Sutton v Erect Safe Scaffolding (Aust) Pty Ltd

[2006] NSWCA 265

New South Wales

Court of Appeal

CITATION:	SUTTON v ERECT SAFE SCAFFOLDING (AUST) PTY LTD & ANOR [2006] NSWCA 265
HEARING DATE(S):	Dealt with on written submissions in Chambers
JUDGMENT DATE:	21 September 2006
JUDGMENT OF:	Bryson JA at 1; Basten JA at 8
DECISION:	Ordinary Summons for leave to appeal dismissed with costs.
LEGISLATION CITED:	Occupational Health and Safety Act 2000
CASES CITED:	Nowlan v Marson Transport Pty Ltd [2001] 53 NSWLR 116 White v Overland [2001] FCA 1333
PARTIES:	Ian Sutton - Claimant Erect Safe Scaffolding (Aust) Pty Ltd - First Opponent Australand (Regency) Pty Ltd - Second Opponent
FILE NUMBER(S):	CA 40418/06
COUNSEL:	Mr M. Perry - Claimant Mr J.G. Stewart - Second Opponent
SOLICITORS:	Taylor & Scott - Claimant McCulloch & Buggy - First Opponent Ebsworth & Ebsworth - Second Opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4948/04
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	15 March 2006

CA 40418/06

BRYSON JA
BASTEN JA

21 SEPTEMBER 2006

IAN SUTTON v ERECT SAFE SCAFFOLDING (AUST) PTY LTD & ORS

Judgment

1 BRYSON JA: The claimant seeks leave to appeal from the decision and costs orders made by his Honour Judge Garling in the District Court on 15 March 2006: the Trial Judge was of opinion that the claimant (plaintiff in the District Court) "… will have to be responsible for the costs thrown away by the adjournment and that is of each of the defendants."

2 The claimant sued for damages for personal injuries in a work accident in which he claimed that, while working as a formwork carpenter on a construction site at St Leonards, he walked along planking or a gangway area supported by scaffolding, and his head came into contact with a piece of scaffolding tie which inappropriately protruded into the area where he was required to walk. In his Second Amended Statement of Claim he alleged that the first defendant (and first opponent) Erect Safe was carrying out building work and/or construction work, and was carrying out scaffolding work and had contracted with the second opponent (and second defendant) Australand to do so. It was also alleged that Australand contracted with Erect Safe for Erect Safe to carry out scaffolding work at the site; that both defendants were controllers of work premises and plant within the meaning of the Occupational Health And Safety Act 2000 and were designers, manufacturers and or suppliers of plant for use of work within the meaning of that Act. The force of what was alleged is slightly blunted by there not being a clear and unequivocal allegation that Erect Safe actually erected the scaffolding: but no-one can have misunderstood that that was the contention. In its defence Erect Safe did not admit that it was carrying out building and or construction work, that it was carrying out scaffolding work or that Australand had contracted with Erect Safe for Erect Safe to carry out scaffolding work, and denied the allegations…