Plaintiff v Defendants

2 An allied claim by the Victorian WorkCover Authority ('VWA') under s 138 of the Accident Compensation Act 1985 (Vic) ('ACA') is considered in a separate judgment ('the recovery proceeding').[1]

3 The first defendant in the present proceeding, Aluline, was deregistered on 11 September 2014. By consent, an Order was made on 10 November 2015 giving Aluline leave to substitute the VWA as the first defendant to take effect from the commencement of the proceeding. However, to avoid the confusion that may arise given the fact the VWA appears in a separate capacity in the recovery proceeding, for the purposes of this judgment I will refer to the first defendant as Aluline.

4 While the Writ was amended to reflect that the VWA replaced Aluline as the first defendant, the two parties were separately represented in the contribution and recovery proceedings. The VWA in effect adopted the role of the plaintiff for the purpose of both proceedings. However submissions dealing with contribution were made by Aluline's representatives in the contribution proceeding.

5 Section 23B(1) of the Wrongs Act 1958 (Vic) ('Wrongs Act') permits a tortfeasor liable in respect of any damage suffered by another person to recover contribution from any other person liable in respect of the same damage. It matters not, whether the liability flows from the same event, or whether an award of damages against the respective parties differs, provided the parties are liable in respect of the same damage.

6 Most issues factual and legal are in dispute. As at 10 May 2011 a set of apartments was being constructed at 263 City Road, Southbank ('the Bank Apartments'). Probuild was the head contractor and controlled the building site. Probuild sub-contracted Aluline to perform works involving the construction of balustrading. Mr Griffin was employed by Aluline as a balustrade fitter supervisor to perform such tasks.

7 Higgins had contracted with Probuild to perform painting works at the premises. In order to perform such works, it was necessary for Higgins to have scaffolding of various types. Its agreement with Probuild included an obligation to make available swing stages to the exterior of the building for use by other trades. Higgins entered into an agreement with Tubeway to perform the scaffolding works, including the supply, hire and direction of the scaffolding and induction of workers who were to use the scaffolding.

8 Swing stages are suspended cages from which work can be performed to the exterior of the building, at height. Tubeway inducted Mr Griffin on 3 February 2011 in relation to the safe use and operation of swing stages. It rendered an account to Higgins for such induction and in turn, Higgins rendered an account to Probuild.

9 On 9 May 2011, Tubeway repositioned the swing stage to a point on the eighth floor of the premises so it could be used for the performance of work above that area.

10 Mr Griffin alleges he suffered an injury to his lower back on 10 May 2011 while entering a swing stage. Mr Griffin claims as a result of the 10 May 2011 incident, he suffered injury including a two level fusion at the L4/5 and L5/S1 levels, spinal root compression, neurological damage to the lower back and anxiety and depression. He claims that as a result of the injuries he is totally incapacitated for all work.

(a) did Mr Griffin suffer an injury on 10 May 2011 while accessing a swing stage;

(b) was the swing stage located at the position marked 'E' adjacent to the sliding door marked 'D' on level 8 on Exhibit P1 on 10 May 2011;

(c) what training did the defendants provide Mr Griffin as to how he should access the swing stage;

(d) what training did the defendants provide Mr Griffin as to the operation of Probuild's drop zone permit system;

(e) was the door marked 'C' on Exhibit P1 barricaded and if so, when and in what way;

(i) on 9 May 2011 when Tubeway scaffolder, Mr John Birt,[2] set up the swing stage;

(ii) on 10 May 2011 immediately prior to Mr Griffin using the swing stage;

(iii) was the barricade capable of being removed; and

(iv) who was responsible or had control to remove the barricading over door 'C'.

(f) was there any signage erected regarding door A as marked on Exhibit P1;

(g) how far was the swing stage located from door A;

(h) who was responsible for the placement of the swing stage at door A;

(i) was the means and manner adopted by Mr Griffin to enter the swing stage unsafe;

(j) what checklists or planning were in place to ensure the swing stage could be safely accessed; and

(k) what were the relevant codes, practices and/or guidelines that were relevant to the safe use of swing stages as at 10 May 2011.

12 In broad terms the legal issue for determination in the contribution proceeding is the responsibility of each defendant for Mr Griffin's injuries pursuant to Part IV of the Wrongs Act.

(a) does Part X of the Wrongs Act apply to the contribution proceeding;

(b) did the defendants owe a duty of care to Mr Griffin;

(c) did the defendants discharge their obligations under the acts, regulations, standards and guidelines set out under paragraphs [15]-[20] of the Mr Griffin's statement of claim;

(d) did Probuild discharge its duty as the principal contractor to:

(i) co-ordinate sub-contractors and their employees on site;

(ii) have a system in place to enable all work to be performed safely on site by sub-contractors and their employees;

(iii) ensure all sub-contractors and their employees were adequately informed of such a system;

(iv) take all reasonable steps to provide adequate access for Mr Griffin to access the swing stage.

(e) was Probuild responsible for barricading door C;

(f) did Probuild assume a responsibility to control and supervise Mr Griffin's activities;

(g) to what extent can Probuild rely on project safety or management plans provided by Aluline, Tubeway and Higgins to plan and co-ordinate arrangements for sub-contractor workers requiring access to swing stages, including Mr Griffin on 10 May 2011;

(h) which terms, if any, of the sub-contract agreements entered into by Probuild with Aluline and Higgins impose obligations on each sub-contractor, including any secondary sub-contractor, to manage or control the worker's access to the swing stage on 10 May 2011. Have Aluline, Higgins or Probuild breached any such terms of the Sub-contract Agreement.;

(i) was Probuild responsible for managing the implementation of the permit zone;

(j) what, if any, steps were 'reasonably practicable' for Probuild to eliminate or reduce Mr Griffin's risk of injury whilst accessing the swing stage on 10 May 2011 having regard to s 20(2) of the Occupational Health and Safety Act 2004 (Vic) ('OH&S Act')?;

(i) take reasonable steps to provide adequate access for Mr Griffin to the swing stage; and

(ii) adequately induct Mr Griffin about safe access to swing stages?

(m) if so, was it discharged by Higgins retaining Tubeway as an ostensibly competent contractor;

(n) in light of (l) and (m) above, and the determination of the factual issues, did Higgins have tortious liability to Mr Griffin;

(o) is Probuild's claim that Higgins had a contractual obligation to ensure safe access to the swing stage, made out;

(i) train Mr Griffin about safe access to swing stages; and

(ii) provide safe access to Mr Griffin to the swing stage.

14 In Mr Griffin's statement of claim dated 13 October 2014, the following particulars of negligence are alleged against each defendant:

(a) failing to instruct or properly instruct the plaintiff;

(b) failing to provide the plaintiff with any or any adequate supervision;

(c) failing to provide the plaintiff with any or any adequate equipment;

(d) failing to provide and/or enforce the safe system of the work;

(e) failing to ensure a safe system of work was implemented and enforced;

(f) failing to exercise due care and skill for the safety of the plaintiff in all the circumstances;

(g) failing to undertake a risk assessment in regard to the hazardous nature of the work required;

(h) failing to control the risk of injury to the plaintiff in the circumstances;

(i) failing to provide a comprehensive training and education programme for the plaintiff in the performance of his duties;

(j) exposing the plaintiff to a hazardous and unsafe work environment;

(k) failing to provide the plaintiff with any or any proper safety equipment;

(l) failing to provide the plaintiff with any or any adequate assistance;

(m) causing or allowing the plaintiff to be exposed to a danger known to the defendant;

(o) failing to provide any or any proper access to the cage;

(p) causing or allowing the plaintiff to enter the swing cage when it was dangerous to do so;

(q) failing to put in place any or any proper system of access to the cage;

(r) causing or allowing the cage door to be barricaded;

(s) failing to allow the plaintiff to use the proper gate to enter the cage;

(t) failing to change the method of access to the cage to allow the proper gate to be used;

(u) failing to comply with the OH&S Act and the regulations made thereunder;

(v) failing to comply with the Occupational Health and Safety Regulations 2007 (Vic) and in particular Regulations 3.1.1, 3.1.2, 3.1.3, 3.5.2, 3.5.23, 3.5.34, 3.5.40, 3.5.41 and 3.5.43;

(w) failing to comply with AS 1470-1986 Australian Standard Health and Safety at Work - Principles and Practices, and in particular s 8;

(x) failing to comply with AS 1428.1-2009 Australian Standard - Design for access and mobility, Part 1: General requirement for access - new building work, and in particular s 11;

(y) failing to comply with AS/NZS 4576.1995 Australian/New Zealand Standard - Guidelines for scaffolding ('AS 4576 (Scaffolding Guidelines)');

(z) failing to comply with AS/NZS 4994.1-2009 Australian/New Zealand Standard - Temporary edge protection general requirements;

(aa) failing to comply with AS/NZA 1576.1-2010 Australian/New Zealand Standard - Scaffolding - General requirements ('AS 1576.1 (Scaffolding General Requirements)');

(bb) failing to comply with AS 1576.4-1991 Australian/New Zealand Standard - Scaffolding - Suspended scaffolding ('AS 1576.4 (Suspended Scaffolding)'); and

(cc) failing to comply with scaffolding checklists for builders and building trades contractors - WorkSafe Publication October 2005.

15 The particulars of negligence are pleaded against each defendant indiscriminately and are of such generality as to be in some instances meaningless. It is regrettable that the pleadings were not more carefully considered and drafted against each defendant. The generality of the particulars contributed to the length and often unnecessary exploration of issues by the parties in the course of the trial. It is incumbent on parties to reflect and ensure particulars are relevant, and if necessary seek clarification, specifically in relation to each party.

16 A form 11B contribution notice was filed against Aluline by Tubeway[3] claiming it was entitled to contribution from Aluline in respect of any sum Mr Griffin recovered, on the ground that Aluline's negligence and/or breach of duty contributed to any injury, loss and damage which Mr Griffin suffered.

17 In Mr Griffin's statement of claim, it was alleged that Aluline:

(b) was engaged by Probuild as a sub-contractor to perform balustrading works on the Bank Apartments;

(c) was an occupier of the premises pursuant to s 14A of the Wrongs Act;[4]

(d) had a duty to take reasonable care for Mr Griffin's safety whilst he was performing work duties at the premises using the swing stage;[5] and

(e) had the instruction, control and supervision of Mr Griffin while he was working at the premises.[6]

18 Mr Griffin claimed that the incident was caused by Aluline's breach of its duty and/or its negligence in respect of the matters listed above in paragraph [15] of his statement of claim.

19 Aluline acknowledges that it had a non-delegable duty of care to ensure that Mr Griffin had a safe place of work and a safe system of work.[7]

20 Aluline disputes that this duty extended to conducting an assessment of the method to access the swing stage or educating Mr Griffin as to access.[8]

21 Although raised in Mr Griffin's statement of claim, it was not pressed at trial that Aluline had any liability under the OH&S Act or the Occupational Health and Safety Regulations 2007 (Vic) ('OH&S Regulations').

22 It was alleged that Aluline was the occupier of the premises and therefore owed a duty to Mr Griffin pursuant to s 14B(3) of the Wrongs Act to take such care as in all the circumstances was reasonable to see that the worker, while on the premises, would not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[9]

23 Aluline does not admit that it was a statutory occupier for the purposes of the Wrongs Act.[10]

24 I note that this allegation was not pursued with any specificity by any party against Aluline.

25 Form 11B contribution notices were filed against Probuild by Tubeway[11] and Aluline[12] claiming they were entitled to contribution from Probuild in respect of any sum Mr Griffin recovered, on the ground that Probuild's negligence and/or breach of duty contributed to any injury, loss and damage which Mr Griffin suffered. No particulars of negligence and/or breach are provided. The document relies upon Mr Griffin's statement of claim and accordingly the same particulars of negligence of breach as alleged against all the defendants at paragraph [15] of the Mr Griffin's statement of claim are relied upon.[13]

(a) was the head contractor responsible for the construction of a high rise tower at the premises;

(b) was an occupier of the premises pursuant to s 14A of the Wrongs Act;[14]

(c) had a duty to take reasonable care for Mr Griffin's safety whilst he was performing work duties at the premises using the swing stage;[15] and

(d) had the instruction, control and supervision of Mr Griffin while he was working at the premises.[16]

27 Probuild acknowledges that it owed a general duty to Mr Griffin to take reasonable care for his safety. Particularly, Probuild acknowledged that it was under a common law duty of care, as the principal contractor, to exercise reasonable care in coordinating the activities of the various contractors, including Aluline's use of swing stages to perform external balustrade defect work on site.[17]

28 Under s 23 of the OH&S Act Probuild had a duty as an employer having management and control of the workplace at the Bank Apartments to eliminate or reduce risks to health and safety to persons other than the employees of the employer arising from the conduct of the undertaking of the employer so far as was 'reasonably practicable'.

29 Of the regulations pleaded in Mr Griffin's statement of claim, the most relevant to Probuild are the following:

(a) Regulation 3.5.2 - failure to identify hazards for a class of plant;

(b) Regulation 3.5.23 - failure to identify and eliminate hazards associated with the use of the plant; and

(c) Regulation 3.5.24 - failure to reduce the risks associated with the use of the plant.

30 It was alleged that Probuild was the occupier of the premises and owed the duty to Mr Griffin pursuant to s 14B(3) of the Wrongs Act to take such care as in all the circumstances was reasonable to see that Mr Griffin, while on the premises, would not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[18] Probuild agrees that it was the occupier of the work site at the Bank Apartments.[19]

31 Form 11B contribution notices were filed against Tubeway by Probuild,[20] Higgins,[21] and Aluline[22] claiming they were entitled to contribution from Tubeway in respect of any sum Mr Griffin recovered, on the ground that Tubeway's negligence contributed to any injury, loss and damage Mr Griffin suffered.

32 In Mr Griffin's statement of claim, it was alleged that Tubeway:

(a) was the supplier of scaffolding and a swing stage to the premises;

(b) was engaged by Aluline and/or Probuild and/or Higgins to supply, erect and install the swing stage at the premises;[23] and

(c) had a duty to take reasonable care for Mr Griffin's safety whilst he was performing work duties at the premises using the swing stage.[24]

33 Mr Griffin claimed that the incident was caused by Tubeway's breach of its duty and/or its negligence as pleaded in the Mr Griffin's statement of claim.[25]

34 It is alleged that Tubeway owed a general common law duty to Mr Griffin, as a person within a known class of workers who were using their swing stage, to do all things reasonable to ensure its acts or omissions did not cause him to suffer reasonably foreseeable harm.

35 It is alleged that as a designer, manufacturer and/or supplier of 'plant', being the swing stages it provided, which included a confined space, a duty arose under the OH&S Regulations for Tubeway to eliminate or reduce so far as was practicably reasonable the risks associated with entering and exiting the swing stage. Additionally it is alleged there was a duty on Tubeway to identify and eliminate or reduce any hazards or risks associated with the swing stage.

36 Although a number of duties under the OH&S Act and the OH&S Regulations were pleaded by Mr Griffin, many were not applicable to Tubeway. As Tubeway was not a relevant employer, it was not caught by Part 3.1 of the OH&S Regulations.

37 I have identified the following regulations as the most relevant to Tubeway:

(a) Regulation 3.5.2 - failure to identify hazards for a class of plant;

(b) Regulation 3.5.23 - failure to identify and eliminate hazards associated with the use of the swing stages; and

(c) Regulation 3.5.24 - failure to reduce the risks associated with the use of the swing stages.

38 A form 11B contribution and indemnity notice was filed against Higgins by Tubeway,[26] in which it was claimed that Tubeway was entitled to contribution and indemnity from Higgins in respect of any sum Mr Griffin recovered, on the ground that Higgins' negligence and/or breach of duty contributed to Mr Griffin's injury, loss and damage, and pursuant to terms of agreement between Tubeway and Higgins.

39 Mr Griffin's statement of claim alleges that Higgins:

(a) was an occupier of the premises pursuant to s 14A of the Wrongs Act;

(b) engaged Tubeway to supply, erect and install the scaffolding and a swing stage at the premises;[27] and

(c) had a duty to take reasonable care for Mr Griffin's safety whilst he was performing work duties at the premises using the swing stage.[28]

40 Mr Griffin further claims that the incident was caused by Higgins' breach of its duty and/or its negligence as pleaded in Mr Griffin's statement of claim.[29] Tubeway repeated these allegations in its amended form 11B contribution and indemnity notice against Higgins dated 19 October 2015.[30]

41 Similarly, Probuild filed an amended statement of claim in the contribution proceedings against Higgins on 19 October 2015. In this, Probuild refers to Mr Griffin's statement of claim dated 13 October 2014 and alleges that Mr Griffin's injury was caused by the negligence and/or breach of duty of Higgins. Probuild repeats the particulars of allegations from Mr Griffin's statement of claim raised in that regard against Higgins.[31] Higgins denies these allegations.[32] The Probuild notice of contribution against Higgins also pleads contribution and indemnity pursuant to an agreement dated 16 November 2010.[33] The indemnity aspect of Tubeway's and Probuild's claims against Higgins is to be dealt with separately to the current proceeding.

42 It is alleged that Higgins, by arranging to provide scaffolding and swing stages for use by workers on the site, had a general common law duty to do all things reasonable to ensure that its acts or omissions did not cause Mr Griffin to suffer reasonably foreseeable harm.

43 It is alleged that Higgins' common law duty extends to an obligation to do all things reasonable to ensure Mr Griffin had safe access to and into the swing stage.

44 Mr Griffin is 49 years of age. He is married and has two adult children. He completed year 10 schooling and then an apprenticeship as a motor builder. He worked as a motor builder for eight years. In his early years of work in the mid-80s he suffered a back strain which did not require any time off work. In the 90s when working at Clyde Engineering he had another accident and suffered an injury to his back, which required a few months off work. He continued his employment largely full time without a break in the 90s. In the late 90s he purchased a tray truck to commence his own business. The business was not successful and in 1998 he commenced employment with Newlight Balustrading, installing balustrading. He worked with Newlight Balustrading from 1998 to 2006, and then Bayview Balustrading from 2006 to 2009.

45 In this period Mr Griffin had a couple of injuries, including a dislocated shoulder while riding a pushbike in December 2007 and a further shoulder injury in 2009 while riding a dirt bike.

46 In October 2009, Bayview Balustrading went into receivership and Mr Griffin commenced work with Aluline.

47 Aluline constructs balustrading largely for high rise buildings, the work Mr Griffin did full time from October 2009. While in employment with Aluline, Mr Griffin commenced work at the Bank Apartments, a 41 storey building.[34]

48 Probuild was the principal contractor for the construction of the Bank Apartments.

49 Probuild engaged a number of sub-contractors to complete various works, including Aluline.

50 Higgins was engaged by Probuild to paint, amongst other things, the exterior of the building and supply mobile scaffolding for use by both Higgins and other trades on site.

51 Higgins engaged Tubeway to erect the scaffolding, including swing stages. The agreement also required Tubeway to induct users of the swing stage into their safe operation. Included were those users employed by other sub-contractors at the site, including Aluline.

52 In August 2010 Mr Griffin was sent by Aluline to the Bank Apartments. A view was conducted on the Bank Apartments on 4 November 2015. Exhibit P6 consists of three photographs of the Bank Apartments.[35] The first photograph is a view from the west. In the first photograph a pontoon can be seen, which houses the car park. The car park continues for eight storeys. At the top of the car park, there is an open deck on the eighth floor. It is this area where Mr Griffin says he sustained an injury while entering a swing stage on 10 May 2011.

53 By the time Mr Griffin commenced working at the Bank Apartments in August 2010, he had been working with Aluline for 10 to 11 months, working at various sites.[36] In the 11 years' experience Mr Griffin had as a balustrader he had been in a swing stage once prior to commencing working in the Bank Apartments[37] and had never used a swing stage when working with Aluline.[38] Mr Griffin was Aluline's leading hand at the Bank Apartments.[39]

54 At the time Aluline entered into its contract with Probuild, it did not anticipate that its workers would need to access swing stages. This need arose due to defect work in the balustrading which could only be repaired by using a swing stage.[40]

55 Probuild was the principal contractor and was in general control of the worksite.

56 Probuild had a site office.[41] Each morning, Mr Griffin attended the Probuild site office, where he would sign in other Aluline workers.[42] Mr Griffin would liaise with other Probuild foremen,[43] pick up drop zone permits and discuss the progress of Aluline's work with the balustrading.[44]

57 Mr Griffin had a direct Probuild supervisor, Mr John Ray, the façade supervisor,[45] and a direct Aluline supervisor, Mr Baci Canko.

58 Mr Ray was on site every day, even on Saturdays when he prepared rosters for the trades in the upcoming week.

59 Mr Griffin's evidence was that Mr Canko was on site once or twice a week. Mr Canko's evidence was that he was on site virtually every day and would attend the site office and occasionally consult with Aluline employees.[46]

60 Probuild, through Mr Ray, coordinated the use of swing stages on site.[47] Mr Ray was responsible for the swing stage roster and for giving it to various workers, including Mr Griffin.[48] Probuild, through Mr Ray, coordinated and allocated drop zone permits.[49]

61 Mr Paul Jackson, Probuild's Health, Safety and Environment co-ordinator (HS&E co-ordinator), created and designed the drop zone system[50] and drew the drop zone map.[51]

62 Mr Canko's evidence that he assisted in the development of the drop zone system, was strongly refuted by Mr Jackson.[52]

63 Probuild had practical management control of the site. Probuild inducted all workers onto the site;[53] toolboxed trades on the drop zone procedure;[54] requested sub-contractors toolbox their employees;[55] amended the permit zone procedure;[56] and was responsible for the overall management and risk assessment of the Bank Apartments.[57]

64 Mr Ray and John Birt confirmed that Probuild was responsible for implementing and managing the drop zone permit system, including communicating changes to, and supervising the permit system. It was Probuild, through Mr Ray, who determined who could have access to a drop zone. The evidence strongly supports that Probuild was responsible for the access point through which the drop zone was to be entered. Probuild controlled the permit cards, the 'sign in, sign out' register book, the provision of keys for access, and the positioning of barricading tape, including what was referred to as 'idiot tape' and 'inertia reels'. Only Probuild could authorise the use of a drop zone.

65 Probuild had a direct role in Mr Griffin's day to day activities. Mr Griffin described Mr Ray as 'always snooping around ...', 'always checking on us'.[58] Mr Ray was pushing Mr Griffin to get the job done.[59] Mr Griffin dealt with Mr Ray 'probably every day, most of the days'.[60] Probuild directed Mr Griffin to do the infill work and to undertake the work by accessing drop zone 12.

