New South Wales Supreme Court CITATION : Mackie v Central Coast Leagues Club Limited [2010] NSWSC 960 HEARING DATE(S) : 17, 18, 19, 20, 21, 24, 25, 26, 27, 28 May, 1, 2, 4, 7 June 2010 JUDGMENT DATE : 1 September 2010 JUDGMENT OF : Smart AJ DECISION : Verdict for the defendant on all counts CATCHWORDS : COMMON LAW - Plaintiff seriously injured when ladder of Club's Tallescope tilts and he is thrown head first onto thrust stage - Plaintiff former employee of defendant with much experience as light and sound operative in safely operating Tallescope while adjusting lighting on lighting bar immediately below ceiling of auditorium - engaged as independent contractor but envisaged by defendant that plaintiff would use Tallescope - probable cause of accident that locking mechanisms not secured before plaintiff climbed ladder - Tallescope contains warnings that before climbing the locks shoud be secured - ladder top-heavy because of attached workbox - no negligence by defendant nor breach of implied term of contract - statutory counts under former Factories, Shops and Industries Act 1962 and former Construction Safety Act 1912 and Regulations 1950 inapplicable. Construction Safety Act 1912 Construction Safety Regulations 1950 LEGISLATION CITED : Factories, Shops and Industry Act 1962 Occupation Health and Safety Act 1983 Scaffolding and Lifts Act 1912 CATEGORY : Principal judgment CASES CITED : Stevens v Brodribb Saw Milling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 PARTIES : David Mackie (Plaintiff) Central Coast Leagues Club Limited (Defendant) FILE NUMBER(S) : SC 2008/289206 COUNSEL : DT Kennedy SC/ R de Meyrick (Plaintiff) J Sleight (Defendant) SOLICITORS : CBD Law (Plaintiff) Hunt & Hunt (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Smart AJ Wednesday 1 September 2010 2008/289206 David Mackie v Central Coast Leagues Club Ltd JUDGMENT Index Paragraph nos: Introduction 1 – 11 Pleadings Negligence and Contract counts 12 – 21 Statutory and Regulatory counts 22 – 31 Background 32 – 38 Defendant's order and the work 39 – 46 Use of Tallescope by plaintiff and others 47 - 50 Preparation of document as to Safe Work Practice (SWP) 51 Warning markings on Tallescope 52 Tallescope testing 53 – 56 Improvement Notices 57 - 61 Tallescope no longer in use 62 Evidence supporting statutory and regulatory counts 63 Operation of Tallescope 64 - 68 Extension of time application 69 – 82 Plaintiff and Mr Fogg and plaintiff's credit 83 - 98 Storing and movement of Tallescope 99 Plaintiff's use of Tallescope 100 Plaintiff's evidence 101 – 116 Change in characteristics of Tallescope (alleged) 117 - 119 Lack of complaint 120 Independent contractor 121 - 125 Re-examination 126 - 128 Mr Russo 129 – 147 Inspector Sibilant of WorkCover 148 – 156 Mr Mitchell 157 Mr Fogg – Engineer 158 – 209 Mr Ng – TestSafe Australia 209 – 267 Dr Heathcote 268 – 304 Resolution of conflicting causes of accident 305 – 320 Contract and tort – independent contractors 321 – 328 Decision on negligence and contract counts 329 Factories Shops and Industries Act 330 – 338 Safety Construction Act and Regulations 339 – 347 Decision on statutory (or regulatory) counts 348 Introduction 1 By his Second Further Amended Statement of Claim (SFASOC) the plaintiff sued the defendant for damages when he sustained serious head and other injuries in an accident at the defendant's premises at Gosford on 7 September 2000. The plaintiff had been engaged under a contract to perform duties as an audio and lighting contractor. This involved the erection and alteration of lighting on a lighting bar immediately below the ceiling of the Regency Room. About 4.15 pm the plaintiff was using an extendable ladder owned and supplied by the defendant, being a portable and adjustable scaffolding device known as a Tallescope Model 50512 (or 512), for the purpose of the erection and alteration of lighting above the thrust stage of the Regency Room when the ladder holding the plaintiff moved from a vertical towards a horizontal plane and the plaintiff was thrown head-first onto the thrust stage. That room was a large auditorium capable of seating about 1100 people in one format. It was being prepared for a Lions Club function, namely a fashion parade. The auditorium had a stage from which a thrust stage could emerge and be placed into position. Beyond the thrust stage was a catwalk. The parts of the catwalk were placed into position. The Tallescope consisted of three major parts; a base part, a ladder part, which could be swung from a horizontal position into a vertical plane and a workbox affixed to the upper end of the ladder. There was a pivot point which allowed the operator to swing the ladder from the horizontal position, being the position in which it was stored when not in use, to the vertical position. Below are representations of the Tallescope Model 512 in its horizontal and vertical positions. 2 This brief description was given in the engineering report of Mr David Ng on Tallescope Model No 50512 or 512, Product Name "Topdek", manufacturer – Instant Scaffolds: "Aluminium construction, single person work box, mounted at the top of an extending ladder which pivots about a scaffold base with 4 castors. Working height is adjustable from 3.1 m to 4.4 m with the ladder locked into its vertical position. Ladder can be rotated into its horizontal park position when being moved. Rated capacity 200lb (91 kg)." 3 The evidence in support of the plaintiff's case included his past practice of always locking the two sets of hooks, one set being located on each side of the ladder and each set comprising a triangular steel hook and beside it a clamp. Both the hook and the clamp on each side of the ladder locked onto an anchor tube at the base of the Tallescope and, when in place, secured the ladder. The plaintiff alleged that in about 1993 the hooks and the clamps locked into place by gravity once the top-heavy ladder (with the workbox) was placed in the vertical position, but increasing force had to be applied over the years to ensure the clamps clicked into place. The plaintiff relied on the Tallescope not being properly maintained, but there was an issue whether the lack of maintenance caused or contributed to the accident. 4 The plaintiff also relied on the evidence of Mr Fogg, an experienced engineer, who prepared three reports and gave oral evidence. The plaintiff also called Inspector Sibilant of WorkCover who attended at the Club some five days after the accident and Mr C Mitchell. I have not overlooked the evidence of the plaintiff's wife. That principally went to the difficulties he has experienced since the accident and to damages. She was not an important witness on liability. 5 Both Inspector Sibilant and Mr David Ng, an experienced engineer and the then Head of the Mechanical Unit of TestSafe Australia, the testing body for WorkCover, were interested in ascertaining if there was evidence of a possible breach of work and safety laws. They were trying to ascertain the cause of the accident. 6 The defendant relied on the detailed report and the oral evidence of Mr D Ng who supervised tests of the Tallescope on 22 September 2000 and the written report and oral evidence of Dr K Heathcote, an experienced and highly qualified engineer. 7 A considerable body of medical and related material was placed before the Court by the parties. I heard the oral evidence of Dr S Buckley and Associate Professor RF Jones. It is unnecessary to review it. The plaintiff was in the witness box for a lengthy period over a number of days. This gave me the opportunity to assess his evidence, his pre and post accident conditions, his recollection and his disabilities. It took considerable time for the full picture to emerge. Mr Mackie said that during the period from about 11:50 am to 1 pm on 25 May 2010 his concentration was affected for probably about 15 to 20 minutes (T 384). 