Petkovic v Blazeski
[2014] WADC 170
•11 DECEMBER 2014
PETKOVIC -v- BLAZESKI [2014] WADC 170
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 170 | |
| 11/12/2014 | |||
| Case No: | CIV:4017/2011 | 23-26 & 30 JUNE 2014 | |
| Coram: | BIRMINGHAM QC DCJ | 3/07/14 | |
| PERTH | |||
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Defendants are liable to the plaintiff in respect of 85% of the damages suffered by the plaintiff | ||
| PDF Version |
| Parties: | DRAGAN PETKOVIC BLAZENKA BLAZESKI VASKO BLAZESKI |
Catchwords: | Personal injuries Injury to contractor Defective scaffolding Liability of owner/builder as occupier Failure to warn of incomplete state of scaffolding Contributory negligence Turns on own facts |
Legislation: | Occupier's Liability Act 1985 |
Case References: | Homestyle Pty Ltd v Perrozzi [2007] WASCA 16 McLean v Tedman [1984] HCA 60 Pennington v Norris [1956] HCA 26 Pobrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 Sungravure Pty Ltd v Meani [1964] HCA 16 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
BLAZENKA BLAZESKI
VASKO BLAZESKI
Defendants
Catchwords:
Personal injuries - Injury to contractor - Defective scaffolding - Liability of owner/builder as occupier - Failure to warn of incomplete state of scaffolding - Contributory negligence - Turns on own facts
Legislation:
Occupier's Liability Act 1985
Result:
Defendants are liable to the plaintiff in respect of 85% of the damages suffered by the plaintiff
Representation:
Counsel:
Plaintiff : Mr D R Clyne & Mr A Illich
Defendants : Mr T J Hammond & Ms M Hurt
Solicitors:
Plaintiff : Simon Walters
Defendants : HBA Legal
Case(s) referred to in judgment(s):
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16
McLean v Tedman [1984] HCA 60
Pennington v Norris [1956] HCA 26
Pobrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Sungravure Pty Ltd v Meani [1964] HCA 16
- BIRMINGHAM QC DCJ: [This judgment was delivered extemporaneously on 3 July 2014 and edited from transcript.]
1 In 2009 the defendants were constructing a two-storey residence at 44 Delphine Avenue, Inglewood as owner/builders. Whilst the property was registered in the name of the second defendant Mrs Blazeski and she was nominated as the owner on the building licence, it is common ground that each of the defendants was jointly involved in the construction of the house.
2 In October 2009 the defendants engaged the plaintiff's company Lifestyle Homes Pty Ltd to undertake the brickwork for the project. The plaintiff and his team completed the retaining walls and ground floor works and then left the site until the first floor slab and stairwell had been poured in preparation for the brickwork on the next level.
3 In December 2009 the defendants advised the plaintiff that the slab had been completed and they were ready for the second-storey brickwork to be carried out. There is a conflict on the evidence as to what occurred thereafter as to the arrangements made for the plaintiff and his team to attend the site and complete the brickwork.
4 The plaintiff says he was contacted by the defendants and told that the site was ready. He attended the site with his crew on Tuesday to Thursday, 16 to 18 December and marked out the site. On Thursday, with the assistance of a crane organised by the first defendant, the bricks were placed in position on the floor slab on the second-storey in readiness for the works to be commenced on Monday 21 December.
5 The plaintiff says the first defendant told him the scaffolding required to be placed around the upper floor slab area would be completed in time to enable the plaintiff and his team to start first thing on Monday, 21 December.
6 The defendants say the plaintiff was anxious to start on Monday as he had other work to go to and was pressing the defendants to start the brickwork. The defendants further say that the plaintiff was told that they would try and have the scaffolding ready by Monday and would call him when it was ready for him to start.
7 As things transpired the defendants were unable to complete the scaffolding by the Monday. Whilst it was substantially completed at that time, some areas had not been completed including the placing of planks to cover some gaps in the floor area.
8 The plaintiff attended the site on the morning of Monday, 21 December to complete preparations of the area in readiness to start the brickwork that day. As the plaintiff was positioning the metal stays used to support the corners of the brickwork, the plaintiff stepped backwards onto the scaffolding adjacent to the balcony area at the front of the house. Unfortunately that area of the scaffolding was incomplete with part of the flooring missing. The plaintiff stepped into the void and fell approximately 4 m onto the brickwork and concrete area adjacent to the steps at the front of the house striking the scaffolding framework as he fell.
9 The plaintiff was injured during the fall. The plaintiff says that his injuries were caused by the defendants' negligence or, alternately, breach of the duty owed to him by the defendants as occupiers of the property pursuant to the Occupier's Liability Act1985 (the Act). The plaintiff says the defendants should have warned him that the scaffolding was incomplete and the danger it created thereby.
10 The defendants say the plaintiff was not meant to be at the site at that time and, in any event, the defendants had properly placed warning signs across the access points to the second floor area to warn persons such as the plaintiff of the danger. They further say the plaintiff failed to take reasonable care for his own safety and that any risk created by the unfinished state of the scaffolding was so obvious that no warning was required.
11 Whilst the question as to which of the defendants was responsible for the control and occupation of the site was a live issue on the pleadings, it is common ground that each of the defendants was an occupier at the relevant time insofar as each had effective control over the property including the right to direct persons including the plaintiff in relation to entry onto the site.
