LIPMAN PTY LTD v ROBERT MCGREGOR & ORS
Judgment
1 SHELLER JA: I agree with Gzell J.
2 SANTOW JA: I agree with Gzell J.
3 GZELL J: The appellant was the head contractor for a multi-storey residential unit development. The first respondent was injured on the building site. He was an employee of the second respondent which had subcontracted to provide scaffolding works. The third respondent was the second respondent's workers compensation insurer.
4 The second respondent took no part in the proceedings before Patten DCJ and took no part in the appeal. His Honour found the appellant liable in tort for the first respondent's injuries and found the second respondent had not breached its duty of care to its employee. His Honour also rejected a claim by the appellant against the second respondent under an indemnity clause in the subcontract. In consequence, the appellant also failed against the third respondent.
5 The first respondent worked under the supervision of Mr Knight, another employee of the second respondent. They were directed by the appellant to raise internal scaffolding in one of the apartments. Having transported scaffolding parts to the floor in question, they began to assemble the scaffold from the floor up. The first respondent worked on the scaffold accepting parts handed to him by Mr Knight below. As each stage was completed, a ladder was fixed to it from the stage below so that workmen could ascend and descend the scaffold.
6 The apartment in question was described as a two-storey loft apartment. There was an internal staircase to a second level. To tie off the scaffold at its final level, Mr Knight ascended the staircase. When he and the first respondent had completed this task, they began to descend the staircase. It collapsed and the first respondent was injured.
7 The staircases for each apartment were stored on lower floors before installation. In order to transport them to higher floors, they had to be cut in halves. Prior to installation, the two sections were joined by gang nails or fish plates. These were metal plates with a series of spikes that could be driven into the timber stringers. This was a temporary form of fastening. After initial installation with the temporary fastening, bracing was installed to secure the two sections. Only the temporary form of fastening had been effected when the staircase collapsed. It was not in issue that, in this form, the staircase was unsafe.
8 The standard procedure was to erect three staircases with temporary fastening before returning to the first to install the braces. The standard instruction to the appellant's employees was to affix red and white safety tape from the bottom hand rail post to the wall at the completion of the first stage of installation and until the staircase had been securely fastened by the subsequent installation of bracing.
9 His Honour accepted the evidence of the first respondent and Mr Knight that there was no safety tape on the staircase. Both said that had there been, they would not have used the staircase.
10 Mr Barry, the safety foreman of the appellant, gave evidence of his instructions for the use of safety tape. He came upon the scene shortly after the accident. He did not recall seeing any safety tape within the area of the broken staircase. Mr Warren was a site foreman of the appellant. When he arrived on the scene, he said he had an impression of the presence of safety tape but he could not remember whether it was attached to anything or wrapped around any piece of timber. Mr Dagger was employed by the appellant as a leading hand carpenter. He installed the staircase and said he wrapped safety tape around the hand rail post at the bottom of the staircase and used duct tape to affix it to the wall. When he came upon the scene of the accident, he said he did not recall seeing any tape.
11 As his Honour observed, Mr Dagger was mistaken in several respects. He said that he began to install the staircase about midday on the day of the accident. The first respondent and Mr Knight commenced work at 7 am and the accident occurred about 11 am. Mr Dagger said that when he commenced constructing the staircase, Mr Knight was carrying out scaffolding construction some 30 to 40 metres away on the other side of the building.
12 His Honour rejected the evidence of Mr Warren and Mr Dagger as unreliable and concluded that, for whatever reason, there was an omission by the employees of the appellant to ensure that safety tape was in place.
13 Mr Carmody, an inspector of the WorkCover Authority, made a report in which he said that carpenters, in the process of installing the staircase, taped off access to it with the intention of returning to install fish plates and, prior to their return, someone had removed the safety tape.
14 His Honour did not refer to this evidence in his reasons for judgment. The appellant submitted that he should have regarded it as a contemporaneous independent record of events and concluded that safety tape was present at the time of the accident.
15 The report did not identify the sources of information that led Mr Carmody to his conclusions. None of the witnesses before the Court gave Mr Camody the information. Its admission into evidence was opposed. In admitting it, his Honour noted:
"It's probably admissible as a business record isn't it, as an accident report. Its probative value is fairly limited in respect of unattributed statements I would think."
16 The report was hardly contemporaneous having been written one month after the accident. Mr Barry took some photographs the day after the accident. No explanation for their non-tender was forthcoming.
17 A Judge may fall into error if significant documentary evidence is not considered in the reasons for judgment (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306). That is not the case in the instant circumstances, however. His Honour's appraisal of the weight to be given to Mr Carmody's report could hardly give it significance. The failure to refer to some of the evidence does not, of itself, indicate that a Judge has failed to discharge his or her duty (Mifsud v Campbell (1991) 21 NSWLR 725 at 728).
18 In the absence of any evidence of the basis for Mr Carmody's conclusions, his Honour was entitled to reject that documentary evidence and prefer the first hand evidence before him. His failure to mention it in his reasons for judgment did not put him in error. This is not a case of ignoring incontrovertible facts or uncontested testimony to the contrary of his Honour's conclusion. Nor is his conclusion glaringly improbable or contrary to compelling inferences (Fox v Percy (2003) 77 ALJR 989 at 995).
19 In my view, his Honour was entitled to conclude that no warning tape had been placed on the staircase and, in consequence, the appellant was liable to the first respondent in tort.
20 It was next submitted that the second respondent, as employer of the first respondent, should bear some liability for the injury and a figure of 25% was suggested. It was submitted that Mr Knight should not have assumed that the staircase was safe and should have asked Mr Warren whether it was safe to use it. It was submitted that even in the absence of safety tape, commonsense should have suggested to the first respondent and Mr Knight that the staircase might not be safe.
21 In my view, the evidence upon which reliance was placed for this latter proposition did not go so far. In cross examination of Mr Warren, the following exchange took place:
"Q: Would you have been relying only on the red and white tape as being a sufficient warning in itself that tradesmen such as Mr Knight and Mr McGregor should not use the staircase?
A: Red and white tape and also commonsense."