Transtate Pty. Limited v Rauk - [2002] NSWCA 222

No judgment structure available for this case.

CITATION: TRANSTATE PTY. LIMITED v. RAUK & ANOR. [2002] NSWCA 222

FILE NUMBER(S): CA 40880/00

HEARING DATE(S): 26/02/2002

JUDGMENT DATE:
15 August 2002

PARTIES :

Transtate Pty. Limited (Appellant)
Peter Rauk (First Respondent)
Restisle Pty. Limited (Second Respondent)

JUDGMENT OF: Powell JA at 1; Santow JA at 86; Mathews AJA at 87

LOWER COURT JURISDICTION : Supreme Court - Common Law Division

LOWER COURT
FILE NUMBER(S) : CLD 21142/95/ CLD 20624/96

LOWER COURT
JUDICIAL OFFICER : O'Keefe J

COUNSEL: D.G.T. Nock SC and Ms. S.B. Piedade (Appellant)
D.F. Rofe QC and R.I. Goodridge (First Respondent)
C.R.R. Hoeben SC (Second Respondent)

SOLICITORS: Hunt & Hunt (Appellant)
Firths (First Respondent)
Hickson Wisewoulds (Second Respondent)

CATCHWORDS: MASTER AND SERVANT - Negligence - services of workman hired out by employer - Workman injured by negligence of hirer. - NEGLIGENCE - Services of workman hired out by employer - Workman injured by negligence of hirer. - D

CASES CITED:
Boral Roof Tiles Limited v. O'Brien (1994) 15 NSWCCR 1
Fairfield City Council v. Coupe [2001] NSWCA 195
Fennell v. Supervision and Engineering Services Holdings Pty. Ltd. (1988) 47 SASR 6
Garrard v. A.E. Southey & Co and Standard Telephones and Cables Ltd [1952] 2 QB 174
Hollis v. Vabu Pty. Limited [2001] HCA 44; (2000-2001) 75 ALJR 1356; 181 ALR 263
Holt v. W.H. Rhodes & Son Ld. [1949] 1 AER 478
Mersey Docks & Harbour Board v. Coggins & Griffith (Liverpool) Ld [1947] AC 1
Monarch Insurance Co Limited v. Steel Mains Pty. Ltd. [1986] VR 831
OP Industries Pty. Ltd. v. MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193
Quarman v. Burnett (1840) 6 M & W 499; 151 ER 509
Western Sydney Regional Organisation of Councils of Group Apprentices v. Statrona Pty. Ltd. Court of Appeal 29 August 1995 (unreported)

DECISION: Appeal dismissed with costs

CA 40880/00
CLD 21142/95
CLD 20624/96

POWELL JA
SANTOW JA
MATHEWS AJA
15 August 2002

TRANSTATE PTY. LIMITED v. RAUK & ANOR.

Judgment

1 POWELL JA: This is an appeal from a Judgment delivered, and orders made, by O’Keefe J on 3 November 2000 in one of two sets of proceedings which his Honour had heard together.

2 In the first of those proceedings, the First Respondent (“Mr. Rauk”) who claimed to be an employee of the Second Respondent (Restisle”) sought to recover from the Appellant (“Transtate”) damages for injuries which he had sustained when, as an employee of Restisle, he was carrying out for Transtate certain works in Transtate’s factory premises at Darcy Road, Port Kembla.

3 Notwithstanding that, in its Defence (RAB 40) and Amended Defence (Supplementary RAB 7), Transtate put in issue – by not admitting – that, at all relevant times, Mr. Rauk was employed by Restisle, that at all relevant times, Restisle was contracted by it to carry out work at its factory; and that, at the relevant time, Mr. Rauk, in the course of his employment with Restisle, was carrying out work at Transtate’s factory; Transtate then injected an air of unreality into the proceedings by raising a Cross-Claim (RAB 43) in which, in reliance upon the provisions of s.5(1) of the Law Reform (Miscellaneous Provisions) Act 1946, it sought to recover against Restisle indemnity against, or contribution toward, any damages for which it might be held liable to Mr. Rauk – the basis upon which that claim was made was that, at all material times, Mr. Rauk was an employee of Restisle and that the injury in respect of which Mr. Rauk claimed to recover damages from Transtate was one occasioned by Restisle’s breach of duty to him, that breach of duty involving (inter alia) a failure to provide a proper and safe system of work for Mr. Rauk and a failure to provide a proper and safe place of work for him.

4 Nor was this the only touch of unreality which Transtate was to introduce into the proceedings, for, both on the hearing before O’Keefe J and on the hearing of the appeal, Transtate sought to argue that it was it – Transtate rather than Restisle - which was, at all material times, to be regarded as Mr. Rauk’s employer. The reasons – which I regret to say I found rather confused and confusing – for this course being adopted, so we were informed on the hearing of the appeal (T. 1-2), were two, they being, first, that counsel who appeared for Transtate had been instructed by the solicitors for an insurer – which seems as if it must have been Transtate’s public liability insurer – “(which) was in business at one stage (which) has an exclusion clause in respect of workers, both workers at common law and workers in respect of the Workers Compensation Act”; and, second, that, “damages, if (Mr. Rauk were) a direct employee are required to be assessed under Division 3 of Part 5 of the Workers Compensation Act … the difference … is often … in cases of this size about a third so that it is of extreme importance to the defendant whether or not the company is required to pay the damages pursuant to the Workers Compensation Act or pursuant to common law and also which of his (sic) insurers, and there was a workers compensation insurer and they were notified, foots the bill”.

5 In the event, O’Keefe J held that Mr. Rauk was an employee, not of Transtate, but of Restisle; that Mr. Rauk’s injuries had been sustained as the result of Transtate’s negligence; found a verdict in favour of Mr. Rauk and, dismissed the Cross-Claim.

6 In the second set of proceedings, Restisle sought to recover from Transtate damages – per quod servitium amisit – for what was alleged to have been the loss of Mr. Rauk’s services as a consequence of the injuries which he had sustained, which injuries were alleged to have been due to the negligence of Transtate (RAB 8; RAB 80).

7 In the event, O’Keefe J held (RAB 153-156) that, in the circumstances, Restisle had failed to establish that it had sustained any damage as the result of Mr. Rauk’s injuries, found a verdict for Transtate in those proceedings and ordered Restisle to pay Transtate’s costs of them. No appeal has been brought by Restisle against the Orders made by O’Keefe J in that set of proceedings.

8 I turn, now, to record the background out of which the proceedings arose and the facts which were said to have given rise to those proceedings.

9 Transtate is said (Blue AB 83) to be a company which services the heavy steel fabrication and engineering industry, specialising in plate work. Its workshop is said to have over 8,500 square metres of undercover working area and to house some of the largest equipment for the fabrication and machining of heavy and bulky items (Blue AB 83).

10 Mr. Rauk, who is now almost 41 years of age, was born in Sheffield, England in September 1961. Together with his parents Mr. Rauk migrated to this country in 1964. At first, the family lived in Corrimal but, in 1969, the family moved from Corrimal to Warilla in the Lake Illawarra area. After attending primary school and high school at Lake Illawarra, Mr. Rauk finished his secondary schooling in 1977 having obtained the School Certificate.

11 On completing his secondary schooling, Mr. Rauk obtained an apprenticeship as a fitter/machinist with Coastal Motor & Marine at Yallah, which appears to be in the Lake Illawarra area. While serving his apprenticeship with that organisation, Mr. Rauk undertook the appropriate course of study at the Wollongong TAFE, successfully completing those studies and his apprenticeship in 1981 or 1982.

12 Having done so, Mr. Rauk then commenced employment at the Jamberoo Grass Ski Park where he remained for a period of 1 to 2 years, his duties being the upkeep of the park and maintenance.

13 When he left the Jamberoo Grass Ski Park, Mr. Rauk took a position as what appears to have been called “a chopper gun operator” working for a company at Yallah which manufactured fibreglass pools.

14 In March 1986, Mr. Rauk commenced employment with Transtate as a fitter/machinist. In that capacity, Mr. Rauk at first worked at various sites near the Port Kembla Steel works installing, maintaining and repairing machinery at those sites. However, from about 1989 onwards, so it would seem, Mr. Rauk worked mainly at Transtate’s Darcy Road premises, for the most part doing fitting and machining.

15 It seems (Black AB 19) that it was from about 1989 when Mr. Rauk, although not formally qualified as a boilermaker or welder, began to undertake some work of welding of girders which were being fabricated by Transtate to be used in the construction of what was described variously as “the North Ryde bridge” and “the Ryde Bridge”, for that purpose using a tandem sub arc welding machine or, at times, hand welding (Black AB 19).

16 Although the position is not entirely clear, it would seem that, in early 1992 – seemingly on the advice of his accountant (Black AB 17) – Mr. Rauk approached Ferruccio Bianco, a boilermaker/welder by trade, who was the Managing Director of Transtate and the Manager of its business and inquired “if (he) could become a contractor” (Black AB 10), to which inquiry Mr. Bianco seems to have given a favourable answer. Although the matter is not entirely clear, it would seem that, at that time, Mr. Bianco told Mr. Rauk what were the conditions with which he (Mr. Rauk) would be required to comply and also what was the hourly rate which Transtate was prepared to pay – that rate appears initially to have been $22.20 an hour.

17 Following that discussion, Restisle was incorporated on or about 24 February 1992, the directors and shareholders seemingly being Mr. Rauk and his wife.

18 At about this time, but after Restisle had been incorporated, Mr. Bianco gave Mr. Rauk a document on the letterhead of Transtate and signed by Mr. Bianco as manager, which document was in the following form (Blue AB 90):

“RE: CONDITIONS OF ENGAGEMENT OF COMPANIES AS SUB CONTRACTORS

Dear Sir,

The following are the standard conditions of engagement of Sub-Contractors by Transtate Pty. Ltd. and will operate as from the 1st April 1991.

