EAST COAST SCAFFOLDING PTY LTD v YOUNG [2000] NSWCA 187

New South Wales Court of Appeal

CITATION : EAST COAST SCAFFOLDING PTY LTD v YOUNG [2000] NSWCA 187 FILE NUMBER(S) : CA 41081/98 HEARING DATE(S) : 7 July 2000 JUDGMENT DATE : 28 July 2000

PARTIES : EAST COAST SCAFFOLDING PTY LTD (In Liq) v Peter Wayne YOUNG JUDGMENT OF : Mason P at 1; Giles JA at 2; Einstein AJA at 24

LOWER COURT JURISDICTION : District Court LOWER COURT DC 24/97 FILE NUMBER(S) : LOWER COURT Judge P A Twigg QC JUDICIAL OFFICER :

COUNSEL : Appellant: C Gee QC; T A Alexis Respondent: J D Hislop QC; M T Gollan SOLICITORS : Appellant: Colin Biggers & Paisley Respondent: Higgins & Higgins CATCHWORDS : Negligence - personal injury at workplace - scaffolding- dispute whether appellant erected the scaffolding - ND DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41081/98 DC 1/94

MASON P GILES JA EINSTEIN AJA

Friday 28 July 2000

EAST COAST SCAFFOLDING PTY LTD v PETER WAYNE YOUNG JUDGMENT

1 MASON P: I agree with Giles JA and Einstein AJA. 2 GILES JA: I have had the benefit of reading the reasons of Einstein AJA in draft. Taking advantage of his Honour's exposition of the facts and issues in the appeal, I can briefly record my reasons for agreeing that the appeal fails. 3 The first question is whether the scaffolding on which the respondent was injured had been erected by the appellant. 4 The trial judge accepted the respondent's evidence that he had seen Mr Murdoch of the appellant erecting the scaffolding on which he was injured; he also accepted the evidence of Mr Williams of Crow Industries that he had seen Mr Appleby of the appellant and Mr Murdoch erecting that scaffolding. Unless there be more, sufficient within the well known principles in Abalos v Australian Postal Commission (1988) 171 CLR 167, DeVries v Australian National Railways Commission (1993) 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 to overcome the acceptance of these witnesses, the trial judge's affirmative answer to the question must stand. 5 Contemporaneous records establish that the respondent was injured on 23 June 1992. The daily report sheets establish that the cell from which asbestos was being removed at that time was cell No 1. The scaffolding on which the respondent was injured must have been the scaffolding around cell No 1. The appellant's submitted that other evidence established that it had erected the scaffolding around cell No 3 or cell No 4, not cell No 1, and that the acceptance of the witnesses was overcome. 6 The cells were numbered in sequence from 1 to 4. The daily reports showed that the order in which scaffolding was erected around cells and then encapsulated was cell No 3, followed by cell No 4, followed by cell No 1 and then cell No 2. 7 The appellant quoted on 30 April 1992 to "dismantle and re-erect ONE UNIT ONLY". Mr Woods of the appellant, who prepared the quotation, said that when he inspected the site prior to quoting there was scaffolding around one cell only, one of the middle cells. According to an entry in the diary of Mr Doyle of Pacific Power, the encapsulated scaffolding around cell No 3 was passed as satisfactory on 22 April 1994. In the appellant's written submissions it said that it followed that the quotation must have been for the dismantling of the scaffolding around cell no 3 and its re-erection around cell No 4. 8 However, photographs in evidence dated in mid-April 1992 showed encapsulated scaffolding around cell No 3 and scaffolding around cell No 4 with encapsulation under way. Mr Woods must have been mistaken. This is destructive of the appellant's reasoning. Indeed, it suggests that the quotation may have been for the dismantling of the scaffolding around cell No 3 and its re-erection around cell No 1. Mr Vought of Pacific Power said that the scaffolding went from cell No 3 to cell No 1. 9 Perhaps for this reason, in its oral submissions the appellant moved to saying that the quotation was for the dismantling and re-erection of the scaffolding on the same cell, cell No 4. There was nothing in the evidence to suggest either why the scaffolding should have been dismantled and erected around the same cell, or that this was done. There was express evidence to the contrary: Mr Woods said that the appellant dismantled scaffolding around one of the cells and re-erected it around another cell. 10 According to Mr Doyle, in May 1992 Mr Vane of Crow Industries told a progress meeting that he was going to employ the appellant to erect the scaffolding around cell No 4, because it had taken Crow Industries too long to erect the scaffolding around cell No 3 and it was uneconomical for Crow Industries too long to erect the scaffolding around cell No 4. In the appellant's written submissions it said that this also showed that the quotation was for the erection of the scaffolding around cell No 4, and Mr Doyle gave evidence that he saw Mr Appleby and Mr Woods erecting the scaffolding around cell No 4. However, when the scaffolding around cell No 4 was in place in mid-April 1992 (as the photographs showed), Mr Doyle must have been mistaken in his recollection of the number of the cell. The probability is that the cell to which Mr Vane referred, and on which Mr Doyle saw the appellant's employees working, was the next cell in the order after cell No 4, that is, cell No 1. 11 When asked which cell the appellant had to re-erect scaffolding around, Mr Woods said that he did not know which one but it was "an end one and it was the second one". If it was "an end one" it could not have been cell 3, but had to be either cell No 1 or cell No 4. The appellant said that Mr Woods must have meant cell No 4. If by "the second one" Mr Woods meant that it was the second cell in the order in which scaffolding was erected around cells and then encapsulated, the photographs show that he was mistaken. Since the scaffolding around cell No 4 had been erected and it was being encapsulated by mid-April 1992, the cell can not have been cell No 4. This evidence of Mr Woods does not assist the appellant, but tends to support that the appellant erected the scaffolding around cell No 1. 