[Exhibit D, p147]
131 In Lenz v Trustees of the Catholic Church & Anor [2005] NSWCA 446 at paragraph 63, Mason P observed as follows:-
Furthermore, when a head contractor delegates a particular aspect of building work, circumstances may arise that require preliminary steps or ancillary work to be undertaken to ensure the safety of those who will be working on the delegated task. The task of doing the work necessary to complete the preliminary steps or ancillary work may not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. It is a question of fact in each case as to whether the sub-contractor has been instructed to perform the preliminary steps as well as the work the subject of the express instructions ( Buckman at 446 (Jacobs J); Maggiotto at [26]-[29], Kolodziejczyk at [72]; Todorovic at [27]).
132 In paragraph 58 of Multiplex Constructions, the following observation was made:-
This requires, in the words of Barwick CJ in H C Buckman & Son Pty Limited v Flanagan & Anor (1974) 133 CLR 422 at 427 that Multiplex, must be "the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts". The Chief Justice found (at 424) that the head contractor was carrying out one aspect of the construction work, and in that aspect was in breach of reg 73. One of its employees had cut off and removed the bolt heads in a concrete footing in order to re-site a steel stanchion. This led to the collapse of the stanchion when Flanagan leaned his ladder against it, injuring him in breach of reg 73.
133 The Court of Appeal (in, inter alia, Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65 and Kolodziejczyk) has expressed the view that what was said by Mason and Jacobs JJ in H C Buckman was not inconsistent with what was said by Barwick CJ.
134 The following observations were made in both decisions (Kolodziejczyk at [70]:-
Jacobs J pointed out that, where a head contractor instructs some other person to carry out part of the building work, circumstances may arise that require preliminary steps to be taken to ensure that the work which the other person is instructed to do can be done safely. The issue then arises as to the responsibility for those preliminary steps. It must be a question of fact in each case as to whether the other person has been instructed to perform the preliminary steps as well as the work, the subject of the express instructions.
According to Jacobs J, the head contractor will only be regarded as having instructed the other person to perform the preliminary steps if that person was particularly directed to do the specific work 'necessary in order to fulfil the [head contractor's] statutory duty'. That is to say, according to his Honour, the head contractor will only avoid having a statutory duty in regard to the preliminary steps if the head contractor particularly directs the other person to take those steps. Additionally, the other person 'must be provided with all material, assistance and supervision necessary' to ensure compliance with reg 73.
These remarks have to be seen in the context of the statement by Barwick CJ that under the regulations a head contractor owes no duty thereunder in respect of work delegated by it. Jacobs J was merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe. His Honour observed that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps. Nothing in this approach departs from that of Barwick CJ.
It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task. In that event, the task of doing the work necessary to complete the ancillary work or preliminary steps may well not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. The strictures expressed by Jacobs J are designed to prevent such a gap from opening. To ensure that the policy of the legislation, as enunciated by Barwick CJ, is fulfilled, the approach of Jacobs J should be adopted."
135 In the present case, Murmac had completed the job that it had been directed to do (the workmen had completed their scaffolding duties). They had left that work site. They were proceeding towards egress from the project site. They were not then involved in ancillary work or preliminary steps. It may be added that this was not a case where there had been the requisite provision of material, assistance and supervision to ensure compliance.
136 I have examined the provisions of the subcontract relied on by the defendant. In my view, those provisions do not make out its contention. The delegation extended to "all material and ancillary items and performance of work necessarily inferred for the completion of the Works". This extension did not cover their activities at the time of the incident. In my view, in this factual context, there was no delegation, express or implied.
137 I now turn to questions of breach. This is one of those cases that have to be decided in circumstances where much of the relevant evidence is lacking in reliability and credibility. The passage of time can at best only in part explain this situation. There is a bewildering lack of commonality in the versions presented by the evidence. In some respects, the differences were startling.
