Matthew Xavier Carton v Rainbow Plumbing and Drainage Pty Limited - [2013] ACTSC 267

MATTHEW XAVIER CARTON v RAINBOW PLUMBING & DRAINAGE PTY LIMITED and ORS

[2013] ACTSC 267 (23 December 2013)

NEGLIGENCE – duty of care – plaintiff injured when he fell through a penetration in the roof – whether subcontractor owed duty of care or statutory duty under Scaffolding and Lifts Regulations 1950 (ACT) r 73 to another subcontractor – obligation to take measures relates to the scope of work being undertaken – subcontractor not liable to another subcontractor

NEGLIGENCE – apportionment of damages – no safe system of work provided by the employer – capacity of project manager to control subcontractors on building site – 70% apportioned to project manager, 30% apportioned to employer

PLEADINGS – statement of claim and defence – submission based on pleadings inconsistent with manner in which case conducted – inference drawn that parties chose to depart from pleadings

Civil Law (Wrongs) Act 2002 (ACT) s 21
Scaffolding and Lifts Act 1912 (ACT)

Court Procedure Rules 2006 (ACT) rr 21, 443
Scaffolding and Lifts Regulations 1951 (ACT) r 73
Scaffolding and Lifts Regulations (NSW) r 73

Buckman (HC) & Son Pty Ltdv Flanagan (1974) 133 CLR 422
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
Davey v Skinner [1961] SR (NSW) 648
Darke v El Debal [2006] NSWCA 86
Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490
Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267
Lenz v Trustees of the Catholic Church [2005] NSWCA 446
Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65
Stojkoski v Belconnen Concrete Pty Ltd (2013) 274 FLR 316
Todorovic v Moussa [2005] NSWCA 100
Zahner v Andreas Pty Ltd & Boral Building Services Pty Ltd [2001] NSWCA 352

No. 1037 of 2008

Judge: Master Mossop
Supreme Court of the ACT

Date: 23 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 1037 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:MATTHEW XAVIER CARTON
Plaintiff

AND:RAINBOW PLUMBING & DRAINAGE PTY LIMITED
First Defendant

AND:DONALD JOSEPH BARR and NILMANIE SHEREE BARR trading as MILLENIUM HEATING AND COOLING
Second Defendant

AND:SPORTS CENTRE MANAGEMENT AUSTRALIA PTY LTD
Third Defendant

ORDER

Judge:  Master Mossop
Date:  23 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

(1) Judgment for the plaintiff against the first and third defendants in the sum of $300,000.

(2) Judgment for the first defendant against the third defendant on its notice claiming contribution for $210,000.

(3) Judgment for the third defendant against the first defendant on its notice claiming contribution for $90,000.

(4) The first and third defendants have liberty to apply within 28 days for any further or other order to give effect to their respective notices claiming contribution.

(5) Judgment for the second defendant against the plaintiff.

(6) Judgment for the second defendant against the first and third defendants on their respective notices claiming contribution from the second defendant.

(7) Unless any party notifies my associate by email within 28 days of the date of this judgment that it wishes to be heard in relation to costs:

(a) The first and third defendants are to pay 30% and 70% of the plaintiff’s costs of the proceedings as agreed or assessed;

(b) The first and third defendants are to pay the second defendant’s costs of the plaintiff’s claim against it in the proportions 30% and 70% respectively and are to pay the second defendant’s costs of their respective notices claiming contribution from the second defendant.

(c) There is no order as to costs of the first and third defendants’ notices claiming contribution from each other.

Nature of case

On 26 June 2008 the plaintiff, who was installing a gas line on the roof of a building that was under construction, fell through a penetration that had been cut in the roof. He fell approximately four metres to the concrete floor beneath and was injured. The defendants have agreed with the plaintiff that the quantum of damages payable to the plaintiff is $300,000. That amount includes an amount of $36,833.32 paid as workers compensation which will need to be repaid. The issue between the defendants is the extent of their contribution to that judgment. The first defendant was the plaintiff’s employer. The third defendant was the company responsible for managing the construction and was the occupier of the site. The second defendant was a subcontractor engaged by the third defendant to carry out the installation of, amongst other things, some air-conditioning duct work. The first and third defendants accept that they are liable for damages as a consequence of a breach of their duty of care and of their statutory duty under regulation 73 of the Scaffolding and Lifts Regulations. The second defendant has not admitted that it is liable either in negligence or as a result of breach of statutory duty.

Section 21 of the Civil Law (Wrongs) Act 2002 permits a person who is liable for damage caused by a wrong to recover contribution from someone else who is also liable for the same damage. The contribution must be an amount that the Court considers just and equitable having regard to the extent of the contributory’s responsibility for the damage.

Notices claiming contribution and indemnity have been served by each of the defendants on the other defendants.

Therefore there are essentially two tasks that the Court needs to perform:

(a)it needs to determine whether or not the second defendant breached its duty of care or breached its statutory duty under regulation 73;
(b)it needs to determine what is a just and equitable contribution to be ordered as between each of the defendants which has admitted or is found to be liable for the damage suffered by the plaintiff.

Facts

The third defendant is a company associated with what has been referred to as the Konstantinou Group. It was responsible for the construction of a gymnasium facility in Tuggeranong which was to become a “Club Lime” business. Prior to 26 June 2008 the building had been under construction for a number of months. The first defendant was a plumbing contractor that had been contracted to undertake work on the site. Included in that work was the installation of gas pipes to one or more gas-fired heaters to be used in the facility. Those gas pipes were to run from a plant area at roof level, across the ridge line of the roof of the building to a point which is not disclosed by the evidence.

The second defendant is a partnership of Donald Barr and his wife Nilmanie Barr. Donald Barr has a brother called Peter Barr. Peter Barr had been approached by the construction manager of the third defendant and asked to undertake works on the site which included the installation of air conditioning ducts. Because of difficulties that Mr Barr had in relation to payment in the past he indicated that he was prepared to do the job but only on the basis that the contract was with the second defendant, which would be responsible for the financial side of things.

As at 26 June 2008 the building had been substantially constructed. The roof was in place. The roof was made from clip lock metal and was gently sloped from either side of the central ridge capping. On the roof there was at least one plant room. Around the edge of the roof there was a parapet which varied in height. Cut into the roof were a number of penetrations which were designed to accommodate the later installation of ducting from heating or cooling units sitting on the roof through to the rooms beneath. Those penetrations had been cut by another subcontractor of the third defendant Robsway Rigging Pty Ltd. The penetrations had been left covered by sections of the roofing material that had been screwed onto the flashing around the edge of the penetration. Whilst that roofing material was not designed to bear foot traffic when attached in that way, it was sufficient protection to prevent persons on the roof from falling through the penetrations.

On 26 June 2008 the plaintiff who was an employee of the first defendant fell through one of the penetrations on the roof when he was installing the gas pipeline across the ridge line. The penetration into which he fell was immediately adjacent to that ridge line. For reasons which I will examine at paragraph [25], the penetration was no longer covered with the screwed down metal roofing but instead had a temporary unfixed plywood cover placed over it. It appears that, although the plaintiff had been aware of the existence of the penetration, while undertaking his work the plaintiff forgot about it and stepped backwards onto it. The cover gave way and he fell onto the concrete floor in the room below.

On the day of the plaintiff’s accident, both the first defendant and the second defendant had had access to the roof. In addition to the plaintiff, the first defendant’s director, John Chiera, had been on the roof in addition to another employee of the company, Ryan Raiser. So far as the second defendant is concerned, Peter Barr had had access to the roof. Because it is ultimately important to determine whether or not the second defendant is liable and the extent of responsibility between the defendants for what occurred, I will set out below the chronology of what occurred.

