TORTS --- NEGLIGENCE --- ESSENTIALS OF AN ACTION FOR NEGLIGENCE --- DUTY OF CARE --- RELATIONSHIPS OF PROXIMITY --- DAMAGE --- CAUSATION --- CONTRIBUTORY NEGLIGENCE

Contributory negligence - Henry asked, and was told, that the scaffolding constructed inside the chute was safe - whether the Judge erred in holding Henry was not guilty of contributory negligence - appeal dismissed.

TORTS --- NEGLIGENCE --- ESSENTIALS OF ACTION FOR NEGLIGENCE --- DUTY OF CARE --- SPECIAL RELATIONSHIPS AND DUTIES

OCCUPIERS Adelaide Brighton Cement held not to be liable to Henry in the District Court - whether Adelaide Brighton Cement as an occupier failed to take reasonable care for the safety of persons entering upon its premises - scope and nature of duty owed by Adelaide Brighton Cement - whether Adelaide Brighton Cement owed a duty to supervise the manner in which scaffolding erected by Complete Scaffold - appeal dismissed - cross-appeal dismissed. NON-DELEGABLE DUTY OF CARE Whether the duty owed by Adelaide Brighton Cement to Henry was a non-delegable duty - consideration of factors relevant to identifying a non-delegable duty - whether activity performed by Complete Scaffold was inherently hazardous or activity of difficulty - relative position of Adelaide Brighton Cement and employees of Allied - appeal dismissed - cross-appeal dismissed.

• Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672;
• Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33;
• Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520;
• Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313;
• Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 177 ALR 585, considered.

INDUSTRIAL SAFETY HEALTH AND WELFARE - CONSTRUCTION SAFETY - DUTIES TO BE OBSERVED - SCAFFOLDING Breach of statutory duty - activities of Adelaide Brighton Cement stated to be subject to operation of Occupational Health Safety and Welfare Act - OHSW Act and associated Regulations conceded to give rise to cause of action in damages - consideration of obligations owed by deemed employers to employees under the OHSW Act and associated Regulations - obligations owed by Adelaide Brighton Cement as an occupier of land under the OHSW Act and associated Regulations - question of breach - appeal dismissed - cross-appeal dismissed.

• Le Cornu Furniture and Carpet Centre Pty Ltd v Hammill (1998) 70 SASR 414;
• Cox Constructions Pty Ltd v Dawes [1999] SASC 229; (1999) 73 SASR 557, considered.

CONTRACTS --- GENERAL CONTRACTUAL PRINCIPLES --- CONSTRUCTION AND INTERPRETATION OF CONTRACTS

Indemnity - contract signed by Adelaide Brighton Cement and Complete Scaffold three months after the accident covering a period that included the accident date - term of contract included an agreement by Complete Scaffold to indemnify Adelaide Brighton Cement for damages resulting from personal injury - interpretation of indemnity clause - appeal dismissed.

• Workers Rehabilitation and Compensation Act s54;
• Occupational, Health, Safety and Welfare Act, 1986 s3, s4(2), s19, s23, s23A;
• Wrongs Act s17C;
• Regulations 1987 r10(2), r10(6), r224;
• 1987 r4(1), r7, r8, r9, r10, referred to.

``employer'', ``scaffold'', ``industrial workplace''

Counsel: MR A BESANKO QC WITH HIM MR M BIRCHALL - Solicitors: THOMSON PLAYFORD

Counsel: MR D QUICK QC WITH HIM MR N SWAN - Solicitors: LAWSON DOWNS

Counsel: MR C KOURAKIS QC WITH HIM MS H MACK - Solicitors: DUNCAN BASHEER HANNON

Judgment No. [2001] SASC 199

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE LOWRIE)

COMPLETE SCAFFOLD SERVICES PTY LTD v ADELAIDE BRIGHTON CEMENT LTD AND HENRY

[2001] SASC 199

DOYLE CJ Mr Henry is a boilermaker employed by Allied Engineering Pty Ltd ("Allied"). In 1994 Allied entered into a contract with Adelaide Brighton Cement Ltd ("ABC") to carry out maintenance work for ABC at its premises. In connection with that maintenance work, ABC contracted with Complete Scaffold Services Pty Ltd ("Scaffolding") for Scaffolding to provide and to erect scaffolding at ABC's premises as might be required during the course of the maintenance work.

In September 1994 Mr Henry was working at ABC's premises, in the course of his employment with Allied, carrying out maintenance work for ABC. He had to carry out some work inside a large chute. He needed scaffolding inside the chute, to enable him to work inside the chute and to reach the upper part of the chute. He asked for scaffolding, and two planks were placed by others inside the chute, across a tapered section of the chute. The planks were resting on the sides of the chute. Mr Henry climbed into the chute and stood on the planks to do some work. The planks were unstable. Mr Henry fell and was injured.

He brought an action in the District Court claiming damages. He did not sue Allied, because s 54 of the Workers Rehabilitation and Compensation Act provides that in the circumstances in question no liability attached to Allied.

Mr Henry obtained judgment for damages to be assessed against Scaffolding. The Judge found that the planks were put inside the chute by employees of Scaffolding, and that the employees were careless because the planks were unstable and unsafe. I gather that it was never disputed that the planks were unsafe. The issue was who put them there, assuming the accident happened as described by Mr Henry. Mr Henry's claim against ABC was dismissed. The Judge found that ABC took all reasonable precautions for the safety of workers, bearing in mind that the work in question was being carried out by a specialist contractor. The Judge held that ABC was not in breach of any statutory requirements relating to safety.

Scaffolding now appeals against the finding that it is liable. It also appeals against the Judge's decision that, if it is liable, it is not entitled to contribution or indemnity from ABC. It claims that ABC was in breach of its obligations to Mr Henry. Mr Henry appeals against the dismissal of his claim against ABC. ABC argues that if it is liable to Mr Henry, or to contribute to the damages payable by Scaffolding, ABC is entitled to be indemnified by Scaffolding pursuant to a provision in the contract between ABC and Scaffolding.

