Vaughan Constructions Pty Ltd v Giles

[1989] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M79 of 1988

B e t w e e n -

VAUGHAN CONSTRUCTIONS PTY LTD

Applicant

and

GREGORY ALLAN GILES and

T.A.L. STRUCTURAL ENGINEERS PTY LTD

Respondents

Application for special

leave to appeal

BRENNAN J
DAWSON J

McHUGH J

Vaughan

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1989, AT 12.38 PM

Copyright in the High Court of Australia

MIT 8/1/RB 1 9 /6 I 89

MR A. HOOPER, QC: If the Court pleases, I appear with my

learned friend, MR. T.G. WODAK, for the applicant.

(instructed by Lander & Rogers)

MR M.E.J. BLACK, QC:  May it please the Court, I appear with

my learned friend, MR J. RUSH, for the respondent successful respondent in the appeal below. (instructed

by Slater & Gordon)

MR B.H. STOTT, QC: If the Court pleases, I appear with my

learned friend, MR M.McINNIS, for the second-named

respondent, T.A.L. Structural Engineers Pty Ltd.

(instructed by Mischel Hogan & Bone)

MR HOOPER:  If the Court pleases, I have noted in my

appreciation of the material before the Court that

there does not appear to be a proposed notice of

appeal amongst the application and I think it

proper that I should draw that to the Court's

attention.

BRENNAN J:  Do you have one now?

MR HOOPER: No, I do not. If the Court feel that one is

necessary at this stage immediately, then I would

ask for the matter to be stood over- - -

BRENNAN J: Perhaps you could identify what are the appeal points

which you would wish to agitate if special leave -

MR HOOPER:  They are identified mainly in paragraph 8 of the

affidavit of Mr Curtis which is the affidavit in

support. I apologize to the Court for that but I

came into the matter late myself last evening and I

anticipated this matter was going to come on early

this morning and it was only in the early hours of

the morning I made the observation myself.

BRENNAN J: I hope you lost little sleep over it, Mr Hooper.

MR HOOPER: The two main points appear in subparagraphs (i)

and (ii) of paragraph 8 and they fall into two

categories: one is in relation to the issues

between the applicant who was the first defendant

at the original hearing and the second point goes

to the position arising between him and the third

party notice. I can deal with the issue between

the defendant and the plaintiff, as he then was, first

and in our submission a very real point of importance

arises which calls for special leave in the sense that

being an industrial-proceedings arising out of an

industrial accident and being proceedings which were

solely based on the question of whether or not
scaffolding had been provided pursuant to the

provisions of the SCAFFOLDING ACT, and that that

claim was simply pleaded and pursued as a breach of

statutory duty, it became a matter of determining

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whether perhaps one of the most utilized items in

the itinarary of constructors and workmen, namely a

ladder, fell within the definition of "scaffolding"

for the purpose of the Act.

BRENNAN J: The real question, I suppose, is whether the ladder

that was on the site, being on the site, was a

sufficient discharge of the obligation of the

contractor under section 9. That is not necessarily

the same question as whether a ladder can be

scaffolding.

MR HOOPER:  No, although the difficulty that flows from the

manner in which it has been dealt with in the original

hearing and on an appeal in the Full Court was to make some pronouncements to that effect, with the exception, perhaps, of Mr Justice Ormiston's judgment,

and the end result of the matter as it now stands is

that in the judgment, although it is fairly short,

and without a great deal of reasoning with respect

to the learned judge, of the trial judge, he seems

to have ruled that a ladder can never in any

circumstances amount to scaffolding by construing the

section in such a manner to come to that conclusion.

When the matter went to the Full Court

Mr Justice Kaye did much the same thing, only with

greater reasoning and a greater consideration of

the issue. Now, it would be our respectful submission

that that approach - that those conclusions are wrong

and that if that were to remain the law in the State

of Victoria it would have considerable effects on

activities and areas which are very important to the

community. We would submit that the reasoning - and

I will deal in detail in a moment - was of such a

kind that that sort of reasoning could be applied to
construction of similar sections in other Acts in
other States which, again, deal with the question of

scaffolding and what might constitute it.

McHUGH J:  Mr Hooper, is thereno provision in the SCAFFOLDING

ACT that the employer shall provide scaffolding which

is suitable and safe for the purpose for which it is

used?

MR HOOPER: As best advised, Your Honour, no. And one is left

with this section. I should inform the Court it

been proclaimed, which would change the

appears, I think, from one of the judgments of the but not

situation, and since it was passed in 1985 and still

remains unproclaimed and no indications as to whether

it will ever be proclaimed, that is still up in the

air, but there is a huge body of activity going on on

the basis of the current Act which is the section 9

provison which seems to be the by all and end of the

matter, and that therefore assumes quite an importance.