Peter Barr arrived on site at approximately 6.30 am. He had a discussion with Nick Hatzidoulis and Paul Grebert. Nick Hatzidoulis was the engineer/project manager engaged by the third defendant to run the construction job. Paul Grebert was subordinate to him but acted as site foreman. Paul Grebert was also engaged by the third defendant. The third defendant accepted that it was responsible for the conduct of Nick Hatzidoulis and Paul Grebert.

Following that conversation Peter Barr and one of the two other employees of the second defendant that were on-site to assist him took the extension ladder from the top of his vehicle and set it up on one side of the building so as to allow him access to the roof. Peter Barr then ascended the ladder and took the metal covers off two of the penetrations. Those two penetrations were penetrations through which he was proposing that day to install metal ductwork. Of the two penetrations the penetration through which the plaintiff ultimately fell was closer to the ridge line. The edge of this penetration was only a few centimetres from the ridge capping. I will refer to this as penetration one. The other penetration, which was located approximately two metres away from the edge of the first and on the other side of the ridge capping, will be referred to as penetration two. Mr Barr needed to remove the fixed metal covers on those penetrations because the ductwork would ultimately need to protrude from the holes and it was impractical to attempt to install the ductwork while the covers were still in place. At the same time, it is likely that he made some minor adjustments to some of the metal roofing around the edge of the penetrations to ensure that the ductwork could be fitted into it. Whether or not this resulted in an increase in the overall size of the penetrations is not made clear by the evidence because, at least in relation to one of the penetrations, there was also what is known as under-flashing around the edge of the penetration and it is not clear whether any adjustments to the metal at the edge of the penetrations had the effect of going beyond the edge of that under-flashing. In any event any adjustments that were made were of a minor nature involving possibly cutting out between 5 and 40 mm of metal in some unidentified manner. After doing this Mr Barr then returned to ground level back down the ladder, removed the ladder and secured it to his vehicle.

John Chiera arrived on site after Peter Barr. He gave evidence that he spoke with Nick Hatzidoulis and Paul Grebert. It was not a meeting in the office. It was not clear whether he spoke to them at the same time or separately. He then went up onto the roof with the plaintiff and instructed him on the works to be done that day. By this time Mr Barr had left the roof. Mr Chiera and the plaintiff obtained access to the roof via an elevated work platform or scissor lift which was next to one side of the building. The third defendant had not authorised the first defendant to use the scissor lift for that purpose. While showing the plaintiff the work to be done, Mr Chiera pointed out the penetrations in the roof and told the plaintiff to be careful of them. In relation to the penetration that the plaintiff ultimately fell through, he was instructed by Mr Chiera to work on the other side of the ridge capping when in that area.

Mr Chiera and the plaintiff then got down from the roof and had “smoko”. After smoko supplies for the job were delivered to the site by Reece Plumbing and the plaintiff and Ryan Raiser brought up the equipment that was necessary to undertake their job. They brought up the copper piping, clips, drills and an oxy-acetylene welding kit. They then set about fixing the clips to which the copper pipe was to be attached. Those clips were fixed with screws into the ridge capping of the building. This work involved using battery powered drills. They both undertook this task working from opposite ends of the building towards the middle. The plaintiff started from the plant room end and was just past half way when he met Mr Raiser. It is likely that the plaintiff had to pass penetration one when he was installing these clips and, obviously, managed to do so without mishap.

While this was occurring Peter Barr was in the room beneath, working on installing ductwork into one of the two penetrations. The penetration upon which he was working was the one which was located slightly further away from the ridge, penetration two. His work involved connecting the sections of duct to each other and securing them to the roof of the building. The duct upon which he was working came down from the roof, took a 90° bend and then went through a penetration in the wall of the room so as to enter an adjoining room where it terminated. He was working on an elevated work platform provided by the third defendant for work in that area. His work involved using a drill, a hammer and other tools to secure the duct work. He wore earmuffs while working. Although the evidence is not very clear, he appears to have been working with one of the other employees of the second defendant while the other employee worked at ground level. Consistently with the work that was being undertaken on this penetration, Mr Raiser observed a person’s head “pop up” through penetration two. The plaintiff also observed a person working beneath penetration two which was, at that stage, uncovered.

On the roof, after the plaintiff and Mr Raiser had completed the installation of the clips along the ridge line, they then started to install the copper pipe along the line of clips. Part of this work involved expanding the end of a section of copper pipe so that an adjoining section could be slotted into it and ultimately welded together. The plaintiff was getting ready to weld and wished to get something to protect the roof underneath where he was proposing to weld the pipe. He stepped across the ridge line to the side where penetration one was located. He had taken two or three steps when he fell through the penetration. Mr Raiser, who had seen the plaintiff fall through the penetration, looked down the penetration and saw him on the ground. There was some plywood wedged diagonally across the penetration and he took it out and tossed it out of the way.

Mr Barr was present in the room into which the plaintiff fell. He had his back turned and was discussing something with one of the second defendant’s employees. The other employee arranged to move the scissor lift from the penetration where he had just installed the duct work (penetration two) to the other penetration (penetration one). Mr Barr’s attention was drawn to the fact that someone had fallen through the penetration onto the ground. He then immediately attended to the plaintiff. Mr Barr was, as well as a sheet metal worker, a paramedic and so was able to assess and assist the plaintiff until ambulance paramedics arrived.

The plaintiff was taken to hospital. WorkCover inspectors and union officials then descended upon the site. The WorkCover inspectors took statements from Mr Barr and Mr Raiser. They did not consider that there was any safe form of access to the roof of the building so they could not complete their inspection. They took some photographs of the scene the next day at 8.30 am when they attended the site. At that time access was gained to the roof area via the plant room. Prior to that day a staircase had been completed to the plant room but no hole had been cut in the metal walls that would permit access from the plant room to the roof. That was done so as to permit WorkCover inspectors to access the roof. A number of photographs were taken and some sketches were made. At least in so far as they were admitted into evidence, the photographs, notes of the inspectors and investigation report subsequently prepared by WorkCover do not provide a comprehensive picture of the scene. Further statements were subsequently taken from the plaintiff and Mr Raiser.

Issues

Both the first and third defendant admitted that they were liable for the plaintiff’s injury but submitted that the second defendant was also liable. The case for the second defendant was that Mr Barr had arranged with Mr Hatzidoulis and Mr Grebert (the project manager and site foreman) for the establishment of an exclusion zone on the roof so as to prevent anyone else accessing the roof after the screwed on metal covers were removed from the two penetrations. It contended that after the exclusion zone was agreed upon Mr Barr had no knowledge of anybody being on the roof in breach of that arrangement. As a consequence, the second defendant submits that it was not negligent. It also makes submissions about the scope of its obligations under regulation 73 of the Scaffolding and Lifts Regulations to the effect that it was only responsible for its employees and not responsible under that provision for the safety of other subcontractors and their employees working on the site.

Evidence of Peter Barr

The evidence of Peter Barr was significant and ultimately determinative of the second defendant’s liability. It went to the following issues:

(a) was an exclusion zone established by agreement between Peter Barr and the representatives of the third defendant?

(b) was the second defendant aware of people working on the roof prior to the plaintiff’s accident?