Mr Henry's action was not instituted until September 1997, some three years after the accident. The action came to trial in the District Court in May 2000, almost six years after the accident. On several occasions the Judge remarked on the fact that memories of witnesses relating to some of the contested facts had faded with the passage of time. This is another depressing example of the adverse impact of the passage of time on the quality of testimony, and so on justice. It is regrettable that courts should be asked to decide disputes of fact so long after the event. In saying this I imply no criticism of anyone involved in this case, because I have no information as to the reasons for the delay.

A fair number of the Judge's findings were not contested on appeal. I will summarise what happened, relying on uncontested findings.

Once or twice a year ABC would shut down its plant for maintenance work to be carried out. Allied had carried out the maintenance work for some years. At the time of the accident Allied had a team of men at the site. So did Scaffolding. It had about 40 scaffolders at the site. Scaffolding worked regularly for ABC.

Mr Henry is an experienced boilermaker. He was working at ABC's plant in September 1994 on the maintenance work. He was working with another employee of Allied, Mr McCrone, who is also an experienced boilermaker.

On 28 September 1994 Mr Henry and Mr McCrone were working on a large chute. When the plant was in operation, pellets were discharged through this chute onto a conveyer belt below the chute. The gap between the conveyor belt and the base of the chute is about 0.5 metres. From the base of the chute to the top of the chute is between 3 metres and 4 metres. In appearance, the top of the chute is like a large square box, about 1.8 metres square. Below that part of the chute is a rectangular funnel, the sides of the funnel sloping inwards. Below that part of the chute, and immediately above the belt, the chute is in the shape of a narrow rectangular box. Access to the interior of the chute is gained through a hatch in the side of the top, boxlike section. To carry out work in the chute the hatch at the top is opened, a ladder is then put inside the chute (I assume resting on the conveyor belt), and the person would then climb through the hatch into the chute, down the ladder and stand on the conveyor belt. The worker who did this would have his legs in the narrow rectangular section, and the upper part of his body in the part that I described as a rectangular funnel with sloping sides. This is what Mr Henry did on the day in question.

ABC knew what work would be done by Allied. It knew this because the work to be done was the subject of detailed discussions between ABC and Allied. ABC had workers on site, including Mr Mudge, its on-site supervisor. ABC left it to Allied to determine how it would carry out the contract work. But ABC required the workers of contractors and sub-contractors to undergo a safety induction procedure, in the course of which safety procedures to be observed on site appear to have been thoroughly explained to workers. The Judge accepted that ABC took its safety obligations seriously. Workers were told that a breach of safety procedures would result in instant dismissal.

ABC operated a system of entry permits for confined spaces. This system applied to the chute. The Judge described the system as "a most efficient manner of securing the utmost safety of the site". In outline, the system involved ABC first of all confirming that a confined space could safely be entered. A permit would be issued for entry to the space on the day on which work was to be done in the space. That permit was issued by ABC. When the permit was issued, a card was issued in relation to each space to be entered. Allied staff (and any other persons entering the confined space) were required to record on that card the time of entry into and exit from the relevant space. The card was kept in a holder adjacent to the relevant space. I gather that the cards were collected or returned to ABC employees at the end of each day, and these cards were retained by ABC. If a worker entered a confined space there had to be an observer whose job was to record the entry and exit on the card, and to observe the worker for safety reasons. The observer was provided with a two-way radio.

The evidence was that Scaffolding employees were the only people on site permitted to erect scaffolding. ABC had no scaffolders. If an Allied worker wanted scaffolding erected, the required procedure was for the Allied worker to make the request to an Allied supervisor, who would then communicate the request to a Scaffolding supervisor. Scaffolders would then come and erect the scaffolding.

The evidence was that when scaffolding was erected it was not to be used unless a tag had been placed on the scaffolding indicating that it was safe to use.

The case at trial for Scaffolding was that Mr Henry's evidence was unreliable and should not be accepted in a number of respects. In particular it was suggested that the events could not have unfolded in the order described by Mr Henry and at the times given by him. There is, however, no challenge on appeal to a number of findings which set the framework within which the issues on appeal are to be considered. They are as follows.

Mr Henry and Mr McCrone were working on the chute. The work involved removing steel plates inside the chute so that they could be replaced. As I understood the submissions, Allied does not challenge the finding that at some stage before the accident either Messrs Henry or McCrone worked in the chute, standing on the conveyor belt, and the other worked outside. Removing the worn steel plates involved cutting holding bolts from the outside, so that the worker inside the chute could remove the steel plates.

A stage was reached at which Mr Henry and Mr McCrone were ready to remove plates inside the upper part of the chute. One of them, probably Mr Henry, asked someone for scaffolding to be put inside the chute to enable them to do this work. Mr Henry and Mr McCrone, the request having been made, went off and worked somewhere else. They returned to the chute. Two planks had now been placed inside the chute, across the funnel section of the chute. The ends of the planks were resting on the sloping sides of the chute. Neither Mr Henry nor Mr McCrone put the planks there. Mr Henry spoke to a man or men who appeared to have put the planks there. Mr Henry asked if they were secure. One of the men said "You can do a tap dance on it". Mr Henry climbed into the chute through the entry hatch, and stood on the planks. Mr McCrone remained outside. Mr Moore, the safety observer, was watching. A short time later Mr Henry fell down the chute. The fall was the result of him moving from the centre of the planks, causing one end of a plank or both planks to lift, and the plank or planks to become unstable. The fall happened at about 12.45 pm that day. That is confirmed by a contemporaneous first-aid report. Later that day, or perhaps the next day, some of Scaffolding's workers erected a safe platform inside the chute.