1. Copies of your worker’ compensation and Public Liability policies must be submitted. The Public Liability is to be a minimum of $1,000,000 with Transtate Pty. Ltd. noted on the policy.

2. Invoices are to be submitted once a month only, with PPS Deduction forms correctly filled out. No PPS form, No payment.

No claims will be paid unless the above conditions have been fully and satisfactorily completed.

NB: The above are subject to change from time to time. Such changes will be notified to you when effective.”

19 Thereafter, Restisle obtained workers compensation insurance – policy No. WC 174161 – with GIO Workers Compensation (NSW) Limited and also a public liability insurance policy – the identity of the insurer not being disclosed by the materials which are before the Court – which policies, or evidence of them, were then provided by Mr. Rauk to Mr. Bianco.

20 The arrangements which had been made between Mr. Rauk and Mr. Bianco appear to have been put into operation from 1 March 1992, Invoices (Blue AB 92-146) thereafter being forwarded by Restisle to Transtate on a monthly basis, payments, so it would seem (Blue AB 147) being paid on the date of invoice. Between March 1992 and August 1994, the amount of each invoice represented the sum based on the hours which Mr. Rauk had worked in each month at the rate of $22.20 which had originally been agreed upon but, as from August 1994 (Blue AB 132) the hourly rate was increased to $24.00 and the amounts of each invoice thereafter calculated on that basis (Blue AB 132-146).

21 Lest there be any doubt about the matter, it should be noted that, in a letter (Blue AB 147-148) written by Mr. Bianco on the letterhead of Transtate on 18 May 1995 to Mr. Rauk’s solicitors, the following appears:

“RE: PETER RAUK

In reference to your letter dated 26 April 1995 please find listed below the details as requested by you.

1. Mr. Rauk commenced employment with Transtate Pty. Ltd., on a salary basis on 10 March 1986.

2. His employment with Transtate Pty. Ltd. was terminated on 24 February 1992.

3. Mr. Rauk’s new employer, Restisle Pty. Ltd., was contracted by Transtate Pty. Ltd. to carry out work for our company on 24 February 1992.

4. Details of payments made to Restisle Pty. Ltd. to date are as listed below:

………”

22 In the course of his evidence in chief, Mr. Rauk gave the following evidence (Black AB 12-16) as to his working conditions after 24 February 1992:

(a) his hours of work varied, the variations for the most part depending on the job that needed to be done;

(b) he regularly worked 6 days a week, and occasionally on Sundays, often working 12 hours or more on any one day;

(c) from time to time he would work through the night in order to have a job completed in time;

(d) while, for the most part, he worked in Transtate’s factory, from time to time he was required to work off site, in which case transport to and from the other sites was provided by Transtate;

(e) directions as to the work to be done from time to time were given to him by Mr. Bianco, Mr. Dellifiori, the workshop foreman or Mr. Graham, another foreman, as also were directions as to the manner in which particular work was to be done;

(f) for the most part, the work which he did was fitting and machining;

(g) although he provided his own work clothes and basic hand tools such as spanners, hammers and the like, all the materials which were needed for any particular job and any of the machinery that needed to be operated was provided by Transtate;

23 Support for Mr. Rauk’s evidence as to the general nature of the work which he did is to be found in a reference written by Mr. Bianco on Transtate letterhead and dated 9 August 1994, which reference was in the following terms (Blue AB 313):

“TO WHOM IT MAY CONCERN

Dear Sir,

This is to confirm that Mr. Peter Rauk has worked at this company since 10 March 1986 as a fitter/machinist.

Mr. Rauk is competent on lathes, horizontal bores (sic), planers, millers and radial drills. He has also a vast experience in repairing equipment, assembly and aligning motors, gear boxes etc.

Mr. Rauk has also proven to be reliable.

If you have any further queries about Mr. Rauk, please do not hesitate to contact me.”

24 Prior to October 1994, Transtate had been retained by Baulderstone Hornibrook, the head contractor to the Roads and Traffic Authority for the construction of what was then known as the Glebe Island Bridge and is now known as the Anzac Bridge, to construct girders for the bridge.

25 As will be apparent from what I have earlier written, Transtate had earlier fabricated girders – which were said by Mr. Bianco (Black AB 276) to be of a similar type to those required for the Anzac Bridge – for the Ryde Bridge, following which, so Mr. Bianco said (Black AB 276) Transtate had also fabricated girders for a number of other bridges.

26 Among the girders that Transtate was called upon to fabricate were what were described as “steel trough girders” for the Allen Street viaducts and ramps – Exhibit J (Blue AB 160) is a structural engineer’s drawing of span E13 girder which, it was agreed at trial (Black AB 68), was a girder the same as that on which Mr. Rauk was working at the time of his injury. A document entitled Technical Procedure No. 1/10094 describing the step by step method for the fabrication of those girders (Exhibit N, Blue AB 171-175) which was apparently prepared within Transtate’s organisation was obtained by Mr. Fisher, an inspector then employed by the WorkCover Authority who attended the site on the day on which Mr. Rauk sustained his injury, from Mr. Bianco’s son (Black AB 147).

27 In the course of his evidence in chief, Mr. Bianco, after referring to Exhibit N gave the following (inter alia) evidence (Black AB 277-278):

“Q. In respect to the Glebe Island girders, was there any particular problem that you had to consider in designing the method of constructing the girders? A. The welding. The welding is a very highly demand in regard of the way to do it and because that is it then refers to the real quality of the system.

Q. Was that any different to the other girders that you built? A. Within reason but they pretend a little bit more.

HIS HONOUR: They what? A. Pretend a little bit more. Practically to explain to you possibly better, I don’t know, if that if to weld in a single way which we succeed to do them, it means fully welded for the full length of the girder rather than having any stops. Very, very demanding on that part to prevent any stops in any case and avoiding the hand welding because that would create the job closest to be possible to 100 percent because the quality of materials and the combination of the two system, the welding and material itself.

Q. I’m not sure I understand that. What you are saying is that you get a standard of welding from a continuous weld that is consistent throughout the whole weld? A. Yes.

Q. Whereas if you had interruptions, including hand welding, there may be differences in the quality. Is that what you are telling me? A. Very, very much so.

Q. So that makes it desirable to have one continuous weld? A. Correct, yes.

Q. And to have that weld carried out by machine rather than by hand welding? A. Yes, yes.

Q. So you get consistency of materials, consistency of temperature, consistency of contact and hence hopefully consistency of quality of weld. Is that right? A. Yes, correct.”

28 In his Judgment (RAB 129), O’Keefe J described the girders upon which Mr. Rauk was to be required to work as follows:

“30. The girders were large and heavy. The standard girder on which the plaintiff was instructed to work consisted of a section of flat steel at the base, known as a flange. It was 12 metres long and 1900mm wide. On either side of this base flange a steel piece known as a web was placed in a vertical position. Each web was 12 metres long, one was 1225mm high, the other 1150mm high. Before being placed in the base flange, a flat piece of steel 12 metres long and 600mm wide had been permanently welded to the top of each web plate. These pieces of steel were known as the top flanges. The thickness of the metal in each of the elements referred to above was approximately 10mm and the weight of the whole assembly when completed was in the order of 14 tonnes.

31. The web plates were held in the vertical position on the base flanges by a series of tack welds on one side of the metal. These tack welds were intended to keep the web plates in the position required by the RTA specification, but being limited in extent and very limited in depth, they had little, if any, capacity to resist a turning force or moment that might be applied to the web plates.”

29 Although the position is not entirely clear, it would seem that the initial fabricating of the steel plates involved was carried out by boilermakers (Black AB 279; Blue AB 450), the process of initial assembly involving the tack welding of the webs to the bottom flange and the placing of support braces – in the shape of a K – one at each end of the girder being carried out by boilermakers and perhaps apprentices – in this case, the K bracing had been placed by Mr. Corradini, who was the leading hand boilermaker at Transtate (Blue AB 440-443). The function of the K bracing appears to have been to stabilise the girder prior to final welding and the later installation of channel bracing which was a form of cross bracing.

30 In the present case it was intended that, notwithstanding that Mr. Rauk did not have any formal welding qualifications, he should carry out the weld using a welding machine rather than that he hand weld the girder.

31 Mr. Bianco gave the following evidence in the course of his evidence in chief (Black AB 278-279):

“Q. What was (Mr. Rauk’s) trade when he first came? A. A fitter.

Q. And he worked for you for a number of years up until the accident, is that right? A. Yes.

Q. Now, did he have any welding qualifications? A. Didn’t need to.

Q. Now, in respect of this particular operation, that is, the use of a continuous welding machine, had Mr. Rauk operated the continuous welding machine prior to starting work on the Glebe Island girders? A. Yes, on various occasions not exactly, you know that was part of the system in there a little bit here, little bit there, whatever was necessary.

Q. And insofar as his qualifications as a fitter and with no welding qualifications, why was he engaged in the welding process? A. Because you don’t need a welder to operate the welding machine.

Q. And did he have any particular skills that were useful in using this machine? A. Very easy to understand different type of work of his own.

………

Q. Insofar as these girders were concerned, did you have to, prior to starting any welding procedures, do some test welding? A. Yes.

Q. And did Mr. Rauk do the test welding? A. Correct, yes.

Q. And that meant that he welded sections similar to the girder, is that right? A. Correct, yes.

Q. And then that would have to be tested by, in this case, the RTA, is that right? A. Well, either the ultrasonic people there whoever were employed by RTA or else by us.

Q. And you had to wait until you got the approval in respect of the type of welding you were going to do, is that correct? A. Yes.

Q. And then you could go ahead, is that right? A. Yes.”

32 In the course of his evidence in chief, Mr. Rauk gave the following evidence as to the trial welding (Black AB 24-26):

“Q. Had you done any work on this girder in the weeks before your accident? A. No.

Q. Any trial welding? A. Yes.

Q. What was that done on? A. On test samples.

Q. Who asked you to do that? A. Fred Bianco.

Q. What did he ask you to do? A. To prepare the welding machine for test samples.

Q. What did you have to do to prepare the welding machine for test samples? A. Basically to set up the machine to do that particular welding, maybe modify a couple of little things in order for the machine – the machine might not have been used for a while.