8 In Mr Ng's report this further description of the Tallescope, along with some observations, appears: "Scaffold base The scaffold base consists of a framework using standard 50 mm aluminium scaffold tubing and connections. It has four adjustable height legs, which are fitted with castors. Each castor has a braking arrangement operated by a lever, which moves the castor wheel against a catch, thus restraining the wheel from rotating. Two adjustable outrigger supports are mounted on the centre vertical tubes on each side of the base, with telescoping rubber-soled foot sections. A small platform is placed at one end of the lower tubes of the base to serve as a stepping off point when climbing the ladder. The scaffold base appears to be in reasonable condition, with no apparent damage other than some depressions on a short horizontal tube, which may be due to movements against tie-downs during transportation. Two of the castors had tape and other loose debris caught up around axle. One of the wire frame brake catches was missing from a workbox side castor. Extending ladder and work box The ladder swivels at a position about 1400mm from its base, and the longer top end with the workbox is therefore heavier, with a tendency for it to fall forward if the latches are undone. The ladder is maintained in a horizontal position, when at rest and not in use, by means of an articulated Y-shaped tie from a rung fitted to the back of the stiles to a horizontal tube spanning across the vertical members of the scaffold base. This tube also serves as the anchor for the ladder when it is raised in the vertical position. Two sets of latches, mounted on the inside of stiles of the lower section of the ladder, are used to secure the ladder to the tube. The outermost hook–shaped set nearest the stiles, are made from 4 mm thick steel plate and have tapered leading sections which ride over the tube allowing the tube to enter the mouths of the hooks by gravity, thus latching the ladder. A second scaffold snap-hook type set, mounted adjacent to the first such that they are raised by the action of the first set, has self locking spring-loaded toggles which are shaped to grip the tube when locked in. The top section of the ladder slides inside the stiles of the lower section, and is raised by pulling on a hauling rope, one end of which was tied to the anchor tube. Latches mounted inside the stiles hang the upper ladder onto the rungs of the lower ladder when being extended. In the horizontal position, a hinged catch prevents the upper section from sliding forward when being transported. The workbox has a 460 x 465 mm aluminium sheeting floor, with 25 mm diameter aluminium guard railing located 1080 mm above the floor level. The guard railing had suffered some old damage and temporary repairs were carried out using PVC adhesive tape. The front tube of the railing was observed to be partly flattened. The latching hooks securing the ladder to the anchor tube appear to be working properly, with the inner ones clicking into place with the application of light pressure. The relative positions of the upper and lower sections of the extending ladder appear to allow the load of the upper section to be carried entirely by two aluminium angle sections when fully retracted (lowered). The latches did not engage onto a rung of the lower section and continued loading on the aluminium angles have caused them to be bent upwards The straight section of the Y-piece strut connecting the ladder to the anchor tube was observed to be slightly bent." 9 Immediately before the accident the ladder was in the vertical position. It is probable that the plaintiff climbed up the ladder. When he was in the workbox, or climbing into it, or about to climb into it, the ladder tilted or fell forward and the plaintiff was thrown headfirst onto the stage. The ladder fell towards the floor of the stage with the attached workbox ending up towards the floor of the stage on the underside of the level of the ladder. The plaintiff was taken to Gosford Hospital and then transferred to Royal North Shore Hospital. At first it was not realised how serious the head injuries were. That was discovered some years later. 10 The plaintiff had used the Tallescope on many occasions as an employee of the Club between 1993 and July (or possibly August) 1999 when he resigned from the defendant. Almost if not immediately he commenced to carry on business as a sound and lighting contractor under the name of Mackie Audio Visual and was frequently engaged by the Club. When so engaged he frequently used the Tallescope in connection with the work he was doing for the Club. He gave evidence of his practice (allegedly invariable) when he used the Tallescope. At one stage after about August 1999 his firm carried out work for the Club on a wider basis. That terminated in January 2000 (Exhibit 2). 11 The plaintiff remembered that on the day of the accident he went back stage to look for the Tallescope, it often being kept there when not in use, but he did not remember wheeling it out. His next recollection was waking up in hospital. Pleadings Negligence and Contract Counts 12 The plaintiff sued the defendant for damages for negligence alleging, inter alia, failure to maintain the equipment adequately, providing equipment for the plaintiff to use which was not safe for use by the plaintiff and failure to ensure that the plaintiff was properly instructed and trained in the use of the equipment provided by the defendant. He also relied on the failure of the defendant to clean or maintain the Tallescope adequately, or at all, including a failure to clean, lubricate and/or maintain the dual locking mechanisms in the Tallescope so that they properly and reliably locked into place. The plaintiff also alleged that the defendant failed to ensure that the Tallescope was properly and securely locked into the upright position before the plaintiff came to use it. 13 The plaintiff alleged that the defendant owed the plaintiff a contractual duty implied by operation of law to provide the plaintiff with a portable scaffold ladder that was as safe for use by the plaintiff as anyone could make it and had breached that duty. 14 The plaintiff relied on various alleged breaches of statutory and regulatory duties; first, under the Factories, Shops and Industry Act 1962 and, secondly, under the Construction Safety Act 1912 and Construction Safety Regulations 1950. 15 The defendant admitted the allegation in paragraph 1 of the SFASOC that it was the owner and occupier of the Central Coast Leagues Club premises at Gosford and the allegation in paragraph 2 of the SFASOC that the plaintiff was lawfully present upon such premises in the course of his engagement by it under a contract to perform duties as an audio and lighting contractor, which also involved the erection of lights on a lighting bar below the ceiling of the Regency Room and/ or the alteration of the focus of lighting on the lighting bar and which duties were being performed under the overall supervision and management of the defendant. 16 The defendant admitted the allegation in paragraph 3 of the SFASOC that, at about 4.15 pm, the plaintiff was using a ladder owned by and supplied by the defendant (being a portable and adjustable scaffolding device known as a Tallescope) for the purpose of carrying out the tasks referred to in paragraph 2 of the SFASOC above the stage in the Regency Room, save that no admission was made as to what the plaintiff was doing with the lights, if anything, immediately prior to the alleged injury. There was no serious dispute that the plaintiff was adjusting the lights on the lighting bar. The reservation arose out of the activities on which the plaintiff was engaged immediately before the ladder tilted and he was thrown to the stage. At that point he had probably climbed up the ladder and probably was in the workbox, or climbing into the workbox, or about to climb into it. His exact position cannot be established. 17 In paragraph 4 of the SFASOC it is alleged that the ladder failed causing the plaintiff to fall to the ground. Save that the defendant admitted that the plaintiff was found on the ground, it denied that the ladder failed as alleged. It was established on the evidence that the ladder probably tilted and that the plaintiff was thrown onto the (thrust) stage floor. 18 In paragraph 5 of the SFASOC it was alleged that, by reason of the defendant retaining the plaintiff under contract to perform duties at and about the premises it occupied, including the erection and/ or alteration of ceiling lights in the Regency Room, the defendant was at all material times under a duty to the plaintiff to take reasonable care for his safety by providing a safe place of work for him, proper and safe plant and equipment for carrying out its operations, a proper and safe system of conducting its operations and provide proper and efficient supervision. In paragraph 6 of the SFASOC the plaintiff alleged breach of the defendant's duty in negligently failing to do so. In paragraph 7 of the SFASOC it was alleged that injury to the plaintiff was caused by the defendant's negligence. 19 In paragraph 4 of its defence the defendant denied paragraphs 5, 6 and 7 of the SFASOC and the allegations that the defendant: a) owed the plaintiff a duty of care in the circumstances. (The defendant averred that the plaintiff was an independent contractor upon whom fell the very duty alleged against the defendant); and b) breached any duty of care (if it existed) owed to the plaintiff; and c) by such breach or other alleged negligence caused the alleged, or any, injury to the defendant (sic) (?plaintiff). 