The Judge accepted the evidence of Mr Henry, Mr McCrone and Mr Moore as reliable. Scaffolding disputes the reliability of their evidence in relation to the sequence of events that day. Mr Besanko QC, counsel for Scaffolding, submits that their evidence is inconsistent with what is recorded in the cards which are part of the safe-entry system; inconsistent with other records about the work being done; inconsistent with the evidence of Mr Dean, a leading hand employed by Scaffolding, and inherently unlikely having regard to the course of events to be expected.

The Judge found that Mr Henry and Mr McCrone asked Mr Kidd, their supervisor, for scaffolding to be put inside the chute, and that Mr Kidd passed that request to a supervisor employed by Scaffolding. This finding is disputed, but bearing in mind that Mr Kidd did not remember receiving a request or passing it on (but could not deny that he did so), the dispute in this respect is as to the inference to be drawn from other evidence.

The Judge found that the men who put the scaffolding inside the chute were employed by Scaffolding. This is disputed. Mr Henry said that he recognised the men as scaffolders because they wore belts with distinctive equipment. Scaffolding disputes the reliability of this evidence. Mr Besanko points to the fact that there were other contractors on site who employed riggers. He submits that riggers could easily be confused with scaffolders. It was unlikely that a scaffolder would put planks in such an obviously unsafe position. He submits that there is no record in the card system of Scaffolding's workers entering the chute at the relevant time, and that if they had put the planks there, they must have entered the chute. He submits that the overwhelming likelihood is that someone other than Scaffolding's workers put the planks in place.

In considering these submissions it is important to remember that Mr Besanko did not challenge the finding that someone other than Mr Henry and Mr McCrone put two planks inside the chute, as a result of a request by one or other of them, and that Mr Henry fell after climbing into the chute and standing on the planks. Nor can it be denied that the planks were unsafe. Accordingly, the issue is whether the Judge erred in finding, on the balance of probabilities, that the planks were put there by workers employed by Scaffolding.

The first difficulty that Mr Besanko faces is that the Judge found Mr Henry and Mr McCrone to be credible witnesses. If other evidence that should be accepted shows that their evidence in relevant respects is unreliable, findings based on their reliability can be overturned on appeal. But the fact that the Judge found them to be credible has to be put onto the scales.

Another difficulty that Mr Besanko faces is that the Judge's finding about how the accident happened is not challenged and, realistically, could not be challenged. The Judge accepted the evidence of Mr Moore, the safety observer. He said he was an impressive witness. Mr Moore said that when he, Mr Henry and Mr McCrone came back to the chute, he saw the two planks in position inside the chute, and he was watching Mr Henry at the very second that he fell. It follows that someone other than Mr Henry and Mr McCrone put the planks inside the chute, as a result of a request by Mr Henry or Mr McCrone. Unlikely as it seems that a scaffolder employed by Scaffolding would do this, it seems equally unlikely that a scaffolder, or indeed a rigger, employed by someone else on the site did this.

The central issue on this aspect of the appeal is whether the Judge erred in finding, on the balance of probabilities, that the planks inside the chute were put there by Scaffolding workers. That finding really rests on the evidence of Mr Henry and Mr McCrone to the effect that the men to whom they spoke were scaffolders. The finding also rests on the likelihood that if scaffolding was to be put in place, the work would be done by Scaffolding workers.

There were, of course, other contractors on site, with workers there. There were various trades on the site, including riggers. But, as I understand it, it was common ground that the likelihood was that a request for scaffolding would be addressed to workers employed by Scaffolding.

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.

Mr Besanko submits that the Judge failed to address these issues, and therefore his finding that Mr Henry and Mr McCrone should be accepted cannot stand. Those points should have caused him to conclude that they were not reliable.

It is correct that the Judge did not address each of these points in turn. It would have been better if he had done so.

But, when all is said and done, the starting point is that Mr Henry fell from two planks that had been put inside the chute by someone other than Mr Henry and Mr McCrone. Someone put them there. It is likely to have been a worker employed by Scaffolding, if the expected procedures were followed. Mr Henry and Mr McCrone were credible witnesses. Of course, a credible witness is not necessarily reliable on every point, but the fact that they were credible is relevant. They said the men to whom they spoke were scaffolders. Mr Dean's evidence does not, in fact, challenge their ability to identify scaffolders. Indeed, it might be said to support them, because if Mr Dean could pick a scaffolder from a rigger, why could not Mr Henry and Mr McCrone, even though they were not scaffolders? As well, it is very likely that someone entered the chute to put the planks there. It was common ground that it was unlikely that the planks were dropped into place through the entry hatch in the chute. There is no record in the cards of anyone entering the chute at the right time to put the planks there. This suggests that there may have been an unrecorded entry into the chute. In other words, the card system might not be a completely reliable record. Scaffolding had several gangs on site. The upper part of the chute is on a level above the level from which one gains access to the lower part of the chute. If Mr Kidd was asked for scaffolding, and spoke to someone from another gang than Mr Dean's gang, a person from that gang might have entered the chute on the upper level without Mr Dean knowing. Nor is the sequence of events crucial. The crucial point is the evidence from Mr Henry and Mr McCrone that they asked Mr Kidd for scaffold, and that some scaffold was put there by men whom Mr Henry believed to be scaffolders. This is a very narrow point.

There is nothing improbable about the Judge's conclusions. They are not contradicted by the written records, which on any view, are not complete. The written records do not really affect the conclusion, but only affect in a general way the reliability of the evidence of Mr Henry and Mr McCrone.

I am not persuaded that the Judge's finding is wrong. I accept that the documentary evidence suggests quite strongly that the evidence of Mr Henry and Mr McCrone about the sequence of the work is not completely reliable, including some evidence on which the Judge acted. But, as I have said, the critical evidence is their evidence that they asked for scaffolding, and some was put in place by workers who appeared to be scaffolders. Putting things negatively, the matters pointed to by Mr Besanko do not render this evidence unlikely, even if one accepts that the sequence of events is probably not as described by Mr Henry and Mr McCrone. Putting things affirmatively, the finding that someone other than Mr Henry put the planks in the chute, and that an entry into the chute for this purpose was not recorded, is really beyond challenge. The most likely person to have done this is a scaffolder. If it was a scaffolder, it was likely to be a Scaffolding worker. There is no reason why a rigger would undertake this task. If the Judge was satisfied that Mr McCrone and Mr Henry were generally credible, I see no reason why he could not have accepted their evidence about the crucial events.

