Michael Perigo v Workers Compensation Nominal Insurer

[2011] NSWSC 841

Supreme Court

New South Wales

Medium Neutral Citation:	Michael Perigo v Workers Compensation Nominal Insurer and Anor [2011] NSWSC 841
Hearing dates:	25, 26, 27 & 28 July 2011
Decision date:	29 July 2011
Before:	McCallum J
Decision:	Dispute as to the issues raised by the existing statement of claim determined in accordance with [26] and [28] of the judgment; leave granted to the plaintiff to file a third further amended statement of claim; second defendant precluded from calling a witness where no evidentiary statement served as required by pre-trial directions
Catchwords:	PROCEDURE - pleadings - dispute as to issues raised - whether issues identified in case management document properly raised on pleadings - whether plaintiff should be granted leave to amend EVIDENCE - second defendant seeking to call a witness without notice after being directed to provide evidentiary statements from all witnesses - late forensic decision - where first defendant had decided not to go into evidence and court had excused interstate witness on different assumption as to the evidence to be adduced - party precluded from calling witness
Legislation Cited:	Civil Procedure Act 2005 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Category:	Interlocutory applications
Parties:	Michael Perigo (plaintiff) Workers Compensation Nominal Insurer (first defendant/cross claimant) Waco Kwikform Pty Limited (second defendant/cross defendant)
Representation:	Counsel D Wheelahan QC with D L Del Monte (plaintiff) D Kelly (first defendant/cross claimant) J Chapman (second defendant/cross defendant) Solicitors Maurice Blackburn (plaintiff) Gillis Delaney Lawyers (first defendant/cross claimant) Yeldham Price O'Brien Lusk (second defendant/cross defendant)
File Number(s):	2009/297523
Publication restriction:	None

Judgment

1. Mr Michael Perigo is a scaffolder. On 16 May 2006, whilst dismantling scaffolding in the stadium at Wentworth Park in Glebe, he fell eight metres when the planks on which he was standing came away from beneath his feet and fell through a void in the structure. By these proceedings, Mr Perigo claims damages in respect of the injuries he suffered as a result of that fall.

1. The first defendant is an insurance company standing in the shoes of the company that employed Mr Perigo at the time of the accident, Bradley Tracey Scaffolding Services Pty Limited (now unregistered). That company was the sub-contractor to the second defendant, Waco Kwikform Pty Limited, which had been engaged by the principal building contractor to supply and construct the scaffolding. There is an issue between the defendants as to their respective responsibilities pursuant to those arrangements. The foregoing is intended as no more than a summary of the relevant contractual relationships.

1. The hearing of the claim commenced before me on Monday last. The parties do not appear, prior to the commencement of the hearing, to have attended to the requirements of practice note SC CL5. There was not available, on the first day of the hearing, a joint or agreed schedule of issues in dispute, as contemplated by that practice note (see clause 52 and Appendix B).

1. The parties' attempts to comply with my request to have such a document prepared by the following morning revealed a dispute as to the case properly raised on the plaintiff's pleadings. The rulings I foreshadowed in resolution of that dispute in turn precipitated an application by the plaintiff for leave to amend the existing version of the statement of claim. On the third day of the hearing, I granted leave to the plaintiff to file the amended pleading, reserving my reasons. These are my reasons for granting leave to amend and for my rulings as to the issues properly raised by the previous pleadings.

1. On the fourth day of the hearing, I refused to allow the second defendant to call a witness from whom no evidentiary statement had been served on the other parties. This judgment also sets out my reasons for that decision.

Circumstances of the plaintiff's accident

1. In order to understand the pleadings issues, it is necessary to know some of the background to the claim. There were two phases of scaffolding for the works being carried out at Wentworth Park. The scaffolding had been erected in one area and later dismantled before being moved further around the stadium for the second phase of erection and dismantling.

1. The structure of the scaffolding in question is referred to as a "birdcage". It consists of hundreds of bays over a number of levels. When fully constructed, the structure has a single platform on the top level.

1. The base of each individual bay is a square with sides 2.4 metres in length. It appears originally to have been contemplated (to put the matter neutrally) that the four sides of the square in each bay would be made up of two parallel transoms and two parallel ledgers, the transoms being the components making up the sides of the square (on which planks could be placed to form a platform) and the ledgers being the components at the top and bottom of the square.

1. A transom is a length of metal which, in cross-section, is shaped like an upside-down T (or back to back L's, as described by one expert). The design is such that two parallel transoms will securely contain a row of metal planks (commonly ten). The planks are laid perpendicular to the transoms (and therefore parallel to the ledgers). The metal planks used in that circumstance are 2.4 metres in length.