12 Mr Murdoch gave evidence that he had not erected scaffolding, but had only dismantled it. He was not a ticketed scaffolder. He was adamant that he had dismantled the scaffolding around cell No 3 and was not involved in the erection of scaffolding around cell No 1, and that he knew only that the scaffolding he dismantled was put in baskets at the foot of cell No 3. The appellant said that what the respondent and Mr Williams saw was Mr Murdoch dismantling the scaffolding around cell No 3. However, there was also the evidence of Mr Appleby's involvement, and although he did not specifically refer to it the trial judge was entitled to be sceptical of Mr Murdoch's asserted lack of knowledge of what was occurring on the site and to prefer the respondent's evidence that Mr Murdoch was erecting scaffolding. 13 Mr Williams initially identified the cell around which he saw Mr Appleby and Mr Murdoch erecting scaffolding as cell No 3, "I'd say". He later agreed that he could not recall the order of the cells on which work was done, "I think we started at one end and went to the other". He said that he meant from cell No 4 to cell No 1. His recollection also must have been mistaken in this respect. The trial judge was entitled to accept his evidence of seeing Mr Murdoch and Mr Appleby erecting scaffolding, while concluding that his identification of the cell was unreliable. 14 The respondent thought that he was working on cell No 3 when he was injured. He had little experience of the site, and the trial judge considered that he was in error. He must have been in error, and this does not assist the appellant. 15 I do not think that any ground has been shown for overturning the trial judge's conclusion, from his acceptance of the evidence of the respondent and Mr Williams, that the scaffolding on which the respondent was injured had been erected by the appellant. Properly understood, some of the evidence on which the appellant relied tends to support that conclusion; it was otherwise open to his Honour, where there were obscurities and inconsistencies in the evidence before him, to come to his conclusion in the manner he did. 16 The second question is whether the appellant failed properly to secure the planks on the scaffolding where the respondent fell. 17 The trial judge found that the appellant was injured - " … because planks were loose and causing a gap. It follows that looseness was caused by the lashing coming loose. It had not been properly affixed in the encapsulation process by the Defendant". He concluded on the balance of probabilities "that the scaffold was not securely or properly tied by the Defendant". The appellant suggested that his Honour misapprehended the evidence in referring to the encapsulation process, because the appellant erected scaffolding but did not encapsulate it. I think it more likely that there was a slip of the tongue, and that his Honour intended to refer to erection of the scaffolding. The key finding is that the lashing came loose because it had not properly been tied. 18 When the respondent fell the lashing around the planks was seen to be loose, so that the planks parted and his leg went between them. Mr Doyle agreed that in a properly constructed scaffolding the lashing would last for the duration of the asbestos removal. More importantly, because he was a scaffolder, when Mr Woods was asked to agree that if the planks had been "lashed in a way that the wire works itself loose", that would indicate that the wiring had not properly been tied, he replied, "If it worked itself loose that would obviously be the case". There were three possibilities. One was that the appellant's original lashing of the planks was loose; another was that the original lashing of the planks was not loose but, because the wiring had not properly been tied, it worked itself loose; the third was that the lashing had been untied and retied by someone other than the appellant. Only the third would profit the appellant. 19 The encapsulation process included that the planks were wrapped in hessian and plastic. While it is not entirely clear, it seems that the planks were not individually wrapped and that the wrapping occurred when they were in place as part of the scaffolding. The appellant said, that the loose wiring might have been because Crow Industries had undone the appellant's lashing when the planks were wrapped and had re-tied it improperly. There was no evidence to support that the wrapping of the planks involved untying and re-tying the lashing, and such a process is inherently unlikely. 20 The scaffolding was inspected by Mr Woods during erection, and by Mr Doyle and/or Mr Vought after encapsulation. A number of workers used the scaffolding during the encapsulation process and then during removal of the asbestos. The appellant said that the loose lashing would have been detected on inspection or in the use of the scaffolding. From the descriptions of the inspections, at best they would have revealed moving or tilting planks or visibly loose lashing: indeed Mr Vought said that he would not look for wiring not properly tied until he saw the boards spreading. It would not have detected lashing which had not properly been tied so that the wire worked itself loose. Use of the scaffolding would not have revealed planks moving until the wire worked itself loose. The inspections and use are consistent with discovery of the loose lashing around the planks where the respondent fell only at the time of his fall. 21 On 10 June 1992, during encapsulation of the scaffolding, it was noted that planks had been removed in the scaffolding around cell No 1. Steps were taken to have the planks replaced and lashed. It was not suggested that the planks were where the respondent fell. Mr Vought gave evidence that this had occurred on other occasions, he thought probably to make encapsulation easier by permitting items to be passed directly between levels of the scaffolding. The occasions and places were not identified. The appellant said that the loose wiring where the respondent fell may have been the result of such a happening. The possibility must be recognised, but it requires the combination of removal of the particular planks where the appellant fell and defective lashing when they were replaced. The evidence did not suggest other than occasional removal of planks, with no reason for removal of the particular planks, and it might be thought that particular care would be taken when replacing planks in the circumstances. 