Mambare Pty Ltd trading as Valley Homes v Rebecca Irene Bell in her capacity... [2006] NSWCA 332 | Case summary

27 NOVEMBER 2006 MAMBARE PTY LTD TRADING AS VALLEY HOMES v REBECCA IRENE BELL IN HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF THE LATE SIMON JAMES BELL & ANOR Judgment 1 HANDLEY JA: This appeal arises out of an accident on a building site near Pokolbin on 22 May 2001. The plaintiff was employed by A Quality Bricklaying Pty Ltd as a bricklayers' labourer. At the time he was engaged in removing bricks from a windowsill that had just been laid incorrectly and was standing on scaffolding about 1.5 metres above the ground (black 15, blue 69). He stepped backwards onto an unsupported section of planking which tilted throwing him to the ground causing significant injuries. 2 The plaintiff sued the head contractor for negligence at common law. The scaffolding was not high enough to attract statutory duties. The head contractor sought contribution from the plaintiff's employer and joined it as a cross-defendant. 3 The scaffolding had been properly erected, and the accident happened because carpenters working nearby "borrowed" three of the planks while the bricklayers and the plaintiff were at lunch. The plaintiff did not sue the carpenter subcontractor, and the head contractor did not join it as a cross-defendant. 4 The trial Judge rejected all but one of the allegations of negligence pleaded against the head contractor but upheld an allegation that it failed to properly coordinate and supervise its subcontractors to ensure that there was no interference with the scaffold upon which the plaintiff had to work. He rejected an allegation of contributory negligence and awarded damages of $363,046 in accordance with the Civil Liability Act. The defendant's cross-claim was dismissed. 5 The head contractor appealed against the judgment in favour of the plaintiff on grounds going to liability and quantum and against the dismissal of its cross-claim. The plaintiff filed a notice of contention but this was abandoned at the hearing. 6 The plaintiff died while the appeal was pending and the Court ordered that his widow, the administratrix of his estate, be substituted as the first respondent. Later in the hearing Mr Toomey QC for the appellant abandoned the appeal against the dismissal of the cross-claim, and the Court ordered that it be dismissed with costs. 7 The summary of the facts in this and the next four paragraphs is based on the Judge's findings. The scaffolding comprised three metal A frames which originally supported six planks in groups of three side by side which overlapped each other in a lengthwise direction. Each plank was about a foot wide and they were held in place by lugs on the A frames. One end of each plank overlapped one of the A frames on the outside of the scaffolding where it was not supported, but the other end was safely supported by the central A frame and the overlap from another plank. The configuration is shown in Ex D (blue 100). 8 While the plaintiff and the bricklayers were at lunch carpenters working nearby on the eaves of the building borrowed three of the planks, two closest to the building from one set, and one furthest from the building from the other. The resulting configuration is shown in Ex E (blue 102). The removal of these planks left the remaining planks with unsupported ends extending beyond the central A frame. 9 At the end of his lunch break the plaintiff was directed to remove the bricks from the windowsill which had been laid just before lunch. This instruction was given by the leading hand bricklayer. Whilst engaged in this work he stepped backwards onto the unsupported end of the outside plank which extended beyond the central A frame. 10 Before lunch the bricklayers and the eaves carpenters had been working a few metres apart. The carpenters were working at a greater height but not above the bricklayers and it was not suggested that their work involved any risk of injury to the plaintiff or the bricklayers. 11 The plaintiff and the apprentices had laid the scaffolding earlier that day (black 14). He had seen the planks put on and had checked the scaffolding to "make sure it was all right … we just make sure it's stable and … that it's wide enough". He did that and it was safe (16-17). The planks, which were about eight feet long (black 19) overlapped in the middle of the scaffolding for about one metre (black 123). The plaintiff knew how the planks had to be laid to ensure that the scaffolding was safe. He had erected scaffolding many times before and knew what to do (black 122). 12 When he returned after lunch he climbed up one of the external A frames closest to the building (blue 71, 102) and "straight away noticed" that the scaffolding had been interfered with and "the planks were hanging like a good couple feet over the scaffold" (16). He noticed that the missing planks were being used by the eaves carpenters nearby and told them that they should not be moving "our planks". The carpenters ignored this and worked on (17). 13 The plaintiff started to remove the bricks from the sill and stack them on the planks closest to the building (blue 102, black 17) above the central A frame "so nobody could go past it so when the bricklayers were working they could just pick them up there and they wouldn't be in danger of falling" (black 17). He was doing that when he stepped backwards on to the outside plank and fell. 14 When he climbed up he stood on the planks closest to the building and they were OK (black 18G). "When I stood straight up and walked over … I was sort of in the middle of the scaffold looking towards the bits hanging over and from what I could see it looked, it seemed to be OK" (18O, 71E). 15 The plaintiff knew that the plank furthest from the building was not safe (71M) and actually looked at it (71W, 72D, 88R-T). Later he said when he climbed and stood up he noticed that two planks were missing (77P, 88G) and he did not check the back one and presumed that it was all right (77S-T, 81L). The only thing he noticed was that two of the front planks were missing (80H), but when he was standing on the front two the back one was within his sight (82Q), and he had an opportunity to look at all three boards (83N). 