Michael Perigo v Workers Compensation Nominal Insurer (No 2)
[2012] NSWSC 830
•16 July 2012
Supreme Court
New South Wales
Medium Neutral Citation: Michael Perigo v Workers Compensation Nominal Insurer and Anor (No 2) [2012] NSWSC 830 Hearing dates: 25, 26, 27, 28, 29 July 2011, 5 August 2011 Decision date: 16 July 2012 Before: McCallum J Decision: Verdict for the plaintiff apportioned as follows: 25% against the first defendant; 75% against the second defendant. Plaintiff held not to have been contributorily negligent.
Catchwords: TORTS - negligence - duty of care - principal and subcontractor - existence of duty and content of duty - application of Leighton v Fox - standard of care - assumption by principal of responsibility to devise and supervise system of works - knowledge of defect in system - whether breach of duty established - TORTS - adjustment of liability between principal and employer - non-delegable duty of employer owed to employee - TORTS - contributory negligence - experienced scaffolder - tedious, repetitive and physically demanding work - DAMAGES - apportionment. Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946, s 6(4), s 5
Workers Compensation Act 1987, s 151Z(1)(d)
Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
Autodesk Inc v Dyason [1993] HCA 6; (1992) 176 CLR 300
Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Fitzgerald v Penn (1954) 91 CLR 268 at 277; [1954] HCA 74
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jeffs v Rio Tinto Ltd & Anor [2010] NSWSC 1046
Jigsaw Property Group Pty Ltd v Barahona; Pacific Steel Constructions Pty Ltd v
Barahona [2009] NSWCA 406
Kuhl v Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 515; [1991] HCA 12
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2005] HCA 61; (2005) 205 CLR 254
New South Wales Bar Association v Smith, NSW Court of Appeal, 4 July 1991 (unreported)
Price v State of New South Wales [2011] NSWCA 341
Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
The Council of the Shire of Wyong v Shirt & Ors [1980] HCA 12; 146 CLR 40
Tolhurst v Cleary Brothers (Bombo) Pty Ltd [2008] NSWCA 181
Unilever Australia Ltd v Pahi; Swire Cold Storage Pty Ltd v Pahi [2010] NSWCA 149
Waverley Council v Ferreira [2005] NSWCA 341
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25Category: Principal judgment Parties: Michael Perigo (plaintiff)
Workers Compensation Nominal Insurer (first defendant/cross claimant)
Waco Kwikform Pty Limited (second defendant/cross defendant)Representation: Counsel:
D Wheelahan 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
Michael Perigo sustained serious injuries when he fell eight metres onto a concrete concourse whilst dismantling scaffolding in the stadium at Wentworth Park in Glebe. By these proceedings, Mr Perigo claims damages for negligence in respect of those injuries.
The first defendant is an insurance company standing in the shoes of Mr Perigo's former employer, Bradley Tracey Scaffolding Services Pty Limited, which is now deregistered. The insurer was substituted as first defendant in place of the employer with the leave of the Court pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. For ease of reference, no distinction is drawn between the first defendant and the employer in this judgment.
The employer was the sub-contractor to the second defendant, Waco Kwikform Pty Limited. Waco was engaged by the principal contractor, Axis Constructions Pty Limited, to supply, construct and dismantle the scaffolding. Axis is not a party to the proceedings. Waco in turn engaged Bradley Tracey to provide scaffold labour services. The duty to provide the scaffolding equipment remained with Waco. It will be necessary to return to the detail of the respective responsibilities of Waco and Bradley Tracey under those arrangements.
Mr Perigo contends that Waco was responsible for the system of construction of the scaffolding and for the supervision of its dismantling. His primary case is that Waco is 100% liable for the damages he claims. The case against the employer, Bradley Tracey, was put as being effectively in the alternative, but comprehends the additional allegation that Bradley Tracey is vicariously liable for the negligent construction (by an unknown employee) of the particular bay from which Mr Perigo fell.
Bradley Tracey has brought a cross-claim against Waco seeking contribution and indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 and pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987. It was submitted on behalf of Bradley Tracey that Waco's contribution should be assessed at 90%.
Waco has not brought a separate cross-claim against Bradley Tracey but invokes the application of s 151Z(2) of the Workers Compensation Act 1987. In the event of a finding of breach of duty against it, Waco seeks the reverse of the apportionment contended for by Bradley Tracey, that is, Waco seeks a reduction in the damages that may be recovered from it in the order of 90%.
Each of the defendants also alleges contributory negligence on the part of Mr Perigo. Waco submitted that Mr Perigo's damages should be reduced by 100% for contributory negligence. Bradley Tracey expressly did not put the argument that high but otherwise preferred not to venture a figure.
On the fourth day of the hearing, the plaintiff reached agreement with each defendant as to the quantum of any verdict against it (T297). In that circumstance, the parties sought the Court's determination only as to liability and, if the question arose, contributory negligence on the part of the plaintiff and apportionment as between the two defendants.
Bradley Tracey did not go into evidence at the hearing.
Construction of the scaffolding
The works to be carried out at Wentworth Park included painting the ceiling of the stadium. The ceiling was very high off the ground and a substantial scaffolding structure was required for that purpose. Owing to the size of the stadium, the scaffolding had to be built in two stages. First, a scaffold was built to provide access to one half of the ceiling. The scaffolders then left the site for a number of weeks. When the works to that half were complete, the scaffolders returned to dismantle that scaffold and rebuild it further around the stadium to provide access to the other half of the ceiling. They then left again, returning to dismantle it when the second phase of ceiling works was complete. Mr Perigo said that the period between the erection of the second scaffold and its dismantling was about a month (T86.34).
The structure of the scaffold built at each stage is referred to as a "birdcage". Mr Perigo stated that each birdcage when completed was approximately 30 metres by 30 metres at the base and about 18 metres high. When fully constructed, it had a single platform for the painters on the top level. There were no platforms on any other level throughout the structure.
The birdcage was constructed level by level from the ground up. Each level consisted of a grid of bays supported on vertical poles (called "standards"). In most instances, each bay was a cube (more accurately, a rectangular prism) with a 2.4 metre square horizontal base fixed at each corner to a standard. It will be necessary to return in some detail to the components that made up the square base.
The scaffolder would complete the construction of each bay or run of bays by placing a run of planks on the square base above his head so as to make a platform. He would then climb up to the top of the bay and stand on that platform to build the next level, finishing by making a platform above his head. That would then become the platform for building the next level, and so on.
The detail of the four components making up the square base of each bay is important, and calls for some explanation of terms. The parts used to make up the base of a scaffolding bay are referred to as ledgers and transoms, there being two parallel ledgers and two parallel transoms. In traditional scaffolding (known as "tube and fit" or "tube and coupling" scaffolding), all four sides are made using the same components, being cylindrical metal poles (T81-82). Whether a particular pole is referred to as a ledger or a transom in that system turns on its position in the square. The top and bottom poles are referred to as ledgers, while the two side poles are referred to as transoms. The planks making up the platform are supported by the transoms and so are placed perpendicular to the transoms and parallel to the ledgers.
The scaffolding system used at Wentworth Park was the "Kwikstage" scaffolding system, which is a form of modular scaffolding. The components used as transoms in the Kwikstage system are purpose-designed to hold planks. In place of cylindrical poles, the transoms used in that system are 2.4 metre lengths of metal which, in cross-section, are shaped like an upside-down T (or back to back L's, as described by one expert). The point of their design is that two parallel Kwikstage transoms can neatly hold a row of metal planks (commonly ten) placed perpendicular to the transoms to create a secure platform. The metal planks used in that system are also 2.4 metres in length. The components used as ledgers in the Kwikstage system are the same cylindrical metal poles as those used in traditional scaffolding.
It was uncontested that, during the construction of the first birdcage at Wentworth Park, each bay was built consistently using two parallel Kwikstage transoms for the sides of each base square. Cylindrical metal poles were used only for the two parallel ledgers at the top and bottom of the square (T41.43).
However, during the erection of the second birdcage, Waco had a shortage of Kwikstage transoms. Why that was the case when there had evidently been enough of them to construct the first birdcage was not established at the hearing. It is possible that the second birdcage required more transoms than the first but that was not established on the evidence. Mr Perigo said that he saw trucks removing scaffolding material between stage one and stage two (T85.48 to 86.6). It was suggested in argument that there was a nationwide shortage of transoms at that time due to the Grand Prix in Melbourne (T22.22), but there was no evidence to that effect, and in any event it does not explain why Wako would surrender the supply of transoms it already had available.
In any event, Mr Perigo's case is founded on the contention that an instruction was given by Waco to the scaffolders at Wentworth Park to use ledgers (meaning the cylindrical poles) as transoms (meaning the side components of the base) whenever they ran out of Kwikstage transoms. Throughout the hearing, that contention was expressed in short form as being that they were instructed to use ledgers in place of transoms. For convenience, I will adopt that short form of expression in the balance of this judgment. It will be necessary to return to the detail of that contention.
Mr Perigo stated, and I accept, that during the construction of the second birdcage, ledgers were used "sporadically whenever we ran through transoms" (T45.5).
The plaintiff did not ultimately contend (as I understood his position) that the use of ledgers in place of transoms was in itself negligent. As established in cross-examination of Mr Perigo, traditional "tube and fit" scaffolding uses cylindrical metal poles for both functions (T82.25). However, the substitution of ledgers for transoms in the modular system created the need for a different approach. Scaffolding planks can be placed on ledgers, but since a ledger is cylindrical, and does not have the L-shaped groove of a transom, planks can only rest on top of a ledger (whereas they can be contained firmly between parallel transoms). The 2.4 metre metal planks used at Wentworth Park were not suitable for the construction of a platform on a bay that had ledgers in place of transoms as they were too short and were prone to slip.
It was common ground at the hearing that wooden planks had to be used to make the platform of a bay in which ledgers had been used in place of transoms. Wooden planks are longer, so that they extend safely beyond the middle axis of the ledger. They are also heavier and so have more friction against a cylindrical metal pole. Wooden planks were available at the site at Wentworth Park. Where transoms were used, however, the platform had to be constructed using the 2.4 metre metal planks. The wooden planks were too long for that purpose.
Unusually, 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. On Mr Perigo's case, that was due to the shortage of transoms. In cross-examination, Waco put forward an alternative explanation for the configuration of that particular bay.
