Siljeg v Multiplex Constructions Pty Limited & Ors

Court of Appeal (NSW)|2003-05-28|Before: Handley JA, Beazley JA, Tobias JA

CITATION : Siljeg v Multiplex Constructions Pty Limited & Ors [2004] NSWCA 193 HEARING DATE(S) : 28 May 2003 JUDGMENT DATE : 27 July 2004

JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Tobias JA at 3 DECISION : Appeal dismissed with costs

CATCHWORDS : TORTS - Negligence - Vicarious liability - Unsafe system of work - Unsafe place of work - Fall from truck - Scope of employment - reg 73(3) Construction Safety Regulations 1950 (NSW) - 'Building work' - 'Equipping' - PRACTICE AND PROCEDURE - Negligence - Particular of - Not pleaded - Leave to amend - Prejudice LEGISLATION CITED : Construction Safety Act 1912 (NSW) Construction Safety Regulations 1950 (NSW) Van Der Sluice v Display Craft Pty Limited (2002) NSWCA 204 Australian Iron & Steel Limited v Ryan (1957) 97 CLR 89 H.C. Bushman & Son Pty Limited v Flanagan (1974) 133 CLR 422 Dovak v Anka Builders Pty Limited (1992) 28 NSWLR 1 CASES CITED : State of New South Wales & Anor v Thomas (2004) NSWCA 52 Cummings v Lewis (1993) 41 FCR 559 Castellan v Electric Power Transmission Pty Limited [1966] 2 NSWR 104 H C Buckman & Son Pty Limited v Flanagan (1974) 133 CLR 422 Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16 Jerko Siljeg PARTIES : Multiplex Constructions Pty Limited Dalma Formwork (Australia) Pty Limited GIO Workers Compensation (NSW) Limited FILE NUMBER(S) : CA 040271/03 A: Mr Kearns SC / Mr Best COUNSEL : 1R: Mr King SC / Mr Glascott 2R & 3R: Mr Taylor SC / Mr Vesper A: Matthews Dooley & Gibson, Blacktown SOLICITORS : 1R: Phillips Fox, Sydney 2R: James Tuite & Associates, Sydney 3R: Gillis Delaney Brown, Sydney

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1782/01 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 040271/03 DC 1782/01

HANDLEY JA BEAZLEY JA TOBIAS JA

Tuesday 27 July 2004 JERKO SILJEG v MULTIPLEX CONSTRUCTIONS PTY LIMITED & ORS Judgment 1 HANDLEY JA: I agree with Tobias JA. 2 BEAZLEY JA: I agree with Tobias JA. 3 TOBIAS JA: Jerko Siljeg (the appellant) claimed damages in the District Court of New South Wales from both the first respondent, Multiplex Constructions Pty Limited (Multiplex) and the second respondent, Dalma Formwork (Australia) Pty Limited (Dalma) in respect of injuries sustained by him when, on 1 March 2000, he fell from a truck owned by Dalma, his employer, which was standing on the roadway adjacent to a construction site in Cronulla (the site) occupied by Multiplex as the principal building contractor. 4 Multiplex cross-claimed against Dalma for contribution as a joint tortfeasor and for contractual indemnity under a contract between them pursuant to which Dalma was to supply and erect formwork upon the site. Dalma in turn, cross-claimed against the third respondent, GIO Workers Compensation (NSW) Limited (GIO), pursuant to an insurance policy entitling it to indemnity in respect of any common law liability it may have had to the appellant. 5 On 28 February 2003, McGuire DCJ found in favour of Multiplex and entered a verdict and judgment in its favour (the first judgment). On 12 March 2003, his Honour found in favour of Dalma and entered a verdict and judgment in its favour (the second judgment). The appellant appeals to this Court against the primary judge's decisions in favour of Multiplex and Dalma.

The facts 6 Dalma had employed the appellant as a truck driver since 1986. His duties included loading and delivering formwork to construction sites. His truck was equipped with its own crane, which the appellant operated to unload his truck where the construction site to which he was delivering formwork did not have its own crane available for the purpose. The appellant, although not relevantly licensed, also possessed skills as a dogman and crane operator. 7 Part of the process of loading the formwork frequently included the placing of wire slings under the formwork frames. These slings had an eye at each end into which a crane's hook could be placed to enable easy unloading of the frames at the construction site. 8 On 1 March 2000 the appellant loaded his truck with three bundles of steel formwork frames, several bundles of 'U-jacks' and a quantity of timber all of which was to be delivered to site at The Kingsway in Cronulla. The appellant's evidence was that he placed slings around the bundles of frames. In so doing he threaded the eye at one end through the eye at the other end such that placing a single hook through only one eye could have lifted each bundle of frames. 9 Upon arrival at the site the appellant spoke to a Mr Ciric, the site's dogman and an employee of Multiplex, and positioned his truck on the roadway beneath the site's tower crane. The appellant and Mr Ciric were on good terms as the appellant had made several deliveries to the site over the previous three months. 10 As dogman it was Mr Ciric's duty to attach the truck's load to the crane in order to lift it onto the site. Mr Ciric possessed a two-way radio with which to communicate instructions to the crane's operator, Mr Hojios, who was also employed by Multiplex. 11 It was arranged that the truck would be unloaded by first removing the timber, then the frames and finally the U-jacks. The timber was removed without incident. The frames were to be unloaded by the crane. The end of the crane's cable did not have a single hook on it. Instead, it ended with four pieces of chain, approximately eight metres in length. Each piece of chain had its own hook on the end. Accordingly, the crane had four hooks that could be used to lift items. 12 At this stage both the appellant and Mr Ciric were standing on the rear of the truck, one man at each end. The appellant was standing on top of the U-jacks. This placed the appellant on an uneven surface approximately 2.7m above the roadway. The frames, which were about to be unloaded, separated the pair. 13 However, it is at this point that the stories advanced by the appellant and Mr Ciric diverge. Accordingly, I will state the evidence of each before recording the findings of the primary judge.