20 The defendant denied the many particulars of negligence alleged in paragraph 8 of the SFASOC and the allegation in paragraph 9 that, by reason of the negligence alleged, the plaintiff continued to suffer the loss and damage alleged. The defendant denied the allegation that it owed the plaintiff a contractual duty to provide the plaintiff with a portable scaffold ladder that was as safe for use by the plaintiff as anyone could make it and the allegation in paragraph 9B that the defendant breached its alleged contractual duty. The defendant alleged that the plaintiff was an independent and specialist contractor with extensive experience as a sound and lighting technician. 21 The nub of the dispute as to negligence and breach of contract revolved around the defendant supplying a Tallescope which appeared to be poorly maintained for use by the plaintiff, whether any of the alleged lack of maintenance and defects caused, or contributed to, the accident, whether the plaintiff secured the locking devices on the Tallescope before starting to climb the ladder on 7 September 2000, whether such devices were in a serviceable condition and the plaintiff's responsibilities to check the Tallescope 512 as an independent contractor with extensive experience using the Tallescope as a former employee and then as an independent contractor. Statutory and Regulatory Counts 22 The plaintiff contended that the defendant's premises met the definition of a "Factory" within s 4(1) of the Factories Shops and Industries Act 1962. The plaintiff contended that the defendant was the occupier of the Club premises and that the premises were a building in which four or more persons were engaged in a "manufacturing process" and that the premises were a building in which mechanical power (which includes electrical power) was used in aid of a manufacturing process and that the defendant was engaged in a "manufacturing process". The plaintiff also relied on ss 4(1)(a)(iv)(b) and 4(1)(a)(v) of the Act. He also contended that the premises constituted a bakehouse and thus a factory. The plaintiff further contended that, by reason of his work at the time of the accident within the defendant's factory of which the defendant was the occupier, the defendant by itself, its servants or agents, owed the plaintiff the statutory duties set out in ss 34(d) and 40(1), and breached them. Section 34(d) required that in every factory the ladder provided be of sound construction and properly maintained. Section 40 states that, so far as is reasonably practicable, there shall be provided and maintained in every factory safe means of access to every place of work (paragraphs 13, 15(f) and 15(g) of SFASOC). 23 As to the claim under the Factories, Shops and Industries Act, the defendant contended that the Regency Room in which the plaintiff was working was a large auditorium and could not be classed as a factory or a bakehouse. The defendant further contended that s 34(d) of the Factories, Shops and Industries Act had been complied with in that the Tallescope 512 met the requirement that all ladders shall be of sound construction and properly maintained in relevant respects. 24 Section 40(1) of that Act requires "that there shall so far as reasonably practical be provided and maintained in every factory a safe means of access to every place at which a person has at any time to work". The defendant doubted whether this could apply to maintenance because it is not a place of work in a factory. The defendant also contended that it had provided, so far as reasonably practicable, a safe means of access to the lights and was not in breach of any of its obligations under s 40(1). 25 The plaintiff contended that at the time of the accident he was performing and the defendant was engaged in "construction work" and "building work" within the meaning of the Construction Safety Act and Regulations 1950 (paragraph 14(a) of SFASOC). The plaintiff alleged that he was engaged on one or more of the following aspects of building work in relation to a building or structure and/or at or adjacent to the site thereof: "… constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, sheathing, dismantling or demolishing." 26 The plaintiff alleged that by reason of such work he was engaged in work whereby he was required to access a workplace from which he was potentially liable to fall a distance in excess of 1.8 metres and his position on the ladder at the time it failed was in excess of 1.8 metres from the floor level upon which that device stood. The plaintiff was provided by the defendant with the Tallescope for the purposes of performing his work under the contract. No other means of accessing the lights within the Regency Room was provided by the defendant or was otherwise available to the plaintiff. 27 The plaintiff alleged that the defendant was in breach of the following: (a) Regulation 73(1) – it failed to provide suitable and safe scaffolding (b) Regulation 73(2) – it failed to provide and maintain safe means of access to any place at which any person has to work at any time (c) Regulation 73(3) – it failed to provide means by fencing or otherwise for securing the safety of any person working at a place from which he is liable to fall a distance of more than 1.8 metres (d) Regulation 74 – there being a risk that the plaintiff may fall because of the absence of any adequate handhold or foothold, it failed to provide a safety belt, safety line or safety harness complying with AS1891 or a safety net complying with BS3913 (e) Regulation 75 – it failed to provide any or any adequate platform from which the plaintiff could conduct his work in accordance with the Regulations. 28 The defendant denied paragraphs 11 to 15 of the SFASOC. These alleged sundry breaches of the Factories Shops and Industries Act 1962, the Construction Safety Act 1912 and the Construction Safety Regulations 1950 as briefly summarised. The defendant contended that it was not engaged in "construction work" and "building work" within the meaning of the Construction Safety Act and Regulations and thus it was not bound to comply with any of the Regulations on which the plaintiff relied. 29 As to Regulation 73(1), the defendant contended that, if it was bound to comply with that regulation (which it disputed), it provided suitable and safe scaffolding, assuming it was operated correctly. Similarly, the defendant contended that it provided a safe means of access (Regulation 73(2)). As to Regulation 73(3), the defendant contended that it did provide fencing by means of the workbox. The defendant further contended that the failure to provide adequate fencing at the place of work did not cause the accident. 30 As to Regulation 74, the defendant additionally contended that it was not required to provide a safety belt, safety line, safety harness or safety net because there was no absence of any adequate handhold or foothold. 31 As to Regulation 75, the defendant contended additionally that, if the Tallescope was operated correctly, an adequate platform was provided. Background 32 Mr Mackie left school in 1977 having obtained his school certificate in 1976. From 1978 to 1980 he was an apprentice electrician and undertook a course to qualify as an electrician at a Technical College. He did not complete that course or gain a qualification. He joined a band. Between 1982 and 1988 he worked as a sales clerk. From 1988 to 1991 he worked for Trafalgar Studios setting up and recording bands, engineering and reproducing the sounds. In 1993 he was employed by the defendant and did audio-visual work. He set up and operated the Club's audio and lighting equipment in various rooms at the Club. He also maintained that equipment, namely PA systems and stage lighting systems. He worked in the auditorium on the first floor, the Regency Room, from 1993 for a variety of functions until he ceased employment with the Club in about July 1999. He worked in other rooms of the Club which accommodated smaller functions. 33 The plaintiff relied on a reference dated 25 October 1999 and signed on its behalf by Mr Colin Towson as the Facilities Manager. Mr Mackie was described as "trustworthy enthusiastic, reliable and professional in the execution of his duties as Sound and Light Technician" at the Club. The reference continued that Mr Mackie: "… has serviced and maintained the sound/audio and lighting equipment at the Club as well as performing duties as operator for many of the Club's shows." It was a reference of which any employee would be justifiably proud. The evidence establishes that Mr Mackie was a valuable, competent and conscientious employee. 