1. A ledger is a cylindrical metal pole.

1. During the erection of the scaffolding at Wentworth Park, it became apparent that there were not enough transoms to complete the structure as originally contemplated. Mr Perigo alleges that an instruction was given to the scaffolders by the scaffolding supplier, Waco, to use ledgers in place of transoms. Scaffolding planks can be placed on ledgers instead of transoms. However, since a ledger is cylindrical, and does not have the L-shaped groove of a transom, the planks can only rest on top of a ledger (whereas they can be contained firmly between parallel transoms). The 2.4 metre metal planks are accordingly not suitable for the construction of a platform on a bay that has ledgers in place of transoms on the sides of its base.

1. It appears to be commonly accepted within the scaffolding industry that, in a bay in which the sides of the base are ledgers instead of transoms, any platform must be constructed using wooden planks rather than metal planks. Wooden planks are the suitable choice in that instance because they are longer, so that they extend beyond the line of the ledgers, and also because they are heavier and have more friction against a cylindrical metal pole. Where transoms are used, however, the platform must be constructed using the 2.4 metre metal planks. The wooden planks are too long to fit within the square.

1. The bay from which Mr Perigo fell had been constructed using one transom and one ledger as the parallel side components upon which the platform planks were to be placed. The transom was on Mr Perrigo's right when he began the relevant task, the ledger on his left.

1. The dismantling phase of the scaffolding required the scaffolders to bring the whole platform down to the ground, level by level. The scaffolder would begin the process on the level beneath the platform, standing on the base frame of the bay (which had no platform). The task was to bring the planks down from above his head one by one and place them at his feet, each time standing on the new plank below to reach the next plank above. However, the fact that some bays had been constructed using ledgers on the sides instead of transoms meant that there would potentially be a need to substitute metal or wooden planks throughout the process.

1. If the platform above the scaffolder's head had metal planks, and the bay at his feet had two parallel transoms, it was appropriate for him to bring the planks above his head down to the level of his feet. In that circumstance, he would bring down the first plank and then stand on that plank to reach the next plank in the bay above his head. The process continued in that fashion until a platform was complete in the bay at his feet. If, however, the bay at the scaffolder's feet had ledgers rather than transoms, the appropriate process was to use wooden planks. If the planks above his head were not wooden planks, the scaffolder had to call for wooden planks to be brought to his bay.

1. The planks above Mr Perigo's head in the bay from which he fell were metal planks. Mr Perigo is right-handed and says that he would in each instance lift the right end of the plank first and place that end down first. It is Mr Perigo's case that, when he began bringing the planks down and fitting them into the transom on the right at his feet, he did not notice that the component on the left was a ledger rather than a second transom. He acknowledges that, had he noticed the presence of a single ledger, he would have called for wooden planks.

1. Photographs of the bay taken after the accident suggest that Mr Perigo must have brought down three or four metal planks before they slipped from beneath his feet.

Issues raised on the pleadings

1. The disagreement as to the proper scope of the issues raised by the plaintiff's claim was revealed by the inclusion of the following issues in his proposed statement of issues:

3. Whether it was negligent for the first and/or second defendant to have failed to give direction to its servants or agents not to use a combination of one transom and one ledger in a single bay when constructing the second stage of the scaffold.

5. Whether the use of the improper combination of a ledger and a transom in a single bay within a birdcage kwikform scaffolding structure was negligent.

6. Whether the use of the combination of a ledger and a transom in one bay within a birdcage kwikform scaffolding structure at a height of approximately 8 meters was negligent.

8. Whether permitting one to use a steel board to construct a deck on a bay containing one transom and one ledger was negligent?

1. It was submitted on behalf of each defendant that the case as pleaded made no allegation of negligence in respect of the construction of any particular bay using one transom and one ledger as the parallel side components on which the platform planks were to be placed.

1. The first defendant (the insurer of the employer) submitted that the only case it had come to meet was one of a defect in system. The plaintiff's case was understood to be based on the proposition that, when it became known that there would be a shortage of transoms so that the structure could not be built as planned or expected, it was reasonably foreseeable that workers such as Mr Perigo would come across bays in which they had to negotiate and deal with ledgers where there would ordinarily have been transoms.