The appellant's evidence 14 The appellant claimed that he connected the hooks of the crane to two of the bundles of frames. However, to do this he only utilised two of the crane's four hooks. This was because, as I have said, he had threaded one of the eyes of the sling though the other eye such that the frames could be lifted by one hook, instead of looping a hook through each eye of the sling. The appellant then said that he hooked the frames up for two reasons. Firstly, from his position on the U-jacks it was easier for him rather than Mr Ciric to hook the frames. Secondly, as the appellant was trained in the skills of a dogman and crane operator, he liked to make use of these skills by volunteering his assistance where he could. 15 According to the appellant, Mr Ciric was then preparing to have Mr Hojios lift the two bundles of frames when the appellant told him that it was not appropriate to lift them given the manner in which they were allegedly attached to the hooks. At that time each bundle was hooked to a length of chain approximately eight metres in length. In the appellant's opinion the better way to lift the load would be to use one shorter and one longer piece of chain. The appellant claimed to have told Mr Ciric to "use one short chain and one long", but Mr Ciric rejected this counsel saying, "it doesn't matter". 16 Mr Ciric then instructed Mr Hojios to lift the load. The load began to move toward, and apparently into, the U-jacks upon which the appellant was standing. The appellant called to Mr Ciric telling him that he was "moving the jacks". In response, Mr Ciric spoke into his radio ordering Mr Hojios to move the load faster and to the right. However, this only caused the load to move quickly toward the appellant who tried unsuccessfully to push it away before it struck him in the forehead knocking him to the roadway. As a result the appellant suffered compound fractures to the right hip and right wrist as well as a deep laceration to his right forehead.

Mr Ciric's evidence 17 In contrast to the appellant, Mr Ciric claimed that he hooked the two bundles of frames himself by the four hooks through the four eyes. He then ordered that the load be lifted, and this occurred without any collision with the U-jacks, and consequently without the appellant informing him that the load had hit the U-jacks. Once the load was slightly clear of the U-jacks, Mr Ciric instructed Mr Hojios to stop the lift so as to enable him to inspect the condition of the load. This inspection was a safety precaution whereby Mr Ciric examined the load to make sure it was safe before it was lifted any higher. During this inspection Mr Ciric noticed that the appellant was standing on the U-jacks with his hands against the load, but not so as to be pushing the load. 18 Satisfied with his examination, Mr Ciric then ordered that the lifting be resumed. He claimed that this occurred in such a way that the load, which may have been travelling (albeit upwards) in the direction of the appellant, could not have collided with the appellant. 19 The load obscured Mr Ciric's view of the appellant's fall. However, Mr Hojios (in an untested statement contained in a Workcover report tendered by the appellant) claimed to have seen the appellant's fall from the crane's cabin. He was adamant that the load did not at any stage collide with the appellant. 20 Mr Ciric also denied other aspects of the appellant's testimony. In particular, he denied that he ever instructed Mr Hojios to swing the load to the right, or that he ever spoke into the radio while holding it in his hand, as the appellant had claimed. Instead, the body of the radio was always strapped to his waist and he spoke into a mouthpiece positioned about his neck. 21 Three further pieces of evidence are worth mentioning. Firstly, the ambulance officer's report stated that the appellant 'fell' to the road and that striking the road caused his head injury. Secondly, although the Sutherland Hospital triage records do not state how the appellant's head injury was occasioned, they do record that the appellant fell after being hit by the crane's load. Thirdly, there was evidence that Dalma's site's foreman (Mr Ihalainen) saw and spoke to the appellant when he was standing on the U-jacks.