Mr Barr gave evidence that he first went to the site with his brother Donald and met with Nick Hatzidoulis who was an engineer and construction manager for the third defendant and was responsible for running the job. They talked about the installation. He returned about three or four days later, taking sketches of his proposed layout and marked out the systems on the ground. At that time he spoke to Nick Hatzidoulis and Paul Grebert about safety issues. He discussed getting access to the roof. At that stage he was told that there was no formal means of access to the roof and that he would have to use an extension ladder. He identified that there were no catch points which would let him safely put up such a ladder. That was of significance because it meant that he required additional labour in the form of someone who could stay at the bottom of the ladder. He spoke with Nick Hatzidoulis and Paul Grebert about formalising access to the roof either by opening the planned access through the plant room to the roof or by providing catch points on the roof and a railing on the side of the building closest to the lake for the duration of the works.

When he subsequently commenced installation Nick Hatzidoulis said that he was not going to do the things which he had been requested to do. Nick Hatzidoulis said that he did not want to open up the formal access because that would give “open slather” access to the roof. He said that if he kept it closed then persons getting access to the roof would need to use an extension ladder and he would know about it.

Peter Barr had between 10 and 17 days work to complete the job. He had a daily discussion with Nick Hatzidoulis and Paul Grebert although not necessarily both of them every day. His routine was to check in on one or other or both of them every day at about 6.30 am. He would discuss the previous day’s work and the work that he proposed for the day. There was no system of formally signing in or signing out at the construction site. Mr Barr said that Nick Hatzidoulis would make notes at each meeting and would do so on what Mr Barr described as a graphing book. He said he needed to inform one or other of them before he used the extension ladder because there were no catch points and the base of the ladder would be in an area which was a thoroughfare. As a consequence it was important to ensure that the representatives of the third defendant were aware of what was going on so that they could ensure that the ladder was kept safe. That was done by the third defendant arranging for a barrier to be placed across the thoroughfare. Mr Barr said he was never told by the third defendant that he might access the roof via a scissor lift. He said that even if it had been offered, he would not have used it because a scissor lift is designed as a work platform and he did not consider it an appropriate piece of equipment to use as a means of transport.

It is necessary to note at this point that the normal way that Mr Barr would have installed the large air conditioning ducts, which were approximately one metre in diameter, would be to work from the roof down. That would involve working on the roof to secure the duct work and then continuing from within the building to work towards the termination of the duct. That had the advantage of making it easy to ensure that the duct work ended up in the right position within the roof penetrations. What in fact occurred on the Club Lime job was that the duct work was installed in reverse, that is, from the bottom up, because Mr Barr was waiting for the penetrations in the roof to be cut.

On 25 June 2008 Mr Barr’s evidence was that he raised again the issue of safe access to the roof with Nick Hatzidoulis and Paul Grebert. He said words to the effect “Are you going to install harness protection or safety barriers I have requested?”. Nick Hatzidoulis said “No, there are other ways we can do this. It would be a financial imposition that we do not need to bear.” Nick Hatzidoulis said that the duct work could be installed from below and that he could prevent people from going on the roof. He said “We can make an exclusion zone. As soon as the ladder is down put it back on the car and we won’t let anyone on the roof.” Peter Barr said that neither Nick Hatzidoulis or Paul Grebert said that any other works were to be undertaken on the roof.

When he arrived at 6.30 am on 26 June he met with Nick Hatzidoulis and Paul Grebert in their office. He indicated that he was going to get on with the job and there was no discussion at that stage of there being other work on the roof. He then met Craig and Paul, the two employees of the second defendant who were provided to assist him. Paul was tasked with setting out the equipment. At about 7 am Peter Barr ascended the extension ladder and removed the metal weather covers on the two penetrations upon which he was going to work. He did so with an electric screwdriver. He said that prior to doing so he positioned an elevated work platform underneath the two penetrations in order to provide fall protection while he was working on them. He said that he could do this because the work platform had the capacity to extend by about one third. As a consequence had he fallen through the penetration he would have only fallen about 1200 mm into the platform. He said that when he took the covers off he put them into the work platform to be lowered to the ground. He could not recall whether he snipped out the wire that had been across the penetration or not. He made some minor adjustment to some of the metal at the edge of the penetration either with tinsnips or a grinder. He could not recall with any precision the detail of any adjustments to either of the penetrations but thought it would be in the order of 5 to 40 mm. After that he returned to the extension ladder, descended the building and put the extension ladder back on the truck. His evidence was that he left the penetrations completely open. After that he met with Craig and Paul, discussed the job and got on with it. He had started installing by 8 am at the latest. He was interrupted by Nick Hatzidoulis who had concerns about the weather. Nick Hatzidoulis asked him to cover the hole that he was not working on (penetration one) because he was concerned that if it rained water would get into the building. While Mr Barr considered that Nick Hatzidoulis was wasting his time he did, at about 10 am, move the work platform across and put a temporary cover on penetration one. He said that he put a piece of plastic over the cover and supported it using either pieces of clip lock roofing or a timber packing case. During the process he did not see anybody on the roof or hear anybody in the roof. He was not told that there was somebody on the roof. He then returned to continue work on penetration two. By the time of the accident he had completed that installation and then returned to the ground. He told Paul to relocate the work platform to underneath penetration one and it was at that moment that the plaintiff fell through the roof.

It is important to note at this stage that as well as being a sheet metal worker for approximately 40 years, Mr Barr has been a paramedic for fourteen or fifteen years. Between one and four months of every year, he has worked as a paramedic for private companies. Examples of the sort of paramedic work that he did included being a paramedic during stunt work for the film and television industry and at motor sport events. He had also worked as a safety officer on a number of occasions including on the construction of the airport tunnel in Sydney where he was the safety officer for three years in relation to a tunnelling project involving working within a caisson. He had also been responsible for supervising a hyperbaric chamber in Sydney for three years and in Darwin for two years.

As a consequence of the plaintiff being pointed out to him, Mr Barr went over to him and examined him, tried to get a response from him and ensured that his airway was clear. He told John Konstantinou to ring 000. After ensuring that the plaintiff’s airway was clear he checked for any other outstanding problems. He checked to see if his pupils were dilated as that might be an indication of a severe head injury. He checked his ears for cerebral fluid as well. In order to do so he said that he needed to take out music earbuds from the plaintiff’s ears. He palpated the plaintiff from head to foot and did not observe any other abnormalities. He treated him as if he had a spinal injury.

The evidence of Mr Barr was challenged in cross-examination because although he had made a brief statement to WorkCover inspectors when they attended on the day of the accident, he did not at that stage make any statement about the existence of an exclusion zone or a system of exclusion of other persons from the roof area. Mr Barr explained that the statement was a very brief one which was made in circumstances where he was not happy with the approach taken by the WorkCover inspector, who he perceived was trying to direct what should be put in his statement and who had formally cautioned him. This evidence is corroborated by the fact that there is an annotation on the statement indicating that he had been cautioned. The annotation was initialled by both the inspector and by Mr Barr. It is further reinforced by the fact that instead of being headed “Statement of Witness” as were each of the other statements taken by the WorkCover inspectors at the time or after the incident, the word “witness” had been crossed out by the inspector and the name Peter Barr inserted instead. That is consistent with the WorkCover inspector treating Mr Barr as a potential defendant in a criminal proceeding and in a manner which was different to the way in which he treated each of the other people from whom a statement was taken.

It was also suggested to Mr Barr in cross-examination that he heard people working on the roof. It was suggested that he must have heard the people working on the roof because he was working close to an open penetration and he must have heard them walking or drilling or undertaking other activities on the roof. Mr Barr did not accept that he had heard people on the roof. He gave evidence that as a consequence of the insulation in the roof there was some noise attenuation, that the existence of the penetrations did not make a big change to what could be heard from the roof, that background noise was a significant issue and that he was wearing earmuffs while working. In terms of background noise, he identified that he could specifically recall electricians and flooring contractors working in the area at the same time. Although he thought there were painters present he could not be sure about that. He said that when Mr Hatzidoulis approached him about covering the roof penetrations because of the possibility of rain, Mr Barr could appreciate that Mr Hatzidoulis was making noise but could not make out what he was saying.