138 At the time of the incident on 29 October 1999, the plaintiff and others were carrying material and proceeding to a work site. It was the first day on which they had been involved in work on that part of the project site.
139 The three witnesses have adduced conflicting evidence as to the presentation of the hole at the time of the incident. The evidence of both the plaintiff and Mr Murdoch is to the effect that the presence of the waste hole was concealed. Although both the plaintiff and Mr Murdoch remembered that the hole was concealed, otherwise their evidence as to its presentation stands largely in conflict. One says it was covered with, inter alia, dust. The other says it was covered by a concrete film. Mr Gillen seems to be under the impression that it was uncovered. However, this evidence needs to be treated with care as he may not have inspected the hole after the incident and may merely have formed an impression from what had been said to him by the plaintiff and/or others. Whilst both the plaintiff and Mr Murdoch saw a tape covering, a different colour was observed by each.
140 The common threads are that the plaintiff's foot made contact with a hole, that this caused him to lose his balance and suffer injury and that subsequently, the hole was covered with other material.
141 There is evidence from Mr Gillen of the purposes for using the tape and as to its strength. If the hole was covered, the evidence supports a finding of failure of the tape in this particular instance. There may a number of explanations for failure (including the usual practice not being followed).
142 Whatever be the position, I accept that the presence of the hole was concealed. In the circumstances, it seems to me that the hole posed a risk of injury of the kind sustained by the plaintiff and that reasonable steps were not taken to ensure that the project site was safe. There was, inter alia, no evidence of prior inspection. In the circumstances, I consider that the plaintiff has proved breach of the duty owed to it by the defendant.
143 In respect of this incident, the defendant does not make any submissions in respect of the defence of contributory negligence. I do not consider that any such defence is maintainable on the evidence either.
144 There is conflict in the versions given by the plaintiff as to whether the second incident took place after alighting from scaffolding or a slab. It is just another area of uncertainty thrown up by the plaintiff's evidence. I shall put this question aside as the former is not part of the plaintiff's case. I shall proceed and consider the plaintiff's case on the assumption that he alighted from a slab. There is also conflicting material as to how he came to alight and did alight from the slab. I do not accept the evidence of the plaintiff or the version given by Mr Murdoch as to how they came to alight from the slab. The versions given by the plaintiff as to how he alighted include leaping, jumping and stepping off the slab. In my view, the plaintiff has failed to establish that he stepped off it.
145 I do not regard any of the evidence as to the distance between the slab and ground level on 5 April 2000 as being reliable. It may be added that, ultimately, it does not seem to me to matter whether it was 500mm or 1.2m. I accept the evidence of Mr Anderson concerning this matter. He did not regard it as being unsafe.
146 I take a similar view as to the reliability of evidence given and relied on to establish unsafe means of access and that what they did in alighting from the slab was the only means of egress then available.
147 Generally speaking, the evidence on means of access or egress is redolent with conflict. It abounds with confusion. I do not accept the evidence advanced on behalf of the plaintiff to establish his case on this question.
148 The plaintiff's case as pleaded is that at the end of the day he "was leaving the site". What "the site" means in this context remains somewhat unclear. It is further alleged that "to exit the site the plaintiff was required to step off the concrete slab from a significant height on to the footpath".
149 The evidence demonstrates that in the normal course of events they could have left this particular work site and made their way off the project site by a number of routes. Conflicting evidence was given as to a route which was regarded as their normal means of exiting.
150 The plaintiff's evidence appears to adduce at least two conflicting versions of events. One is that they had to take an alternative to the normal means of exiting. In this version, he said that he followed his colleagues and stepped off the slab at the lowest point (stepping off was described as being executed by placing one hand down and leaping over the edge). Another version was to the effect that he obeyed a direction given by Mr Gillen to get off the slab at a point where the latter "had the bunting cleared off". This version has the men jumping off at that point.
151 In addition to this conflicting material, there is other contrasting evidence which appears to concede that there were other means of leaving the work site at the time of the incident.
