a photograph taken by an employee of the defendant after the accident. That employee was not called. On that photograph only one outrigger is shown as having been extended. Mr Mackie agreed that it would have been possible to extend more than just the one outrigger with the Tallescope in the position shown on the stage. He did not agree that he could have failed to extend and lock all the available outriggers in position before climbing the ladder. Mr Mackie agreed that the photograph showed the other outrigger in a non-extended position. There were two outriggers on the Tallescope.

114 Mr Mackie agreed that when he operated the outriggers he swung them out to approximately 90 degrees from the Tallescope and locked them into position. By pushing on the outrigger it would move by rotating in towards the Tallescope.

115 If he had ascended the ladder with the outrigger deployed as shown in the photographs comprising Exhibit AK that would have been a failure to follow the placarded instructions on the Tallescope, the standard operating procedure and common sense.

116 On the assumptions that Mr Mackie could not remember what happened on the day of the accident after he located the Tallescope, that he followed his normal practice, that he found the Tallescope in the horizontal position at the back of the stage and first moved the Tallescope into the vicinity of his place of work, i.e. the lighting bar, Mr Mackie would probably have moved the Tallescope into a position less than a metre away from his final place of work. Then he would have swung the ladder into the upright position and ensured the hooks would lock in the upright position if he followed his usual practice. He insisted that he attended to the securing of the hooks and clamps immediately he hauled up the ladder into the vertical position. Then he would have to adjust the workbox to the right height by pulling on the rope at hand height. The rope would then go down in front of him, the very end of the rope being attached to the anchor tube. The rope did not drop on the floor as it was permanently attached to the anchor bar. When he got the workbox to the appropriate height he would, if he needed to, make the final adjustments to the position of the Tallescope. He would then deploy the outrigger or outriggers.

Changes in characteristics of Tallescope

117 I have referred to this matter earlier under the heading “Operation of Tallescope”. Mr Mackie was employed in the maintenance department of the Club. One of the duties of the department was to ensure the equipment of the Club was in and operated in a proper operational state. He did not accept that if he was having to use unreasonable force to engage one of the clamps that would put him on notice that it required maintenance. He agreed that if unreasonable force was required to engage the clamp that demonstrated an obvious change in the characteristic of the Tallescope. He did not agree that the operator was put on notice that the change in the characteristic of the machinery of having to use unreasonable force could be indicative of the machine requiring maintenance. He regarded the Tallescope as serviceable – it worked (T 343). He and other people used it. As the Tallescope was serviceable it did not occur to anybody engaged in the Club’s maintenance department that the Tallescope required maintenance because it required the application of unreasonable force.

118 Mr Mackie pointed out that he did not say that the clamp was becoming stiffer to operate over time. He maintained that the clamp did not click down and did not fall onto the bar evenly. The clamp has a moving part, namely the opposing latch, which operates rather like an opposing thumb on a hand. When you push the clamp onto the anchor bar the thumb (or latch) has to retract and then spring out again. He did not carry out any investigation as to what was causing the opposing thumb part of the clamp to become more difficult. He did not tell the owner of the Tallescope of the change in characteristic of the clamp. It did not occur to him that the changing characteristic might effect the operation of the latching hooks.

119 Mr Mackie agreed that he was quite happy to continue to risk his life “by using the device demonstrating that characteristic”, that is, a change from not having had to use any force at all to being required to use excessive force. At the time when the plaintiff had to use excessive force to engage the latch (clamp), he did not think in terms of his life depending upon it. That is something which he subsequently realised.

Lack of complaint

120 Mr Mackie denied the proposition that he did not make any complaint to the defendant because the locks (clamps) did not require excessive force to be engaged (T 351). He also denied that, if the locks required excessive force to be engaged, he would have told the defendant and investigated the problem, as an employee of the maintenance department. This passage appears in his cross-examination (T 351):

304 Dr Heathcote agreed that the need for increasing force to push down the arm, and the need for increasing force to push down the latch and the hook need not be indicative of some failure of the latch. Dr Heathcote added:

“Once the latch is in position, it is doing its job but the actual force required to pull it down does not mean an actual failure it just means you are applying a lot of force to put it in position to latch it.” (T 758)

Resolution of conflicting causes of accident

305 Mr Fogg, not having examined Tallescope Model 512 but having seen photographs of it and having inspected Tallescope Model 518, thought that as the plaintiff put his foot and weight on the bottom rung of the ladder and commenced to climb the ladder this combination would cause the ladder to lock into position. See the last paragraph on p 2 of his report of 29 June 2009 (Exhibit AAB).