Mr Barr denied seeing any persons or tools on the roof when he was working under the penetration or at any other time. His evidence was that he tended to be very focused on his work and gave evidence consistent with this that he often only called breaks when other people complained to him that they were hungry.

He was also cross-examined about why he needed to remove the covers on the roof penetration. He explained, as I have indicated above, that he needed to do so in order to be able to get the top end of the duct in position or through the penetration. He gave evidence that it was appropriate to open up both penetrations because he was proposing to complete the duct work to both of them in a relatively short time and once the duct work was in place they did not represent a significant fall hazard. Had he not opened them both up he would have been required to make two separate journeys up the ladder to open them up rather than a single journey. It was clear from his evidence that accessing the roof via the stepladder was a means of access which contained risks for him which he was keen to minimise.

It was suggested to him that he had actually covered penetration one with a square piece of plywood rather than the plastic supported by the timber of which he gave evidence in chief. He denied that he had put plywood on the penetration. His evidence was that after he had been on the roof, the penetration remained uncovered at all times and penetration one was subsequently covered with plastic and building material.

Three points about the cross-examination of Mr Barr need to be noted. In the brief statement made to the WorkCover inspector on the day of the accident he had said:

I altered existing roof penetrations to accommodate larger size duct, the penetrations were temporarily cover due to inclement weather (there were no other persons on the roof at that time at 9:30 hrs the covers were moved so as to allow installation of duct work & wire clipped out, whilst working on the 1st penetration temporary cover was placed on second penetration whilst in the process of moving to install duct in second penetration a person appears to have fallen through temp cover.

In this statement the reference to the “first penetration” is a reference to what I have referred to as penetration one and the reference to the “second penetration” is to what I have described as penetration two.

There is a note in Mr Barr’s handwriting at the side of the statement:

TEMP COVER = FLYSHEET & EXCESS ROOFING IRON.

Plainly enough, there was an inconsistency between the terms of the contemporaneous statement made by Mr Barr and his evidence about what was used to create the temporary cover. His oral evidence was that it was plastic supported by timber from packing cases whereas his statement said clearly that it was plywood. While he was cross-examined about the composition of the cover, during the course of his cross-examination he was never referred to the terms of his contemporaneous statement. As a consequence he was never given the opportunity to explain, if he could, the inconsistency or apparent inconsistency between his oral evidence and the previous representation.

The second point to make about his cross-examination was that he was never cross-examined about his recollection of removing headphones from the plaintiff when he was checking for cerebral fluid. Each of Mr Raiser and the plaintiff had been asked about whether or not the plaintiff was wearing headphones while working and the plaintiff said that he was not, although Mr Raiser said that he could not recall. Thus, his evidence about this, while contradicted by other evidence was never tested by cross-examination.

The third point to make is that there was no cross-examination which suggested to Mr Barr that his evidence about putting an elevated work platform under both of the penetrations at the same time whilst he was uncovering those penetrations was implausible having regard to the distance between those penetrations. While there was some cross-examination directed to identification of the model of elevated work platform that was used and some evidence of the dimensions of that elevated work platform when extended, it was never directly put to Mr Barr that his evidence about what he had done did not fit with the physical layout of the building, the location of the penetrations or the dimensions of elevated work platform.

Consideration of Peter Barr’s evidence

The first and third defendants submitted that I should not accept Mr Barr’s evidence about his conversations with the representatives of the third defendant to establish the exclusion zone or about his lack of knowledge that persons were working on the roof after the penetrations had been uncovered. The matters that were put involved challenges to other aspects of his evidence which it was said would lead me to not accept his evidence on those two critical issues.

There were a number of matters which the first or third defendants relied upon. The most efficient manner in which to deal with these submissions is to set out sequentially below these submissions (in italics) and my conclusions as to the extent to which the submissions should be accepted.

(a) Counsel for the second defendant said in his opening that there had been no alteration to the size of the penetrations. Those instructions could only have been obtained from Mr Barr and yet he ultimately gave evidence that he had made some adjustments to the roof penetrations.

I do not consider that this is an issue of great significance. As counsel for the second defendant recognised, if there was any fault, the fault lay with him. Mr Barr was not present during the opening of the case. Whether or not there were any alterations to the size of the penetrations was not a significant issue in the case. The statement made by Mr Barr at the time appears to indicate that he did alter the existing roof penetrations and ultimately when he was asked about it, he described the alterations that he made. There is nothing in the course of the way the opening was made or the way the evidence unfolded that indicated that Mr Barr might be changing the evidence that he gave, from that which he recorded at the time or from that which he had previously conveyed to Counsel. As a consequence, I do not accept that any discontinuity between the terms of the second defendant’s opening and the evidence in its final form is of any significance.

(b) There was no evidence given by either Paul or Craig, the other employees supplied by the second defendant in relation to whether or not there was significant background noise or whether plastic sheeting was used in the temporary covers.

It is true that neither Paul or Craig gave evidence. Nor was there evidence as to their unavailability to give evidence. While I take into account the fact that Mr Barr’s evidence as to noise and the materials used for the construction of temporary covers is uncorroborated, it is not a case where the evidence of either Paul or Craig was of such significance that there is, in relation to a particular fact, an adverse inference to be drawn from the failure to call them. Rather, it is a case where Mr Barr’s evidence must be assessed having regard to the other evidence which is available and the risks inherent in accepting uncorroborated evidence. In this regard, there was no evidence to suggest that Mr Barr knew that his evidence would not be able to be contradicted by evidence of witnesses called by the third defendant.

(c) The evidence of Mr Chiera was that there were no plastic covers and Mr Raiser described the roof penetrations as being “baby shit brown” rather than black plastic.

This is an issue where Mr Barr’s evidence is not only inconsistent with the evidence of Mr Chiera but also inconsistent with his contemporaneous statement. I do not consider that the evidence as to the colour of the roof covers is significant because Mr Raiser’s evidence actually related to the colour of the penetration and is more consistent with a description of the under-flashing around the edge of the penetration. However, his evidence was that there was a piece of plywood wedged across penetration one immediately after the plaintiff fell through the hole and the evidence from the photographs taken the next day is consistent with a piece of plywood being present next to that penetration at that time. As a consequence, there is a significant issue about the reliability of Mr Barr’s evidence that he put a plastic cover on penetration one constructed in the manner that he described. However some errors of detail are not to be unexpected after five and half years have elapsed and the manner in which the cross-examination was conducted did not give him an opportunity to explain or concede the inconsistency between his evidence and the evidence that he had given at the time. As a consequence although this issue gives me some concerns about the reliability of Mr Barr’s evidence, the way in which the case was conducted makes me reluctant to place too much weight on this inconsistency.

(d) The evidence of Mr Barr about the existence of under-flashing around penetration one did not make sense having regard to the photographs showing that it was not present on the day after the accident whereas his evidence was that it was present when he opened up the penetrations and he had not removed it.