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Reading the judgment of the Full Court, one seems

to get in Mr Justice Ormiston's judgment a disagreement

with his brothers in that His Honour ultimately comes

to the conclusion - I think it is about page 93 of
the application book - that there are some

circumstances in which a ladder could be considered

to be scaffolding. So that the matter is left - not

wishing to make a pun - very much up in the air.

BRENNAN J: What is the proposition for which you contend?

MR HOOPER: The proposition that we contend is really the

proposition put by Mr Justice Ormiston at the foot
of page 93 as being the correct one and that having

gotto that proposition, one should then examine each

particular circumstance with the section so construed.

In other words, as I understand and our submission is

that what you should do is you take the section and

say it is an artificial section in the sense that it

uses the word"means" which has parameters to the

definition, and then what the legislature has done

by adding some words towards the end of them, using

the word "includes", has made sure that that artificial

definition includes within its parameters certain ·

items which can constitute scaffolding, just in case

people think because of the ordinary and natural

meaning of the words or the nature of those items,

would fall outside that artificial definition, and

that the proper approach would be to take those items

and see whether they satisfy the purpose test of -

using a purpose construction of the section - saying

are the-

BRENNAN J:  If you take Mr Justice Ormiston's view at page 93, does that notlead to failure on your part?

MR HOOPER: With respect, no, because the case proceeded and

was determined on the basis that there was no

scaffolding at all.

McHUGH J: That is what troubles me about this case; there is

something terribly odd about it, because on your

argument the fact that you have provided a ladder,
assuming you are right about ladder being within

scaffolding, the fact that you have provided a ladder

is a complete answer to the plaintiff's claim.

MR HOOPER: I agree with that in this sense, but having regard to the way the matter proceeded, it would seem that

if one meets that one says, "Well, one has provided,

if one looks at the circumstances, one has complied

with the section as far as is possible and therefore

because it is simply limited to breach of statutory

duty, the plaintiff fails", in the sense that the

real - on one view of the material, the view of it

is that whatever, whether it was a ladder or some

other scaffolding, the accident, on one view of it,

occurred when he was getting from A to B, rather than

working at all.

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McHUGH J:  But is that not the real point of the case, that

no scaffolding was provided for him at that point

of time; none at all. Even if the ladder was

within the definition, he was not provided with a

ladder at that point of time. He was not provided

with any scaffolding at that moment.

MR HOOPER:  That, with respect, does not seem to have been

considered and it seems to have all gone off on a

misconceived basis without ever getting to the

precise circumstances, that the cause of action is

solely a breach of statutory duty one, therefore we

look to see whether there was any scaffolding provided.

McHUGH J: But your argument leads logically to the conclusion

that if you had given him a toe board you would have

discharged your obligation under the - - -

MR HOOPER: With respect, no. In these circumstances

McHUGH J: Well, how do you distinguish it?

MR HOOPER: What is said here is that you provide him with the

ladder which is adequate for the purpose of putting

himself in a position to tighten the stays and so

forth on the girders. And that is sufficient

compliance with section 9 of the SCAFFOLDING ACT,

therefore there is no breach of statutory duty. So

we do not have to provide any scaffolding for him to

get from A to B because if one looks at the purposive

definition of section 9, scaffolding is there , as

Mr Justice Ormiston said, on page 93, "for the use

of any person engaged on any such work" and for,

where appropriate, the placement of his equipment.

Well, from getting from A to B, because he chose to,
as the 'WOrd used is "shimmy" across a girder to get

from where he was carrying out one piece of work to

another piece, that scaffolding is not required under

section 9.

BRENNAN J: This would be a convenienttim~ for us to adj~urn,

Mr Hooper. But I must say at the moment the problem

which seems to me to confront you is if you do

adopt Mr Justice Ormiston's construction and you

restrict yourself to the opening part of the

definition of "scaffolding", do you not then come

immediately to the problem that has just been raised

with you by my brother McHugh,	but that is a problem
you might care to consider.

MR HOOPER:  Yes, it is. It is not without its problems. Thank

you, Your Honour.

BRENNAN J:  We will adjourn until quarter past 2.

AT 12.52 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.16 PM:

BRENNAN J: Yes, Mr Hooper.