12 The defendants further accept that they owed the plaintiff a duty of care as the occupiers of the site and that there was no material distinction between the duty that might be owed by them at common law and pursuant to the Act.
13 The duty of care owed by an occupier pursuant to his or her occupation of land to persons entering the premises in respect of dangers which are due to the state of the premises, is such care as in all the circumstances the case is reasonable to see that the person will not suffer injury or damage by reason of any such danger.
14 The factors that fall for consideration as to whether or not there has been a breach of the duty of care include:
• The gravity and the likelihood of the probable injury;
• The circumstances of the entering onto the premises;
• The nature of the premises;
• The knowledge which the occupier of the premises has or ought to have of the likelihood of the persons on the premises;
• The ability of the person entering to appreciate the danger; and
• The burden of the occupier in eliminating the danger or protecting persons entering the premises from the danger as that compared to the risk of the danger to a person.
15 Whether the defendants are liable in this case to the plaintiff, turns on the resolution of a number of factual issues including:
• The events leading up to the plaintiff going onto the site on Monday, 21 December and the circumstances of the plaintiff entering onto the site that day including the stated knowledge of each of the parties;
• Whether the steps taken by the defendants to warn of the danger created by the incomplete state of the scaffolding were sufficient to discharge the duty owed to the plaintiff;
• Whether the risk of injury was so obvious, such that there was no duty to warn; and
• Whether the plaintiff's conduct contributed to the incident and the injuries suffered by him.
The evidence
The plaintiff
16 The plaintiff said that in December 2009 he was contacted by the defendants and advised that the site was ready for brickwork on the second level. He told the defendants that he was not able to start before 21 December 2009. The first defendant advised him that he had taken time off work and wanted to be present during the brickwork.
17 The plan was to work up until 24 December, take two days off and then finish the job by 4 January 2010. When he arrived on the Tuesday (15 December) prior to Monday, 21 December, some of the scaffolding had been erected around the perimeter of the building. He said he was present that day for about two and a half hours measuring up the empty slab and marked up where the bricks were required. He used the internal stairs to access the upper level. He said that, with Mr Donatelli, he continued marking out the area on Wednesday. On Thursday (17 December) he distributed the bricks over the site with a crane that had been arranged by the defendants. He arranged for the cement to be placed in the garage. He said he advised the defendants at that time that they should put safety tape around the scaffolding to keep children out of the site.
18 He said he did not attend the site after Thursday, next attending on Monday, 21 December. On Friday he received a call from the second defendant and was told that everything was ready for Monday. He confirmed that he was going to start the brickwork then.
19 The plaintiff said when he arrived at the site early in the morning on Monday, 21 December the hoist to the first floor was in position and plugged into the power. Everything appeared to be as discussed. He unloaded the profiles and stays for the corners into the hoist and then went up to the first floor level using the internal staircase.
20 As he was placing the stays on some bricks near the right-hand side balcony area at the front of the house, he stepped backwards and fell through a gap where part of the scaffolding flooring was missing. He struck the scaffolding struts as he fell.
21 The area in which he stepped is depicted in photographs (exhibit 1 particularly at pages 10, 16, 18 and 50 – 52) on the right-hand side of the balcony. In contrast to the area on the left-hand side of the balcony, the area on the right-hand side did not have wooden planks positioned over the gaps in the scaffolding.
22 The plaintiff says he believed the scaffolding had been completed as promised by the defendants. He relied on the fact that the hoist was plugged in and ready to go and that there were no warning signs to indicate that the scaffolding was not complete. In his view, if the scaffolding was not finished the hoist would not have been plugged in and ready to use.
23 The plaintiff said the red and white 'danger' tape depicted in a number of photos (exhibit 1 including photographs of the ground floor entry to the staircase - page 58) and secured across the entrance to the stairway was not there at the time he went up the stairwell on the Monday morning.
24 In cross-examination the plaintiff was referred to his answer to an interrogatory (exhibit 2) wherein he had stated that he was at the site on Thursday and Friday rather than Tuesday, Wednesday and Thursday as he contended in his evidence. The plaintiff said that his answer to the interrogatory was incorrect.
25 The answer to the interrogatory is a prior inconsistent statement and is relevant to the assessment of the plaintiff's credibility and reliability as a witness.
26 The plaintiff said he was aware that the scaffolding was required to be ticketed before it could be used. He further acknowledged that when he left the site for the last time prior to returning on the Monday he was aware that the scaffolding was incomplete.
27 The plaintiff said that he saw the yellow and black 'caution' tape around the front of the building when he arrived on the Monday. The plaintiff accepted that the presence of the red and white danger tape around the internal staircase would have alerted him to be aware of the dangers and that the scaffolding was incomplete. The plaintiff was adamant such tape was not across the first floor stair access when he entered the building that morning.
28 I considered the plaintiff to be a truthful witness but at times he was unreliable in his recollection of events, particularly when compared to some of the testimony and evidence that I accept from others.
29 For example, whilst it is not a significant point, the plaintiff was adamant that he was not on the site on the Friday immediately prior to his fall. In the notes of the WorkSafe inspector Mr Wilkinson (exhibit 3) reference is made to the plaintiff acknowledging that he was on the site on Friday when the bricks were loaded onto the slab. The plaintiff's answer to the interrogatory is to the same effect.