Q. What was the size of the sample? A. The sample was approximately 1.5 metres long, the same quality plate, the same thickness plate but only had a smaller width, maybe 300 mm by 1.5 metes long each plate.

Q. How wide – you indicated a size with your hands? A. It’s actually only the corner joint – 300 mm wide each plate by 1.5 metres long. This was done when prior to your accident? A. Maybe three weeks, four weeks prior.

Q. Did you do that on your own or did you do it with the assistance of a boilermaker? A. There was a boilermaker, yes.

Q. Who was that? A. Mick Markovic or Michael Markovic.

Q. What did he do? A. He did a sample with me.

Q. What did you do with the sample? Do you say you did it together? A. We each did a sample.

Q. Did you do two samples? A. Yes.

Q. Did you do yours in his presence? A. Yes.

Q. Did he do his in your presence? A. Yes.

Q. How long did that exercise take? A. To get it right maybe one and a half weeks.

Q. When you say ‘To get it right’, what did you do? Would you do a test run and take to someone and show it to them? A. Yes, you have to produce a quality of welding to get that, yes.

Q. What would happen in order to assess the quality? A. The welds are sent away to be tested by the RTA.”

33 Although the position is not entirely clear, statements taken by Mr. Fisher from Mr. Dellifiori (Blue AB 437-439) and Mr. Corradini (Blue AB 440-443) indicate that, several days prior to the day on which Mr. Rauk sustained his injuries, Mr. Bianco instructed Mr. Dellifiori to take the preliminary steps to fabricate and assemble the girder which was to be welded by Mr. Rauk and that he passed those instructions on to Mr. Corradini – those instructions so both Mr. Dellifiori and Mr. Corradini say, involved the fabrication only using “K bracing”. After Mr. Corradini had made the girder and put the standard “K bracing” in, so Mr. Corradini said, the girder was picked up by crane and set aside awaiting welding.

34 According to Mr. Rauk (Black AB 28-29), several days prior to the accident, he had – possibly in the company of Mr. Markovic and Mr. Graham – a conversation with Mr. Bianco in which Mr. Bianco said that he wished the joints in the girder to be welded in one sweep.

35 It would seem that, in order that the permanent welding of the web plates to the bottom flange plate of the partly fabricated girder might be carried out, it was necessary that the girder be rotated from a position where it was resting on the bottom flange plate to a position where it was resting on its side at an angle of about 14 degrees, that activity involving the use of a crane and what were described as “lifting lugs”.

36 On the morning of the day on which Mr. Rauk sustained his injuries, Mr. Graham who, in the absence that day of Mr. Dellifiori, appears to have been acting as the works foreman, having first been instructed by Mr. Bianco to have the girder welded, instructed Mr. Rauk to fit the lifting lugs to the web on each side of the girder, with which instruction Mr. Rauk complied and then fitted two bracings to connect the lugs from one web to the lugs on the other web, the function of each set of bracings being to prevent each pair of lugs from moving independently of the other.

37 It seems to have been at about this time when, so Mr. Rauk said (Black AB 29), he spoke to Mr. Bianco and said “I don’t think that the bracing or the tack welding will stop the web plates from distorting from the weld”, Mr. Bianco’s response being merely to wave Mr. Rauk off, to turn his back and to walk away, a response which Mr. Rauk took to indicate that his (Mr. Rauk’s) concern was without foundation and not a matter about which he should bother himself. Although Mr. Bianco denied having had any discussion with Mr. Rauk on the morning of the day on which Mr. Rauk sustained his injuries, O’Keefe J, who regarded Mr. Bianco as an unsatisfactory witness, rejected that denial (RAB 131).

38 In the early afternoon, after the partly fabricated girder had been rotated, Mr. Rauk, so he said (Black AB 28), asked Mr. Graham “What about the brace in the corner of the girder? How will the welding machine pass through the girder?” to which Mr. Graham replied “Remove the brace from the horizontal/diagonal and place vertical.”

39 The explanation for Mr. Rauk having asked that question of Mr. Graham is to be found in the following evidence which he gave in chief (Black AB 33):

“JOSEPH: Q. In order to weld this joint in one sweep … A. Yes.

Q. … Where was it positioned at the start of the weld if it was to weld in one sweep? A. The welder would have been positioned on a platform outside of the girder.

Q. Would the welder move as the weld was continuously done in one sweep? Would it move inside the girder? A. Yes.

Q. What were the dimensions of the welder machine? A. The welder would have been approximately seven, 800 millimetres long by 400 millimetres deep by maybe 700,800 millimetres high.

Q. Would the K bracing in any way interfere with the capacity of the welder machine to move inside the girder to do the welding in one sweep? A. Yes, it would.

Q. In what way? A. It would not allow it to pass even inside the girder.”

40 What followed Mr. Rauk’s conversation with Mr. Graham is best reflected in the following evidence which Mr. Rauk gave in chief (Black AB 33-34):

“Q. So after the conversation you had with Mr. Graham which you have told us of … . A. Yes.

Q. … did you then do something? A. Yes.

Q. In respect of the girder or the K bracing? A. Yes.

………

Q. What did you have with you when you commenced to work on the girder? Did you have any tools with you? A. Yes.

Q. Where did you get these tools from? A. It was my shifting spanner.

Q. Did you have it with you when you spoke to Mr. Graham or near you or what? A. Yes, I had tools nearby.

Q. So did you have to go to the toolbox and get some tools? A. Yes.

Q. What did you do? A. I got a 15 inch shifter.

Q. Then did you go inside near the girder? A. Yes.

Q. What did you do? A. I started to loosen the bolt on the K brace.

Q. Can you tell us the size of his (sic) bolt? A. The bolt was either 16 millimetres or 20 but I seem to recall about 16.

Q. Can you just by reference to Ex B point to the side at which the bolt was (shown Ex B)? A. It would have been up in the top corner here that held this piece down in the corner (indicated).

JOSEPH: The witness is indicating the intersection of the K.

Q. Can you remember to what extent you loosened this bolt? A. I only just loosed, cracked the bolt, loosened the tension.

Q. What then happened? A. The whole girder collapsed after that hitting me in the face and pushing me to the ground.

Q. Did you have any forewarning this was going to happen? A. No.

Q. Did you start running at some point? A. As soon as the girder just let go I instinctively tried to dive from the end.

Q. Did you dive? A. I did manage to get out.

Q. Did anything fall on you? A. I believe while I was in the process of diving from the end the plates collapsed on my legs.

HIS HONOUR: Q. When you say ‘the girder just let go’, what did you mean by that? A. As soon as I loosened that bolt this whole web plate just folded in down that way (indicated on Ex B) and this one folded down on top like a pack of cards. I just dived from the end. The top web plate folded downwards (demonstrated).

HIS HONOUR: Indicating a gate like movement.

WITNESS: Bottom plate just folded while collapsed on top of that plate (demonstrated).

JOSEPH: In the same direction.”

41 The references in this part of the transcript, and Grounds 3 and 4 in the Amended Notice of Appeal filed on behalf of Transtate, make it desirable to pause, here, for the purpose of providing some explanation of Exhibit B and what it depicted.

42 Exhibit B was a model – which cannot now be located – of the partly fabricated girder which had been prepared by Mr. Rauk for the purpose of the hearing and, so it seems, for the purpose of illustrating the bracing at each end of the girder. Figure 1 which O’Keefe J included in his Judgment (RAB 134) indicates that the model depicted – but, seemingly, not completely accurately, a brace taking the form of a length of angle iron between the two web plates, parallel to the base flange, at right angles to the web plates and with each end of the angle iron beneath the inside overhang of the upper flanges. That figure also depicted a strut at an angle from a point about half way along the underside of that horizontal brace to a point at about half way down the side of one of the web plates. From a point about half way along such strut was another strut leading to a point where the web on the other side joined the base flange.

43 Neither Mr. Bianco nor Mr. Graham accepted that the bracing was as depicted in the model which had been prepared; nor did Mr. Fisher, when he attended Transtate’s premises later on the day when Mr. Rauk’s sustained his injury, find any evidence of the existence of any such horizontal strut as had been depicted in the model.

44 In his Judgment (RAB 135) O’Keefe J wrote:

“43. I found the plaintiff to be an open, frank and honest witness. I am satisfied that he genuinely tried to tell the truth, but I think that he was mistaken in relation to the configuration of the bracing in place immediately prior to the collapse of the girder on which he was working. In my opinion it is more probable that the form of the bracing in place at the relevant time was along the general lines of Figure 2 above. Importantly, I am satisfied that there was no end horizontal strut in the bracing that was in place on the girder prior to its collapse.”

45 Figure 2 (RAB 134) which O’Keefe J said accorded with the observations after the accident by Mr. Graham, Mr. Bianco and Mr. Fisher, and which was more consistent with the photographs taken after the accident and with the engineering evidence than was Mr. Rauk’s recollection, depicted a diagonal strut from a point at or near the join between the base flange and one of the webs to a point underneath the upper flange on the opposite web at a point near the join between that flange and that web plate, there being another strut leading from a point about half way along the length of the first strut diagonally to a point underneath the upper flange on the opposite web but near the join between that upper flange and that web plate.

46 In a document headed “Factual Inspection” prepared by Mr. Fisher following his attendance at Transtate’s factory on the day on which Mr. Rauk sustained his injury, the following appears (Blue AB 169-170):

“At a location east of a central glassed enclosed Foreman’s office I observed the following:

1. Three sections of steel plate, which all measured approximately 12 metres in length. These sections were laying on top of each other. (See photograph 1.)

………

4. A 75mm x 75mm x 2120mm long angle was attached between the flange of the lowest flange plate and the western corner of the unflanged plate with screw bolt plate clamps. (See photograph 3.)