306 Mr Ng thought that the outer metal hooks, with their tapered leading sections which ride over the anchor tube, allow the tube to enter the mouths of the hooks by gravity, thus latching the ladder. His tests showed that, if one of these outer metal hooks grasped the tube, the ladder would remain upright and vertical.

307 Dr Heathcote thought (and I accept), based on his site inspection at East Denistone and the WorkCover report, that, had the rotational locks been properly engaged on Model 512, it would have been almost impossible to disengage them whilst the platform was in normal usage. Mr Fogg did not disagree. At p 7 of his report, Dr Heathcote summarised the testing by WorkCover thus:

“Their testing involved putting a 91 kg weight in the cage at the top of the platform and pulling on it in a longitudinal direction. They repeated the experiment ‘with the loop and knot of the ladder hauling rope moved underneath the left hand side hook and latch to prevent the proper engagement with the tube.’ In both cases the testing failed to cause the ladder to rotate, i.e., to cause the rotational locks to disengage.”

“… with both sets of rotational locks disengaged the ladder on the work platform I inspected at Denistone East Primary School remained vertical and did not automatically return to the horizontal. The maintenance person at the school demonstrated to me that he had to physically pull the ladder to initiate its return to the horizontal once the rotational locks were disengaged.”

308 Mr Ng’s approach was influenced by the history he was given by Inspector Sibilant to the effect that eyewitness statements provided to the Inspector “indicate that the employee fell from the workbox when it suddenly rotated from the vertical working position to the horizontal position”. It seems that the hooks were not in the latched position. Dr Heathcote looked for an explanation pointing to why the accident happened.

309 (a) I have contrasted the terms of paragraphs 10.3 – 10.5 of Dr Heathcote’s report, especially his observation that it was possible to commence climbing the ladder with the rotational locks disengaged and Dr Heathcote’s oral evidence at T 714 that the locking mechanisms were not in place, with Mr Ng’s evidence that in the test it was found that, if the clamps and toggle mechanisms were not pressed in, the action of the person climbing the ladder would cause it to lock (T 649). Mr Ng was testing the model on which the accident had occurred and Dr Heathcote was not examining that Tallescope but the same model.

(b) There was also the evidence of Mr Fogg that with the Tallescope Model 518 when the dual locking system is not locked into position the weight and action of the person commencing to climb causes the dual locks to snap into position. This does not necessarily happen with Model 512, which is lighter. Dr Heathcote stated that, if the dual locking system is not locked into position, the weight and action of the person climbing up the ladder will not necessarily cause the dual locking system on Model 512 to lock into position. The markings on Model 512 emphasise that before climbing the ladder the operator should ensure that the dual locking system is locked into position, that is, secured.

310 The evidence of what Mr Ng found on the testing of Tallescope Model 512 is accepted and the evidence of Dr Heathcote based on his examination and observations of Tallescope Model 512 is accepted. I thought Dr Heathcote’s analysis of the problem and his opinion were correct. While I paid much attention to Mr Fogg’s evidence, he inspected a different model Tallescope. He did not sufficiently establish that the defects of Tallescope Model 512 used by the Club caused, or contributed to, the accident. I accepted that the lack of maintenance, or poor maintenance, of Model 512 did not cause or contribute to the accident. Mr Mackie was not able to give evidence of what he did on 7 September 2000 and what happened, but relied on evidence of his consistent past practice and the difficulties he had experienced with the Tallescope Model 512 at the Club. On the evidence, the probable cause of the accident is that the hooks were disengaged. Mr Ng was unable to determine the cause of the accident. Dr Heathcote thought that the locking mechanisms were not engaged prior to Mr Mackie climbing the ladder. Mr Fogg’s views were not sufficiently substantiated. I am not able to find that the Club was negligent in either providing its Tallescope for use by Mr Mackie or allowing him to use it to set up the lighting or that it breached any implied term of any contract.