In my opinion the challenge to the Judge's finding fails, and it follows that the Judge rightly decided that Scaffolding was liable.

The Judge accepted Mr Henry's evidence that one of the men who put the planks in the chute said that they were completely safe. There is no reason to reject that finding. Although, in retrospect, it seems to me an unsafe arrangement, it obviously did not seem unsafe to the man or men who spoke to Mr Henry or to Mr McCrone. Under the circumstances, in my opinion the Judge's conclusion that Mr Henry was not guilty of contributory negligence is correct. Under the circumstances the absence of a "scaff tag" is not important.

The Judge found ABC not liable to Mr Henry. He found that ABC operated a sound and reliable system for controlling entry to confined spaces. In any event, it seems to me that the accident that occurred was not something that the system operated by ABC was intended to or could prevent. Mr Henry fell because of careless placing of scaffolding, which is something that could have been prevented only by ensuring that scaffolders did not erect such scaffolding, or by on the spot supervision directed to the manner in which the scaffolders went about their work. The Judge found that Allied and Scaffolding were competent, specialist contractors. He found that ABC provided an adequate safety induction course for workers at the site. He found that ABC was entitled to leave it to Allied and Scaffolding to supervise the aspects of the job that led to Mr Henry's injury - the method of working inside the chute (which was the responsibility of Allied) and the placement of scaffold (which was the responsibility of Scaffolding). The Judge referred to s 23 of the Occupational Health, Safety and Welfare Act 1986 ("the OHSW Act"), dealing with the duty of the occupier of a workplace. He found that the relevant workplace was the chute, and that Allied was the occupier of the chute, not ABC. He found in any event that if s 23 applied to ABC, it had satisfied the statutory requirement.

On appeal, Mr Besanko and Mr Kourakis QC, counsel for Mr Henry, made common cause. They argue that ABC failed to take reasonable care for the safety of workers on the site; alternatively, that it was in breach of a non-delegable duty to take reasonable care for workers on the site, breached by the failure of Scaffolding to take reasonable care; they submit that for the purposes of s 23 of the OHSW Act ABC was the occupier, that it failed to discharge its statutory obligation and that that statutory obligation gave rise to a private cause of action; they rely on other provisions of the OHSW Act and of regulations made under that Act as giving rise to a private cause of action by Mr Henry, and submit that ABC was in breach of those other provisions as well.

I approach these issues on the basis that ABC was the occupier of the premises generally, putting aside for the moment the question of who was the occupier of the chute. In my opinion the Judge was right to conclude that ABC took reasonable care to ensure that workers on the site were informed about safety issues generally, in relation to safety at its premises in particular and the Judge was right to conclude that ABC took reasonable care to control entry into confined spaces. There can be no doubt that ABC employed competent contractors to carry out the maintenance work and to provide scaffold. I proceed on the basis that Mr Henry was injured because of the failure by Scaffolding, a specialist contractor, to carry out its work carefully and safely.

As an occupier of the premises in question, ABC owed a duty to take reasonable care for the safety of persons entering the premises, including persons like Mr Henry: Wrongs Act (SA) s 17C. That duty would include a duty to take reasonable care to protect a person like Mr Henry from harm resulting from the activities of contractors working on ABC's premises. That duty in turn could involve a duty to warn an entrant to the premises about a source of harm, or a duty to keep an entrant away from an area in which contractors are working. Subject to that, the main focus of the duty of an occupier relates to the state of the premises, rather than to activities taking place on the premises. The duty of ABC as occupier of the premises would not usually extend to a duty to protect a person on the premises, not being an employee of ABC but an employee of a contractor working on the premises, from harm that resulted from the carelessness of the worker's own employer, or from harm that resulted from the manner in which another contractor carried out its work. Once again, even that proposition has to be qualified. As occupier of the premises ABC had a duty to consider safety issues arising from the presence of Allied and Scaffolding on ABC's premises, and from the interaction between those two firms as contractors separately engaged for the one task.

In my view, to the extent that Mr Henry makes a claim against ABC as occupier of the premises, that claim is answered by the conclusion that as occupier ABC was not under a duty to supervise the manner in which workers employed by Scaffolding went about the task of erecting scaffolding. And it was the manner in which they did that that led to Mr Henry's injury. Putting it a little differently, ABC as occupier was under no duty to protect Mr Henry against the risk of harm as a result of workers employed by Scaffolding erecting a scaffold that was not safe. In my opinion, this aspect of the claim by Mr Henry against ABC fails.

Mr Henry was injured as a result of the negligence of Scaffolding, which is vicariously liable for the negligence of one or more of its workers. Ordinarily, ABC would not be liable for the negligence of an independent contractor such as Scaffolding. This assumes, of course, that the breach of duty by Scaffolding did not constitute a breach of ABC's duty as occupier of the premises.

In some cases courts have treated a duty of care as personal or non-delegable, meaning that the duty of care is not discharged by employing a qualified and competent independent contractor to perform the task as a result of which, or in the course of which, the duty of care arises. In such a case the breach of the duty of care by the act or omission of the independent contractor will be a breach of the duty owed by the person who retained the independent contractor. The matter is most simply expressed by saying that in such cases the relevant duty is a duty to ensure that reasonable care is taken.

Such a duty has been imposed on employers in relation to the duty to provide a safe system of work, a safe place of work and adequate plant and equipment: see Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 680 Mason J. Such a duty has also been imposed on occasions on an occupier of premises: see Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 and Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313.

