COMPLETE SCAFFOLD v ADELAIDE BRIGHTON CEMENT & ANR No. SCCIV-00-828, SCCIV-00-836 [2001] SASC 199

COMPLETE SCAFFOLD v ADELAIDE BRIGHTON CEMENT & ANR No. SCCIV-00-828, SCCIV-00-836 [2001] SASC 199 - SASC 2001 case summary — Zoe

[47]

Mr Besanko closely examined the records forming part of the confined space permit system, and other job records. He made the following submissions. First, that if the record of entries into the chute is correct, Mr Henry's evidence about the sequence of work that he and Mr McCrone did on the morning of 28 September, before he fell, and after the fall, is not correct. There were two main points. There is no record of Mr Henry working inside the chute early in the morning as he claimed. There is no record of the placing of a second piece of scaffolding, properly constructed and safely made, in the chute after the fall. Mr Henry claimed this was done. Second, the entries on the cards suggest quite strongly that Mr Henry's evidence that work on the chute was completed on 28 September is incorrect. However, Mr Henry did acknowledge in cross-examination that that may well be so. The cards suggest that the work must have taken longer than one day. Third, there is no record of an employee of Scaffolding entering the chute on 28 September, and this suggests that a Scaffolding employee did not put the planks in the chute. Fourth, the job records indicate that a gang of four scaffolders employed by Scaffolding erected scaffolding around the outside of the chute on the morning of 28 September, spending several hours at the job. This also does not fit with Mr Henry's evidence about the sequence of the work. The job records also indicate that Scaffolding workers were again working outside the chute on 29 September. That also is inconsistent with the evidence of Mr Henry and Mr McCrone, about when scaffolding outside the chute was extended. Fifth, when Mr Kidd was called, he had no memory of the request from Mr Henry for scaffolding, and said that he could see no reason why scaffolding would be needed inside the chute. I interpolate that Mr Kidd agreed, however, that if he was asked to organise scaffold for an Allied worker, he would have made the request to someone from Scaffolding. In my opinion his evidence does not assist Mr Besanko's submissions. Sixth, Mr Henry's evidence that the men who told him the two planks were safe were scaffolders, was unreliable. Mr Besanko submits it was unreliable because Mr Henry identified them as scaffolders mainly on the basis that they wore a distinctive belt holding distinctive tools. Mr Henry also claimed, without really explaining, that he knew the scaffolders on site. Mr Besanko submits that some of the evidence from other witnesses suggests that scaffolders and riggers carry similar tools. As well, the Judge's reasons suggest that he misunderstood Mr Dean to say that an experienced boilermaker could pick a rigger from a scaffolder. In fact, all Mr Dean said was that he could tell a rigger from a scaffolder, without explaining how. Seventh, Mr Dean was the leading hand of the gang working on scaffold outside the chute on 28 September. He said that no member of the gang put any planks inside the chute that day. He said this on the basis of a claim by him that, if one of his gang had left to do the work, he would have noticed that. The Judge made no reference to this part of his evidence. When referring to Mr Dean, the Judge did not reject his evidence as unreliable. Eighth, Mr Besanko relies on a suggested inconsistency between Mr Henry's evidence and a statement made by him to another witness, Mr Hall. But in my opinion, without going into the details, there is no substance in that point.

[64]

In the present case the task that ABC contracted for Scaffolding to perform, the supply and erection of scaffolding as required, was not inherently hazardous. By this I mean it was not a task that, even when properly performed, carried with it a significant risk of harm. Nor was it a task of such difficulty that the risk of something going wrong was very high. I consider that those two propositions may be advanced, even though it is well recognised that the erection of scaffolding is a task calling for specialised skills and a good deal of care. Nor was the task undertaken by Scaffolding one which involved a risk of extreme harm or harm of great magnitude, if something went wrong. To say that is not to minimise the seriousness of injury to a worker, but merely to contrast the erection of scaffolding with, for example, the handling of materials that might result in a destructive explosion. In contracting with Scaffolding, ABC did not undertake a particular responsibility to workers employed by Allied, beyond accepting that ABC should provide a competent contractor to erect scaffold. There was no special vulnerability on the part of workers employed by Allied, beyond the fact that, as is always the case when contractors are involved, the Allied workers relied on the Scaffolding workers to provide and erect scaffold. Nor was the task in question one over which ABC exercised control, beyond such control as arose from the fact that ABC had entered into a contract with Scaffolding. Another relevant matter is that cases dealing with occupiers have not generally treated them as subject to a duty of care that cannot be discharged by employing a competent independent contractor, although as the cases referred to indicate, there are exceptions. Another point to bear in mind in the present case is that the suggested duty owed by ABC is a duty relating to the conduct of Scaffolding while erecting scaffold on the premises, rather than to the state of the premises themselves. As I have already mentioned, the erection of scaffolding is not a task inherently dangerous, or carrying special dangers, other than the danger that would result if the task were done carelessly.

[93]

Mr Quick QC, counsel for ABC, submits that the provision is not concerned with a contract between an owner and a contractor, but only with a contract between a contractor and a subcontractor. I do not accept that submission. If Parliament had intended to catch only a contract between a contractor and a subcontractor, it would not have used the language it has used. Indeed, the language used points the other way. While I can see a sound policy basis on which Parliament might have legislated along the lines put by Mr Quick, the words used are too general to permit the limited meaning that he suggests. Mr Quick further submits the work that Allied did, repair and maintenance work, was not part of ABC's trade or business, and so the provision does not apply. My impression is that he was drawing a distinction between a contractor like Allied, and someone such as a contractor delivering ABC's product to a customer, whom I suspect he would have agreed was performing work in the course of ABC's trade or business. But this aspect of Mr Quick's submissions seems to me to be no more than an exercise in redefining ABC's trade or business - the trade or business does not include maintaining its plant, but does include delivering its product to customers. I accept that one can say, without difficulty, that ABC's business does not include the business of repairing plant, if one treats that as a freestanding business. But equally one could say that its business does not include the business of delivering goods or products, if one treats that as a freestanding business. The difficulty that the submission encounters is that the work that Allied did was done to enable ABC to continue to conduct its trade or business, and so does appear to be done in the course of ABC's trade or business. Once again, one can discern the sort of distinction that Mr Quick seeks to draw. But the words of the provision appear to me to be too general to permit the scope of the provision to be limited along those lines. I suspect that such an approach would prove to be an unsatisfactory one, and to involve the drawing of unsatisfactory distinctions.

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COMPLETE SCAFFOLD v ADELAIDE BRIGHTON CEMENT & ANR No. SCCIV-00-828, SCCIV-00-836 [2001] SASC 199 (18 June 2001)

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