34 The plaintiff's evidence was difficult to assess. While he appreciated that portion of his brain had been damaged and he sought compensation, he did not realise the full effect and extent of the damage he had suffered. He over-estimated his ability to cope with giving evidence and to deal with sustained questioning. His memory was poor. He struggled hard to cope with the questions he was asked but not always successfully. He was not dissembling or being dishonest. He was functioning but partially. At times this was obvious but at other times it was not, due to the plaintiff's desire to keep going so as not to waste the Court's time and resources. Much of the time he endeavoured to, and partially succeeded in, creating a brave front. 35 He had a poor recollection of what took place in about May 2006 when he swore his affidavit of 15 May 2006 in support of an application to extend the time in which proceedings could be brought against the Club for damages. While he gave evidence of what he appreciated he had to disclose to the Court in such an application, the evidence he gave represented his present understanding. He left the drafting of his affidavit to his solicitor and adopted what was drafted without close examination. He was in no position to asses the contents of that lengthy affidavit and could not have done so realistically and advise of any mistakes or matters not sufficiently covered. I do not criticise the plaintiff's solicitor as Mr Mackie tends unwittingly to be deceptive because he tends to overstate his level of understanding and what he can do. This is part of his attempt to cope and is not dishonest. 36 Mr Mackie also had a poor recollection of what took place at the meeting he had with Mr Fogg about 15 October 2006 and referred to in Mr Fogg's report of 22 May 2007. Mr Mackie was not capable of responding to the invitation in Mr Fogg's report to correct any mistakes in the report as to the facts. Mr Mackie did not regard it as his place to comment upon the engineering approach and contents of Mr Fogg's report. 37 There appeared to be some confusion in Mr Mackie's evidence in that he appeared, at T48 lines 10 – 14 and at T 385 lines 30 – 45, to be saying that the outer metal hooks next to the clamps had not been and could not be locked into place. In other instances he appeared to be saying that the outer metal hooks had been locked into place. Contrast T 47 lines 17 – 43, T 48 lines 4 – 14 and T 385 lines 30 – 45, inter alia. At T 90, when asked if there was more that one locking mechanism, he replied: "in the pairs, one piece was a locking mechanism, the other was a safety hook". The larger piece was the locking mechanism (or clamp). At T 91 Mr Mackie demonstrated what he was intending to convey. Beside the clamp (or locking mechanism) was a metal hook. On occasions the phrase "locking mechanism" was used to include both the clamp and the safety hook. 38 Mr Ng's report and evidence, especially that as to the test where one of the outer hooks grabbed hold of the anchor tube and was sufficient to hold the ladder in the vertical position, made the function of the outer metal hooks in grabbing hold of the anchor tube clearer. Mr Ng's use of the English language, while reasonable, at times caused difficulties. It was not always possible to follow completely what he was saying. Defendant's order and the work 39 On 25 August 2000 the Club sent to Mackie Audio Visual, the firm of the plaintiff and his wife, the following order: "PLEASE SUPPLY ON OUR ACCOUNT THE FOLLOWING Quantity Description Light & Sound Operator for following: 5.30pm Wed 6/9/2000 Youth Design Awards & (illegible) (Parade) (6.30 pm) LIONS CLUB GOWN OF THE YEAR 6 pm Thurs 7/9/2000 (Parade) (illegible) at 8 pm" (The copy tendered was hard to read.) 40 Mr Mackie said that for a fashion parade he had to adjust the stage lighting, light the catwalk correctly and set up the sound system (including the microphones). Additional lights were probably attached to the lighting bar. The lights on the lighting bar needed to be re-focussed. He operated the stage, catwalk and room lighting and the audio equipment from a console within the Regency Room. The power for the various lights was in the ceiling. The height from the stage to the ceiling was about six metres. The stage consisted of floorboards. There was no material on top of them. 41 Mr Mackie explained that on the Tallescope there were pairs of matching locking mechanisms on either side of the ladder. The locking mechanisms consisted of a large metal hook, beside which was a clamp which was spring-loaded. (This is further explained in Mr Ng's report.) Mr Mackie said that when he first started at the Club and elevated the ladder into the vertical plane the ladder locked into position through force of gravity. It was not necessary to apply any force or pressure to the clamps. He said that over time when he elevated the ladder he pushed the clamps down and made sure that they were seated in, that is, locked onto the bottom rung of the base. He said that when you pushed the clamps in, i.e. onto the bottom rung, there was a clicking sound as they locked. Mr Mackie said at one point that the outer hook did not lock on the bar or tube. It just rested there (T 385 lines 30 – 45). I doubt if this is correct. 42 Mr Mackie said that as time went on it became increasingly difficult to get the ladder, when elevated, to click into place and he had to force the clamps on both sides of the ladder with his hands. The left side was more difficult. He noted that there was black gaff tape on the Tallescope. He did not put it there and it was not there when he was first employed by the Club. He noticed it sometime later. He had difficulty in pinpointing the time when he first noticed the tape. He thought it was probably a couple of years previously, but he was not sure. 43 Mr Mackie could not recall whether he used the Tallescope on 6 September but he thought it was "more than likely" that he did so to adjust the lighting. Mr Mackie said that he did not have the equipment to be able to get into a position to refocus the lights. From the time he ceased being an employee of the Club there was no objection to him using the Tallescope and various employees of the club saw him using the Tallescope. After Mr Mackie ceased being an employee of the Club he went to the Club on many occasions to carryout work for the Club. Mr Mackie explained that being a light and sound operator involved setting up for the event. 44 Mr Mackie's usual practice when re-arranging the lighting was to wheel the Tallescope to the location he needed it in the horizontal position and, when he had the Tallescope in about the right location, to elevate the ladder with the attached workbox to the vertical plane and secure the ladder. When the Tallescope had been wheeled to the desired location, it was Mr Mackie's practice to lock its wheels in place before using the ladder so the Tallescope could not move. Sometimes the Tallescope's position needed a slight further adjustment before the wheels were finally locked. The Tallescope had two outriggers (poles or aluminium members) which were slid out at right angles to the main frame, pushed down to the floor and locked in place. They provided stability. They were about one and a half metres long and locked into place before the ladder was climbed. 45 Mr Mackie could not remember what plane the ladder was in when he found it, nor could he recall wheeling it out. The Tallescope had a traditional extension ladder. There was a rope and pulley system. When the Tallescope was on the stage, it was necessary to elevate the ladder about three rungs. The latches went over the rungs at the stipulated height. He said that the workbox at the top of the ladder had a metal base plate and there was a metal surround attached to the base plate about 75mm high. There were vertical members which went up to the top of the workbox. At the top of the workbox was an aluminium railing. Mr Mackie thought that the railing was about a metre or a bit more from the base of the workbox. The railing was fixed. The worker climbed into the workbox by ducking under the frame. 