The High Court has not yet identified a single criterion by which one can determine when such a duty will be imposed, and in particular when such a duty will be imposed on an occupier of premises in that capacity. The cases on the topic indicate that it is unlikely that a single criterion will ever emerge. Calin dealt with a cinema patron and the occupier of the cinema. The patron entered the premises under a contract involving a payment by the patron. The relationship between employer and employee has long been recognised as a special relationship, and there is no suggestion in the case law that the relationship between occupier and entrant into premises is, as such, in a like category. A consideration of the judgments of the various members of the High Court in Burnie and Northern Sand Blasting indicates that a circumstance favouring the imposition of a non-delegable duty of care is that the employer of a contractor (the issue will mainly arise when the act of negligence is the act of an independent contractor) requires the performance of a task or undertaking, or performance of a task in a manner, that carries with it an inherent and high risk of harm to others. Another significant factor will be an undertaking of a particular responsibility for the safety of another person, or a special vulnerability on the part of that person. But, beyond these broad guidelines, the effect of recent High Court decisions is that one must consider all relevant factors. In my opinion one can at least say that putting aside relationships in which courts have recognised a non-delegable duty of care usually arises, the performance of a task that does not carry an inherent risk of damage to person or property may be discharged by engaging a competent independent contractor: see Northern Sand Blasting at 333 Brennan CJ.

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.

In my opinion, the matters to which I have referred all suggest quite strongly that this is not a case in which the duty of care that ABC owed to Mr Henry was one which required it to ensure that reasonable care was taken by Scaffolding when actually erecting scaffold for the employees of Allied while working on the premises on ABC. Accordingly, I do not accept the submission that ABC is liable on the basis that it owed a duty to ensure that reasonable care was taken in the erecting of scaffolding.

Mr Besanko and Mr Kourakis QC for Mr Henry, submit that certain provisions of the OHSW Act apply to ABC, and impose on it a duty for the breach of which Mr Henry has a cause of action against ABC in damages.

No-one argues that if the OHSW Act applies and if ABC was in breach of a statutory obligation, Mr Henry has no cause of action against ABC for damages. Accordingly, I proceed on the basis that he does have a cause of action, even though I have some reservations about the notion that legislation of this kind should be treated, almost as a matter of course, as giving rise to a cause of action sounding in damages: see the observations of Gleeson CJ, Gummow and Hayne JJ in Slivak v Lurgi (Aust) Pty Ltd (2001) 177 ALR 585, [2001] HCA 6 at [27]- [29]. No doubt the attitude of the parties was determined by the fact that in two previous decisions this Court has treated the OHSW Act and Regulations made under it as giving rise to a cause of action in damages for failure to comply with the Act or with the Regulations, the cause of action being available against an occupier of premises: Le Cornu Furniture and Carpet Centre Pty Ltd v Hammill (1998) 70 SASR 414 and Cox Constructions Pty Ltd v Dawes [1999] SASC 229; (1999) 73 SASR 557.

The OHSW Act is, as its title indicates, an Act dealing with safety in the workplace. Its overall object is indicated by the first of the statutory "chief objects" stated in s 3 which is:

"(a) to secure the health, safety and welfare of persons at work; ... "

Mr Henry and Allied both assert a breach by ABC of an obligation imposed by s 19(1), which provides as follows:

"19. (1) An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular -

(a) shall provide and maintain so far as is reasonably practicable -

(iii) plant and substances in a safe condition; and

(b) shall provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and

(c) shall provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health."

They also assert a breach of s 23, which provides as follows:

"23. The occupier of a workplace shall ensure so far as is reasonably practicable -

(a) that the workplace is maintained in a safe condition; and

(b) that the means of access to and egress from the workplace are safe."

Finally, they rely on s 23A(2) which provides as follows:

"23A. (2) The owner of a building that comprises or includes a workplace must -

(a) ensure so far as is reasonably practicable that the building, and any fixtures or fittings within the building that are under the control of the owner, are in a condition that allows people who might work in, on or about the workplace to be safe from injury and risks to health; and

(b) ensure that the building complies in all respects with prescribed requirements (if any) applicable to it."

It will be noted that s 19(1) applies to an employer. ABC is not an employer of Mr Henry, for the purposes of the definition of that term in s 4(1) of the OHSW Act, but reliance is placed on s 4(2) which provides as follows:

"For the purposes of this Act, where a person ('the contractor') is engaged to perform work for another person ('the principal') in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, shall be deemed to be employed by the principal but the principal's duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor."

Finally, relevantly to s 23, "occupier" is defined as follows:

"'occupier' in relation to a place means a person who has the management or control of the place".

I mention also that "plant" is defined in a way which would include scaffolding.

The first submission on this aspect of the matter is that ABC is to be treated as the employer of Mr Henry, by virtue of s 4(2) of the OHSW Act. On that basis the submission is that ABC failed to discharge the obligation imposed on it by s 19(1).

We were informed by counsel that there are no cases which throw any light on the scope of s 4(2). It is a provision which I find puzzling. The submission is simply that Allied was engaged to perform work for ABC "in the course of a trade or business carried on by" ABC and accordingly as Mr Henry was a person employed by Allied to carry out the work, he is deemed to be employed by ABC.

The maintenance work carried by Allied was done to facilitate the conduct by ABC of the trade or business that it carried on at its plant. ABC needed to do the work to carry on its trade or business. Carrying out maintenance work on its premises is something done by ABC as part of its trade or business, and in a sense in the course of that trade or business. But if that suffices for the purposes of s 4(2), then whenever a person engaged in trade or business employs a contractor to do work that advances or facilitates that trade or business, the principal will be a deemed employer of any worker employed or engaged by the contractor. On this approach a firm that contracts with a contractor to clean its offices, will be a deemed employer of the cleaners. A business that retains an accountant for accounting advice, or a solicitor for legal advice, will be a deemed employer of the accountants and solicitors who work in those firms. A shop owner who contracts with an electrician to install an electrical fitting in the shop will be a deemed employer of any electrician employed by the contracting electrician. I give these examples merely to illustrate the wide reach of the suggested meaning of the provision. Of course, one must not overlook the limitation found in the latter part of s 4(2), and the need to consider the effect of the operative provisions of the OHSW Act. Nevertheless, allowing for all that, the suggested scope is so wide as to make me think that such a meaning could not have been intended.