311 This case was not free of technical complexity. I have reviewed the evidence at some length. The accident has drastically affected Mr Mackie’s capacity to work and earn income, his matrimonial and personal relations. One difficulty was that Mr Mackie had no recollection of what he did after he went to the back of the stage to look for the Tallescope and there was no witness who saw what happened as to the securing of the safety hooks or their coming adrift. It is regrettable that there is no eyewitness account of exactly what happened after Mr Mackie went to the back of the stage. That may have affected the conclusions I have reached. Mr Russo sensed Mr Mackie climbing the lower rungs of the ladder and was present when the accident occurred. He relied on what he heard and what he saw after the extendable ladder collapsed. Mr Mackie relied on his usual practice and did not and could not believe that he did not secure the extendable ladder before climbing it.

312 Dr Heathcote thought that extending the ladder by three rungs would make no practical difference. Dr Heathcote’s view was based on him having seen the ladder at East Denistone in a vertical position and unsecured, and his assessment of the effect of a man weighing 80 kilos climbing up the ladder. The ladder would not collapse until the man had climbed up the ladder to a point where his weight combined with the weight of the workbox caused the ladder to tilt as it did.

313 As mentioned, the plaintiff relied on the defects in Model 512 and the examples of poor maintenance or lack of maintenance. Mr Fogg stressed these. While Mr Ng required these to be remedied, he did not think that the defects and lack of proper maintenance played any part in causing the accident. Dr Heathcote accepted the views expressed in the TestSafe Australia report to the effect that the lack of maintenance did not cause or contribute to the accident.

314 I am not persuaded that Mr Fogg is correct in attaching causative importance to the defects he noted in the Club’s Tallescope, or that he is correct when he wrote that the most likely cause of the accident to Mr Mackie is due to the unlatching of the vertical locking mechanism (rotational lock) as Mr Mackie lent to one side of the workbox. I prefer Dr Heathcote’s analysis and the views he expressed in his report and evidence.

315 On the balance of probabilities I am not satisfied that the rotational locks were in place when on 7 September 2000 Mr Mackie started to climb the ladder. As earlier mentioned, Dr Heathcote concluded that the rotational locks must not have been properly engaged when Mr Mackie commenced to climb the ladder and his weight and action in climbing he ladder did not cause the locking mechanisms to engage. While there can be no certainty in the present case, these conclusions are probably correct on the existing evidence, despite Mr Mackie’s careful work practices and his usual practice built up over many years.

316 I did not attach weight to Mr Mackie’s initial acceptance of the TestSafe Australia report. He could not recollect exactly what had happened, nor did he have the technical expertise to evaluate the report and the tests that should have been conducted. It was unrealistic to expect him to be able to raise and sustain reservations about the report.

317 Mr Mackie did not report to the Club that there were difficulties in operating Tallescope Model 512.

318 I have previously referred to the evidence of the plaintiff that initially the ladder fell into place by means of gravity, that over time he had to use force to lock the ladder into position and that then, over further time, he had to use more or excessive force. As stated in paragraph 5.1 of the TestSafe Australia report, “The steel outermost hooks engage on the anchor tube by the action of gravity as soon as the ladder is swung into position.” However, in paragraph 2.2 of the TestSafe Australia report on p 3 it is stated, “[t]he latching hooks securing the ladder to the anchor tube appear to be working properly, with the inner ones clicking into place with the application of light pressure”. I accept that this was found by TestSafe.

319 I have noted the evidence of the plaintiff as to his experience with Tallescope Model 512 and the need he experienced for the use of increasing force. On the balance of probabilities I accept the test results of TestSafe Australia (Messrs Ng and Sibilant) and the evidence of Dr Heathcote. Because of the terms of the markings on Tallescope Model 512, for example, “LOCK SAFETY HOOKS AT BOTTOM” (yellow sticker), “LOCK LADDER HOOKS” (on sticker attached to plate with the heading “STOP”), and “CAUTION – LOCK SAFETY HOOKS BEFORE CLIMBING” (red sticker), I do not agree that it was envisaged that the safety hooks would always drop into place by gravity. Those warnings strongly suggest that before climbing the ladder the operator should either lock the safety hooks or check that the safety hooks had locked.

320 The Club’s Tallescope Model 512 was moved from the Club and set up afresh at the premises of TestSafe Australia. The evidence does not suggest there was any significant difference in the operation of that Tallescope. The tests were designed to ascertain the cause of the accident.