46 Mr Mackie explained that, because of the length of the light bar, he could not adjust all the lights from the one location, that rather than go up and down the Tallescope half a dozen times to adjust all the lights that had to be adjusted, he reached out and did as many as he could to the left or the right from one spot and then he would dismount, move the Tallescope along and adjust the other lights that required movement. On average, he found that from one position he could alter about four lights. He could safely stretch about one and a half metres. Mr Mackie said that if he reached out of the workbox it moved, made a creaking sound and swayed. Use of Tallescope by plaintiff and others 47 Mr Mackie used the Tallescope several times a week in the last three months of the year in 1999 and previous years. At other times he used it about every three weeks. Mr Mackie saw the cleaners use the Tallescope in the auditorium and outside the building around the car park area when they put a gel on part of the building to keep the pigeons away. To transfer the Tallescope outside the building the Tallescope was taken down the main auditorium stairs to the ground level. The Tallescope was taken to other areas of the Club. Mr Mackie also saw road crews from touring rock bands, maintenance staff, members of disco groups in the auditorium and, very occasionally, the electrician use the Tallescope. It was taken down some steps from the stage to the auditorium floor. If Mr Mackie could not get anyone to help him he would take the Tallescope down the steps from the stage to the floor of the auditorium one step at a time. The Tallescope was heavy. It was a heavy lift for two people. 48 Mr Mackie never saw or recalled anybody carrying out any maintenance on the Tallescope, or anybody inspecting it to see how it operated. The Club had a maintenance department controlled by an officer. 49 Mr Mackie never placed any tape of any description on the Tallescope, nor did he see anyone from the Club do so. No manual as to the use of the Tallescope was made available to Mr Mackie, either while he was employed by the Club or between the time of ceasing his employment with the Club and the time of the accident. 50 No one from the Club told Mr Mackie that he should not force parts of the Tallescope that did not fit freely. Preparation of document as to SWP 51 Mr Mackie recounted that Mr C Towson, who ran the maintenance department, asked him to prepare a document for SWP (Safe Work Practices) for the Tallescope. Mr Towson said that they needed SWPs for all the equipment in the maintenance department. Mr Mackie, who had no qualifications in engineering or occupational health and safety, prepared a document by including the instructions on the markings on the Tallescope and using his common sense. Mr Mackie was not provided with any document prior to preparing the SWP document. The document prepared by Mr Mackie relevantly states: " SWP AUDIO & LIGHTING DEPARTMENT Operation of Scaffold Ladder stored in Auditorium to set up: 1. Wheel ladder to desired location. 2. Ensure area above ladder is clear. 3. Pull out-riggers away from frame. 4. Pull down on bottom rung of ladder and push forward until ladder is upright. 5. Ensure base of ladder is locked into position on each side, and wheels are locked. 6. Secure out-riggers at 90 degrees to mainframe of ladder and to the floor. Lock into position. 7. Pull rope to raise ladder to necessary height. Make sure it is locked into position." That was Mr Mackie's usual practice. Item 5 is of particular importance in the context of the accident which occurred. Warning markings on Tallescope 52 According to the TestSafe report, the markings on the Tallescope include: (A) A sticker on the plate attached to the Y piece strut which reads: STOP BEFORE TILTING BEFORE CLIMBING UP OR DOWN (1) LOCK LADDER HOOKS (1) BRING DOWN UPPER PART OF LADDER (2) LEVEL & LOCK LEGS (2) CLEAR PLATFORM OF EQUIPMENT (3) LOCK CASTORS (3) CHECK OVERHEAD CLEARANCE (4) EXTEND & LOCK OUTRIGGERS Diagrammatic instructions follow Diagrammatic instructions follow This sticker and plate is in a prominent position on the Tallescope. This marking is clearly visible when the ladder is in the horizontal position. Safe operating procedures are detailed. (B) Further stickers with a red background and described as "red caution stickers" warn operators to lock safety hooks before climbing and to retract upper section before unlocking safety hooks. Two of these stickers were stuck on the anchor tube and one on each of the inner latches. The sticker on red background reads: CAUTION 1. LOCK SAFETY HOOKS BEFORE CLIMBING 2. RETRACT UPPER SECTION OF LADDER BEFORE UNLOCKING SAFETY HOOKS (C) The metal plate riveted to the side of the stile is headed: " CAUTION Model No. 512" and reads: "BEFORE TILTING, MOVING OR CLIMBING 1. LEVEL & LOCK ADJUSTABLE LEGS 2. LOCK CASTOR BRAKES 3. CHECK OVERHEAD CLEARANCE 4. ADJUST & LOCK OUTRIGGERS BEFORE LOWERING TO HORIZONTAL POSITION 1. LOWER UPPER SECTION OF LADDER 2. REMOVE ALL EQUIPMENT FROM PLATFORM MAXIMUM HEIGHT NOT TO EXCEED 14 ½ FEET MAXIMUM PLATFORM LOAD 200 LB MAXIMUM HEIGHT MUST NOT EXCEED 3 TIMES THE MINIMUM BASE DIMENSION." (D) On the workbox there is a yellow sticker headed " TOPDEK ". Underneath is another heading, " CAUTION ". Such a sticker is attached to the side of each stile. The sticker reads: "BEFORE TILTING UP, MOVING OR CLIMBING 1. READ SAFETY RULES 2. LEVEL & LOCK ADJUSTABLE LEGS 3. LOCK CASTOR BRAKES 4. CHECK OVERHEAD CLEARANCE 5. LOCK SAFETY HOOKS AT BOTTOM 6. ADJUST AND LOCK OUTRIGGERS HEIGHT OF PLATFORM MUST NOT EXCEED 3 TIMES THE SMALLEST BASE DIMENSION UNLESS TOPDEK IS TIED TO BUILDING. DO NOT ROLL WITH MEN OR MATERIALS ON PLATFORM BEFORE TILTING DOWN 1. LOWER UPPER SECTION OF LADDER 2. REMOVE ALL EQUIP FROM PLATFORM MAXIMUM PLATFORM LOAD 115 KG (250 LB) PLATFORM HEIGHT ADJUSTABLE FROM 3.1 M (10 FT) – 4.4 M (14 ½ FT) Diagrammatic instructions follow Model No 50512" (The word "ROLL" may be incorrect. It is hard to read.) Mr Mackie was not given the "Safety Rules" to read at any stage. Nevertheless the red caution sticker and the sticker headed " STOP " attached to the plate and the yellow stickers attached to the stiles emphasised that before there is any climbing the hooks must be locked. This is to be expected when the heavy workbox at the top of the ladder tends to cause the ladder to topple. It is to be noted that the maximum platform load of 115 kg (250 lb) stated under the heading "BEFORE TILTING DOWN" on the yellow sticker is inconsistent with the limit of 200 lb stated on the metal plate riveted to the side of the stile. (E) White sticker with manufacturer's details on side of stile. Tallescope testing 53 About 15 September 2000 the Tallescope was conveyed by truck from the Club at Gosford to the premises of TestSafe at Londonderry. Tests were carried out on 22 September 2000 with the use of 91 kg (200 lb) sand bag in the workbox, ropes and an overhead crane. 54 For the testing: "The outriggers were extended, the castor wheels were locked and the ladder was raised to the vertical position without extending the upper section. A 91 kg (200 lb) sandbag was placed in the workbox and a rope tied to the rear section of the guardrail. The outer latches with the spring-loaded toggles were undone and allowed to rest on the anchor tube. The left (in respect to a person climbing the ladder) latching hook was then raised and held in place by allowing it to contact the hinged catch, described at the end of the first paragraph (under the heading 'Extending ladder and work box'). With only the right hook holding the ladder to the anchor tube, the rope was pulled and tugged in a forward direction so as to cause the ladder to topple forward, …" (3.1 of TestSafe Australia report) Mr Ng wrote as to the result: "The hook at the left fell back into its latching position, increasing the security of the ladder. At no stage, even when a force high enough to lift the rear castors of(f) the floor was applied, did the ladder come undone from the latches." He further wrote: "The test was repeated with the loop and knot of the ladder hauling rope moved underneath the left side hook and latch to prevent their proper engagement with the tube. Again, the ladder did not detach from the anchor tube, shaking it only caused the left side hook to engage on the tube." Mr Ng also wrote: "[w]ith the spring latches unhooked, it was found that as soon as a person's weight was transferred to the bottom rung of the ladder, this action assisted in the proper engagement of the latches." 55 The tests carried out at TestSafe Australia were unable to establish what caused the accident. 56 The Court was referred to a letter of 20 April 1972 from the Department of Labour and Industry NSW to Instant Scaffolds referring, inter alia, to Standard Tallescope Model 512 advising that the design of the Tallescope appeared satisfactory for light duty work. Approval in terms of Regulation 86(11) under the Scaffolding and Lifts Act 1912, as amended, was granted subject to specified conditions. Improvement notices 57 On 20 October 2000 WorkCover Authority, by Inspector Sibilant, issued two Improvement Notices (215992 and 215993) to the Club under s 31R of the OH&S Act 1983. Notice 215992 stated this reason for its issue: "Persons may be exposed to risks from single person workbox (50512) due to 1) conflicting load rating plates 2) rear HC DVC unit not resting on bottom rung when retracted." 