I should record that, regrettably, Waco was slow to expose its case on that issue. At the outset of the hearing, the parties having failed to prepare a joint or agreed schedule of issues in dispute as contemplated by practice note SC CL5 (clause 52 and Appendix B), I endeavoured to have articulated for my benefit the real issues in dispute, including in the following exchange with counsel for Waco (T22):
HER HONOUR: Well, I've only read the statement of the plaintiff's witness [Mr MacAskill]. Are you saying that Waco wasn't instructing people to use transoms instead of ledgers or hadn't run out of transoms?
CHAPMAN: There was an Australian shortage Australiawide because of the Melbourne Grand Prix and there was notice that the transoms were running out and there were discussions and there was a decision I prefer not to say too much at this point.
HER HONOUR: Now is the time. It's day one. I'm asking you what the issues are so I would prefer you say it, please.
CHAPMAN: There's an issue about that, whether there was instruction from Waco or a discussion to the effect that Grant (sic) Tracey made the decision.
HER HONOUR: So that's a fight as between the defendants who made the decision?
CHAPMAN: Well, yes, but the plaintiff is the leading hand for Mr Tracey and he was involved in a number of important factual matters, decisions, discussions as have borne out from his own earlier statements.
It emerged later in the hearing that, in fact, the case to be put forward by Waco was that the configuration of the bay from which Mr Perigo fell (consisting of one ledger and one transom as the side components) was not due to the shortage of transoms at all but had been constructed in that way by the design or choice of Bradley Tracey due to the fact that the bay in question stood at the intersection between two perpendicular segments of bays. It would have assisted the Court if that issue had been articulated at the outset. That is the purpose of the practice note, which was largely ignored by all parties leading up to the hearing. Although no complaint was made about it by Mr Wheelahan, who appeared with Mr Del Monte for the plaintiff, the approach of holding back what was ultimately a substantive issue as to causation was regrettable, in my view.
It is necessary to explain the significance of the fact that the bay from which Mr Perigo fell stood at the intersection between two perpendicular segments of bays. In the direction in which he was working, the ledger was the left-hand component at the side of the bay from which Mr Perigo fell. However, that component served the dual purpose of also being the top-end component of a bay perpendicular to that bay (see Exhibit A, photographs 5, 14 and D-12 and cross-examination at T97-98). A ledger was the appropriate component for the perpendicular bay, but was not the preferable component for the side of the bay from which Mr Perigo fell.
The evidence does not establish who constructed the bays in that way, except that it was almost certainly an employee of Bradley Tracey.
Circumstances of the fall
The dismantling phase of the scaffolding was the reverse of the construction phase, requiring the scaffolders to bring the whole platform down from the top to the ground, level by level, plank by plank. The scaffolder would begin the process standing on the base frame of the bay beneath the platform. At that point, he would be standing on a level which had no platform, with a void beneath him. From that position, the scaffolder was required to lift 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. Mr Perigo said that the metal planks weigh 15 kilograms (T41.35)
The fact that, during the construction of the second birdcage, some bays had been constructed using ledgers in place of transoms meant that there would potentially be a need to substitute metal or wooden planks throughout that process. 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 use planks above his head (as already indicated, I am here using the term "transoms" to mean the modular "Kwikstage" transoms). In that circumstance, the scaffolder 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.
However, if the bay at the scaffolder's feet had ledgers rather than transoms (or one ledger, as in the present case), the appropriate process was to use wooden planks. If the planks above the scaffolder's head were not wooden planks, the scaffolder had to call for wooden planks to be brought to that bay.
As already noted, the sides of the bay from which Mr Perigo fell had one ledger and one transom, which was unusual. Mr Perigo accepted that, had he noticed that to be the case, he would have known that it was necessary to call for wooden planks in order to build the platform beneath (T98.47; and see T225.42). The planks above his head in that bay were metal.
Mr Perigo is right-handed and stated that he would in each instance lift the right end of the plank first and place that end down first. The transom was on Mr Perrigo's right when he began that task, the ledger on his left.
Mr Perigo stated that, when he began bringing the planks down and fitting them into the transom on the right at his feet, he simply did not notice that the component on the left was a ledger rather than a second transom. He stated he had placed four planks down and was standing on the fourth plank when he saw the planks separate, resulting in his falling. As to the number of planks, it was apparent that his recollection was to some extent informed by photographs of the bay taken after the accident, which show six boards remaining in the bay above. That might suggest that four boards had been brought down before Mr Perigo fell (Exhibit A, photograph 5). However, it is equally possible that only three boards had been brought down and that Mr Perigo was in the process of bringing down the fourth board when he fell.
Waco's responsibilities
The head contractor for the project was Axis Constructions Pty Limited. The contract between Axis and Waco was not in evidence. However, it appeared to be common ground at the hearing that the scope of works undertaken by Waco was as described in its quote submitted to Axis, as follows (Exhibit H, tab 6):
Supply on hire, erect and dismantle once only and finally remove from site scaffolding as follows [the quote proceeded to describe the two stages of the birdcage scaffold].
In addressing Waco's responsibilites, Mr Wheelahan also relied upon the terms of the OHS Management Plan submitted by Waco to Axis (Exhibit H, tab 5). It was not established at the hearing that the Management Plan was contractually binding on Waco. Ms Chapman, who appeared for Waco, identified it as a document produced in accordance with clause 226 of the Occupational Health and Safety Regulation 2001 (now repealed) (T397.41).
The Management Plan set out "the safety and quality management strategy to be adopted by Waco during the course of the scaffolding contract" with Axis. It identified Bradley Tracey as the subcontractor and set out the subcontractor's roles and responsibilities in a separate appendix.
Waco's company safety policy was set out in the main body of the Management Plan (in clause 3.1) as follows:
The effectiveness and success of Waco Kwikform Limited ("Waco Kwikform") in Australia is dependent upon the people employed. Care for the safety and health of employees is a priority duty in Waco Kiwkform.
In the discharge of this duty:
Managers will be responsible for the Occupational Health and Safety of people under their control
Skilled and competent supervision will be provided for all work
All equipment supplied and to be used in the course of work will be in safe and proper order.
Training and re-training will be provided for all employees to ensure conformance to Waco Kwikform and Statutory standards.
All Statutory Standards will be met.
All accidents and injuries will be recorded and reported.
An accident investigation system will be applied to identify casualty factors and establish corrective action.
Inspection programs will be established for all work sites. All deficiencies will be reported and corrected.
Protective clothing and equipment will be provided and maintained for use in accordance with good practice and regulatory standards.
An effective Post-injury Control procedure will be implemented.
All design, development and requests for capital expenditure will reference Occupational Health and Safety.
Safety communication will exist throughout the company and with the main contractor and, where applicable, Safety Committees will form part of Waco Kwikform's Safety Management Plan.
All employees will work with consideration of their own safety and the safety of others.
Resources will be applied to implement this policy.
The Management Plan identified the lines of reporting for occupational health and safety (in clause 6). Importantly, that included identifying Mr Allan MacAskill as the site supervisor/OHS officer on behalf of Waco and Mr Peter Pade as the OHS manager on behalf of Waco. The subcontractor (Bradley Tracey) was identified as reporting to Mr MacAskill.
Subcontract between Waco and Bradley Tracey
The subcontract agreement between Waco and Bradley Tracey recited that Waco had entered into an agreement for the provision of scaffolding equipment and scaffold labour services and that the subcontractor (Bradley Tracey) had agreed to enter into a subcontract with Waco for the provision of scaffold labour for the project.
The obligation of the subcontractor under the agreement was to provide Waco "scaffold labour services for the project in accordance with the works and drawings and on the terms and conditions set out in this agreement". The "works" were identified as the scope of words in schedule 2, which was identical to the scope of works tendered for by Waco in the quote provided to Axis referred to above.
Prior incidents involving Bradley Tracey employees
The respective responsibilities of Waco and Bradley Tracey are also informed by decisions made as a result of other accidents that occurred before Mr Perigo's fall. On 3 January 2006, another Bradley Tracey scaffolder fell eight stories and was killed. That was also a Waco job (Exhibit E, paragraph 23). According to Mr Perigo, Mr Tracey, the principal of Bradley Tracey, was told even then that he would get no more work from Waco and that he had to subject himself to their control whilst completing his existing work (Exhibit E, paragraph 26). That evidence was admitted by consent, without any debate as to the use to be made of it (T237.39). I have nonetheless not given it much weight in light of its form and the fact that Mr Tracey did not give evidence.
On 5 May 2006 another Bradley Tracey employee, Mr Salisbury, fell from a roof at a building site in Bondi and sustained serious injuries.
Waco's response to the Salisbury incident
As a result of that second incident, a number of things happened. First, WorkCover stopped work at the Wentworth Park site. Separately, Waco decided not to give any future work to Bradley Tracey. Mr Rodney Mill, then the executive general manager of Waco, told Mr Tracey on the day of the Salisbury incident that there would be "no more subcontracts" (T312.35; Exhibit D2-2 at paragraph 10). Mr Mill also formed the view at that time that Waco should terminate Bradley Tracey's involvement on existing projects (T312.40). However, as a result of intervention from the CFMEU in the interests of the workers, he ultimately acceded to a request to allow the nine remaining scaffolders employed by Bradley Tracey to finish the job at Wentworth Park. At that point, the only remaining task was to dismantle and remove the second birdcage, a task Mr Mill expected to take 3 to 5 days. Some of those workers had not been involved in the construction of the second birdcage (although Mr Perigo had).
As a result of the Salisbury incident and the stop-work imposed by Workcover, Waco also decided that it was necessary to develop a revised safe work method statement (SWMS) for the dismantling process. That is considered further below.
Finally, Mr Mill decided that "for the remainder of the Wentworth Park job a Waco employee would be on-site at all times to oversee the dismantling of the scaffold" (Exhibit D2-2 at paragraph 16). Mr Mill gave that instruction to Mr Mitchell Geoffrey, who is since deceased. Mr Mill said to Mr Geoffrey (D2-2, paragraph 19):
One of the project managers needs to be present at all times until the scaffold is dismantled. They should supervise the dismantling of the scaffold from a safe position away from the scaffold. They are to ensure as far as possible that the revised SWMS is followed and to look out for any obvious safety concerns.
There was no evidence at the hearing as to whether Mr Mitchell conveyed that instruction in terms to Mr Tracey, since Mr Mitchell is deceased and Mr Tracey did not give evidence. 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.