16 He said in re-examination that he had prepared a diagram of the way the scaffolding and planks looked before lunch (black 122) and Ex D was tendered (blue 100). He was then asked about the appearance of the scaffolding when he returned after lunch, and he said that two planks were missing from the front and one from the back (black 124) and Ex E was then tendered (blue 102). This shows the remaining back plank with an unsupported overhang and a substantial gap between it and the A frame the plaintiff had climbed. 17 The head contractor was not vicariously liable for the wrongful acts of the carpenters which it had not authorised and it was not the plaintiff's direct employer. A head contractor or principal will be liable for the acts of an independent contractor which it authorised: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, 575, 577-8. It will also be liable if the risk of damage from the authorised act "arises from the way in which the work will necessarily be done or from the way in which the employer expects that it will be done": (above) at 580 per Brennan J, and per McHugh J at 594-5. These principles have no application in this case. 18 A principal or head contractor may also owe a duty to subcontractors and their employees to establish a safe system of work. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 31 (Stevens) Mason J said: "Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system." 19 Brennan J said at 47-8: "An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk … The entrepreneur's duty arises simply because he is creating the risk … and his duty is more limited than the duty owed by an employer to an employee … It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care … in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility." 20 The trial Judge referred to Stevens and Hetherington v Mirvac Pty Ltd [1999] Aust Torts Rep 81-514 which had been relied on by counsel for the plaintiff. Mr Paton, the carpentry subcontractor, had also been acting as the head contractor's supervisor but there was no one constantly supervising the site and coordinating the trades. 21 The Judge found that the head contractor knew or should have known that the workers employed by the bricklayer subcontractor were working on scaffolding, and that the eaves carpenters needed to use scaffolding to complete their work but did not have the correct scaffolding. He held that it was the responsibility of the head contractor to coordinate the work, and to properly supervise the area. "They should have ensured that everyone had proper scaffolding and equipment, as happened after the accident. Their failure to do so was negligent". Nevertheless "you cannot have someone standing guard over the planks of a scaffold". 22 The accident did not occur because the eaves carpenters and the bricklayers were working close together. Mr O'Brien, an expert called in the plaintiff's case, agreed that it was common practice for trades to work close to each other side by side and this was not dangerous. The two trades had worked in close proximity that morning without incident. The evidence does not disclose whether this was the result of coordination directed by Mr Paton or sensible cooperation. 23 There was no evidence of a breach of the duty to coordinate the work of the trades, but even if there was such a breach it was not a cause of the plaintiff's accident. This did not occur when both trades were working in close proximity. It occurred when the bricklayers were not present because the carpenters deliberately interfered with the bricklayers' scaffolding and borrowed half their planks. The Judge's findings that the head contractor failed to properly coordinate the work and that this was a cause of the accident cannot be supported. 24 The Judge accepted that the head contractor was not bound to have someone standing guard over the planks of a scaffold but nevertheless found, as has been noted, that it should have ensured that the carpenters had proper scaffolding. 25 There is no direct evidence that the carpenters did not have sufficient scaffolding on site. Mr Paton said that they had their own scaffolding and it was sufficient for the job (black 189, 190). The fact that the eaves carpenters borrowed scaffolding does not establish that they did not have enough of their own. They may have borrowed scaffolding to save themselves the time and trouble of fetching their own from somewhere else on the site. Even if the Judge disbelieved Mr Paton's evidence this, without more, is not evidence to the opposite effect: Steinberg v FCT (1975) 134 CLR 640, 684 per Barwick CJ. 26 Where trades can work safely side by side whether as a result of proper coordination or just commonsense, the head contractor does not have a duty of constant supervision of the work. As Brennan J said in Stevens (above) at 47-8: "But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur." 27 On large sites the head contractor would provide the scaffolding, lifts, and cranes as part of its organisation of the project, and the sub-trades could not be expected or allowed to make their own arrangements. However this project only involved single storey buildings on a level site (blue 107). 28 Mr O'Brien gave evidence of good building practice as it affected the duty of a head contractor to coordinate trades. He did not say in his report or his evidence in chief that the head contractor had a duty to ensure that subcontractors had on site the proper scaffolding and equipment for their part of the job. However he was asked leading questions on this topic during his cross-examination by counsel for the cross-defendant. 29 As Hodgson JA said during argument this should not have been permitted. Other parties in the same interest as the party calling a witness should be required to examine the witness with non-leading questions before an adverse party cross-examines. A situation where a party in the same interest cross-examines a witness with leading questions after he has been cross-examined by the adverse party is both unsatisfactory and unfair. Counsel for the head contractor did not object but trial judges should enforce the proper practice whether there is an objection or not. 30 Mr O'Brien gave the following evidence during his cross-examination by counsel for the cross-defendant: "Q. … I ask you to assume that tradesmen A, who is in this case we will call them the bricklayers, have scaffolding which they require to get access to height, and tradesmen B are the eaves carpenters, who are working on eaves which are at height, don't have scaffolding, then there should be a system should there not to ensure that the carpenters have access to proper scaffolding, shouldn't there, if they are going to do their job.

