Slivak & Slivak v Lurgi (Aust) P/L & BHP M & G Ins No. Scgrg-96-450 Judgment No. S6951

[1998] SASC 6951

SLIVAK AND SLIVAK v LURGI (AUSTRALIA) PTY LTD AND
BHP MARINE & GENERAL INSURANCES PTY LTD
[1998] SASC 6951

1      PRIOR J.   On 20 February 1993, Mr Slivak sustained serious injuries in an accident at work.  He and his wife now seek damages, not against his employer but the company which designed and issued erection procedures with respect to a cast house floor fume extraction system then being constructed by Mr Slivak’s employer at the Whyalla blast furnace of the Broken Hill Proprietary Company Limited (BHP).

2      The defendant Lurgi (Australia) Pty Ltd, admits to designing the system but denies liability, fundamentally upon the ground that the design was adequate, as were the erection procedures and that had Mr Slivak’s employer, Lucon Pty Ltd, constructed the system in accordance with its erection procedures no harm would have befallen Mr Slivak.  The defendant joined its insurer seeking indemnity from it should it be found liable to the Slivaks.  The insurer denied liability.  In the course of the trial the defendant and third party joined in requesting that the issues between them be adjourned pending a determination of the issues between the plaintiffs and the defendant.  The application was granted.

3      The fume extraction system was some 25 metres in height.  Air came in through the top of the structure, passing through a filter system and coming out a funnel at the bottom.  At a level of about 15 metres off the ground was a filter ring system comprising of four cell plates, each of about 1 tonne in weight, set up in a formation 2 x 2.  The cell plates were supported before being welded by a frame which comprised the extraction filter system.  There was a cross frame in the form of a cross in the middle of it and walls right around the side.  The cell plates were about 6mm in thickness, with perforation within the plate itself as part of the filter system.

4      Mr Slivak and David Lloyd gave evidence of how the accident occurred. Mr Lloyd was 22 years old at the time of the accident.  He became qualified as a boiler-maker/welder some two years before, when he was first employed by Lucon. Lloyd’s evidence was that he had been working at the bag house site for almost a fortnight when, on the afternoon of Friday, 19 February 1993, he and Keith Frost worked on the north-west cell plate.  They used a chain block attached to the western wall surrounding the cell plate and the cell plate itself, a dog and wedge and a scaffold plank as a lever to adjust the alignment of the north-western cell plate.  A hydraulic mechanism known as a porta-power, which is placed between two areas and expanded to achieve movement by way of hydraulic movement was also used.  Frost was not Lloyd’s supervisor but a leading hand.  Once that cell plate was in position, Frost tack-welded it to the support frame.  By then it was time to knock off.  On the following morning, Lloyd was told by the site manager what his duties for the day were.  He joined Mr Slivak in an attempt to repeat, with the south-western plate, the process that he had pursued with Frost on the north-western plate the previous afternoon. Lloyd believed Frost was to complete work on the north-western cell. 

5      Lloyd acknowledged that some measurements would have been taken.  He said that they established that the plate needed to go 25 - 30mm in a northerly direction.  To do this he and Mr Slivak placed a scaffold plank in the space, with Mr Slivak placing a timber bearer behind the plank to achieve a fulcrum and Lloyd putting pressure on the plank to move the cell plate.  His evidence was that the cell plate moved suddenly inwards, dropping downwards. There is no doubt that Mr Slivak suffered his injuries as a result of the dislodgment from its supports of the elevated cell plate floor on which he was working.  I act on Lloyd’s description of the events and assume the evidence he gave to be essentially the same as was in the statement he made soon after the accident and disclosed to the expert witness called for the plaintiffs.

6      The plaintiffs sought to prove the inadequacy of the defendant’s design by reliance upon the evidence of a structural engineer, Mr Fowlie.  He had the benefit of contemporaneous statements from Mr Slivak and witnesses to the accident, construction and site survey drawings and the suggested erection procedure prepared by the defendant.  It was conceded that evidence given before this Court is not inconsistent with the essential facts assumed by Mr Fowlie for the purposes of his opinion. 