152 The evidence from Mr Murdoch stands in conflict with the two versions given by the plaintiff. Mr Murdoch's evidence also has its conflicting aspects. It also has concessions as to the existence of other means of leaving the work site at the time of the incident.
153 I consider that if they did alight from a slab, why they did so falls within the area of speculation. One possibility may be that it was seen as an easier means of egress from that particular work site.
154 I do not regard the issue as to the means of egress as being one where the facts were exclusively or peculiarly within the knowledge of the defendant. The plaintiff had personal knowledge of the relevant matters and was probably in a better position than the defendant to give evidence on those matters.
155 Both the plaintiff and Mr Murdoch were at the time experienced as scaffolders. They had earlier made their way safely to and from the work site on that day. They were familiar with the project site and the available routes. If the version of events given by Mr Murdoch was to be adopted, in effect, a discussion took place and a decision was made by the three men to step off the slab. The evidence does not suggest that they had any concern about this being unsafe. They had the knowledge and experience to negotiate such an alighting from the slab with safety. The handling of whatever height was involved was part of daily experience in working on scaffolding. It was not a means of egress provided by the defendant for workmen on the site and this was known to them. Indeed, they knew that there had been bunting to warn that such a means of egress should not be so used. In any event, it was safely managed by both Messrs Murdoch and Hutton (apparently without any difficulty).
156 The plaintiff bears the onus of demonstrating the alleged breaches of duty on the balance of probabilities. In the circumstances of this case, I am not satisfied that the defendant was in breach of either common law or statutory duty in respect of what happened on 5 April 2000.
157 I should add that if the sub-regulation does apply in this case, I consider that the evidence fell short of establishing that means of access provided by the defendant were unsafe.
158 I am left in doubt as to how the plaintiff came to suffer injury after leaving the slab. He has given competing versions of what happened. Mr Murdoch had limited vision of how the plaintiff landed. The nature of the injury suffered in this incident is a debatable matter. How it came about remains unclear. The better view may be that it arose after leaping or jumping.
159 The defendant submits that if it is found contrary to its primary submission that duty of care as alleged is owed, then there was no breach of its duty as occupier because of the following matters:-
i. Mr Gillen was present and he was the First Aid Officer.
ii. There was a site induction attended by all persons on the site.
iii. The evidence is that there was bunting in position. There is no evidence that the bunting was defective or inadequate.
iv. The responsibility for safety in respect of the individual employees of sub-contractors was delegated to the sub-contractor himself.
v. There was a Safety Committee.
vi. There were regular Tool Box Meetings.
vii. The house keeping activities of the sub-contractors were supervised by Mr Gillen.
viii. Mr Gillen made regular walks around the site area.
160 In considering questions of breach of duty, I have had regard to these submissions.
161 In dealing with these questions, I have had regard also to the report from Mr Simpson. However, it gave me little assistance. I shall briefly make certain comments concerning it. These are not intended to be exhaustive. I was not satisfied that masking tape had been used to cover the hole. I do not consider that Australian Standard AS 1657-1992 has application in the circumstances of this case. It is a standard for "Fixed platforms, walkways, stairways, and ladders - Design, construction and installation". Section 1 makes it clear that AS 1657 has no such application. It contains the following:-
1.1 SCOPE This Standard sets out requirements for the design, construction, and installation of fixed platforms, walkways, stairways, and ladders which are intended to provide means of safe access to and safe working at places normally used by operating, inspection, maintenance, and servicing personnel.
The Standard does not apply to situations where special provision is made in appropriate building or other regulations, e.g. means of escape from fire. Requirements for portable ladders are not included in this Standard.
162 I now turn to the question of what injury has been suffered by the plaintiff as a consequence of breach. To deal with this question, it is necessary to refer to the medical evidence (in particular, the reports of Drs Gray and Bodel). Although all of it has been provided by the plaintiff, it throws up conflicting opinion.