However, there was evidence to confirm that Waco did in fact assume a higher level of control and responsibility for the Wentworth Park job after the accident at the Bondi site involving Mr Salisbury. Mr MacAskill, the site supervisor for Waco, was called as a witness by the plaintiff. He said that, after the Salisbury incident, "Mr Geoffries" (evidently a reference to the person referred to by Mr Mill as Mr Geoffrey) said to him that the union and WorkCover had become involved and were not happy with Bradley Tracey's safety record and with the work method statement used on the job at Wentworth Park. Mr Geoffries said:
Waco Kwikform will have to take over all responsibilities for the work method and supervision of workers on Bradley Tracey's jobs to ensure that the jobs could be completed.
Mr MacAskill said that either Mr Geoffries or Mr Steel, the Waco sales manager, said to him (Exhibit F, paragraph 13):
You, or someone else when you cannot be there, must put yourselves in a position where you are in full view of all men on the scaffold while they are working. You and Waco supervisors are to enforce the work method statement. You have to ensure that all workers are using their harnesses at all times and if any worker is not wearing a harness, you must tell them that they are to get off the scaffold.
As already noted, although Mr MacAskill was a Waco employee at the relevant time, he was called as a witness by the plaintiff and cross-examined by Ms Chapman on behalf of Waco. He acknowledged that he regarded Mr Perigo as a friend and an excellent scaffolder. Ms Chapman put to Mr MacAskill that he was overstating the extent of responsibility he had been directed to assume following the Salisbury incident. He did not agree (T252-253). The cross-examination did not persuade me that there was any unreliability in Mr MacAskill's evidence as to the level of control and authority exercised by Waco after 5 May 2006 and I did not have any difficulty accepting his evidence.
Safe Work Method Statements
Even before the Salisbury incident, Waco had the responsibility to prepare work method statements and to ensure that the subcontractor understood them. Clause 6.1.1 of the Management Plan specified that the site supervisor (Mr MacAskill) was responsible for safety on the project and that his duties included ensuring the subcontractor had "attended and understood SWMS" (Safe Work Method Statement).
The subcontract agreement between Waco and Bradley Tracey confirms that the terms of the SWMS's applicable to the project were ultimately the responsibility of Waco. Clause 17 states:
Waco Kwikform has developed a work method statement in respect of the works ... a copy of which will be made available to the subcontractor.
Clause 17 further specifies that it is the responsibility of the subcontractor to ensure in respect of each work method statement that:
it will promptly furnish Waco Kwikform with an acknowledgment ... signed by all of the scaffolders employed on the site confirming that the work method statement has been discussed, understood and agreed to.
Clause 10 of the Management Plan stated the procedure for preparing SWMS's and identified those that had been prepared (included in appendix D). The appendix initially contained two separate SWMS's documents. The first (appendix D.2) appears to have been prepared by Waco. The second (appendix D.3) was identified as having been prepared by Bradley Tracey and reviewed by Waco. Neither of those SWMS's specifically addressed the need for a different approach for dismantling the birdcage where ledgers had been used as transoms.
One of the steps taken by Waco as a result of its discussions with the CFMEU and WorkCover following the Salisbury incident was to design a new SWMS for the Wentworth Park site (Mr MacAskill's statement, Exhibit F, paragraph 12). The only task that then remained was to dismantle the second birdcage.
Mr MacAskill was aware of the shortage of transoms and the fact that, in some instances, ledgers had been used in place of transoms in the construction of the second birdcage (Exhibit F, paragraph 16). The terms of the revised SWMS reveal that its author, Mr Pade of Waco, must also have been aware of that fact. The revised SWMS gave different instructions for dismantling the structure according to whether a deck was being moved down on to a bay with transoms or ledgers. In the case of "moving top deck to next lift of transoms" (emphasis in original), the SWMS specified "at lift 2m down from top deck commence placing steel boards along one full run of bays". As to "moving top deck down to next lift of ledgers" (emphasis in original) the SWMS specified "complete a timber deck at each lift along one full run of scaffold".
The revised SWMS was signed by Mr Pade and dated 11 May 2006. The workers acknowledged that document by signing to confirm their attendance at the "toolbox" talk held to discuss the work method specified in the SWMS, as required by clause 17 of the subcontract: Exhibit H, page 161; Exhibit D2-3, volume 2 at tab B.
After being signed by Mr Pade and acknowledged by the workers, the revised SWMS was then submitted to Axis. Axis requested several changes, which were incorporated in an amended revised SWMS also dated 11 May 2006. Curiously, the version of the amended revised SWMS in evidence in Waco's case (Exhibit D2-3, volume 2 at tab D) has attached to it an identical copy of the page of signatures of the employees who attended the "toolbox" talk concerning the original revised SWMS on 11 May 2006. That generated some confusion (and waste of time) in the preparation of these reasons. However, the fault evidently lies in the preparation the exhibit, not the process adopted by Waco. The plaintiff's evidence reveals that the workers signed the amended revised SWMS on 12 May 2006 (Exhibit H, page 183).
One of the safety measures to be introduced by the revised SWMS was a requirement that scaffolders wear a safety harness. The initial revised SWMS specified that safety harnesses were to be worn during the procedure of moving the top deck down to the next lift (clauses 5.0 and 5.1). Separately, it described the controls for the use of harnesses (clause 4.0), specifying that they were "to be attached to adjacent standard by approved double lanyard or approved inertia reel". However, in the section at the conclusion of the document that specified the personal protective equipment (PPE) to be worn by workers, safety harnesses were not mentioned at all. One of the amendments required by Axis was to add reference to safety harnesses in the section of the SWMS that specified the required PPE.
Tedious, repetitive work
It is not clear whether, following the stop-work imposed by WorkCover, the dismantling of the second birdcage started again on 11 or 12 May 2006. Mr Perigo thought it was the Thursday (11 May 2006). The day on which Mr Perigo fell was the following Tuesday, 16 May 2006, which was probably the fifth day of the dismantling process (T50.21). The workers started at 7am, having a lunch break of about 45 minutes at 10am following which they usually worked through to about 3pm. The time of Mr Perigo's fall was about 1.30 pm (T50.14). He said that he would dismantle about 20 bays an hour. As already noted, each bay consisted of 10 planks each weighing 15 kilograms.
There was no real contest, in those circumstances, as to the proposition that at the time Mr Perigo fell he had been doing boring, repetitive and physically demanding work for several days and for several hours that day.
Harnesses
It was not commonplace in the scaffolding industry as at May 2006 to require scaffolders to wear harnesses. Following the introduction of the revised SWMS's, Mr Tracey had to obtain harnesses for use by his men (T92.13).
Mr Perigo acknowledged that he had used a harness previously. He accepted in cross examination that, in his evidentiary statement prepared for the purpose of these proceedings (which was not verified), he stated that he had never previously worn a harness. He frankly accepted that was incorrect and could not explain why it appeared in his statement (T133.44). I do not think the inconsistency reflected adversely on his credit.
Mr Perigo said that the harnesses were "in the back of the ute" and that each scaffolder would just grab his harness and "bung it on" (T41.6). He said that he was not given any instruction on this occasion as to how to use the harness. Under cross-examination, he did not accept that he knew how to put the harness on properly (T137.24-T137.38).
It is difficult to accept that there was any deficiency in Mr Perigo's knowledge in that respect. He is an intelligent and experienced tradesman and I do not imagine the harness posed any great puzzles for him. However, I certainly do not suggest that he was being less than honest in that respect. My perception at the time was that Mr Perigo's resistance to the proposition that he knew how to put the harness on "properly" reflected wariness in the face of a careful cross-examination. So far as he recalled, he had not received formal training and in that circumstance he was not prepared to accept that he knew the "proper" method of fitting a harness.
It was later put to Mr Perigo that, whilst there was no formal training, he did receive some informal training in the use of harnesses from Grant Osborne. Mr Perigo denied that (T228.30).
Mr Perigo's evidence on that issue was inconsistent with the evidence of Mr MacAskill. Mr MacAskill said that a person called Dave Humphries provided training to the scaffolders on site as to the use of harnesses. He said that the training was provided more than once and that on one occasion he himself provided the training after the revised SWMS was introduced (T254-255). Whilst I accept Mr MacAskill's evidence on that issue, he gave no content to term "training". There was no detail as to the extent or manner of the training given. I do not think Mr Perigo was being untruthful as to having received no training. I accept that he genuinely did not recall being shown how to use the harness.
Lanyards
It was put to Mr Perigo in cross-examination that all of the harnesses obtained by Mr Tracey (some bought, some hired) had two lanyards (T136.50-T137.24). Mr Perigo disagreed. As Mr Tracey was ultimately not called to give evidence, the proposition that every harness he acquired had two lanyards was not established.
It was Mr Perigo's recollection that, on the day he fell, the harness he was wearing only had one lanyard (T41.5):
A. They were just in the back of the ute and you'd just grab your harness and bung it on and there were lanyards there, we were supposed to use two lanyards, there was a bunch of lanyards and the last couple of people missed out on the full supply of lanyards.
Q. With regard to the time that you were injured, what do you recall about the harness that you had?
A. It was just a normal every day harness like everyone else was wearing. As I said before, I only had one lanyard. A few blokes had two. The majority had two. There was maybe a handful that only had one.
In cross-examination, Mr Perigo denied that the harness he was wearing had two lanyards (T137.24).
Mr Perigo accepted that, when he was interviewed by WorkCover, he said that there was only one lanyard for everyone on the job. He agreed that that was not true, and could not explain why he had said so (T134.30). It is difficult to know what to make of that evidence. The inconsistency may reveal a measure of exaggeration but on balance I do not think it undermines Mr Perigo's credibility to any significant degree. I considered him to be an honest witness. In the face of some inconsistencies in the evidence (the absence of which would be unusual) he made appropriate concessions. The important issue, as to which he was consistent, is whether he himself had two lanyards.
Mr MacAskill, who was the supervisor until about 9am the day Mr Perigo fell, gave evidence that, as far as he was aware, Mr Perigo "always worked in accordance with the work method statement" (Exhibit F, paragraph 19). However, it is necessary to consider that evidence in the context of Mr MacAskill's evidence as to what he understood the revised SWMS required. It was put to Mr MacAskill that he knew part of the revised SWMS was that the scaffolders had to wear harnesses with double lanyards. He responded that it was difficult to "give a straight answer" to that question "because the initial revise didn't mention double lanyards". He thought there had been a further revision done to include double lanyards (T251.41).
Mr MacAskill later repeated his understanding that the initial revised SWMS did not refer to double lanyards (at T254.22):
Q. Your recollection at the time that you participated in the Workcover interview was that all of the scaffolders were provided with the approved double lanyards before they started to dismantle the birdcage, that is, after Workcover's involvement?