66 The Probuild induction register[61] describes Mr Griffin's employer as Aluline and his supervising employer as 'Probuild'. Mr Joe Cirianni, Probuild's site manager at the Bank Apartments between 2009 and 2011, said that the reference to Probuild being Mr Griffin's 'supervising employer' was 'a typo, an error',[62] because Mr Griffin worked for Aluline not for Probuild and Mr Griffin was the balustrading supervisor on the site for Aluline.[63]

67 In preparation for the commencement of the works, Aluline prepared its OHS&E Management Plan.[64] The document was prepared at the request of Probuild, who then audited and made comment in relation to it.[65] This document was referred to as Aluline's 'subbie pack'. Probuild required Aluline to make changes to its subbie pack prior to coming on site, and gave Aluline a 100% mark for its safe work procedure and safe work method statement ('SWMS').[66] Aluline's SWMS did not include an assessment of the risk of entering the area to access swing stages.[67] The evidence is that when Mr Jackson undertook the audit of Aluline's SWMS in February or March 2011, he did not address the risks associated with the use of the swing stages by Aluline employees.[68]

68 At the time Aluline's OH&S management plan was created, Aluline did not consider its employees would be performing any works from a swing stage.[69]

69 Mr Jackson said that he had an expectation in July 2010 that Aluline would be accessing swing stages as part of their work.[70] Despite this, Aluline was not told prior to submitting its subbie pack[71] that access would be required.

70 Tubeway was contracted by Higgins to supply, amongst other things, swing stages for the Bank Apartments. The contract comprises Tubeway's quote and terms and conditions.[72] Probuild was not a party to the contract. Higgins authorised Mr Ray to provide instructions to Tubeway employees as to the placement of swing stages. Higgins was responsible, however, for payment of the services. The agreement required Tubeway to provide free induction training regarding the operation of swing stages for three men per swing stage hired.[73] Tubeway had no other responsibility or control over other supervision of users on the swing stages. Once a handover certificate was provided to Higgins as the hirer, or Probuild as Higgins' agent, Tubeway did not have control over where the swing stage was placed or its use.

71 While Higgins had a contractual obligation to Probuild to make available to other sub-contractors the swing stages that it had arranged,[74] it did not construct, assemble or locate the swing stages. Higgins did not provide Aluline or Mr Griffin with any documentation regarding swing stages, it did not train or induct Mr Griffin in relation to swing stages, nor would it have been entitled to undertake any of those activities.[75] Higgins only had access to swing stages for its own use.[76]

72 Higgins, as with other sub-contractors, provided a site safety plan for the Bank Apartments.[77] It agreed that it would work in accordance with codes of practice and regulations, including:

• Occupational Health and Safety Act 2000, No. 40;
• Occupational Health and Safety Regulations 2001;
• AS 4576 (Scaffolding Guidelines); and
• AS/NZS 1576 (various scaffolding).[78]

73 Higgins also required that their employees and sub-contractors worked safely. In relation to working at heights, the Higgins site safety plan stated:

Working at Heights

...

Swing Stage Scaffolding

• All Swing Stage Scaffolding will be erected by qualified scaffolding contractors.
• The Swing Stage supplier will induct those personnel using the Swing Stage. They will provide adequate training as to its correct use and a basic daily checklist, which must be completed by all personnel.
• To protect the general public barricading will be erected and appropriate warning signs displayed, whilst work is in progress.[79]

74 On 3 November 2010, Mr Griffin underwent a general site induction conducted by Probuild at the Bank Apartments.[80] The induction is recorded in Probuild's site induction register.[81] The matters dealt with included general site matters such as the location of the lunch room, the toilet, reporting systems on site and the various permit systems.[82]

75 In Mr Griffin's answers to interrogatories delivered on behalf of the first and fourth defendants, Mr Griffin objected to answering whether he attended any training and/or induction at the Bank Apartments but under cover of that objection answered 'no'.

76 In evidence-in-chief, Mr Griffin said he remembered the site induction given by Probuild[83] and that the topics of discussion were 'similar to every other induction, that you don't touch scaffold and you don't go through any barricaded area'.[84] Mr Griffin's evidence was that he was informed about barricading at the general site induction and that he was told:

You just don't touch barricading, you don't go through barricaded areas.

QUESTION: When you're being told in the induction about not going through a barricaded area, what is implied? What are you taking from that? How is an area designated a barricaded area? - - A no go zone. You're not allowed the other side of the barricade. Whether there is a drop zone there, or there is machinery, it is just what you do.

77 Drop zones, as the name suggests, are where workers can drop materials and machinery and the like. In the case of the Bank Apartments the area over the car park depicted in the first photograph in Exhibit P6 was utilised as a drop zone. The pontoons were replicated around the building and were used as drop zones. Throughout the course of the trial reference was made to Exhibit P1 a map depicting the drop zones on level 8. Drop zone number 12 identified on Exhibit P1 was the subject of much evidence and is the area where Mr Griffin says that the swing stage was placed on 10 May 2011 when he injured himself.

78 Exhibit P1 depicts drop zone 12. In the course of the hearing various features of the level 8 drop zone map were marked and identified as follows:

A - a sliding door on western elevation;

B - windows;

C - open door;

D - swing stage - on western elevation, where Mr Griffin says the swing stage was placed on 10 May 2011 and where he sustained his injury; and

E - swing stage on southern elevation, where Tubeway says the swing stage was placed on 10 May 2011.

I will for convenience adopt the above references in exhibit P1.

79 Mr Griffin's evidence was that drop zones were used for safety reasons.[85] He said that in the Probuild site induction he was told that you do not go to a drop zone unless you have authority to do so.[86]

80 As part of the Probuild induction process, workers on the site completed a Probuild site induction personal details form.[87] Mr Griffin completed such a form and signed and dated it 27 October 2010.[88] The Probuild site induction form contained information on a number of matters including that:

(a) a permit system had been introduced to govern all façade work and drop zones; and

(b) only company supervisors could apply for a permit in consultation with Probuild Structure Supervisors.[89]

81 Mr Canko's evidence was that he had undergone the Probuild site induction and that it would have mentioned the drop zone system that was in place, but the specifics about the drop system were not canvassed.[90]

A drop zone, we give it stature around the perimeter of the building and we divvy up the perimeter of the building so that we introduce an operation zone, which in turn allows people, at their permitted times, to work either on the elevation of the building or on the immediate terrace, as you see the numbers on the perimeter. The reason we set that up is that only one trade can work on that particular zone at any one particular time and there may be the odd, depending on the shape and style, there may be a second trade, depending how the building is divided up.[91]

83 On the third page of Probuild's site induction form, under General Requirements, it states:[92]

All personnel MUST have a safe work procedure (SWMS) for the tasks which they will be undertaking. Safe work procedures must be followed at all times. Copies to Probuild.

84 Mr Cirianni's evidence was that the reason this item was contained under General Requirements was so that if there was any activity out of the ordinary that the employees were to carry out, they knew they needed to have a SWMS and they needed to provide Probuild with the SWMS prior to doing those jobs. As mentioned, at the time Aluline provided its SWMS document to Probuild, the use of a swing stage was not contemplated.

85 Probuild prepared a document which set out the drop zone permit system and what was required of workers. Two copies of this document were tendered into evidence, Exhibits D2-4 and D3-7. I will return to these exhibits. Probuild witnesses Mr Cirianni, Mr Jackson and Mr Ray gave evidence that the relevant supervisors on site for the various sub-contractors were toolboxed into the drop zone permit system.

86 Mr Jackson was unable to say whether the Probuild induction educated Mr Griffin on the drop zone or barricading of doors.[93]

87 I am satisfied on the evidence that as part of the Probuild site induction, the drop zone permit system was mentioned but in a general way and that it was via the tool boxing system that workers were informed and educated in greater detail as to the drop zone permit system requirements. It will be necessary to return to the issue of what workers and, in particular, Mr Griffin were told in this regard.

88 The systems and procedures for using swing stages required that each sub-contractor understood the drop zone permit system. Probuild had amongst its documentation a 'Project Risks Assessment for Bank Apartments' dated 26 August 2010.[94] It stipulated amongst other things, a 'Probuild drop zone procedure to be in place', and that 'only trained competent personnel to use swing stages'.[95]

89 It was Mr Jackson's evidence that the systems and procedures devised by Probuild for the various activities on the building site were in place to ensure amongst other things the safety of workers, in circumstances where he, and for that matter, Mr Ray or Mr Cirianni, could not micromanage each subcontractor that came on to the Bank Apartments.[96]

90 Mr Ray was responsible for co-ordinating all sub-contracting workers, including those who required access to the drop zone by:

(b) preparing and co-ordinating a swing stage work schedule;[97] and

(c) preparing and co-ordinating a swing stage roster on a weekly basis.[98]

91 Probuild submits that the drop zone permit system required all workers to be toolboxed into the following procedure to access drop zones:

(a) an induction card issued by Tubeway to verify that a worker was a 'competent person' to use the swing stage must be produced;

(b) if a worker or trade is allocated a drop zone they were to attend to Mr Ray to obtain the passes on to the swing job;

(c) if a worker was accessing the swing stage the trade was required to undertake a checklist prior to the permit being issued;[99]

(d) the worker must complete and sign a Tubeway 'daily safety checklist';

(e) Probuild's external permit, which was maintained in Mr Ray's office, was required to be completed. Mr Ray would look at the checklist and issue the green card which was the size of a driver's licence;[100]

(f) the green card permitted access for the workers to the designated drop zone area;

(g) the worker was required to display safety/warning signage, 'Drop Zone Keep Out' and the like at drop zone areas;

(h) once a green card was issued to a worker, a red card would be pinned up in Mr Ray's office designating the drop zone that was allocated and the workers would then take their green cards to the site at level 8, put a barrier across and put a sign up saying drop zone was in use;[101] and

(i) the worker was also required to affix barricade tape (red and white) from inertia reels fixed to one side of a doorway access to a drop zone.[102]

92 Even though a number of these steps are in part set out in Probuild's drop zone permit tool boxing document, evidence indicates there was some confusion as to how the permit system actually operated. For example, when the checklist was to be completed was a source of confusion on site. Mr Jackson's evidence was that an inspection of a swing stage could not take place before a permit was issued.

93 However Mr Cirianni said that he did the checklist first and then got the permit. Mr Jackson's response was that Mr Cirianni must be confused, and that you cannot do a checklist accurately unless you have a permit to go into the zone to do the check.[103]

94 In relation to Probuild's tool box memorandum regarding the use of drop zones, there were two copies of this document tendered in evidence, Exhibits D2-4 and D3-7. The first, Exhibit D2-4, was tendered by Probuild and Mr Griffin was cross-examined about it. He could not recall having seen the document before.[104] A virtually identical copy was tendered by Tubeway, Exhibit D3-7.

95 The wording of Exhibit D3-7 was slightly different to D2-4. There had been hand written changes made to Exhibit D3-7 dealing with the use of the inertia reels on levels 8 and 10 of the Bank Apartments. Exhibit D2-4 provided that at the completion of a sliding door all inertia reels would be removed and the drop zone would be governed by the zone signage affixed to the door. Exhibit D3-7 deleted the words 'will be removed and the', modifying the use of the inertia reels. It therefore appears that the inertia reels continued to be used after completion of the sliding doors.

96 No adequate explanation for the difference in these two documents was given in evidence. There was confusion about the use of inertia reels on the site and in particular in drop zones. Mr Jackson was adamant that the inertia reels were the sole method of barricading the drop zone.[105] Mr Jackson was at pains to tell the Court that he had spent several thousand dollars purchasing the inertia reels and hoped that they were used by workers on the site.[106]

97 This is inconsistent with Mr Griffin and John Birt's evidence. John Birt is a Tubeway employee who installed the swing stages at the Bank Apartments. Mr Griffin and John Birt gave evidence that there was extra barricading over door C. Mr Griffin gave evidence the barricading tape, described by Mr Canko as 'idiot tape',[107] was used on door C.[108] John Birt gave evidence that there was a hoarding board and idiot tape applied to door C when he attempted to set up the swing stage on 9 May 2011.[109]

98 Although Mr Jackson could not specifically recall emailing either Exhibits D2-4 or D3-7 to Aluline, he stated in cross-examination that he could only assume they were.[110] He also maintained that the inertia reels were always a feature of the drop zone permit process that applied to the Bank Apartments.[111] That is, from initiation of the drop zone permit process until the project got to a point where the inertia reels were no longer required.[112]

99 It is unclear from Exhibits D2-4 and D3-7, which both contain the words 'at completion of works any temporary barricading is to be removed and the area clean and tidy', what this instruction is directed to. It seems to imply that there is permanent barricading, which one can only assume is a reference to the inertia reels earlier in the document, as contended by Mr Jackson.[113] But it is not clear what constitutes temporary barricading.

100 The permit memorandum, Exhibits D2-4 and D3-7, do not provide any information as to what instructions were given in relation to barricading and under what circumstances workers were not to proceed past a barricade.

101 Mr Jackson sent an email dated 4 November 2010 on behalf of Probuild in relation to drop zones. It was not addressed to Aluline.[114] He said in the email:

As the latest trades to start at Bank I require you to tool box all personnel that are working on or coming and going on the project into the drop zone procedure ...

Although the procedure is for the application of DZ permits it gives an indication of how seriously we take these areas. Given the inherently dangerous nature of drop zones it is important that new comers have a clear understanding of what is expected of them. The subject is discussed at inductions however the full procedure needs to be presented to workers as we have caught some out in these areas when permits are in place completely oblivious of the dangers overhead.

Please forward to myself the completed signed off tool box acknowledgement by C.O.B. 12th November 2010.

Paul Jackson.

102 Mr Jackson's evidence in relation to the 4 November 2010 email was that it was unlikely that he sent that email to Aluline via Mr Canko, on the basis Aluline would have learned about it at tool box or site meetings.[115]

103 Mr Jackson agreed that it was possible that the importance of the drop zone permit system may not have been imparted to workers if their employers, the sub- contractors, had not reinforced how important it was to follow procedure.[116] Mr Jackson also conceded that he could not confirm which version of the drop zone permit memorandum, Exhibits D2-4 or D3-7, was given to different trades and that there could be some confusion when workers reached level 8 as to what to expect.[117]

104 Mr Jackson agreed that there was some confusion about the operation of the drop zone permit system, a system that he devised and enforced.[118] He agreed that the confusion was either because workers had not been trained properly in the drop zone permit scheme or that they were not supervised properly in undertaking their work compliantly with the process. He agreed that potentially the implementation of the permit zone process was lacking given the confusion between one document circulating and the existence of another document.[119]

105 Mr Jackson's evidence was that there had been incidents where other workers had breached the drop zones and thus the drop zone permit memorandum was distributed to remind those working on the site about the sanctity of the drop zones and observing warning signs.[120]

Findings - drop zone training - control of Door C

106 The evidence portrays a confusing permit system designed and implemented by Probuild. It is not clear if Mr Griffin was tool boxed into the drop zone procedure. The understanding of the permit zone procedure differed between the witnesses, highlighting the confusion.

107 The Probuild site induction mentioned the drop zone permit system but only at a general level. Information concerning the drop zone permit was to be disseminated via tool boxing. The 4 November 2010 email[121] does not appear to have been sent to Aluline. Mr Jackson did not think either D2-4 or D3-7 was given to Aluline.[122] The permit memorandum[123] was issued after Aluline first began using the drop zones.[124]

108 The difference between Exhibits D2-4 and D3-7 was not properly explained in evidence. It highlights the confusion in the management and co-ordination by Probuild of the drop zones. Mr Jackson was adamant that the inertia reels were the sole method of barricading the drop zones.[125] This is inconsistent with Mr Griffin and John Birt's evidence.

109 Exhibits D2-4 and D3-7 refer to temporary barricading and that temporary barricading should be removed at the completion of works. This would be consistent with signage on inertia reels. It is not clear if there was also permanent barricading and if so, what was expected of workers confronted with permanent barricading. I accept that these were different forms of barricading used on level 8 on 9 and 10 May 2011. I accept that Door C had some sort of 'idiot tape' or red and white tape across it. What is not clear is whether the barricading on Door C was to be regarded as temporary or permanent and what was expected of a worker when confronted with such a barricade.

110 There is no evidence that Mr Griffin was instructed about questioning the sanctity of barricading. Mr Griffin's evidence was clear that when confronted with a barricaded area you did not go through it.[126]

111 As discussed it was Mr Griffin's evidence that he did not access the drop zone 12 on 10 May 2011 through Door C because it was barricaded with more than an inertia reel and to his thinking, not safe to access. As a consequence, he accessed Door A even though it was not designated for entry to drop zone 12 and was not specified by any party as the preferred means to enter the swing stage.

112 John Birt's evidence was that he was responsible for positioning the swing stage adjacent to Door A on the afternoon of 9 May 2011 at a distance from the building façade which did not allow Mr Griffin sufficient space to move around the cradle to enter it from the unobstructed side.[127]

113 Probuild submits that the placement of the swing stage on 9 May 2011 by John Birt disregarded what was described as 'the John Ray agreement' (discussed later in these reasons) and was in contravention of clauses 6.10 and 6.12 of the WorkSafe Guidelines 'What You Need to Know About... Suspended Scaffolds' ('the WorkSafe Scaffolding Guidelines')[128] and clause 11.3 of AS 4576 (Scaffolding Guidelines)[129] headed 'ACCESS', of the Australian New Zealand Standard - Guidelines for Scaffolding.

114 Probuild submits that its employees, Mr Cirianni, Mr Ray and Mr Jackson did not know and could not reasonably have been expected to have known that:

(a) Mr Griffin's safety when accessing drop zone 12 might be compromised as a result of 'ergonomic difficulties' due to the placement of the swing stage outside Door A;

(b) Door C was barricaded in such a way that Mr Griffin perceived it inhibited his own safe access through that door;

(c) Mr Griffin would enter the swing stage through Door A and did so in a manner that was described by Paul Jackson as absurd[130] and which left John Ray speechless;[131] and

(d) Mr Griffin would not follow the safety precautions expected of him by Probuild under the Drop Zone Permit[132] by failing to contact John Ray or someone from Probuild for instructions to clarify whether to use Door A to access drop zone 12.

115 Probuild submits that unless John Birt told Mr Ray that the swing stage could not be properly accessed through Door A, that it was not reasonably practicable[133] for Probuild to micromanage or control precisely where John Birt placed the swing stage, including on 9 May 2011, so as to reduce or avoid the risk of Mr Griffin suffering injury from the awkward manner he entered the swing stage on 10 May 2011.

116 Probuild submits that John Ray could not be expected to hold a worker's hand and walk them to the drop zone[134] once a worker had obtained the necessary drop zone permit. Probuild submits that John Ray had no cause to say anything to Mr Griffin about the 'pathway'[135] to access drop zone 12 on 10 May 2011 when Mr Griffin left the site office to make his way to level 8 to drop zone 12 as depicted on Exhibit P1.

117 I am satisfied that the responsibility for development of the drop zone permit and induction rested with Probuild. The system had problems with non-compliance which resulted in changes being made during the course of the works on the site. The drop zone and permit system were central to obtaining access to the swing stages safely. Probuild was exclusively responsible for providing access to the level 8 and controlled the process.

118 Mr Griffin, Mr Canko and John Birt gave evidence that the drop zone procedure required them to obtain keys. In contrast, Mr Cirianni, Mr Jackson and Mr Ray all said there was no requirement for a key on level 8.[136]

119 Exhibits D3-8, D3-7 and D2-4 make it clear there were omissions in relation to the operation of the drop zones and that Probuild knew of non-compliance amongst workers on site.

120 These exhibits also reveal that changes in the operation of the drop zones were made. It is not clear how the changes were communicated and it seems that Aluline, and accordingly Mr Griffin, were not included in the communication about the changes.

121 Mr Cirianni agreed that with the benefit of hindsight it would have been better for Probuild to have identified workers personally that were the subject of the permit system.[137]

122 The evidence supports Mr Griffin's position that the confusion about the barricading led him to use Door A to access the swing stage.

123 At the time the swing stage was assembled on drop zone 12 on 9 May 2011, there was adequate access via Door C. However, the access was barricaded. John Birt's evidence in relation to accessing drop zone 12 on 25 June 2011, which is when he says the swing stage was placed at 'D' was that it was barricaded with red and white tape.[138] There were no inertia wheels in the corridor because it was too narrow- 'they just barricaded it with red and white tape and say "No Entry" - or no-one enters red and white tape anyway. It is like a no-go zone'.[139]

124 John Birt's evidence about the drop zones was telling. He said that 'anything can change on the site. You could walk away and come back 10 minutes later and it is barricaded in a different way'.[140] He said that 'a drop zone is always a dangerous place[141] and that every time I've left a drop zone, even smoko, lunchtime, it is locked or barricaded, back off, so nobody can go out there ...'. [142]

125 John Birt understood that it was his responsibility to barricade the drop zone when he left it and that he was never instructed by John Ray prior to 9 May 2011 that he should leave a drop zone unbarricaded.[143]

126 John Birt said that even if an area was barricaded with red and white tape, he could go through the barricading if he had a drop zone permit from Mr Ray. He said that 'I would expect everyone to know because in the site induction, everybody that goes on site is inducted and told drop zones are permits only, so everyone has to have a permit'.[144]

127 In cross-examination Mr Griffin agreed that the only issue for him was whether he could go through Door C which was barricaded or whether he got to the swing stage through door A.[145]

128 It was put to Mr Griffin that he had complete access to drop zone 12 once he got the drop zone permit from Mr Ray:

So you agree with me, don't you, that you can access any part of that area [drop zone 12] because you're holding the green card? - - - No, we can't - we didn't have access to any part of the area. We had access to where the swing took us up and that was it. We couldn't go anywhere else on that veranda.[146]

129 Mr Griffin agreed that when he got to level 8 and was confronted with barricaded Door C, Door A and Window B, it was a matter for him as to which way he approached the swing stage[147] and that he took the most direct way.[148]

130 When asked in cross-examination why Mr Griffin did not call Mr Ray to query whey Door C was barricaded, Mr Griffin responded:

We was given that and we worked with what we had.[149]

'A' probably was not the access point.[150]

132 Mr Jackson confirmed that Door C was the designated access point to drop zone 12.[151] When asked 'What do you say to the proposition that Door C was barricaded before Mr Griffin had an opportunity to enter onto drop zone 12', Mr Jackson said:

... so what if the barricading was there? Big deal. If it presented a problem to him - what I don't understand is why it is he's not able to proceed past a high vis inertia reel but he's able to climb over a boat to effectively end up three feet exactly away on the other side of the established barricade.[152]

133 Mr Ray could not recall if there was barricading or a door at 'C' in May 2011 and he could not remember the type of access.[153]

134 Mr Griffin's evidence was that the drop zone via Door C was normally barricaded and that he would be given a key by Probuild which gave him access to Door A.[154] Mr Griffin's evidence was that the drop zone permit entitled him to access the designated drop zone but it did not allow him to go through a barricaded area. Mr Griffin was asked in cross examination:

But you were someone who was supposed to be in the drop zone - - - Yes.