MR HOOPER:  If Your Honours please, and with the leave of

Your Honour Mr Justice Brennan, if I could go back

to the point Mr Justice McHugh raised just before

lunch, if that is convenient, which, as I understood

was along the lines of where does it get the defendant

if we go to a construction of the section in the way

Mr Justice Ormiston went. The answer to that, in our

submission, is that you are forced back to the

judgment of the trial judge and when one looks at it,

it is clear that such findings as he made in

relation to the ladder were made on the wrong basis,

on the basis of a wrong construction and are therefore

not useful. But in any event, when you actually go

to his judgment, they are helpful to us in the sense
that at page - just before I get to page 31, the

point where His Honour does rule about the ladder is

at page 28 - this is His Honour Mr Justice Teague.

He says, towards the foot of the page:

I ruled that the ladder, ..... was not

scaffolding as required by s.9 of the

SCAFFOLDING ACT. I am satisfied that the

failure to provide scaffolding properly so

called -

and we would submit there is some significance to be

attached to those words -

was the main cause of the fall.

So he has then gone on to consider the matter on the

basis that there was no scaffolding at all. He then

goes on, on the next page, which is of little help,

simply referring to the ladder as an extra option and

he refers to some evidence of an expert witness which

he is not completely satisfied about and makes no
real finding.	But two or three pages later, at page 31,

where I am dealing with the question of contributory

negligence, he does describe the ladder as being -

heavy, long and awkward, and even though he -

being the plaintiff -

knew, and he gave evidence to the effect,

that it could be used satisfactorily on

the work at the highest level, which work

carried the highest risk.	He elected to
shimmy -

across the girders. Now, it could be inferred from

that finding that the ladder, if His Honour had

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directed himself correctly, as we say he should have

in relation to a ladder being capable of being

scaffolding within the meaning of the section, might

have found on that approach to the evidence - of his

approach to the evidence there, namely that it was
capable of being used on the work at the highest

level as being sufficient to satisfy the requisites

of the section, and it being remembered at all times

that the onus rests with the plaintiff here who has

brought an action solely on breach of statutory duty,

It is for him to show that the statutory duty has been

breached. If it is left up in the air, then he fails.

So it is not for the defendant to show that the ladder was sufficient; it is for the plaintiff to show

that the ladder was not sufficient. Now, what

His Honour the trial judge has done is say he cannot have a ladder at any cost, under the section, and we

submit that is wrong. The Full Court have worsened

the position by His Honour MrJustice Kaye adopting

that course. Mr Justice Ormiston, in almost an

inconsistent, with respect to His Honour, judgment in

that he accepts-on the one hand agrees with

Mr Justice Kaye, but then he adds the qualification

at the end that I have pointed to earlier this morning

that in certain circumstances a ladder could satisfy

the test. And to that extent he is inconsistent with

the judgment of Mr Justice Kaye, and then we have

Mr Justice Hampel - and I am not sure whether he

agrees with both judges or simply with Mr Justice Kaye -

but in any event does not help the matter.

And so far as the law in Victoria is concerned,

the matter stands that a ladder, which is an

every day item found in building construction, cannot

be considered as scaffolding for the purposes of the

section. Now, in our respectful submission, that

rules out a situation where you have got a painter

who might have a step ladder, where it is quite

adequate for him to stand on the ladder with his pot

of paint and paint at a level which is quite safe.

But if he does that and he has an accident, it is said

that that is not a scaffolding and there is a breach

which, in our respectful submission, if one followed -
accepted Mr Justice Ormiston's qualification which we

say is the correct one, enables the court to go into

the question of whether that ladder constitutes a

sufficient scaffolding for the purpose and effect of

the section.

To eliminate that from the wrongful, in our

submission, eliminate that from the consideration of
the courts of the many many cases of industrial
accidents is a matter that calls for clarification

and is a special leave point. I do not seek to

address or argue the case as to whether we would

succeed necessarily at the end, my task today, as

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I understand it, is to make out a case for special

leave and in that sense to leave these judgments of the Full Court as they stand would be, where there is this inconsistency and in our submission prima facie misdirection on the part of the trial judge

himself and wrongness in their approach to the

construction, would be doing a grave injustice to the workers of the State of Victoria. And so far as this authority, being a Full Court authority, would flow

on and be certainly regarded by courts in other States

under their respective legislation as to whether or

not a ladder can constitute scaffolding, where there
are similar types of legislation, certainly in New

South Wales as I understand it the legislation goes further and has standards and requirements, but

nevertheless it is a factor that a judgment of that

standing a court could well have regard to and it is

a matter of extreme importance and that is why we put

that this is a case that there should be leave granted

on that point.