Contract and tort – independent contractor

321 As at 7 September 2000 Mr Mackie had ceased to be an employee of the Club, but it was aware that he used the Tallescope to attend to lighting and sound work required when portions of the Club’s premises were used for functions.

322 In my opinion the defendant also owed the plaintiff duties in tort on the basis that he was an independent contractor. In Stevens v Brodribb Saw Milling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 31 Mason J said that an entrepreneur owed a duty to prescribe a safe system of work whether or not those he engaged were independent contractors or employees.

323 As was pointed out by Heydon JA in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [68], “Mason J spoke of where there was a risk of … injury arising from the nature of work and of a need for co-ordination”. Heydon JA considered the grounds relating to foreseeability separately from breach of duty of care.

324 In Van Der Sluice Heydon JA remarked that the plaintiff was a skilled workman experienced in the type of repetitive task in question and had set up a freelance business. There had been a fairly long association and the plaintiff had done work for the defendant on an extensive basis. That is close to the facts of the present case. Heydon JA at [72] held that the defendant could not reasonably foresee that the plaintiff would fall:

“… because the defendant was entitled to assume that [the plaintiff] would identify any risk of falling and take measures to prevent that risk from arising if he did. For the defendant it was not reasonably foreseeable that the plaintiff would come to harm because of the skill it had detected in him during their earlier association … and because of his experience, and hence his capacity to perceive any possible risks and his capacity to devise methods of negating them …”

325 While not identical, a similar situation existed in the present case. Between about 1993 and September 2000 Mr Mackie had safely used the Tallescope Model 512 on many occasions. He was well aware of the necessity to lock the safety hooks, and indeed had noticed over the years that he had to use increasing force to ensure that the clamps clicked into place. He had prepared the document “Standard Operating Procedure” which encapsulated the warnings on the markings on the Tallescope. He had applied his commonsense and his not inconsiderable technical skills. He regarded the Tallescope as functioning effectively because it was safe to use once the locking mechanisms were locked into place. The defendant was entitled to assume that the plaintiff would identify any risk of falling and to take measures to prevent that risk from arising by securing the locking mechanisms before climbing the ladder.

326 If the clamps had been locked into place before climbing the ladder, as directed, the accident would not have occurred.

327 In my opinion, the plaintiff has not established any breach of duty of care by the defendant, nor any breach of any implied term of any contract to take reasonable care for the plaintiff’s safety.

328 The implied term pleaded in paragraph 9A of the Second further Amended Statement of Claim, filed 21 May 2010, was a contractual duty to provide the plaintiff with a portable scaffold that was as safe for use by the plaintiff as anyone could make it. Tallescope Model 512 was safe for use by the plaintiff if operated correctly, that is, in accordance with the instructions contained in the markings attached to it. The locking devices had to be secured, that is locked into place, before the operator climbed the ladder. That is made clear by the markings on Tallescope Model 512. The operator was not entitled to rely on Tallescope Model 512 locking into place by gravity alone and not check that the safety hooks had been locked before climbing. I would not ignore the history of the plaintiff having safely and correctly operated Tallescope Model 512 on many occasions between 1993 and 7 September 2000.

Decision on negligence and contract counts

329 There should be a verdict for the defendant on the negligence count and on the contract count. I turn now to the statutory counts.

Factories Shops and Industries Act

330 The plaintiff submitted that the premises of the defendant in which the accident occurred, being the Central Coast Leagues Club premises, meet the definition of a factory within s 4(1) of the Act. Under s 4(1) “Factory” means:

“(a) any building or place … in which four or more persons are engaged directly or indirectly in a manufacturing process”

“Manufacturing Process means any process in or incidental to the making … preparing … cleaning, washing … any goods”.

331 The plaintiff alleged that the manufacturing processes of the defendant included:

332 Meals and drinks are served in connection with functions in the auditorium (Regency Room). As previously mentioned, there was a restaurant and bistro within the Club. Meals, sweets of all sorts and cakes were prepared and drinks of various kinds were served with bottles and cans being chilled. Glasses were washed. The Club had a substantial bar staff.

333 The plaintiff submitted that the premises occupied by the Club should be taken as a whole and that the Court should not separate the Regency Room from the rest of the premises. Reliance was place by the plaintiff on there being a bar in the Regency Room. The defendant contended that the Regency auditorium did not meet the definition of a factory and that was the area with which the Court was concerned.