30 Further, the plaintiff did not recall being on the site on the Sunday. The plaintiff said that there was no reason for him to be there. This is contrary to the evidence of Mr Alessi, whose evidence to that effect I accept and to the notes of the plaintiff's conversation with Mr Wilkinson (exhibit 3, page 80).
31 I note that this statement was taken shortly after the plaintiff's fall and when he was then under medication.
Mr Donatelli
32 Mr Donatelli said he was employed by the plaintiff and went with the plaintiff to chalk out the site on the Wednesday and Thursday during the week prior the plaintiff's fall.
33 He said the bricks were placed on the slab on the Thursday. Mr Donatelli said that they were advised that the job was ready to start on the Monday and that when he left the site on the Thursday the scaffolding was incomplete.
34 Mr Donatelli said that when he arrived at the site on Monday, 21 December he heard moaning and found the plaintiff laying on the ground near the front entrance of the house. At that time the hoist was in position.
35 Mr Donatelli was unable to recall if the yellow and black tape that was on the scaffolding around the building when he arrived at the site was around the scaffolding when he had attended the site the previous week.
Mr Wainwright
36 Mr Wainwright was employed by Freestyle Homes as a labourer. He said he attended with Mr Donatelli and the plaintiff to chalk out the site the week prior to the brickwork being scheduled to commence. He was unsure whether the bricks were positioned on the slab on the Thursday or the Friday of the preceding week.
37 Mr Wainwright said he was advised that the brickwork would start on the Monday.
38 On Monday, 21 December he arrived with Mr Donatelli and found the plaintiff on the ground near the front entrance of the house. Mr Wainwright said that he then took a number of photographs depicting the deficiencies in the scaffolding that he had observed, including those at pages 20, 32 and 33 (exhibit 1).
39 Mr Wainwright was certain that the red and white danger tape depicted in the photograph (page 16, exhibit 1) was not in place when he and Mr Donatelli first arrived at the site on Monday morning. Mr Wainwright believed that the tape had been put in place by Mr Wilkinson who attended the site after the plaintiff's fall had been reported.
40 Mr Wainwright said that he had not noticed the incomplete state of the scaffolding prior to the accident as he had not undertaken a proper review of the worksite. He said he had presumed the scaffolding was safe to walk on. Whilst accepting that upon close examination of the photographs (exhibit 1) the deficiencies in the scaffolding were apparent, it depended on the position from which they were taken.
41 It was common ground that a WorkSafe inspector attended the site after the accident on Monday, 21 December 2009 and carried out an investigation into the circumstances of the plaintiff's fall. His photographs form part of exhibit 1 and serve to provide an understanding as to:
• The extent to which the scaffolding was incomplete (page 14);
• The portion of the scaffolding through which it is assumed the plaintiff fell or from which it is assumed the plaintiff fell (page 16);
• The location of yellow and black caution tape fixed to the outer border of the scaffolding by the first defendant (pages 14, 15 and 16);
• A number of the deficiencies in the scaffolding erected by the defendants.
42 I pause to note that these photographs were taken after the plaintiff had fallen and are specifically focused from the deficiencies that may not otherwise be so obvious to the casual observer in the course of daily activities.
43 Mr Wilkinson's notes were also tendered by consent (exhibit 3) as business records admissible pursuant to s 79C of the Evidence Act. Notwithstanding some hesitation as to the status of the notes, having been received into evidence with the consent of the parties, they are admissible for all legitimate forensic purposes.
44 The notes include statements said to have been made by the plaintiff, Mr Donatelli, Mr Wainwright and the first defendant. Whilst the notes provide a relatively contemporaneous record of events, caution is required before acceptance of their accuracy insofar as the entries are hearsay and the maker of the notes was not called to give evidence to verify the entries made by him.
The defendant's case
Mr Steve Iloski
45 Mr Steve Iloski was engaged by the defendants to do the electrical work during the construction of defendants' house. He said the defendants contacted him on the previous Friday and advised him that the bricklayer was due to start work on Monday, 21 December.
46 Mr Iloski attended the site on Sunday, 20 December and spoke to a person who he believed to be the bricklayer. That person was getting the site ready to commence the next day. This is consistent with Mr Wilkinson's note (exhibit 3, page 80) that records the plaintiff as saying that he was on site the day before, that is to say Sunday, to drop off gear profiles. Mr Iloski said that he walked through the internal staircase to the upper level where he saw a person working. He did not recall anything preventing him from walking up the internal staircase and did not take any notice of the scaffolding.
47 Mr Iloski recalled that the site was barricaded with a cautionary yellow tape. Whilst he was not able to recall specifically where the yellow tape was located, he recalled that it had been erected throughout various locations on the worksite. He assumed that that was to keep children out.
48 Mr Iloski was an impressive witness. He answered all questions asked of him in a direct forthright fashion and did not seek to conceal his inability to recall some details. His evidence is corroborated in part by Mr Wilkinson's notes. I have no hesitation in accepting his testimony.
Mr Vasko Blazeski
49 The first defendant, Mr Vasko Blazeski, testified that the plaintiff had been engaged to do the brickwork. He said the plaintiff was difficult to deal with and made a number of mistakes in the first phase of construction that had to be remedied. During the construction he had received complaints from the Shire concerning the plaintiff starting work before 7.00 am. He warned the plaintiff that he was not permitted to start before that time, however such direction was ignored by the plaintiff.