7      By reference to the construction documents Mr Fowlie made particular comments on the dimensions of the structure.  In his report, he referred to the fact that the cell floor consisted of four separate rectangular cell plates, placed in a 2 x 2 formation, with each cell plate designed to be continuously supported on each of its edges by steel work supports, either directly attached to the external wall of the filter structure on two adjacent sides or by cross frames spanning between the mid-lengths of opposite sides of the filter structure on the other two adjacent sides.  The individual cell plates were to be site welded in position once they had been located and aligned on the supporting steel work.  Each individual cell plate was constructed from two sub-plates site welded together before erection.  Connection of the sub-plates was effected by site welding, on the ground, to a common steel stiffening plate. 

8      Mr Fowlie referred to the overall dimensions of each of the completed cell plates and described their construction, pointing out that no perforations to the plate were provided in each of the four corners of each of the four plates, with stiffening plates welded to the underside of each of the fabricated cell plates.  He referred to the fact that cut-offs were provided at all but the external corners of each cell plate.  He then referred to the cell plate supports, particularising them before making comments on the structure dimensions as detailed.  Those comments were:

“The clear theoretical internal dimensions between the internal edges of the supports to each of the cell plates are therefore calculated to be 4647mm (N-S) x 4167mm (E-W).  From these, it can be deduced that, if both the support structure and the cell plate had been constructed in exact accordance with the dimensional requirements given on the engineering drawings and allowing for the maximum 40mm overlap of the cell plate on the support structure on two adjacent sides (governed by the extent of stiffeners welded to the underside of the cell plate) and assuming the edges of the cell plate were parallel to the external walls of the filter structure and no deflection of the plate under its own self weight, the minimum overlap on the two opposite adjacent sides would be 13mm and 3mm respectively on the north or south and east or west sides of the cell plate.  Had the cell plate been constructed to tolerance, but at the lower end of the tolerance range, the overlap on the two opposite adjacent sides would reduce to 11mm and 1mm respectively.  This theoretical position is confirmed on drawing 001-L003/A prepared by Lurgi on 5 March 1993.  Vertical deflection of the plate under its self weight would cause a ‘dishing’ of the plate which would reduce the above theoretical overlaps.

Had this theoretical condition, in fact, been realised, the south-western cell plate may not have become dislodged from its supporting steelwork.”

9      Mr Fowlie then referred to the installation procedure for each of the plates, as detailed in a statement from the construction supervisor, Mr Decker.  Decker was not called as a witness in these proceedings.  Mr Fowlie then referred to the version of events given by Mr Slivak in the statement supplied.  That was that Mr Slivak and Mr Lloyd were in the process of levering a cell plate away from the external wall to locate it in position when it moved suddenly inwards, dropping downwards.  Mr Fowlie’s assumption was that Mr Slivak and Mr Lloyd must have been working somewhere along the southern wall of the south-western quadrant of the cell floor, aligning the plate, at the time of the incident.  The accepted evidence before the court makes that assumption correct.

10     Mr Fowlie then referred to Site Survey drawings and said that on the basis of the dimensional information presented and assuming one corner of the plate to be square, it was geometrically possible to position the south-western cell plate in positions such that full support to its edges was provided on two adjacent sides only, with a gap for the full length of the plate edge on a third side and minimal overlap of the plate and its supporting structure on the fourth, and then only at the plate corners.  Mr Fowlie then identified possible plate locations on the assumption that Mr Slivak and Mr Lloyd were working adjacent to the south wall of the south-western floor quadrant.  They were particularised in two drawings prepared by him.  One showed a continuous gap between the plate and its support along the eastern side and local overlaps on the southern edge of 2.5mm and 23.1mm at the south-western and south-eastern corners.  The latter position provided a continuous gap along the western edge of the plate and local overlaps of 2.8mm and 24.8mm at the south-western and south-eastern corners respectively, again on the southern edge of the plate.  Mr Fowlie noted that with respect to the erection of the cell plate floor, no specific erection instructions were provided in the “Suggested Erection Procedure” booklet issued by the defendant.  In the witness box, Mr Fowlie demonstrated that for a rigid, non-deflecting, totally symmetric, square cornered plate initially supported along each of its four edges to fall, before being welded in position, there would have to be the loss of edge support to at least two adjacent sides.  When the only load on the rigid plate was its own self weight, no real problem arose.  However any additional load applied to the plate, such as that from persons and equipment, shifting the combined centre of mass outside the centre of support would cause the plate to rotate above its axis.  For a more flexible plate the situation would be more severe.  Mr Fowlie pointed out that the inclusion of cut-offs at three of the four corners of the plates is of significance.