1. The first defendant understood that case to be confined to an allegation of a failure in planning and organisation, its defence to that case being that the second defendant (Waco), and not Bradley Tracey Scaffolding, was the responsible entity. Mr Kelly, who appeared for the first defendant, stated that he had not understood there to be a case put that Bradley Tracey Scaffolding was vicariously liable for the negligence of an unidentified individual employee in the construction of the particular bay using one transom and one ledger as the side components.

1. Waco effectively took the same position, contending that the case had always been confined to general allegations concerning the steps that should have been taken when the shortage of transoms became apparent, and that nowhere had it been alleged that Waco should have prevented the construction of any individual bay using the combination of a single transom parallel to a ledger.

1. It was maintained on behalf of the plaintiff that the case articulated in the statement of issues has been adequately pleaded and should not have taken the defendants by surprise.

1. The relevant version of the pleadings was the second further amended statement of claim filed on 18 July 2011. I should note that the pleader inadvertently confused transoms with ledgers in that document but neither defendant was misled by the error. In the passages that follow, I have corrected the error so as to avoid confusion. Paragraphs 12 to 15 of the second further amended statement of claim state:

12. When the scaffolding was constructed Waco's servants and or agents instructed Bradley Tracey through its servants and or agents to construct the scaffolding by the use of ledgers instead of transoms in places where transoms were usually used.

13. The scaffolding was constructed by the use of ledgers instead of transoms in places where transoms were usually used in accordance with Waco's instructions.

14. Metal planks as provided by Waco were used to straddle the ledgers which had been placed were (sic) transoms would normally have been used.

15. In instructing that ledgers be used instead of transoms in places where transoms were usually used Waco created a risk that unsecured metal planks would slip when the scaffolding was being dismantled causing the first plaintiff to fall and suffer injury.

1. The particulars of negligence include the following:

(c) Failed to provide a sufficient number of transoms to allow the scaffold structure to be properly constructed.

(i) Instructing Bradley Tracey's employees, servants and/or agents to use ledgers in places where transoms were usually used.

1. I took the view that those allegations, fairly read, did raise as against the second defendant issues 3, 5, 6 and 8 in the proposed statement of issues distributed on behalf of the plaintiff. Although the pleadings referred to "ledgers" in the plural, it was clearly alleged, in my view, that the negligence extended beyond the adoption of a defective system and went to the fact of construction of some bays with ledgers in place of transoms, including the construction of the bay from which Mr Perigo fell (as to which it is common ground that there was one transom and a parallel ledger).

1. The contrary understanding reached by Waco's legal representatives appears to have been informed by the fact that the expert evidence subsequently served by the plaintiff was not squarely directed to that issue, at least until the experts conferred and prepared a joint report. Whether or not that is so, the present dispute is to be determined by reference to the pleadings. In my view it was clear from the second further amended statement of claim (in particular paragraph 15) that the plaintiff was not confining his case against the second defendant to systems or to events that occurred during the dismantling phase. He was contending that the original instruction to use ledgers in place of transoms was negligent. Whether that contention is sustained by the evidence is a separate question.

1. I formed the view, however, that the position was different in respect of the first defendant. The allegations made in paragraphs 12 to 15 of the second further amended statement of claim set out above plainly focus on the conduct of the second defendant in giving the instruction which resulted in the use of ledgers in place of transoms. Mr Wheelahan of Queen's Counsel, who appeared with Mr Del Monte for the plaintiff, submitted that it was plainly sought by those allegations to fix the employer with liability for the acts of its employees who carried out those instructions. He submitted that the vicarious liability of the employer for such conduct is an indisputable proposition of law and did not need to be expressly articulated in the pleading.

1. There is, however, a difference between being aware of the existence of an indisputable proposition of law and being put on notice that the principle in question is sought to be invoked on the strength of the facts, matters and circumstances pleaded in a statement of claim. The emphasis of the pleading was on the conduct of the second defendant in giving the relevant instruction. I came to the conclusion that the pleading did not squarely raise an allegation that Bradley Tracey Scaffolding was vicariously liable for negligence on the part of an unidentified employee in building the bay in question using one ledger and one transom.

Application to amend

1. In light of my view as to the case against the first defendant, Mr Wheelahan sought leave to file a third amended statement of claim with the following amendments (indicated in revision mode):

1. As to paragraph 15 of the pleading:

15. In instructing that ledgers be used instead of transoms in places where transoms were usually used, Waco and Bradley Tracey Scaffolding Pty Limited created a risk that unsecured metal planks would slip when the scaffolding was being dismantled causing the first plaintiff to fall and suffer injury.