This is another issue which, like the previous one, gives rise to some concerns about the reliability of his evidence. His evidence was that the under-flashing was present when he was on the roof in the morning. He denied removing the under-flashing. By the time WorkCover inspectors were on the roof the next morning the under-flashing was clearly not there. It is hard to see how the metal cover put in place by the contractor that cut the roof penetrations could have been secured if there was no under-flashing in place. It is possible but unlikely that by some means not explored in the evidence it was removed at some stage after Mr Barr was on the roof in the morning. It is also possible that he had removed it that morning but did not recall doing so. In assessing the first and third defendants’ submission, the significant point is that whether or not there was under-flashing present at penetration one at any particular time was not a matter of any significance in terms of determining the issues in the case. As a consequence it was only explored in a peripheral manner, the evidence on the issue was less than comprehensive and while it does leave some unanswered questions in my mind they are matters which are not significant for the outcome of the case. As a consequence, once again, while the apparent contradiction between Mr Barr’s evidence and the facts disclosed in the objective material is a matter which I take into account in assessing the reliability of his evidence it is not something which of itself is of significant weight.

(e) The evidence that Mr Barr gave about being unaware of people being up on the roof was not credible having regard to the likely noise that would have been created by two workers being present on the roof, moving equipment and drilling on the roof.

On this issue I am not satisfied that I should reject Mr Barr’s evidence. The evidence about what noise would have been created by the workers on the roof was quite general. I am satisfied that there would have been noise from the drilling and the workers walking on the roof. However the evidence was that the roof was insulated in some way and that insulation had an effect in terms of noise attenuation. I cannot be satisfied on the basis of either the evidence given or as a result of common sense and experience that the noise would have been audible through the metal sheeting and insulation or that the existence of penetrations would necessarily have meant that the activities of workers at varying distances from that penetration would have been audible to someone not specifically listening for it. There is inevitably a significant degree of uncertainty about precisely where Mr Raiser and the plaintiff were working on the roof at the time when Mr Barr was working immediately beneath penetration two or at the time when, if his evidence is accepted, he was putting the weather cover on penetration number one. Similarly there is no correlation of the location of the workers above with Mr Barr undertaking any particular activity. Not only was there evidence that he wore earmuffs but also he was working with equipment which at times would have made substantial noise. Finally the evidence does not make it inherently improbable that there was also significant background noise within the room in which he was working as a consequence of the activities of other workers. While there was no evidence of particularly noisy equipment being used within the room, the presence of other tradesmen working in the same area is likely to have added a degree of background noise. In these circumstances the fact that there were at times two workers on the roof walking, drilling and moving equipment above Mr Barr does not satisfy me that I should reject his evidence that he was unaware of their presence. Similarly, there is no evidence that either Peter or Craig were actually aware of persons being on the roof and the evidence that might give rise to a finding that they were so aware is of such a nature that I do not consider it appropriate to draw any adverse inference from the fact that they were not called.

(f) There was no reference in the statement made on the day by Mr Barr to there having been any exclusion zone in place and that if it had existed, Mr Barr, not being a “shrinking violet” would have brought up that centrally important fact.

It is true that there is nothing in the statement about any exclusion zone. However, as I have indicated above, the statement was prepared in circumstances which mean that it was skeletal in its coverage of the facts. I consider that, even if the point is a significant one, the fact that it was not recorded in the statement is not of great significance. The statement does not in any way seek to justify or explain the conduct of Mr Barr but simply gives a bare recitation of the facts.

(g) Mr Barr’s evidence concerning the positioning of the elevated work platform underneath both of the penetrations when he was on the roof was not credible having regard to the dimensions of the work platform and the apparent distance between those penetrations as observed on the photographs that were tendered in the proceedings.

On this point the failure of either defendant to cross-examine Mr Barr in a way that gave him the opportunity to explain the situation would make a finding adverse to his credibility on this point potentially unfair. In any event, although some of the photographs (in particular photograph 8) in Exhibit 4 do make it appear that the proposition that a single elevated work platform could provide full protection in relation to both penetrations was implausible, there is other evidence which would suggest that it was plausible. In particular, the statement of Inspector Anthony Noakes at Exhibit 3 Tab 18 provides some distances between the penetrations. That diagram indicates that the distance between the two uncovered penetrations was only two metres. With an approximate dimension of one metre that would mean that an elevated work platform which could be extended to almost four metres would provide either complete or substantial protection for both penetrations. Although this diagram was not the subject of exploration in the oral evidence it appears to be at least as good an indication of the distances between the penetrations as a lay interpretation of what can be observed in photograph 8 or any of the photographs taken on the roof of the building the next day. As a consequence. I am not prepared to make any finding adverse to Mr Barr’s reliability on the basis of the evidence that he gave about his use of the elevated work platform.

(h) Submissions were also made having regard to Mr Barr’s demeanour in the witness box and the manner in which he answered questions.

I do not accept the submission that the manner of Mr Barr giving evidence was a factor which should attend against his credibility. He was, in fact an impressive witness who I had the opportunity to observe giving evidence over one full day of hearing. He impressed me as a witness who was slow and methodical in giving his evidence. He appeared to me to be a person who was careful. His evidence and conduct was consistent with his professional experience as a paramedic, namely, somebody who would be particularly concerned about issues of safety. During the course of his evidence he made concessions where appropriate but he was a witness who carefully answered the questions to which he was directed, and generally avoided volunteering any evidence beyond that which was required to fairly answer the question. In assessing his evidence, I am conscious that care must be taken not to give too much weight to the evidence of a witness who is very impressive in the witness box when that evidence is inconsistent with other evidence which is, having regard to the circumstances, likely to be more reliable. Thus the favourable impression that I formed during the course of his evidence must not be taken to outweigh other evidence such as his contemporaneous statement where that evidence is in conflict. Nevertheless the manner in which he gave evidence was, in my view, a fact which reinforced the reliability of his evidence on key issues rather than detracted from it.

Was an exclusion zone established by agreement between Peter Barr and the representatives of the third defendant?

There is no evidence to contradict Mr Barr’s evidence that he agreed with Mr Hatzidoulis that the third defendant would establish an exclusion zone. Mr Hatzidoulis did not give evidence. There was a reasonable explanation for the failure of the third defendant to call him as a witness, namely that he currently suffers from dementia and would not be a reliable witness. There was no explanation of the failure of the third defendant to call Paul Grebert.

As indicated above, while there are some aspects of Mr Barr’s oral evidence which I do not consider reliable I generally accept his evidence. As a consequence of my acceptance of his evidence as to the conversation that he had with Mr Hatzidoulis and the absence of evidence to the contrary I find that he did have the conversations with Mr Hatzidoulis to the effect that he described in his evidence both prior to the day of the accident and on the morning of the accident in which Mr Hatzidoulis agreed that no other persons would be allowed on the roof by the third defendant for so long as Mr Barr had the penetrations opened in order to be able to work on them.

Was the Second Defendant aware of people on the roof?

While there was evidence about the noise that was likely to be made as a consequence of the plaintiff, Mr Chiera and Mr Raiser working on the roof, there was, as I indicated above, no evidence that indicated that the noise was necessarily able to be heard in the building below. I have found above that I should accept Mr Barr’s evidence that he did not hear any of the workers above him. No evidence was given by any person who was present inside the building that they did hear the workers on the roof above. Both the first and third defendants made the submission that I should draw an inference adverse to the second defendant by reason of its failure to call either of its employees, Paul or Craig, who were assisting Mr Barr with his work. However I am not satisfied that I should draw such an inference. I am not satisfied that the general and speculative evidence that was led as to the nature of the noise that might have been audible either through the roof or through the penetrations in the roof was audible in the room below.