But, in the end, I have been unable to identify a more limited meaning that fits with the words of the provision. It is tempting to think that the expression "in the course of a trade or business" is to be read in a limited fashion.

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.

The statutory expression is sufficiently imprecise to provide no firm criterion for a more limited operation to be given to the provision. Accordingly, with some hesitation and with some unease about the implications of the decision, I accept the submission that Mr Henry is to be deemed for the purposes of the OHSW Act to have been employed by ABC.

Nevertheless, in my opinion ABC was not in breach of an obligation owed by it to Mr Henry under s 19(1) of the OHSW Act. The Judge's finding involves the conclusion that Mr Henry was exposed to a risk of injury, and a risk that should not have been permitted to occur. But it has to be borne in mind that as a deemed employer ABC has limited duties under the Act. Mr Henry's injury resulted from a casual act of negligence by a scaffolder who put two planks in place, without making adequate enquiry as to how they would be used, and without considering the risk of the planks shifting. Mr Henry was injured as a result of carelessness in the course of a matter over which ABC had no control.

"Control" in s 4(2) of the OHSW Act should be read as referring to actual control, that is to things which the deemed employer is managing or organising. Unless s 4(2) is limited in this way, its reach would be very great. Control over this task rested with Scaffolding, as the expert contractor hired to perform the work. Nor was the placement of scaffolding something over which ABC would have had control "but for some agreement to the contrary between [ABC] and [Allied]". To the extent that ABC surrendered control over the erection of scaffolding, it did so pursuant to an agreement between ABC and Scaffolding. The same conclusion can be reached through the provisions of s 19(1) itself. On the evidence, ABC did "ensure so far as is reasonably practicable" that Mr Henry was safe. The arrangements that it made, and the precautions that it took before work began, were all that it was reasonably practicable for ABC to do, short of itself supervising Allied and Scaffolding in all the details of the performance of their work. I cannot think of any precaution that ABC should have taken, which one would regard as something that was reasonably practical, that is likely to have prevented the accident occurring. I accept that the duty imposed by s 19(1) is a higher duty than is imposed at common law, but it is not an absolute duty.

In what I have said so far I proceed on the basis that as a deemed employer ABC is not to be treated as responsible, as of course, for a failure by Scaffolding. One must consider is what it was reasonably practicable for ABC to do as a deemed employer of Mr Henry who was on site as a worker employed by a contractor, the contractor being hired to carry out specialised work for ABC. In short, in my opinion, it was not reasonably practicable for ABC to exercise supervision at the level that would have been required to prevent this accident occurring.

I turn to s 23. I accept that ABC was an occupier of the workplace. I do not accept the submission that Allied was in exclusive occupation of the chute, and that on that basis s 23 can be put to one side. It seems to me artificial to focus on a particular item inside the workplace, in that fashion. In any event, ABC continued to exercise a level of control over entry into the chute. The evidence supports a conclusion that ABC ensured so far as was reasonably practicable that the workplace was maintained in a safe condition. I doubt whether that part of s 23 applies at all to a passing incident such as occurred here, but in any event, applying the same approach as I took to s 19, I am satisfied that ABC discharged this obligation. I am also satisfied that the means of access to and egress from the workplace were safe. I do not consider that this provision applies to the temporary placement of two planks inside the chute.

By a similar process of reasoning, I am satisfied that ABC was not in breach of its obligations under s 23A(2).

For those reasons, which differ from those of the Judge, I would hold that ABC was not in breach of its obligations under the OHSW Act.

The Occupational Health, Safety and Welfare (Construction Safety) Regulations 1987 ("the Construction Safety Regulations") are made under the OHSW Act.

It was conceded by Mr Quick that these regulations applied to ABC's premises. It was not disputed that a breach by ABC of a requirement of the Regulations gave Mr Henry a cause of action in damages. Once again, I proceed on the basis of that concession.

Mr Besanko and Mr Kourakis pointed to certain regulations that specify standards to be observed. The scheme of the Construction Safety Regulations is that Reg 4(4) provides that they "apply in relation to all construction work within the State", and then very detailed regulations specify standards of conduct to be observed in construction work. Sometimes the Construction Safety Regulations identify the person on whom the relevant obligation falls, but the regulations relied on in this case simply specify a standard to be observed. It is quite clear that the relevant scaffolding did not comply with all of the relevant regulations. For example, it did not comply with Reg 10(2) which provides as follows:

(a) must be securely erected to form a rigid structure that is stable under all conditions of use;

(b) must at all times be maintained in good and safe order and condition."

In my opinion the scaffolding was also in breach of Reg 10(3) and Reg 10(6). Counsel relied on certain other regulations, which I will not mention, because in my opinion they do not apply.

The real issue under the Construction Safety Regulations is whether ABC is responsible for the breach. Reg 224 provides as follows:

"224. (1) Any person who contravenes or fails to observe a provision or requirement of these regulations is liable to a Division 6 fine.

(2) Without limiting the generality of subregulation (1), if any explosive powered tool, gear, hoisting appliance, power-driven equipment, scaffolding, ladder, shoring, electrical equipment, device or other thing used for or in connection with any construction work (in this subregulation called 'a prescribed manner') -

(a) does not comply with a regulation that relates to it;

(b) is not set up, maintained or used in accordance with a regulation that relates to it,

then the following persons are all liable to a Division 6 fine -

(c) the employer of any employee who is involved in or in connection with the work;

(d) the owner or lessee of the prescribed matter;

(e) the person in charge or having control of the prescribed matter;

(f) the person who sets up the prescribed matter;

(g) any person who uses the prescribed matter."