163 A report from Dr Gray dated 30 July 2002 contains the following:-
I suspect that the changes on the medial femoral condyle occurred when he hit the front of his knee on the frame of the brick cutter in January 2000 [this date appears to be an error - it should read October 1999]. The squatting and subsequent twisting injury at work on the 5 April 2000 resulted in his tearing his medial meniscus. It is impossible to know if events in his working, domestic or recreational activities, prior to this, caused minor asymptomatic tearing thus predisposing him to the significant tearing sustained at work on 5 April 2000 culminating in his presentation to me.
164 A further report from Dr Gray dated 30 July 2004 contains the following:-
In summary therefore, in his accident at work on the 29th October, 1999, I suspect that Mr. Boskov sustained a soft tissue injury only to his knee with a possible shearing injuries to the articular cartilage of the medial compartment of his knee. He may also have sustained a stable tear to his medial meniscus to account for his ongoing discomfort.
The two incidents described on the 5th April, 2000 I suspect produced a further tearing of the medial meniscus and produced a large unstable flap tear of the medial meniscus and accounted for the symptoms of which he complained when he consulted me on the 16th August, 2000. This left medial meniscus tear was treated by arthroscopic surgery on the 19th October 2000. Following on from this surgery, and despite time and physiotherapy, Mr. Boskov failed to regain normal quadriceps control of his knee. This was the cause of ongoing symptoms in this left knee. In late October of 2002 as a consequence of the ongoing disability in his left knee, this knee gave way. As he went to steady himself on his right knee he sustained a twisting valgus injury to the right knee with giving way. As a consequence of this injury I believe he tore his anterior cruciate ligament and his medial meniscus. In November of 2002, he underwent an arthroscopic partial medial meniscectomy and debridement of the anterior cruciate stump and in January of 2003 he underwent a four strand hamstring graft to his anterior cruciate ligament. Unfortunately, he sustained a further tear to the anterior cruciate ligament graft on the right knee some six months following his reconstruction. He currently has an anterior cruciate deficient right knee.
With regards to a prognosis, Mr. Boskov is at risk of developing earlier than normal osteoarthritis in his left knee as a consequence of the tear to the medial meniscus and the shear stress to the medial femoral condyle. However, the timing to the onset of symptomatic osteoarthritis is a little unpredictable. Should symptomatic osteoarthritis develop, then he may well require further surgery and depending on the onset and clinical picture, the operative options open to him would be either a high tibial osteotomy, a unicompartmental knee replacement and probably culminating in a total knee replacement.
On the right side, again he has an anterior cruciate deficient knee with a meniscal injury. He is at risk of further episodes of giving way. This can result in further chondral damage and tearing to the lateral meniscus which may necessitate further arthroscopic surgery. Ultimately, he will develop earlier than normal degenerative changes in that knee culminating in a total knee replacement if his symptoms dictate. In the meantime, Mr. Boskov should continue with a regular quadriceps strengthening exercise programme and range of movement exercises and to this end walking, swimming and bike riding would be an ideal exercise regimen.
With regards to Mr. Boskov's capacity to work, prior to his injuries Mr. Boskov worked as a rigger on construction sites. I doubt that he will be able to safely return to this work with his unstable right knee and painful left knee. Giving way whilst working at height could easily occur resulting in further injury to the knees and obviously other parts of his body. Mr. Boskov is not unemployable in the sense that he could perform clerical duties, but I am unsure that he has the training to be employed in this area. At the end of the day, however, I would encourage Mr. Boskov to engage in all activities that he feels comfortable and safe to perform.
I have already answered question 7 in my summary. As best one can assess with hindsight the initial tear injury on the 29th October, 1999 resulted in a stable medial meniscal tear and the subsequent injury resulted in an unstable meniscal tear which was obviously more symptomatic. I am unable to apportion in percentage terms the responsibility between these injuries and I agree with you that it is difficult and somewhat arbitrary in trying to apportion such responsibility in percentage terms and sadly I am not clever enough to do this. Clearly however, it was the second injury that produced an unstable meniscal tear necessitating surgical intervention.