………

5. There was another section of 75mm x 75mm angle x 1110mm long with a hole approximately 16mm diameter near one end and a screw bolt clamp welded to the other and lying on the ground about 1 metre from the northern end of the collapsed lower flanged plate. A loose 16mm diameter x 80mm bolt was on the ground and matching nut located nearby. (See photographs 4 and 4A.)

………

8. At a location 3.4 metres from the northern end of the two upper plate sections, two fitting brackets, one on each of the welded flanges were positioned with a 75mm x 75mm angle brace bolted between the end of each bracket and it would appear that the 75mm x 75mm was originally tightened in a horizontal position between the brackets to maintain a constant width of 1800mm between the two upper steel plate sections. (See photograph 6.)

A similar support to this was located 2.88 metres away and had folded down in a similar manner to the former while both brackets were fitted with shackles for lifting with overhead traveller crane. (See photograph 6.)

9. At the southern end of the girder fabrication a 75mm x 75mm brace with a screw bolt plate clamp welded on each end was attached between the upper flange and a location 450mm in from the end of the edge of the lowest plate which was lying on the ground at this time. The brace which had a bolt hole cut through one side had bent and severed at this point and the other brace located on the ground with a screw bolt clamp on one end and bolt on the other showed evidence of distortion from displacement from its position when bolted centrally to the other brace. (See photograph 6A.)”

47 It is also convenient to record, here, some additional aspects of the evidence which was tendered at trial.

48 In a document entitled “Breach Interview” Mr. Fisher recorded the following (inter alia) part of a conversation which he had with Mr. Bianco (Blue AB 432-433):

“I said: ‘Did you give any instructions to Bruce Graham Acting Foreman at the time on the system of work which applied on fabricating the bridge beam or girder?’

He said: ‘I instructed Bruce to get the channels and bolt them onto the girder so that it would be safe to rotate it around.’

I said: ‘Was Peter also told of the system?’

He said: ‘Bruce was instructed to use the channels and this was done.’

I said: ‘In the absence of Alf, the other foreman, was Bruce in charge?’

He said: ‘Yes, he was in charge.’

I said: ‘It appears that the instructions to bolt the channels in position before rotating the girder were not carried out fully although the channels were brought into the workshop for use?’

He said: ‘They were not used at all.’

I said: ‘There appears to be a breach of Section 16(1) of the Occupational Health and Safety Act in that an employer (Transtate Pty. Ltd.) failed to ensure that a person not in their employment (Rauk) was exposed to a risk to his health and safety arising from the conduct of their undertaking while that person was at the premises of Transtate Pty. Ltd. do you have any comment?’

He said: ‘Peter Rauk if he failed to use those channels on the girder it was by his choice and not obeying the orders.’”

49 In the course of his evidence in chief Mr. Bianco gave the following (inter alia) evidence (Black AB 282-283):

“Q. We have finished the assembly. Before you move it, you would then put cross-bracing? A. No, no, we would pick them up by special lifting things there.

Q. Scissor lift? A. Scissor lifts, yes and take them to the welding bench.

Q. Then what would you do? A. On the welding bench we put on the cross braces and bolt them onto the girder. And after that …

HIS HONOUR: Q. When you say ‘bolt them on’ you had to drill the girder for that purpose? A. No.

Q. How did you bolt them? A. Bolt them by clamping them.

Q. You clamped them, rather than bolting them? A. We were using four bolts either side.”

“Q. When they were placed on the girder, what happened next? A. The next move, removed the end bracing to clear it, then pick it up and tilt it to seventy-five degrees. The bottom flange had to be roughly seventy-five degrees.

………”

50 To that evidence might be added the following during the course of Mr. Bianco’s cross-examination (Black AB 292):

“Q. You told Mr. Rauk that you wanted the welding to be done in one sweep, didn’t you? A. Definitely.

Q. And you knew that, in order the welding to be done in one sweep, the K bracing at the end had to be removed from the corner to allow the welder to go in? A. Correct.”

51 In the course of his cross-examination, Mr. Graham gave the following (inter alia) evidence (Black AB 253-254):

“JOSEPH: Q. You mentioned a conversation with Mr. Bianco a few days before the accident? A. That’s right.

Q. When you had a discussion concerning the bracing and the struts on the girders? A. That’s right.

………

Q. Can you tell us the discussion that took place a few days earlier before the accident between you and Mr. Bianco? A. He wanted the girder welded without the bracing on the end so that they would fully weld from one end right through to the other end.

HIS HONOUR: Q. That’s a continuous weld, non stop? A. That’s right.

JOSEPH: Q. And was Mr. Rauk there on that occasion when you had this discussion with Mr. Bianco, or can’t you recall? A. No, the only other person that was in the office at the time was Alf Delaffore (sic), the fabrication foreman.

HIS HONOUR: Q. The chap that wasn’t there on the day of the accident? A. Yes.

JOSEPH: Q. Did you tell Mr. Bianco as to what you thought of that suggestion? A. Yes, I told Mr. Bianco that I thought it would be quite unsafe to remove the braces, that the girder could possibly collapse without the end braces.”

52 In the course of his re-examination Mr. Graham gave the following evidence (Black AB 274-275):

“NOCK: Q. Mr. Joseph asked you a lot of questions about the K braces that Fred had wanted removed. Now, looking at Exhibit B, can you see there the various bracings that have been identified by the plaintiff. Are you able to say which of the braces Fred directed you should be removed.

………

Q. ‘Fred and I had a discussion a few days before. Fred had wanted to remove the cross strap so the welds would be welded, carried out in one operation.’ The word “cross strap’? A. K brace on the end there.

Q. Do you mean this? A. These pieces here.

Q. The witnesses (sic) is pointing to the end with the green sticker on it pointing to the diagonal? A. Yes.

Q. Did he refer at all to the point? A. This point, it never existed to my knowledge.

HIS HONOUR: Q. Did he refer to the top piece and what is your answer to that? A. No.”

53 This evidence is to be contrasted with Transtate’s Technical Procedure, to which I have earlier (para. 26 (above)) referred, which document was prepared either by Mr. Bianco’s son, who is a qualified engineer, or by another qualified engineer employed by Transtate (see Black AB 288) and which document contained the following (inter alia) (Blue AB 172):

“The bottom flange shall be supported to the correct camber and slope using adequate supports that are spaced no more than 3.0m apart and each web is to be assembled and tacked onto the bottom flange. The permanent diagonal bracing can now be installed and fully welded in accordance with the relevant welding procedure to lock the webs in position.

The assembled girder is to be tilted over each way approximately 10o to weld the inside of the web-to-bottom flange joints.

The girder is then to be laid on each side, adequately supported, to weld the outside web-to-bottom flange joints.”

54 This material invites the following comments:

(a) if the assembly procedure set out in Transtate’s Technical Procedure document had been followed, it would not have been possible for the inside of the web-to-bottom flange joints to have been welded in a single or continuous sweep;

(b) if, instead of the assembly procedure set out in Transtate’s Technical Procedure document, Mr. Rauk had followed the instructions as to the bolting of the channel cross-braces before the partly fabricated girder was turned which Mr. Bianco claims to have given, then, notwithstanding the removal from each end of the K braces, it would still not have been possible for the inside web-to-bottom flange joints to be welded in a single or continuous sweep;

(c) while, if there had been permanent bracing in the girder, or even channel cross-bracing such as Mr. Bianco would have it ought to have been bolted to the partly fabricated girder, it is probable that, the removal of the K bracing from each end would not have led the girder to collapse when it was rotated, Mr. Graham’s evidence as to the conversation which he said he had had with Mr. Bianco a few days prior to the day on which Mr. Rauk sustained his injuries, would indicate that it was unsafe to attempt to weld the web-to-bottom joint flanges after the girder had been rotated and the K bracing removed;

“66. (Each of the engineer called for Mr. Rauk and the engineer called for Transtate was) of the view that the situation into which the plaintiff had to go in the course of performing his work, fulfilling the instructions given to him by Mr. Bianco to complete the permanent weld on the inside of the girder in one sweep using the welding machine and that given by Mr. Graham to remove the portion of the K bracing that would obstruct the entry of the welding machine into the girder, was unsafe. This was because the girder was close to collapse due to inadequate bracing and any work done on the girder or on the bracing was likely to cause the girder to collapse.”

55 However, to return to the narrative.

56 Noise caused by the collapse of the girder caused Mr. Bianco to rush out of his office to the scene of the collapse and also brought Mr. Graham, who had moved away rushing back to the scene of the accident. According to Mr. Rauk (Black AB 35) Mr. Bianco, having seen what had happened and having seen Mr. Graham, yelled at Mr. Graham “You killed him, you bloody murderer”.

57 Although Mr. Bianco would not admit that he had called Mr. Graham a “murderer” (Black AB 228), two things are clear, as the evidence to which I will shortly refer will demonstrate, they being, first, that there was a heated argument between Mr. Bianco and Mr. Graham and, second, that Mr. Bianco blamed Mr. Graham for the accident which had occurred.

58 In the course of his evidence in chief (Black AB 251-252) Mr. Graham gave the following evidence:

“Q. After the accident happened you came back to the area of the accident, is that right? A. Yes.

Q. And what did you do then? A. The next thing I recall after that was having an argument with Mr. Bianco.

………

HIS HONOUR: Q. What was said? A. I can’t recall what words he used. He was pretty excited and it was probably half Italian and I’m not too sure and I was screaming back at him and I don’t even know what I said to him.

NOCK: Q. Do you recall what, if anything, about the discussion with Mr. Bianco, apart from that? A. He was blaming me for the accident.

Q. Did he tell you why he was blaming you? A. No, not that I could understand.”

“Q. He called you a murder (sic) on the day of the accident? A. Yes, I think that is probably, recalls the memory of what he said, yes.”

59 The transcript record of Mr. Bianco’s evidence contains the following (Black AB 287-288):

“Q. Did you have an argument with Mr. Graham at the time? A. Definitely, yes.

