Transfield Pty Ltd v Csidio Fallavolita

[1984] HCA 66

HIGH COURT OF AUSTRALIA

Mason, Wilson, Brennan, Deane and Dawson JJ.

TRANSFIELD PTY. LIMITED v. CSIDIO FALLAVOLITA

(1984) 154 CLR 531

25 October 1984

Statutory Duty

Statutory Duty—Breach—Building operations—Duty to provide safety measures—Supervisory and ambulatory duties of worker—Whether working at a place from which he would be likely to fall a certain distance—Construction Safety Regulations 1950 (N.S.W.), reg. 73(3).

Decisions

MASON, BRENNAN, DEANE and DAWSON JJ. This appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales arises out of an action, framed alternatively in negligence and for breach of statutory duty, commenced by the respondent for damages for injuries he sustained during the course of his employment by the appellant. The sole question before this Court, as before the Court of Appeal, is whether the appellant was in breach of reg.73(3) of the Construction Safety Regulations 1950 made under the Construction Safety Act 1912 (N.S.W.). That regulation required the appellant to

"... provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8m".

2. The respondent's injuries were sustained in March 1979 when he fell some four metres from a horizontal steel beam, known as an intermediate beam, forming part of the ground floor structure of a building under construction at the Eraring Power Station in New South Wales onto the concrete floor of a basement below. There was nothing to secure the safety of any person working on the beam. At the time of his fall the respondent was employed by the appellant as a leading hand boilermaker welder, his duties being to see that welders were kept busy and to lend them assistance as necessary, as for example by supplying electrodes and moving leads. The fall occurred as he was walking along the beam about a metre behind another welder, Boyd, who was engaged in welding operations at the time. The precise reason for the respondent's being there was not established. The serious nature of his injuries prevented him from giving evidence.

3. The primary judge (Lusher J.) entered judgment for the appellant. Following the decision of Maguire J. in Birkett v. A.F. Little Pty. Ltd. (1962) NSWR 492, at p 500, the primary judge held reg.73(3) to be inapplicable on the ground that it is limited to the situation where a workman is engaged in carrying out his duties in a particular place and has no operation in relation to ambulatory activities about a construction site. The Court of Appeal, by majority (Hutley and Glass JJ.A., Mahoney J.A. dissenting), set aside the judgment and ordered a new trial limited to damages. The majority held Birkett to be inconsistent with the decision of this Court in General Constructions Pty. Ltd. v. Peterson (1962) 108 CLR 251. The appellant's argument before this Court is that reg.73(3) can have no operation in the present case because it was not shown that at the time of his fall the respondent was "working" or alternatively "working at a place" within the meaning of the regulation.

4. The appellant's case is largely based on findings made by the primary judge who accepted evidence that the respondent had come on to the structure from the north over a safety fence and that he then walked on to the intermediate beam next to another beam at the centre column on which Boyd was working. Boyd noticed the reflection in his welding shield as the respondent passed behind him, then heard a thud and saw the respondent on the concrete floor below, unconscious. The judge accepted this evidence and then referred to the evidence of a rigger, Hourn, who said that he saw the respondent crouched over on the beam and then saw him tumbling off the beam. The primary judge accepted this evidence to the extent to which it was consistent with Boyd's evidence. Having found that the crouching and tumbling was part of the fall, his Honour continued:

"I find that the plaintiff did not speak to Boyd, or stop where Boyd was or that he did anything in relation to Boyd or his work. I find he had passed Boyd's position when he fell."

Later in his judgment his Honour said:

"There was no evidence whether any other persons or welders other than the plaintiff, Boyd and Hourn were present on the structure. The evidence does not enable me to find why he was on the intermediate beam or how he got on it or where he was going. There was no evidence of any work required or to be done on the beam or indeed as to any or what work or if any where, was then required of the plaintiff."

5. The appellant accepts that the performance of the respondent's duties as a leading hand welder would from time to time take him on to the beam from which he fell. However, the appellant submits that it cannot be inferred that at the time when he fell the appellant was engaged in the actual performance of the task which he was required to perform, though it might well be inferred that he was in the course of his employment at that time. Assuming, without deciding, that it is necessary for a plaintiff in order to bring himself within reg.73(3) to show that he was at the relevant time engaged in performing the task that he was employed to do, we consider that on the evidence the inference should be drawn that the respondent was so engaged. His duties, as Hutley J.A. pointed out in the Court of Appeal, were of a supervisory nature, involving him in moving about the structure ascertaining the progress of the work in order to assist welders as and when the need arose. The primary judge's findings do not negate the likelihood that the respondent was proceeding along the beam in order to ascertain the progress of the work being done by Boyd, a matter which he could determine at a glance, without finding it necessary to engage in conversation with Boyd. This seems to have been the basis on which the majority in the Court of Appeal proceeded. In the absence of any contrary evidence and in the absence of any contrary explanation of the respondent's presence on the beam being put to the respondent's witnesses in cross-examination, their Honours were correct in drawing the inference that at the time when the respondent fell he was engaged in performing the task that he was employed to do.

6. We turn to the question of whether, given the ambulatory nature of the activities in which he was engaged, the respondent was "working at a place" at the time of his fall. In Peterson a workman was required to work in a box frame which had been set up for the construction of a concrete wall. The court rejected an argument by the employer that reg.73(3) had no application because the term "place" was limited to a place at which an employee's safety might be protected by the provision of fencing or a similar safeguard. Dixon C.J., Taylor and Owen JJ. observed (at pp.255-256):

"Giving the words used their natural meaning, the words 'by fencing or otherwise' mean 'by fencing or by some other means' and the words 'working at a place from which he would be liable to fall' mean 'working where he is exposed to the risk of falling'."