So you're perfectly entitled to go through that barricade?

As part of our induction at the start of the site, you don't go through a barricaded ...

As part of your induction, you don't go through barricades on to drop zones unless you're the holder of a drop zone permit?

That's right.[155]

135 Probuild was aware that there was confusion amongst the workers about the drop zone permit system. There had been breaches of the drop zone permit system, prompting Mr Jackson's 4 November 2010 email. Probuild issued the drop zone permit tool box memorandum. The two versions of the tool box memorandum highlight the confusion within Probuild's system about the use of inertia reels and barricading generally. The general site induction did not adequately address the issue of barricading.

136 Ultimately it was reasonably foreseeable that Mr Griffin, when confronted with the barricaded Door C, would use an alternative point of entry to the swing stage via door A. There appears to have been an inertia reel at Door A. It is the type of barricading which suggests that it is temporary and can be easily removed and replaced. With the benefit of hindsight it is simple to suggest that Mr Griffin should have called Mr Ray given the limited space to enter the swing stage via Door A. However, as Mr Griffin said he worked with what he was given. Door A was an entry point that was not permanently barricaded.

137 Had Probuild's drop zone permit system and training in relation to the drop zone permit system, including barricading, been clear, Mr Griffin would have been properly informed and educated as to the ability to use Door C rather than Door A. The very fact that Probuild and, for that matter Aluline, could not be expected to micromanage workers and 'hold their hands', means that their safety systems, procedures and training had to properly prepare workers for matters of importance such as drop zones and barricading. This is all the more given the evidence of a number of witnesses that working with swing stages and in drop zones could be a dangerous activity.

Did Mr Griffin access the swing stage at position D on 10 May 2011 and did he suffer injury to his lower back on 10 May 2011?

138 Mr Griffin's evidence was that he injured himself on 10 May 2011 whilst awkwardly stepping into a swing stage at the Bank Apartments located outside Door A.[156] Mr Griffin said that either on the morning of 10 May 2011 or the night before he was told by Mr Ray that he and his colleague Mr Mick Hill (an Aluline employee) were rostered on a swing stage to do defect work on balustrading.[157] Mr Ray gave Mr Griffin the apartment numbers that had to be rectified. He could not recall the apartment numbers, but understood the location as being drop zone 12 on level 8.[158]

139 Mr Griffin said that he would have gone to Probuild's site office and signed in the Aluline employees on the morning of 10 May 2011. Mr Griffin knew that he was going to use a swing stage so he got a safety checklist which required him to do a number of things before getting into the swing stage.[159] Mr Griffin said he got 'a permit to go into that drop zone, a tag with its key on it'.[160] Mr Griffin's evidence was 'It is a long time ago, but I'm not sure the key unlocked the doors going out to the balcony'.[161] Mr Griffin's said that he believed that on 10 May 2011 he would have gone to the roof at level 34 of the building to do a visual check of the swing stage counter weight 'and anything - make sure nothing looks out of place basically'.[162] Mr Griffin, said Mr Hill, would have checked the swing stage's position.

140 After their respective checks were conducted, Mr Griffin completed the daily checklist. There are two daily checklists tendered into evidence, P2 and D3-11. P2 was a blank daily checklist and D3-11 was a daily checklist dated 25 May 2011, signed by Emma Champion, an Aluline employee. There was no daily checklist tendered into evidence for 10 May 2011 signed by Mr Hill or Mr Griffin. Mr Griffin's evidence was that he would have completed the checklist upon speaking to Mr Hill except for the questions he was not qualified to answer. For example, question 8 which asks 'Make sure that the power source is properly earthed'. Mr Griffin said he recalls talking to Mr Jackson about not being able to complete all of the daily checklist and was told 'If you can't fill it out you can't fill it out.'[163]

141 Once Mr Griffin completed the checklist he returned it to the site office and left it on the desk where he got the blank form. After that, Mr Griffin made his way to level 8. Mr Griffin identified the door marked 'A'[164] on Exhibit P1 as the door he used to access the swing stage at the place marked 'D' on P1. Mr Griffin said there was 'no door, there was just orange barricaded zigzagging from top to bottom restricting someone to walk out there, I presume' at Door C.[165]

142 Mr Griffin said he probably noticed the orange barricading on Door C 'when I was in the swing from the outside. I'm just trying to think common-sense the first time I would have seen it'.[166]

143 It was Mr Griffin's evidence that on 10 May 2011 when he got to the door marked 'A', he realised it was the point to get through as the swing was on the other side. He said he recalled seeing that the entry marked 'C' on P1 as he walked down the corridor, 'and whether I spoke out loud or - I just thought to myself obviously that seemed permanently barricaded not to go through ... So I did have a look at it, but that's what they set out for us and that's how we got into the swing'.[167]

144 Mr Griffin's evidence was that he unlocked the door marked 'A' with the key he got on the tag that gave him access to drop zone 12.[168] He described the door marked 'A' as narrow[169] and that the swing stage was hard against the building, maybe two to four inches from the building.[170]

145 Mr Griffin then described how he accessed the swing stage:

On the swing there's a bottom rail or a kick rail, half way up. There's a mid-rail, and there's a top rail. We climb the outside step by step until - and held on to the door - until I got my body above the height of the swing ... held on to the door frame, used the edge of the swing to climb to the top level until I was high enough to get into it. ... once I got into it, I would have been squatted, with both feet on the top rail of the swing stage. ... I was squatted on the swing, the door opening was back probably 100 maybe 200 ml from the top of the rail where I was holding on to, so I was sort of in a leaning back position whilst squatting ... it was probably the best I could do yeah, yeah. ... I got my feet off the top rail and into the swing the best way I could ... obviously, it was awkward because I was trying to keep balanced from behind me and try and land my feet in the area that, once I got there, I was stable. It was a bit of a - it would have been a bit of a twisting motion, to the best of my memory ... Awkward was just the way that I had to land into it ... that's when I felt a bit of pain in my back ... it was down the left side of my back ... [171]

146 Mr Griffin's evidence was that he mentioned to Mr Hill that his back was hurting a bit getting into the swing stage. He thinks he said it once Mr Hill had gotten into the swing stage.

147 The next day, 11 May 2011, Mr Griffin attended work at the Bank Apartments and saw Mr Alan Bennett, Probuild's first aid attendant.[172] Mr Griffin completed an entry in the register of injuries dated 11 May 2011.[173] The entry was completed and signed by Mr Bennett. The details of the tasks being carried out at the time of the injury were recorded as: 'accessing swing stage (twisted back)'. The parts of the body recorded as injured were 'strained lower back'. The cause of the injury is recorded as 'twisting whilst accessing a swing cage'. The register indicated that an ice pack was provided, Mr Canko was notified and Mr Hill was a witness.

148 Mr Griffin was asked whether he did any work on the southern elevation and he said that Aluline did not have any work in that area whatsoever, as there was no balustrading there. This is consistent with Mr Canko and Mr Ray's evidence.[174]

149 Mr Griffin made an affidavit in support of his serious injury application on 16 May 2013.[175] He deposed that he injured his back whilst getting into a swing stage on 10 May 2011.

150 Mr Hill gave evidence that Mr Griffin reported to him that he had hurt his back but Mr Hill could not remember when that took place.[176]

151 Mr Griffin's WorkCover claim form dated 3 June 2011 describes the injury 'climbing into the swing and twisted back' as occurring on 10 May 2011, and records Mr Hill as a witness to the incident. [177]

152 Mr Griffin saw his General Practitioner, Dr Hormiz, on 17 June 2011. At that consultation Mr Griffin presented with a sore back 'for over a month and he stated that he hurt his back a few times at work, but he wasn't very clear in the information or dates or how'.[178] Mr Griffin saw Dr Hormiz again on 21 June 2011. He came for the results of an x-ray that Dr Hormiz had arranged for him which showed that he had mild degenerative arthritis in his lumbosacral spine and Dr Hormiz explained to Mr Griffin that this condition was something that could happen with age and he was to avoid lifting, bending or carrying heavy weights. Mr Griffin asked Dr Hormiz for a certificate for light duties for the rest of the week as he was feeling better and she noted that he went back to work the same day.[179]

153 Dr Hormiz next saw Mr Griffin on 24 June 2011. He presented for a backdated WorkCover certificate. Mr Griffin told Dr Hormiz that the date of the injury was 25 May 2011. The WorkCover certificate of capacity dated 24 June 2011 described the injury as 'lower back pain since 25/05/2011 as he was climbing up the swing on the side of the building and felt he twisted his lower back while trying to go through a narrow door into swing since he has pain in his lower back and has been feeling tight in both upper thighs. Lower back pain (lumbar) and muscle strain'.

154 In relation to the 17 June 2011 consultation Dr Hormiz' evidence was that she recorded 'for a month' because Mr Griffin did not give her an exact date. She considered it was about a month or that it could be just over a month or the end of a month.[180] Dr Hormiz issued a second WorkCover certificate of capacity dated 28 June 2011. The same details as in the 17 June 2011 certificate were provided.

155 On 27 July 2011 Dr Hormiz issued a further WorkCover certificate of capacity for Mr Griffin. On this occasion the description of the injury was amended to reflect the date as 10 May 2011 rather than 25 May 2011.[181] Dr Hormiz' evidence is that Mr Griffin corrected her about the date of the injury. She believes Mr Griffin went back to his workplace where he referred to documents which confirmed for him the date of the injury.[182] In cross-examination Dr Hormiz was asked:

How do you account for that change? - - - Obviously he corrected me. He said, 'No, it is 10 May', and I believe he went back to his workplace. There must be some document or something there and that is how he corrected himself but the details of the incident were the same.[183]

156 In cross-examination Dr Hormiz was asked in relation to Mr Griffin's attendances:

You're not there to further his legal case? - - - No - well, obviously when I saw Mr Griffin and when he had the back injury, he never thought it was going to go to this extent. No-one wants to have back surgery.[184]

157 Dr Hormiz was not challenged on her clinical findings that Mr Griffin's presentation was consistent with him sustaining an injury on 10 May 2011.

158 For completeness, I note a number of medical records were tendered into evidence by consent. Mr Garry Grossbard, orthopaedic surgeon, prepared a report dated 13 August 2013, requested by Mr Griffin's solicitors. Mr Grossbard recorded a history of Mr Griffin climbing into the swing cage which involved crawling through a small entry and jumping down into a cage. As he undertook the manoeuvre he twisted and landed awkwardly.

159 Mr Michael Shannon, orthopaedic surgeon, provided a report dated 20 August 2015.[185] Tubeway submits that Mr Shannon did not obtain an accurate history regarding Mr Griffin's previous back complaints.

160 Dr Malcolm Brown, occupational physician, provided a report dated 29 July 2013.[186] Dr Brown recorded an onset of back pain after an accident at work in May 2011 and reported that Mr Griffin had otherwise been well with no other significant medical history, or history of other accidents.

161 Mr Daryl Nye, neurosurgeon, recorded that Mr Griffin underwent a knee reconstruction but denied prior back pain.[187]

162 Dr Ralph Poppenbeek, occupational physician, provided a report dated 17 May 2012.[188] Dr Poppenbeek noted a report of his injury dated 10 May 2011 and that by early June Mr Griffin was having such trouble it lead to his doctor (who was not named) putting him off work for three days. Dr Poppenbeek did not record any prior history of back injury apart from a muscular strain in the back around 20 years ago.

Findings - did Mr Griffin suffer injury on 10 May 2011?

163 Tubeway submits that an incident in late May or late July 2011 was the most likely cause of Mr Griffin's injury, not an incident on 10 May 2011. Tubeway relies on the histories given by Mr Griffin to various doctors and experts, whose reports were tendered into evidence, as support for such later incident being the cause of the injury to Mr Griffin.

164 The difficulty is that at no point were the doctors challenged about their conclusion that the incident on 10 May 2011 was the cause of Mr Griffin's injury. The overwhelming, unchallenged, medical opinion is that Mr Griffin's injury is consistent with the stated cause.[189]

165 Dr Hormiz completed a series of medical certificates from 25 May 2011 to 27 July 2011. It was not until 27 July 2011 that Dr Hormiz recorded the date of injury as 10 May 2011. Tubeway submits that it is conceivable that Mr Griffin relied on the date of 10 May 2011 given the register of injuries would lend support to a claim for compensation.

166 When the date of injury was changed to 10 May 2011, Mr Griffin had only put in a claim for compensation on 30 June 2011. The prospect of litigation, surgery, and the ongoing difficulties Mr Griffin has had were not contemplated by Mr Griffin or Dr Hormiz.

167 Tubeway submits that the delay in seeking medical treatment following the completion of the register of injuries on 11 May 2011 is consistent with Mr Griffin not suffering any real or significant injury on that date. I consider the register of injuries is consistent with Mr Griffin's description of the events and the mechanism of how he suffered the injury on 10 May 2011. Mr Hill provided corroboration stating that Mr Griffin reported injury to him in the following terms:[190]

He just said, 'I've injured my back' and I think, from recollection, it was to do with getting out or getting in to the swing stage.

168 Mr Hill's evidence was that he discussed with Mr Griffin filling in an incident report.[191] The register of injuries[192] identified Mr Hill as a witness, supporting the findings of the injury reported and confirming events of 10 May 2011. This evidence was not challenged.

169 Tubeway submits that Mr Griffin cannot be accepted as a witness of truth. This is on the basis that he provided false information to the Australian Taxation Office regarding expenses on his taxation return. Further, Tubeway points to Mr Griffin's failure to re-attend Court to be examined further in relation to late disclosure by Probuild of injury registers and check lists. Tubeway submits that Mr Griffin's failure to attend court in the circumstances reflects poorly on Mr Griffin where his credit is a live issue in the case. Tubeway submits that if Mr Griffin had no concerns about providing a truthful account with what occurred at the Bank Apartments, it can be inferred that he would have returned to Court.[193]

170 Tubeway relies on Jones v Dunkel[194] in inviting the Court to infer that Mr Griffin's potential further evidence would not have supported the VWA's allegations that he was injured solely on 10 May 2011, which in turn support Tubeway's submission that the injury subject of the claim made by Mr Griffin and the VWA did not occur on 10 May 2011. Tubeway submits that an inference should be drawn that Mr Griffin's evidence would have supported a finding that it is likely that he was on the swing stage with Emma Champion on 25 May 2011 consistent with Dr Hormiz' noted injury on 25 May 2011.

171 I consider Mr Griffin gave his evidence in relation to the incident on 10 May 2011 in a calm and compelling manner. He gave frank evidence as to the awkward manner in which he descended into the swing stage. This evidence was not challenged.

172 Dr Short, a biochemical engineer expert witness, advised that the force applied to Mr Griffin's spine in such a manoeuvre could be 'over a ton'.[195] This evidence was not challenged.

173 Mr Griffin stated the position of his initial pain has remained consistent since 10 May 2011.[196] This evidence was not challenged.

174 Importantly, the registry of injuries provides a contemporaneous and consistent account of an injury occurring on 10 May 2011. It was completed by an independent third party, Mr Bennett. This evidence was not challenged.

175 Mr Hill's evidence that Mr Griffin reported injury to him and that it had to do with getting in to the swing stage; that he discussed with Mr Griffin filling in an incident report[197]; and the register of injuries identified by Mr Hill as a witness were not challenged.

176 Mr Griffin is a non-party to the proceeding and ultimately has nothing to be gained by its outcome. Further, Mr Griffin made an affidavit in support of his serious injury application on 16 May 2013 in which he deposed that he injured his back whilst getting in to the swing stage on 10 May 2011.[198]

177 Tubeway endeavoured to attack Mr Griffin's credit on the basis of the entries in his tax returns about vehicle expenses. I consider the answers elicited in cross-examination went little or no way to establishing there had been any impropriety on Mr Griffin's part. In any event, I am not satisfied that any attempt to inflate his vehicle expenses in any way can lead to an inference that he did not sustain an injury on 10 May 2011.

178 I consider that Mr Griffin was a witness of truth in relation to his account of how he was injured, the circumstances in which he was injured and the condition of the worksite of 10 May 2011 where he was injured.

179 I am of the opinion that the incident on 10 May 2011 caused Mr Griffin's injuries as pleaded.

Where was the swing stage placed on 10 May 2011?

180 Mr Griffin and Mr Ray gave evidence that the swing stage was outside Door A[199] on 10 May 2011.

181 The evidence in relation to the location of the swing stage on 10 May 2011 is at odds. The documentary evidence in part supports Tubeway's submission that the swing stage was on the southern elevation on level 8, drop zone 3.[200] Mr Griffin and Mr Ray's evidence is that the swing stage was outside Door A. Mr Ray as the façade supervisor had, more than any other witness, day to day knowledge and direct control over the location of the swing stages. He was responsible for co-ordinating the various trades and jobs including the use and location of the swing stage and had overall knowledge of the use of swing stages at the Bank Apartments at the relevant time.

182 Mr Ray was the foreman for the façade works on levels 8 to 34 and he was also in charge of swing stages for the entire project from the ground floor to the roof.[201] He was responsible for creating the swing stage rosters for the project.

183 There was no balustrading work for Aluline to complete on the southern elevation. This was confirmed by Mr Canko,[202] Mr Cirianni[203] and Mr Ray.[204]

184 There is documentary evidence that swing drop 21 was positioned at drop 21 on the southern elevation. This was also supported by the oral evidence of John Birt and Richard Birt.

185 There were two level 8 plans discovered in this proceeding. The first level 8 plan was discovered by Higgins,[205] and the second was discovered by Tubeway.[206] The level 8 plans depict the position of swing drop 21 on the southern elevation. The level 8 plan was provided to Higgins at the tender stage of the project.[207]

186 The evidence of Richard Birt, Tubeway's managing director, was that he was not given any other plan of level 8 other than Exhibit D3-9 and that he was given it at the tender stage.[208] This is consistent with Mr Ray's evidence.

187 Mr Ray created a document somewhere between mid to late 2010, after swing stages had been erected, which was in effect a schedule of works referable to the use of swing stages.[209] The purpose of the document was to assess every elevation that 'was on the job and what works had to be done on that particular elevation and this was just the check sheet to sign off works had been complete per elevation'.[210]

188 The schedule of works referable to the use of swing stage documents identified 32 swing stage numbers, including swing stage 22A. It recorded swing drop 20 on the southern elevation[211] and swing drop 21 on the western elevation of the Bank Apartments.[212]

189 Mr Ray's evidence was that Exhibit D2-12 was a document he created. It was a schedule for the swing stage work based on his experience and an assessment of the work to be done using the swing stages, which allowed for various trades to 'get in, get it done and get the next trade in'.[213]

190 Mr Ray explained that Exhibit D2-12 was a blank document and that in the course of the project he worked into the document dates for the various trades that would have access to the swing stages. He said that he had a copy of Exhibit D2-12 which was filled in, above his desk, so that if someone wanted to find out what elevations were complete they could come to his desk and see it.[214]

191 Mr Ray gave evidence in relation to Exhibit D3-6, a floor plan of level 8 that had the swing drops marked in handwritten circles on the plan. Mr Ray's evidence was that he worked from his marked up drawing of Exhibit D3-6, however, his copy was an up to date copy unlike D3-6.[215] Mr Ray said that it was he and Mr Cirianni who were responsible for the allocation of the swing stages and what trades would work in the different swing stages.[216] Mr Ray was adamant that Exhibit D3-6 was not the floor plan he worked from.[217]

192 Mr Ray was asked to identify from his knowledge where drop zone 21 was on his plan and his evidence was 'It was on the west side above the plant enclosure'.[218]

193 Mr Ray marked D3-6 with a 'Y' to indicate where on his working copy of D3-6 he considered drop zone 21 was.[219] It was at the location identified by Mr Griffin on the western elevation marked 'D' on Exhibit P1 and where Mr Griffin said the swing stage was on 10 May 2011.

194 In relation to explaining why the swing drop on D3-6 identified the swing drop on the west elevation as 22 not 21 (it was marked as 21 on D3-6 of the southern elevation, which is where Tubeway submits it was on 10 May 2011, and not on the western elevation marked down as Exhibit P1) the following evidence was given by Mr Ray in evidence-in-chief:

Are you able to say why what you have marked as letter Y on someone else's plan has 22 next to it and not your 21? - - - This was probably marked off one of the original mark-up drawings that I didn't do, but when I took over, there were locations on site where we had to add swing stages and take them away. So one became 2, 2 became 1, tricky corners that were never allowed for were added into, and that was based on my assessment on site.

...

So that is one instance. Can I take you over to the far corner of the plan at what is circled as number 17. Was there an issue with that particular corner? - - - Yeah, there was. And it was? - - - There was. I had to add an additional swing drop on that corner because the balconies didn't go all the way to the corner, the balcony stopped short, so there was a smaller swing, a small bay - probably just enough to two guys in it - on that corner. So 17 would have been 17 and 18 would have been installed on the corner.

Could you mark where is 18 is, please, on the corner with a Z? - - - Where I had it?

Yes, where you had it, with a Z, please. Mr Ray, if this was your plan, which it is not, but if it was, are you able to say where drop 20 on your plan would be located with reference to D3-6 - you have got to go to - - - ? - - - I'd have to look at this one to find out. That is on the south elevation and it would have moved to where the 21 is on this drawing.

Just to be clear about that, is your evidence at drop 20, that you allocated, is that where that X is? - - - Yes.

You'll see on this plan a 22. Do you see 22? - - - Yep.

What is your evidence about what happened to that drop? - - - That would have been pushed along the west side to not where 10 is. There was two side by side. 21 and 22 were side by side but the angles of the building changed as it went up, so it had to be two individual ones on the west side and then, when it kicks again, there was another one. So on that deck there were three drops.