22 Bearing each of these matters in mind when determining whether, on the balance of probabilities, the respondent established that the appellant failed properly to secure the planks on the scaffolding where he fell, in my opinion he did. Perhaps the initial lashing was loose but not detected on inspection or in use, more likely the lashing of the planks where the respondent fell came loose in the period prior to his fall because the wiring had not properly been tied; these should be preferred to the third possibility. 23 The appeal fails if both questions are answered in the affirmative, as they are. I agree with the orders proposed by Einstein AJA. 24 EINSTEIN AJA: This is an appeal from judgment of Judge P.A.Twigg, QC delivered on 27 November 1998. 25 The respondent suffered an injury to his right knee on 23 June 1992 whilst working on scaffolding erected around a power cell on the roof of the old Wallerawang Power Station ["the power station"] at a time when asbestos was being removed from a series of such cells at the power station. A real question arose in the proceedings as to the identity of the specific power cell on which the respondent was working at the time he suffered the injury and importantly, as to whether or not the appellant had erected that particular power cell. 26 Pacific Power was at the material time the owner of the power station and Crow Industries Pty Ltd (referred to in the judgment as "the employer ") had been retained by contract with Pacific Power to remove asbestos from the power cells. The respondent was employed by Crow Industries as a lagger and was required to perform general labouring work including working on scaffolding. The appellant, East Coast Scaffolding Pty Ltd, was a subcontractor to Crow Industries in respect of certain of the work. Precisely what work East Coast had carried out and on which cell became an important issue. An important ground of appeal challenged the trial judge's holding that East Coast had erected the scaffolding on the power cell on which the respondent had been working at the time. 27 There was no issue but that there were four power cells on the roof of the power station which were respectively numbered 1, 2, 3 and 4. A sketch plan of these cells had been tendered before the trial judge as exhibit 2. It was also clear that the respondent was injured whilst working on the scaffolding around Cell No.1, which was one of the end cells. 28 Detailed evidence was adduced as to the approach taken in relation to the work carried out on the subject cells. It appears that following the erection of scaffolding around a particular cell, the next relevant step was to encapsulate the walkways and the whole of that cell in plastic [referred to in the daily report sheets as 'encapsulation' or 'building the bubble'], following which the asbestos would be stripped from the cell. The encapsulation works were carried out by Crow Industries. It appears that scaffolding was removed and later used in following a similar process for the other cells. The evidence was apparently however of real uncertainty as to which particular cells at the material time still had scaffolding around them. And notwithstanding the documentary evidence before the trial judge, it seems that a number of mistakes were exposed in cross-examination in relation to certain of that documentary material-see for example the mistakes in the diary retained by Mr Doyle, an employee of Pacific Power who at the material time, was employed as an asbestos inspector and had the responsibility of supervising the work being carried out by Crow Industries. [Transcript at Black appeal book at 120 and 121] 29 The grounds of appeal ultimately pressed were as follows: 1 His Honour erred in finding that the appellant had erected the scaffolding upon which the respondent was injured on 26 June 1992. 2 His Honour erred in finding, on the evidence, that Mr Michael Appleby and/or Mr Stephen Murdoch, employees of the appellant, erected the scaffolding upon which the respondent was injured. 3 His Honour erred in finding that the appellant had not securely or properly tied the planks on the scaffolding upon which the respondent was injured. 4 His Honour erred in finding that the appellant had breached Regulation 86(1) pursuant to the Construction Safety Act , 1912 (NSW) and that the scaffolding upon which the respondent was injured was not in good construction and was not suitable for its intended purpose. 5 His Honour erred in failing to find on the evidence that the planks on the scaffolding erected by the Appellant were properly lashed down, when the scaffolding was handed over to the Respondent's employer, Crow Industries and before Crow Industries commenced to encapsulate the scaffolding with plastic prior to the removal of asbestos. 6 His Honour erred in failing to find on the evidence that the planks on the scaffolding erected by the appellant, became loose after the scaffolding was handed over to Crow Industries, so that the loose planks that were causative of the respondent's injuries was the result of the conduct of Crow Industries or its employees. 30 Insofar as the appellant's submissions challenged relevant findings of fact on the basis that there was said to be no evidence to support those findings, and/or sought to go behind the trial judge's acceptance of evidence given by witnesses it was accepted during the hearing of the appeal that the appellant undertook the burden of a party doing so [Abelos v Australian Postal Commission (1988) 171 CLR 167; Devries v Australian National Railways Commission (1992-1993) 177 CLR 472; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in Liq) (1989) 73 ALJR 306, 160 ALR 588)