A. What was the question, sorry?
Q. At the time when you attended the Workcover interview
A. Yes.
Q. in February 2007, it was your recollection that all of the scaffolders were provided with the approved double lanyard harness before they started to dismantle that scaffold?
A. Yes, if that was my answer, but, again, it is there was a difference between the two revisions of the Work Method Statement as to
Q. I'm sorry?
A. Initially, whether that was the case, I don't know.
[Emphasis added]
Mr MacAskill's impression on that issue, which is not right but has some foundation, is significant. As already explained, the original revised SWMS specified that the task of bringing down the top deck was to be carried out with a safety harness. A separate clause addressed the hazard of "attachment point" and specified, as the control for that hazard, "safety harness to be attached to adjacent standard by approved double lanyard or approved inertia reel". That is the only place where the term "double lanyard" was used. As already noted, safety harnesses were not mentioned at all in the list of required PPE at the conclusion of the original revised SWMS. The amended revised SWMS added "safety harness" to the list of PPE but did not specify the double lanyard as part of the PPE. Mr MacAskill's confusion as to the content of the SWMS prompts me to doubt whether, in saying that Mr Perigo "always worked in accordance with the work method statement", he meant to contend that Mr Perigo was always wearing a harness with a double lanyard.
Separately, the section of Mr MacAskill's cross-examination set out above reveals that, at the time when he was interviewed by WorkCover in February 2007, over 8 months after the accident (T254.31), he stated that all the scaffolders were provided with double lanyards before they started to dismantle the scaffold. Having regard to the lapse of time between the date of the fall and that interview and the identity of the interviewer, I would not rely on that broad statement in preference to the recollection of Mr Perigo.
Mr Semke, the Waco supervisor at the site at the time Mr Perigo fell, specifically recalled that Mr Perigo's harness had two lanyards (affidavit sworn June 2011 and T305.6). However, he acknowledged that some of the harnesses only had one lanyard (T308.46). The cross-examination of Mr Semke by Mr Del Monte on behalf of the plaintiff, which was both efficient and effective, established to my satisfaction that Mr Semke's recollection as to the number of lanyards on Mr Perigo's harness may not be reliable, given the likelihood that his mind was on the more important issue of obtaining medical treatment for Mr Perigo as quickly as possible. I am more persuaded by Mr Perigo's specific recollection of harnesses in the back of the ute and of his being one of the last men to get to the lanyards.
On balance, I am satisfied that Mr Perigo was wearing a harness with only one lanyard at the time of his fall.
The purpose of requiring two lanyards was so that the scaffolder could remain hooked up at all times. The intended process was that the scaffolder would be hooked up to the standard behind him when he started bringing the boards down. When he reached the halfway point, he was meant to reach forward and hook the second lanyard to the standard in front of him before releasing the first lanyard from the standard behind. The process was described by Mr Perigo as follows (at T84):
A. The beauty of that is, your Honour, you have got one lanyard hooked up to the standard, you have got the other lanyard hooked up to like the belt here so it doesn't get tangled up and doesn't trip you over. You get half way through the bay...[which is four or five boards]...and then the lanyard would start to pull me back, so which makes it very difficult. So you would be, before you unhook that, if you have two, you unhook this and lean over the hole and hook on to the standard in front of you.
HER HONOUR
Q. Could you reach the standard in front?
A. With a stretch, you could. It's a bit of a stretch, but you get there and unhook that one.
With a harness with one lanyard, it was not possible to remain hooked up at all times. Mr Perigo said that, when he reached the halfway point, he had to unhook the lanyard from the standard behind him in order to hook it to the standard in front of him. Plainly, with only one lanyard, he would not have been secured to the scaffolding at that point. He said that he would have to "lean over the void" (T49.36).
Mr Perigo certainly understood that it was a requirement of the SWMS that scaffolders wear safety harnesses. However, it is not clear whether he appreciated that it was specified in the SWMS to use the harnesses in conjunction with either a double lanyard or an inertia reel.
Did Mr Perigo fail to hook his lanyard to the standard?
There was no evidence to suggest that the harness equipment failed. The overwhelming likelihood is that Mr Perigo's harness was not hooked onto the standard when he fell. A further question, however, is whether that was due to Mr Perigo's failing to hook the lanyard to the standard in the first instance or whether Mr Perigo fell after unhooking himself from behind and before he was able to hook himself up to the standard in front.
Mr Perigo's evidence at the hearing was that he could not remember whether he hooked up in the bay from which he fell as he started to lower the platform above him onto that level (T49.41). Given the number of bays he had completed even since the morning break, the absence of any specific recollection on that issue is not surprising.
Mr Perigo was cross-examined as to an inconsistent statement recorded when he was interviewed on 15 June 2006 (about 4 weeks after the accident) by "someone who was investigating the accident from the insurer's point of view" (T100.35). Mr Perigo accepted that, in that statement, it was recorded that he said "I had not followed the work method statement and hooked up my safety harness to the standards. I put this down as human error". He agreed that he had signed the statement including those words, but explained that he "felt pressured in this question from the investigator". He said he assumed the statement had come about as a result of the investigator putting to him "so really means (sic) you didn't follow the work method statement" and that he had said "I suppose so" (T101.37). It is not difficult to accept that the wording of the statement reflects such an exchange.
Mr Perigo also agreed that he had told WorkCover "I must have neglected to hook up the harness before I fell" (T135.1). However, he denied that it was his belief at the time of that interview that he had failed to do so (T134.50). He explained that it was an assumption he made (from the fact that he fell).
In re-examination, Mr Perigo was shown handwritten notes of an interview with Mr Pade on 29 June 2006 (about six weeks after the accident). Mr Pade recorded Mr Perigo as having said:
I placed the board in the transom (when looking at right side) dropped board in, it fitted ok. It must have been in place. I did not check the left side (where the ledger was). I placed three or four boards, stepped on them.
As I was falling I thought the harness would take up. I had time to prepare myself for the fall. I remembered Roy's [Roy Salisbury - fell from awning 05-05-06] injuries because he fell straight down. I fell in at an angle. I was lucky I was not severely injured by the steel in the chairs.
[emphasis added].
That record suggests that, if Mr Perigo failed to hook himself up in the first place, it was due to oversight rather than any deliberate decision, since he was expecting the harness to take up. Neither defendant put a case that Mr Perigo had deliberately refrained from using the harness.
On balance, I am satisfied that Mr Perigo failed, through oversight and after many hours of boring, repetitive, physical work, to hook his lanyard to the standard at the outset of his work on the bay from which he fell.
Principles applicable to the determination of duty of care
Bradley Tracey did not admit (on the pleadings) that it owed Mr Perigo a duty of care as his employer. However, in his closing submissions (which were short and to the point) Mr Kelly, who appeared for Bradley Tracey, did not seek to resist a finding that a duty of care was owed. The principal contentions put on behalf of Bradley Tracey were that there was no breach of duty and that, if there was, by far the greater portion of liability rested with Waco.
Waco denied (on the pleadings) that it owed Mr Perigo any duty of care. In the alternative, it was submitted that, having regard to the relationship between Waco and Bradley Tracey (being one of principal and independent contractor), any duty of care owed by Waco to Mr Perigo was confined in accordance with the principles stated in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, affirmed by the High Court in Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 at [20].
Relevantly for present purposes, the following principles stated in those decisions arise for consideration in the present case:
(1) in some circumstances a principal [or entrepreneur] will come under a duty to use reasonable care to ensure that a system of work for an independent contractor is safe;
(2) the entrepreneur's duty arises simply because he is creating the risk and is more limited than the duty owed by an employer;
(3) the entrepreneur's duty imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury;
(4) the entrepreneur's duty does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur;
(5) if there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power...the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work ... within his area of responsibility.
Since Leighton v Fox, the Court of Appeal has emphasized the importance of considering earlier jurisprudence in light of that decision. In that context, Ms Chapman drew my attention to the decision of the Court of Appeal in Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406. That decision was delivered as a judgment of the Court (Allsop P, Beazley and Giles JJA). The Court noted that Brennan J had in Stevens v Brodribb referred to circumstances "which may make it necessary for a principal to retain and exercise a supervisory role, as a matter distinct from prescribing the respective areas of responsibility if confusion about those areas involves a risk of injury." The Court continued (at [87] to [88]):
The basic principle remains, however, that the principal has no duty to retain control of the system of work if it is reasonable to engage the services of an independent contractor who is competent to control the system of work without supervision, and the activity has been organised and has been placed in the hands of the independent contractor.
The circumstances to which Brennan J referred were not elaborated. Subsequent cases have explored the circumstances, but Leighton v Fox stands against arriving at "a general law obligation ... of a more extensive kind than that recognised in Stevens v Brodribb Sawmilling Co Pty Ltd".
The Court in Barahona proceeded to discuss a series of decisions of the Court of Appeal in which it has been held that a principal owes to an independent contractor a duty beyond the alleviation of risk of injury arising from a need for direction and coordination of activities on a site, including Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 and Tolhurst v Cleary Brothers (Bombo) Pty Ltd [2008] NSWCA 181. The Court emphasised, however, that to the extent to which factors generally relevant to the existence of a duty of care were regarded as sufficient to find a duty of care owed to an independent contractor in those cases, the principles affirmed in Leighton v Fox must prevail: Barahona at [91]; see also Unilever Australia Ltd v Pahi; Swire Cold Storage Pty Ltd v Pahi [2010] NSWCA 149 at [48] per Beazley JA, Allsop P and Giles JA agreeing at [1] and [82] respectively.
The decision in Unilever opened with the following additional remarks of the President at [2] to [3]:
The High Court in Leighton Contractors Pty Limited v Fox [2009] HCA 35 has made it clear that the legal and juridical significance of the place of both the employment relationship and the corporate form is to be maintained in the assessment of the existence of any duty of care in a workplace context - whether complex or simple. Bearing this in mind, as Beazley JA says, care needs to be taken in applying authorities which can be seen not to place appropriate regard to that legal and juridical foundation.
That said, the common law does not operate in a fashion that ignores substance in a preference for legal form. Here, ESP Techforce Pty Ltd ("ESP") was the employer. It was responsible for and carried out direct supervision. There was nothing to lead to any conclusion or apprehension in either Swire or Streets that ESP was not willing or able to understand, undertake or fulfil its duties to its employees who were carrying out work within the overall context of Swire's operation for the commercial interests of Streets. The substance was that ESP, alone, carried the duty of care owed to the respondent.