1. As to particular of negligence (i):

(i) Instructing Bradley Tracey's employees, servants and/or agents to use ledgers in places where transoms were usually used and the first plaintiff asserts that Bradley Tracey Scaffolding was vicariously liable for the acts of those employees/servants and/or agents in so do (sic).

1. The first defendant opposed the amendment on the grounds that it was too late. A further objection was raised the following day based on the provisions of section 318 of the Workplace Injury Management and Workers Compensation Act 1998.

1. As to the lateness of the application, Mr Kelly frankly and very properly conceded that there would probably be little utility in granting an adjournment to enable the first defendant to meet the amendment. The company, Bradley Tracey Scaffolding, ceased operating shortly after the incident sued on in these proceedings. Its former principal, Mr Tracey, has made himself available to the first defendant as a witness but no longer holds any documents relating to the affairs of the company. Accordingly, it appeared doubtful whether an adjournment would produce any further evidence or have any other utility.

1. In those circumstances, it appeared to me that considerations of case management of the kind addressed in the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 were not determinative against the plaintiff in the present case. There was no question of the present hearing being delayed as a result of allowing the amendment.

1. The critical considerations, in my view, were the prejudice of exposing the first defendant at this late stage to a claim it had not understood to be maintained against it and the explanation for the lateness of the amendment sought. As to the latter, there did not appear to be any delay that could be characterised as being due to a tactical decision or indolence. Rather, as the events outlined above reveal, it was more a question of the present legal representatives sailing peacefully towards a hearing under different impressions as to the import of the plaintiff's claim.

1. Consideration of the prejudice of lately becoming aware of the claim is more complex. It has frequently been observed that part of the prejudice of having to meet a late claim lies in the difficulty of identifying what additional evidence or information might have been mustered had the claim been made at an earlier stage. Acknowledging that proposition, it seemed to me that the risk of prejudice was small in the present case, for at least two reasons. First, as discussed in more detail below, the original statement of claim did contain a clear allegation of the kind now sought to be made by the amendment. The pleading was later amended and that is where the confusion may have arisen, but the point is that there was an earlier point in time when Bradley Tracey Scaffolding was clearly on notice of the relevant allegation.

1. Secondly, there is no suggestion that any person constructed the scaffolding other than employees of Bradley Tracey Scaffolding. At the time I determined the amendment application, both Mr Perigo (who was the lead hand scaffolder) and Mr Tracy were still available to give evidence. The likelihood of there being any additional witness who would have additional recollection or knowledge beyond the recollection of those two men about the construction of the particular bay from which Mr Perrigo fell seemed small.

Legislative regulation of proceedings for work injury damages

1. Separately, the amendment was objected to on the basis of the Workplace Injury Management and Workers Compensation Act 1998. Part 6 of that Act governs court proceedings for work injury damages. Relevantly for present purposes, the legislation imposes a requirement that a claimant serve a pre-filing statement before proceedings can be commenced, and circumscribes any subsequent proceedings by reference to that document, subject to the leave of the Court. Thus section 318(1)(a) of the Act provides that a claimant is not entitled to file a statement of claim that is "materially different" from the proposed statement of claim included with the pre-filing statement, except with leave of the court. Section 318(2) provides:

(2) The court is not to grant leave under this section unless satisfied that:

(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b) the failure to grant leave would substantially prejudice the party's case.

1. The objection on that ground was properly raised and I have no doubt that it was taken in good faith. During the hearing of argument, however, it became apparent that the claim comprehended in the proposed amendment was not materially different, for the following reasons.

1. Contrary to the requirements of s 315 of the Act, no pre-filing statement was served before the present proceedings were commenced. However, I was informed that the defendants subsequently accepted that the statement of claim as filed could stand as the pre-filing statement. It followed that there was no issue as to any material difference at that point: they were the one document.

1. The appropriate comparison was accordingly between the statement of claim first filed and the amendment now propounded. Curiously, as already noted, the original statement of claim did include a clear allegation of negligence against Bradley Tracey Scaffolding in respect of the construction of bays using ledgers in place of transoms. The statement of claim was subsequently amended, apparently in light of the report received from the plaintiff's expert. A result of the amendment was that the allegations against Bradley Tracey Scaffolding became more inscrutable. Whether that was the result of a decision to withdraw part of the claim or merely an unhappy side-effect of fiddling with the pleading is not clear.

1. Whilst that history may explain the vigour with which the first defendant opposed the inclusion of issues 3, 5, 6 and 8 set out above, it demonstrates that s 318 of the Act raised no impediment to the proposed amendment. In all the circumstances, I was satisfied that the plaintiff should have leave to amend.