“With two adjacent edges of the plate unsupported, the points of support to the plate would no longer be at the plate corners, but at the points where the cut-off faces and the support intersected, that is, the line of support to the plate would have moved back toward the ‘supported’ corner of the plate.  The centres of mass of the plate, however, would have remained at the geometric centre of the cut-off plate which would be now located outside the line of the centre of support to the plate, causing instability of the plate.”

Mr Fowlie then referred to the description given of the method adopted for aligning the cell plate by Mr Slivak and Mr Lloyd in their statements.  He understood that that was to lever the plate into position from within the filter structure and whilst standing on the plate.  This was said to have involved placing a plank, resting on the shelf angle support to the plate in the gap between the edge of the cell plate and the external wall and placing a block of wood a small distance above the cell plate floor level, between the plank and the cell wall, to act as a fulcrum.  The evidence given by Mr Slivak and Mr Lloyd at trial was to the same effect.

11     With respect to this, Mr Fowlie said:

“An outward force applied to the plank above the level of the fulcrum would apply an inward force to the edge of the cell plate.  The magnitude of this force would depend on the length of the plank, the location of the fulcrum and the magnitude of the applied force to the plank.  During the levering operation, an outward reaction force would be applied to the external wall at the level of the fulcrum whose magnitude would be equal to the sum of the applied force and the force transmitted to the plate edge.

This outward reaction force, applied to the external wall of the structure would deflect this wall in an outward direction, thereby reducing the overlap of the plate and the supporting shelf angle.

The force applied by the plank to the edge of the cell plate would be normal to the plank.  The horizontal component of this force would put the cell plate into compression, while the vertical component of this force would deliver either an upward or downward force to the edge of the cell plate, depending on the angle of the plank relative to the external wall, causing an associated local, vertical, upward or downward deflection at the plate edge.”

12     Mr Fowlie then gave his opinion which was that the south-western cell plate fell as a result of the loss of its support along two of its adjacent edges.  He said that the loss of support could be attributed to a number of factors, in combination, pointing out that not all of those factors would have to apply simultaneously for the loss of support to have occurred.  The factors identified by Mr Fowlie were:

“ ...  bowing of the southern and western walls of the structure, as constructed;

·   out of square of the southern quadrant of the cell plate support structure, as constructed;

·   smaller than documented size of the south-western cell plate, as constructed;

·   width of the shelf angle supports shop welded to the southern and western walls of the structure, as designed;

·   the extent of curtailment of the stiffeners to the under-side of the cell plate;

· cut-offs to the corners of the cell plate, as designed;

· flexibility of the cell plate, as designed;

·   the action of levering the cell plate into position, and the effect of this levering on the deflections of both the cell plate and the cell plate supporting wall.”

13     Mr Fowlie then said that these factors, together with the shift in the centre of mass due to the presence of Mr Slivak and Mr Lloyd on the plate, would have caused an eccentricity between the amended centre of mass and the centre of support to the system to develop, resulting in the plate rotating about its support points, causing the plate and those working on it to fall.

14     Mr Fowlie said that in view of the small margins for the successful alignment of the cell plates on their supports, particularised in the engineering drawings and said to have been confirmed by site survey measurements taken after the incident, a “straightforward, inexpensive preventative measure to preclude dislodgment of the plates during the alignment and welding operations might have been the inclusion of additional supporting members, located diagonally across the corners of, and connected to, the documented cell plate support steelwork.” 

15     In cross-examination Lloyd said that when checking, before using the plank, the cell plate seemed supported on all four sides.  On two of the sides it was supported by angle iron; on the other two by cross members.  Lloyd was unable to say by how much the cell plate was being supported by the south-western sides.  Lloyd agreed that the effect of what he did in the levering was to exert an outward pressure on the cell plate wall.

16     I agree with the submissions put on behalf of the defendant.  The cell plate fell because it ceased to be supported on at least two adjacent sides.  However, the evidence does not show precisely how the cell plate came to be in that position.  Accepting that, I agree that a proper finding is that it was the action of pushing against the southern wall which moved the angle iron support outwards causing loss of support to the cell plate on that side.  Plainly both Slivak and Lloyd must have overlooked the fact that the cell plate was not supported, or only marginally supported, on either its eastern or western side. 