Mr Wheelahan submitted on behalf of the plaintiff that the party in the position of Leighton in the present case is Axis, not Waco. Nonetheless it remains the case that Waco and Bradley Tracey were in the relationship of principal and subcontractor. As explained by the President in Unilever, the juridical significance of the relationship in which they stood to each other and to Mr Perigo must not be ignored, and is the foundation for an analysis of the content of any duty owed to Mr Perigo by Waco.
Mr Wheelahan acknowledged that the duty owed by Waco was "probably not" co-extensive with the duty owed by an employer to an employee but submitted that "where there is this level of intermeddling or the exercise of control by the head contractor at the site, it is akin to that duty" (T369.2). He noted that the duty of the employer is a duty to take reasonable care to avoid exposing employees to unnecessary risks of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25.7 per Dixon CJ and Kitto J.
Mr Wheelahan sought support for the case against Waco in the decision of the Court of Appeal in Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184, decided after Leighton v Fox. As submitted by Mr Wheelahan, that case has some elements in common with the present case. Unsurprisingly, however, there are also differences. The plaintiff in Roche was injured when he fell 2.5 metres while climbing into a "Cat 785B" dump truck at Wambo Coal Mine. He was employed by a company that provided skilled employees to Roche. Roche was in charge of running the mine and owned the plant and equipment used at the mine, which included the Cat 785B from which the respondent fell: Court of Appeal judgment at [3].
As first instance, Hoeben J (as his Honour then was) held that Roche breached its duty of care to the plaintiff "essentially because it failed to provide a safe means of access to the cabin of the Cat 785B": Court of Appeal judgment at [4].
It may be doubted whether the decision in Roche dictates the conclusion that the duty owed by Waco to Mr Perigo was "akin to" the duty owed by an employer to an employee, as I understood Mr Wheelahan to submit. However, the decision does provide some support for Mr Wheelahan's case.
Hoeben J held at first instance that the plaintiff had correctly formulated the duty owed to him by Roche as a duty "to use reasonable care to avoid unnecessary risks of injury to the plaintiff and to minimise other risks of injury": Jeffs v Rio Tinto Ltd & Anor [2010] NSWSC 1046 at [81]-[84]. That formulation was drawn in terms from the passage in Stevens v Brodribb approved in Leighton v Fox.
His Honour also held, uncontroversially, that the content of that duty was to be determined by reference to the facts of the case and, in particular, those relating to the relationship between the plaintiff and Roche: at [85]. His Honour held that, whilst not co-extensive with that of an employer and employee, the relationship between Roche and the plaintiff was significantly closer than that between a principal and an independent contractor: at [86].
The Court of Appeal expressly endorsed those determinations: per McColl JA at [62] to [63]; Basten JA agreeing at [93]; Tobias AJA agreeing at [108]. McColl JA said:
[62]I would record, however, that insofar as the content of Roche's duty of care is concerned the primary judge was correct, in my view, in adopting Brennan J's formulation in Stevens v Brodribb Sawmilling Co Pty Ltd (at 47-48) (at [84]) in terms of a duty "to take reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury". This is a less stringent duty than that owed by an employer to employees: Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 (at [21]); see generally, Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406 (at [76] ff). It recognises, among other matters, Roche's role in operating Wambo, its responsibilities under the [Coalmines Regulation] Act, its control of the system of work and its ownership of the plant the respondent was required by Roche to operate.
[63]Further, his Honour stated (at [85]), correctly my respectful view, that the content of the duty of care had to be determined by reference to the facts: see Modbury Triangle Shopping Centre Pty Ltd v Anzil [2005] HCA 61; (2005) 205 CLR 254 (at [103]) per Hayne J. It is necessary, of course, to guard against the danger of allowing the cause of the injury to determine the content of the duty without focussing on all relevant circumstances, including the relationship between the parties: see Kuhl v Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375 (at [19]-[22]) per French CJ and Gummow J and the cases their Honours cited. Bearing those principles in mind, in my view the primary judge did not err in formulating (at [97]) the content of Roche's duty of care as being to provide the respondent with a safe system of work and safe plant with which to carry out his work.
[emphasis added]
Mr Wheelahan also relied upon paragraph [77] of the judgment, where her Honour said:
[77]As to Roche's contention that the respondent's experience, training or the obviousness of the risk militated against precautions (other than those in place) being taken, I agree with the primary judge's conclusion (at [117]) that a person in Roche's position is required, when devising a system of work, to take into account inadvertence or miscalculation on the part of those who have to implement that system, especially when it is known, or ought to be known, by that party that the system as designed involves a real risk of injury involving a fall from a distance in excess of two metres where serious injury could result. Although McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, to which his Honour referred in reaching this conclusion, was an employer-employee case, the content of the duty of care the primary judge found (at [97]) that Roche owed the respondent did not differ in any relevant respect from that being applied in that case: see McLean v Tedman (at 311, 311).
Duty owed by Waco
I am satisfied that Waco owed a duty of care to Mr Perigo. The more difficult task is to identify the content of the duty. The facts of the present case require consideration of that issue in two stages, before and after the Salisbury incident on 5 May 2006.
I would not characterise the relationship between Waco and Mr Perigo at any point as being co-extensive with or akin to that of an employer and employee. However, acknowledging that the relationship between Waco and Bradley Tracey was always one of principal and contractor, it is clear that Waco had some responsibility for the system of work required to be carried out by Mr Perigo, even before the Salisbury incident.
During that period, Waco had a substantial role in the establishment of the system of work. It was the supplier of the equipment, which dictated the system of scaffolding to be used. It embarked upon a project using the modular system, and yet did not supply enough transoms to complete the project by that system, creating the need to use ledgers in place of transoms. It also had extensive control and responsibility for occupational safety under the Management Plan including the task of preparing the original SWMS and reviewing the SWMS prepared by Bradley Tracey.
Further, Waco provided an OHS supervisor (Mr MacAskill) to oversee the implementation of the system of work from time to time. It must be acknowledged, however, that Mr MacAskill was not on-site full-time, and the degree of control and supervision was accordingly significantly less than in Jeffs. The extent to which that authority was exercised was explained by Mr MacAskill as follows (T247.17):
Q. But between January 2006 and 9 May 2006, you were not involved in the supervision of the scaffolders directly; were you?
A. It is hard to answer because I did have some authority over the scaffolders, being a representative from Waco but, out of courtesy to Bradley Tracey, he had the direct supervision of his men.
Whether out of courtesy or otherwise, it appears from that description that, in substance, Waco supervised the system of work but only at a high level. Bradley Tracey was substantially responsible for the direct supervision of its employees during that time.
In accordance with the principles stated in Leighton v Fox set out above, I would conclude that, during the period up to 5 May 2006, the content of Waco's duty of care was to supply safe equipment and to devise safe methods of work using the equipment supplied. It was not under a duty to retain control of the system of work, since it was reasonable for Waco to engage the services of Bradley Tracey. I am satisfied that, until 5 May 2006, it was reasonable for Waco to think that Bradley Tracey was competent to control its system of work without direct supervision by Waco.
Before the decision of the High Court in Leighton v Fox, Waco's failure to provide enough transoms for the construction of the second birdcage in accordance with the modular system it supplied might have been a sufficient basis for finding a duty of care owed by Waco to Mr Perigo to control the system of work during the construction phase of the second birdcage or to provide direct supervision of the workers during that period.
I apprehend, however, that to find such a duty in the present case would be to ignore the legal and juridical significance of the employment relationship between Bradley Tracey and Mr Perigo on the one hand, and the relationship of principal and subcontractor between two companies, Waco and Bradley Tracey, on the other hand. Waco retained the responsibility for the supply of materials, the preparation of the original SWMS's and maintaining oversight of the works at a high level. However, the subcontract between Waco and Bradley Tracey delivered to the latter control of the system of constructing the birdcage with such materials as were supplied.
Accordingly, to the extent that adaptations were required as a result of the shortage of transoms, I think the management of those adaptations initially fell within the responsibility of Bradley Tracey.
However, the position was clearly different after 5 May 2006. A critical premise of the principles stated by Brennan J in Stevens v Brodribb, affirmed in Leighton v Fox, is that it is reasonable to engage the services of the independent contractor on the basis that the independent contractor is competent itself to control the system of work without supervision by the entrepreneur. As discussed above, the evidence clearly demonstrates that, after 5 May 2006, Waco did not consider it reasonable to entrust to Bradley Tracey control and supervision of the system of work for dismantling the second birdcage.
I am satisfied that, from 5 May 2006 and in light of the review of procedures precipitated by Mr Salisbury's fall, Waco assumed control of the system of work for dismantling the second birdcage and substantial responsibility for the direct supervision of the workers whose task it was to follow the system of work prescribed by Waco. That emerges clearly from the evidence of Mr Mill and Mr MacAskill set out above.
Ms Chapman submitted that the additional responsibility assumed by Waco following the Salisbury incident was "more of a moral obligation" without legal consequence (T354.18). There is a false dichotomy implicit in that contention. There may be circumstances in which the existence of a moral obligation would not also give rise to a legal obligation. However, the existence of a moral foundation for a duty does not supplant its legal basis. The matters which have persuaded me that, from 5 May 2006, Waco owed a duty of care to Mr Perigo to control and supervise the system of work for dismantling the second birdcage arise from the principles of law stated in Leighton v Fox.
Accordingly, I am satisfied that, from 5 May 2006, the content of Waco's duty of care to Mr Perigo extended to controlling the system of work and participating in the direct supervision of Bradley Tracey's employees.
Duty owed by Bradley Tracey
As already noted, although the existence of a duty was not admitted on the pleadings, Mr Kelly did not submit that Bradley Tracey owed no duty of care to Mr Perigo. I am satisfied that Bradley Tracey owed him a duty to take reasonable care to avoid exposing him to unnecessary risks of injury.
As to the content of that duty, Mr Kelly adopted Mr Wheelahan's submissions as to the relationship between Waco and Bradley Tracey up until the Salisbury incident. He submitted that, pursuant to the OHS Management Plan, Waco determined "what would be built and how it would be built" including prescribing the use of the "Kwikstage" modular system. He submitted that, although Bradley Tracey was not relieved of any obligation to compile its own SWMS, it was nevertheless compelled to comply with the SWMS propounded by Waco. Mr Kelly relied in addition upon the extent of detail in the specification in the OHS plan as to the type of scaffold and the components to be used.
Notwithstanding those matters, I am satisfied that primary responsibility for control of the system of work and direct supervision of the workers rested with Bradley Tracey up until 5 May 2006.