CROSS-EXAMINATION

JOSEPH: Q. The argument that you had with Mr. Graham was that you believed it was his fault that the accident had happened? A. No.

Q. Pardon? A. No.

Q. You called him a murderer? A. Well, I didn’t call him anything in the sense of …

………

JOSEPH: Q. You called Mr. Graham a murderer, did you not? A. I do not remember that.

HIS HONOUR: Q. Do you deny it? A. I cannot say yes or else.

JOSEPH: Q. You can considered the accident was caused by Mr. Graham failing to carry out your instructions? A. Definitely, yes.

Q. And those are instructions you gave Mr. Graham on the morning of the accident or a few days before? A. The morning.”

“HIS HONOUR: Q. Mr. Bianco, you gave evidence that on the day of the accident, following the collapse of the girder, you attended at the site and looked at the girder within about half a minute of the collapse? A. Sure.

Q. Where were you at the time of the collapse? A. In the office.

………

Q. When you went out, where was Mr. Graham? A. When I went?

Q. Went out of the office to the place where the girder had collapsed, where was Mr. Graham? A. When I went?

Q. When you went to the girder from the office? A. Sure.

Q. After the collapse, where was Mr. Graham? A. Just next to the girder, coming from the far end of the workshop.

Q. So he was approaching the girder from the far end of the workshop? A. Correct, yes.

Q. And was by that time reasonably close to the girder? A. Yes.

Q. What did he then do? A. I got him very quick because I ask him the questions ‘Why you’ …

Q. I am asking you what he then did, not what was said yet? A. I got him and I asked him the questions, why the girder had not the braces on first, that is all.

Q. And did you have an argument with him? A. The argument was only on the point.

Q. And you were, do I understand your answer to mean that you were remonstrating with him, that is, you were pointing out to him that the girder was not in the condition that it should have been lying on its side in that way? A. Correct.

Q. Why was that, that you did that? A. Because the girder collapsed and nearly killed Peter.”

60 As the result of the collapse of the girder, Mr. Rauk sustained significant multiple injuries. Since there is no dispute as to the nature and extent of those injuries or any ground of appeal directed toward the quantum of damages which was awarded by O’Keefe J, it is sufficient to record that those injuries were:

(a) closed head injury with facial injuries;

(b) spinal fractures;

(c) rib fractures on the right;

(d) displaced subcapital fracture of the neck of the left femur;

(e) comminuted bicondylar fracture of the right tibia and fibula;

61 After the collapse of the girder an ambulance was summoned and Mr. Rauk was conveyed to Wollongong Hospital where surgery for the orthopaedic injuries was performed. About a week later, Mr. Rauk was transferred to the Port Kembla District Hospital where surgery to rectify his facial injuries was carried out.

62 These proceedings were commenced on 8 November 1995 when there was filed the Statement of Claim to which I have earlier referred. No Statement of Defence appears to have been filed on behalf of Transtate until 21 April 1997, on which day there was also filed the Cross-Claim to which I have earlier referred and also a Statement of Defence in the second of the proceedings to which I have earlier referred, which proceedings had been commenced on 18 June 1996.

63 Both sets of proceedings were listed for hearing before O’Keefe J on 28 August 2000. Despite the time which had passed, no report by a consulting engineer appears to have been commissioned on behalf of either Mr. Rauk or Transtate prior to that time, a fact which led to a later contested application on behalf of Mr. Rauk to tender a report by a Mr. Harrison which had just been commissioned and the granting of an adjournment of the hearing for a time to enable an engineer to be commissioned on behalf of Transtate both to comment on the report made by Mr. Harrison and to provide his own views on the cause of the accident – the engineer so commissioned on behalf of Transtate was Mr. McNamara.

64 As O’Keefe J was to record in his Judgment, the views of Mr. Harrison and of Mr. McNamara did not differ greatly. Those views were summarised by his Honour as follows (RAB 139-140):

“55. Mr. Harrison, the engineer qualified on behalf of the plaintiff, expressed the opinion that the collapse of the girder was caused by one or more of six factors, namely:

1. failing to install permanent bracing as specified before rotating the girder;

2. excessive rotation of the girder;

3. tack welding on only one side of the web plates;

4. using undersized bracing;

5. inadequacy of the bracing design, including member sizes and configuration;

6. the failure of the angle iron as part of the K bracing caused in part of the weakening of that member by drilling a hole through it in order to bolt the other member of the K bracing to it.

All of these matters were within the ambit of the responsibility of the defendant.

56. In his opinion the process of loosening the nut caused the precise timing of the collapse. The task which the plaintiff was directed to undertake by Mr. Graham was, according to Mr. Harrison, ‘inherently dangerous’. Conformity to the RTA’s and the defendant’s own technical procedures would, in Mr. Harrison’s opinion, have avoided the collapse. I am satisfied that this is correct.

57. Mr. McNamara the engineer qualified on behalf of the defendant, expressed the opinion that the stability of the partially completed girder in its rotated position was dependent on the structural adequacy of the end frame (the K brace) including its proper fixing to the girder. He thought that the collapse mechanism indicated that the K brace clamps had slipped, but whether this was the cause of the collapse or had occurred as a result of the transfer of loads during the collapse was unclear.

58. In a supplementary report prepared by him in which he corrected some erroneous assumptions included in his primary report, he expressed the view that in the presence of an end horizontal strut as part of the K bracing it would have been unlikely that the collapse would have occurred. However, in the absence of the end horizontal strut and with the girder in a rotated position (as was the case) there would have been an overloading of the remaining K brace members, which would probably have given rise to a collapse.”

65 Although other issues were the subject of submissions to O’Keefe J, in the event it is necessary to record only those parts of his Honour’s Judgment which dealt with questions:

(a) whether Mr. Rauk’s position was that of an employee of or in the nature of a sub-contractor to Transtate;

(b) whether Transtate owed any, and, if so, what, duty of care to Mr. Rauk;

66 Under a heading “Employee or Sub-contractor” O’Keefe J, after setting out what he considered to be the relevant facts, continued (RAB 122-127):

“14. Senior counsel for the defendant submitted that notwithstanding the changed arrangements between the plaintiff and the defendant that were effected in 1992 the plaintiff still remained an employee, a ‘direct employee’, of the defendant. If that were the correct situation it would have consequences in relation to the nature of the duty and standard of care owed by the defendant to the plaintiff, the quantum of damages to which the plaintiff may be entitled, the action per quod servitum (sic) amisit instituted by Restisle against the defendant the cross-action by the defendant against Restisle.

15. The argument on behalf of the defendant stressed the extent of control that was de facto exercised by the senior staff of the defendant in respect of the work to be and actually carried out by the plaintiff. Although it was conceded that the question of control was not the sole or necessarily determining factor, it was argued that extent of control combined with supervision, hours of work, provision of a place of work, provision of transportation and provision of equipment, including safety equipment, meant that the correct analysis of the relationship between the plaintiff and the defendant was that of employer and employee.”

Stevens v. Brodribb Sawmilling Co. Pty. Limited

Vabu Pty. Limited v. Commissioner of Taxation

“19. In the present case the extent of control exercised de facto by the defendant combined with supervision and devising the system of work is not inconsistent with the plaintiff being the employee of Restisle. The arrangement which was made between Restisle and the defendant in 1992 was considered and deliberate. It was entered into with the intention of terminating the relationship of employer and employee between the defendant and the plaintiff.

………

21. Where two parties have solemnly and formally terminated the relationship of employer and employee and have genuinely sought to substitute a contractual relationship, as in the present case, it would need very unusual circumstances to infer, contrary to the intention and actions of the parties, that the relationship of employer and employee nevertheless had nonetheless continued. In the present case I do not think that it did. In 1992 there was a formal termination of the employment of the plaintiff by the defendant. Thereafter his services in the form of labour were provided to the defendant by Restisle, which was paid by the defendant for those services in accordance with the contract which had been entered into between Restisle and the defendant. There were mutual benefits arising out of such situation. Some of the benefits for the defendant have already been adverted to. Benefits to the plaintiff included that the company which he controlled received for distribution in accordance with his choice a greater amount than he personally would have received had he remained an employee. The fact that the defendant ceased to be liable to him for wages, for insurance, award compliance and taxation, including payroll tax purposes confirms the maintenance of the intention of the defendant manifest by the changed arrangements entered into in 1992. Like inferences can and should be drawn in respect of the intention of both Restisle and the plaintiff.

22. In the circumstances of the instant case I am satisfied that at times material to the liability of the defendant, the plaintiff was an employee of Restisle, that Restisle contracted his services to the defendant at an agreed rate, but that the defendant retained the functions of determining, implementing and carrying out the system of work in its yard and workshop, the work on which the plaintiff was to be engaged as well as its supervision. It also retained control of and remained responsible for the place in which his work was to be performed. There is nothing unusual about that in the industrial climate prevailing in this State.

23. I am satisfied that at the time of his injury, the plaintiff was not an employee of the defendant. He was an employee of Restisle which subcontracted his services to the defendant.”

67 Under a heading “Duty of Care” O’Keefe J then continued (RAB 127-128):

Stevens v. Brodribb Sawmilling Co.

‘Although the obligation to provide a safe system of work has been regarded as one attaching to an employer there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work.’ (supra at 31 per Mason J)

25. The judgment of Brennan J is to a like effect:

‘’An entrepreneur who organises an activity involving risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk and his duty is more limited ‘than the duty’ owed by an employer to an employee’. (supra at 47)

26. The joint judgment of Wilson and Dawson JJ (at 45) approaches the situation of a sub-contractor in a similar manner, emphasising however, that the duty owed to a contractor or sub-contractor is not coextensive with that owed to an employee.

27. Although the duty of care owed to the plaintiff was not the same as would have been owed to him had he been an employee, in the circumstances of the present case relevantly it was not very different.

28. There was in the circumstances of the present case a duty of care owed by the defendant to the plaintiff to have in place and maintain a safe system of work and supervision and so to organise its activities as to avoid or minimise risk of injury to the plaintiff.”