It was common ground, I think, that if ABC was not caught by Reg 224(2), it was not caught at all. Regulation 224(1) probably refers to those regulations that identify the person obliged to ensure compliance with the regulations, and perhaps to some other situations in which an unstated person must be responsible for ensuring observance of the regulations. But, in my opinion, there would be no basis to hold ABC liable for a breach of the regulations other than under Reg 224(2).

Because there is no definition of "employer" in the Construction Safety Regulations, the definition in the OHSW Act is to be applied, unless the contrary intention appears: s 14, Acts Interpretation Act (SA) 1915. It is not easy to apply the concept of a deemed employee to Reg 224, but I will assume that no intention to exclude that concept appears. It follows that for the purposes of the Construction Safety Regulations, "employer" includes a person deemed to be an employer by s 4(2) of OHSW Act. Accordingly, Mr Henry and the Scaffolding workers who put the scaffolding in place are deemed to be employed by ABC.

But when the Construction Safety Regulations in Reg 224(2)(c) apply the statutory concept, in relation either to Mr Henry or to the Scaffolding workers, the regulations must be taken to apply that statutory concept with the limitation built into it by s 4(2). That is, the deemed employer's duties in relation to a deemed employee extend only to matters over which it has control, or would have control, but for some agreement to the contrary with the relevant contractor. There is no indication that the regulations intend to remove the statutory limitation. I would not too readily read them as doing so, because if the limitation is removed, a principal's duties to a deemed employee would extend to matters over which it had no control.

I have already concluded that the duties of ABC, in relation to Mr Henry as a deemed employee, did not extend to supervising the placing of the planks in question by employees of Scaffolding. In any event, Mr Henry was not, for the purposes of Reg 224(2)(c), an employee "who is involved in or in connection with the work". That expression must, in context, refer to the work of constructing the scaffolding. Thus, the deemed employment of Mr Henry by ABC does not render ABC liable for a breach of the Construction Safety Regulations.

But for the purposes of Reg 224(2)(c), the issue may be whether ABC is to be treated as a deemed employer of the Scaffolding workers, and so liable for their breach of Reg 10. The Scaffolding workers are deemed employees who were involved in the work of erecting the scaffolding. I am not at all satisfied that s 4(2) of the OHSW Act is intended to impose vicarious liability on a deemed employer in respect of a deemed employee. Rather, its purpose appears to be to create a duty (as to health, safety and welfare) owed to a deemed employee. This conclusion is suggested by reference to "duties under this Act" in s 4(2). But even if the provision does give rise to vicarious liability for the default of a deemed employee, presumably that liability is only in relation to "matters over which [ABC] has control or would have control but for some agreement to the contrary between [ABC] and [Scaffolding]". In my opinion the placement of scaffolding was not something over which ABC had control. ABC was not carrying out the work, or supervising it. Nor is the erection of scaffolding something over which ABC would have control but for some agreement with Scaffolding to the contrary. The statutory language suggests that reference is intended to an activity in which the principal (ABC) is involved and could control, but control over which the principal has placed in someone else. That is not the present situation. ABC was not involved in the erection of scaffolding, and, as I understand things, would not have been involved in the ordinary course of things. Scaffolding can be erected only by a competent scaffolder: see Reg 10(1). The concept here is not a precise one, but perhaps an illustration will help. In the ordinary sense, I do not surrender control over filling my teeth by hiring a dentist to do so. I do not read s 4(2) as extending to matters which ordinarily require the services of a specialist contractor.

For those reasons, I consider that ABC is not liable as a deemed employer of Scaffolding's workers by virtue of Reg 224(2)(c).

It might have been within the wide power to make regulations to impose liability on ABC, as an occupier of the premises, or merely as someone for whose benefit work was done, for a breach of the regulations. But the regulations in this respect have not attempted to go beyond an employer and a person who is a deemed employer, and to the extent that the regulation has picked up deemed employers, there is no indication of an intention to remove the limitation on liability that flows from the concept of a deemed employer.

I turn to Reg 224(2)(d) of the Construction Safety Regulations. Treating the "prescribed matter" as the scaffolding itself, ABC is not the owner or the lessee. I reject the suggestion that because the scaffolding was resting on the sides of the chute, the chute became part of the scaffolding and ABC is liable as owner of the chute. I regard that reasoning as too artificial. Nor, in my opinion, was ABC the person "in charge or having control of the prescribed matter" for the purposes of Reg 224(2)(e). That person was Scaffolding.

For those reasons my conclusion is that ABC was not in breach of the Construction Safety Regulations, and a claim against it on that basis must fail.

The Occupational Health, Safety and Welfare (Industrial Safety) Regulations 1987 ("the Industrial Safety Regulations") are also made under the OHSW Act. It is not disputed that if the Industrial Safety Regulations apply, and ABC was in breach of its obligations, Mr Henry has a cause of action under these regulations.

Mr Quick submits that these regulations do not apply at all. By Reg 7 and Reg 8 the Industrial Safety Regulations apply "to any work carried on in any industrial workplace", and impose obligations on the occupier. "Industrial workplace" is defined as follows in Reg 4(1):

(a) any place where the occupier employs one or more persons in any activity for or incidental to -

(i) the making of any article, or part of any article ..."

Mr Quick submits that while ABC's premises were a place of the kind referred to, they were not, at the time of the accident, an "industrial workplace" because at that time ABC did not employ one or more persons at those premises in a relevant activity. The submission is that the relevant part of the premises was shut down for maintenance purposes, and ABC was not in the process of making an article nor, at that time, were persons there present who were employed to make a relevant article. I do not accept this submission. The definition is in a common form, and is apt to identify premises by reference to the fact that they are usually or periodically used in a certain way. Whatever may be the case when use is intermittent or periodical only, I consider that the premises remained an industrial workplace at night when all employees had gone home, and at other times when employees were not on the premises. In any event, ABC staff were on the premises, although not perhaps in the relevant part of the premises. In my opinion it is unduly artificial to suggest that, on the day in question, parts of the premises were an "industrial workplace" and parts were not.