With regards to question 8, I believe that the right knee injury was a direct consequence of the left knee injury. The ongoing pain and disability in the left knee caused this knee to fail, placing undue stress on the right knee and precipitating significant force to result in a tear to his anterior cruciate ligament and tear to the medial meniscus.
165 In a report dated 15 November 2004, Dr Gray said as follows:-
I have seen many patients over the years develop a symptomatic meniscal tear when rising from the squatted position. I cannot however recall anybody sustaining a chondral shear fracture from such an action. I therefore cannot totally agree with the assumption that if the first injury on the 29th October, 1999 had not occurred the resultant injuries in April of 2000 would not have produced any or very limited injury. The meniscal tear could have arisen from the injuries in April of 2000, but the articular cartilage shear fracture could not have been produced alone by the injuries in April of 2000. I therefore do not agree with the contention that it is more probably than not the latter two injuries in April 2000 would not have occurred in the absence of the first injury on the 29th October, 1999.
166 In a report dated 24 November 2004, Dr James Bodel said as follows:-
Mr Boskov first suffered an injury to his left knee at work on 29 October 1999. He reports that he was carrying lengths of scaffolding tubing, on a concrete deck when he suffered his injury. He reports that in the concrete deck there was a waste hole penetration which is about 250 millimetres in diameter. He reports that a length of PVC piping passes through the penetration but that the edge of the opening has a champher on it. He reports that the opening was covered over with "Gaffa tape" and was covered in no other way. He was walking in the area when he inadvertently stood on the edge of the hole and that caused him to fall forward. He struck the front and inner aspect of the left knee on the sloping edge of the hole.
… … …
On 05 April 2000 he was kneeling down at work. He reports that he was kneeling down on one knee with the other leg up. He cannot recall whether he was taking weight on the right knee or the left knee but as he stood up from this position he felt sharp pain on the inner aspect of the left knee. He reports that he had suffered some minor similar symptoms prior to that and he reported to his co-worker the problem with the left knee and so he took an early lunch.
He then completed the shift with some difficulty and at the end of the day there was a further aggravation of the symptoms when he jumped down a distance of about 1.3 metres as he was leaving to go home. He states that the normal access point for leaving the building site was blocked at that time and he had to lean down on the edge of the ground and come down that 1.3 metres and he landed on his leg and jarred the knee.
………
In response to your specific questions I would indicate that this gentleman's history and clinical findings are as observed above. The diagnosis is a torn medial meniscus and articular cartilage damage in the medial compartment of the left knee following the original injury at work and the subsequent injury on 05 April 2000. Historically, it appears more likely that the articular damage occurred in the injury on 29 October 1999 because of the mechanism of that injury and the torn medial meniscus is more likely to have occurred when rising from the squatting position in the episode on 05 April 2000. Historically, the episode in April 2000 was more significant than the one in October 1999 as he had to go off work immediately and he had a very swollen knee. The injury on 29 October 1999 probably predisposed him however to the subsequent meniscal pathology in the injury on 05 April 2000.
Overall this gentleman has a guarded prognosis in both knees and the right side is more guarded that the left because of the instability on that side.
Further surgery is inevitable but the exact nature of what will be needed is difficult to predict at this time. I strongly suspect that he will need to have a further surgical stabilisation of the right knee to stop that deteriorating at a more rapid rate.
This gentleman will never be fit to return to work as a scaffolder or rigger. It would be most inappropriate for him to return to work that requires prolonged standing, kneeling, squatting or climbing, particularly at heights such as on a multi-story building site or walking on rough ground, again such as on a building site. He should be able to tolerate at least part-time semi-sedentary work even with his current level of discomfort.
It also appears likely that the problem with the right knee is indirectly related to the problem with the left knee based on the history that he gives of the left knee giving way causing the injury to the right knee.
[Reports contained in Exhibit E]