334 The plaintiff also relied on s 4(1)(a)(iv)(b) of the Act in that mechanical power is used as ancillary to any specified businesses. It was alleged that ancillary to the defendant’s businesses it ran and used various industrial fridges and freezers within its premises for the cold storage of food and beverages.

335 It was also alleged that ancillary to the defendant’s business it generated power from time to time within its premises by the use of one or more generators. There was evidence that there was a generator which operated in the Club until the time of the accident. Mechanical power means, inter alia, power generated by electricity or any power other than manual power.

336 It was further alleged by the plaintiff that the defendant’s premises met the definition of a “factory” in s4(1)(a)(v) of the Act in that electricity was generated or mechanically transformed there.

337 “Factory” means, under s 4(1)(b), “any bakehouse”:

“’Bakehouse’ means any building or place in which any bread, biscuits, cakes, confectionery, cereal food for human consumption, pastry, sweetmeats, sugar goods, muffins, crumpets or goods of a like kind are made or baked for trade or sale, and include any place or room used in connection with the bakehouse for storing such goods when made or baked or the ingredients and materials to be used in the manufacture of such goods.”

338 The definitions to which I have referred have a wide scope. Nevertheless, my primary opinion is that the Regency Room should not be regarded as a factory or part of a factory, nor as a bakehouse. It was used for holding a variety of large functions, it seems, mostly of outside bodies. I was inclined to separate the Regency Room or auditorium from other parts of the Club premises. However, the Regency Room was said to have a bar. Mr Mackie described what was in the bars in the Club. If it is assumed that the auditorium is, or was, a factory or part of a factory and that the provisions of the Factories Shops and Industries Act 1962 apply to the auditorium, there are further questions. Section 34(d) provides that all ladders shall be of sound construction and properly maintained. Neither the defects identified in the ladder nor the lack of maintenance of the ladder caused, or contributed to, the accident. If operated correctly, the ladder of Tallescope Model 512 was of sound construction in that the defects mentioned had no bearing on the cause of the accident. Section 40 requires safe means of access to every place of work; such means of access were provided if Tallescope Model 512 was operated in accordance with the instructions attached to it. The problem in the present case was probably caused by the plaintiff climbing the ladder without ensuring that the safety mechanisms had been locked into place.

Safety Construction Act and Regulations

339 The plaintiff alleged that, at the time of the accident on 7 September 2000, the plaintiff was performing and the defendant was engaged in “construction work” and “building work” within the Safety Construction Act 1912 (NSW) and Regulations. Under that Act “construction work” means, inter alia, “building work”. Under the Act “building work” means

(i) … in relation to a building or structure at or adjacent to the site thereof, or …”

340 Regulations 73(1), (2) and (3) and 74(1) proceed on the basis that the defendant carries out “any construction work”. Regulation 75 proceeds indirectly upon the same basis in that it provides that wherever by this part (Part 5) of the Regulations it is required that a floor, platform, landing, working place, stairway or stairway landing, excavation or hole, or an opening in a floor, roof, platform or landing, or that any other place shall be fenced, then such fencing shall be effected by one of the methods specified or permitted.

341 Part 5 of the Regulation deals, as its heading indicates, with the carrying out of construction work and measures to be taken for securing the safety and health of persons engaged in such work.

342 In my opinion neither the defendant nor the plaintiff was engaged in construction work when adding lights to the lighting bar, re-focussing the lighting and providing and installing sound equipment for the fashion parade.

343 As to Regulation 73(1), the defendant did provide suitable and safe scaffolding if the Tallescope was operated correctly by the plaintiff and is to be regarded as scaffolding. That included ensuring the locking mechanisms were fully engaged. The plaintiff did not operate the Tallescope correctly. Nor does a Tallescope Model 512 fall within the definition of scaffolding.

344 As to Regulation 73(2), the defendant did provide suitable and safe means of access if the Tallescope it provided was operated correctly by the plaintiff, as it should have been and probably was not.

345 At to regulation 73(3), the defendant purported to provide means, by fencing or otherwise, for securing the safety of the plaintiff at a place from which the operator (the plaintiff) would be liable to fall a distance of 1.8 metres. The workbox was intended to satisfy this requirement but it was in a poor state of repair. The defendant relied, and was entitled to rely, upon the failure to comply with Regulation 73(3) not being the cause of the accident.