Conclusion on second defendant’s negligence

For the reasons set out above, I have found that the second defendant arranged with the third defendant that the third defendant would establish an exclusion zone on the roof for so long as the second defendant had removed the covers from penetrations one and two. The effect of that exclusion zone, if it had been enforced by the third defendant, would have been to eliminate the risk of a person falling through the open penetrations. The second defendant was entitled, in my view, to rely upon the discussions with the representative of the third defendant that they would put in place the agreed measure. I have also found that the second defendant was not aware of the fact that there were, contrary to the arrangements made between Mr Barr and Mr Hatzidoulis, people on the roof. Therefore, although the second defendant had a duty to take reasonable care for other subcontractors on the site who might be affected by risks created by the actions of the second defendant, there was no breach of that duty. In so far as the plaintiff claimed in negligence against the second defendant, that claim fails, as do the claims in the notices claiming contribution filed by the first and third defendants which pick up the plaintiff’s negligence claim.

Did the Second Defendant breach its obligations under the Scaffolding and Lifts Regulations?

Section 73 provides:

(1) Any person who directly or by his or her servants or agents (including every independent contractor from time to time engaged in that work) carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in the building work and for this purpose, without limiting the generality of the foregoing, the person shall—

...
(b)provide and maintain safe means of access to every place where any person has to work at any time; and
(c)provide means by fencing or otherwise for securing the safety of any person working at a place from which the person would be liable to fall a distance of more than 6 feet; and
...
(j)effectively fence in the way prescribed by this regulation, all platforms, the open sides of all floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes more than 5 feet deep; and
...

(2)However, despite subsection (1) (j) it shall be permissible to remove when necessary any guardrail, fence or part of it for the purpose of handling materials or for the installation of other work, subject to the guardrail, fence or part being at once replaced on completion of the work.

The Dictionary to the Scaffolding and Lifts Act 1912 defines “building work” as follows:

“building work” means work in constructing, erecting, adding to, altering, repairing, equipping, finishing, painting, cleaning or demolishing that, when done in relation to a building or structure, is done at or adjacent to the site of the building or structure and that, when done in relation to a ship, is done on or adjacent to a ship in dock or on slips.

The plaintiff alleged that the defendants had breached their statutory duty under regulation 73 of the Scaffolding and Lifts Regulations 1950. The second defendant contended that it had not breached its duty.

The second defendant submits that the heightened statutory responsibilities cast upon a person carrying on building work pursuant to regulation 73 are circumscribed by the nature of the building work that person is carrying out. It submits that a subcontractor which is carrying out only a part of the overall building works is not made liable by regulation 73 for the safe work practices of another subcontractor carrying on another part of the overall building works. That is because the statutory duty is owed according to the type of work a person is carrying out. It says that its submission about the scope of regulation 73 would not negate any common law duty that might be owed to a fellow independent subcontractor working on a different part of the overall building works. However, in the present case, it submits that regulation 73 did not require the second defendant, as the air-conditioning subcontractor carrying on air-conditioning works, to be liable for the safe work standards of the first defendant or its employee, the plaintiff, a plumbing subcontractor carrying out plumbing works. It submits that notwithstanding the amendments to the regulation since the decision of the High Court in Buckman (HC) & Son Pty Ltdv Flanagan (1974) 133 CLR 422, the reasoning of the majority in Buckman dealing with how to fix a liability on a particular person remains valid and supports its contention as to the operation of the regulation. Applying its argument to the present case, it submits that while both the third defendant as head contractor and the first defendant as employer owed duties under the regulation to the plaintiff, the second defendant which was a subcontractor working on different aspects of the building project in parallel to the first defendant did not have obligations under the regulation to the plaintiff. I was also referred to the decision of this Court in Stojkoski v Belconnen Concrete Pty Ltd (2013) 274 FLR 316.

Notwithstanding the antiquity of regulation 73 and its equivalent provision in New South Wales, the second defendant did not point to any other authority which supported its submission as to the limited operation of the regulation. The other parties did not direct me to any authority other than those referred to by the second defendant.

In the alternative, the second defendant submits that the removal of the temporary metal covers on the penetrations by the second defendant fell within the exception contained within regulation 73(2). It submits that it was necessary for the second defendant to remove those covers to complete the installation of air-conditioning ducting.

The textual basis for the second defendant’s argument is the link between the words “carries out any building work” and the later reference to “persons engaged in the building work”. The argument of the second defendant reads the obligation in relation to persons engaged in the building work as being limited by the scope of “any building work” so that if a subcontractor’s building work is narrow in scope then the obligation to protect persons is limited to only those persons carrying out that narrowly confined work itself.Applied in the present case it would mean that there was no statutory duty upon the second defendant to take any measures under the regulation to protect the health of employees of other subcontractors. Instead the employees of other subcontractors would be protected by the statutory duty on their employer and by the statutory duty upon the head contractor which has overall responsibility for all the building work. They might receive some derivative protection from the obligations on other subcontractors to protect their own workers but there would be no statutory duty on those other subcontractors.

In the opening words of regulation 73 the bracketed phrase “including every independent contractor from time to time engaged in that work” was inserted by the Scaffolding and Lifts Ordinance 1976. It was an amendment to the regulation made as a response to the decision of the High Court in Buckman. In that case the majority (Barwick CJ, McTiernan and Stephen JJ) held that regulation 73 of the Scaffolding and Lifts Regulations (NSW) imposed obligations on persons actually carrying out building work whether personally or by servants or persons whose acts are in law their acts but did not impose obligations on persons who had subcontracted work to independent contractors. Where the work had been subcontracted to independent contractors it was only where the head contractor actually engaged in building work itself that it could be liable. If it did not then no obligations under the regulation were imposed on it. The amendment made to regulation 73 in the Australian Capital Territory was not made in New South Wales. As a consequence, the decision in Buckman continued to be applicable there and much ink has been spilt in the New South Wales Court of Appeal over the application of regulation 73 in the light of the decision in Buckman: see Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65; Zahner v Andreas Pty Ltd & Boral Building Services Pty Ltd [2001] NSWCA 352; Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; Todorovic v Moussa [2005] NSWCA 100; Lenz v Trustees of the Catholic Church [2005] NSWCA 446; Darke v El Debal [2006] NSWCA 86. Because of the 1976 amendment, in the Territory the position of higher level contractors is simplified in that it is clear that responsibility cannot be avoided by appointing an independent contractor to carry out the task.

The earlier decision of the Full Court of the Supreme Court of New South Wales in Davey v Skinner [1961] SR (NSW) 648 considered the question whether or not the obligation under regulation 73 was imposed upon a subcontractor carrying out works. In Davey the plaintiff was injured in a fall from a defective scaffold erected and maintained by a building owner who had let a bricklaying contract to the defendant, the plaintiff’s employer. The defendant contended that the obligation under regulation 73 was not imposed upon the subcontractor but instead was imposed on the person who overall was engaged in building work. As a consequence it contended that notwithstanding that it permitted its employee to use the defective scaffold it had no liability for a breach of statutory duty because no duty was imposed on it. The majority judgment was that of Evatt CJ and Herron J. Their Honours said (at 652) that the protective network of the regulations were not limited in any way but were cast in wide and broad terms. They were designed to secure the safety of all persons engaged in building work. They pointed out that the obligations were not imposed on an employer as such. Instead it was cast in broad terms and directed to any person who carries out building work. They rejected the contention that a person who carries out building work by servants or agents must relate to the head contractor who normally employs servants or subcontractors, saying:

… we see no reason for reading down the ordinary meaning of the words used. The plain words refer to a person who carries out building work whether he does so himself, that is directly, or whether he engages servants or agents to do so for him. The obligation rests on the active person, that is the one who carries out the work in actual fact.

Their Honours therefore declined to read the provision as if it read either “any person being the principal Contractor” or “any person who carries out the work of building the whole building or structure”. As a consequence, the plaintiff’s employer who was a bricklaying contractor, was a person carrying out building work and within the scope of the obligation. Sugerman J dissented. His Honour considered that the obligation should be limited to the person with overall responsibility for the building work. His Honour said (at 657):

To treat the words “any person who… building work” as related to individual operations, such as bricklaying, carpentry, plumbing, tiling, electrical work and so on, would introduce great complexity.