68 Under a heading “Breach of Duty of Care” O’Keefe J, after recounting the evidence and after having referred to those parts of the reports of Mr. Harrison and Mr. McNamara to which I have earlier (para. 64 (above)) referred, continued (RAB 140-145):

“59. It was suggested in argument by senior counsel for the defendant that the plaintiff had of his own motion removed the end horizontal strut. However, there is no evidence that this occurred. Furthermore, the plaintiff said he did only what Mr. Graham instructed him to do and I accept his evidence in this regard. As I have already indicated, I do not think that such horizontal strut was there at the material time. If it had been in place the collapse would not have occurred. Yet the collapse did occur and occurred within a matter of seconds of the plaintiff commencing to implement the instruction to change the K bracing which I find as a fact that Mr. Graham gave him. If the horizontal member were not in position at the that time, inspection by Mr. Graham would have revealed the situation. Absent such a strut and given adequate inspection, Mr. Graham should and would have known that the bracing provided would be inadequate to sustain the load imposed upon it when the girder was rotated and that interference in any way with the bracing that was in position would be likely to weaken it still further.

60. Thus, even if the case sought to be made by the defendant were to have evidence to support it (which it does not), the defendant would then have to face the difficulty of inadequacy of inspection by Mr. Graham.

61. The plain fact is that the girder collapsed. It did so immediately upon the plaintiff commencing to implement the undoing of the bolt that connected the long and short diagonals of the K bracing, as he was instructed to do by Mr. Graham. That was the trigger for the collapse and there is ample evidence to support the causal connection between the action of loosening the bolt and the collapse. On this basis the instruction given by Mr. Graham, if implemented, was, in the circumstances, such as to be likely to give rise to injury to the plaintiff.

62. Mr. Graham claims that Mr. Bianco had worked out some kind of alternative method of support, ‘using channel or something’, but Mr. Graham informed Mr. Bianco some short time before that ‘it would not work’. Mr. Bianco nonetheless insisted that it would. Mr. Graham claims:

‘I did not have anything to do with it after that. Fred spoke directly with Peter about what he wanted to do.’

63. By his own admission Mr. Graham was vague in his recollection of events. Whether this was due to the passage of time, his state of health, a desire to shift blame or a combination of these factors is difficult to determine. However, what is clear is that Mr. Graham’s recollection of events is quite unfavourable in relation to the adequacy of the system of work. So too is the evidence of Mr. Bianco. Each seeks to blame the other for the deficiencies in the system of work, including the giving of adequate instructions, the carrying out of proper inspections and ensuring the safety and stability of the girder on which the plaintiff was required to work. Whoever of them was to blame, the fact remains that the system of work was deficient and such as reasonably foreseeably to give rise to the injury to the plaintiff.

64. The engineers called in the case were ad idem that the nature and extent of the bracing provided by the tack welded web plates and superimposed top flanges was inadequate to ensure the lateral stability of those members. Both accepted that the bracing for the girder immediately prior to the plaintiff entering into the interior of the girder in order to remove the bolt from the K bracing was close to failure. The engineer qualified by the defendant calculated that the K bracing ‘was over stressed and should fail’ indeed the over stressing of the long diagonal was beyond its yield point by a factor of two. His theory as to the timing of the collapse was that the physical exertion involved in cracking the nut, which would involve additional force being applied to or pressure being exerted on the overstressed member, was in metaphorical terms ‘the straw to break the camel’s back’.

65. The engineer qualified by the plaintiff was of opinion that the slight movement of the two diagonal braces which was likely to have occurred as a consequence of loosening the bolt and hence reducing friction, may have been ‘sufficient to tilt the balance’. The way in which he looked at the matter was that the cracking of the nut by the plaintiff suggested

‘the analogy of the straw that broke the camel’s back’

66. Thus both engineers were of the view that the situation into which the plaintiff had to go in the course of performing his work, fulfilling the instructions given to him by Mr. Bianco to complete the permanent weld on the inside of the girder in one sweep using the welding machine and that given by Mr. Graham to remove the portion of the K bracing that would obstruct the entry of the welding machine into the girder, was unsafe. This was because the girder was close to collapse due to inadequate bracing and any work done on the girder or on the bracing was likely to cause the girder to collapse.

67. Mr. Bianco and Mr. Graham, who by qualification and experience and by position in the defendant should have been in a position to judge the adequacy of the bracing, both thought that the situation was dangerous. As I have said, each sought to blame the other for that. It matters not which of them was to blame. What matters is that the system of work created by the defendant was unsafe and led to the plaintiff sustaining severe injury.

68. I am satisfied that the defendant breached its duty of care to the plaintiff in the following ways:

1. It failed to institute and maintain a safe system of work. The system provided was seriously flawed.

2. It failed to comply with its own technical procedures in relevant respects.

3. It failed to install, or ensure that there was installed, bracing that was of adequate strength to hold the members of the girder in position when the girder was rotated and worked upon.

4. In instructing the plaintiff to weld, inter alia, the inner welds at the junction of the base flange and web plates in one sweep using an electric welder, without providing beforehand for a means of ensuring that this could be done without compromising the integrity and adequacy of the bracing.

5. It failed, through Mr. Graham, adequately to inspect the girder in its rotated position before instructing the plaintiff to enter the girder.

6. In instructing the plaintiff to remove the bolt connecting two of the elements of the K bracing in circumstances in which this would be likely to and did trigger a collapse of the girder.

7. Requiring the plaintiff to work in a place which was unsafe.

69. The breach by the defendant of the duty of care which it owed to the plaintiff led to his injury. That should have been foreseeable by the defendant and indeed both Mr. Graham and Mr. Bianco believed the situation to be dangerous.

70. I find that the defendant was negligent.”

69 The formal Orders made by O’Keefe J in the first of the proceedings were as follows (RAB 195):

“1. There will be a verdict for the plaintiff, Peter Rauk, against the defendant, Transtate Pty. Ltd, for $1,963,933.00 and judgment accordingly.

2. The defendant is to pay the plaintiff’s costs on a party and party basis up to 26 July 2000 and thereafter on an indemnity basis subject to the plaintiff paying on a party and party basis the costs of the defendant and cross-defendant thrown away in consequence of the adjournments on 1 and 4 September, 2000.

3. There will be a verdict for the cross-defendant, Restisle Pty. Limited on the cross-claim by the defendant, Transtate Pty. Ltd, and judgment accordingly.

4. The defendant is to pay the costs of the cross-defendant incurred after 5 February 1998 on an indemnity basis and costs prior to that date on a party and party basis.”

70 Although the grounds of appeal taken in the Amended Notice of Appeal (Supplementary RAB 1) were more extensive, those which on the hearing of the appeal were said to be relied upon were as follows:

“1. His Honour erred in law in finding that the Respondent (sic) was an employee of Restisle Pty. Limited.

2. His Honour erred in law in finding the extent of control exercised by the Appellant was not inconsistent with the Respondent (sic) being an employee of Restisle Pty. Limited.

3. Having accepted that the Respondent (sic) presented as an honest and forthright witness and told the truth his Honour erred in law in finding that the Respondent (sic) was mistaken in relation to the configuration of the bracing immediately before the collapse.

4. That having found that the Respondent (sic) was mistaken as to the circumstances of the accident, his Honour erred in law in failing to consider all of the evidence available in particular:

(a) evidence that part of the bracing had been removed before the collapse;

(b) that the fabrication would have collapsed when it was placed in the final position by the crane;

(c) the evidence of Mr. Graham as to the use of horizontal bracing;

(d) the fact that the bracing on the other or northern end of the beam had not been subjected to any disfigurement by force.

………

6. His Honour erred in law in finding that there was evidence which would support:

(a) the permanent diagonal bracing should have been in position at the time of the accident;

(b) that there was excessive rotation of the girder.

7. That his Honour erred in law that the excessive rotation of the girder and the failure of the angle iron right at the K bracing were within the ambit responsibilities of the defendant.

8. His Honour having found the Respondent (sic) to be a sub-contractor, failed to consider the duties of the Respondent (sic) under the terms of the contract, in particular he failed to consider the duty of the Respondent (sic) to supervise the position of the girder prior to the commencement of the welding operation.

9. His Honour erred in law in finding that the Respondent (sic) had discharged the onus of proof to establish the cause of the collapse of the beam.”

71 The orders which were sought by Transtate in its Amended Notice of Appeal were as follows (Supplementary AB 2-3):

“1. That Orders 1, 2, 3 and 4 made by O’Keefe J on 3 November 2000 be set aside.

2. That there be verdict and judgment for the Appellant against the First Respondent.

3. That the First Respondent pay the Appellant’s costs of the appeal and of the Second Respondent (the Cross Defendant in the Court below).

4. Such other orders as this Honourable Court may deem appropriate.”

72 If I may say so, the grounds of appeal relied upon, and the submissions advanced in support of them, together with the orders sought by Transtate provide yet further examples of the unreality, to which I have earlier referred, which Transtate has injected into this whole matter. Thus:

(a) while seeking to have the verdict in favour of Mr. Rauk set aside, Transtate, on the hearing of the appeal continued to maintain that Mr. Rauk was a “direct employee” of Transtate and appeared (T. 12) to concede, first, that it had failed to supervise Mr. Rauk in the performance of his work and, second, that that failure of supervision constituted negligence on its part;

(b) while seeking to have the verdict in favour of Restisle on the Cross-Claim – which Cross-Claim was founded on the assertion that Mr. Rauk was an employee of Restisle – set aside, Transtate continued to assert that Mr. Rauk was a “direct employee” of Transtate and not an employee of Restisle whose services had been fully sub-contracted to Transtate;

73 It is necessary now to turn to consider the submissions advanced by Transtate on the hearing of the appeal.

Was Mr. Rauk an employee of Transtate

74 In seeking to advance his submission that Mr. Rauk was an employee – as opposed to being regarded as in the nature of an employee – of Transtate, Mr. D.G.T. Nock SC, who appeared with Ms. S.B. Piedade for Transtate, relied heavily on the decision of the High Court in Hollis v. Vabu Pty. Ltd. [2001] HCA 44; (2000-2001) 75 ALJR 1356; 181 ALR 263, in which case the majority of the High Court (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) held that the relationship between the respondent courier company and its bicycle couriers – no view being expressed as to the position in relation to the couriers who used motor cycles or motor vehicles supra at [47] - was to be regarded as that of employer and employee supra at [57], [61]. In particular, our attention was drawn to the following passage in the Judgment of the majority:

TNT Worldwide Express (NZ) Ltd v. Cunningham

75 With respect, it seems to me that counsel’s reliance upon the decision of the majority in Hollis v. Vabu Pty. Ltd. is misconceived, if only because it fails to recognise that, in that case, the relevant contracts were between the courier company on the one hand and the individual bicycle couriers on the other, whereas, in the present case, the relevant contract – which is not suggested to have been a sham – was between Transtate on the one hand and Restisle on the other, that contract being for the provision of Mr. Rauk’s services to Transtate (see, for example, Boral Roof Tiles Limited v. O’Brien (1994) 15 NSWCCR 1).