I am equally satisfied that ABC was, at the relevant time, the occupier of the workplace. I do not accept that Allied can be treated as the exclusive occupier of the chute.

Allied and Mr Henry rely again on certain provisions of the Industrial Safety Regulations. They rely on the following:

"9. (1) The occupier of an industrial workplace must provide and maintain clearly defined and continuous means of access to the workplace -

(a) to enable persons to move conveniently and safely throughout the workplace in the performance of their normal duties;

(b) to afford safe and rapid egress from the workplace in an emergency;

(c) to give safe access for the servicing and maintenance of plant, machinery and buildings.

"10. The occupier of an industrial workplace must ensure -

(a) that all buildings and other structures forming part of, or directly connected with, the workplace are kept in good and safe condition;

(b) that all defects that might cause danger to the life or health of any person at work or other persons in or about the workplace are rectified immediately;

(d) that all necessary steps are taken to ensure that any persons who are working on the repair or maintenance of buildings or structures are protected from any moving machinery that is near any place where they work or pass."

In my opinion ABC was not in breach of the requirements of Reg 9(1). I consider that this regulation does not apply to a temporary expedient, such as the two planks, placed there to enable a particular task to be carried out. There is no basis for a conclusion that safe access was not provided to the chute for the purposes of maintenance: cf Reg 9(1)(c). The issue that arose was not one of access, but of how the maintenance work was carried out. Nor do I consider that ABC was in breach of Reg 10. Once again, in my opinion, that regulation does not apply to a temporary arrangement of the type under consideration. The planks were not a building or structure, and I would not regard the manner in which they were erected as, in context, a "defect". In my opinion Reg 10(d) has no application to the present case.

Taking these regulations as a group, in my opinion they do not apply to the act of putting the planks in position.

For those reasons, I conclude that ABC was not in breach of the Industrial Safety Regulations.

The regulations, and in some respects the OHSW Act, are sufficiently unclear for me to acknowledge there is some force in the argument that ABC is in breach of the Act or the regulations, and liable to Mr Henry. Accordingly, it is desirable to consider ABC's claim that it is, in any event, entitled to be indemnified by Scaffolding.

Unfortunately, the Judge made no findings relating to the contract between ABC and Scaffolding. The Judge said, having decided that ABC was not in breach of a duty, that he need not concern himself with the contract. It will usually be preferable if a trial Judge at least makes findings of fact relevant to issues that will arise if some part of the Judge's findings is reversed on appeal.

ABC claims an indemnity from Scaffolding, in respect of any liability that it might have, pursuant to a written contract between ABC and Scaffolding. That contract was not signed until about 6 December 1994, some three months after Mr Henry was injured.

Mr Cosgrove, the Managing Director of Scaffolding, gave evidence. He said that Scaffolding carries out work for ABC "every working day of the year". He said that Scaffolding was "permanently on site". He gave no evidence about the arrangements under which the relevant work was done before the contract was signed, nor does his evidence offer any explanation as to why the contract was not signed until December 1994. It is clear from his evidence that the work was part of an annual or twice yearly shut down. The impression I get is that the work was done according to some routine arrangement that had been established between ABC and Scaffolding. But he agreed in cross-examination that he had signed the contract "to record the terms pursuant to which you were on site for that twelve month period of that contract". He also made the point that this was the first time he had signed a contract, and he said that he did not think that he had signed one since then. That is as far as the evidence goes.

The contract records that ABC has agreed to engage Scaffolding to carry out work as detailed in the Schedule. The work is described in the Schedule as "Work as nominated by" ABC, including labour hire and equipment hire. Clause 5 of the contract provides that it commences on the "Commencement Date" and continues until the "Termination date". These terms are defined respectively in the schedule as 1 July 1994 and 30 June 1995. It is clear from the contract that it is intended to govern the provision of services for the twelve months specified.

Clause 8.1 of the contract provides as follows:

"The Contractor will indemnify the Company for any liability loss or claim arising under any statute or at common law in respect of:

8.2.2 bodily injury to or death of any person; where such loss, damage, injury or death arises out of or as a consequence of the performance of this Agreement. This indemnity will not be defeated or reduced by reason of any negligence, omission or default by the Company."

On the face of it, the claim by Mr Henry falls within Clause 8.1. It is a claim against ABC for bodily injury to a person, the injury arising out of the performance of the agreement. It so arises because Mr Henry's claim is based on the manner in which Scaffolding performed its work.

Mr Besanko submits that this clause should be read as operating prospectively only, and as having no application to events which occurred before the agreement was signed.

I do not accept that submission. Reading the contract as a whole, it is quite clear that it is intended to govern the provision of services by Scaffolding for a twelve month period. Clause 8.1, on its face, is capable of applying to events occurring within that twelve month period, whether they occur before or after the contract is signed. There is nothing artificial about this. It is common for building contracts and engineering contracts to be entered into after the contract works have begun, and on the basis that, once entered into, the contract is to govern relationships between the parties in respect of work already to be done and work to be done. The clause itself is in a common form, and a person entering into such a contract in the position of Scaffolding would not be at all surprised to find such a clause in the contract, and to find that it applied to events that had already occurred.

For those reasons I accept the submission that ABC is entitled to be indemnified by Scaffolding in respect of any liability on the part of ABC to Mr Henry, but as ABC is not liable to Mr Henry, the matter can be left there.

I would dismiss the appeal by Complete Scaffold Services Pty Ltd against the judgment entered for Mr Henry against it. I would dismiss its appeal against the failure of the District Court to order that Adelaide Brighton Cement Ltd indemnify Complete Scaffold Services Pty Ltd, or contribute to its liability. I would dismiss the appeal by Mr Henry against the judgment dismissing his claim against Adelaide Brighton Cement Ltd.

WILLIAMS J I agree with the orders proposed by the Chief Justice for the reasons which he has given.

MARTIN J I agree with the orders proposed by the Chief Justice for the reasons which he has given.