The appellant's case against Multiplex 22 The appellant pleaded that Multiplex was vicariously liable for the negligence of its two employees, Mr Ciric and Mr Hojios, in that Mr Hojios (acting under the instructions of Mr Ciric) caused the load to collide with the appellant's head and knock him to the roadway below. The particulars of negligence relevantly included: failing to properly chain the load; allowing the load to swing in a manner likely to strike the appellant; failing to warn the appellant of the intended path of the load; allowing the appellant to remain in a position of peril; and failing to take reasonable care of the appellant. 23 According to the primary judge, the appellant's case was always that he was struck above the right eye by the load as a result of which he was propelled off the truck onto the roadway. No case was pleaded or made on the basis that the negligence of Multiplex was the result of an unsafe system of work or that Multiplex permitted him to engage in unsafe work practices or the like. In particular, no alternative case was advanced on the assumption that the appellant fell to the roadway but not as a result of being struck by the load being lifted.

The primary judge's findings in respect of Multiplex in the first judgment 24 As is apparent from the above, two markedly different versions of events were advanced before the primary judge, the central difference being that the appellant claimed to have been struck by the load, which was denied by Mr Ciric and Mr Hojios. The primary judge accepted the evidence of Mr Ciric and Mr Hojios as being more reliable than that of the appellant. This followed from the fact that his Honour found the appellant to be an unimpressive witness who, while not telling deliberate lies, was confused with the events he was recalling and was, in some respects, "simply wrong". 25 The primary judge summarised his findings as follows: "1. Ciric and not the [appellant] attached four hooks onto four eyeholes of the load comprising two bundles of formwork. 2. That the load did not become caught on the bundle of U-jacks as it was lifted. 3. That the [appellant] did not tell Ciric that the bundles had fouled the U-jacks on which [he] was standing. 4. That Ciric did not instruct the crane driver to move the load faster and turn it to the right. 5. That the load did not move quickly toward the [appellant] striking him on the forehead. 6. That the [appellant] was not struck by the load and knocked from where he was standing on the U-jacks."

The appellant did not challenge these findings before this Court. 26 The primary judge also made a finding with respect to the likelihood of the load being able to strike the appellant and the likely cause of his head injury. He said: "It is difficult to envisage how the load could have shifted so as to strike the [appellant] on the forehead as he claims. In my view the injury to his forehead is more likely to have been caused by his head striking the roadway. This is consistent with the notes made by the ambulance officer who attended the scene, albeit that the account given at the hospital is consistent with the [appellant] being struck." 27 The primary judge never determined how the appellant fell, only offering the following observation in the first judgment: "There is no allegation of any act of negligence other than what is contained in the particulars of negligence. There is no evidence whatsoever that the plaintiff fell as a result of tripping or falling or the condition of the surface upon which he was standing …" 28 His Honour repeated this observation in the second judgment when dealing with the appellant's case against Dalma: "Undoubtedly, the [appellant] fell approximately 2.5 metres from where he was standing on top of the load of jacks to the ground below, however, there is absolutely no evidence before me as to how or why he fell. I have rejected his explanation that he was knocked to the ground. It may well be that he slipped or tripped or lost his balance for some reason, including the possibility the he suffered a fainting attack or something similar." 29 The primary judge thus held that the appellant had not made out his case against Multiplex.

The appellant's case against Dalma 30 As particularised, the appellant's case against his employer Dalma was also confined to and relied heavily upon the acceptance of the appellant's version of events. However, having found in favour of Multiplex, and thereby rejecting much of the appellant's testimony, the primary judge provided the appellant with the opportunity to make further submissions to establish liability on the part of Dalma. 31 The appellant's claim against Dalma, as pleaded and particularised, was that his injuries were caused by its negligence. The particulars of negligence relevantly included: · failing to ensure that the worksite practices were safe; · failing to ensure that the worksite had in place a safe system of work involving the unloading of goods being delivered by the appellant; · failing to devise and utilise a system of inspection of worksite practices, systems and places to ensure they were safe; · failing to and/or adequately instruct and train the appellant; · failing to warn the appellant; · failing to warn the appellant and allowing him to be placed in a position of peril by allowing him to stand on an unsteady load; · failing to take reasonable care of the appellant. 32 Based on the foregoing particulars, the appellant's claim in negligence against Dalma would not necessarily be struck a fatal blow by the primary judge's finding in the first judgment that the load did not strike the appellant as he had alleged. It could, of course, be the case that the appellant's employment required him to assist Mr Ciric or otherwise to stand on the load at the time it was lifted; that as a consequence he tripped or lost his balance and thereby fell and was injured. Dalma might then be considered negligent in requiring him to work unprotected at a height of some 2.7m above the roadway. 33 At the hearing before the primary judge it was GIO, rather than Dalma, who on behalf of itself and Dalma, resisted the appellant's claim that Dalma had been negligent. In its written submissions dated 27 February 2003, it submitted that the appellant should succeed against Multiplex on the basis of the case made by the appellant that he was struck by the load when it was lifted. GIO nonetheless submitted that there should not be a finding that Dalma had breached the duty of care owed by it to the appellant. It was accepted that, as employer "Dalma was under a duty to take reasonable care for the safety of the plaintiff by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks and by instructing him in the performance of his work where instructions might reasonably thought to be required to secure him from danger or injury: O'Connor v Commissioner of Government Transport (1954) 100 CLR 255 at 229". 34 However, it was submitted that the appellant was vastly experienced in the unloading of his truck. Even when he was not required to use the crane with which his truck was equipped, his evidence should be accepted that he would assist in the unloading process even where Dalma's client had its own crane and that he considered this "part of his job". Reference was made to the evidence of Mr Ihalainen, Dalma's foreman at the site, and Mr Cikes, a director of Dalma, that they considered the appellant to be experienced in both the driving and unloading of his truck, having seen him perform these tasks over a number of years. It was then submitted that it was reasonable for an employer, when determining the extent of supervision and instruction required in respect of a worker, to take into account the relevant experience of the worker. Reliance was placed upon statements to this effect by Heydon JA in Van Der Sluice v Display Craft Pty Limited (2002) NSWCA 204. It was submitted that Dalma was entitled to rely not only upon the appellant's considerable experience in unloading his truck and the fact that the higher the load upon which he was standing the more care he would take, but also that Dalma was entitled to expect that Multiplex's employees would use its crane in a skilled and safe manner with a trained dogman in contact via radio with a trained crane driver. 35 It was then submitted that the appellant had placed himself in a position of danger by standing close to the ascending load, that this was a voluntary choice made by him and no part of Dalma's system of work. It was contended that "it was a failure by the plaintiff to take a precaution that one could reasonably have expected that he would take. In other words, the company could not be expected to reasonably foresee that the plaintiff, given his vast experience, would put himself in a position of peril."