50 Mr Blazeski said the plaintiff had required the brickwork to commence on 21 December, not the defendants. The plaintiff had threatened that if the scaffolding was not finished and the brickwork ready to proceed on Monday, 21 December, he would go to another job. Mr Blazeski said that he and his wife erected the scaffolding that they had purchased to save money.
51 Mr Blazeski said the plaintiff came on Wednesday, 17 December and looked at the site and discussed the scaffolding being completed by the Monday. He told the plaintiff that they would do their best to complete it by then.
52 Mr Blazeski said on Thursday, 18 December he had two scaffolders attend site to help him erect the scaffolding.
53 On Friday, 19 December, the plaintiff was on site. Mr Blazeski arranged a crane to hoist up the bricks onto the top slab of the building that day. Mr Blazeski said there was an incident when the dogman and the crane driver were picking up a stack of bricks from the ground floor to the top floor and the plaintiff was sitting under a suspended load of bricks. When he told the plaintiff that standing under the bricks was unsafe and dangerous the plaintiff responded that he knew what he was doing and, in essence, told Mr Blazeski to mind his own business.
54 The scaffolders were also onsite that day to assist in lifting the builder's hoist into position. Mr Blazeski said that the scaffolding was completed by Friday to the stage that was depicted in the photograph (page 14, exhibit 1). Mr Blazeski said that before the plaintiff left the site that day the plaintiff asked him whether he would start on Monday. He said to the plaintiff words to the effect, 'As you can see, the scaffolding's unfinished. If we can finish the scaffolding by Monday, we'll finish it definitely but if we can't finish it, we can't finish it'. Mr Blazeski said that the plaintiff responded to the effect that he would turn up anyway. He told the plaintiff that he could not turn up on Monday if it is not finished. The plaintiff walked away without reply.
55 Mr Blazeski said that evening he taped the site with yellow and black tape and taped the internal areas with red and white tape to prevent entry (to the upper floor) as the scaffolding was incomplete. The yellow and black tape was placed around the whole of the perimeter of the site so there was no gap to get in. He said he placed red and white tape with the words, 'Danger. Do not enter' on the main entrance to the staircase.
56 Mr Blazeski said that in addition to the tape, an 'Authorised Personnel Only' sign was erected on the wall inside the right-hand side of the entrance near the front door but was unable to identify any such sign in the photographs tendered (exhibit 1).
57 Mr Blazeski acknowledged that he was aware that if the plaintiff was not able to start on Monday the plaintiff would go to another job. He said he considered that if that was to be the case then so be it because safety was a priority.
58 Mr Blazeski said he attempted to obtain sufficient scaffolding material on the weekend and be early on the Monday morning to the site. He wanted to be there before 7.00 am to ensure that no-one was working on the site before that time.
59 On Monday, 21 December at 5.00 am, Mr Blazeski went to the scaffolding supplier to purchase the materials required to complete the scaffolding. He was returning to the site with planks when he was informed of the plaintiff's accident.
60 Mr Blazeski said his wife was told to try and contact the plaintiff over the weekend to tell him that the site was closed as the scaffolding was not completed. He acknowledged that he was aware that as at Monday morning, the plaintiff had not been informed that the scaffolding was incomplete and that attempts to contact the plaintiff had been unsuccessful.
61 I found Mr Blazeski an unimpressive witness. He seemed keen to cast the plaintiff in a bad light in respect of his workmanship and conduct on the site generally. His evidence in respect of the alleged incident with the crane falls into that category. Significantly, such allegation was not put to either Mr Donatelli or Mr Wainwright, notwithstanding that they were both present at that time. I consider that at times Mr Blazeski's evidence was implausible and against the probabilities.
62 I have considered his evidence as to the arrangements with the plaintiff concerning him starting on Monday and the steps taken by him to erect signage on the site in this category. I will return to those matters in due course. Further, I gained the impression that he sought to exaggerate his focus on issues of safety. His evidence in relation to the use of signage and tape is in this category as is his claim that a licensed scaffolder was used to erect the scaffolding. I do not accept his evidence in this regard.
63 Mr Wilkinson's note records Mr Blazeski as saying that he got two persons out of the paper to help. Further, if he had engaged a licensed scaffolder to complete the work above 3 m, that is to say the place from where the plaintiff fell, one would have expected that that person would be the person attending onsite and finishing the job on the Monday, not Mr Blazeski. Mr Blazeski said he purchased the additional material and was attempting to complete the task. It was a task he was not permitted to undertake. It is the task of a licensed scaffolder.
64 Further, as observed by Mr Wilkinson and by Mr Wainwright and depicted in photographs in exhibit 1, the workmanship in the erection of the scaffolding was seemingly fairly slipshod. I refer particularly to the deficiencies noted on page 78 of exhibit 3 and depicted in the photographs at pages 20, 30, 32, 33 and 39 of exhibit 1. The deficiencies identified include:
• The screw jacks at the foot of the scaffolding were partially off the wooden sole plate such as there was no proper support for the scaffolding generally;
• The ladder was not properly fastened at the base and extended at a height greater than 900 mm from the top and was not properly secured;
• A number of cross-braces to support the scaffolding that were not clipped on;
• The electrical lead for the hoist was placed and secured around the scaffolding.
65 I do not accept Mr Blazeski's evidence that the scaffolding was completed by a licensed or ticketed scaffolder.
Mrs Blazenka Blazeski
66 The second defendant, Mrs Blazenka Blazeski, gave evidence. She is a dental technician by occupation but was registered as the owner builder of the house under construction.