I accept, as submitted by Mr Kelly, that from 5 May 2006, Waco assumed responsibility for the control and direct supervision of works at the site, and removed that control from Bradley Tracey to a substantial degree.
Breach of duty
The plaintiff pleaded a lengthy list of particulars of negligence as follows (third further amended statement of claim at paragraph 25):
(a)Failed to adequately design, implement and enforce a safe system of work.
(b)Failed to adequately provide proper equipment and materials for the first plaintiff to work in a safe system of work.
(c)Failed to provide a sufficient number of transoms to allow the scaffold structure to be properly constructed.
(d)Failure to provide adequate safety equipment, including harnesses with two hooks.
(e)Directing the first plaintiff to work in an unsafe system of work.
(f)Failure to take any adequate measures for the safety of the first plaintiff.
(g)Failed to observe that the first plaintiff was in a position of peril.
(h)The defendants were guilty of breach of statutory duty thereby causing injury to the plaintiffs.
(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).
(j)Creating a risk of injury to the first plaintiff whilst he would dismantle the scaffolding.
(k)Failure to supply and direct the use of wooden planks.
(l)Directing the use of ledgers in places where transoms were normally used.
(m)Failure to devise a safe system of dismantling the scaffolding having supplied and directed to use of (sic) ledgers where transoms were normally used.
(n)Failure to make up changes to the layout and components of the scaffolding to highlight where there had been changes in the structure namely the use of ledgers where transoms would normally have been used.
(o)Increasing the risks of injury to the plaintiff by directing the use of ledgers where transoms would normally have been used.
(p)Failure to supply adequate instructions for the use, erection and dismantling of the scaffolding.
(q)Failure to have the plans amended as changes to the scaffold structure occurred.
(r)Failure to have an appropriate safe work method statement.
(s)Failure to employ suitably qualified personnel.
(t)Failure to provide adequate supervision.
(u)Failure to ensure that contractors had sufficient information and training to carry out their work safely.
(v)Creating a potential trap which as likely to injure the plaintiff.
Without derogating from the particularity of those contentions, Mr Wheelahan distilled his case in closing submissions to a more manageable set of issues, as follows:
(a) the use of ledgers in place of transoms;
(b)the unusual combination in the bay from which Mr Perigo fell of one ledger and one transom;
(c)the failure to mark up progressively on the scaffolding plan as the scaffold was being built which components had been used in which places;
(d)the failure to highlight the places where ledgers had been used in place of transoms at toolbox talks each morning during the dismantling phase;
(e)the failure to have an inspecting scaffolder move through each section before the dismantling scaffolders proceeded with the dismantling phase each day (T372).
The first three of those are concerned with the construction phase while the last two are concerned with the dismantling phase of the project.
Application of the Civil Liability Act 2002
It is necessary to consider the provisions of Part 1A of the Civil Liability Act 2002. As I understand the position, the claim against Bradley Tracey is not governed by the Civil Liability Act, since its liability is governed by Division 3 of Part 5 of the Workers Compensation Act 1987. The application of the Civil Liability Act to such claims is expressly excluded: see s 3B(1)(f) of the Civil Liability Act. However, there is no exclusion of the application of the Civil Liability Act to the claim against Waco.
The submissions of the parties did not address that distinction between the two claims. In case I am wrong in approaching the claim on that basis, I propose to defer the entry of judgment for a short period to enable the parties to be heard, if they wish, as to the applicability of the Act: cf Autodesk Inc v Dyason [1993] HCA 6; (1993) 176 CLR 300; New South Wales Bar Association v Smith, NSW Court of Appeal, 4 July 1991 (unreported).
Mr Wheelahan submitted that the requirements of ss 5B and 5C of the Act are satisfied by a correct application of the principles stated by Mason J in Council of the Shire of Wyong v Shirt [1980] HCA 12; 146 CLR 40 at 47-48. With great respect to Mr Wheelahan, I am not confident that an application of those principles obviates the need to determine the claim against Waco with express reference to the provisions of the Act. I acknowledge that s 5B has been accepted as a statutory expression of the Shirt analysis: see Price v State of New South Wales [2011] NSWCA 341 at [37] per Allsop P; Beazley and Giles JJA agreeing at [61] and [62] respectively. However, my task is to apply the legislation (where applicable).
The importance of a taking a disciplined approach in that respect is reinforced in the following remarks of Ipp JA in Waverley Council v Ferreira [2005] NSWCA 418 at [47]; Spigelman CJ and Tobias JA agreeing at [1] and [109] respectively:
The explanation for the enactment of s 5B(2) appears from paras 7.5 to 7.18 of the Negligence Review. The Negligence Review expressed the opinion that the factors now set out in s 5B(2) should be given statutory force so that courts would focus more directly on the issue "whether it would be reasonable to require precautions to be taken against a particular risk" and to avoid conflation of the concept of foreseeability of risk with the conclusion that a reasonable person would have taken precautions against it.
The risk identified by Mr Wheelahan was the risk of falling if a scaffolder dismantling the scaffold used the metal boards from above him and placed those boards in the void before him in a bay with a ledger/transom combination. I am satisfied that the risk of harm from such an event was foreseeable in the sense discussed by Mason J in Shirt. It was not far-fetched or fanciful. So much was effectively acknowledged by Mr Kelly on behalf of Bradley Tracey (T379.8).
I am further satisfied that the risk of harm from such an event was foreseeable in the sense required by s 5B(1)(a) of the Civil Liability Act. On the strength of the evidence of Mr MacAskill set out above and the contents of the revised SWMS, I am satisfied that Waco (and, for that matter, Bradley Tracey) knew of the risk. I do not accept Ms Chapman's submitted to the contrary (at paragraph 6.7 of the written submissions).
As explained in the remarks of Ipp JA in Waverley Council v Ferreira set out above, the question whether a reasonable person would have taken precautions against that risk must be given careful, separate consideration. The focus of the defendants' submissions was on that issue.
Use of ledgers in place of transoms
By the end of the hearing, I did not understand the plaintiff to maintain that Waco's failure to supply enough transoms for the second birdcage, or Bradley Tracey's use in that circumstance of ledgers in place of transoms, was in itself negligent. The plaintiff ultimately relied upon the fact that the modular system was departed from rather as a circumstance that created an additional risk, prompting the need to revise the system of work in light of the change. In case I am wrong (as to whether the plaintiff ultimately relied on those matters as separate acts of negligence), I indicate that I am not satisfied that there was any breach of duty on account of Waco's failure to supply enough transoms for the second birdcage; the giving of an instruction in that circumstance to use ledgers in place of transoms or Bradley Tracey's adoption of that approach.
Separately, however, Mr Perigo did maintain that it was negligent to construct a bay with one ledger and one transom as the side components of the base.
Two experts were called at the hearing to address the plaintiff's allegations of negligence. The plaintiff's expert was Mr Christopher Campion. His area of expertise was occupational health and safety in the construction industry, a field in which he has some 25 years' experience. Mr Campion holds a post-graduate degree in Safety Science from the University of New South Wales.
Bradley Tracey did not qualify an expert. The expert retained by Waco was Dr Andrew Baigent, a civil engineer. Dr Baigent has more than 30 years' experience in the building industry, with particular expertise for over 25 years in scaffold structure.
Each of the experts prepared separate reports (reports of Mr Campion dated 28 September 2009 and 18 April 2011, tabs 3 and 4 of Exhibit H; report of Dr Baigent dated 8 November 2010, tab 2 of Exhibit D2-2). The experts also conferred and prepared a joint report dated 20 July 2011 (tab 2 of Exhibit H). They gave evidence concurrently at the hearing.
The evidence of the experts did not sustain the contention that it was negligent to construct a bay with one ledger and one transom as the side components of the base. They agreed that it was unusual to have ledgers used as transoms, but said that it could be done, provided that wooden planks were used.
The joint report endorsed a practical preference for the use of ledgers in pairs rather than the combination of one ledger and one transom:
4Assuming Waco (and Bradley Tracey) became aware that Waco was running out of transoms half way through the erection of the stage 2 scaffold, was it necessary to address the following matters?
....
4.4Confining the replacement of transoms with ledgers such that a bay would either comprise two ledgers and two transoms or four ledgers, but not three ledgers and one transom?
Yes, practically this is what should have been done on the proviso that there was a sufficient number of transoms to carry this out.
However, the experts did not go so far as to suggest that to construct a bay with the combination of one ledger and one transom was negligent in itself. During their concurrent evidence at the hearing, Dr Baigent expanded upon the answer set out above as follows (at T262):
WITNESS BAIGENT: What we said was yes, that's the practical way and the most common way that these would be built, but it is not necessarily the only way that this structure could have been erected, and I think Mr Campion would also agree with me that it would be quite feasible to have a compliant structure with the Australian Standards even if we had one, two, three or four ledgers forming a bay. It only depends the only outcome of that is whether or not one can use a steel plank or a timber plank. So what we were trying to say in question 4.4 was that yes, practically you would construct a bay
HER HONOUR: You say the answer says you should. Do you not accept that wording?
WITNESS BAIGENT: I accept the word "should". Practically you should build a bay with two transoms and two ledgers. Now, what we have said here, that's only on the proviso that there was sufficient number of transoms. Now, if there weren't sufficient number of transoms it was quite acceptable to build the structure with any number of ledgers in it.
Mr Campion more or less agreed. He said (at T263.1):
WITNESS CAMPION: I don't dispute the observation. My view is that it is better to have an equal number of transoms and ledgers in a system scaffold, but if you don't you can change and have more ledgers than transoms, but you have got to recognise that then you will need more planks and it is a different method of fastening planks than going from a transom to a transom.
I accept the evidence of the experts on that issue. Apart from that evidence, Mr Kelly's cross examination of Mr Perigo, an experienced scaffolder, ably demonstrated that he was of the same view: at T141, where Mr Perigo agreed that using three ledgers and one transom was safe, providing the scaffolder used timber boards. I am not satisfied that it was negligent to construct the particular bay from which Mr Perigo fell using one ledger and one transom as the side components of the base of the bay.
Failure to mark up the plan
In his first report, Mr Campion expressed the following opinion (tab 3 of Exhibit H at 7.2; reiterated in his second report, tab 4 of Exhibit H at 7.1):
The installation of ledgers in place of transoms (and the specific locations within the structure of the birdcage scaffold) is an important design and construction change that should have been formally recorded on the design drawings supplied by Waco to [Bradley Tracey] so that their positioning within the birdcage scaffold could be identified during dismantling.