346 As to Regulation 74, the defendant was not required to provide a safety belt, safety line, safety harness or safety net because there was no absence of any adequate handhold or foothold. If the Tallescope had been operated correctly by the plaintiff, the defendant had provided an adequate handhold or foothold.

347 As to Regulation 75, the defendant provided an adequate platform if the plaintiff operated the Tallescope correctly.

Decision on statutory (or regulatory) counts

348 In my opinion the plaintiff’s case on each of the statutory (or regulatory) counts has not been proven on the balance of probabilities and fails.

349 I regard this case as a very unsatisfactory one because of the lack of eyewitness evidence as to the cause of the collapse of Tallescope Model 512. On the present state of the evidence there will be a verdict for the defendant on all counts.

**********

Actions

Download as PDF Download as Word Document

Citations

Mackie v Central Coast Leagues Club Limited [2010] NSWSC 960

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

5

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1

Re F; Ex parte F [1986] HCA 41

Van der Sluice v Display Craft Pty ltd [2002] NSWCA 204

CITATION:	Mackie v Central Coast Leagues Club Limited [2010] NSWSC 960
HEARING DATE(S):	17, 18, 19, 20, 21, 24, 25, 26, 27, 28 May, 1, 2, 4, 7 June 2010
JUDGMENT DATE :	1 September 2010
JUDGMENT OF:	Smart AJ
DECISION:	Verdict for the defendant on all counts
CATCHWORDS:	COMMON LAW - Plaintiff seriously injured when ladder of Club's Tallescope tilts and he is thrown head first onto thrust stage - Plaintiff former employee of defendant with much experience as light and sound operative in safely operating Tallescope while adjusting lighting on lighting bar immediately below ceiling of auditorium - engaged as independent contractor but envisaged by defendant that plaintiff would use Tallescope - probable cause of accident that locking mechanisms not secured before plaintiff climbed ladder - Tallescope contains warnings that before climbing the locks shoud be secured - ladder top-heavy because of attached workbox - no negligence by defendant nor breach of implied term of contract - statutory counts under former Factories, Shops and Industries Act 1962 and former Construction Safety Act 1912 and Regulations 1950 inapplicable.
LEGISLATION CITED:	Construction Safety Act 1912 Construction Safety Regulations 1950 Factories, Shops and Industry Act 1962 Occupation Health and Safety Act 1983 Scaffolding and Lifts Act 1912
CATEGORY:	Principal judgment
CASES CITED:	Stevens v Brodribb Saw Milling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
PARTIES:	David Mackie (Plaintiff) Central Coast Leagues Club Limited (Defendant)
FILE NUMBER(S):	SC 2008/289206
COUNSEL:	DT Kennedy SC/ R de Meyrick (Plaintiff) J Sleight (Defendant)
SOLICITORS:	CBD Law (Plaintiff) Hunt & Hunt (Defendant)

Index	Paragraph nos:
Introduction	1 – 11
Pleadings
Negligence and Contract counts	12 – 21
Statutory and Regulatory counts	22 – 31
Background	32 – 38
Defendant’s order and the work	39 – 46
Use of Tallescope by plaintiff and others	47 - 50
Preparation of document as to Safe Work Practice (SWP)	51
Warning markings on Tallescope	52
Tallescope testing	53 – 56
Improvement Notices	57 - 61
Tallescope no longer in use	62
Evidence supporting statutory and regulatory counts	63
Operation of Tallescope	64 - 68
Extension of time application	69 – 82
Plaintiff and Mr Fogg and plaintiff’s credit	83 - 98
Storing and movement of Tallescope	99
Plaintiff’s use of Tallescope	100
Plaintiff’s evidence	101 – 116
Change in characteristics of Tallescope (alleged)	117 - 119
Lack of complaint	120
Independent contractor	121 - 125
Re-examination	126 - 128
Mr Russo	129 – 147
Inspector Sibilant of WorkCover	148 – 156
Mr Mitchell	157
Mr Fogg – Engineer	158 – 209
Mr Ng – TestSafe Australia	209 – 267
Dr Heathcote	268 – 304
Resolution of conflicting causes of accident	305 – 320
Contract and tort – independent contractors	321 – 328
Decision on negligence and contract counts	329
Factories Shops and Industries Act	330 – 338
Safety Construction Act and Regulations	339 – 347
Decision on statutory (or regulatory) counts	348