While the application of the regulation to a workman engaged in ambulatory activities was not there in issue, in our opinion the construction of reg.73(3) enunciated in Peterson covers such a situation and Birkett must to that extent be regarded as wrongly decided. Once it is accepted that "place" is not limited by reference to a particular form of safeguard and that the regulation is concerned to prescribe protection for a workman working where he is exposed to the risk of falling, it follows that the words "working at a place" cannot be restricted to the case of a workman whose duties require him to work at a particular place but extend to any workman whose working activities place him, however fleetingly, in a position from which he would be liable to fall the prescribed distance. If compliance with reg.73(3) in such situations is impracticable the employer may in appropriate circumstances find some comfort in reg.74. No attempt has been made to invoke reg.74 in this case.

7. We would dismiss the appeal.

WILSON J. I agree with the conclusion of the other members of the Court that on the evidence the majority members of the Court of Appeal were correct in concluding that at the time when the respondent fell he was engaged in performing the task that he was employed to do. He was "working" within the meaning of that expression in sub-reg. 73(3).

2. However, I am unable to conclude that he was working "at a place" within the meaning of that expression in the subregulation. Leaving aside the question of authority, it seems to me that the ordinary meaning of the words contained in sub-reg. 73(3) requires an employer to secure the safety of a person who is working at a particular place from which he would be liable to fall a distance of more than 1.8 m. So far as material, the words of the subregulation are he (i.e. the employer) shall, subject to Regulation 74 -

"(3) provide means by fencing or otherwise for

securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m;"

Taken at their face value, these words are not apt to impose an obligation to secure the safety of an employee whose duties require him to move about the site of a building work. The respondent was a leading hand welder. His duties required him to move about the site assisting and supervising the work being performed by the welders. He is "working" as he moves from one welder to another. No doubt it would often be the case that a person engaged in such work would pass over many different places on a building site from which he would be liable to fall a distance of more than 1.8 m. In my view it is not an appropriate use of language to describe such a person as working at each of those places so as to oblige an employer to secure his safety thereat. As was observed by Mahoney J.A. in his dissenting opinion in the present case:

"Had it been intended to require that provision be made for securing against falling everyone who, in the course of his employment in the building work, might be expected to be at a relevant place, that could have been achieved by requiring that the person carrying out the building work provide for the securing of the safety of persons engaged in the building work at any place from which they would be liable to fall the relevant distance."

3. Turning to the cases, the view I take of the meaning of sub-reg. 73(3) is that expressed by Maguire J. in Birkett v. A.F. Little Pty. Ltd. (1962) NSWR 492. Speaking of the same subregulation, his Honour said, at pp 500-501:

"The regulation upon which this particular count is based seems to me to be directed at the situation where a workman is engaged in carrying out his duties, if not entirely, certainly for the most part, in a particular place, which can properly be called a working place. It has to be more or less defined before the regulation would be applicable, in my opinion. That point of view seems to be reinforced by the consideration that ... you must have a more or less defined place from which measurements could be taken before it could be ascertained whether or not the regulation was applicable to the particular situation."

This construction of the subregulation has stood without judicial criticism until the present case.

4. The majority in the Court of Appeal considered that this passage in the judgment of Maguire J. was inconsistent with the decision of this Court in General Constructions Pty. Ltd. v. Peterson (1962) 108 CLR 251 dealing with the same subregulation. With all respect, I do not think there is any inconsistency between the two cases. In Peterson, the worker was working at a particular place. He was a carpenter. At the time he fell, he was nailing wooden beadings on the flanges along the top of the metal shutters which constituted a box frame into which concrete was to be poured. He was not a peripatetic worker. At the relevant time he was engaged on a particular task at a particular location on the building site. The present issue, namely that of the peripatetic worker, was not and on the facts of the case could not have been an issue in the case. The passage from the joint judgment of Dixon C.J., Taylor and Owen JJ. upon which the Court of Appeal relied appears, from its context, to be by way of answer to a submission that the top of the box frame was not a "place" within the meaning of the subregulation because the meaning of that word was limited by the words "by fencing or otherwise". It was argued that the word "otherwise" should be read ejusdem generis with "fencing", so that the subregulation applied only to a "place" at which an employee's safety might be protected by the provision of fencing or a similar safeguard; the top of the box frame was not such a "place". Their Honours rejected the argument, saying, at pp. 255-256:

"But the suggested construction of the sub- regulation is unduly limited. Giving the words used their natural meaning, the words 'by fencing or otherwise' mean 'by fencing or by some other means' and the words 'working at a place from which he would be liable to fall' mean 'working where he is exposed to the risk of falling'. The sub-regulation was therefore capable of applying in the present case since, according to the plaintiff, he was working where he would be exposed to the risk of falling a distance of more than six feet and no protective safeguard was provided."

In my view their Honours were doing no more than elucidating the meaning of the word "place" to meet the particular argument that had been advanced in the case. I do not find the decision to be helpful in the resolution of the present problem.

5. I would allow the appeal and restore the judgment of the primary judge.

Orders

Appeal dismissed with costs.