His Honour continued (at 657–658):

If the subject of the duty is the contractor for a single operation, the objects of it are those engaged in that operation – that is in “such building work”; the master-bricklayer, that is to say, is obliged to ensure… that broken bricks shall not fall on the heads of bricklayers, bricklayers labourers, or bricklaying apprentices, but is not required to concern himself with the safety of, for example, the plumber or the carpenter. The wide protective network thus becomes a web of distinct and individual duty-relationships between individuals and groups (including, it may be, some purely self-regarding duties). That is contrary to the wide single purpose of reg. 73 and of the regulations generally. This, as I understand it, is to impose upon the person who undertakes the building work a comprehensive duty to take measures to ensure the safety and health of everybody who is engaged on it, in whatever particular job, and whether as employee, contractor, or employee of contractor.”

Buckman did not resolve the issue raised by the second defendant: see Glass, McHugh and Douglas The Liability of Employers, 2^nd ed, (Law Book Company, 1979) at 168. For present purposes the important advance made by Buckman upon the competing approaches in Davey was that both majority and minority agreed that whether a person was obliged to comply with the regulation depended upon whether that person was actually carrying out building work: see Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 at [24]–[25]. This meant that both a head contractor and each servant, agent or contractor could potentially be subject to the duty in the regulation and it was not a matter of choosing a single target for the application of the duty as seemed to be contemplated by the competing judgments in Davey.

In my view the interpretation contended for by the second defendant gives effect to the language of the provision and is also consistent with giving the section a broad operation. Interpreted in the manner contended for by the second defendant, the obligation to take measures at any particular level is one which relates to the scope of the building work being undertaken. If only a narrow scope of work is undertaken then the responsibility is to protect “the health of persons engaged in the building work” (emphasis added). Higher-level contractors or the building owner will be met with broader obligations to ensure that the requirements of the regulation are implemented. However, it would be inconsistent with the words of the provision to impose an obligation on a contractor performing task A to protect not only the health of the persons engaged in task A but also the health of persons engaged in task B over which the contractor is unlikely to have control. Instead the responsibility for protecting the health of persons involved in task B lies with the contractor performing that work and any higher-level contractor or building owner which by reason of the opening words of the regulation (“directly or by his or her servants or agents (including every independent contractor from time to time engaged in that work)”) is taken to be carrying out that work. The vice feared by Sugerman J to arise does not arise because the workers doing other jobs are protected by the obligations imposed on their employers as well as the overarching obligation imposed on contractors higher up the chain or the building owner.

As a consequence, in my view the second defendant did not breach any statutory duty to the plaintiff because he was not a person engaged in the work being carried out by the second defendant and hence it cannot be liable for contribution to either of the other defendants on this basis. It is therefore unnecessary to consider the second defendant’s alternative argument about the operation of regulation 73(2).

Did the first defendant give notice of its activities on the roof?

Mr Chiera gave evidence that he would usually make Nick Hatzidoulis or Paul Grebert aware of what he was doing on site that day. He said that it was his standard procedure and that if he did not make them aware then they would ask. His evidence was he had made either Mr Hatzidoulis or Mr Grebert or both aware that he and his employees were going on the roof to put gas lines on the roof and that neither of them had mentioned the existence of a no-go zone on the roof.

There was clearly a level of informality in the arrangements relating to the first defendant’s work on the roof. The first defendant, for example, did not provide its own means of accessing the roof but instead used a scissor lift that was present on the site without authorisation of the third defendant who appears to have been the party responsible for the scissor lift. The scissor lift was used on several occasions to get personnel and material to the roof. There was some cross-examination by counsel for the second defendant directed to whether or not it was unlawful for persons without specific qualifications to use the scissor lift. However I am not satisfied that it has been established that it was unlawful to use the scissor lift in the manner that it was used, although I accept that such devices are designed as elevated work platforms rather than as means of transport.

In the light of my acceptance of Mr Barr’s evidence about the establishment of an exclusion zone on the roof and the evidence given by Mr Chiera about his contact with Mr Hatzidoulis and Mr Grebert, the alternative scenarios appear to me to be as follows. First, Mr Chiera did not specifically advise Mr Hatzidoulis or Mr Grebert that he proposed to have employees working on the roof that morning. Second, he did in fact notify Mr Hatzidoulis or Mr Grebert of that intention but notwithstanding the earlier undertaking by Mr Hatzidoulis, he was not prohibited from undertaking that work and not told of the existence of an exclusion zone. Third, notwithstanding Mr Hatzidoulis’ discussion with Mr Barr earlier, due to some communication error which might have arisen, for example, if Mr Chiera spoke to Mr Grebert rather than Mr Hatzidoulis, he was not advised of the existence of the exclusion zone and not told to delay working on the roof. In assessing which one of these possibilities is more likely than not it is important that I have positive evidence from both Mr Barr and Mr Chiera as to what they did but no evidence from either Mr Hatzidoulis or Mr Grebert either as to what actually occurred or what system was in place at the time.

In the absence of any evidence called or tendered by the third defendant that suggests Mr Chiera did not communicate with either Mr Hatzidoulis or Mr Grebert about his intentions on the morning of the accident, I am satisfied that it is more likely than not that the second or third scenarios explain the presence of the first defendant and its employees on the roof on the day of the accident. In other words I am satisfied that Mr Chiera did communicate his intentions to either Mr Hatzidoulis or Mr Grebert but either as a consequence of an intentional decision or an error on one or other of their parts he was not informed of the exclusion zone and not told to delay his work until the penetrations were made safe.

Conclusion and apportionment

In the light of my findings as set out above I am not satisfied that the second defendant is liable to the plaintiff and as a consequence the second defendant is not a person who is liable for the same damage as the first and third defendants. That means that there is no right of contribution under s 21 of the Civil Law (Wrongs) Act 2002. In relation to contribution as between the first and third defendants, in my view, the just and equitable contribution as between the parties to further damages suffered by the plaintiff is that the first defendant bears 30% of the liability and the third defendant bears 70% of the liability. Clearly enough, the first defendant bore the immediate responsibility for ensuring that the plaintiff undertook a safe system of work. In devising that safe system, regard must be had to the period over which the plaintiff was required to work in proximity to dangerous penetrations and “the possibility of thoughtlessness, or inadvertence or carelessness, particularly in a case of repetitive work”: Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12]. While the existence of the penetrations was pointed out and the plaintiff was given an instruction by Mr Chiera to avoid them when working in proximity to them, having regard to the activities that were required to be performed in proximity to penetration one the system was not a reasonable one. So far as the third defendant is concerned, the third defendant had overall responsibility for the management of the site. It had the capacity to control and direct subcontractors working on the site and to sequence their work in a way that prevented dangers arising to the employees of one subcontractor from the work undertaken by other subcontractors. It was the third defendant’s responsibility to understand overall what was occurring on the site so as to minimise the risk of injury to persons working on the site. Upon my findings above it either deliberately placed the employees of the first defendant in a position where they were exposed to the hazards created by the opening of the roof penetrations or failed to take reasonable care in the communication of safety measures put in place in consultation with the second defendant. Therefore, in my view, it should bear most of the liability for the plaintiff’s injury.

