Zahner v Andreas Pty Ltd - [2001] NSWCA 352

CITATION: ZAHNER v ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LTD [2001] NSWCA 352

FILE NUMBER(S): CA 40095/00

HEARING DATE(S): 26 June 2001

JUDGMENT DATE:
4 October 2001

PARTIES :

Terrence Alan ZAHNER v W ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LIMITED

JUDGMENT OF: Mason P at 1; Fitzgerald AJA at 2; Grove J at 44

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 9224/97

LOWER COURT
JUDICIAL OFFICER : Freeman DCJ

COUNSEL: Appellant: A Morrison SC/J Carr
1st Respondent: Not represented
2nd Respondent: J Maconachie QC/R Page

SOLICITORS: Appellant: Mulally Mylott
1st Respondent: Not represented
2nd Respondent: Phillips Fox

CATCHWORDS: PERSONAL INJURY - workplace injury - scaffolding collapsed - STATUTORY DUTY - breach - Whether regulation applies to a head contractor - where head contractor has an obligation to maintain scaffolding, head contractor liable - scaffolding unsuitable and unsafe - whether a person is bound by the regulations will depend on whether a person is actually carrying out the building work - Construction Safety Act 1912 - Construction Safety Regulations 1950 cll 6, 73 - NEGLIGENCE - breach of duty of care - whether contractor had a duty to ensure scaffolding was safe where subcontractor skilled and experienced - DAMAGES - quantum for - where injury causes depressive reaction - award inadequate to reflect the appellants losses

LEGISLATION CITED: Construction Safety Act 1912
Construction Safety Regulations 1950
Law Reform (Miscellaneous Provisions) Act 1965

CASES CITED:
Doval v Anka Builders Pty Limited (1992) 28 NSWLR 1; H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422; Haines v Bendall (1991) 172 CLR 60;
Maggiotto Building Concepts Pty Ltd v Gordon [2000] NSWCA 2001; Malec v J.C. Hutton Pty Ltd (1969) 169 CLR 638

DECISION: See pars 42 and 55.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40095/00
DC 9224 of 1997

MASON P

FITZGERALD AJA

GROVE J

ZAHNER v W ANDREAS PTY LIMITED & ANOR

JUDGMENT

1 MASON P: I agree with Fitzgerald AJA and Grove J.

2 FITZGERALD AJA: On 31 January 1980, the appellant, Terrence Alan Zahner, was injured when scaffolding which he was dismantling collapsed and he fell with it. The scaffolding had been used in connection with the construction of a building.

3 The first respondent, W. Andreas Pty Limited, was the principal contractor for the construction of the building. Andreas sub-contracted parts of the work to others. It sub-contracted the supply, erection, and dismantling of scaffolding to the second respondent, Boral Building Services Pty Limited. Boral provided the scaffolding material but in turn sub-contracted the erection and dismantling of the scaffolding to others.

4 One sub-contractor to Boral was Pyramid Scaffolding. On or about 18 January 1980, Pyramid erected the scaffolding at the location where Zahner was subsequently injured. In the interim, the scaffolding had been used by another subcontractor to Andreas, described as a “roofing plumber”, in carrying out its work.

5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWCA 352
Decision Date: 4 October 2001

CaseChat Overview and Summary

Zahner was the plaintiff in proceedings against Andreas Pty Ltd, the defendant, concerning a workplace injury sustained when scaffolding collapsed. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the defendant, as a head contractor, had breached its statutory duty under the *Construction Safety Act 1912* (NSW) and its associated *Construction Safety Regulations 1950* (NSW), specifically concerning regulations 6 and 73, in relation to the maintenance and safety of the scaffolding. Additionally, the court considered whether the defendant had breached its common law duty of care in negligence, notwithstanding the involvement of a skilled and experienced subcontractor. The quantum of damages awarded to the plaintiff was also under review.

The Court of Appeal determined that the defendant, as the head contractor with an obligation to maintain the scaffolding, was bound by the relevant regulations. The court reasoned that liability under the regulations depended on whether a person was actually carrying out the building work, which the defendant was. The scaffolding was found to be unsuitable and unsafe, constituting a breach of statutory duty. Furthermore, the court found that the defendant had breached its common law duty of care, as it had a responsibility to ensure the scaffolding was safe, irrespective of the subcontractor's expertise. The court also found the original damages award to be inadequate, particularly in light of the depressive reaction suffered by the plaintiff as a consequence of the injury.

Orders

Orders of the court

See pars 42 and 55.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ZAHNER v ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LTD [2001] NSWCA 352
FILE NUMBER(S):	CA 40095/00
HEARING DATE(S):	26 June 2001
JUDGMENT DATE:	4 October 2001
PARTIES :	Terrence Alan ZAHNER v W ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LIMITED
JUDGMENT OF:	Mason P at 1; Fitzgerald AJA at 2; Grove J at 44

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 9224/97
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL:	Appellant: A Morrison SC/J Carr 1st Respondent: Not represented 2nd Respondent: J Maconachie QC/R Page
SOLICITORS:	Appellant: Mulally Mylott 1st Respondent: Not represented 2nd Respondent: Phillips Fox
CATCHWORDS:	PERSONAL INJURY - workplace injury - scaffolding collapsed - STATUTORY DUTY - breach - Whether regulation applies to a head contractor - where head contractor has an obligation to maintain scaffolding, head contractor liable - scaffolding unsuitable and unsafe - whether a person is bound by the regulations will depend on whether a person is actually carrying out the building work - Construction Safety Act 1912 - Construction Safety Regulations 1950 cll 6, 73 - NEGLIGENCE - breach of duty of care - whether contractor had a duty to ensure scaffolding was safe where subcontractor skilled and experienced - DAMAGES - quantum for - where injury causes depressive reaction - award inadequate to reflect the appellants losses
LEGISLATION CITED:	Construction Safety Act 1912 Construction Safety Regulations 1950 Law Reform (Miscellaneous Provisions) Act 1965
CASES CITED:	Doval v Anka Builders Pty Limited (1992) 28 NSWLR 1; H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422; Haines v Bendall (1991) 172 CLR 60; Maggiotto Building Concepts Pty Ltd v Gordon [2000] NSWCA 2001; Malec v J.C. Hutton Pty Ltd (1969) 169 CLR 638
DECISION:	See pars 42 and 55.