BALLINA SHIRE COUNCIL v DALEY

Court of Appeal (NSW)|1991-03-13|Before: Clarke JA

MASTER AND SERVANT - CONSTRUCTION SAFETY ACT - Reg73(2) AND Reg73(3) BREACH OF STATUTORY DUTY - CAUSATION MEANS OF ACCESS

PLACE OF WORK DAMAGES - JURY

Clarke JA In this case the appellant (which was the defendant at the trial) appeals from the judgment entered insofar as it proceeded upon the basis of the jury's finding on two statutory counts, to which I will refer.

The appellant's submission was that there was no evidence fit for submission to the jury of a breach of Reg73(2) of the regulations made under the Construction Safety Act or a breach of Reg73(3) of the same regulations. Alternatively, the appellant submitted, if it was correct to conclude that it had been open to the jury to find a breach of Reg73(3), there was no evidence of a causal nexus between that breach and the injury suffered by the respondent.

In order to understand the submissions it is necessary shortly to summarise the facts, putting them at the highest from the respondent's point of view, and also to set out the relevant regulations.

The respondent was an employee of the appellant shire council, having worked there for a number of years. He was employed, alternatively, as a labourer or a chainman assisting surveyors. On 25 September 1986 he was working as a chainman assisting in an operation the ultimate objective of which was to straighten out bad corners on the Bruxner Highway. His task, as he described it, on that day was to climb steep banks at the side of a road in order to hammer in pegs in positions indicated either by his foreman or the surveyor. It would appear clear that he also was required to carry the hammer, the pegs and a staff, and perhaps other equipment which was to be used either by him or by the surveyor's assistant, Mr Henderson.

When he arrived at the scene of the accident he ascended a bank on the left-hand side of the dirt road and placed the pegs in position. He then returned to the road and ascended the bank on the right-hand side. There were photographs put into evidence showing these banks and they support the description of the banks given in the evidence as being very steep. They were not surfaced with any bitumen, concrete or any other surfacing but were constituted of loose gravel, with some plants growing on a portion of the bank.

The respondent ascended the bank successfully and placed in position three pegs at ascending levels. When he had placed the third and topmost peg he was required to return down to a truck which was on the road at the bottom of the embankment.

There was some suggestion at the trial that the safe way to return to the truck was to go further up the hill to another road and follow that down to the truck. That suggestion was, for reasons which appear to me to have been quite sound, abandoned. Apparently, that would have been quite dangerous, given the narrow ledge between traffic and a fence on the.>;de of the other road.

Accordingly, the case was conducted upon the basis that it was necessary for him to descend the steep gravelly embankment. This was no easy task. It was, in my view, fraught with danger.

The respondent commenced the downward progress until he reached a point some three or four metres above the road where the second peg had been placed. Because of the difficulty in descending the hill, he then threw down the equipment he was carrying in order that he might more safely finish his journey. Having done that, he commenced to slide down the hill on his haunches, with his legs out in front of him and his hands somewhere near his buttocks.

According to him, the slide got faster and faster and eventually he jumped. While he did not say so in so many words, the inference was open to the jury that he jumped because of the increasing speed with which his downward progress was occurring. In the jump he sustained an injury to his right ankle and it was that injury which caused him to bring the proceedings.

The case put by the respondent at the trial on the statutory counts was that either the means of access to his place of work - that is, the place at which he placed the pegs in the ground - was not reasonably safe or, alternatively, if it be correct to categorise the whole of the bank as his place of work, he was required to work at a place from which he was liable to fall more than 1.8 metres and no precautions were taken to minimise the risk of his falling.

The regulations which I earlier mentioned read: "Reg73 (2) provide and maintain safe means of access to every place at which any person has to work at any time; (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m."

The appellant's first submission was that Reg73(2) only applied to means of access and the respondent was not using a means of access at the time he sustained his injury. He was, according to the submission, working at his place of work. Upon this argument the descent from the top of the hill was part of his work. Counsel relied on the decision of the High Court in Australian Iron and Steel Pty Ltd v Luna, 123 CLR 305. I tend to the view that this submission should not be upheld. However, it is unnecessary for me, for reasons which will become apparent, to form a considered opinion on that matter.

Counsel for the appellant conceded that if Reg73(2) did not apply because the

CLARKE JA: The orders of the Court will be as I have indicated.

Counsel for the Appellant: J MACONACHIE QC AND G GREGG, Instructed by: HUNT AND HUNT

Counsel for the Respondent: A BELLANTO QC AND F CURRAN, Instructed by: MESSRS CARMONTS, BALLINA

At a glance

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Judgment (18 paragraphs)

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