Decision to preclude the second defendant from calling Mr Kang

1. After the plaintiff had closed his case (subject to a reserved right to tender particular documents) and after the first defendant had informed the court that it proposed to call no evidence, the second defendant sought to call a witness, Mr Joseph Kang. Mr Wheelahan on behalf of the plaintiff and Mr Kelly on behalf of the first defendant opposed that course on the basis that they had been told of it only that morning. That would not ordinarily be an impediment to a defendant's calling a witness in a common law trial. It was submitted, however, that the position was different in the present case due to directions given during the case management of the proceedings.

1. During pre-trial case management of this matter, Garling J made the following direction:

That the second defendant serve all further statements upon which it proposes to rely on or before 13 May 2011 excluding any further statement of Mr MacAskill.

1. It was frankly acknowledged on behalf of the second defendant that no evidentiary statement from Mr Kang was served in accordance with that direction, for the reason that there was no intention at that time to call Mr Kang as a witness. The position stated yesterday morning reflected a change of heart based on a late forensic decision. My initial response to the objection raised by the plaintiff and the first defendant was that, subject to seeing an outline of the evidence it was anticipated Mr Kang would give, the second defendant should not be precluded from taking that course. Ultimately, however, I was persuaded that substantial prejudice would be occasioned to both other parties in that event.

1. Mr Perigo's evidentiary statement served in advance of the hearing clearly identified Mr Kang as the alleged author of the instruction from Waco to Bradley Tracey Scaffolding to use ledgers instead of transoms. That paragraph stated:

"Halfway through the construction of the second half of the scaffold, I was informed by Bradley Tracey and an employee of Waco who I knew by the name of Jo Kang, that Waco was running out of transoms and that we had to use ledgers in the place of transoms".

1. The plaintiff also served an evidentiary statement from Mr Allan MacAskill to like effect. Mr MacAskill was a senior supervisor employed by Waco at the time of the accident. He said (in paragraphs 14 and 15 of the statement):

14. Prior to the events described above, during the construction phase of the scaffolding, it had become apparent that there was a shortage of transoms. We were hopeful that the transoms needed in order to complete the construction of the scaffolding in the normal manner would arrive. However, they did not.

15. As a result I received instructions from Joseph Kang who was a Sales Representative at Waco. He said to me words to the effect that "We need to use ledgers until the transoms arrive"."

1. Mr Perigo and Mr MacAskill gave evidence in the trial. It was not put to either of them in cross-examination on behalf of the second defendant that Mr Kang had not given any such instruction.

1. The first defendant served an evidentiary statement from Mr Tracey but ultimately decided not to call him as a witness and not to go into evidence. Mr Tracey had attended in response to a subpoena duly served, and had been in attendance at court for three days before he was excused from further attendance. The circumstances in which he was excused assumed some prominence in the proceedings, because there was a suggestion that he was at risk of losing his employment in North Western Australia if he was required to remain any longer. That consideration was expressly taken into account in the conduct of the hearing (see T 197-198 and 275).

1. It was after all of those events that the second defendant first foreshadowed calling Mr Kang as a witness. Even at the time that decision was communicated to counsel for the other parties, still no outline of the evidence it was anticipated he would give had been provided. Before determining the application, I directed the second defendant to provide such an outline (MFI 5). The outline revealed that I could not, in fairness, allow Mr Kang to be called without also allowing the plaintiff to give further evidence and to re-call Mr MacAskill and without allowing the first defendant to re-visit its decision not to go into evidence (which comprehended the decision not to call Mr Tracey, with the result that he was excused to return to Western Australia).

1. Paragraph 7 of Mr Kang's outline of evidence stated:

I designed a plan. I did not give any instructions to the plaintiff or Bradley Tracey as to how to build the scaffold.

1. Ms Chapman, who appeared for the second defendant, confirmed during argument that it was intended, by that paragraph, to represent that there had been no instruction from Mr Kang to use ledgers instead of transoms.

1. In all the circumstances, notwithstanding my initial response that the second defendant's late forensic decision should be accommodated, I came to the conclusion that to allow the evidence to be called would be inimical to the objects of the Civil Procedure Act 2005 and its overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In light of what I regarded as the inevitability of an adjournment for further evidence if Mr Kang were called, I concluded that the fairest course in accordance with the dictates of justice was to preclude the second defendant from doing so.

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Decision last updated: 11 August 2011