67 Mrs Blazeski said that she was very unhappy with the plaintiff. He was rude and aggressive towards her and considered that he had more experience than her at doing brickwork. She said it was obvious to her that the plaintiff could not read plans and that she had to stay on the site all day to watch and supervise to make sure everything was right. She said that he had been instructed not to start early and disregarded those instructions.
68 Mrs Blazeski further volunteered that the plaintiff had demanded cash payment for his work.
69 Mrs Blazeski said that the plaintiff called her in December. She advised him that the site was not ready for the upper storey brickwork. The plaintiff said to her that if he did not get started on 21 December he may not do the job at all. The plaintiff told her to speed it up or they would lose him to other work.
70 Mrs Blazeski said that she had helped her husband on the Wednesday, holding bits and pieces as they erected the scaffolding on the rear and the side of the property. She was present at the site with her husband on Friday. The plaintiff, his employee, Mr Donatelli, and two scaffolders were also present.
71 Mrs Blazeski said that bricks were loaded on the top slab using a crane but she did not speak to the plaintiff that day.
72 She said that the plaintiff was trying to push them along with the scaffolding. She said they told him that they would let him know when it was finished. The plaintiff was not told that he could not start first thing on Monday.
73 Mrs Blazeski said that at the end of the day they cleaned up and her husband then put yellow and black tape around the perimeter of the site and red and black tape across the entrance to the stairwell. She said the tape was placed there to warn that the scaffolding was not finished and it was dangerous. She was aware that it was unfinished.
74 Mrs Blazeski said that she unsuccessfully tried to telephone the plaintiff on two occasions on Saturday, 19 December to advise him that as the scaffolding was not finished he was not to start on the following Monday. On Monday morning her husband left early to get the extra scaffolding. Mr Donatelli telephoned and advised of the plaintiff's accident.
75 Mrs Blazeski acknowledged that there was nothing to prevent people from going up the staircase but was adamant that the red and black tape was placed there to warn against going to the upper level.
76 Mrs Blazeski said an 'Authorised Personnel Only' sign was placed on a wall near the staircase on the left-hand side of the entrance. This is to be contrasted with her husband's evidence that it was on the right-hand side. She accepted in cross-examination that such a sign did not appear in any of the photographs. She further acknowledged that there was no sign warning that the scaffolding was not complete.
77 Mrs Blazeski said that she recalled speaking to the plaintiff by telephone on Friday, 18 December about when he could start the brickwork on the second-storey of the property. She recalled advising the plaintiff that whilst she and her husband would try their hardest to finish the scaffolding by Monday, they would let him know whether or not it was completed and if he could come to the site. In the meantime he was to be on standby.
78 She said that the plaintiff had said that he would start Monday and she said no and that she would let him know when to start.
79 Mrs Blazeski acknowledged that on Friday, 18 December, she knew that the site was dangerous. She said that on the Monday her husband went to the site before 7.00 am to intercept the plaintiff.
80 I pause to note that given that the plaintiff was instructed to not attend the site the expectation that he would nevertheless attend and undertake work contrary to such instruction, particularly in the light of their previous seemingly acrimonious relationship, is surprising.
81 I found the second defendant, Mrs Blazeski an unimpressive witness and would not rely upon her evidence. I consider that she was keen to cast the plaintiff in a poor light with unsolicited and irrelevant comments, such as the plaintiff allegedly seeking payment in cash; that he was incompetent and incapable of working without supervision by her and that he could not read plans.
82 If, as Mrs Blazeski suggests, the plaintiff was as bad as she now seeks to make him out, one wonders why they engaged him to do the brickwork on the second stage, particularly when there was seemingly no contractual relationship in place. I suspect that her evidence is coloured by the fact of the claim now being pursued against the defendants and subsequent events and is not a truthful account of events.
83 Her response to matters touching upon the need to secure the premises from children demonstrated, in my opinion, an indifferent attitude to issues of safety. When asked whether there was anything to stop children being on the site, her response was to the effect that parents should keep their children at home rather than her doing anything in a positive way to secure the site.
84 The fact that the defendants continued to use the plaintiff, notwithstanding the issues identified by them, supports the plaintiff's version of events, namely that it was the defendants who needed a bricklayer at that time and were anxious for the plaintiff to commence on 21 December to fit in with the first defendant's attendance at home over the Christmas period.
Mr Phil Faigen
85 The redacted report of Mr Phil Faigen, an architect/builder, was tendered by consent (exhibit 5). Mr Faigen opined that the defendants were required to act reasonably in control of the access to the site and to ensure suitable warnings, such as danger tags, warning signs and other measures were erected so as to alert unauthorised access to the scaffolding. There was no prescribed form for the signage required to warn of the risks on a building site, and, more particularly, scaffolding, signs were required to be of good size, clear visibility and not obstructed.
86 Mr Faigen opined that the placement of warning tape qualified as a sign because it was easily visible from a distance. The colours red or yellow are universally accepted as 'danger' or 'warning' signs. He stated that such warning tape was regarded as symbols of impending danger and that lay persons with no experience in the building industry, as well as those more conversant with site safety, would recognise warning tapes indicate danger.
Findings
The events leading up to the plaintiff going on to the site on Monday, 21 December and the circumstances as to the plaintiff's entry on the site on that day
87 I find on the balance of probabilities that the plaintiff was told by the defendants that the site would be ready to commence brickwork on Monday, 21 December and that the plaintiff was expected to commence at that time.