Just for avoidance of any doubt, if, on your understanding, a swing drop was moved from drop 20 to 21, could you indicate in what way that would have been on this plan? - - - It would move clockwise around the building.[220]

195 Mr Ray said in cross-examination in relation to D3-6 that from his knowledge, the plan of the swing drop as depicted was very inaccurate.[221]

196 Exhibit D2-6 is a swing stage roster for 9 May 2011 to 14 May 2011. Mr Ray created this document. He explained that he would ordinarily sit down on a Saturday after 'teeing up all the trades, making sure that they were available, and I'd sit down on Saturday and issue it Saturday afternoon for Monday'.[222] In relation to the swing stage roster, Exhibit D2-6, it identified Aluline working at swing drop number 21 on 10 May 2011. Mr Ray's evidence in relation to the swing drop numbering was:

If you look please, at 9 May, are the trades there indicated under 'sub-contractor'? - - - Yes.

Scroll down 9 May to those lists of drop numbers. What's happening, if anything, to drop 20 on 9 May - or at least a swing stage referable to drop 20? What is happening to that on 9 May? - - - 20 was a move to 21.

And that means? - - - Means they dismantled the swing from drop number 20 on the southern elevation and moved it to 21 on the western elevation.

Who moved it? - - - Tubeway.

How did they move it? - - - First of all they dropped the - actually it changed from day to day. This was a simple move from level 34. All they do is rotate the needles. So what they do, they move the needles, they take enough slack off the cables, move the needles or the parapet clamps, whatever it was at the time, and then go down below and move the boat.

Who are the actual workmen doing this, do you know? - - - It could have been Johnny and one of the other guys from Tubeway. Johnny who? - - - Bird, I think.[223]

197 Mr Ray said that the swing stage roster was not always a given but a wish list.[224] He said that he sent a copy of the swing stage roster electronically to all trades.

198 Mr Ray was shown the Probuild site diaries from 6 to 10 May 2011. He said he had daily recourse to the site's diaries. The daily site diary for 9 May 2011 noted '... site trade. 68. Tubeway. Three workers...' and they were to 'move swing drop number 20 to 21'.[225] Mr Ray's evidence was that the 9 May 2011 daily site diary was consistent with his evidence about the swing drop numbering and that swing drop 20 was moved to 21 on the western elevation. In relation to what was involved in the move from swing drop 20 to 21 on Mr Ray's evidence being from the southern elevation to the western elevation he said:

So moving a swing drop is a significant task? - - - Some of them could have been, yeah. Some were pretty straightforward. But this one, because you're going around the corner, it is the same level, so it would have taken maybe, off the top of my head, four or five hours.

That is moving from a south elevation to a west elevation? - - - Yes.

Is that tricky or not tricky? - - - It is trickier than others; it's not as tricky as others. If you were moving the needles from 34 to level 30, that would take more time.[226]

199 The Probuild daily site diary for 10 May 2011[227] identified 'Aluline at 52 - two workers. External swing stage works, drop number 22. Install infill pieces at front of base'.

200 Mr Ray's evidence about the work allocated for Aluline in the site diary for 10 May 2011 was that Aluline had two workers that were going to use the external swing stage drop number 21 to install infill pieces at the front of the base of balustrading. Mr Ray's evidence was that the balustrade system that they had on the project had a defect from the start, which was an exposed unpainted strip and that Aluline now had to come in and install a tiny bit of aluminium to cover the strip on every balustrade. Mr Ray said that there were no balconies on the southern elevation and therefore Aluline was not required to do any defect work on the southern elevation.[228] Mr Ray was shown Exhibit D2-21, the Probuild site diary dated 29 May 2011 and D2-19, a memorandum from Mr Ray to Mr Canko and John Lock in relation to the swing stage rosters. Mr Ray said that after 25 May 2011 to 2 June 2011, Higgins was to access swing drop 21 and that on 3 June 2011, the swing drop 21 was moved to swing drop 22, which in practical terms meant that the works were complete on swing drop 21 and Tubeway was then engaged to move the swing drop from 21 to 22.

201 Mr Ray agreed in cross-examination that the daily site diaries were prepared on Saturdays and that if things actually changed on the day, the site diary did not get altered because it was already issued to the trades and that he would sort matters out in the course of the week.[229]

202 In cross-examination it was put to Mr Ray that John Birt's evidence was going to be that he moved swing drop 20 to swing drop location 21, as depicted on D3-6 on the southern elevation. Mr Ray disagreed.[230] It was put to Mr Ray that John Birt would say that he positioned the swing stage at 21 as shown on D3-6 on the southern elevation. Mr Ray disagreed on the basis that the area John Birt said he would position the swing stage on drop zone 3 on the southern elevation at 21 on Exhibit D3-6, was too narrow to land a 'boat' in the gap.[231] Mr Ray's evidence was that he had an actual memory of how the swing stage was accessed to drop zone 3 on the southern elevation:

because we had to push ourselves off the wall as we went up until we got to level 8 and then it swung in, and then we went from 8 to 34.[232]

203 Mr Ray was very firm in his evidence under cross-examination about the access to the area marked 21 on Exhibit D3-6 on the southern elevation and that the swing stage was not placed between the building wall and the parapet wall, as it was too narrow.[233]

204 Mr Ray's evidence in relation to the swing stage in drop zone 3 on the southern elevation was:

Again I don't remember. I remember having to push yourself off the wall to go down to the gantry, but I never remembered - I can't remember ever passing the swing on that level.[234]

Would one access, to your recollection, a swing stage on drop zone 3 within the realms of the photograph that I showed you of the parapet wall, P31? - - -No, the access was from the east side, so you come through the Clarke Street side, I think it is, from Clarke Street, you go up the scaffold stair and then down the scaffold stair to the gantry. Then you walk along the southern elevation. That is all drop 3.

You can recall a purpose-built accessing point for drop zone 3? - - - Yes.

Via a gantry that was entered from Clarke Street and to continue until about the third level, where this remnants of the gantry is that we can see in that photograph? - - - That's right.[235]

206 It was put to Mr Ray that there was a daily checklist for 10 May 2011 by Aluline that had not been discovered and that accordingly one was never completed and that Aluline and Mr Griffin were not on the swing stage marked D on 10 May 2011. Mr Ray's evidence was that the fact that a daily checklist dated 10 May 2011 could not be located could be due to many reasons. It could be lost and that Probuild had trouble finding a lot of archived items. Importantly, Mr Ray said that unless a checklist had been completed he would not have issued a permit for the drop zone.[236]

207 When asked in cross-examination about the renumbering of the swing drops so that 20 became 21 on the western elevation, not the southern elevation, it was put to Mr Ray whether he had any reason to lie about this matter.[237] Mr Ray said:

No, not at all, no.

I'm only going off this mark-up here, what we worked off, that running sheet. 21 is on the west elevation, and that is what we used. That is why I'm saying that.[238]

208 Mr Ray agreed that after the swing stages were moved by Tubeway, they provided handover certificates to Probuild, through Mr Ray or Mr Jackson or Higgins or both.[239] Mr Ray agreed that only one swing stage was moved and handed over on 9 May 2011.[240]

209 In contrast to Mr Ray's evidence about the location of the swing stage on 10 May 2011 is Richard Birt and John Birt's evidence. John Birt's evidence was that on 10 May 2011, the swing stage was at swing drop number 21 as identified on Exhibit D3-6 on the southern elevation and that it was on the level 3 gantry whereby it was raised into position in the narrow balcony on the southern wall. John Birt agreed that he had no involvement in placing the swing stages in the swing drops as identified in Exhibit D3-6 and that it was Probuild's responsibility.[241] John Birt agreed that all his dealings were with Mr Ray.[242]

210 John Birt's evidence was that he knew where he erected swing drop 21 by reference to his diary and handover certificate.[243] John Birt gave a detailed explanation in evidence-in-chief of how he moved the swing stage from swing drop 20 to swing drop 21 on the southern elevation.[244] He said the swing stage was about 12 metres in length and about 540mm in width. Mr Ray disagreed with this evidence, saying the swing stage was left below drop zone 3 because he said if he allowed it to go down the wall and to go down to the gantry, they would have to push off the wall.[245]

211 John Birt said that once the swing stage was built, it was located on the balcony on level 8 on the southern elevation marked 'D' on Exhibit D3-9.[246]

212 John Birt estimated that it took three hours to dismantle one swing drop and build the other.[247] He gave evidence in relation to a Tubeway chargeable day labour docket dated 9 May 2011 ('the docket').[248] The docket covered work over a three day period and was in relation to moving swing stages from swing drop 26 to 27, 24 to 23 and 20 to 21. Details of the work performed on the docket were as follows:

Reallocate swing number from drop number 26 to 27, 24 to 23, 20 to 21. Accumulated 8 hours day work over three days. No drop zone/no crane lift.

213 John Birt's evidence in relation to Exhibit D3-9 was that it was on the computer in Mr Ray's office and that if anyone wanted it they would get it printed from Mr Ray.[249] John Birt said that he would discuss the distance in the swing stages from the façade with Mr Ray.[250]

214 In relation to the handover certificates, John Birt described them as documents that Tubeway provides to the customer, to say that the swing stage is suitable and available to use as they need it. He said it was like a 'roadworthy certificate'.[251]

215 There were two handover certificates prepared by John Birt dated 9 May 2011, Exhibits D3-15 and D3-16.

216 Exhibit D3-15 is a handover certificate addressed to Higgins and had the site address.. The scaffold/swing stage location is noted as 'stage 1'. The number of working swing stages is 1 and the duty category of the working platform is light/medium. The scaffold height/building height is level 41 and, importantly, the scaffold length/swing stage length is recorded as 12 metres. The number of bays long is recorded as 5½ and the type of access is recorded as 'roof parapet clamp'. The design drawing reference is noted as 'ground', and the document is signed by John Birt and dated 9 May 2011. John Birt's evidence was that Exhibit D3-15 was the correct handover certificate.

217 Exhibit D3-16 is the second handover certificate dated 9 May 2011 signed by John Birt. There is no client name or address or site address recorded on the handover certificate. The swing stage location is recorded as level 8 and the number of swing stages is recorded as 1. The duty category of the working platforms is light/medium, and the number of motors is recorded as 2. This detail was not provided in D3-15. The building height is 41, and the swings 41. Importantly, the swing stage length is noted to be six metres and the number of bays long is recorded as 'n/a'. The type of access in D3-16 is recorded as 'other', and the note next to design drawing reference is 'yes'.

I have inspected the scaffold/swing/bonus chair/monorails (circle which applies) as the above site address and as at 12.00am on the 9 day of 5 2011 I confirm it meets the requirements of the Australian Regulation Standards and Occupational Health and Safety Authority.

219 John Birt's explanation for the two handover certificates was that he must have started writing one handover certificate when he was in a hurry, he made a mistake and so he crossed it out and started to write the other one.[252] John Birt went on to say in evidence-in-chief:

What do you say in relation to the existence of these two handover certificates dated the same day? - - - There's a possibility that I was writing one out for each party, which would be Higgins and Probuild. I'm not sure if it was carried out to give them one each, but because I made a mistake - there was a mistake on this one, I probably didn't give that one, I just used the one which has got 'Higgins' on it. Who I gave it to, I wouldn't know. It was either Johnny Ray or Richard.[253]

220 In relation to the docket,[254] it records a total of eight hours labour performed by John Birt and another Tubeway employee. Details of the work performed are as follows:

Relocate swing number drop number 26 to drop number 27, 24 to 23, 20 to 21. Accumulated eight hours day work over three days. No drop zone/no crane lift.

221 The docket is signed by John Birt and dated 9 May 2011. John Birt's evidence was that the work in relation to relocating swing number 26 to 27 and 24 to 23 would have been done on 6 May 2011, consistent with the handover certificate for those swing drop relocations.[255] However, the relocation of swing drop 20 to 21 was done on 9 May 2011.[256]

222 John Birt said he would have given a handover certificate to Higgins and Probuild because as at 9 May 2011 both wanted proof of work done.[257]

223 It was put to John Birt that Mr Ray's evidence was that on 9 May 2011, the swing drop was moved from the southern elevation to the western elevation, making it swing drop 21 on the western elevation on level 8. John Birt said that had he moved the swing drop on 9 May 2011 from the southern elevation to the western elevation on level 8, it would have incurred a lot of expense and would have entailed work over a number of days. John Birt said it could have taken as long as two days, and then he would have had to have charged them two days for six men - or three men.[258]

224 In cross-examination, John Birt agreed that he had no memory of moving a swing drop to drop zone 12.[259] He said that apart from looking at the documentation, he had no memory of what he did on 9 May 2011 and could not remember where the various drop zones were on the site.[260] He did not remember the numbers of the drop zones.[261]

225 John Birt's evidence was that it was his routine when he was called to the Bank Apartments to move swing drops, to see Mr Ray and find out what drop numbers he wanted to move. Mr Ray had a plan on his wall with the drop zones and swing drops, and he would indicate from that map what he wanted moved.[262] John Birt said that he had a copy of a plan he carried around with him and that if it got lost, he would get another one from Mr Ray. He no longer had the plan he worked from in May 2011. Richard Birt gave evidence that the plan discovered by Tubeway, Exhibit D3-9, was provided by Higgins at the tender stage in October 2009.[263]

226 It seems therefore that the drop zone and swing drop plan that Mr Ray had in his office and on his computer were live documents and updated by Mr Ray. Exhibit D3-9 reflects the situation at an early stage, but not necessarily as at May 2011.

227 When cross-examined about the two 9 May 2011 handover certificates, John Birt agreed that the reference to the 'roof parapet clamps' was wrong, as needles were used. He then said he could not remember whether it had roof clamps or needles.[264]

But you're telling us it did have needles? - - - I don't know. I'm saying I don't know from here now what it did have. This document states, yes, roof clamps, but that might not mean it had roof clamps, that could be I put that down there because I need roof clamps for that next drop, where that is going to, so it is just a reminder that it is going to have roof clamps on the next one.

This is a handover certificate for what you have done; it is not a promise for what you are going to do. It is not even a document you keep to remind yourself? - - - It is a guideline, it is a guideline.

But you don't keep this document? - - - No.

So how is it going to remind you next time? - - - But like I just said, this one was changed. That one was written out. It says 'parapet clamps'. I put that to one side. That was going to have parapet clamps. I might have changed it. I could have prewritten this before, the same as Higgins Coatings is printed on there. I didn't write it.[265]

229 John Birt's evidence is that he constructed a swing stage at some point in drop zone 3, using a gantry and lifting the swing stage into the narrow balcony at position D on Exhibit P1.[266]

230 The documentation relied upon by John Birt is equivocal. Exhibit D3-15 does little more than indicate a swing stage of 12 metres was handed over on 9 May 2011 in stage 1 at the Bank Apartments. Its access was from the ground and it used roof parapet clamps. It does not refer to level 8.

231 The docket dated 9 May 2011 indicates that there were three moves from drop zones 26 to 27, 24 to 23 and 20 to 21, and that eight hours of labour was employed. The docket does not say how the hours were allocated, it does not say how big each swing stage was, the length of the swing stages, and it does not indicate whether the particular move required an extension or a walk-through.

232 John Birt agreed he could not recall the errors he made on the handover certificates.[267] He agreed that his evidence was based on the documents, but that he could not recall what he did on the day.[268] John Birt agreed that he placed swing drops where he was told to by Mr Ray.[269] In relation to the swing drops and drop zone 3 on level 8, on the southern elevation and access via level 8 rather than the gantry, this was again at Mr Ray's direction.[270]

233 Mr Ray's evidence was that he never saw the swing stage on the narrow balcony on level 8, on the southern elevation as described by John Birt.[271] Mr Ray gave evidence about access to drop zone 3 on level 8 on the southern elevation being from the east side through Clarke Street, up scaffold stairs into the gantry.[272]

234 It seems that in relation to the handover certificates, the one John Birt seeks to rely upon to support his evidence had incorrect details, importantly, the use of the roof parapet clamps and no reference to level 8. In cross-examination it was put to John Birt in relation to which was the correct handover certificate, D3-15 or D3-16:

What swing stage is this one? You have had a look at all the documents? - - - How many times do I have to explain this? There was one docket that I couldn't place so it was a mistake to me because it didn't fit there and it doesn't fit the other one because all the others are covered, so it is a duplicate of a mistake, so I put it to one side. Someone has picked it up and put it with the other one and it looks like there is two when there is one. That is all I can think of.

Despite the fact when you looked at it, you said there is nothing wrong with it at all, it is completely filled in properly? - - - But comparing the same date with the other one, it doesn't fit any of the swings, so what do I do? Stretch this one and say, 'No, it is not that one, it is this one'? I put it to the relevant one this.

I'm going to come to this in a bit of detail. When you go to the other one that is correct, you've told us it is wrong, D3-15? - - - Sorry?

When we go to the good one, the one you say must be right D3-15, you have told us that it is wrong? - - - Oh, whatever.

So you've got one that looks perfectly all right on its face? - - - This is the 12 metre swing.

That is the one that went down the corridor - down the lane because it is 12 metres. This doesn't fit. You have told us that one has mistakes on its face, that is, you can see that it has got some errors in it. You must have been in a hurry, you said? - - - I was in a hurry most days yes.

And you said, for instance, that it wouldn't have had roof parapet clamps, it would have had needles? - - - That is what I'm guessing, yes, without going there and seeing it.

It was a total guess, and so you guess that this one is right and the other one is wrong? - - - Because I can't stretch that boat to make it fit a 12 metre wall.

So we've got one that is wrong, which you say is the right one, and we've got one that is right, which you say is the wrong one, on your own marking? - - - Yes, you're correct there. [273]

Findings - was the swing stage located outside Door A on 10 May 2011

235 There was obvious conflict in where the swing stage was located on 10 May 2011. I prefer the evidence of Mr Griffin and Mr Ray that it was located outside Door A. Mr Griffin and Mr Ray gave evidence that swing drop 21 was located on the western aspect of the building outside Door A. I consider that Mr Griffin's recollection of the location of the swing stage is more accurate than John Birt's, given the fact that Mr Griffin suffered injury at the location outside Door A. John Birt's evidence was that he did not have an actual memory of where he placed the swing stage and that his reconstruction was based on the documents in his possession.

236 The documents themselves relied upon by John Birt are confusing and the two critical handover certificates dated 9 May 2011 are inconsistent. Interestingly, the handover certificate which had the more accurate information on it, D3-16, was not the one that John Birt considered to be the correct one. As counsel aptly said in cross-examination:

Funny isn't it? The one that is wrong is right and the one that is right is wrong, like the Marx Brothers? - - - You're talking about two different locations. One does fit that location and the other one doesn't.[274]

237 Critical is Mr John Ray's evidence which was consistent with Mr Griffin's evidence. Mr Ray was responsible for the location and placement of swing stages. It was his strong evidence that a swing stage such as that described in Exhibit D3-16 was never placed on the southern elevation as described by John Birt. Telling also is the fact that Aluline did not have any balustrade defect work to perform on the southern elevation. There would have been no reason for Mr Griffin to access the swing stage on the southern elevation on 10 May 2011. Further, the register of injuries identifies Mr Griffin as accessing the swing stage on level 8 on 10 May 2011.

238 I consider that the documents and John Birt's reconstruction do not provide for sufficient basis to displace Mr Griffin and Mr Ray's evidence.

239 In conclusion, I consider that Mr Griffin accessed the swing stage at position D on 10 May 2011.

240 John Birt placed the swing stage on level 8 at D on Exhibit P1 close to door A. Mr Griffin's evidence was that the swing stage abutted the building close to door A. He estimated the distance to be 'a couple of inches, two to four inches maybe'.[275] Mr Griffin's estimation was later corroborated by John Birt.[276]

241 Mr Ray directed where a swing stage was to be placed. Mr Ray gave evidence that he reached an agreement with John Birt that the swing stages were to be placed between 300mm and 450mm from the façade.[277] John Birt agreed that he had a verbal agreement to that effect with Mr Ray and in essence that Mr Ray would direct him as to where he was to place a particular swing stage, and he would do as directed.[278] It seems somewhat of a stretch given the changing nature of the worksite to accept that the swing stages would always be placed between 300mm and 450mm from the façade. There were for example times when the swing stages were placed on gantries and not near a façade. I accept John Birt's evidence that he placed the swing stage where he was instructed by Mr Ray. I do not accept that there was a hard fixed agreement that the swing stages had to be between 300mm and 450mm from the facade.

242 Although there is some dispute regarding the distance available to Mr Griffin to access the swing stage, I do not consider there was sufficient evidence to contradict Mr Griffin's account that the swing stage was too close to Door A to enable proper access.

243 Mr Griffin was inducted by Mr Silvio Martino of Tubeway in February 2011, pursuant to the terms of Tubeway's contract with Higgins discussed above.[279]

244 Mr Griffin's evidence was that he underwent the Tubeway induction before Mr Ray told Mr Griffin there were defects in the balustrading that needed repair.[280] Mr Griffin's evidence was that he remembered the induction process and that it took place on a balcony of the building. His evidence in relation to the induction was, in summary, as follows:

(a) he attended the induction with Jarryd Boltuc, an Aluline co-worker;[281]

(b) they were put through the operations of the motors and told what needed to be done before they got into the swing stages;[282]

(c) someone from Tubeway conducted the induction. The instructor was on the balcony with Mr Griffin outside the swing stage;

(d) the induction involved the Tubeway person showing them the operation of the motors, the switch that made the swing stage go up and down, and the lever that lowered them manually in case of power failure;[283]

(e) checking the counterweights on the roof directly above the swings, which involved going to the roof;[284] and

(f) they were told to conduct a visual inspection, that counterweights and pins had not been tampered with.[285]

245 Mr Griffin's evidence was that the induction on the balcony probably took 20 minutes, plus the time it took to get there and five minutes on the roof.[286]

246 Mr Hill said his induction took about 30 minutes and included induction about the OH&S and operating the swing stage.[287] Mr Griffin's evidence was that as part of the Tubeway induction he was told about the daily checklist that had to be completed by a worker before they commenced any works in the swing stage.[288]

247 Mr Griffin was adamant that they received no information about accessing or getting into the swing stage.[289]

248 Mr Griffin said that he was given no information about 'three points of contact'[290] and that he had not heard of the concept 'three points of contact' until the litigation commenced.[291]

249 In relation to the daily checklist, Mr Griffin said that you are guided by the checklist as to what needs to be done before using the swing stage and while using the swing stage. He was asked if he would check for access when doing the daily checklist, if you are going to unpin a swing stage. His evidence was, if it is not on the list, no.[292]

250 Mr Martino said the induction included one on one training on three points of access. Mr Martino said that he had performed thousands of inductions over 15 years and that he had never not covered the three points of access in his induction.[293] Mr Martino's evidence was that as part of the induction process, he enters the swing stage and shows the inductee the safe method of entering the swing stage, 'that is three points of contact - I demonstrate that'.[294]

251 Mr Martino conducted the induction Mr Griffin attended. He had been employed by Tubeway for 15 years as a sales representative.[295]

252 Mr Martino has a certificate in advanced building construction.[296] Mr Martino agreed he was not a practising scaffolder and that he had not had any experience as a practising scaffolder.[297] Mr Martino's evidence was also that after demonstrating the three points of contact, he required each inductee to get into the swing stage and perform the three points of contact to get into the swing. Therefore, each inductee got in and out of the swing while he was there.[298]

253 Mr Martino described what he did with the inductees as follows:

What else is contained in the induction? - - - I'm demonstrating all those things in the swing, so I'm about half a metre or - - -

If I could just stop you there. Where are you positioned when you're demonstrating all this? - - - I'm on one side of the swing, next to the motor.