58 Notice 215992 required these measures to be taken: "1. You shall ensure the safety of persons by providing a manufacturer's report on the retraction unit of the single person workbox (Model 50512) 2. The manufacturer is (to) supply and fit the correct load rating plate. 3. Your attention is drawn to sections 15 and 16 of the Occupational Health and Safety Act 1983." 59 Notice 215993 states as the reason for its issue: "Persons may be exposed to risks from Single Person Workbox (Model no 50512) due to maintenance issues." Notice 215993 required these measures to be taken: "1) You shall ensure the safety of persons by undertaking necessary repairs to a) guard rail b) (R) right castor brake not working and wheel restraint is missing c) tailed end add on haul rope anchor point – reattach at brassing (sic) member under Y' brace or by other means. 2) Your attention is drawn to sections 15(1) and 16(1) of the Occupational Health and Safety Act 1983." 60 The Notices were served on Mr John Payne, the defendant's Human Resources Manager. 61 By letter of 21 November 2000 Mr Payne wrote to Mr Sibilant, Consumer and Business Services, referring to the two Improvement Notices. The letter continued: "It was expected that as a consequence of the Improvement Notices an inspection of the workbox would be conducted and minor maintenance carried out prior to any further use of this piece of equipment. The Club has considered this matter carefully and due to the age of the workbox we have decided to purchase a new workbox within the next few weeks from Instant Access of Newcastle. … The Club's old workbox will be traded in on the new lift and will not be used in the future by the Club." Tallescope no longer in use 62 Mr Mackie said that when he returned to the Club to do work after the accident the Tallescope was not in use. It was the case of the defendant that none of the defects associated with Model 512 played any part in causing the accident. The plaintiff relied on poor maintenance of Model 512 over the years and having to force the clamps down onto the anchor tube. It was a major complaint that neither the plaintiff nor his expert advisers had been able to inspect the Tallescope on which the accident had happened. Statutory and regulatory counts – evidence 63 In support of the statutory and regulatory counts evidence was led that there was a restaurant and bistro within the Club. Meals and sweets of all sorts and cakes were produced. There were refrigerators in the Club. There were glasses, alcohol, soft drinks and beer. The bottles and cans were chilled in the refrigerators. There was a generator which operated in the Club until the time of the accident. There was a bar in the Regency auditorium. Mr Mackie said that he regularly saw cakes and confectionery being made on the Club premises. He estimated that the Club bar staff at the time of the accident, including casuals, numbered about 30. Mr Mackie said there was no safety harness either on the ladder or in the workbox. There was no safety net. Operation of Tallescope 64 Mr Mackie said that he made sure that the piece of rope on the anchor bar did not interfere with the clamping. This refers to his usual practice. 65 Mr Mackie agreed that, if the characteristics of a tool of another changed, he would tell the owner as it may be that the tool was becoming unsafe to use. Mr Mackie accepted that with maintenance it is best carried out when it is appreciated that there may be a problem rather than allow that fault to continue. 66 With the Tallescope, Mr Mackie contended that it first locked in by virtue of gravity, then manual pressure had to be applied to engage the clamp of the locking mechanism. Thereafter force had to be applied. There was a change in the characteristic of the operation of the Tallescope. As to force, Mr Mackie did not have to use two hands to lock the clamp, but he did have to put some effort into locking the clamp in. He recollected that he last used the Tallescope some weeks before the accident. He could not remember specifically how much force he had to apply, but he had to press the clamp down firmly and that involved using one hand to exert force on the clamp to make sure it was seated properly. He made sure the clamp was clicked into place. He heard the clamp click into place. When the clamp is not properly engaged that is apparent from an inspection. 67 Mr Mackie relied on the ladder collapsing and the changing characteristic of the clamps needing the application of manual pressure. Such pressure was not needed in 1993 and the need for such pressure and its extent developed over a period of time. He thought that this might help to explain why the ladder collapsed. 68 The evidence established: (a) On each side of the ladder there is a flat steel hook and next to each hook is a clamp – they hook onto a horizontal anchor tube. (b) When the ladder comes into its vertical position the outside flat hooks ride up over the anchor tube and as they do so they raise the inner clamp. This enables the inner clamp also to ride up over the anchor tube. (c) As the outside flat hooks pass over the top of the anchor tube, the jaw of each hook falls down on to the anchor tube. (d) When the outside flat hooks did fall down the clamp engages the anchor tube. (e) The hooks have not always fallen down (seemingly, per Mr Mackie). (f) Over a matter of time Mr Mackie had to manually press down on the hook and the clamp to ensure that they had engaged fully and were seated on the anchor tube and when he did that they made a clicking sound so that you got a positive sound to indicate that they had engaged on the anchor tube. (This was Mr Mackie's stated experience.) (g) Before the clamp engaged on the anchor tube an operator could see that the clamp had not engaged because there was a gap between the clamp and the anchor tube. Extension of time application 69 Mr Mackie made an application to extend the time to bring these proceedings. In paragraph 18 of his affidavit of 15 May 2006 he said, "I accepted the official report from WorkCover and as they were not going to take any action against the Central Coast Leagues Club I thought at the time there was no point in my doing so". He agreed he had read the report and agreed with the factual findings and conclusions of the report. He would have said so if there were factual findings in the report with which he did not agree. I doubt if Mr Mackie had this capacity. He probably had the WorkCover report in time to commence the proceedings, but decided not to. He agreed that if, between the time of receiving the report and making his application for an extension of time, it had come to his notice that there was some matter in the report with which he disagreed he would have mentioned that in his affidavit. 70 Mr Mackie believed that to be correct, but having observed Mr Mackie give evidence over an extended period, I doubt if that is correct. He gave evidence with great difficulty. There were particular difficulties in assessing Mr Mackie's evidence. Initially, he gave the impression of understanding what he was being asked and saying. He became confused and it became necessary to evaluate what he truly remembered and understood. A conventional approach could not be adopted. He could not and would not have remembered all that was in the WorkCover report and still less was he able to isolate the matters in that report with which he disagreed, did not accept or had reservations about. His memory and analytical functions had been severely impaired. He became confused during cross-examination. This passage appears in his evidence at T 207 in cross-examination: "Q. When you swore this affidavit, did you still accept the report? A. Oh, I see what you mean. Well, I hadn't thought of it like that. What the case was was I had realised that my thinking and judgment were impaired, therefore my judgment at the time may have been incorrect, but I didn't actually put that into words in this affidavit. … Q. At the time that you went to see your solicitors, can you remember whether you still agreed with the contents of the WorkCover report? A. Probably not. I mean, I can't state what I was thinking at the time." 71 At some stage prior to swearing his affidavit the WorkCover report made sense to him and sounded valid. By the time he swore his affidavit Mr Mackie stated that he had a different perspective on that report and that his perception of it may have been wrong. 