88 I prefer the evidence of the plaintiff to that of the defendants on this issue. His account accords with the probabilities. If, as the defendants contend, the plaintiff was threatening to go to another job if the work on their site could not commence on 21 December, it is more probable that the defendants would have endeavoured to ensure that the scaffolding was ready for the plaintiff to commence the brickwork as scheduled on 21 December. They were likely to have assured the plaintiff that it would be completed and ready for Monday to avoid the risk of the plaintiff going to another job. If the plaintiff had gone to another job the brickwork would not have been completed over the Christmas period when the first defendant was available for work. This accords with the plaintiff's account.
89 I find that the defendants advised the plaintiff that the scaffolding would be finished by Monday and required him to start on the Monday. Both defendants were aware of the deficient state of the scaffolding and that it was dangerous to persons who may enter the site, including workers such as the plaintiff. Their knowledge as occupiers of the likelihood of persons being on the premises is relevant in this case.
90 The plaintiff's case is that the defendants well knew that he was likely to be on site to commence brickwork on Monday, 21 December 2009.
91 I accept the evidence of the plaintiff and find that the first defendant told the plaintiff to come on Monday morning to start the job. The probability of the plaintiff being told to commence work on Monday morning is supported by Mr Iloski. He was informed by Mr Blazeski on the previous Friday that the bricklayer would be starting on the Monday. Mr Blazeski said he attempted to obtain sufficient scaffolding material on the weekend and to be early on Monday at the site. The only plausible explanation requiring him to be there early was that he was aware that the plaintiff would be attending on site on Monday to commence the brickwork as requested. The probabilities are that the plaintiff was told, as was Mr Iloski, that the brickwork was to start on the Monday.
92 The first defendant undoubtedly expected that he would be able to complete the scaffolding before then. Further, the only reason the first defendant would instruct his wife to try and ring the plaintiff to tell him that the site was closed was that the plaintiff was otherwise expected to attend as arranged.
93 Mrs Blazeski was unable to explain why, if the plaintiff was not to come to the site without express instruction, she was required to ring him on the weekend to tell him not to come. I find that it is consistent with the evidence that the plaintiff was told to attend on the Monday because the defendants believed the scaffolding would be completed.
94 On Monday morning, the defendants were then aware that the plaintiff was going to be working on the site and that he had not been told that the scaffolding was not complete.
Whether the steps taken by the defendants to warn of the danger created by the incomplete state of the scaffolding were sufficient to discharge the duty that they owed to the plaintiff
95 The first matter that I consider is the red and white 'danger' tape.
96 The presence or otherwise of the red and white 'danger' tape across the stairway is important. It is the defendants' evidence that the tape was secured in that position on the Friday.
97 I do not accept the defendants' evidence on this point. It is inconsistent with Mr Wilkinson's notes (page 76, exhibit 3) wherein he records the defendants as advising that the yellow and black 'caution' tape was fixed. I am in no doubt that if the defendants had specifically placed the red and white danger tape, it would have been identified to Mr Wilkinson at that time.
98 Further, whilst the red and white tape is depicted in some of the photographs in exhibit 1, for example, on pages 16, 50 - 51, 56 and 58, it does not appear in others including pages 11, 13 and 18. I note that on pages 11 and 12 (exhibit 1) the notebook – seemingly the property of Mr Wilkinson is visible. It follows that when those photographs were taken the red and white tape that is depicted in other photographs had not then been erected.
99 Mr Iloski said that he saw yellow and black caution tape on the outside of the premises and walked under it. He assumed that that was just to keep out nuisance children and other people who were not supposed to be there. Importantly, he did not recall anything preventing him from walking up the staircase.
100 The plaintiff and Mr Wainwright said that the red and white danger tape was not secured across the stairwell on the Monday morning. The plaintiff said that if it had been there he would not have climbed up. He was aware that the yellow tape was there to keep others out of the site.
101 Mr Wainwright was adamant that when he arrived on the Monday morning the tape was not in position as depicted in some of the photographs. He speculated that Mr Wilkinson may have put it up subsequently.
102 Mr Wilkinson recorded visiting the site on a number of occasions.
103 I accept the plaintiff's and Mr Wainwright's evidence as to the absence of the red and white tape across the stairwell and so find. I do not accept that the tape was erected as the defendants each assert.
104 The first defendant said the yellow tape was put around the site to warn everyone there was a hazard there and for nobody to go in. When asked why he did not obtain a sign that the scaffolding was not completed he responded that he had used the tape instead and the sign excluding unauthorised personnel. This was a sign that was said to be on the internal wall on the right-hand side of the entrance. It is not visible in any of the photographs in exhibit 1. Mr Blazeski marked its location on the photograph at page 57. It is not evident in that photograph.
105 Mrs Blazeski stated that the sign was on an internal wall on the left-hand side - not the right as indicated by her husband. I do not accept the evidence of the first and second defendant as to the existence of any such sign. It was not apparent in any of the photographs taken of the area, and not seen or identified by any witness other than the defendants. It was not photographed by Mr Wilkinson. Having regard to the comprehensive examination of the site and the extent to which all tapes and signs were photographed, it is reasonable to assume that if such a sign did exist as described it would have been photographed at the time of his inspection.