76 Although, as McHugh J wrote in Hollis v. Vabu Pty. Ltd. supra at [84], the practice of employers contracting out work that, in former times, was done by their employees, is nowadays a common practice, it is far from being the case that the practice of engaging an independent contractor to provide the services of his or its employees is of recent origin. On the contrary, the case of Quarman v. Burnett (1840) 6 M & W 499; 151 ER 509, to which reference is made in the Judgment of the majority in Hollis v. Vabu Pty. Ltd. supra at [51], provides an early example. In such cases, the question which falls for determination is whether the person who performs the services is to be regarded as the employee of the general permanent employer or whether the effect of the transfer of that person’s services was to constitute him pro hac vice the employee of the hirer.

77 The Judgment of Parker J (as he then was) in Garrard v. A E Southey & Co. and Standard Telephones and Cables Ltd. [1952] 2 QB 174 provides a convenient example of the approach to be adopted when such a question arises. In that case his Lordship said supra 176-178:

“The first question to determine is who, at the time of the accident, was the master of the plaintiff, as the person who would owe the duty of a master to his servant to provide proper plant and equipment. Of course, the plaintiff remained throughout in the general employment of Messrs. Southey & Co. They paid his wages and stamped his cards and had the right – and the sole right – to dismiss him from employment; but it is said that in the particular circumstances of this case he was nevertheless at the time of the accident in the special employment of Standard Telephones.

Mersey Docks & Harbour Board v. Coggins

& Griffith (Liverpool) Ld.

Lord Porter said: ‘Many factors have a bearing on the result. Who is paymaster? Who can dismiss? How long the alternative service lasts? What machinery is employed? have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorised to do this he will, as a rule, be the person liable for the employee’s negligence. But it is not enough that the task to be performed should be under his control, he must also control the method of performing it. It is true that in most cases no orders as to how a job should be done are given or required: the man is left to do his own work in his own way. But the ultimate question is not what specific orders, or whether any specific orders, were given, but who is entitled to give the orders as to how the work should be done. Where a man driving a mechanical device, such as a crane, is sent to perform a task, it is easier to infer that the general employer continues to control the methods of performance since it is his crane and the driver remains responsible to him for its safe keeping’.

Lord Uthwatt said: ‘To establish the power of control requisite to fasten responsibility on him’ – that is, on the hirer – ‘the hirer must in some reasonable sense have authority to control the manner in which the workmen does his work, the reason being that it is in the manner in which a particular operation (assumed for this purpose to be in itself a proper operation) is carried out that determines its lawful or wrongful character. Unless there be that authority the workmen is not serving the hirer, but merely serving the interests of the hirer, and service under the hirer in the sense I have stated is essential. Whether there is or is not such service in any particular case is a question of fact, the object being to ascertain the broad effect of the arrangement made.’”

78 Although the decision of the House of Lords in Mersey Docks & Harbour Board v. Coggins & Griffith (Liverpool) Ld to which Parker J referred was concerned with determining whether it was the general permanent employer or the hirer who was to be regarded as responsible for the negligence of the crane man who, by his negligence, had caused injury to a third party, Parker J was concerned to determine whether the hirer was liable to a workmen, whose services had been lent on hire, who had been injured as the result of the negligence of one of the hirers other employees. Later in the course of his Lordship’s Judgment, after referring to a decision of the Court of Appeal in Holt v. W. H. Rhodes & Son Ld ([1949] 1 AER 478, a case in which the workman whose services had been lent had been injured, his Lordship continued supra at 179:

Mersey Docks & Harbour Board

Fennell v. Supervision and Engineering Services Holdings Pty. Ltd.

Fairfield City Council v. Coupe

79 Although the facts found by O’Keefe J are such as to have constituted Transtate the employer pro hoc vice of Mr. Rauk, or the organising entrepreneur controlling Mr. Rauk’s workplace and system of work, for the purposes of the determining whether Transtate owed Mr. Rauk a duty to take reasonable care to protect him from the risk of injury while on its premises or carrying out work on its behalf, I consider that, at all relevant times, Restisle was Mr. Rauk’s general permanent employer, it following that, in my view, O’Keefe J did not err in holding that, at the time of his injury, Mr. Rauk was not an employee of Transtate but was an employee of Restisle which had sub-contracted his services to Transtate. The fact that Transtate was not the employer, but was to be regarded in the above sense as the employer pro hac vice, of Mr. Rauk means that any damages which Transtate was to be held liable to pay to Mr. Rauk were to be assessed, not in accordance with the regime prescribed by the provisions of Division 3 of Part 5 of the Workers Compensation Act 1987, but in accordance with the provisions of the general law and, further, that liability to indemnify Transtate in respect of such damages would fall on Transtate’s public liability, rather than its workers compensation, insurer (see Monarch Insurance Co. Ltd. v. Steel Mains Pty. Ltd. [1986] VR 831; Western Sydney Regional Organisation of Councils Group Apprentices v. Statrona Pty. Ltd. Court of Appeal, 29 August 1995 (unreported); OP Industries Pty. Ltd. v. MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193).

The accident and consideration of the evidence

80 The approach adopted by Transtate to grounds of appeal 3, 4, 6, 7 and 9 is illustrated in the following paragraphs of its Written Submissions (OAB 25-30):

“30. O’Keefe J found Rauk to be ‘honest and forthright, not seeking to make his case better than the facts supported’ … His Honour preferred the evidence of Rauk to that of Mr. Bianco in relation to a discussion alleged to have occurred in the morning prior to the accident … His Honour generally preferred the evidence of Rauk to that of the respondent’s lay witnesses.

31. However, His Honour also found that despite being an open and honest witness, Rauk had been mistaken as to the configuration of the bracing in place on the girder immediately prior to its collapse.

32. It is submitted that in finding Rauk to be a witness of truth and preferring his evidence generally, His Honour erred in not accepting the Plaintiff’s evidence as to the configuration of the bracing on the girder prior to its collapse.

33. It is important to note that His Honour accepted that if the Plaintiff’s evidence in this regard was accepted, the accident could not have occurred as Rauk alleged.

………

35. If His Honour found that there was no end bracing, then he was required to consider the factual situation concerning the end bracing. There were 2 alternatives:

(1) The bracing was never there;

(2) The bracing had been removed between the time the crane placed the girder in position and the accident occurred.

If the bracing was never there, who failed to put it there?

If the bracing had been removed, who removed it?

36. The Plaintiff’s own evidence has to be considered.

……….

37. His Honour only rejected the Plaintiff’s evidence as the bracing. He did not reject the Plaintiff’s evidence as to:

(i) the sequence of events leading up to the positioning of the girder by the crane;

(ii) that he did not see anybody else do anything from the time the girder was positioned by the crane;

38. Faced with that evidence, His Honour had to decide whether there was evidence upon which he could find that the brace was never there. There is little doubt that the K-bracing at least at one end was not there at the time of the collapse … The evidence of both experts would indicate that the girder had been (sic) moved without the bracing by the crane but had the girder been moved without the bracing by the crane, it would have failed. … So that His Honour on this evidence could only have found that the girder was braced at the time it was moved by the crane.

39. He was then left with the second alternative that someone had to have removed the bracing between the crane lift and the collapse. His Honour accepted that had the RTA and the Defendant’s own technical procedures been carried out, the collapse would have been avoided.

40. … His Honour appears to accept the Defendant’s experts (sic) scenario concerning the collapse being caused by the removal of the end horizontal strut.

………

42. … His Honour sets out the breach of duty by the Defendant. Not one of the breaches found by His Honour refers to the cause of the accident, ie the removal of the brace being done by the Defendant or in accordance with the Defendant’s instructions.

………

45. His Honour is correct to say that there was no direct evidence of who removed the brace therefore one has to consider what inferences could be drawn from the known facts. The only two inferences that could be drawn were:

(i) the Plaintiff removed the brace;

(ii) someone unknown removed the brace;

There being two competing inferences, neither can be accepted and the Plaintiff has failed to establish the causal link.

………

50. It is submitted that the Plaintiff must fail in establishing that the accident was caused by the negligence of the Defendant.”

81 As will be apparent from what I have recorded above, it is an essential part of Transtate’s case in this respect that, prior to the girder being moved and placed into position for the purpose of welding being carried out, the configuration of the bracing in place on the girder was as was depicted in the model (Exhibit B) which had been prepared by Mr. Rauk for the purpose of the hearing – that is, a brace taking the form of a length of angle iron between the two web plates, parallel to the base flange, at right angles to the web plates and with each end of the angle iron beneath the inside overhang of the upper flanges, together with a strut at an angle from a point about half-way along the underside of that horizontal plate to a point at about half-way down the side of one of the web plates and from a point about half-way along such strut another strut leading to a point where the web on the other side joined the base flange.