Finally, it was submitted that if his Honour found that some (unspecified) warning or instruction should have been given to the appellant, there was no evidence that this would have been sufficient to prevent the incident occurring. 36 The appellant does not seem to have directly responded to these submissions. Rather, after he had delivered the first judgment and found in favour of Multiplex, the primary judge indicated that he would hear further argument as to whether the appellant was entitled to succeed against Dalma. It would appear from the transcript of the argument which then followed that the appellant, for the first time, sought to argue that Dalma was in breach of regulation 73(3) of the Construction Safety Regulations 1950 (NSW) and that that contravention amounted to evidence of Dalma's negligence. Although the appellant acknowledged that breach of regulation 73(3) had not been pleaded as a particular of negligence, no application was made to his Honour to further amend the Statement of Claim. Furthermore, it was not submitted that any breach by Dalma of regulation 73(3) of itself gave rise to a cause of action resulting in damages. On the contrary, it was reiterated that the case against Dalma was "its common law negligence based upon failure to comply with the statutory duty". 37 In other words, the appellant's case in negligence against Dalma was confined to the submission that its failure to comply with its statutory duty under the Regulations was evidence of an unsafe system or place of work.

The statutory provisions 38 Regulation 73(3) relevantly provides: "Any person who directly, or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for the purpose, without limiting the generality of the foregoing, he shall subject to Regulation 74 - (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8m." 39 "Construction work" is relevantly defined in s 3 of the Construction Safety Act 1912 (NSW) (the Act) as follows: "Construction work means: (a) building work, excavation work, compressed air work, and diving work. …" 40 "Building work" is relevantly defined in s 3 of the Act as follows: "Building work means: (a) work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, sign writing, sheathing, spraying, dismantling or demolishing or any other prescribed operation that: (i) is done in relation to a building or structure, at or adjacent to the site thereof. …"

Dalma and GIO object 41 Before the primary judge both Dalma and GIO objected to the appellant being permitted to raise Dalma's breach of regulation 73(3) as a particular of negligence. They submitted that a breach of that regulation had neither been pleaded nor had Dalma been put on notice that it was going to be relied upon by the appellant as a particular of negligence. In its written submissions dated 28 February 2003, GIO submitted the following: "As such no attempt to call evidence (expert or otherwise) was made by Dalma (or the GIO) to meet this. Indeed, neither Mr Ihalainen nor Mr Cikes were asked any questions about whether there should have been a fence or otherwise on the truck to stop someone falling. If this had been pleaded, then they could have been asked about this in evidence in chief. Expert evidence could have been called. Accordingly, if the plaintiff is now allowed to run such an argument then Dalma is irrevocably prejudiced." 42 It does not appear that the primary judge heeded this objection or even ruled upon it. However, in the second judgment he did say this: "Clearly, there was no pleading or particular which identified any issue which might have been raised by such a belated allegation, and the second-named defendant was not put on notice that it had to meet any case based on breach of the said regulation. The very first mention of the Construction Safety Regulations was made by Mr Watson [trial counsel for the appellant] in the course of his submissions after I drew attention to the state of the pleadings." 43 These observations notwithstanding, the primary judge then proceeded to deal with the argument on its merits. As he then rejected the appellant's submissions with respect to Dalma's alleged breach of statutory duty, it is probable that he did not consider it necessary to rule on Dalma and GIO's objection to the issue being raised. However, it should be noted that, as the appellant submitted to his Honour, the issue of Dalma's breach of the regulation had been raised by Multiplex in its amended cross-claim against Dalma. Nevertheless, Multiplex only called Mr Ciric (its dogman) at the trial and it may be that, in those circumstances, Dalma and GIO did not consider that it was necessary for them to pursue evidence with respect to the breach of regulation 73(3) raised in the cross-claim. Certainly, it cannot be gainsaid that, as far as Dalma and GIO were concerned, the appellant had placed no reliance upon breach of that regulation until it was raised for the first time during the supplementary argument on 28 February 2003.