106 It follows that the only steps that were taken by the defendants to secure the entry to the upper floor areas and warn that the scaffolding was incomplete, was placing the yellow and black tape around the perimeter of the site.
107 The defendants knew the plaintiff would be coming onto the site to commence the brickwork on the Monday. They tried unsuccessfully on two occasions to contact him to tell him that the scaffolding was incomplete. On Monday morning the plaintiff was unaware the scaffolding was incomplete.
108 It is necessary next to consider what a reasonable person in the position of the defendants would have done by way of response to a reasonably foreseeable risk, that is to say what precautions would a reasonable person have taken in the defendants' position? This is to be assessed objectively at the time immediately prior to the accident.
109 As to what is an adequate response requires some consideration of the prevailing circumstances and what any person in the category of the plaintiff would have expected when attending on the Monday.
110 I turn first to the position in relation to the hoist. The hoist was plugged in and for all intents and purposes ready for use to carry building materials, profiles, stays, wheelbarrow loads of cement to the first floor to enable the brickwork to commence. Without the hoist it would not have been possible for the plaintiff to undertake the brickwork.
111 The brickwork cement was being mixed and transported to the upper floor by the hoist. Tape or signage on the hoist including a sign, 'Do Not Use', 'No Access to Upper Level', 'Scaffolding Incomplete' or any similar sign fixed to the hoist would have alerted anyone going to the upper level to carry out works that required the use of the hoist the fact that the scaffolding was incomplete and that that area of the site was closed.
112 Further, the hoist could have been isolated, the power disconnected and the cage chained and padlocked to prevent use.
113 It was the plaintiff's evidence that if the site was not ready for access to the first floor slab then the hoist would not have been plugged in. In this case the fact the hoist was operating provided confirmation to the plaintiff that access to the slab was permitted. Indeed he used it that morning to transport the stays to the upper floor.
114 I turn now to the entry to the stairwell. I find that the red and white tape was not erected or secured across the stairwell when the plaintiff used the stairwell that morning. The absence of any warning tape such as the red and white danger tape over the stairwell to prevent access was significant. Clearly, it was considered as an appropriate remedy after the plaintiff had fallen.
115 The plaintiff could not be expected to look up and see whether the scaffolding was completed or not when entering, particularly in the light of the assurance that he had been given by the defendants that the scaffolding would be completed and having heard nothing to rebut that suggestion.
116 The signage that could have been applied and provided by the defendants did not need to be fancy. As Mr Faigen suggests, it was simply required to be effective. The defendants could have written on a cardboard box and placed it in the stairway or secured something of that nature a sign to the effect 'Do Not Enter, Scaffolding Not Complete'. A similar message could have been placed on the hoist that the scaffolding was incomplete or the hoist padlocked to prevent it being used by the plaintiff. The defendants had knowledge of the danger and of the expectation that the plaintiff and his workers would be on the site on the Monday. To simply put yellow and black around the site and attempt to contact the plaintiff by telephone on two occasions is not a reasonable response to the obvious danger, particularly given the probability of severe injury in the circumstances that were then present.
117 At the very least the defendants could have placed a sign on the stairwell or the hoist directed to the plaintiff personally saying, 'Do Not Start, Scaffolding Not Finished Yet'. It follows that the breach in this case occurred when the defendants, with the knowledge of the hazard and the knowledge that the plaintiff and his workers would be attending on the Monday, took no reasonable steps to warn him of the fact of the incomplete scaffolding and the danger created thereby.
118 I find that the defendants failed to warn the plaintiff of the danger presented by the scaffolding and the dangerous state of the premises created thereby. The defendants breached the duty owed by them as occupiers of the site to the plaintiff. I find that save for the defendants' breach the plaintiff would not have suffered the injury as he did.
Was risk of injury so obvious that there was no duty to warn
119 The defendants are entitled to rely upon a defence that relates to injury occurring in circumstances where the risk is an obvious one: s 5O Civil Liability Act 2002.
120 An obvious risk to a person who suffers harm is a risk that in the circumstances would have been obvious to a reasonable person in the position of that person. It includes risks that are patent or a matter of common knowledge: s 5F(1), s 5F(2).
121 People ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving or avoiding obvious hazards. Some allowance must however of course be made for inadvertence. Each case will turn on its own facts: Homestyle Pty Ltd v Perrozzi [2007] WASCA 16 [53] - [54].
122 Obviousness depends to a significant extent on the circumstances from the position of the perceiver. That which is obvious from one position at one time of the day or in some circumstances may not be obvious where those factors change. To determine what is obvious in a particular case, it may be useful to take the specific circumstances of the plaintiff into account and then inquire whether there is some aspect of his or her circumstances which was not reasonably foreseen by the occupier: Homestyle Pty Ltd v Perrozzi [55].
123 Whether a risk is obvious must be considered in all the circumstances including what warning was given to alert someone of the risk. The defendants contend that a large hole (as a result of the incomplete scaffolding) was an 'obvious risk' which is a risk of harm that would have been obvious to a reasonable bricklayer.
124 This is to be considered with reference to the whole of the circumstances at the time. Factors bearing upon whether the risk created by the incomplete state of the scaffolding was an obvious risk include:
• The plaintiff was an experienced bricklayer;
• That regardless of whose version of the conversation on the Friday is believed, the plaintiff left the site on the Friday knowing that the scaffolding was incomplete;
• The plaintiff was advised that the scaffolding would be completed on the Monday and did not receive any advice to the contrary;
• When the plaintiff arrived on Monday the hoist was plugged in and ready for use;
• Neither the hoist nor the stairway to the upper level were taped off or restricted in any way to alert the plaintiff and others of the incomplete nature of the scaffolding;
• There was no other signage other than the yellow and black tape around the perimeter of the building.