Mr Campion further reiterated that opinion at the hearing (from T266.41):
WITNESS CAMPION: One thing further. My only issue then would be, if it was a dismantling deck or reverse erection deck, then what is needed to be known or made obvious to the scaffolder, was whether it was one that required wooden planks or metal planks.
WHEELAHAN: Mr Campion, how would that be brought to the attention of the scaffolder?
WITNESS CAMPION: As I have stated in my report and I think opined slightly differently in the joint report, can be done a number of ways. Not necessary the same person or group of people who erected the scaffold dismantle it. We can't presume the person dismantling had prior knowledge of putting it up. One of the ways it could be done is marking up progressively and the plan as the scaffold is being built what parts are in which situation. At a tool box talk, prestart meeting every day, you go through the crew what they were going to do that day and they would have an understanding of what they were working on, whether a dismantling bay that was needed wooden planks or a dismantling bay that required steel planks.
Dr Baigent did not agree that there was any need to mark up the plan for the scaffold progressively to identify the parts in which ledgers had been used in place of transoms. Stating his separate position in the joint report (answer to question 4.6) he noted, not unreasonably, that the original plans did not differentiate between transoms and ledgers and instead relied on the knowledge of the scaffolder erecting the structure to place them correctly. Accepting that evidence, I am not persuaded that the failure to mark up the plan as the second birdcage was constructed was, in itself, negligent. However, the fact that that was not done informs an assessment as to what further needed to be done during the dismantling phase.
It follows that I am not satisfied that there was any relevant breach of duty on the part of either Waco or Bradley Tracey during the construction phase of the works.
Dismantling of the second birdcage
Turning to the dismantling phase of the works, there was no suggestion that there were not enough wooden planks to accommodate the shortage of transoms. In those circumstances, the defendants asked rhetorically what further precautions they could have taken to prevent Mr Perigo's fall. Mr Wheelahan responded by reference to the evidence of Mr Campion.
In my view, there is force in Mr Campion's view that the change in components had to be brought home in a practical manner to the men charged with the task of dismantling the scaffold (second report, tab 4 of Exhibit H at 7.1). A different team of men was involved in that task. Although Mr Perigo had been involved in the construction phase and well knew that ledgers had been used in place of transoms, about a month had passed since the construction phase. Further, there was no pattern or uniformity in the places where ledgers had been substituted, rather they were scattered "sporadically" throughout the upper levels of the scaffold.
Further, in my view, a reasonable person would readily appreciate that the task of dismantling the scaffold was completely different from the construction of the scaffold, particularly so far as awareness of components is concerned.
Mr Wheelahan submitted that the places where ledgers had been used in place of transoms ought to have been highlighted at toolbox talks each morning during the dismantling phase, as proposed by Mr Campion. Mr Wheelahan alternatively submitted (at T372) that an "inspecting scaffolder" could have been required to move through each section of the birdcage before the dismantling scaffolders proceeded each day. That is probably a necessary corollary of Mr Campion's point. Since no steps were taken during the construction phase to identify the bays in which ledgers had been used in place of transoms, the only way to give the crew an understanding as to where they would need wooden planks and where they would be able to use metal planks was by means of such an inspection each morning or, indeed, periodically throughout the day.
Dr Baigent did not think any such steps were necessary. It was plain that his view on that issue was informed by his assessment of the nature of the risk. He did not accept that the configuration of one ledger and one transom was "a recipe for disaster" (T264.4). He did not agree that an experienced scaffolder might occasionally fail to observe such a configuration during the dismantling phase (at T264.32):
WITNESS BAIGENT: No, I don't. I think it would be so obvious that as soon as an experienced scaffolder tried to place the first plank they would see straight away that this plank could not fit in that particular bay. The plank has to be engaged on one side into a transom. It is then placed back down. Now, it's quite obvious if the scaffolder tried to place the plank firstly on to the ledger side there was no way that it could engage, so if you make the assumption that he put it into the transom firstly and then placed it on top of the ledger, he would see straight away that there was nothing for this plank to fit into. Moreover, he would be able to see that the plank wasn't level, the plank would be at a slope, and so it should become immediately apparent to someone that even if he didn't notice immediately that there was a transom and a ledger, as soon as he placed the first plank he should have been aware that there was a problem.
Mr Campion was more equivocal, stating that he would not necessarily expect an experienced scaffolder to pick up the presence of a ledger in the place of a transom 100 per cent of the time (T264.18) or immediately (T267.40). However, he accepted that he would expect an experienced scaffolder to make that observation after putting down three boards (T270.25), particularly if the scaffolder knew that the scaffold had been constructed using ledgers in place of transoms (as Mr Perigo did) (T270.45).
With great respect to those gentlemen, whose evidence was generally helpful, I do not give much weight to their views on that issue, which in my view overlooks the impact of tedium and repetition on the senses.
I should make it clear that the relevance of their opinions on that issue was evidently confined to the assessment of the magnitude of the risk and the degree of the probability of its occurrence. It was expressly not the defendants' case that Mr Perigo in fact noticed that the component on his left was a ledger, but pressed on regardless, using metal planks.
Two reasons are posited in the opinion of Dr Baigent set out above as to why it could reasonably be expected that an experienced scaffolder would have noticed what Mr Perigo failed to notice. The first was that, since the ledger would have been sitting proud of the level at which the planks were placed on the transom, it could be expected that an experienced scaffolder would have noticed that the planks he placed at his feet were at an angle (see T196 and T232-233). That contention was all but abandoned during submissions, and rightly so, in my view. Mr Kelly's rough calculation suggested that the angle of the plank from the horizontal would have been no more than two degrees (T295-296; my own calculation - disclosed to the parties - was that it would be closer to one degree).
Separately, however, Dr Baigent emphasised that, in placing a plank on a ledger on the left, it would have felt different. Having regard to the weight and dimensions of the planks, and the accepted fact that Mr Perigo did not in fact notice the difference, I do not find that opinion convincing.
In any event, the likelihood that an experienced scaffolder would have noticed the ledger is only a part of the analysis. The question is whether a reasonable person would have taken precautions against that risk. It is helpful in that context to recall the terms of the judgment of Mason J in Wyong Council v Shirt:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
The degree of probability of the occurrence of the risk that an experienced scaffolder would fail to observe the ledger may have been relatively small, but its consequences could scarcely have been worse - in short, it entailed a substantial risk of death. Further, the expense, difficulty and inconvenience of taking alleviating action were small.
The application of s 5B of the Civil Liability Act produces the same result. I do not think the risk was insignificant, having regard to the matters considered above. Contrary to the opinion of Dr Baigent, I do not accept that the risk of oversight by an experienced scaffolder was small. In my view, there was an appreciable probability that grave harm would occur if steps were not taken to highlight the places where the men would find ledgers in place of transoms. The burden of taking additional precautions was negligible, in the circumstances.
In the result I accept, as submitted by Mr Wheelahan, that a reasonable person in the position of the defendants would have taken steps to highlight for the workers during the dismantling phase the bays in which ledgers had been used in place of transoms.
I am satisfied that the failure to identify each morning the bays in which ledgers had been used in place of transoms, so as to highlight for the scaffolders the places where they would need to use wooden planks, was a breach of the applicable standard of care.
Breach of statutory duty
The plaintiff initially pleaded a cause of action for breach of the Occupational Health and Safety Act 2000 (now repealed). However, it was acknowledged at the hearing that, in accordance with s 32 of the Act, no private cause of action arose from a contravention of the Act.
It was nonetheless submitted on behalf of the plaintiff that s 32 did not preclude him from relying upon a contravention of the Occupational Health and Safety Regulation 2001 (also now repealed)(T374.41).
The particulars of that allegation were as follows (pleaded only against Bradley Tracey, reliance upon those matters as against Waco having been abandoned at T374.27):
(c)Chapter 2 of the Occupational Health and Safety Regulations 2000 (NSW) (sic: 2001)
(d)Regulations 34 to 39 of the Occupational Health and Safety Regulations 2000 (NSW) (sic: 2001).
Mr Kelly submitted that the Court should be slow to translate Bradley Tracey's obligations under the regulation into a duty of care at common law, citing Leighton v Fox at [49]. Having considered what is said there, I am not persuaded that a breach of the regulations gives rise to an independent cause of action against Bradley Tracey.
Principles applicable to the issue of causation
The parties did not address the distinction between causation under the Civil Liability Act and at common law. A useful analysis of that issue may be found in the decision of the High Court in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48. The decision in that case was given as a judgment of the Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ). The Court noted that s 5D(1) of the Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability. The judgment continues (at [43]-[45]):
Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 515; [1991] HCA 12., to be the common law's approach to causation. The references (1991) 171 CLR 506 at 515 quoting from Fitzgerald v Penn (1954) 91 CLR 268 at 277; [1954] HCA 74. in March v Stramare to causation being "ultimately a matter of common sense" were evidently intended to disapprove the proposition "that value judgment has, or should have, no part to play in resolving causation as an issue of fact". By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues.
It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.
Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the "but for" test: but for the negligent act or omission, would the harm have occurred?
The factual issue on causation in that case was whether the failure to provide security personnel was the cause of the plaintiffs' being shot after an altercation between patrons in the restaurant on New Year's Eve. The plaintiffs were ultimately unsuccessful because the evidence established no more than that the presence of security personnel might have made a difference to the outcome of the evening. The Court said (at [50]):
Recognising that changing any of the circumstances in which the shooting occurred might have made a difference does not cause factual causation.
Is causation established in the present case?
For the purpose of the case against Waco, it is necessary first to consider whether the "but for" test of factual causation under s 5D(1) of the Civil Liability Act is established.
Two issues as to causation were raised on behalf of Waco. First, as explained above, Ms Chapman contended that the choice of a ledger in place of a transom as the left-hand component of the bay from which Mr Perigo fell was not due to the shortage of transoms but, rather, due to the fact that the component on Mr Perigo's left in the bay from which he fell served the dual purpose of also being the ledger at the top of a run of planks perpendicular to the planks being brought down by him. I am not satisfied that is the case. Mr Perigo, when cross-examined as to that contention, stated that a transom could have been used (and served the role of the ledger in the perpendicular bay) (T98.6).
On balance, I am satisfied that the use of a ledger at that point was probably due to the shortage of transoms, rather than the existence of the perpendicular bay (and the fact that a ledger was the appropriate component for the end of that bay). The photographs depict a run of perpendicular bays. Mr Perigo was working through the adjacent run at the time he fell and had not encountered any ledgers used as transoms before that point. Whilst it is not possible to be certain, on balance the likelihood is that transoms were used along the length of the run until the bay from which Mr Perigo fell. On that basis, I think the shortage of transoms is the probable explanation for the composition of the bay from which Mr Perigo fell.