What about in respect of three points of contact? - - - With respect to the three points of contact, after I've tested them, I bring the swing down, I get out of the swing and then I go through the three points of contact to get out of the hand, two hands, one foot, one leg over to get out of the swing.

Do you have any reference material that you utilise to use as a checklist or a guide? - - - Yes, I have got induction notes.[299]

254 Mr Martino's evidence was that the induction took approximately one hour.[300] Mr Martino said he had some induction notes that he used for his own reference.[301] His evidence was that he also provided the inductees with a copy of the induction notes. This document was produced for the first time when Mr Martino gave his evidence-in-chief. Mr Griffin was not asked about this document in his evidence. The swing stage induction notes, Exhibit D3-29, referred to ten items, consistent with Mr Martino and Mr Griffin's evidence about what occurred in the induction. However, it does not have any information about access into the swing stage using the three points of contact method or access to the swing stage generally.

255 Mr Martino was shown Exhibit D2-20, Tubeway's project safety plan for the Bank Apartments. Mr Martino described it as a site inspection report, which was designed to ascertain information about the site. He said it was prepared at the commencement of a job, before swing stages were supplied.[302]

256 Mr Martino said the project safety plan was not always completed, and he only did so when he needed some information.

257 Mr Martino confirmed that with the delivery of the swing stage came an information pack[303] which is given to the site supervisor by the swing stage delivery driver. Mr Martino's evidence was that he did not instruct or induct workers as to the information packs.[304]

258 It was put to Mr Martino in cross-examination that it was his evidence that he showed the inductees how to enter the swing stage using the three points of contact, but that he did not highlight the importance of it to the workers. Mr Martino disagreed, and said:

And I put to you that you don't highlight to the workers the importance of it? - - - I disagree.

What is it that you tell the workers is so important about the three points of contact? - - - To safely access the swing, you need three points of contact.

Why? - - - That is the safe way to access the swing.

Why? - - - Because you want to get into the swing.

And if I was a student of yours in this induction program and I asked that question, 'Why? Why is it the safe way?', what would your answer be? - - - Because it is the safe way to get into the swing. You need those three points of contact to get into the swing. ...[305]

259 The evidence of the Tubeway witnesses was contradictory on the issue of training inductees on the three points of contact. Mr Martino's evidence was that he always showed workers the three points of contact and required them to demonstrate the technique. He said that training workers on the three points of contact method may be critical and that it varies.[306] Mr Martino went on to say that unless he got in the swing stage, the induction did not take place.[307]

260 Mr Martino's evidence did not go as far as stressing the importance of the three points of contact and why the technique was critical to a worker's safety.

261 Richard Birt described training workers about the three points of contact as not the main important part of an induction and as 'very, very low key'.[308]

262 In cross-examination, Mr Canko was asked about Aluline's obligations under the OH&S Act as a sub-contractor with Probuild. Mr Canko accepted it was Aluline's obligation to ensure that its employees were properly trained and adequately skilled in all aspects of the provision and performance of their work as balustraders. He said Mr Griffin was a qualified glazier and was operating under Aluline's SWMS which had been approved by Probuild. Mr Canko's evidence was that at the time of signing the sub-contract with Probuild, swing stage use was not part of the contract. His evidence was that the issue of safe access to the swing stage was therefore not part of the contract, but that, 'It was drawn to the attention of Probuild and Probuild assured that the Aluline personnel will be inducted and shown how to use the swing properly and shown how to do a checklist every time before they got into a swing to make sure that it's safe for use'.[309] Mr Canko's evidence was not challenged.

263 Mr Cirianni's evidence was that the worker will have been inducted on the safe operation and use of a swing stage before they were given the Tubeway induction card.[310] Without it, they do not get signed onto a register and are not permitted to use the swing stage in the drop zone.[311]

264 Finally Dr Short also gave evidence regarding the contents of the Tubeway induction. Dr Short prepared three reports. In his first report, dated 13 February 2014,[312] Dr Short interviewed Mr Griffin on 12 December 2012. Dr Short understood from his interview with Mr Griffin that he had injured his back accessing a swing stage on level 8 of the Bank Apartments. Dr Short understood that the swing stage was in front of a sliding door and that there was not enough access for Mr Griffin to do a normal manoeuvre to get into the swing stage, and therefore Mr Griffin stood up on the 'balustrade and jumped down a distance of approximately one metre'.[313] That is, with the swing stage flush up against the building, Mr Griffin would normally throw his leg over to get into the swing stage, but could not do that manoeuvre on this occasion.

265 Dr Short had regard to a number of safety standards and regulations in preparing and giving his opinion, including:

• The OH&S Act;
• The Occupational Health and Safety Plant Regulations 1995;
• The WorkSafe Scaffolding Guidelines;
• AS 1576.1 (Scaffolding General Requirements);
• AS 1576.4 (Suspended Scaffolding);
• AS/New Zealand NZS 1596.1:2010, Scaffolding Part 1: General Requirements - p 9 (see T 423);
• Scaffold Checklist for Builders and Building Trades, Contractors, Version 2, publication date 13 October 2005.[314]

266 On the basis of those documents and his own experience and education, Dr Short was of the opinion that the situation that presented itself to Mr Griffin on 10 May 2011 when he encountered the swing stage on level 8 at the area marked A on Exhibit P1, was not safe[315] because it was not wide enough for Mr Griffin to access the swing stage by throwing his leg over.[316] It was Dr Short's opinion that there were reasonably practicable solutions for the restricted access and resulting landing, including:

(a) providing instructions to Mr Griffin (see poster recommended by WorkSafe - figure 2) and to train him, supervise and monitor him on the method of getting into the swing stage;

(b) Tubeway should have inspected the swing stage to ensure that access on level 8 was clear of obstructions in line with the WorkSafe guidance that 'properly constructed temporary stairways or ladder access is needed to all working platforms. Climbing up and down the scaffold framework is very dangerous';[317] and

(c) providing alternative safe access by another route.[318]

267 Dr Short considered it was important for workers, including Mr Griffin, to be properly educated in the way they access the swing stages,[319] and that the organisation best equipped to give that training was Tubeway.[320]

268 Dr Short was asked about the instructions he received from Mr Griffin in the preparation of his reports. In his first report dated 13 February 2014,[321] Dr Short recorded Mr Griffin's instructions as including the following:

(a) on 10 May 2011, Mr Griffin injured his back while accessing the swing stage;

(c) the front of the swing stage was against the building;

(d) there was a narrow corridor up to the swing stage so Mr Griffin had to hop or climb over the rail;

(e) Mr Griffin normally threw his leg over to get into the swing stage, but there was not enough room to do that;

(f) he climbed up onto the rail and twisted his back as he landed from a height of one metre;

(h) Mr Griffin kept working, as he presumed the pain would subside;

(i) after this incident, the stage was modified so that access could be gained from the front; and

(j) Mr Griffin took two weeks off.[322]

269 In his second report, dated 19 October 2015,[323] Dr Short recorded Mr Griffin's instructions as including the following:

(a) the swing stage was stationed on a 10 x 10 metre balcony;

(b) at the relevant time, the balcony was a few inches lower than the access floor; and

(c) Mr Griffin was given training to do with the swing stage which involved how to access the swing stage. The way to access the stage involved throwing one leg over and straddling the bar, and then throwing the other leg over.[324]

270 In cross-examination, Dr Short was asked about the training Mr Griffin received and the instructions Mr Griffin gave to him on this issue. Dr Short said he asked Mr Griffin, 'Were you given any training to do with the swing stage?', and he said, 'Yes'.[325] He went on to say:

So it is likely, isn't it, Dr Short, that Mr Griffin told you that he was given training to do with the swing stage which involved how to access the swing stage, that is right, isn't it? - - - That's right, yes.

And it's very important for you to actually record the mechanism of injury?

- - - Yes. ...

It's not likely you would've made a mistake, it is? - - - No.

Findings in relation to the swing stage induction

271 A central question in this case is whose responsibility it was to educate Mr Griffin as to the safe means of accessing the swing stage.

272 Dr Short was of the opinion that the organisation with the expertise best placed to educate the workers about safe access was the organisation with the expertise in the field, in this case Tubeway.[326]

273 Mr Jackson and Dr Short gave evidence that if a worker was not educated about safe access then that would fall short of what would be expected of a reasonable scaffolding provider.[327]

274 Mr Griffin gave evidence that he attended the induction into the use of the swing stage. The issue was whether the induction conducted by Mr Martino made reference to three points of contact. Mr Griffin's evidence was that the induction took 20 minutes plus the time it took to go up and down in the elevator and Mr Hill said his induction took about 30 minutes and included induction about the use of daily checklists which had to be completed. The checklists made no reference to safe access or the three points of contact. Mr Griffin was adamant that he received no information about accessing or getting in to the swing stage.[328] Mr Griffin had not heard the expression 'three-points of contact' until this case. Against this is Mr Griffin's answers to interrogatories denying that he ever attended an induction at this worksite. Further, when dealing with the evidence regarding Mr Griffin's induction, Dr Short's evidence was that Mr Griffin told him that he had been inducted in the proper method of entering a swing stage.

275 Mr Martino's evidence in summary was that although he could not recall Mr Griffin's actual induction, his invariable practice[329] was to induct as to the three points of contact. Mr Griffin said he had no such induction, but his evidence regarding his induction was unreliable.

276 It was submitted by Aluline and Probuild that Mr Martino was an unsatisfactory witness and that his evidence should not be accepted as having any probative value.

277 Aluline submits that when one compares the evidence of Mr Martino, who could not recall anything about inducting Mr Griffin or on the whole anything else about his work for Tubeway, with that of Mr Griffin that he was never inducted into the necessity of making three points of contact, Mr Griffin's evidence should be preferred. Aluline submits that given Richard Birt's evidence that the three points of contact was not the important part of the induction and was 'very very low key', the Court should accept that the Tubeway induction did not contain information about the three points of contact for safe entry and egress into the swing stage.

278 I accept Mr Martino's evidence that as part of the induction process he entered the swing stage and showed the inductees the safe method of entering the swing stage, that is the three points of contact, and that this was an invariable part of his induction process. I accept Mr Martino's evidence that he required each inductee to get in to the swing stage and perform the three points of contact to get in to the swing and that therefore each inductee got in and out of the swing while he was there. However, I do not accept Mr Martino's evidence that he highlighted the importance of using the three points of contact to enter and exit the swing stage to the inductees. Mr Martino's own swing stage induction notes, Exhibit D3-29 and the daily checklist prepared by Tubeway which had to be completed by a worker before they commenced their work from the swing stage, did not make any reference to the three points of contact or stress the importance of why such a technique was important for the worker's safety.

279 I do not consider that Mr Martino's oral evidence went as far as confirming that he stressed the importance of the three points of contact and why the technique was critical to a worker's safety.

280 I have reached the following conclusions as to the occurrence of Mr Griffin's injuries on 10 May 2011 and the roles played by the respective parties.

281 First the evidence of Mr Griffin, Mr Ray and Mr Cirianni satisfies me that a swing stage was placed at 'D' on level 8 on 10 May 2011. I reject John Birt's evidence on this issue which smacks of reconstruction.

282 Second, the medical evidence and Mr Griffin's evidence satisfies me that Mr Griffin's injuries were caused by the manner in which he entered the swing stage on 10 May 2011.

283 Third, the evidence of Mr Griffin satisfies me that in the course of his training by Mr Martino of Tubeway, he was shown the proper and safe way to access a swing stage using the three points of contact. However I'm not satisfied Mr Martino's evidence or the documents produced by Tubeway relevant to the swing stage training, that the importance of using the three points of contact was stressed to Mr Griffin or what could happen if the three points of contact was not used when accessing and exiting a swing stage.

284 Fourth, Tubeway failed to include an item on their daily checklist requiring assessment of safe access to the swing stage. Such an item would have led Mr Griffin to query whether he should access the swing stage via Door A. The issue of safe access into swing stages was not a major concern for Tubeway as demonstrated by the lack of such an item in the daily checklist, the lack of any reference to the three points of access or safe access in Mr Martino's induction notes and Richard Birt's evidence that safe access was of very low importance.

285 Fifth, the evidence of Mr Griffin, John Birt, Mr Jackson, Mr Ray and Mr Cirianni leads me to conclude that Probuild's drop zone permit system at the Bank Apartments in May 2011 was confusing and not properly understood by the witnesses. Probuild's general site induction and the tool boxing did not adequately put into place a clear drop zone permit system which gave clear instructions for workers as to:

(a) what they should do if confronted with a barricaded door or area; and

(b) how to determine access to a drop zone in circumstances where there was more than one entry point as there was when Mr Griffin entered level 8 drop zone 12, namely Door C and Door A.

286 The only reason Mr Griffin accessed the swing stage at 'D' via Door A, was because Door C was barricaded; it was his understanding that he should not go through a barricaded area under any circumstances.

287 Sixth, Mr Griffin was simply carrying out what he perceived to be his job at the time of the accident. He was entering the swing stage to complete the defect work on the balustrading as he was required to by Aluline at the request of Probuild. Aluline did not provide any instruction concerning the safe entry into a swing stage. The witnesses agreed that drop zones and swing stages could be dangerous. Mr Ray and Mr Jackson said that if they had observed the manner in which Mr Griffin entered the swing stage, they would have told him not to.

288 Seventh, the overwhelming evidence was that the way in which Mr Griffin entered the swing stage was inappropriate and not in accordance with accepted practice.

289 Eighth, the evidence of Mr Ray and John Birt satisfies me that Probuild was responsible for the placement of swing stages and that John Birt placed the swing stage at D in accordance with Mr Ray's instructions.

290 Ninth, Mr Ray, Mr Griffin and Mr Canko's evidence satisfies me that Probuild was responsible for the day to day allocation of swing stages and drop zones for the subcontractors, including Aluline. However, Aluline was still primarily responsible for its employees at the Bank Apartments. Mr Canko's evidence was that he attended daily and that he had an expectation that Probuild would ensure that Aluline's workers would receive the necessary training in the use of swing stages.

Part X of the Wrongs Act

291 An issue was flagged in relation to Part X of the Wrongs Act to this proceeding and the recovery proceeding.

292 Section 45 of the Wrongs Act provides that Part X does not apply to certain 'claims for damage' including 'a complaint to which Part IV of the Accident Compensation Act 1985 applies'. In addition s 138(3)(b) of the ACA proscribes the indemnity amount be calculated disregarding certain provisions including Part X of the Wrongs Act.

293 In VWA v Jones Lang Lasalle (Vic) Pty Ltd ('Jones Lang Lasalle')[330] the issues were discussed in the context of a s 138 recovery action. The discussion arose in the framework of an argument that a s 138 recovery action is not a claim for an award of damages, but it required hypothetical assessment of an award of damages and therefore the ACA did not apply. A further issue concerned whether the Part X provisions were to be disregarded in determining the defendant's liability under s 138(1). Beach J noted in the case before him that senior counsel for the VWA was content to accept that Part X applied, and Beach J indicated his own view that Alcoa Portland Aluminium Pty Ltd v VWA ('Alcoa') 'compels such a construction'.[331]

294 In the present contribution and related recovery proceedings all parties agreed the same process taken in Jones Lang Lasalle ought to be adopted. The VWA emphasised that its agreement was specific to this case only and is no way a general concession that Part X applies to a contribution and/or recovery action.

295 The parties note s 47 of the Wrongs Act, which provides that, except as provided, Part X is not intended to effect the common law.

296 On reflection, I query the appropriateness of adopting what has been agreed to by the parties, given the agreement includes applying Part X to the contribution proceedings. In Jones Lang Lasalle, Beach J adopted such a course in a recovery proceeding and did so after consideration of Alcoa. Beach J said in obiter:[332]

Notwithstanding that it is difficult to discern why Parliament would intend the provisions of Pt X of the Wrongs Act not to be taken into account in the calculation of the formula, in circumstances where they might fall to be taken into account on the question of liability, to hold otherwise would do unacceptable violence to the language in subss (1) and (2) of s 138. In my view, the reasoning in Alcoa, and in particular paras [16]-[26] compels such a construction.

297 I will adopt the course the parties agreed in relation to the application of Part X to the recovery and contribution proceedings. I do however have concerns about the appropriateness of applying Part X of the Wrongs Act to the contribution proceeding given the wording of the Wrongs Act. In the future, subject to hearing submissions, it may not be a course I adopt, in particular in relation to a contribution proceeding. I note that in this case and the related proceeding, the outcome on the facts would be no different if Part X of the Wrong Act or the common law test applied.

298 Mr Griffin's case against Probuild was a straight forward claim in negligence at common law and pursuant to Part IV of the Wrongs Act , specifically ss 14A and 14B(3). Mr Griffin asserts that Probuild had control of the Bank Apartments and that it owed him:

(a) a duty to co-ordinate the trades on site, to provide Mr Griffin with safe access to the swing stage;

(b) a duty to instruct Mr Griffin in relation to the drop zone permits and barricading on site;

(c) given Probuild's practical management and control of the Bank Apartments in particular, the drop zone permit system, it had a duty to ensure a safe system of work was implemented and enforced;

(d) given Probuild's control of Mr Griffin's work it assumed a duty, akin to an employer, to take reasonable care of Mr Griffin's safety in the performance of his work; and

(e) a duty to provide safe access to the swing stage.

299 Further, as Probuild had obligations under the OH&S Act, it had a statutory duty pursuant to the OH&S Regulations[333] in particular to identify hazards and control of risks associated with the use of the swing stage under regulations 3.5.2, 3.5.23, and 3.5.24.

What is Probuild's duty at common law - as an occupier of the premises?

300 Probuild's primary contention is that it discharged its duty, as the principal contractor, to coordinate activities on the building site for the use of swing stages. Accordingly, the other defendants should not be entitled to recover contribution from Probuild.

301 In the alternative, Probuild submits that should I find it just and equitable that Probuild pay contribution, the following apportionment should be adopted:

302 Probuild submits that as principal contractor it was subject to a common law duty 'to exercise reasonable care in coordinating the activities of various subcontractors, including Aluline's use of swing stages to perform external balustrade defect works on site.'[334] Probuild draws its description of the duty to which it was subject from Stevens v Brodribb Sawmilling Co Pty Ltd ('Stevens') in which Brennan J found that:[335]

[a]n 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...[336]

303 Probuild particularly relies on the following statement by Brennan J in that case:

The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. 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 the employment of independent contractors competent to control their own systems of work, or 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.[337]

304 Probuild also relies on Leighton Contractors Pty Ltd v Fox ('Leightons Contractors'),[338] in which the High Court affirmed the statements made by Brennan J in Stevens.

305 Probuild attempts to draw an analogy between its role in the Bank Apartments project and the position of Leighton Contractors Pty Ltd in Leighton Contractors. Probuild contends that, '[i]n the same way there was no justification for recognising a duty to provide induction training by Leighton to subcontract workers in the safe method of line cleaning following the pumping of concrete on site, Probuild owed no duty to Griffin to train him in the safe method of entering a swing stage once positioned by Tubeway inside a designated drop zone.'[339] In support of this analogy Probuild relies on the following observations made in Leighton Contractors: [340]

If Leighton owed a duty to Mr Fox and Mr Stewart to provide induction training to them in the safe method of line cleaning, it owed a duty to provide training in the safe method of carrying on every trade and conducting every specialised activity carried out on the site to every worker on the site. There is no reason in principle to impose a duty having this scope on a principal contractor. The latter is unlikely to possess detailed knowledge of safe work methods across the spectrum of trades involved in construction work. And a duty to provide training in the safe method of carrying out the contractor's specialised task is inconsistent with maintenance of the distinction that the common law draws between the obligations of employers to their employees and of principals to independent contractors.

306 In this regard Probuild contends that it was entitled to rely on the expertise of Tubeway and Higgins 'to implement a proper system for the safe use and operation of swing stages on site'[341]. This would include the provision of safe induction training, and safe positioning of the swing stages to allow safe access.

307 Probuild then submits that the drop zone permit system and related safety procedures it had in place evidenced Probuild's discharge of its common law duty as competent principal contractor coordinating relevant activities.[342] In further reliance on Leighton Contractors, counsel for Probuild submitted that an analogous self-contained and specialised task was that of Tubeway 'establishing or relocating a swing stage from a drop to a new drop.'[343] It was negligence in the performance of this task that undermined and compromised Probuild's safety procedures.[344]

308 In coming to its proposed apportionment, Probuild referred to the considerations identified by J Forrest J in Zealley v Liquorland (Aust) Pty Ltd ('Zealley'):[345]

In determining what is just and equitable contribution under the statutory provision it is established that there are two relevant considerations:

(a) the degree to which each of the parties has departed from the standard of conduct required of them; and

(b) the relative causal potency of each of the defendant's acts in relation to the injuries sustained by Ms Zealley.