Now, unless there are other matters I can

usefully turn to - I do not wish to take the Court's

time in depth on any of these matters - but that is
the main way in which we put the point so far as

the argument for special leave, so far as that point

is concerned, that the judgments of the Full Court are

most unsatisfactory all round. So long as there is

a prospect of us succeeding - and it may be a matter

that if one examines the evidence and our argument is

correct, that rather than this Court seek to deal with

the matter finally on the judges' findings, it may be

a matter where it is appropriate that the matter should,

if we were successful, go back for retrial on that

point.

Unless there is any other matters on that point,

I will turn to the other ground which is the question of the claim for contribution on the third party

notice which has been limited by its terms to a claim

under the WRONGS ACT as a tort alleging the third

party as a tortfeasor. For the purposes of the

situation the defendant is in - the applicant is in -

it must be conceded that in order to succeed on that

point it must show that the third party owed a duty of care to the plaintiff and breached it. The fact of the breach of agreement does not help. Nevertheless

the argument is put that the fact of the agreement is

relevant in the sense that it, in our respectful

submission, brings the third party into the area of

responsibility so far as the conduct of the operations

or the construction operations are concerned.

Whilst, I think, it was Mr Justice Kaye who

dealt with the matter I think on page 76 and said,

well, the plaintiff was not in the employ of the third

party and the third party was not in occupation or in

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control of the site and he was not there as his

invitee and· so forth, in our respectful submission that is not the full panorama of the relationships
that could be considered so as to constitute a duty

of care. In our respectful submission, once there

is a proximity, one must look at it and see whether

it is of such a degree that a duty of care is owed.

Now, the proximity, in our respectful submission,

is be gained by looking at the terms of the agreement

and to see what part the third party played. By

looking at those terms of the agreement you see that

he played a part in that he remained responsible for

provision and scaffodling and obviously had access to

the site for those purposes. The fact that he was

not there or was not doing anything does not make him

any less proximate to the plaintiff and it ought to be,

in our respectful submission, held that he could

reasonably - he owed a duty to any person who was

likely - whose safety was likely to be endangered by

being on the site, workmen and so forth, and that that

duty was breached in the circumstances.

The way we put it is that it is in line with the reasoning in the cases where there have been findings where trespassers,vis-a-vis occupiers,have been held

to have a duty of care owed to them by occupiers

despite the fact of their being a trespasser. In that

situation, it is not enough, using the criteria in

those cases, to simply look at it in the limited

manner that Mr Justice Kaye looked at it in relation
to his judgment in the Full Court or, indeed, look

at it in the manner in which the trial judge looked

at it, which we would submit was a fairly -

Mr Justice Teague was a fairly light approach to the

matter altogether, and we submit that there is a

good and a strong argument that there was such a

proximity here between the plaintiff and the third
party, that a claim had the plaintiff brought it

against the third party on negligence, could have or

would have succeeded.	We submit that that is a matter
of importance, again not just limited to Victoria but

goes to the whole of the Connnonwealth, as to where

you draw the line in relation to the degree of

proximity you have in situations, particularly in the

industrial situation where there are these days

contractors and subcontractors and many other persons

playing a part on construction sites.

We would submit that the manner in which it

has been dealt with here, and particularly in the

Full Court which would have a binding eifect 1 in

Victoria - and would have an effect in other States

as a matter to have regard to - calls for special

leave. Now, those are the matters that we wish to

put. I do not want to unduly just go over points or

put them in another way, but that is the nub of the

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case that we put for special leave. If that persuades

the Court I would have a suggestion to make in

relation to preparing a notice of appeal and

submitting it to our learned friends and seeking
leave from the Court to deal with that aspect in due
course. But unless there are any matters that I can
be of assistance, that is the gist of our argument

for special leave. If the Court pleases.

BRENNAN J:  We need not trouble you, Mr Black, nor you, Mr Stott.

The applicant in this case seeks special

leave to appeal against the judgment and damages

entered in favour of the first respondent for

breach of a statutory duty imposed upon it by

section 9 of the SCAFFOLDING ACT 1971, Victoria.

Without endorsing the reasons for judgment

as expounded in the courts below, the Court does

not think that the result which was arrived at in
the actions between the plaintiff and defendant is
attended with sufficient doubt as to the result to

justify the grant of special leave.

On the second application that is made in

respect of the third party proceedings, the Court does not think that the reasons expressed in the Full Court for holding against the applicant are attended with

sufficient doubt to justify the grant of special leave.

For that reason special leave is refused.

MR BLACK: If the Court pleases, I ask for costs on behalf

of the respondent Giles against the applicant.

MR STOTT:  I make a similar application on behalf of the

second-named respondent.

MR HOOPER: I have nothing to say, if the Court pleases.

BRENNAN J: With costs, in both instances.

AT 2.35 PM THE MATTER WAS ADJOURNED SINE DIE

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