72 After Mr Mackie had confirmed that in May 2006 he disagreed with the WorkCover report, he was asked by me (T 209) if he remembered what part of the report he disagreed with and he replied: "Well, the only way I can express it is that I suppose I came to a realisation that the testing done on it by Test Safe may not have been extensive enough." Counsel reiterated: "You thought the testing wasn't extensive enough?" Mr Mackie replied: "That's the realisation I came to." Mr Mackie said that this was his only criticism of the report. 73 On further consideration, I do not think that Mr Mackie was able to isolate what parts of the WorkCover report he did not accept. Mr Mackie accepted that in his affidavit of 15 May 2006 he did not criticise the WorkCover report. It was Mr Fogg who raised the issue of the adequacy of the testing and that was after May 2006. Until the issue was raised by Mr Fogg this issue would probably not have occurred to Mr Mackie. 74 Mr Mackie agreed that when he made the application to the Court for an extension of time he understood he had to explain to the Court why he wanted to bring the application at that time and had not done so before. While Mr Mackie probably appreciated this in May 2006, he did not appreciate fully what that involved. 75 Mr Mackie said it did not occur to him to tell the Court when seeking an extension of time of his criticism of the report, or his non-agreement with parts of it, for example, that the testing was not extensive enough. He was guided by his solicitor. He did not recall whether he told his solicitor that he now disagreed with the WorkCover report. 76 In the second sentence of paragraph 27 of his 15 May 2006 affidavit Mr Mackie said "I viewed the WorkCover report as finding that there was no possibility to pursue legal proceedings". 77 As well as raising the question whether the testing was sufficiently extensive, Mr Mackie also queried whether errors could have been made in the testing. 78 In paragraph 43 of his affidavit of 15 May 2006 it is stated, "I was also advised the WorkCover report would not preclude a finding of negligence against the Central Coast Leagues Club and may support the claim". 79 Mr Mackie said that on the last occasion he recalled using the Tallescope prior to the accident the latching hooks securing the ladder to the anchor tube appeared to be working properly once they were firmly seated in place. He thought that he "needed to use an unnecessary use of force to secure the hooks". He had previously said he could not remember specifically how much force he had had to apply. Mr Mackie said that the hooks worked correctly once they were seated in place. By "the hooks" Mr Mackie assumed that the whole mechanism was being referred to, including the two outside hooks and the two clamps. 80 Mr Mackie disagreed with this statement of Mr Ng in the TestSafe Australia report, "the latching hooks securing that ladder to the anchor tube appeared to be working properly with the inner ones clicking into place with the application of light pressure". Mr Mackie disagreed because he was of the view that force was required to engage the latching hooks (T 229). That is his present view. He understood that if force was needed this would assist his case. He did not mention in his affidavit his disagreement with the quoted statement. He did not have the analytical capacity to do so. 81 Mr Mackie said that his disagreement with the statement about the latching hooks occurred some time after he first read the WorkCover report. Initially he had agreed with the proposition that the inner clamps clicked into place with the application of light pressure. He explained that he changed his agreement when (a) his thinking cleared up and (b) his memory cleared up. I doubt whether this explanation is correct. He added, "I was remembering previous incidents, and also the fact that because someone has an experience with something it doesn't mean that was my experience of it". 82 Mr Mackie said that his disagreement with the WorkCover report in respect of the operation of the hooks had arisen by the time of his application for an extension of time. I do not think his disagreement with the WorkCover report in respect of the operation of the hooks had arisen by the time of the plaintiff's application for an extension of time. Indeed, I think that the plaintiff probably lacked the capacity to assess and evaluate all that was written in the WorkCover report. Plaintiff and Mr Fogg and plaintiff's credit 83 Mr Mackie was present in October 2006 when Mr Fogg, a consulting engineer retained on behalf of the plaintiff, examined a Tallescope at Erina, albeit a different model which was larger and heavier than the 512. The model inspected had cross bracing, whereas the 512 did not. 84 Mr Mackie could not recall whether he told Mr Fogg about the latching hooks on the Tallescope at the Club becoming stiffer to operate over time. Mr Mackie agreed that would be an important matter to tell an expert retained on his behalf to support his case. That is his present belief. I doubt if he realised this in October 2006. Mr Mackie rejected the suggestion that he did not tell Mr Fogg that the operation of the latching hooks was becoming stiffer because at that stage that was not his opinion. That fact was not mentioned in his affidavit of 15 May 2006. 85 Mr Mackie agreed that he read Mr Fogg's first report. It does not refer to the latching hooks becoming stiffer or requiring the application of increased force. Mr Mackie did not recognise this as an omission. 86 The defendant was strongly critical of the plaintiff for: a) not telling the Court on the leave application of his disagreement with the WorkCover report, especially when he had originally accepted the WorkCover report; b) enlarging his complaints about the WorkCover report from his complaint of insufficient testing of the Tallescope; c) not telling the Court that when he operated the Tallescope over the years the clamps became stiffer and needed the application of undue force and his disagreement with the related statement that the inner clamps or hooks clicked into place with the application of light pressure; and d) not telling Mr Fogg of the clamps requiring undue force. 87 My assessment of Mr Mackie was that he would not have been able to hold in his mind the whole of the substance of the WorkCover Report or its salient points. It comprised a detailed text, contained technical data and was supported by some ten pages of photographic material. Nor do I think he was sufficiently discriminating to isolate the points in the report with which he disagreed. That has come later after discussion with others. He left the preparation of his affidavit of 15 May 2006 to his solicitor and relied on his judgment as to what should be included. Mr Mackie did not feel it was his place to seek to influence, change or add to parts of Mr Fogg's report of 2007, despite its terms. I do not think that they registered with him. 88 In my opinion the defendant made insufficient allowance for the plaintiff's medical condition. His memory, his understanding and his powers of concentration were adversely affected by the accident but this was not realised until some years after the accident when he saw Dr Crimmins, a neurologist. Nor was it fully realised in 2006 by the plaintiff. I thought that a clear distinction had to be drawn between the capacity of Mr Mackie before the accident and after the accident. 89 A neuropsychological assessment by Mr S Wigley of Gosford Hospital in 2005 revealed that Mr Mackie's ability to concentrate was low average. Mr Wigley wrote that Mr Mackie appeared to lack some insight into the extent of his poor memory and that his only real impairments were in the areas of learning and memory and were characterised by slowed speed of encoding, both pro and retroactive interference and inability to discriminate out phonetically and semantically related information. Mr Wigley thought that Mr Mackie suffered from "some residual, but now very mild, further cognitive impairment sustained in his fall from the ladder". Mr Wigley also referred to "a general deterioration of Mr Mackie's cognitive ability". Poor memory, lack of concentration and impairment of cognitive ability on the part of Mr Mackie were noted by me as Mr Mackie gave his evidence. It took some time for the full effect of these disabilities to emerge. 90 The sustained attack by the defendant on the credibility of the plaintiff, although conducted with propriety, failed in my opinion. The plaintiff struck me as a decent but much damaged person who has tried his best to tell the truth, but not all of his evidence was accurate and reliable. He relied heavily on practices he adopted prior to 7 September 2000. 