309 Probuild suggests that a consideration of these two factors indicates that Tubeway and Aluline's acts had the greater causal potency, and departed to the greatest extent from the standard of conduct required by each party. In contrast, Probuild contends 'there was nothing more it could have done that was reasonably practicable on the morning of 10 May 2011 following the issue of the drop zone permit to Mr Griffin authorising him to access drop zone 12 to avoid or reduce the likelihood of his injury.'[346]

310 Aluline submits that Probuild owed a duty to Mr Griffin to:

(a) coordinate the trades on site to provide Mr Griffin with safe access to the swing stage; and

(b) instruct Mr Griffin that there were circumstances where he could question the sanctity of any barricade on site.[347]

311 Aluline further submits that Probuild breached these duties by failing to properly coordinate the trades on site to provide Mr Griffin with safe access to the swing stage, and failed to properly induct Mr Griffin regarding barricades.[348] In stark contrast to Probuild's submission, Aluline asks the court to attribute to Probuild contribution of 45%.

312 Aluline also relies on Stevens and Leighton Contractors to support these propositions, but submits that the present case is distinguishable from Leighton Contractors. Aluline contends that unlike in Leighton Contractors, the work being undertaken by Mr Griffin was not a self-contained operation which did not require coordination with other activities. Rather, it was necessary for Probuild to:

(b) inform Tubeway of where the swing stages were required;

(c) co-ordinate with the trades using the swing stage to let them know when and where they could be used. [349]

313 Probuild had the necessary ability to coordinate the various activities being undertaken, and was obliged to do so in a fashion that permitted safe access to the swing stage.[350] Probuild also had the skill to instruct workers as to the correct circumstances and procedure in which access through a barricade should be requested.[351]

314 Aluline further submitted that Probuild had, through its conduct, elevated its responsibility to that 'akin to a host employer'. The conduct Aluline relies on to support this argument includes:

(a) the high level of oversight and involvement in Mr Griffins work by Mr Ray;[352] and

(b) the description in the Probuild Induction Register of Probuild as Mr Griffin's 'supervising employer'.[353]

315 Aluline submits Probuild's level of control over the site, and role as a 'conduit' for communication meant it could not enjoy a slim percentage of contribution.[354]

316 Tubeway's primary contention regarding Probuild is that Probuild had practical managerial control of the site, and had overall responsibility for management and risk assessment. Tubeway submits that Probuild directed Mr Griffin to undertake the work by accessing the drop zone 12 where he was injured. Tubeway relies on Victorian WorkCover Authority v Centro Property Management (Vic) Pty Ltd ('VWA v Centro')[355] in this regard, and in particular the following findings by Bell J:

Although Ms Taylor always remained Superior Detection's employee, the work which she did at the centre was very much under Centro's practical management and control.[356]

...

Under the contractual arrangements, Centro could and did specify the actual content of the work which had to be done.[357]

317 Tubeway submits that Probuild had analogous control over the drop zone and the accompanying permit system, and had comparable power to direct Mr Griffin in the course of his duties. Tubeway argues that had Probuild 'properly inducted site personnel into the drop zone permit system and enforced the system, the injury to [Mr Griffin] would not have occurred.'[358] Accordingly, Tubeway asks the court to allocate Probuild 50% responsibility.[359]

318 Higgins submits that if there was negligence at all, the fault lay with the control and use of the drop zone.[360] With respect to Probuild, the fault consisted of failing to maintain a clear and consistent drop zone system.

319 Firstly and briefly, I reject Aluline's submissions that Probuild elevated its relationship with Mr Griffin and Aluline from principal contractor, to a relationship akin to host employer. The facts to do not support a contention that the relationship went beyond that of principal to sub-contractor. In particular I note my findings above that Aluline, through Mr Canko, retained a daily supervisory presence over Mr Griffin. I also accept Mr Cirianni's evidence that the reference to Probuild as Mr Griffin's supervising employer in the Probuild Induction Register is a typographical error.

320 It seems somewhat of a stretch to describe Probuild as a host employer on the basis of its role in inducting workers onto the site or the Probuild induction register reference to Probuild as Mr Griffin's supervising employer. There was no evidence from Mr Canko, Mr Griffin, Mr Cirianni or Mr Ray, that supports Aluline's submission that Probuild assumed something akin to a host employer role for Mr Griffin.

321 In light of my earlier factual findings, Probuild's submissions regarding reliance placed on Tubeway and Higgins, and the use of its drop zone permit system to discharge any relevant duty, cannot stand. In particular, I reiterate the following findings:

(a) Probuild had practical managerial control over the site;

(b) Probuild was responsible for the placement of swing stages;

(c) Probuild designed, implemented and managed the drop zone permit system;

(d) Probuild was responsible for the access point through which a drop zone was to be entered;

(e) Probuild was responsible for the induction into the drop zone permit system;

(f) The permit system was critical to obtaining safe access to a swing stage;

(g) The drop zone permit system was confusing, not properly understood, and did not adequately inform workers how to approach barricaded areas;

(h) The drop zone permit system did not inform workers how to approach access to drop zones with more than one entry point; and

(i) Probuild was aware that there was confusion amongst workers at the site regarding the drop zone permit system.

322 As such Probuild was not entitled to rely on Tubeway or Higgins, nor could it rely on the implementation of the flawed drop zone permit system to discharge its duty to Mr Griffin.

Applicability of Stevens and Leighton Contractors

323 In both Stevens and Leighton Contractors, the courts recognised that in certain circumstances a principal will have a duty to use reasonable care to ensure a safe system of work for independent contractors is in place.[361] In Stevens, Mason J suggested that such a duty would arise:

[W]here 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...[362]

324 To attract the protection of the principle stated by Brennan J in Stevens, it is not sufficient for Probuild to simply point to its engagement of independent competent contractors. In Stevens, Brennan J set out a number of preconditions to be satisfied before the 'entrepreneur' or principal contractor will not be liable for the 'negligent failure of an independent contractor to adopt or follow a safe system of work'.[363]

325 Brennan J found that the duty to use reasonable care in organising an activity imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risk of injury. A duty to retain control of working systems is not imported if the following conditions are satisfied:

(a) it must be reasonable to engage the independent contractors, and there must be reasonable care taken in engaging the independent contractor; and

(b) the independent contractors must be competent to control their system of work without supervision by the principal contractor.

326 However, once an activity has been organised, liability will not fall on the principal where the following requirements are met:

(b) the relevant operation or activity must be in the hands of the independent contractor;

(c) there must be no failure to take reasonable care in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility; and

(d) the negligent failure must occur within an independent contractor's area of responsibility, or within a shared area of responsibility.

327 I reject Probuild's contention that the circumstances in which Mr Griffin were injured were analogous to that in Stevens or Leighton Contractors.

328 This is because of the following key factual differences present in this case:

(a) in this case the site was a 'moving feast'. Changes to the site were occurring on a daily basis, and Probuild was responsible for the ongoing organisation of the site and consequent coordination of the numerous different trades that needed to access to the site. Accordingly I consider that the circumstances of coordinating the drop zones made it necessary for Probuild to maintain an ongoing responsibility for coordinating these activities, and '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.'[364] As such there was, practically speaking, no point at which the organisation required by Probuild had ceased, and the contractors were left to independently pursue their different tasks.

(b) critical to the conclusion reached in Leighton Contractors was the primary judge's findings that 'the line cleaning was a self-contained operation that did not require co-ordination with other activities on the site'.[365] In the present case the swing stages were for use by different trades, as were the drop zones. The drop zone permit system orchestrated by Probuild had been implemented in an attempt to address the very fact that these were not self-contained, trade specific areas; and

(c) unlike in Leighton Contractors, the requisite training was not that of a specialist trade - it was training as to the appropriate and safe access to drop zones, the use of the permit system, and the circumstances in which barricades may appropriately be questioned. All are matters within Probuild's ability to communicate, and over which Probuild had responsibility.

329 Accordingly, applying my factual findings to the conditions identified by Brennan J, it is evident that:

(a) the relevant activity had not been organised - organisation was ongoing;

(b) the relevant activity in which the negligent failure occurred (that is, the drop zone permit system, Mr Griffin's training regarding barricades, and the access provided to the swing stage) was fully 'in Probuild's hands';

(d) the negligent failure occurred within Probuild's area of responsibility.

What is Probuild's statutory duty under the OH&S Act and Regulations?

330 Section 20(2) of the OH&S Act outlines the matters to which regard must be had in determining what was reasonably practicable in relation to ensuring health and safety. These matters are:

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk.

331 Under s 23 of the OH&S Act, an employer, such as Probuild, must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health and safety arising from the conduct of the undertaking of the employer.

332 Although a breach of s 23 is an indictable offence, s 34 provides that nothing within Division 1 of Part 3 of the OH&S Act confers a right of action in civil proceedings in respect of a contravention of that Division.

333 Regulation 3.5.2 of the OH&S Regulations states that where a duty has arisen to identify hazards to health and safety in relation to a swing stage, the duty-holder may carry out procedures to identify the hazards for a class of swing stage rather than an individual swing stage. However, this is only in circumstances where the swing stages all have similar functions and productive capacity; and where the identification does not result in any person being subject to greater, additional or different risk to health and safety than if the identification were carried out for each individual swing stage.

334 Under regulation 3.5.23 of the OH&S Regulations, an employer must, so far as is reasonably practicable, identify all hazards to health and safety associated with the installation, commissioning, decommissioning, dismantling, erection and use of a swings stage and the systems of work associated with a swing stage. The employer's responsibilities only relate to the hazards associated with a swing stage specifically applicable to the workplace where the swing stage is used or located.

335 Regulation 3.5.24 of the OH&S Regulations requires that an employer ensures that any risk associated with a swing stage is eliminated so far as is reasonably practicable.

336 In order to provide practical guidance for compliance with the OH&S Act and Regulations, including understanding the nature of hazards and risks, various Australian Standards and guides have been published. These non-statutory documents sit outside the occupational health and safety legislative regime.[366] A number of these were raised in the present matter, including:

1. In respect of the alleged breaches of the OH&S Act and Regulations, Probuild submits that it complied with its statutory duty as 'an employer' having management and control of the workplace at the Bank Apartments to eliminate or reduce risks to health and safety so far as was reasonably practicable pursuant to Division 1 of Part 3 of the OH&S Act.
2. Although not admitting any liability, Probuild argues that any breach of the OH&S Act does not give rise to civil liability, pursuant to s 34 of the Act. Probuild submits that only the OH&S Regulations give rise to civil liability for a breach.[367]
3. Probuild submits that the following were indicative of the reasonably practicable steps it took to eliminate or reduce risks to Mr Griffin's health and safety when accessing drop zone 12 so as to enter the swing stage on 10 May 2011:
   • (a) it contracted with Higgins to make available swing stages to all other subcontractors requiring access on the worksite;
   • (b) Mr Jackson obtained and reviewed site specific occupational health and safety programs submitted by Aluline, Tubeway and Higgins. Probuild submits these programs were a recognised procedure for workers onsite to receive instructions and information to perform their work safely.[368] These programs contained:

340 The following measures were also raised as being indicative of Probuild discharging any duties under the OH&S Act and Regulations:

(a) the implementation and coordination of drop zone permit systems;

(b) Probuild's Environmental Health and Safety document 'Project Risk Assessment for Bank Apartments' dated 26 October 2010, which provided for a drop zone procedure and stipulated that only trained and competent personnel were to use swing stages;

(c) the monitoring of the overall site safety of all workers by Mr Jackson;

(d) the compulsory induction program provided by Probuild and completed by Mr Griffin; and

(e) the 'toolboxing' of workers into the procedures regarding designated drop zones.[370]

341 Probuild submits that it was not reasonably practicable for it to have directed Mr Griffin to use Door C instead of Door A, once the drop zone permit had been issued to Mr Griffin, authorising him to access drop zone 12 on the morning of 10 May 2011, the date of the injury.[371] Further, Probuild submits that the drop permit system instructions, which were provided to Mr Griffin, stated that if a worker was 'unsure of a particular permit zone or area, the worker should check with a Probuild supervisor', such as Mr Ray.[372]

342 It is Probuild's submission that a chain of three separate circumstances arose which created a hazard or risk from which the injury ultimately occurred:

(a) Mr Griffin not accessing the swing stage through Door C due to the barricading which he perceived meant there was no access;

(b) Mr Griffin then accessing the swing stage through the sliding door at Door A; and

(c) access to the swing stage at Door A being problematic as a result of Tubeway's placement of the swing stage.[373]

343 Additionally, Probuild submits that it was entitled to rely on Tubeway's daily safety checklist as being sufficient and in line with all standards, guidelines and regulations on the basis that Tubeway had reputable scaffolding expertise.[374]

344 On the basis of the above, Probuild submits that it undertook all reasonably practicable measures to eliminate or reduce any risks to health and safety, particularly under s 20(2) of the OH&S Act.

345 Liability has already been established for Probuild under the common law. In line with the approach of Bell J in VWA v Centro, the liability question can therefore be answered wholly by reference to the common law claim on negligence, with it not being necessary to consider the statutory claim.[375]

346 However, for the sake of completeness, I will make some brief comments about Probuild's statutory liability under the OH&S Act and Regulations.

347 It is settled law that specific OH&S Regulations can give rise to a statutory duty.[376] Further, as the High Court observed in Leighton Contractors, obligations under statutory enactments also have relevance in determining the existence and scope of a duty at the common law, although caution must be exercised.[377]

348 Probuild's potential statutory liability flows from the fact that the Bank Apartments site constituted a work premises for the purposes of the OH&S Act. As an employer, Probuild had a duty under s 23 of the OH&S Act to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health or safety.

349 Although s 34 of the OH&S Act provides that a breach does not necessarily confer a right to commence civil proceedings, Probuild's duty is informed by the OH&S Regulations, which can give rise to civil liability following a contravention.

350 A large number of regulations were pleaded against the defendants in the worker's statement of claim. Several were not pressed at trial and were clearly not applicable to Probuild, such as those regulations which related to manual handling, and those which only applied to designers, manufacturers and/or suppliers of swing stages.

351 Most relevant were regulations 3.5.2, 3.5.23 and 3.5.24, namely an alleged duty on Probuild to identify hazards and to control the risks associated with the use of the swing stage at the Bank Apartments.

352 I refer to my findings regarding the inadequacy of Probuild's drop permit system and the training provided in that respect. I find that these matters were demonstrative of a failure by Probuild to identify and to control the risks associated with the use of the swing stages at the Bank Apartments. I am therefore satisfied that there has been a breach of regulations 3.5.23 and 3.5.24.

353 Contrary to Probuild's contention that there was 'nothing more' it could have done to avoid the injury suffered by Mr Griffin, I have found that Probuild had primary responsibility for the injury. It could reasonably be anticipated that Probuild's failures - with respect to an inherently high-risk construction area, a drop zone - could result in injury. In line with J Forrest J's analysis in Zealley, I consider:

(a) Probuild departed to a high degree from the standard of conduct required; and

(b) Probuild's failures were causally significant to the injuries sustained by Mr Griffin.

354 Mr Griffin alleges that Aluline was an occupier of the premises pursuant to s 14A of the Wrongs Act, and as such owed him a duty pursuant to s 14B(3).[378] Further, it is alleged that Aluline had a duty to take reasonable care for Mr Griffin's safety while he was performing his duty at the Bank Apartments using the swing stage.[379]

355 Aluline admits it was Mr Griffin's employer and it owed a non-delegable duty of care to Mr Griffin to provide him with a safe place of work and a safe system of work. Aluline concedes that it has breached that duty and that the breach was a cause of Mr Griffin suffering injury to his back on 10 May 2011.[380]

356 Aluline concedes that it is obliged to conduct an assessment of the duties Mr Griffin is to perform as a balustrader. However, Aluline submits the obligation should not reasonably extend to requiring Aluline to conduct an assessment of the method by which Mr Griffin is to access the swing stage or the access that is made available to him.

357 Aluline submits the obligation to conduct an assessment of the method by which Mr Griffin accessed the swing stage or the access that is made available to him should not be visited on Aluline for the following reasons:

(a) Aluline is not an expert in the use of swing stages;

(b) Aluline is not qualified to undertake that task given its lack of expertise;

(c) Aluline is not in the best position to determine what constitutes good access and what constitutes bad access;[381] and

(d) Aluline was not qualified to prepare a SWMS for accessing the swing stage, and Probuild, would not permit Aluline to perform a SWMS for that task.

358 Aluline submits that the duty to properly educate Mr Griffin about:

(a) the importance of maintaining three points of contact when accessing the swing stage; and

(b) refusing work until such access can be provided,

rests with Tubeway, in the design, access and operation of swing stages.

359 Further, Aluline submits it is not its role to educate or authorise Mr Griffin to breach a barricade in any circumstances. Aluline submits that Probuild as the principal contractor in general control of the worksite, had both the role and responsibility to regulate these barricades and ensure workers at the Bank Apartments understood when a barricade could be breached.

360 Aluline concedes that if it has delegated any of the duty it owed to Mr Griffin, and the person or entity to whom it delegated responsibility has fallen short of the standards ordinarily expected of them, it cannot escape liability.

361 Aluline submits that just because it has a non-delegable duty, it does not mean that Aluline should bear the majority of the responsibility for Mr Griffin's injuries. Aluline submits that the relative departure from the standard of care expected of Aluline as Mr Griffin's employer is minimal when compared to the departure from the standard expected from Probuild or Tubeway.

(a) Aluline failed to ascertain the Probuild drop zone system, and ensure that Aluline's employees were properly trained in that procedure whether by toolboxing or otherwise;[382]

(b) Aluline completely ignored its important role in the pyramidal structure of safe system at the Bank Apartments. Aluline breached its own Occupational Health and Safety and Environment Management Plan;[383]

(c) even if it was reasonable for Aluline to delegate its duty to educate Mr Griffin about the three points of access, it was not reasonable for Aluline to delegate its responsibilities to educate Mr Griffin about refusing to continue with the defect work on 10 May 2011 until safe access could be provided;

(d) any training in the importance of an employee complying with the safe system of work is Aluline's responsibility;[384]

(e) Aluline failed to devise, implement and enforce a safe system of work and/or a safe place of work sufficient to avoid and/or minimise Mr Griffin's risk of injury on entering a swing safe, having relied on Tubeway to achieve this;[385]

(f) Aluline's OHS&E Management Plan dated 7 July 2010,[386] and in particular the SWMS is lacking any reference to the safe use or operation of a swing safe, contained systemic deficiency by reason of its failure to address the safety of employees, including Mr Griffin when seeking to access a drop zone to enter a swing stage; and

(g) Aluline failed to assess the risk of entering into an area to access the swing stages in its SWMS.[387]

363 An employer owes an employee a non-delegable duty of care because:[388]

The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.

364 The non-delegable duty rests on the employer 'whether or not the employer takes any share in the conduct of the operation'[389] and however the business is formed or structured.[390]

365 A person subject to a non-delegable duty cannot escape liability for a duty that has been delegated and then not properly performed.[391]

366 An employer's non-delegable duty is one '... of a special and "more stringent kind"'.[392] The employer must ensure that the duty is carried out. If the duty is to take reasonable care of some person or property, the person must ensure that reasonable care is taken. The duty extends to giving employees directions in the performance of their work where directions might reasonably be thought to be required to secure them from danger of injury[393] and to devise a method of operation for the performance of the task that eliminates a risk, or adequately safeguards against it.[394] It is for the employer to devise reasonably appropriate measures to eliminate the risk. If such measures are not taken, and the risk comes home in consequence of the breach, then liability will generally ensue.

367 In deciding whether an employer is discharged from this obligation to establish and maintain a safe system of work, the court must take into account the power of the employer to prescribe, warn, command and enforce obedience to its commands.[395] Mason J in TNT Australia Pty Ltd v Kristy[396] noted that the employer's duty of care is not modified because its employees are sent to work for a client. Indeed, in such circumstances an employer may be required to adopt additional measures by way of warning or training in order to discharge its continuing duty of care to its employers.

368 An employer has an independent obligation to satisfy itself of the safety of the system of work in which its employees were engaged notwithstanding its employees worked at another premises.[397]

369 It has been accepted the question whether the employer's non delegable duty where employees are working at a third party's premises depends on such matters as 'the employer's opportunity to inspect the premises, the length of time the employers put the employees to work on the premises, the awareness in the employer of the danger, his capacity to shield the employees from the danger and various other factors'.[398]

370 The fact that the need for Aluline workers to use a swing stage arose after the submission and approval of Aluline's SWMS does not absolve Aluline from any responsibility to ensure that its workers worked in a safe system of work or to avoid or minimise Mr Griffin's risk of injury on entering the swing stage.

371 Aluline failed to take any steps to assess the risk of entering an area to access the swing stage once it became aware that its workers would be using swing stages. Aluline knew that its employees had to access swing stages as part of the defect works and that if the swing stages were used incorrectly posed a risk of serious injury. As part of its non-delegable duty of care it ought to have assessed the risk of its employees entering the swing stage. Aluline made no effort or enquiry about inspecting the premises to which it had assigned its employee. Mr Canko was on the site regularly. He made no attempt to assure himself about Mr Griffin or any Aluline employees' use of the swing stages. Mr Canko was not an involved supervisor.[399]

372 It would be reasonable that Aluline had its own system of training in relation to accessing a swing stage using the three points of contact and stressing importance of using such a technique and the risk of injury in the event that the technique was not adopted. Such instructions may well have had a material effect on Mr Griffin's access into the swing stage on 10 May 2011. In addition, while Mr Griffin was aware of the sanctity of barricades, there was no evidence that Aluline had stressed or emphasised the importance of work if confronted with inadequate access to a swing stage requiring dangerous entry into the swing stage. Aluline did not stress to its employees the need to stop work if there was any issue about accessing a swing stage, accessing an entrance route or the ability to use of the three points of contact access method.

373 Aluline must have known that Probuild's system of work and the very nature of a building site exposed Mr Griffin to different site conditions throughout the day. As such, it was incumbent upon Aluline in order to discharge its non-delegable duty of care to Mr Griffin, to ensure that a reasonably safe system of work was devised which ensured that Mr Griffin would access the swing stage safely both in turns of entry to the swing stage using the three points of contact and assessing the appropriateness of the entry, in this case Door A to the swing stage. If the tool boxing system in place failed to adequately inform Aluline and its workers about barricading and the drop zone system, then Aluline did nothing to try to remedy the situation. In some ways Aluline was complacent in its acceptance of a defective work system relating to the drop zones and barricading at the Bank Apartments.

374 In my view, to discharge this non-delegable duty of care, Aluline had to adopt measures by way of both warning and/or training to require persons such as Mr Griffin to report dangerous conditions and to seek instructions as to what to do in the circumstances and in relation to accessing the swing stage where the three points of contact could not be used.