The primary judge's findings in the second judgment in respect of Dalma 44 The primary judge found that Dalma was not engaged in any activity that could fairly be described as "building work" or "construction work". Accordingly, he found that it had no obligation to comply with regulation 73(3). Furthermore, he was of the view that even if that regulation applied, Dalma did not breach it. It is not entirely clear why his Honour was of this view given the absolute terms of the regulation. There was no issue that the appellant was standing at a place from which he would be liable to fall a distance of more than 1.8m. His Honour did say that "[a] plaintiff who wishes to assert a breach of duty must go further and lead evidence as to how such duty should have been addressed. In my view, it is not sufficient for the plaintiff simply to say 'my employer should have taken steps to protect me', without nominating appropriate measures and demonstrating their efficacy and practicality."

It may be that his Honour was of the view that there could be no breach of the regulation if compliance with it was, in the particular circumstances, impracticable. It may be that he was only directing himself to the appellant's general, but particularised, allegation of a failure by Dalma to provide a safe system of work. 45 The primary judge's findings on the issue of Dalma's common law negligence were as follows:

(a) The appellant's duties simply involved him in delivering formwork and similar materials to the site;

(b) It was no part of his task to assist Mr Ciric, the Multiplex dogman, in removing the formwork and materials from the back of his truck and this was so notwithstanding that on previous occasions when making deliveries to the site he may have volunteered his assistance in this regard from time to time;

(c) On 1 March 2000, the appellant was not engaged in assisting the unloading of his truck either in the course of his duties or as a volunteer;

(d) The unloading of the truck was solely carried out by Mr Ciric, the dogman employed by Multiplex for that purpose and the appellant did no more than stand on the back of the truck or on part of the load on the back of the truck simply to observe the unloading operation;

(e) The appellant was not obliged to stand on part of the load on the back of the truck and his positioning of himself in that location formed no part of his employment;

(f) Had Dalma required him to participate in the unloading operation, it would have been under a duty to take reasonable care for his safety by providing a safe system of work and/or proper and adequate means of performing his employment tasks without exposing him to unnecessary risk of injury including a safe place of work. It would further have been obliged to warn him of risk and dangers and to instruct him in the performance of his duties relating to the unloading of his truck;

(g) However, as Dalma had not required the appellant to participate in the unloading operation, it was not in breach of any common law duty of care otherwise owed to him. 46 It may be that the finding referred to in sub-paragraph (c) above was intentionally directed by his Honour to the fact that regulation 73 imposes the duties referred to therein only with respect to "persons engaged in such construction work". I shall return to this point below.