A. Yes." 31 This evidence is ambiguous. There is ambiguity in both questions and answers. It is not clear whether the witness agreed generally with the first question or whether his agreement was limited. He was not asked to describe the nature of the system or to identify what the head contractor was expected to do. If, as in this case, the subcontractors were expected to provide their own equipment and scaffolding a system was hardly required to ensure that "the trades are aware who are using what at what time". They would know this anyway. 32 The cases which established that the employer may owe a duty to subcontractors and their employees do not suggest that this duty extends to checking that they have on site the equipment and materials necessary for the job. There is something odd about the idea of the site supervisor or clerk of works checking a subcontractor's tools, counting nails, screws, bags of sand, bags of cement and items of scaffolding to ensure their adequacy for the days work. It is not self evident that such a person would have or should have the necessary knowledge or experience to do this in any event. 33 A subcontractor is not subject to the directions of the head contractor as to the manner in which the subcontract work will be done. The scope of works for a sub-trade should state whether the head contractor is to supply and install the necessary scaffolding or whether this responsibility falls on the subcontractor. The existence of such an obligation on the subcontractor will clearly affect the time and cost of the job. A subcontractor required to supply his own scaffolding has to decide what equipment he will use for this purpose, and again will not be subject to the directions of the head contractor. 34 In my judgment the head contractor had no duty to ensure that the carpenters had sufficient scaffolding on site to enable them to do the work on the eaves. Even if it had been established that they did not have enough scaffolding on site, this was not the result of any breach of duty by the head contractor. The appeal should therefore be allowed and judgment entered for the defendant. 35 Although the other questions do not arise I will state my views on them. The finding by the Judge that there was no contributory negligence cannot stand. The plaintiff knew that three of the planks were missing. He knew how the scaffold worked and had helped to erect it and test it for safety. He knew that the remaining scaffolding was unsafe and that no one should step onto the unsupported overhanging sections of the front two planks. 36 It was equally obvious that no one should step onto the unsupported overhanging section of the back plank. As between himself and the head contractor the plaintiff was substantially to blame for the accident. However it is not appropriate to apportion responsibility where the Court finds that the defendant was not in breach of duty as the necessary comparison between the respective degrees of fault and their causative potency cannot be made. 37 The appellant challenged the awards for non-economic loss, future economic loss, future out of pocket expenses, and future domestic assistance. The challenge to future domestic assistance was formally abandoned during the hearing. There is nothing in the objection to the award of $10,000 for future out of pocket expenses when the admitted claim for past medical expenses was $76,025. 38 The plaintiff was 30 when injured and 32 at the date of trial. He suffered significant injuries to his knee and back. The award for future economic loss had to compensate him for such loss over a period of between 28 and 33 years. He was earning about $520 per week when he was injured. The award represents the capital value of a loss of between $120 and $128 per week. The Judge found, as he was entitled to do, that the plaintiff could no longer undertake hard physical work in the building industry. Although he had other skills he had chosen not to exploit them in the period immediately before the accident. The award was modest and should not be disturbed. 39 The plaintiff had pre-existing problems with his right knee and back although they were significantly aggravated by the accident. He also suffered from a depressive condition diagnosed as an adjustment disorder. The Judge awarded general damages of $70,000, but after his error, for which counsel were substantially responsible, was discovered he reassessed non-economic loss under the Civil Liability Act at 30% of a worst possible case and awarded $88,500. The result is remarkable and suggestive of error in one or other of the assessments. If it had been necessary to do so I would have interfered. 40 The Court should make the following orders:

Mambare Pty Ltd trading as Valley Homes v Rebecca Irene Bell in her capacity as Administratrix of the Estate of the Late Simon James Bell & Anor

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