17     As Fowlie’s report and the plans before the court make plain, the cell plate was designed to be larger than the internal space within which it was to be placed.  There were a number of stiffening plates welded to the underside of the cell plate.  This meant that when the cell plate was placed in the internal space, it could not be manoeuvred to overlap on any one side by more than 40mm.  Thus, had the cell plate support structure and the cell plate been constructed according to design and, the cell plate so placed in the support structure that on two adjacent sides the maximum possible overlap of 40mm was used, the cell plate would still have been supported on each of the two opposite sides.  The evidence satisfies me that the cell plate support structure had not been constructed according to the defendant’s design.  In particular, instead of the space measuring 4647mm north-south, it measured 4650 on its eastern edge and 4658 on its western edge.  The drawings also make plain that because of the bowing of the southern wall as constructed, its space was up to 21mm more than design.  Again the east-west dimension was not in accordance with design.  It was up to 14mm more than it should have been.  As for the cell plate, whilst it was constructed as designed on the north-south dimension, it was up to 3mm outside tolerance on the east-west dimension.  All these facts taken together with the accepted evidence from Lloyd as to how the cell plate was manoeuvred in a northerly direction gives rise to the conclusion that the cell plate ceased to be supported on its southern edge.  For the cell plate to fall it had to be unsupported on either its western or eastern edges as well. It could only have been placed in such a position because the cell plate support structure had not been constructed according to design.  I so find.  Sadly, the fact was that the cell plate support structure was constructed out of square.  All of these circumstances clearly establish fault against Mr Slivak’s employer.  It failed to construct the cell plate support structure in accordance with the designer’s specifications.  The internal space was too large.  I agree with the submission made that Fowlie’s suggestion that vertical deflection of the cell plate was an additional factor can properly be ignored.

18     The plaintiffs sought to make good their case against the defendant upon the basis that it was the principal contractor with BHP for the construction of the fume extraction system, its designer and an occupier with statutory obligations said to have been breached[1]. Counsel for the plaintiffs also submitted that whilst the contract between the defendant and BHP permitted the defendant to sub-contract its obligations, any sub-contracting did not have the result that the defendant was not an occupier nor one not owing a duty of care to Mr Slivak with respect to the erection of the fume extraction system.  The contractual documents nominated a site manager who was to be responsible for carrying out all of the contractor’s responsibilities as outlined in the contract.  No evidence was led of his presence on site.  The evidence dealt only with the presence of Lucon’s workers.

[1]               Occupational Health Safety and Welfare Act 1986, s23, s23A, s24(2a) and the Occupational Health Safety and Welfare (Construction Safety) Regulations 1987, reg22

19     I agree with the submission put by the defendant that the contractual rights existing as between the defendant and BHP do not establish as a fact that the defendant was in occupation of the work being undertaken by Mr Slivak’s employer at the Whyalla premises of BHP. It has not been established that the defendant was an occupier of the site.  On that approach, none of the provisions contained in the Occupational Health Safety and Welfare Act and its Regulations attaching to an occupier as occupier are relevant.  No breach of the other provisions relied upon is made out either.  I agree that s23A is not intended to apply to a building in the course of construction and that no breach of (2a) of s24 was made out.  As for reg22, I agree with the defendant’s submission that, on its proper construction, it has no application to the defendant nor to the thing being erected.  It applies to scaffolds and similar temporary aids to the construction of things.

20     A relationship of neighbourhood or proximity existing, the defendant was said to have owed to Mr Slivak a duty of care, with the scope of that duty extending to ensuring that the construction of the extraction system was safe[2].