The appellant seeks the leave of the Court to further amend his statement of claim 47 Not having sought the leave of the primary judge to further amend his statement of claim to assert a breach by Dalma of regulation 73(3), the appellant sought that leave from this Court. Not only did it seek the Court's leave to amend its particulars of negligence by alleging a breach by Dalma of that regulation, it also sought to amend paragraph 10 of its Second Amended Statement of Claim by alleging, as an alternative to negligence, a breach of the statutory duty imposed by regulation 73(3) as an independent cause of action. That leave was opposed by both Dalma and GIO upon the basis that to permit such an amendment would involve prejudice in the nature of that submitted to the primary judge to which I have referred in [41] above. 48 Dalma and GIO properly conceded that a breach of the regulation would constitute an independent cause of action supporting a claim for damages: Australian Iron & Steel Limited v Ryan (1957) 97 CLR 89; H.C. Bushman & Son Pty Limited v Flanagan (1974) 133 CLR 422 at 428; Dovak v Anka Builders Pty Limited (1992) 28 NSWLR 1 at 4, 11. However, they sought to reserve their position as to whether the statutory duty applied in the present circumstances where it was impracticable to provide a fence or other similar device around the tray of the truck in order to prevent the appellant from falling to the roadway from the top of the load where he was standing. I should say that Dalma and GIO would face some difficulties with such an assertion given the amendment to regulation 74 in 1987 and that where regulation 73(3) has contemplated questions of practicality in providing appropriate measures, it has expressly said so: see, for example, regulation 73(6), (7), (10), (14), (16) and (17). 49 As was pointed out by Handley JA, with whom Beazley JA and Stein A-JA agreed, in State of New South Wales & Anor v Thomas (2004) NSWCA 52 at [33], this Court can properly allow necessary amendments if the parties against whom the amendments are relevantly sought would not be relevantly prejudiced. The appellant submits that Dalma and GIO could not have been prejudiced as Multiplex had alleged a breach of regulation 73(3) against Dalma in its amended cross-claim. Accordingly, so it was submitted, Dalma must have been prepared to meet that claim and to call evidence with respect thereto if it so wished. The fact that it did not do so merely illustrates that its present claim of prejudice is without substance. 50 It is true that no questions directed to this issue were asked of the appellant when he gave evidence and he was the only witness called in his case. The only witness called by Multiplex was Mr Ciric and no questions on this issue on behalf of Dalma and GIO were asked of him. On the other hand, no evidence in chief directed to the issue was led from Mr Ciric (assuming that it could have been). When Dalma called Mr Ihalainen and Mr Cikes, no party directed any questions relating to this issue to them. It is in these circumstances that Dalma and GIO submit, as they did before the primary judge, that they did not ask any questions of Mr Ihalainen or Mr Cikes directed to the issue of breach of the regulation because, as far as they were aware, they had no case to meet on that issue. Accordingly, they would be prejudiced if the appellant was permitted to found a case on regulation 73(3). 51 The question is whether Dalma and GIO would have conducted their case differently if the appellant had, prior to the hearing before the primary judge, alleged a breach of regulation 73(3) as the foundation of his case in negligence against Dalma. In this regard it must be recognised that, as was said in Cummings v Lewis (1993) 41 FCR 559 at 567 "It is very difficulty for counsel, having conducted a case on one basis, to say precisely how the case would have been conducted if it had been put in a different way. Courts do not accept as of course statements made by counsel as to possible prejudice to their clients in circumstances such as this. Courts, however, recognise that counsel are placed in a substantial difficulty when asked to specify a claim of prejudice with any precision. If prejudice is claimed a court is likely to give effect to that claim unless the circumstances clearly pointed to there being in fact no prejudice." 52 There is no doubt that Dalma and GIO were at pains to make a case that the appellant's duties did not include him providing assistance to Mr Ciric or otherwise being involved in the unloading of the truck at the site. However, it is possible that had the issue of breach of the regulation been raised directly by the appellant against it, Dalma may have elicited further evidence from Mr Cikes and/or an appropriately qualified expert as to whether the mere delivery of formwork to a construction site was itself "building work". In this respect, the appellant submitted before this Court that Dalma was engaged in "building work" as defined in that it was undertaking work in "equipping" that was done in relation to a building adjacent to the site within the meaning of the definition of that term in s 3 of the Act. It may be doubtful as to whether such evidence would have been admissible but it cannot, in my opinion, be ruled out. Accordingly, in my opinion Dalma and GIO would be prejudiced if leave were now granted to the appellant to amend his pleadings in the manner proposed. In these circumstances, leave to amend should be refused. 53 Even if leave had been granted, in my opinion regulation 73(3) has no application to Dalma in the present circumstances. I am of this opinion for the following reasons. 54 The appellant accepted that for the regulation to apply, he must have been "engaged" in "building work". In this respect he acknowledged that the primary judge had found that he was not engaged in assisting in the unloading of his truck and that he was doing no more than standing on the back of truck or on part of the load on the back of truck "simply to observe the unloading operation". 55 The appellant challenged this finding on the basis of Mr Ciric's evidence that, so far as the bundles of timber were concerned, the appellant had assisted him in passing a chain around the timber and connecting it to a hook on the crane. In that respect Mr Ciric accepted they were "working together". It was submitted that in finding that the appellant was merely observing the unloading, his Honour had overlooked this evidence. 56 The difficulty facing the appellant is that Mr Ciric's evidence related only to the quantity of timber, which his Honour found had been unloaded without incident. It was during the course of the unloading of the steel formwork frames that the accident occurred. There was no challenge by the appellant to the primary judge's finding that he played no role in that part of the unloading operation. Accordingly, it must follow that so far as the unloading of the formwork frames was concerned, his Honour was correct in finding that the appellant was not engaged in that operation. In these circumstances, the regulation did not apply to that part of the unloading of the truck in the course of which the appellant fell from the load and was injured. 57 Dalma was contracted to Multiplex to supply labour, materials, plant and equipment to complete the design, erection and dismantling of formwork. There can be no doubt that in erecting formwork it was engaged in "building work". But the appellant submitted that when he was injured he was delivering, and assisting in the unloading of, component parts of the formwork to enable its erection. These activities, so it was said, were so closely connected with the erection process as to be part of it. 58 However, the flaw in this argument is that the primary judge found that the appellant was not in fact assisting in the unloading operation and further, that it was no part of his duties to do so on this occasion. Furthermore, as observed in [55] above, he was not assisting in the unloading of those components of formwork, which were in the course of being unloaded when he fell. Accordingly, there is no foundation for the appellant's submission and it should be rejected. 59 In applying regulation 73 to a particular activity which is causally implicated in the injury that occurred, consideration is directed to the person who carries out that activity rather than to a characterisation of the scope of a person's contractual entitlement or obligation. Thus, in Castellan v Electric Power Transmission Pty Limited [1966] 2 NSWR 104, Brereton J held that as there was no active involvement at any level of the particular building operation of the company for whom the building was being erected or its personnel, that company was not carrying out any "building work" as defined. Furthermore, even though the particular activity is within the scope of the obligations required by a head contract, the relevant person, for the purpose of the regulation, is the contractor who actually carries out that work. 60 So much was decided in H C Buckman & Son Pty Limited v Flanagan (1974) 133 CLR 422. In that case, Barwick CJ (at 428) said that regulation 73 "imposes the obligation, not with respect to employment and so not on an employer as such, but with respect to building work which is being carried on or carried out. I agree with the majority in Davey v Skinner when their Honours said 'Regulation 73 does not impose its obligations on an employer as such nor does it limit its safety measures to employees as such. Nor does it, for example, refer to a contractor as the person obliged to conform to its provisions. In broad terms it directs its provisions to any person who carries out any building work …The obligation rests on the active person, that is, the one who carries out the work in actual fact. …Building work is so defined that is does not necessarily refer to the total work to be performed in that building, but the definition is suitably worded to enable each section of work being done, eg as painting, cleaning and signwriting, being regarded as building work, so that the obligation to take the specific safety measures are imposed on that person who is carrying out that particular work." 61 In the present case, the particular work in which the appellant might be said to be engaged was the unloading of his truck. The party who carried out that particular work was not Dalma but Multiplex. It was work within the scope of its contractual obligations. It was not part of Dalma's function to unload the truck. It thus follows that if regulation 73(3) imposed obligations on anyone, it was only upon Multiplex and not Dalma. 62 Alternatively, the appellant submitted that even if he was merely an observer of the unloading operation, nonetheless by merely delivering the formwork to the site he was engaged in "building work" in that that was work in "equipping" done in relation to a building adjacent to the site. The primary judge responded to a similar argument apparently put to him by observing that "Dalma was no more engaged in construction work than a company delivering light globes or computers to the Multiplex site". 63 When taken in conjunction with the words "constructing, erecting, installing, adding to, altering, repairing, finishing, painting, cleaning," in paragraph (a) of the definition of "building work", it seems to me that the mere delivery of materials to a construction site which are to be used in the construction of a proposed building is not, in any relevant sense, the "equipping" of that building in the context in which that word appears in the definition. In its context the word means 'fitting out' rather than the delivery or supply of the items that are to be used in that 'fitting out'. 64 There is a further difficulty with this alternative submission. As already noted, regulation 73 only imposes obligations upon a person who carries out any "building work". The appellant was injured when he fell from the top of his load. That location was a "place from which he would be liable to fall a distance of more than 1.8m " within the meaning of sub-clause (3) of the regulation. Assuming he was "working" at that "place", the work he was performing was not that of delivering formwork but that of unloading the truck. As I have said, that activity was being undertaken only by Multiplex. Accordingly, the delivery the appellant had performed did not relevantly involve him "working" in a place to which the regulation applies. 65 Accordingly, even if the appellant had been granted leave to allege a breach of regulation 73(3), he would have failed upon the merits.