375 Tubeway's primary contention is that it owed no duty of care to Mr Griffin. If on the other hand it did, it was limited to a duty to provide Mr Griffin with swing stage access induction, and such duty is confined to the proper method of getting into a swing stage. Accordingly, if any such duty existed it had been discharged.[400]

376 Tubeway, quite rightly, notes that the particulars of negligence alleged against it are particulars alleged against every defendant to the proceeding. There is considerable strength in Tubeway's argument that the form of pleading does not reveal that alleged duty with sufficient clarity for the Court. Any finding about duty of care depends upon the evidence which is given at trial. Questions of reliance or knowledge of risk are examples of the kinds of questions in which the evidence given at trial may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care.[401]

377 Tubeway submits that for Mr Griffin to establish a cause of action in negligence, each of the following questions must be answered affirmatively:

(a) did Tubeway owe a legal duty requiring conformity to a certain standard of care for the protection of others against loss and damage?;

(b) did Tubeway fail to conform to that standard of care?;

(c) as a result, did Mr Griffin suffer material injury?; and

(d) was Tubeway's breach of duty a cause (in the legal sense) of Mr Griffin's injuries?

378 Tubeway, correctly contends that there is, however, no checklist or formula for determining whether a duty exists. Reference is made to the statement by Gibbs CJ in Sutherland Shire Council v Heyman:[402]

In deciding whether the necessary relationship exists, and the scope of the duty which it creates, it is necessary for the court to examine closely all the circumstances that throw light on the nature of the relationship between the parties.

379 Tubeway contends that issues of control, vulnerability, foreseeability of harm and coherence are likely to be important in determining whether Tubeway owed Mr Griffin a duty of care in the circumstances which occurred.

380 Tubeway contends that the relevant particulars of negligence which might inform the pleaded duty of care against Tubeway are:

1. (i) failing to provide a comprehensive training and education program for the Plaintiff in the performance of his duties;

...

(k) failing to provide the Plaintiff with any or any proper safety equipment;

...

(n) failing to erect the swing cage ("the cage") safely;

...

(t) failing to change the method of access to the cage to allow the proper gate to be used;

...

(w) failing to comply with AS-1470 - 1986 Australian Standard - Health and Safety at Work - Principles and Practices, and in particular s 8;

(x) failing to comply with AS-1428.1 - 2009 Australian Standard - Design for Access and Mobility, Part 1: General Requirements for Access - New Building Work, and in particular s 11;

(y) failing to comply with AS/NZS-4576 - 1995 Australian/New Zealand Standard - Guidelines for Scaffolding;

(z) failure to comply with AS/NZS-4994.1 - 2009 Australian/New Zealand Standard - Temporary Edge Protection - General Requirements;

(aa) failing to comply with AS/NZS-1576.1 - 2010 Australian/New Zealand Standard - Scaffolding - General Requirements;

(bb) failing to comply with AS-1576.4 - 1991 Australian/New Zealand Standard - Scaffolding - Suspended Scaffolding; and

(cc) failing to comply with scaffolding checklist for builders and building trades contractors - Worksafe publication October 2005.[403]

381 Tubeway contends that it is not caught by the OH&S Regulations, and relies on Papadopoulos v MC Labour Hire Services Pty Ltd (Ruling No 4).[404]

382 Tubeway submits that it had no control over the use and access to the swing stage once it provided its handover certificate to Higgins or Probuild. Further, Tubeway submits it never had control over the access point to the swing stage, being Door C, and it never had control over limiting access through Door A. Tubeway submits that the party with control over the relevant risk of harm was Probuild.

383 Tubeway submits that the relevant risk of harm in this case for Mr Griffin was the means of access to the swing, which is to be distinguished from the means of access into the swing.

384 For reasons already set out, I have found that it was Probuild who controlled access to the swing stage through the drop zone permit system and the use of barricading measures, including inertia reels, idiot tape and locks and keys.

385 There was also an issue in relation to who controlled the placement of the swing stage. Probuild submits that Tubeway's placement of the swing stage at D, close to A, is a condition that gives rise to liability. That is, Tubeway's placement of the swing stage so close to A inhibited Mr Griffin's access to the swing stage and was the reason why he had to access the swing stage in the awkward manner he did. It is submitted that but-for Tubeway's default, it would not matter what the condition of Door C was.[405]

386 Probuild submits that there was an agreement between Mr Ray and John Birt that the swing stage would be set-up between 300 millimetres to 600 millimetres or 300 millimetres to 450 millimetres from the façade, because any further would have meant a worker could not reach the façade, while any closer would have risked causing damage to the façade of the building.[406] This was referred to by Probuild's counsel as the 'John Ray agreement'.

387 As discussed, Mr Ray's evidence was that he directed where a swing stage was to be placed, and that he had reached an agreement with John Birt that the swing stages were to be placed between 300 millimetres and 400 millimetres from the façade.[407] John Birt agreed that Mr Ray would direct him as to where he was to place a particular swing stage, and he would do as he was instructed.[408] I consider that John Birt did not have control over where a particular swing stage was to be placed on a particular day. He did as instructed by Mr Ray. However, it was John Birt's evidence, and I accept, that he did not place the swing stage in a position where, to his mind, it could not be safely accessed. At the time John Birt provided the handover certificate to Probuild, it was his evidence that there was safe access to the swing stage via Door C.[409] At the time John Birt provided the handover certificate, he did not have control over the state of the premises where he had positioned the swing stage. Once the drop zone permit was returned to Probuild, the state of the premises was in the control of Probuild. John Birt's evidence was that before handing over a swing stage, he made sure there was proper access.[410]

388 Having accepted that Door A was problematic and that Door C was the proper access point, Probuild's analysis is misconceived.

389 As I have already set out in my findings, even if I accept there was a verbal agreement between John Birt and Mr Ray as to the placement of the swing stages (which I do not), I consider that one of the major causes to Mr Griffin's injury was not a failure to adhere to such an agreement, but rather, the confusion and inadequate drop zone permit system and the failures by Probuild and Aluline to properly instruct Mr Griffin and John Birt in relation to the barricading system in place at the Bank Apartments. It was John Birt's evidence that he understood that a drop zone permit allowed access via any barricaded door. He was able to enter Door C, even though it was barricaded, and safely erect the swing stage at D marked on Exhibit P1. After completing his work and placing the swing stage on 9 May 2011, John Birt exited via Door C and returned the drop zone permit card.

390 It is submitted that Tubeway, via John Birt, failed to ensure that the drop zone was left clear and that Probuild was advised that access to the swing stage ought to be via Door C. I accept that there was no reason for John Birt to consider that he needed to provide further information to Probuild about the way in which he had accessed the area marked D and placed the swing stage. There was no training by Probuild or information or guidance in relation to the barricaded areas and, importantly, that Door C, even though barricaded, may not be the point of entry. Probuild controlled the method in which access areas were barricaded and therefore had a responsibility to ensure that proper instruction was provided to workers in relation to accessing barricaded areas. Probuild was aware that on any given day the site may change and that the form of barricading may also be by way of an inertia reel, idiot tape, or lock and key. It was incumbent upon Probuild to ensure that, prior to giving any worker a drop zone permit to Level 8 and, in particular, the area marked D on Exhibit P1, proper instructions were given.

391 I consider Tubeway owed a duty of care to persons such as Mr Griffin for the following reasons:

(a) Tubeway's acts would so closely and directly affect those who used the scaffolding, including swing stages, such that swing stage users must have been in Tubeway's contemplation in carrying out its duties, including training, at the Bank Apartments;[411]

(b) it was Tubeway who had direct control over moving the swing stages and its induction into swing stage use. Accordingly, a duty was owed to take reasonable care in the provision of the swing stages, and more relevantly given my factual findings, in the provision of swing stages inductions, to avoid acts or omissions which it could reasonably foresee may be likely to injure a person; and

(c) this duty was owed, at least, to those who attended the training given by Tubeway and would subsequently be using the swing stage on site, including Mr Griffin.

392 I agree with Tubeway's submissions that the scope and content of the duty is regulated by the role that Tubeway has to play on site. In the context of this case, that includes:

(a) training Mr Griffin about the use of the swing stage;

(b) educating Mr Griffin that it is a necessity that he maintain three points of contact when he enters the swing stage;

(c) educating Mr Griffin that where three points of contact are not available, he must then stop work and take steps to ensure that he can gain three points of contact when entering the swing stage.

I consider that Tubeway failed to discharge those three duties.

393 The 'standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill'.[412] In this case, the standard required of Tubeway in performing those tasks is that demanded of a reasonable scaffolder of ordinary prudence, reasonably proficient in its professional sphere. The question is, did Tubeway's conduct fall below this standard? I find it did.

394 Mason CJ considered the circumstances in which a duty may be breached in Wyong Shire Council v Shirt:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.[413]

395 In this case the risk was clear and recognisable, and could have severe consequences. This is evidenced by the inclusion of the three point contact method in the induction, amongst other things. The response required to ameliorate this risk was not onerous, it simply required Tubeway to properly inform its inductees as to the importance of maintaining the three point contact system at all times and explaining the possible serious consequences if the points of contact was not used when entering the swing stage.

396 Nonetheless, Probuild's submission identified at [385][414] above must also be rejected. In response to this submission, I refer to the well-known decision of Mason CJ in March v E & MH Stramare Pty Ltd ('March')[415] in which his Honour said:

The "but for" test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test "gives the result, contrary to common sense, that neither is a cause": Winfield and Jolowicz on Tort, 13th ed. (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury: see, e.g., Chapman v. Hearse; Baker v. Willoughby (55); McGhee v. National Coal Board; M'Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.

397 The entire rationale behind an apportionment or contribution regime, is the common sense acknowledgment that in many cases, insistence on a single 'but-for' does not explain the events that occurred, nor properly allocate responsibility. This is particularly the case where injury occurs at a location at which many overlapping or interrelated activities involving risk take place. I refer again to the decision of Mason CJ in March:

These days courts readily recognize that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers. The common law tradition is that what was the cause of a particular occurrence is a question of fact which "must be determined by applying common sense to the facts of each particular case", in the words of Lord Reid.[416]

Tubeway's duties under the OHS Act and Regulations

398 Probuild submits that by virtue of the contract that Tubeway entered into with Higgins for the delivery, supply, erection and relocation of swing stages at the Bank Apartments worksite, Tubeway became a 'supplier' of a 'plant' for the purposes of the OHS Act and Regulations.[417]

399 As a result, Probuild submits that Tubeway attracted statutory duties under ss 30 and 31 of the OH&S Act to ensure, so far as was reasonably practicable that:

(a) the swing stages it supplied to Higgins were able to be accessed safely and without risks to health. This included the requirement to provide information to Higgins concerning any conditions which were necessary to ensure the swing stage was safe and without risk to health; and

(b) there was nothing about the way the swing stage was installed, erected or commissioned which made its use unsafe or a risk to health.

400 Section 30 of the OH&S Act creates a statutory duty on suppliers of plant. It provides that:

1. A person who supplies plant or a substance who knows, or ought reasonably to know, that the plant or substance is to be used at a workplace (whether by the person to whom it is supplied or anyone else) must -

1. ensure, so far as is reasonably practicable, that it is safe and without risks to health if it is used for a purpose for which it was designed, manufactured or supplied; and 2. give adequate information to each person to whom the supplier supplies the plant or substance concerning - 1. the purpose or purposes for which the plant or substance was designed, manufactured or supplied; and 2. any conditions necessary to ensure that the plant or substance is safe and without risks to health if it is used for a purpose for which it was designed, manufactured or supplied; and

1. on request, give such information to a person who uses or is to use the plant or substance.

401 Section 31 of the OH&S Act creates a statutory duty on those who install, erect or commission a plant. It provides that:

1. A person who installs, erects or commissions plant who knows, or ought reasonably to know, that the plant is to be used at a workplace must ensure, so far as is reasonably practicable, that nothing about the way in which the plant is installed, erected or commissioned makes its use unsafe or a risk to health.

402 As a result of Tubeway's statutory duties under ss 30 and 31 of the OH&S Act, Probuild submits that Tubeway was also required to comply with the Part 3.5 of the OH&S Regulations. In particular, Probuild submits that Tubeway breached regulation 3.5.2 by failing to carry out procedures for the identification of any hazards to health or safety in relation to the swing stages. Probuild submits that Tubeway failed to provide sufficient information with the swing stage in relation to the risks and hazards associated with unsafe access into and from the swing stage.[418]

403 It is also submitted that Tubeway failed to comply with clauses 6:10 and 6:12 of the WorkSafe Scaffolding Guidelines and clause 11.3 of AS 4576 (Scaffolding Guidelines). It is also alleged that Tubeway failed to comply with provisions of AS 1576.1 (Scaffolding General Requirements) and AS 1576.4 (Suspended Scaffolding).[419]

404 Tubeway submits that of the statutory duties pleaded against it, only r 3.5.2 was relevant, with the other regulations pleaded against it only being applicable to employers, not suppliers of a plant.[420]

405 In relation to r 3.5.2, Tubeway contends that it fully complied with its statutory requirement to carry out procedures to identify any risks or hazards to health and safety in relation to the swing stage.

406 Tubeway submits that its duty of care in the supply of swing stages in 2011 included compliance by Tubeway with AS 1576.4 (Suspended Scaffolding).[421] Tubeway accepts that this Standard is to be read in conjunction with AS 1576.1 (Scaffolding General Requirements).[422] Part 3.11 of AS-1576.1 sets out requirements for access to and from working platforms.

407 Part 3.11 of AS 1576.1 (Scaffolding General Requirements)deals with safe access to and from working platforms. Tubeway submits that the requirements that 'safe access to and from working platforms [shall] be provided' is referrable to the means of access into and out of the swing, not the means of access to the swing, which is the responsibility of Probuild. When one looks at the text of Part 3.11, it states:

Safe access to and from working platforms shall be provided. Such access shall take the form of temporary stairways, access platforms, ladders or other suitable means. The following requirements apply to access to and from working platforms ...

408 Tubeway submits that it provided safe access to and from the swing stage through:

(a) John Birt ensuring there was proper access on 9 May 2011, before he handed over the swing;

(b) Mr Martino inducting the workers as to the three-point access method, including requiring them to access the swing stage using that method, during the inductions undertaken at the Bank Apartments, including Mr Griffin's February 2011 induction; and

(c) all relevant safe use instructions and checklists were provided in a swing stage pouch which was left in the swing stage at all relevant times (Exhibits D3-13 and D3-13A).[423]

409 Tubeway submits that the lack of reference to access on the daily safety checklist completed by workers before using a swing stage was not a failure to comply with the requirements of AS 1576.4 (Suspended Scaffolding). It submits that the fact that it does supply a checklist is evidence of its safety awareness and that the failure to refer to safe access into swings in the checklist is explained by reason that Tubeway does not control access around the site premises and it generally is not present at the premises once it hands over the swing stage. Tubeway submits that compliance with AS 1576.1 (Scaffolding General Requirements), and the scope of its duty of care to Griffin does not extend to a requirement that Tubeway include provision in the daily safety checklist for checking access, nor does it require Tubeway to provide employees responsible for installing and relocating swing stages to complete a checklist with the requirement for checking safe access.

410 As noted above at para [345], the liability question can be answered wholly by reference to the common law claim on negligence, which I have found in the present case to be made out against Tubeway. Nevertheless, I will make some comments about Tubeway's statutory liability under the OH&S Act and Regulations. Tubeway's duties here assist in informing the existence and scope of its common law duty.

411 There is no controversy about the fact that Tubeway was a 'supplier' or plant for the purposes of the OH&S Act and Regulations by virtue of its contract with Higgins to provide swings stages at the Bank Apartments.[424]

412 By virtue of the fact that Tubeway owed a statutory duty under ss 30 and 31 of the OH&S Act, Part 3.5 of the OH&S Regulations also applied to it.

413 In relation to Part 3.11 of AS 1576.1 (Scaffolding General Requirements), when one considers the text in full, I do not think that Tubeway's submission can be accepted. The requirement for safe access to and from working platforms shall be provided clearly goes beyond the means of access into and out of the swing.

414 Reference was made to the guidelines for scaffolding, AS 4576 (Scaffolding Guidelines) (Exhibit P32), which sets out under Part 1.1 Scope:

This Standard gives practical guidance for the training and certification of scaffolders, the preparation of sites for scaffolding, and the safe selection, supply, erection, alteration, dismantling, maintenance, inspection and use of scaffolding and scaffolding equipment.

415 Section 11.2 contemplates in effect the provision of something akin to the handover certificate that was provided by John Birt to Probuild. It states, amongst other things:

At the completion of the installation or alteration, the competent person in control of the works should issue a written statement of completion to the person in charge of the workplace. This statement should be retained until the suspended scaffold is further altered or dismantled.

11.3 Access

Install safe access and egress points for persons using the suspended scaffold. ...

417 Under s 11.2, there are guidelines for the scaffolding and swing stage while unattended. Section 11.2 states, amongst other things:

11.2

While unattended for overnight and longer periods:

• The cradle should be left in an accessible position ...

418 Section 12.4 provides guidelines for the use of swing stages and scaffolding during use. It states:

12.4

During use -

12.4.1 Responsibilities of users

Once a scaffold has been accepted as a working platform, the users are responsible for using a scaffold in a way that minimises risk to themselves and others. Their employers must ensure that they possess sufficient knowledge and have undergone adequate training to use the scaffold correctly. Also, they must know all the emergency procedures relating to the scaffold, especially those relating to suspended scaffolds and mast-climbing or at a platform.

419 At s 13.1 there are guidelines for record keeping which state:

13.1 Record keeping

Records of all test maintenance, inspections, commissioning and alterations must be kept by the employer and made available upon request to employees or health and safety representatives. Appendix J gives a convenient checklist that may be photocopied and used ...

420 When one looks at Appendix J under '6 Access and egress', it states:

6.1 Is there access and egress to all working platforms?

Means of safe access and egress to working platforms should be provided. This can be achieved with stairways, access ways, ladders or other suitable means.

6.2 Are temporary stairways correctly installed?

6.3 Are portable ladders of an industrial grade serviceable and correctly installed?

Portable ladders used for access and egress should be industrial grade ladders. They should be checked for defects and deterioration.

Access ways need to be 450mm wide for persons or 675mm wide for persons and materials.

421 The relevant standards and the guidelines support the contention that Tubeway should have included in its daily safety checklist safe access to the swing stage. Tubeway submits that AS 4576 (Scaffolding Guidelines) is just that, guidelines, and that they are not tantamount to an Australian Standard.

422 The guidelines, however, are detailed and it seems appropriate that Tubeway have regard to them. If nothing else, the guidelines assist in determining the scope of the duty owed by Tubeway to Mr Griffin in this case. In this case, neither Tubeway's daily safety checklist nor Mr Martino's induction checklist[425] addressed issues concerning safe access.

423 I am satisfied that the failure to include a point on safe access to the swing stage within the daily safety checklist constituted a breach of regulation 3.5.2.

424 I consider Tubeway breached its duty of care to Mr Griffin by not including such an item on its daily checklist[426] and/or Mr Martino's induction checklist.[427] I consider the breach was causative of Mr Griffin's injury.

425 Mr Griffin gave evidence that when he completed the daily checklist, he raised with Mr Jackson the item dealing with the electrical components, in that he was not qualified to make the assessments.[428] This demonstrates that Mr Griffin carefully completed the daily checklist and took the task seriously. His evidence was also that he would not check for access to the swing stage if it was not on the daily check list.[429] Inclusion of an item dealing with access on the daily safety checklist would more likely than not have alerted Mr Griffin to the potential danger he was exposed to by entering the swing stage in the manner he described he did through Door A, and would have prompted him to make enquiries about entering via Door A.

426 Tubeway submits that if the Court finds a breach of duty by all defendants, liability should be apportioned in the following percentages:[430]

427 One of the reasons why Mr Griffin accessed the swing stage in a dangerous manner was his failure to appreciate the potential danger of not using the three points of contact method. It could reasonably be anticipated that this failure to appreciate, with respect, an inherently dangerous method of entering the swing stage, could result in injury. In line with J Forrest J's analysis in Zealley, I consider:

(a) Tubeway departed, to a significant degree, from the standard of conduct required; and

(b) Tubeway's failures were causally significant to the injuries sustained by Mr Griffin.

428 Probuild relies on the terms of the Higgins Subcontract No 514-042[431] entered into between Probuild and Higgins on 21 June 2010 ('the Subcontract'), and alleges, put broadly, that Higgins:

(b) is vicariously liable for breaches of the Subcontract by both Tubeway and Aluline.

429 Probuild particularly relies on special condition 5 ('SC 5') of the Subcontract, which provides:

The Subcontractor acknowledges and accepts that they will provide swing stage access to the exterior of the building for their works, and in locations to give adequate access to all faces of work.

The swing stage will be made available to all other subcontractors requiring access, to programs as agreed with the Contractor. It is acknowledged that the Contractor will have the right to determine access program should there be any dispute. [sic]

The rental rate per swing stage for use by other contractors shall be $150 per day, with a minimum hire period of one day, except where the subcontractor uses the swing stage on the same day when the rental will be shared pro-rata. [sic]

430 Probuild submits that the effects of this clause are that:

(a) 'Higgins was required to ensure personally that (inter alia) safe and proper access was provided to all other subcontract employees requiring the use of swing stages for external site works';

(b) an obligation of strict liability was imposed to 'make available [the swing stage] to all other subcontractors requiring access';

(c) this required Higgins to provide safe and proper access to the swing stages in accordance with the 'Subcontract Warranties' defined in clause 44.13.[432]

431 Probuild refers to the following particular 'Subcontract Warranties':

'Subcontractor Warranties' means warranties that the Subcontractor:

(b) will at all times be suitably qualified and experienced, and will exercise due skill, care and diligence in the execution and completion of the Subcontract Works;

(d) has taken into account all of the Subcontract Risks;

(e) has informed itself as to all matters which might impact on the Subcontract Risks;

(n) will comply fully with all of its obligations under the Subcontract

the works generally described in the Subcontract Documents and any other work not described in those documents if that other work:

(a) should reasonably have been anticipated by an experienced and competent contractor as being necessary for the carrying out of the Subcontract Works;

(b) was otherwise capable of inference from the Subcontract Documents; or

(c) results from the performance by the Subcontractor of the Subcontractor's Design Obligations

all risks associated with the carrying out of the Subcontract Works (whether ascertainable or not) including, without limitation risks associated with or arising in relation to:

(b) delays, cost increases, re-execution of work or modification of the methodology for the carrying out of the Subcontract Works caused by:

(c) the availability of labour or materials necessary for the carrying out of the Subcontract Works;

434 Probuild contends that Higgins led no evidence at trial to suggest that it had complied with its obligations under SC 5.