[2]      Compare Southern Shire Council v Heyman (1984) 157 CLR 424

21     Reliance was also placed upon a chain of authority born of observations made by Mason J in The Commonwealth v Introvigne[3].  In that case, His Honour spoke of the basic principle of liability in negligence being departed from, in some cases, by substituting for the duty to take reasonable care a more stringent duty, that of “a duty to ensure that reasonable care is taken”.  Such a principle was applicable to those who conduct schools.  They cannot delegate the duty of care owed to pupils.  A later case, Kondis v State Transport Authority[4], was concerned with the duty of an employer to provide a safe system of work.  That was found to be non-delegable so that the employer was liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work.  That is not this case.  The defendant was not the employer of Mr Slivak.  The difficulty in identifying cases in which a non-delegable duty arises has been acknowledged[5].   Nonetheless a duty may be of such a kind that it is not possible to discharge it or transfer it by the employment of a competent contractor.  What must be discovered to establish a non-delegable duty is some element in the relationship between the parties that makes it appropriate to impose on the particular defendant a duty to ensure that reasonable care and skill is taken for the safety of persons to whom the duty is owed[6].  In Burnie Port Authority v General Jones Pty Ltd[7], five justices of the High Court referred to Kondis and said that categories of cases where a non-delegable duty arose were cases where the common element in the relationship between the parties generating the special responsibility or duty to see that care is taken, was that the person on whom the duty was imposed had undertaken the care, supervision or control of the person or property of another or was so placed in relation to that person’s property as to assume a particular responsibility for that person’s safety in circumstances where the person affected might reasonably expect that due care will be exercised[8].  Again, that is not this case.  The employer was the person who had a special responsibility towards Mr Slivak, not the designer of the system.  The employer undertook to erect in accordance with the designer’s specifications.  There was no element of special dependence or vulnerability on the part of the plaintiff with respect to the defendant[9].  Again this is not a case where, in connection with the construction of the system it designed, the defendant’s duty to Mr Slivak could be described as a personal non-delegable duty.  The case can be distinguished from Burnie Port Authority and Northern Sandblasting Pty Ltd v Harris[10].  The only duty readily identifiable owed by this defendant to Mr Slivak was a duty to take reasonable care with respect to the design of the extraction system.  I am not persuaded that there was a failure to impose adequate construction tolerances as distinct from design tolerances.  The defendant’s duty was not a duty to ensure that reasonable care for his safety was taken in the course of the construction of the system designed by it.  The designer was not under a duty to warn or supervise during construction[11].  A breach of any duty to take reasonable care has not been made out.  I baulk at construing the language of provisions in the Occupational Health Safety and Welfare Act and its Regulations as imposing a duty somewhere in between the more stringent duty to ensure that reasonable care is taken and that of the common law, to take reasonable care.  That seemed an inherent consequence of some of the plaintiffs’ submissions.

[3] (1982) 150 CLR 258 at 271

[4] (1984) 154 CLR 672 at 686

[5]      Stevens v Brodribb Sawmilling Company Proprietary Limited (1985) 160 CLR 16 at 44

[6]      Kondis v State Transport Authority (1984) 154 CLR 672 at 687

[7] (1994) 179 CLR 520

[8] (1994) 179 CLR 520 at 550 and 551

[9]      Compare Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551

[10] (1997) 188 CLR 313 at 369

[11]     cp Introvigne v The Commonwealth (1980) 32 ALR 251 at 273 and 274

22     Mr Slivak sustained his injuries as a result of an unsafe system of work, lack of proper supervision and a failure by his employer to carry into effect the defendant’s design and specifications for the construction of the extraction system. There is no proof that the design of the structure was itself defective.  If the support structure and the cell plate had been constructed as designed the cell plate would not have fallen.  It was reasonable for the designer to expect that the structure would be erected within the specified design tolerances.  Had this occurred the accident would not have happened. 

23     I reject the submission that the defendant was under an obligation to warn the employer about the need to adhere to the design specifications and to ensure that, at all relevant times, the fume extraction system was being constructed in accordance with those specifications.  I reject the suggestion that it was incumbent on the designer to anticipate an unsafe system of work and the method used by the two workers on the cell plate, issue warnings and be present to avoid such things occurring.  Those duties were upon the plaintiff’s employer.  The employer has paid worker’s compensation to Mr Slivak.  Neither Mr Slivak nor his wife can succeed in these proceedings against the current defendant. 

The plaintiffs’ claims are dismissed.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Occupational Health Safety and Welfare Act 1986, s23, s23A, s24(2a) and the Occupational Health Safety and Welfare (Construction Safety) Regulations 1987, reg22

2      Compare Southern Shire Council v Heyman (1984) 157 CLR 424

3 (1982) 150 CLR 258 at 271

4 (1984) 154 CLR 672 at 686

5Stevens v Brodribb Sawmilling Company Proprietary Limited (1985) 160 CLR 16 at 44

6      Kondis v State Transport Authority (1984) 154 CLR 672 at 687

7 (1994) 179 CLR 520

8 (1994) 179 CLR 520 at 550 and 551

9Compare Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551

10 (1997) 188 CLR 313 at 369

11     CP Introvigne v The Commonwealth (1980) 32 ALR 251 at 273 and 274