125 In my opinion, in the context of the plaintiff undertaking the task at hand, the risk created by some part of the scaffolding flooring being missing would not have been so readily apparent as to constitute an obvious risk such that no warning was necessary.
126 The relevant circumstances in respect of the plaintiff in this case were:
• That at the time of arriving onsite on Monday morning, the plaintiff expected the premises would be suitable for him to work on the first floor slab level;
• Such understanding was confirmed in his mind at least by the absence of any warning signs or any obstruction to the access to the upper floor level and the fact that the hoist to the first floor was operating and indeed was utilised by him to transport material to that floor;
• There were no other warnings indicating that the scaffolding was not complete;
• Nothing had been said or conveyed to him to disavow the information that had been provided to him that the scaffolding would be completed by Monday;
• Whilst some of the photographs in exhibit 1 taken after the accident show a gap on the external scaffolding on the right-hand side, the plaintiff did not observe that but rather was concentrating on setting up the site for his workers;
• The plaintiff's approach to the site would have been along the edge of the building where one would be not expecting to look up such that he would view what is otherwise apparent from photographs that were taken some distance away.
127 As Mr Clyne, counsel for the plaintiff, quite properly noted, the photograph is taken from outside the front of the building and not from the slab and how it appeared from there and whether or not it is obscured is unknown. Further, the photographs focussed on the deficiency and not on the site generally as would have been presented to the plaintiff and other visitors to the site.
128 I am satisfied that in all the circumstances the gap in the flooring in the scaffolding to the upper level adjacent to the balcony at the front of the house was not obvious for the purposes of s 5(O) of the Civil Liability Act, and so find.
129 It follows that the defendants had a duty to warn the plaintiff of the risk created by the state of the premises and in particular, the incomplete state of the scaffolding, and I so find.
Contributory negligence
130 The question of whether or not there is contributory negligence on the part of the plaintiff involves a finding that the plaintiff had failed to take reasonable care for his own safety and that his behaviour constituted a departure from the standard of care of a reasonable man: Pennington v Norris [1956] HCA 26.
131 The assessment of the culpability of a plaintiff and a defendant for the purpose of apportionment requires a consideration of the relevant importance of the conduct of each of the parties in causing the damage: Homestyle Pty Ltd v Perrozzi [64] - [66].
132 The whole of the conduct of each negligent party in relation to the circumstances of the accident must be subjected to a comparative examination.
133 In this case, the assessment of such apportionment involves consideration as to the extent to which regard is to be had to the plaintiff's preoccupation with the matter in hand and other prevailing conditions in a manner considered in Sungravure Pty Ltd v Meani [1964] HCA 16, as approved in McLean v Tedman [1984] HCA 60 [20].
134 The question is was the plaintiff's injury as a result of some temporary inadvertence, some inattention or the taking of a risk excusable in the circumstances because it is not incompatible with the conduct of a prudent and reasonable man?
135 At the time that the plaintiff fell, he had stepped backwards whilst placing some stays on a pack of bricks. His focus was on the task at hand and not on the state of the scaffolding that he had been assured would be completed at the time. Other portions of the scaffolding in that vicinity were properly covered with planks: see exhibit 1, page 10. As the plaintiff stepped backwards towards the corner he fell through the gap in the scaffolding. He did not anticipate the gap would be there. He was stepping backwards because he was intending to place the stays on the bricks that were on the slab. The bridge between the front and side scaffolding was completely in front of him.
136 It is the whole of the conduct of each negligent party in relation to the circumstances of the accident that must be subjected to comparative examination. The significance of the various elements involved in such examination will vary from case to case and circumstances may be such that a comparison of the relevant importance of acts in causing damage will be of little importance: Pobrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 [10].
137 The plaintiff was aware that working on building sites, particularly on a first floor level, carries risks. He was working on a site that was generally unfamiliar to him. This was the first day that he had attended the site save for when he marked it up during the previous week.
138 In my opinion to step backwards and to not look where he was going shows a wont of care for his own safety. It must be recognised that persons working on building sites may not keep a proper lookout and focus on tasks at hand.
139 It is for that very reason that scaffolding is required to be properly constructed with safety rails and solid flooring in place. In the circumstances in this case, there was flooring on the immediate left of the plaintiff and one might have assumed that that continued on behind him. Such was not the case. That said, however, it was the plaintiff who stepped back without looking.
140 In the circumstances, having regard to the conduct of each negligent party in relation to the circumstances of the incident, I consider that the defendants must bear the major portion of the responsibility for the plaintiff's injury. Save for the defendants' failure to properly warn the plaintiff, the plaintiff was exposed to the very risk created by the defective scaffolding.
141 In the circumstances, I assess the just apportionment of responsibility to be 85% on the part of the defendants and 15% on the part of the plaintiff in respect of the plaintiff's failure to have proper regard to the nature of his surroundings and the surface upon which he was then working.
142 Accordingly, I find for the plaintiff on the issue of liability against the defendants.
143 I find that the defendants are liable to the plaintiff in respect of 85% of the damages suffered by the plaintiff.
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