435 Probuild submits the obligations placed upon Higgins pursuant to SC 5 carried with it the following implied term:

Higgins shall ensure that when making available swing stages to all other subcontractors requiring access that such access into the swing stage will be made safe.

436 Probuild relies on the Implied Term, and contends that it meets the requirements listed in Codelfa Constructions Pty Ltd v State Rail Authority (NSW) to 'ground the implication of a term'.[433]

437 Probuild contends that Tubeway, having been engaged by Higgins, became both a 'Secondary Subcontractor' and 'Subcontractor's Agent', as each of those terms is defined by clause 44.13 of the Subcontract. By accepting Tubeway's quotation,[434] a 'Secondary Subcontract' was created. Clause 44.13 of the Subcontract defines these terms as follows:

'Secondary Subcontract' means any agreement between the Subcontractor and a Secondary Subcontractor or between Secondary Subcontractors.

'Secondary Subcontractors' means any contractor or supplier to the Subcontractor, whether engaged directly or indirectly by the Subcontractor.

'Subcontractor's Agents' means any consultant, supplier or agent of the Subcontractor, any of their employees, and any Secondary Subcontractor and its employees or other person for whom the Subcontractor is ultimately responsible.

438 Probuild then contends that the obligation of Higgins under SC 5, to 'make available to all other subcontractors requiring access' results in any subcontractor at the site to whom the swing stage is made available becoming both a Secondary Contractor and a Subcontractor's Agent under a Secondary Subcontract. The corollary of this is that Probuild contends that both Aluline and Tubeway are Secondary Contractors and Subcontractor's Agents by having entered into Secondary Subcontracts with Higgins.

439 Consequently, Probuild suggests that Higgins becomes vicariously liable for any failure by Tubeway or Aluline to comply with any 'Legislative and Industrial Requirements' and 'Contractors Policies', by virtue of clause 3.1(j) of the Subcontract which provides:

(j) ensure that all employees of the Subcontractor and all of the Subcontractor's Agents comply with all Legislative and Industrial Requirements and Contractor Policies (to the extent that such policies are not inconsistent with the Legislative and Industrial Requirements);

440 Probuild also argues that consequently, to the extent that Tubeway failed to provide safe access to the swing stage, this amounts to a breach of the Implied Term by Higgins. Probuild submits that Higgins should be directed to provide a complete indemnity to Probuild pursuant to section 24(2) of the Wrongs Act.

441 Higgins contends that the obligation imposed by SC 5 was simply an obligation to make the swing stage available. Contrary to Probuild's submission that this imports a duty to supply the swing stage in safe condition, Higgins contends that 'make available' should be given a limited meaning, that is, no more than it says, in circumstances where:[435]

(d) Probuild directed Mr Birt where to place the swing stage;

(e) Probuild directly instructed Tubeway as to the movement of the swing stages; and

(f) after the swing stage had been 'made available' in the limited sense by Higgins, Probuild controlled almost all aspects of swing stage use.

442 Accordingly, the Implied Term ought not to be implied. Additionally, Higgins submits that the implied term does not 'go without saying.'[436] It is outside what the Subcontract required Higgins to do, and what Higgins did do.[437]

443 Higgins describes the allegation that Aluline is a Secondary Contractor to Higgins as 'nonsensical', and notes that Higgins had no contractual arrangement with Aluline.[438]

444 Higgins accepts that Tubeway was a Secondary Subcontractor for the purposes of the Subcontract. However, to the extent that Probuild suggests that Tubeway failed to comply with the 'Contractor Policies', this submission is not given any content by Probuild and 'it can only be assumed that there is no identifiable breach of such policies.'[439] Higgins also contends that insofar as it is alleged that there was a vicarious liability for the failure of Tubeway to comply with the 'Legislative and Industrial Requirements' in the contribution proceeding, the argument is simply 'not made out'[440] and there was no such breach.

445 Higgins final submission in this regard is that any liability that Probuild would have in the contribution proceeding would be 'a liability for its own failures, unconnected with the construction, assembly or location of the swing stage. Probuild's liability, it is submitted will depend on its control of the drop zones, and its provision of training. These are matters outside any contractual obligations Higgins had to Probuild.'[441]

446 That is, 'there is no nexus between the alleged contractual breaches, and Probuild's liability, and even if the contractual breaches were made out, that would not establish any basis for a different allocation or assessment of Probuild's own liability'.[442]

The conditions necessary to ground the implication of a term were summarized by the majority in B.P. Refinery (Westernport) Pty. Ltd v. Hastings Shire Council(56): "(I) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract."[443]

448 Probuild offered no submissions as to how the Implied Term satisfied these conditions. I am not satisfied that the Implied Term does so. Certainly, it appears that the Subcontract was able to operate effectively without the term. Nor is the Implied Term so obvious that 'it goes without saying'.

449 In any event, even if such a term should be implied, I am not satisfied that it has been breached, in that there has been a failure to provide safe access. I agree with Higgins that 'access' in the context of the Subcontract must be given a restricted meaning. 'Access' in the context of the contract cannot sensibly extend beyond 'the point where it is not within the control of the assembler of the swing stage.'[444] Tubeway assembled the swing stage in a manner which allowed for clear and safe access, through Door C. It was Probuild's management of the barricades, and the flawed permit system, which ultimately rendered access, in the broader sense, to the swing stage unsafe.

450 In line with my findings above, the Australian Standards are not incorporated into the Subcontract.

451 I agree with Higgins' submissions in this regard. There is no evidence that any of the fundamental requirements for the formation of a contract between Higgins and Aluline have been satisfied. Accordingly this argument must fail.

452 With regard to Tubeway I again accept the submissions made by Higgins.

453 To conclude, I note that Higgins has correctly identified that in this proceeding, Probuild's liability will be assessed with regard to its own failings, which have been earlier identified in these reasons. These matters have no connection with the contractual dealings between Higgins and Probuild.

Assessment of contribution between Aluline, Probuild, Tubeway and Higgins

454 The various claims for contribution are brought pursuant to Part IV of the Wrongs Act. Part IV of the Wrongs Act requires a determination of what is 'just and equitable having regard to the extent of that person's responsibility for damage'.[445]

455 The two principal factors are the degree to which each defendant has departed from the standard of conduct required of them, and the relative causal potency of each defendants' acts. In this case, Probuild's causal potency is much greater than Aluline and/or Tubeway's causal potency.

456 There has been a departure from the standard of care expected of Probuild, Aluline and Tubeway. However, Probuild's departure occurred over a period of time and over a significant aspect of the safety of the work site, the barricading and the drop zone system.

457 In apportioning responsibility, a court is required to look at the respective roles of the defendants in terms of the culpability for the plaintiff's damage and the causal potency of the acts or omissions which resulted in the injury. J Forrest J, in Zealley said:[446]

In determining what is just and equitable contribution under the statutory provision it is established that there are two relevant considerations:

(a) the degree to which each of the parties has departed from the standard of conduct required of them; and

(b) the relative causal potency of each of the defendants' acts in relation to the injuries sustained by [the plaintiff] Ms Zealley.

It is also accepted that in analysing the relevant factors the Court must eschew the application of a formulaically mathematical approach. As Beach J put it in Papadopoulos:

Questions of apportionment involve questions of balance and relative emphasis. They involve the weighing of different considerations. Value judgments upon which reasonable minds might differ are involved. Some of these do not readily admit of articulation. (footnotes omitted)

458 With regards to Probuild and Aluline, the considerations referred to by Beach J in Papadopoulos v MC Labour Hire Services Pty Ltd[447] are also relevant:

In Hoad v Peel Valley Exporters Pty Ltd, Harrison J set out some of the questions that need to be answered when considering what, if any, contribution should be ordered against an employer whose employee is working for an occupier when the negligence of the occupier results in injury to the worker. His Honour identified the questions as follows:

1. What were the respective degrees of access to the premises as between the employer and the occupier and what was the employer's opportunity to inspect them?

2. What were the employer and occupier's respective states of knowledge of the hazard?

3. Was the employee located on the occupier's premises for a short time or indefinitely or was she moved around?

4. Did the employer have an ability independently of the occupier to avert the hazard by itself or only with the consent or approval of, or in consultation with, the occupier, sometimes called the employers [sic] capacity to "shield" the employee?

5. How long had the relevant hazard been in existence?

6. Had any prior injury been caused by the hazard to anyone else apart from the employee?

7. Did the relevant hazardous conditions at the occupier's premises vary from day to day or were they constant?

8. Was the employee injured in the course of her normal duties or were those duties relevantly different to what was usual for that employee?

9. Was there any dissimilarity in the employee's ability to draw the hazard to the attention of the occupier as compared to the employer?

10. Who was responsible for the employee's training?

11. Was the non-delegable duty of care owed by the employer one that could be discharged in the circumstances by doing nothing at all, such as (arguably) a casual and unforeseeable act of negligence on the part of the occupier?

12. What were the respective roles played by the employer and the occupier in devising, instituting and maintaining the system of work that was found to be unsafe?

13. Who controlled the premises?

14. Who supplied any plant and equipment to the employee required for use in carrying out the work?

459 My findings appear at [280]-[290], [319]-[329] and [363]-[374]. These findings address all relevant considerations raised by the above questions. I am satisfied that Probuild should bear the lion's share of responsibility for the injuries sustained by Mr Griffin when entering the swing stage on 10 May 2011. Its acts and omissions were both greater in culpability and causal potency than those of the other defendants. Probuild had control of the worksite at the Bank Apartments and, in particular, had exclusive control of the drop zone permit system and access to drop zone areas. Not only did it fail to properly train workers on the site in relation to its drop zone permit system, its actual drop zone permit system was confusing and left Mr Griffin in a position where he was not able to properly assess the safest access path to the swing stage located at D. In effect, the inadequacy left Mr Griffin in the lurch when he arrived on 10 May 2011 to Door C and Door A. There was no realistic prospect of Mr Griffin, who did not have a proper understanding of the drop zone permit system and the barricading system employed at the Bank Apartments, being able to assess and determine the safest access point to the swing stage. The inevitability was that the lack of training and the confusing drop zone permit system placed Mr Griffin in danger.

460 Aluline, as the employer, owed a non-delegable duty of care to Mr Griffin. Aluline breached that duty by failing to ensure that there was adequate training and understanding of its workers of the drop zone permit system, the barricading system employed at the Bank Apartments, and training in relation to the use of the three points of contact when entering a swing stage. However, I regard this breach to be of less significance than the breaches of Probuild.

461 Tubeway, as the supplier of the swing stages, had a duty of care to ensure that its training in relation to accessing the swing stage stressed the importance of safe access into the swing stage. It breached its duty in that while it demonstrated to workers the use of the three points of contact as the proper method to enter the swing stage, it did not emphasise the importance of the three points of contact and that if three points of contact were not possible, then the worker should not endeavour to enter the swing stage at all, and should seek assistance. It further breached its duty by not including the item about safe access into the swing stage in its daily checklist.

462 I do not consider that Higgins has any liability to Mr Griffin.

463 In my opinion, the appropriate and common sense way to deal with the contribution to Mr Griffin's injury is to apportion contribution in the following percentages:

464 There may be other orders which the parties require, and I will give them time to consider these reasons.

[1] VWA v Probuild & Ors [2016] VSC 102.

[2] There were two Tubeway witnesses with the last name Birt - Richard Birt and John Birt. To avoid confusion I will use their full names.

[4] Plaintiff's Statement of Claim dated 13 October 2014 ('Plaintiff's Statement of Claim'), 1 [1].

[7] First Defendant's (Aluline) Submissions dated 4 December 2015 ('Aluline's Final Submissions'), 15 [79].

[9] Plaintiff's Statement of Claim, 3 [8].

[10] Defence of the First Defendant dated 23 October 2014, [1].

[13] Plaintiff's Statement of Claim, 6 [16].

[17] Second Defendant's Outline of Submissions in the Recovery and Contribution Proceedings dated 4 December 2015 ('Probuild's Final Submissions'), 9 [7] - 11 [15]; Further Submissions of the Second Defendant (Probuild) dated 21 December 2015, 2 [5].

[18] Plaintiff's Statement of Claim, 3 [8].

[23] Plaintiff's Statement of Claim, 2 [3].

[27] Plaintiff's Statement of Claim, 2 [4]-[5].

[30] Amended Notice by One Tortfeasor Claiming Contribution and Indemnity Against Another dated 19 October 2015, 4 [8].

[31] Amended Statement of Claim in Contribution Proceedings by the Second Defendant Against the Fourth Defendant dated 19 October 2015 ('Probuild's Amended Statement of Claim against Higgins'), 9 [7].

[32] Defence to Contribution Claim of the Second Defendant dated 26 October 2015, 2-4 [6]-[7]; Defence to Contribution Claim of the Third Defendant dated 26 October 2015, 2 [8].

[33] Probuild's Amended Statement of Claim against Higgins, 9-11 [8]-[14].

[49] T 958, LL 28-31; T 1067, LL 8-31; T 1068, LL 1-5; T 1095, L 30.

[69] T 741, LL 27-30; T 954, LL 26-29 ; T 955, LL 3-5.

[82] T 110 LL 19-31; T 111, L 1-2; T 337, LL 14-24; T 586, L 12-17; T 619, LL 6-24.

[92] Exhibit D2-2, under heading 5, General Requirements, at the fourth bullet point.

[96] T 892, LL 26-31; T 893, LL 1-7; T 915, LL 7-15.

[101] T 1069, LL 27-30; T 1070, LL 15-17.

[102] Probuild's Final Submissions, 15 [23(e)(vii)].

[105] T 904-905; T 917, L 20-29; T 973, LL 12-31; T 1010, L 15.

[109] T 151, LL 6-13; T 1518, L 3; T 1550, L 19; T 1010-1011; T 1020, LL 8-10.

[125] T 973, LL 9-12, 26-31; T 974, L 1.

[133] See footnote 29 of Probuild's Final Submissions.

[154] T 162, LL 8-16; T 166, LL 13-24.

[155] T 296, LL 27-31; T 2971, L 3; T 297, LL 4-26.

[171] T 148, LL 30-31; T 149, LL 1-4, 12-14, 17-19, 21-26; T 150, LL 1-11, 15-18.

[174] T 526, LL 24-39; T 1057, LL 20-27.

[189] Exhibits P17, P18, P23, P20, P21, P22 and P24.

[193] Submissions of the Third Defendant (Tubeway Scaffolding Pty Ltd) dated 4 December 2015 ('Tubeway's Final Submissions'), 9-10 [43].

[194] [1959] HCA 8; (1959) 101 CLR 298.

[208] T 1265 LL 24-28; T 1266 LL 16-18.

[217] T 1148, LL 26, 30-31; T 1149, LL 1-9.

[220] T 1054, LL 15-22; T 1055, LL 10-31; T 1056, LL 1-10.

[230] T 1087, LL 10-11; T 1088, LL 3-17.

[233] T 1090, LL 11-15, 31; T 1091, LL 2-11; T 1138, LL 14-21, T 1139, LL 16-19; T 1117, L 31; T 1178, L 1.

[253] T 1538, LL 28-31; T 1539, LL 1-4.

[258] T 1544, LL 22, 31; T 1545, LL 1-3.

[264] T 1566, LL 12-13; see also T 1522, LL 27-8.

[265] T 1566, LL 23-31; T 1567, LL 1-9.

[273] T 1633, LL 9-31; T 1634, LL 1-21.

[279] Exhibit D3-26, D3-29; T 116, L 5.

[286] T 117, L 19; T 118, LL 10-11; T 209, L 19; T 238, L 15.

[299] T 1429, LL 28-31; T 1430, LL 17-24.

[314] T 392-400; Exhibit P8; Exhibit P9.

[318] Exhibit P10, p. 21; T 462, LL 1-11.

[327] T 423, L 2 (Dr Short); T 1025, LL 24-31 (Mr Jackson).

[328] T 212, LL 5-7, 19-30 ; T 283, LL 10-14.

[330] [2012] VSC 412.

[331] Ibid [37]; Alcoa [2007] VSCA 210; (2007) 18 VR 146, 152 [16]-[18].

[332] Jones Lang Lasalle [2012] VSC 412, [37] (citations omitted).

[333] In [20] of the Plaintiff's Statement of Claim, he alleges specific breaches of statutory duty which make erroneous reference to the 1995 Occupational Health and Safety Act. It should be to the 2004 Occupational Health and Safety Act. While specific provision is made in that paragraph against Aluline and Probuild, these allegations are repeated at Particular Negligence (V) at [15] and relied upon by Mr Griffin against all defendants. These breaches of statutory duty are repeated against the remaining defendants in [17] and [18].

[334] Probuild's Final Submissions, 9 [7].

[335] [1986] HCA 1; (1986) 160 CLR 16.

[338] [2009] HCA 35; (2009) 240 CLR 1.

[339] Probuild's Final Submissions, 10 [13].

[340] Leighton Contractors [2009] HCA 35; (2009) 240 CLR 1, 23 [52].

[341] Probuild's Final Submissions, 9 [8].

[344] Probuild's Final Submissions, 40 [100].

[345] [2015] VSC 62, [142].

[346] Probuild's Final Submissions, 39 [95].

[347] Aluline's Final Submissions, 2 [7].

[351] Aluline's Final Submissions, 18 [99].

[354] Ibid 18-19 [101]; Fennel v Silcar [2014] VSC 261.

[355] [2013] VSC 587.

[358] Tubeway's Final Submissions, 32 [137].

[359] Ibid 33 [141]; Zealley [2015] VSC 62

[360] Submissions of Higgins Coatings Pty Ltd (undated) ('Higgins' Final Submissions'), 4 [20(a)].

[361] Leighton Contractors [2009] HCA 35; (2009) 240 CLR 1, 11 [20]; Stevens [1986] HCA 1; (1986) 160 CLR 16, 31 (Mason J).

[362] Stevens [1986] HCA 1; (1986) 160 CLR 16, 31.

[364] Stevens [1986] HCA 1; (1986) 160 CLR 16, 47.

[365] Leighton Contractors [2009] HCA 35; (2009) 240 CLR 1, 26 [62].

[366] WorkSafe, Victorian Occupational Health and Safety Compliance Framework Handbook, 26 June 2013, 14 [6].

[368] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181.

[369] Probuild's Final Submissions, 12-13 [18]-[20].

[374] Probuild's Final Submissions, 5 [2(j)].

[375] VWA v Centro [2013] VSC 587, [87].

[376] Papadopoulos v MC Labour Hire Services Pty Ltd (Ruling No 1) [2009] VSC 175; VWA v Stoddart (Victoria) Pty Ltd [2015] VSC 149 [94].

[377] Leighton Contractors [2009] HCA 35; (2009) 240 CLR 1, 22 [49].

[378] Plaintiff's Statement of Claim, [1(d)], [7]-[8].

[380] Aluline's Final Submissions, 2 [6].

[382] Higgins' Final Submissions, 4-5 [20(b)].

[383] Exhibit D2-3; Supplementary Submissions on behalf of Higgins Coatings Pty Ltd (undated) ('Higgins' Supplementary Submissions'), 3 [13].

[384] Higgins' Supplementary Submissions, 3 [13].

[385] Probuild's Final Submissions, 7 [2(o)(viii)].

[388] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 687-8 (Mason J); see also New South Wales v Lepore (2003) 212 CLR 511, 600 [259] (Gummow and Hayne JJ).

[389] Wilsons and Clyde Coal Ltd v English [1937] UKHL 2; [1938] AC 57, 84 (Lord Wright).

[390] Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424, 440 [34] (Gleeson CJ, McHugh, Gummow, Hayne and Haydon JJ).

[391] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 331 (Brennan CJ).

[392] Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, 550 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

[393] State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 689 (Mason J).

[394] Czatyrko v Edith Cowan University [2005] HCA 14 [12] (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ).

[395] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan and Dawson JJ).

[396] [2003] NSWCA 47; (2003) 65 NSWLR 1, 15 [67] (Mason P).

[397] Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424, 448-9 [57] (Gleeson CJ, McHugh, Gummow, Hayne and Hayden JJ).

[398] Bourke v Victorian Workcover Authority [1998] VSCA 24; (1999) 1 VR 189, 200-201 [42] (Winneke P).

[400] Tubeway's Final Submissions, 27 [118].

[401] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, 578 [64].

[402] [1985] HCA 41; (1985) 157 CLR 424, 441.

[404] [2009] VSC 193; (2009) 24 VR 665.

[406] T 1073 LL 22-26, T 1074 L 20, T 1075 L 21.

[411] Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562, 580.

[412] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 483.

[413] [1980] HCA 12; (1980) 146 CLR 40, 47-48.

[415] [1991] HCA 12; (1991) 171 CLR 506, 516.

[417] Probuild's Final Submissions, 34 [82].

[419] Particulars (aa) and (bb) to paragraph 15 of the Plaintiff's Statement of Claim.

[423] Tubeway's Final Submissions, 24 [106]; T 1837 LL 9-17.

[430] Tubeway's Final Submissions, 33 [141].

[432] Probuild's Final Submissions, 24 [50]-[51].

[433] [1982] HCA 24; (1982) 149 CLR 337, 347 (Mason J) ('Codelfa').

[435] Higgins' Supplementary Submissions, 6 [25].

[436] Codelfa [1982] HCA 24; (1982) 149 CLR 337, 347 (Mason J).

[438] Higgins' Supplementary Submissions, 6 [27].

[441] Ibid 7 [31]; see also Higgins' Final Submissions, 7 [30].

[442] Higgins' Final Submissions, 7 [31].

[443] Codelfa [1982] HCA 24; (1982) 149 CLR 337, 347 (Mason J); B.P. Refinery (Westernport) Pty. Ltd v. Hastings Shire Council (1977) 180 CLR 266.

[444] Higgins' Final Submissions, 6 [27].

[445] Section 24(2) of the Wrongs Act.

[446] [2015] VSC 62, [143]-[144].

[447] [2009] VSC 193; (2009) 24 VR 665, 691.