82 Far from being persuaded that O’Keefe J erred in failing to accept that the configuration of the bracing prior to the girder being moved was as was depicted in Exhibit B, it seems to me that the preponderance of the evidence favoured the view which his Honour adopted. Thus:

(a) Mr. Corradini’s statement to Mr. Fisher (Blue AB 442) was that he made the girder and put the standard K bracing in;

“NOCK: Q. When you first went to the girder to move it, do you remember what it looked like insofar as how it was constructed? A. It had the bottom and the two sides with the two flanges on it, it had probably three pieces or maybe four pieces of angle across the top and some diagonal K bracings on each end.

Q. If the witness might have a look at Exhibit B (shown).

HIS HONOUR: Q. There were K braces at both ends were there? A. Yes.

NOCK: Q. How does that compare with the description you have just given? A. I find an extra angle on either end that, to my knowledge, was never put on them. This angle along the top here (indicated).

HIS HONOUR: Q. The piece across the top to which the K brace is connected is not there, is that what you are telling me? A. That’s what I am saying, yes.

Q. That was true at both ends was it? A. Yes.”

(c) the photographs, part of Exhibit G (Blue AB 149), said to depict similar girder fabrication with a K brace in place depict a brace as depicted in Figure 2 in O’Keefe J’s Judgment, rather than as in Exhibit B, and without a top brace;

(d) although it was Transtate’s submission (para. 38) that the evidence of both Mr. Harrison and Mr. McNamara was to the effect that had the girder been moved without the bracing, it would have failed, it following that O’Keefe J was bound to have found that the girder was braced at the time it was moved, the evidence of Mr. Harrison and Mr. McNamara was not to that effect;

“Q. Now, if we were to assume – if you might just turn the model back onto its back – if we were to assume that the model was in that situation but that the horizontal part of the K was not there on either end and that the two cross-braces that are shown there was not there? A. At the end?

Q. Yes. A. Yes.

Q. And that the only thing that was there were the lifting devices …? A. Yes.

Q. … in the middle, what you have expected to happen when it was lifted? A. Lifted and rotated?

Q. Lifted and rotated? A. Given the fact that I do ignore the stiffness of the angle connecting the lifting lugs and the lack of stiff support between the two flanges then what has happened would have happened?

Q. What I want to put to you is if that had been the situation with the girder at the time the lift occurred that is the time the crane lifted, it would have collapsed? A. I can’t conclude that because even though I have ignored the structure of the tack welding there is still some strength there so I don’t know what the interaction was between the strength of the weld and the K bracing on the ends.

Q. Well, let me put it too you that if a collapse was going to occur, that the lifting and rotational forces would have been such that at least the girder should have come out of shape in some way? A. At the time of the lifting the flanges were supported by the lifting mechanism so the weight of those flanges would have been taken by the crane rather than by the girder itself.

Q. But let me suggest to you in that situation if there was a critical factor in respect of the girder going to collapse you would have expected it to have occurred as soon as the lift took place? A. No. Again even though the angle connecting the two lugs was not good in compression, it would have acted quite equal in tension.

HIS HONOUR: Q. But in addition to that, would you not have in a vertical lift the force that was constituted by the combined weight of the top flange and the web acting vertically through the bottom plate? A. Except that it would be supported by the lifting lug at that point.

Q. You have four lifting lugs and let us make the assumption that is so you can have a vertical lift that leaves the member horizontal? A. Yes.

Q. Now is not what I asked you then correct, namely, that the force constituted by the weight of the top flange together with the weight of the web on which it was superimposed would then act vertically through the bottom plate and you would not have the same turning moment? A. The lifting mechanism would be taking the weight of the flange and the web and the web in turn would be lifting the bottom flange.

Q. Then when you rotated it you have still got the crane taking at least part of the weight until it is settled on the trestles? A. As I understand it there were no trestles.

Q. Well, the packing that supported the member so that it was at an angle? A. Yes, so the weight of those flanges would still, until the crane released the load, would have been taken by the lifting mechanism.

NOCK: Q. Again, let me suggest to you that all of the forces that were present when the collapse occurred except for the undoing of the bolt were present as soon as the crane let the girder go and left it in position? A. Yes.”

“Q. And let us assume that there is no end horizontal strut, and let us assume that there is a short diagonal and a long diagonal strut? A. Correct.

Q. Then would both of these elements be overstressed? A. By my calculations the long diagonal is the member that is distressed.

Q. And the other one not? A. Is not.

Q. Did you do any calculation as to the degree or extent of overstressing of the long diagonal? A. The magical number the computer throws out is a factor of 2. Now there is a lot of simplifications there that – it’s of that order. That its beyond its yield point by its factor of 2.

Q. That does not necessarily mean that it will yield I suppose, but over time it is likely to do so. Or in a hundred instances its likely to do so in a given number of instances; is that the situation? A. I think steel is reasonably predictable, and it certainly would have yielded on a – I would expect it to yield under that set of circumstances.

Q. Yes? A. When the load is applied.

Q. We know a time sequence don’t we, and on your theory absent that horizontal strut, this girder should have collapsed as soon as it was loaded on its side should it not? A. Yes.

Q. But we know it did not? A. Can we come back to the simplifying assumption I made, which was neglecting the effect of these struts. I believe they worked for some time.

Q. And then did not? A. And then collapsed, yes.

Q. And any redistribution of the forces may give rise to that situation I suppose? A. Well in a failure, the failure mechanism is a structure which explores all options for standing. It will use everything that is physically holding it up, okay, and then as they progressive fail there is a redistribution of loads to the unfailed member. So it’s a pack of card type failure. Now I’m postulating that this was doing a fair amount of work, the end frame was doing a fair amount of the work, by my calculations it was not enough in itself without this top diagonal member.

Q. So on your theory, the cracking of the nut just happens to be an adventitious circumstance, not causally related? A. It might be the straw that broke the camel’s back. It may be just the physical assertion might be enough to – I cannot -

Q. I understand that? A. – predict.

Q. Your dealing with a series of postulates? A. Yes.

Q. About which you cannot be absolutely certain? A. No I cannot.”

83 Transtate’s Written Submissions then proceed upon the basis that, in order that he might have succeeded, Mr. Rauk bore the onus of establishing that the horizontal brace was removed by Transtate or in accordance with its instructions, a submission which has no foundation unless, and until, it be found – as it was not – that the horizontal brace at the end of the girder had been in place both prior to and after the girder had been lifted and rotated.

84 Far from this being a case in which Mr. Rauk failed to establish that Transtate had breached the duty of care which it owed to him in the circumstances, it seems to me that the evidence which was tendered at trial justified his Honour finding that Transtate had committed the breaches set out in paragraph 68 of his Judgment (see paragraph 68 (above)).

Conclusion and Orders

85 I conclude that Transtate has failed to make out any of the grounds of appeal upon which it sought to rely on the hearing of the appeal and, that being so, I propose that the appeal be dismissed with costs.

86 SANTOW JA: I agree with Powell JA.

87 MATHEWS AJA: I agree with Powell JA.

**********

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Citations

Transtate Pty Limited v Rauk [2002] NSWCA 222

Most Recent Citation

Gregory Warren Thomson v Twin Towns Employment Enterprises Limited [2008] NSWDC 213

Cases Citing This Decision

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Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132

Zhao v Monlea Pty Ltd t/as Nordex Interiors [2003] NSWWCCPD 11

Gregory Warren Thomson v Twin Towns Employment Enterprises Limited [2008] NSWDC 213

Cases Cited

4

Statutory Material Cited

0

Hollis v Vabu Pty Ltd [2001] HCA 44

Fairfield City Council v Coupe, a R Maher T/as a R Maher Services & M L Maher T/as a R Maher Services [2001] NSWCA 195

GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688

CITATION:	TRANSTATE PTY. LIMITED v. RAUK & ANOR. [2002] NSWCA 222
FILE NUMBER(S):	CA 40880/00
HEARING DATE(S):	26/02/2002
JUDGMENT DATE:	15 August 2002
PARTIES :	Transtate Pty. Limited (Appellant) Peter Rauk (First Respondent) Restisle Pty. Limited (Second Respondent)
JUDGMENT OF:	Powell JA at 1; Santow JA at 86; Mathews AJA at 87

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 21142/95/ CLD 20624/96
LOWER COURT JUDICIAL OFFICER :	O'Keefe J

COUNSEL:	D.G.T. Nock SC and Ms. S.B. Piedade (Appellant) D.F. Rofe QC and R.I. Goodridge (First Respondent) C.R.R. Hoeben SC (Second Respondent)
SOLICITORS:	Hunt & Hunt (Appellant) Firths (First Respondent) Hickson Wisewoulds (Second Respondent)
CATCHWORDS:	MASTER AND SERVANT - Negligence - services of workman hired out by employer - Workman injured by negligence of hirer. - NEGLIGENCE - Services of workman hired out by employer - Workman injured by negligence of hirer. - D
CASES CITED:	Boral Roof Tiles Limited v. O'Brien (1994) 15 NSWCCR 1 Fairfield City Council v. Coupe [2001] NSWCA 195 Fennell v. Supervision and Engineering Services Holdings Pty. Ltd. (1988) 47 SASR 6 Garrard v. A.E. Southey & Co and Standard Telephones and Cables Ltd [1952] 2 QB 174 Hollis v. Vabu Pty. Limited [2001] HCA 44; (2000-2001) 75 ALJR 1356; 181 ALR 263 Holt v. W.H. Rhodes & Son Ld. [1949] 1 AER 478 Mersey Docks & Harbour Board v. Coggins & Griffith (Liverpool) Ld [1947] AC 1 Monarch Insurance Co Limited v. Steel Mains Pty. Ltd. [1986] VR 831 OP Industries Pty. Ltd. v. MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193 Quarman v. Burnett (1840) 6 M & W 499; 151 ER 509 Western Sydney Regional Organisation of Councils of Group Apprentices v. Statrona Pty. Ltd. Court of Appeal 29 August 1995 (unreported)
DECISION:	Appeal dismissed with costs