Was Multiplex liable to the appellant? 66 Notwithstanding that the appellant failed on the only case it made against Multiplex and has not challenged the primary judge's findings upon which that failure was founded, nonetheless it was submitted that Multiplex owed the appellant a duty of care which it breached by failing to direct or instruct the appellant to remove himself from the load whilst its employees were performing their unloading duties. It was submitted that the primary judge erred in failing to consider an alternative case of negligence not only against Multiplex but also against Dalma upon the assumption that the appellant had not been struck by the load but had fallen from it due to other, albeit unspecified, causes. 67 At the end of the day, the appellant submitted that firstly, Multiplex was in charge of the site and was co-ordinating the activities of the different trades (including the provision and erection by Dalma of its formwork). Secondly, because of the physical proximity of the appellant whilst Multiplex was conducting unloading operations from his truck (an operation that was a co-ordinated activity with a dogman and crane driver employed by Multiplex), it was foreseeable that with the appellant standing on top of the load some 2.5m above the roadway, he could fall and, if he did so, it was likely that he would be injured. Thirdly, both the crane driver and the dogman knew these facts. Fourthly, it followed that Multiplex had a duty to take reasonable care for the safety of the appellant as a consequence whereof it should have requested or directed appellant to remove himself from the load. 68 The legal foundation for this submission was said to be the decision of the High Court in Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16. In that case Mason J (at [31]) said: "Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system." 69 In my opinion, this principle has no application in the present case. Firstly, and most obviously, on the facts as found by the primary judge the appellant was not engaging in any relevant work in respect of which it was necessary for Multiplex to prescribe a safe system. Secondly, there was no evidence from which it could be concluded that had Mr Ciric, the dogman, or Mr Hojios, the crane driver, requested (let alone directed) the appellant to remove himself from the load that he would have done so. The evidence established that the appellant was highly experienced in unloading operations and, apparently, quite at home with moving around a load on the back of his truck. He was keen to give any assistance he could, albeit that this formed no part of his duties. In these circumstances, it would not necessarily be speculative to infer that had one or other of the Multiplex employees requested him to stand down from the truck, he would have declined to do so upon the basis that it was not necessary and that he knew what he was doing. Accordingly, in my opinion the appellant fails in his challenge to the primary judge's decision in favour of Multiplex.