Pleading issues raised at the end of the hearing

In closing submissions counsel for the second defendant raised a pleading issue. He submitted that the claim by the plaintiff and the claims by each of the other defendants could not succeed against his client because of the manner in which the plaintiff had pleaded his case against the second defendant. In the Amended Statement of Claim dated 2 July 2010 the plaintiff alleged that the second defendant “prior to 26 June 2008 had cut penetration holes in the roof of premises… where building work was being undertaken”. It was this allegation that was picked up in the notices claiming contribution filed by the first and third defendants against the second defendant dated 12 December 2011 and 7 September 2011 respectively. The second defendant submitted that the case pleaded by the plaintiff and the first and third defendants against it could not succeed because the evidence was quite clear that it was not the second defendant that had cut penetration holes in the roof prior to 26 June 2008. Rather the evidence was that another entity had been responsible for cutting the penetration holes.

While generally speaking pleadings will govern the conduct of and issues in the case, where the parties without objection conduct a case in a manner that is different from that which arises on the pleadings, then it is not open to a party to later insist upon the proceedings being governed only by the pleadings.

In Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490 at 517 Isaacs and Rich JJ said, in relation to pleadings and departure therefrom:

Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, even if the matter were required to rest on authority only. ... There are qualifications, no doubt, and each case must depend for the proper application of the principle upon its own facts. (citations omitted, emphasis added)

More recently the decision in Gould was cited with approval in Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279. In that case Mason CJ and Gaudron J said (at 286-287):

The function of pleadings is to state with sufficient clarity the case that must be met ... In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. ...
Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference. (emphasis added, citations omitted)

Brennan J said (at 288):

When the pleadings bring the parties to the issue, the court’s function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings ... The rule is clearly laid down in the judgment of this Court in Dare v. Pulham:
“Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings ....”

[emphasis added, citations omitted]

The present case falls squarely within the exception recognised in Gould and BanqueCommerciale. The parties, including the second defendant have conducted the case on the basis that it is a contest over who is responsible for what occurred on 26 June 2008. Specifically it was conducted, in relation to the second defendant, as though the allegation was that the second defendant had been negligent or alternatively breached the Scaffolding and Lifts Regulation by its conduct on 26 June 2008. In particular the second defendant gave an opening which made it clear that it was responding to allegations about what occurred on 26 June 2008. No reference was made to the confined nature of the pleadings against it and the circumstances of what occurred on 26 June 2008 were specifically addressed. Further, evidence was led in chief from Mr Barr in relation to what occurred on 26 June 2008 which would not have been relevant if the case was confined to an allegation about what occurred previously. Similarly, he was cross-examined without objection in relation to what occurred on 26 June 2008 which would only have been relevant if the allegation against the second defendant related to events on that date and was not confined to an allegation limited to the cutting of the penetrations at some time prior to that. In my view the manner in which the case was conducted made it clear that the plaintiff and the other two defendants who relied on the plaintiff’s pleading to define their claims for contribution were not being confined to the allegation pleaded by the plaintiff. Because of the manner in which the parties have conducted the case it is not appropriate that the case against the second defendant be determined on the basis of the allegation pleaded by the plaintiff and picked up by the other two defendants in their notices claiming contribution. Rather it is to be determined on the basis of the conduct of the second defendant on 26 June 2008.

In response to the point made by the second defendant, the first and third defendants made an oral application leave to amend their pleadings to specifically raise conduct of the second defendant on 26 June 2008. In the light of my conclusions above, because the parties have fought the case on a different basis to that which was disclosed by the pleadings I do not consider that it is necessary for amendments to be made to the pleadings at the end of the case. For that reason I dismiss both applications.

Counsel for the first defendant raised a pleading point of his own. He submitted that as a result of the operation of rule 443(5) the second defendant was not entitled to rely upon evidence relating to the establishment of an “exclusion zone” because that had not been pleaded in the second defendant’s defence. Rule 443 imposes additional pleading obligations on defendants to motor vehicle and employment personal injury claims. It includes sub rule (5) which provides: “If the defendant wishes to prove a version of facts different from that alleged in the originating claim or statement of claim, the defendant must plead that version in the defence”.

The purpose of this additional obligation is to reduce the potential for defendants to ambush a plaintiff with an alternative version of what occurred based on a mere denial in a defence. It is, therefore, a rule entirely consistent with the purpose of chapter 2 of the Court Procedures Rules set out in rule 21. It means that unless a defendant positively pleads its alternative version it will not be entitled to establish, through cross-examination in the plaintiff’s case or in its own case a version of facts different from that alleged in the originating claim.

The rule will have its broadest operation where the plaintiff pleads the circumstances of the accident in greater rather than lesser detail. Where that occurs, the defendant will be obliged to be specific in putting forward its different version of the facts. If a plaintiff pleads in generalities then there will be more potential for a defendant to remain consistent with sub rule (5) while making general denials or pleading limited facts in its defence.

In the present case, I do not accept that the point taken by the first defendant is a good one. The case pleaded against the second defendant was that prior to 26 June 2008 it had cut the penetrations in the roof. In relation to that allegation the second defendant specifically denied that it had cut the penetrations in the roof, pleading: “the second defendant did not construct the roof or the penetrations and there was no act or omission on behalf of the second defendant that contributed to the plaintiff’s alleged injury.” Because nothing was pleaded against it in relation to its conduct on 26 June 2008 it was not obliged to plead a different version of the facts relating to what occurred on that date. Therefore it was not obliged to plead the existence of an exclusion zone as it ultimately sought to establish in evidence. Had the plaintiff pleaded against the second defendant that it removed the temporary covers from the penetrations on 26 June 2008 and took no appropriate steps to protect other workers on the site from the risk of falling through those penetrations then rather than merely denying that allegation, rule 443(5) would have compelled the second defendant to plead the facts relating to the arrangements which it alleged it had made for the establishment of an exclusion zone. However, in the light of the way that the matter was actually pleaded and the way in which the hearing was conducted by the parties, in my view, rule 443(5) did not constrain the way in which the second defendant could put its case.

Orders

In the light of the above findings the appropriate orders are:

(1) Judgment for the plaintiff against the first and third defendants in the sum of $300,000.

(2) Judgment for the first defendant against the third defendant on its notice claiming contribution for $210,000.

(3) Judgment for the third defendant against the first defendant on its notice claiming contribution for $90,000.

(4) The first and third defendants have liberty to apply within 28 days for any further or other order to give effect to their respective notices claiming contribution.

(5) Judgment for the second defendant against the plaintiff.

(6) Judgment for the second defendant against the first and third defendants on their respective notices claiming contribution from the second defendant.

(7) Unless any party notifies my associate by email within 28 days of the date of this judgment that it wishes to be heard in relation to costs:

(a) The first and third defendants are to pay 30% and 70% of the plaintiff’s costs of the proceedings as agreed or assessed;

(b) The first and third defendants are to pay the second defendants costs of the plaintiff’s claim against it in the proportions 30% and 70% respectively and are to pay the second defendants costs of their respective notices claiming contribution from the second defendant.

(c) There is no order as to costs of the first and third defendants’ notices claiming contribution from each other.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 23 December 2013

Counsel for the plaintiff:  A R Muller
Solicitors for the plaintiff:  Slater & Gordon
Counsel for the First defendant:  G Stretton SC
Solicitors for the First defendant:  King & Wood Mallesons
Counsel for the Second defendant:  D Jenkins
Solicitors for the Second defendant:   Howes Kaye Halpin
Counsel for the Third defendant:  S M Whybrow
Solicitors for the Third defendant:  Moray & Agnew
Date of hearing:  25 November – 27 November 2013
Date of judgment:  23 December 2013

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Citations

Matthew Xavier Carton v Rainbow Plumbing and Drainage Pty Limited [2013] ACTSC 267

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