Even if my conclusion on that issue is wrong, I do not think it follows that the defendants' negligence was not the factual cause of Mr Perigo's injury. The shortage of transoms, and Waco's knowledge in that circumstance that ledgers had been used in their place, gave rise to the need to take the precaution of highlighting (to those charged with dismantling the scaffold) the bays in which ledgers were filling the role of transoms. That issue is considered further below.
Secondly, the defendants submitted that, even if negligence were established, the plaintiff was "the author of his own misfortune", meaning that the defendants' conduct was not a cause of his injuries. Ms Chapman relied in that context upon the decision of the High Court in Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25.
It is informative to consider precisely what the High Court said in that case. Hayne J, with whom Gaudron, McHugh, Gummow and Kirby JJ agreed, said (at page 30):
There may be cases in which a defendant may be shown to have failed to have exercised reasonable care for the plaintiff, but the plaintiff is, in all the circumstances, judged to be the sole author of the misfortune of which that plaintiff complains. But that is to conclude that the defendant's want of reasonable care was not a cause of the plaintiff's damage; it is to deny that the fault of both plaintiff and defendant contributed to that damage [emphasis added].
It was submitted that Mr Perigo was the author of his own misfortune because he failed to attach his harness to the standard (T358.45).
Ms Chapman submitted that the plaintiff should not be accepted when he said that he was wearing a single lanyard harness. For the reasons explained above, I reject that submission. Ms Chapman further submitted that it is irrelevant whether Mr Perigo had one lanyard or two, since he should have been hooked up at the point of his injury in any event, having at most brought down four boards at the time he fell.
The evidence of Mr Perigo at T84 set out above indicates that he would have unhooked the lanyard after bringing down "four or five" boards. Accordingly, it is possible that Mr Perigo had reached the point of unhooking his lanyard. I accept, however, that the weight of evidence is against that conclusion, as submitted by Ms Chapman. In particular, the remark made by Mr Perigo to Mr Pade set out above (that he was expecting the lanyard to take up) suggests that, so far as Mr Perigo recalled closer to the time of the accident, he had not unhooked the lanyard just before falling.
It is more likely, in my assessment, that Mr Perigo simply overlooked hooking up his lanyard when he began working in the relevant bay.
However, I do not think this is a case of the kind referred to by Hayne J in the remarks in Wynbergen set out above. His Honour was referring to cases in which the plaintiff may be judged to have been the sole author of the misfortune of which he complains. I do not have any difficulty dismissing the contention that Mr Perigo was the sole author of his "misfortune" owing to his failure to hook up his lanyard. Other factors contributing to the cause of the fall were the fact that he was working in a bay that had been constructed using a ledger in place of one of the transoms, the combination of circumstances which resulted in his overlooking that fact at the critical time and the high risk (which materialised) of metal planks slipping if placed on a ledger.
It may also be noted that Waco had assumed responsibility for ensuring that the workers complied with the revised SWMS. Mr MacAskill said that, as far as he was aware, Mr Perigo was working in accordance with the work method statement.
Mr Semke, who took over the supervision from Mr MacAskill after 9am on the day Mr Perigo fell, gave the following evidence (At T305):
And you were perched upon a advantage (sic) point behind the stadium?
A. Yes.
Q. In the course of observing Mr Perigo work, you say you saw him to have hooked and unhooked his lanyard to the standards or anchor points?
A. That's right.
Q. And he did it continuously over the course of your observations, didn't he?
A. I didn't observe Mr Perigo for very long at all. What I was satisfied that Michael, Mr Perigo, was adhering to the Safe Work Method Statement.
Q. Namely, he was anchoring himself
A. To standards, yes.
Q. With his lanyard?
A. Yes
[emphasis added].
It is not clear from that evidence whether Mr Semke was aware of the requirement for a double lanyard on the harness. Mr Semke was not involved in briefing the scaffolders on that issue (T309.5):
Q. Is it the case that for the scaffolders on site on the day of Mr Perigo's injury and leading up to it you had insured that the scaffolders knew how to use safety harnesses before they started to dismantling the scaffold?
A. No.
Q. Sure about that?
A. I'm sure that I asked them almost in a flippant manner whether everybody knew how to wear a harness, because in fact I wasn't there when those things were instituted. That had already happened.
A later exchange suggests that he was not aware of the requirement for a double lanyard (at T310.30):
WITNESS: At a tool box meeting and the meeting was on Friday morning. The tool box had already happened at 6.30. I wasn't there at that point. They had already gone to the work. I got in there and read what was supposed to happen with the revised Safe Work Method Statement with Bradley Tracey. At that point then went out.
Q. You weren't present at the tool box meeting where the workers were told?
A. That's right. Everybody put their harnesses and went, had already gone.
Q. When you told the WorkCover investigator that you had ensured knew how to use the harnesses, you were referring to what you understood had been said at the tool box meeting plus the fact you said to everybody, as you put it, in a flippant manner
A. That is the case. Everybody had harnesses on, whether or not they were double lanyards or I didn't know that but some had and some hadn't.
[emphasis added]
The evidence of Mr MacAskill and Mr Semke leaves me in some doubt as to whether they were aware that supervision of compliance with the SWMS required them to ensure that each worker had a harness with a double lanyard. I am not satisfied that they were. However, since Mr Perigo overlooked attaching his single lanyard to the standard, the most that can be said is that an instruction to use a double lanyard might have made a difference to the outcome. As explained in Adeels Palace, that is not enough to establish factual causation.
It does not follow, however, that Mr Perigo was the sole author of his misfortune and that the defendants' negligence did not contribute to it. I am satisfied that, but for the failure to highlight the areas in which ledgers were filling the role of transoms, Mr Perigo probably would not have overlooked the ledger in the bay from which he fell and would have called for wooden planks in that bay. He was an experienced and able scaffolder. Neither defendant suggested that his failure to use wooden planks was due to anything other than the failure to observe the ledger on his left. The transom on his right was apt to mislead or distract him in that regard. Timely assistance from those supervising him would probably have prevented the oversight, and so prevented the fall.
As against Waco, it is necessary also to consider the appropriate scope of liability as required by s 5D(1)(b) and 5D(4) of the Act. For the reasons considered above concerning the nature of the undertaking and the extent of Waco's involvement in supervising the works following the Salisbury incident, I am satisfied that it is appropriate for the scope of Waco's liability to extend to the harm caused to Mr Perigo when he fell.
I do not think that the application of the test in March v Stramare produces any different result in the present case. Although Waco had assumed greater responsibility at the time of the accident, Bradley Tracey remained involved in the direct supervision of its employees. I am satisfied that causation is established against Bradley Tracey.
Contributory negligence
It was submitted that Mr Perigo failed to take reasonable care for his own safety in that:
(a)he knew that the scaffold was littered with ledgers which had been disbursed sporadically;
(b)he was involved in building the scaffold and he himself had had to use wooden boards where he encountered a ledger/s;
(c)he knew that metal boards could not be used if either of the left or right members of the bay was a ledger;
(d)he had been repeatedly warned of the danger by virtue of stop work, toolbox talks and instructions from Bradley Tracey during the dismantling and the fact that he was wearing a harness which was most unusual;
(e)the Plaintiff failed to look to the left and agreed if he had he would have noticed the ledger and then realised that wooden boards were necessary.
The defendants also relied upon Mr Perigo's failure to attach his lanyard to the standard.
As to the claim against Waco, the issue of contributory negligence is to be determined in accordance with s 5R of the Civil Liability Act, which provides:
5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
I am not satisfied that there was any contributory negligence on the part of Mr Perigo. I am satisfied that, as to both the failure to attach the lanyard and the failure to observe the ledger, those omissions were due to inadvertence or inattention resulting from the nature of the task, which was both repetitious and arduous.
The fact that a worker acts inadvertently or thoughtlessly does not necessarily amount to negligence: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 33, 37-38. It is necessary to assess whether inadvertence amounts to a failure to take reasonable care for one's own safety having regard to the demands of the task in hand and whether "the employment demanded, and obtained, [the worker's] concentration upon it, and involved a risk of danger to which [the worker] had become habituated: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 568 per Gibbs J; Stephen J agreeing at 568; and see Murphy J at 576 to 577.
As stated by Murphy J at 577.2, "it would be unjust if the more an employee concentrates on his employer's task at the expense of his own safety, the more he suffers by reduction of his damages in the event of injury" (I acknowledge that those remarks were made in the legal context that the test for contributory negligence was not the same as the test for negligence).
Having regard to the repetitive and demanding nature of Mr Perigo's work and notwithstanding his knowledge that the scaffold contained ledgers in place of transoms sporadically throughout the upper levels of the birdcage, in all the circumstances the defendants have failed to establish to my satisfaction that Mr Perigo's inadvertence amounted to contributory negligence according to the test in s 5R or at common law.
I am satisfied that the failure to attach the lanyard was entirely due to inadvertence resulting from the circumstances of tedium, repetition and physical challenge recited above.
As to the failure to notice that the bay included a ledger in place of a transom, counsel for Waco emphasized the proposition that Mr Perigo knew the scaffold was "littered with ledgers". Although those were Mr Perigo's words, they give no content to his actual knowledge as to where the ledgers were, and in my mind serve to emphasise the difficulty of his task. The scaffold had been constructed a month earlier. It is entirely unrealistic to think that his participation in that process would assist him in any practical sense in the dismantling phase.
Further, due regard must be paid to the nature of the work, which required Mr Perigo to reach above his head and bring a 2.4 metre, 15 kilogram metal plank down to the level of his feet (repeatedly). It was a task which must have required strength, coordination and concentration. The number of times the same action had to be repeated warrants the description given to the work by Mr Wheelahan of being "robotic". Done once and for the first time, it might reasonably be expected that a person would look carefully at each point on the ground before placing the plank down. Done the number of times in this case, I do not think that the failure to observe that the component on the left was a ledger fell short of the standard of care required of a reasonable person in the position of Mr Perigo.
Apportionment
It remains to consider the share of liability that should be borne by each of the defendants. For the reasons explained above, I am satisfied that although Bradley Tracey was under a non-delegable duty of care to Mr Perigo, Waco bore the primary responsibility for controlling the system of work as at 16 May 2006 and should carry the primary liability for Mr Perigo's damages. I consider that the proper apportionment is for Waco to bear 75% and for Bradley Tracey to bear 25% of that liability.
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Decision last updated: 23 July 2012
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