Was Dalma in breach of its duty of care to the appellant? 70 The case now being made against Dalma is that even if the appellant was no more than an observer or spectator of the unloading operation whilst standing upon the load, nevertheless he was still in the course of his employment. Dalma's foreman at the site, Mr Ihalainen (who spoke to the appellant whilst he was on top of the load) ought to have instructed him to remove himself therefrom as it was no part of his duties or responsibilities to be there whilst Multiplex's employees were performing unloading operations in relation to it. Furthermore, it was submitted that Dalma had a duty to enforce its instructions and to make sure that the appellant obeyed them. 71 The appellant gave evidence that Mr Ihalainen was his immediate boss in that he directed the appellant as to what he was to load onto his truck and where and when he was to make deliveries. However, the appellant was adamant that Mr Ihalainen told him what to load but not how to load his truck. 72 In his evidence, Mr Ihalainen agreed that he was foreman of the Dalma workers present at the site (i.e. with respect to those who were erecting the formwork) and that he was essentially in charge of those employees. On other occasions he had observed the appellant unloading his truck with the truck's crane as well as unloading the truck when using a site crane. He regarded him as experienced in these operations. On the occasion in question, he saw the appellant standing on top of his load but he felt he had no reason to supervise him because "A. I was sent there to supervise unloading anyway, I went to see about future load for next day. There was dogman on the crane crew, was unloading a truck, they experienced. Driver experienced to my - there is no reason to supervise them."

It seems to me that in the first line of this answer there should be a " not " before the word " sent ". What the witness was saying was that it was not part of his job to supervise the unloading, which was being carried out by experienced Multiplex personnel. 73 In cross-examination Mr Ihalainen agreed that the appellant was standing approximately 2.5m above the road surface. He also agreed that the surface of the U-jacks upon which he was standing was not level. Further, he agreed that it was possible that one could catch one's foot, toe or heel in the gaps between the component parts of the U-jacks and could trip and fall to the ground. The following exchange took place: "Q So even if one stood on a load of U-heads, it's not stable under foot, that is, the U-heads can move underfoot as you stand on it? A. Not really. Q. But it could -- A. They're well stacked." 74 However, he agreed that it would be dangerous if the appellant fell 2.5m to the ground. He agreed that the work of unloading should only be carried out by an experienced dogman and that he had to make sure that nobody was in the way of the load when it was lifted. The following exchange then took place: "Q. And that's why I suggest to you that you knew that you should tell your men not to be on the truck while the dogman is having a load manoeuvred for him? A. I'm not in charge of the transport. I'm in charge of the site. The transport is not my area. Q. But you're the senior Dalma person on the site aren't you? A. Yes but that...truck comes there, crane crew unloading truck. I don't even have to know it's there." 75 He agreed that whatever was required between the arrival of the truck at the site and the load being delivered to where it was required on the site, was something he left to Multiplex. 76 As I have observed, the only case made against Dalma on appeal, given the findings of the primary judge rejecting the appellant's version of events, was that Dalma was vicariously liable for the negligence of Mr Ihalainen in failing to direct the appellant to either not climb up on the load or, if he saw him on the load, to remove himself therefrom as it was not part of his duties to be on the load whilst it was being unloaded by a site crane under the supervision of the dogman. 77 Dalma and GIO submitted that the appellant was a qualified dogman, albeit not licensed at the time, and experienced at being on his load whilst it was being unloaded using a crane belonging to the construction site. Accordingly, it was submitted that the appellant being on the load did not involve any relevant risk to him requiring a warning that he might fall from the load during its unloading. In my opinion, application of the Shirt calculus to determine the reasonable response to the foreseeable risk that the appellant might fall from the top of the load where he was standing, did not require Mr Ihalainen to either warn the appellant that he might fall or to direct him to remove himself from the load. 78 The appellant was experienced and skilled in loading and unloading his truck and had been used to moving about on top of a load for many years. He had never fallen before (as far as the evidence reveals) and the state of the evidence was such that the primary judge was unable to determine the mechanism of the appellant's fall. For all one knows, he may simply have had a blackout. Although I can accept that it was foreseeable, in the sense that it was not far-fetched or fanciful, that the appellant might fall from his load resulting in him sustaining injury, even serious injury, the degree of the probability of his falling, given his experience, was low. In the circumstances, to require Dalma or Mr Ihalainen to warn the appellant that he might fall from the top of his load or that he should return to the ground, lacks any semblance of reality. Accordingly, in my opinion the observation by Mr Ihalainen of the appellant on the load on the back of his truck did not call for any response from him of the nature of that contended for. 79 It follows that in my opinion the appellant has not demonstrated that the primary judge erred in failing to find that Dalma was in breach of its duty of care.

Conclusion 80 For the foregoing reasons, I would propose that the appeal be dismissed with costs. **********

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Construction Safety Regulations 1950(NSW)

Construction Safety Act 1912(NSW)

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