91 In Mr Fogg's report, he writes: "I understand that Mr Mackie set up the scaffold/ workbox structure as per the written procedures he had previously developed for the Club and in accordance with the safety signage on the scaffold/ workbox and then climbed the structure. I am advised that Mr Mackie has difficulty remembering any activity following this point due to injuries arising from the incident." 92 Mr Mackie could not recall whether he told Mr Fogg that he (Mackie) had set up the scaffolding workbox as per the written instructions he had previously developed or someone else did. Mr Mackie added: "I initially thought that I had wheeled out the scaffolding box myself and it wasn't until … years later that I revisited Tony Russo's eyewitness account where it says I wheeled it out in the vertical position." Mr Mackie explained that at the time he spoke to Mr Fogg he thought that at the time of the incident he had wheeled out the ladder in the horizontal position. That was his normal practice. 93 Mr Mackie accepted that Mr Fogg's report does not mention the difficulty Mr Mackie experienced in pushing the latches into position. In retrospect Mr Mackie regarded that as an omission. Mr Mackie could not think of any reason why he did not tell his solicitors about the matters he now raises. The defendant contended that the omission was of some importance and that you would expect such a matter to be mentioned in Mr Fogg's report. The explanation for the omission is to be found in Mr Mackie's damaged condition. 94 On p 7 of Mr Fogg's report it is written: "Mr Mackie stated that he believed the main locking mechanism on the unit as inspected was similar to the unit that he had used at the time of the accident." Mr Mackie did not recall specifically telling that to Mr Fogg. Mr Mackie only vaguely recalled inspecting the locking mechanism on the Tallescope that Mr Fogg examined at Erina. Mr Mackie's memory was such that he could not now say that the locking mechanism on the Tallescope examined by Mr Fogg at Erina was similar to the locking mechanism on the Tallescope at the Club without seeing it (the locking mechanism on the Tallescope examined by Mr Fogg). When it was put to Mr Mackie that he could not say whether the locking mechanism on the Tallescope that Mr Fogg examined was similar to the locking mechanism on the Tallescope at the Club, Mr Mackie replied, "Obviously I did because that's in the report at the time". 95 At p 7 of the report Mr Fogg has recorded: "Mr Mackie stated that he believed that the main locking mechanism on the unit as inspected [Tallescope Model 50518] was similar to the unit that he had used at the time of his accident. This locking mechanism is depicted in Figure 4. … Mr Mackie also stated that the instructions for use of the Tallescope unit are very similar, if not the same to (sic) that of the unit that he was using at the time of his accident." The locking mechanism shown in Figure 4 of Tallescope Model 518 (p 8 of Mr Fogg's report) does appear to be very similar, if not the same, as that on the Tallescope used by Mr Mackie at the Club. While I accepted that Mr Mackie's present memory was such that he could not now say that the locking mechanism on the Tallescope examined by Mr Fogg was similar to the locking mechanism on the Tallescope at the club, that issue was dealt with extensively on the inspection of Tallescope Model 518 on 15 October 2006. Figure 4 on p 8 of Mr Fogg's report as to Model 518 shows an outside metal hook and the clamp straddling the anchor bar and both locked onto the bar. 96 At pp 8 – 9 of his report of 22 May 2007, Mr Fogg wrote: "I spent some time with Mr Mackie at this inspection [15 October 2006] discussing his system of work in the use of this unit [Model 512]. Mr Mackie stated that he would roll (push) the unit to the required location and then fold out the outriggers and lock them into position prior to locking the wheel castors. I am advised that Mr Mackie would then rotate this structure to a vertical position and ensure that the main locking mechanism was in place and secure. Mr Mackie stated that this was required because of the 'top heavy' nature of the scaffold/ workbox. I am advised that he would then 'haul' up the ladder to the required height and again confirm that the ladder height locking mechanism was in place and secure. Mr Mackie stated that he would then climb the structure and then position himself in the workbox and attend to the various lighting and sound structures that required adjustment or relocation. I am also advised that Mr Mackie would also lean to the side of the workbox to attend to those items that could be reached from the position of the basket." 97 While Mr Mackie could not recall the details of all that was said and done on 15 October 2006 when Tallescope Model 518 was inspected, Mr Fogg has recorded the essence of what occurred on that day when he discussed the system of work with Mr Mackie who accepted and adopted Mr Fogg's account. I do not think that in 2010 the plaintiff's injuries permitted him to give a more detailed account of what happened on 7 September 2000 and 15 October 2006. Mr Mackie needed to view Tallescope Model 518 to answer the comparison questions put by counsel for the defendant. On 15 October 2006 Mr Mackie had the advantage of viewing Tallescope Model 518. 98 Mr Mackie agreed that if the operation of the locking mechanism of the Tallescope at the Club was something that he ought to have discussed with Mr Fogg and that if the operating mechanism of that Tallescope was becoming stiff it would appear that he would have told Mr Fogg at the time that the Tallescope Model 518 was being examined. I would substitute the word "should" for "would". I do not agree that Mr Mackie would have realised in October 2006 that he should have told Mr Fogg. That is Mr Mackie's present realisation. Storing and movement of Tallescope 99 Mr Mackie had never known the Tallescope to be left at the back of the stage in a vertical position. Other than when he moved the Tallescope along the light bar, Mr Mackie could not recall a time when he wheeled the Tallescope to its place of work in the vertical position. Mr Mackie explained that he moved the Tallescope in the horizontal position because, first, that was the way it was stored, secondly, because of the difficulties its height caused, for example, in doorways, and thirdly, it would be unstable to move it in the vertical position for any great distance. He agreed with the statement in Mr Fogg's report that, after rotating the ladder to the vertical position, he ensured that the main locking mechanism was in place as this was required because of the top-heavy nature of the scaffold/ workbox. This was Mr Mackie's usual practice. It would be about 10 – 12 paces from the back of the stage to the light bar. Mr Mackie did not have a recollection of moving the Tallescope in a vertical position more than a couple of metres. Mr Mackie estimated that he would have moved the Tallescope from the back of the stage to underneath the light bar on dozens of occasions. Plaintiff's use of Tallescope 100 When Mr Mackie began his employment at the Club the Tallescope Model 512 from which he fell was there. He was shown how to operate the Tallescope and put it in the vertical position, how to extend the ladder and how to operate the outriggers. He said that he was not told specifically that the latches that held the ladder in the vertical position must be securely locked or fastened before climbing the ladder. At that time (commencing employment), the latches locked in automatically by gravity (T 47 – 48). Mr Mackie said he was not shown how the latches worked and that he did not operate the latches when he was being shown how the Tallescope operated. Mr Mackie agreed that when he put the ladder back from the vertical to the horizontal position he had to disengage the latches. He was not shown how to disengage the latches. He agreed that he must have disengaged the latches when he first operated the ladder on his own. It became apparent to him how the latches worked. Plaintiff's evidence 101 Mr Mackie said that if the hook (or hooks) was (were) not engaged he would press down on the clamps and hear a click as the clamps engaged. 102 Mr Mackie agreed that there came a time when the clamps had to be manually engaged and that when they needed to be manually engaged the clamp(s) demonstrated a gap as shown in Exhibit T. (T 326) 103 Mr Mackie was asked to concentrate on the year before the accident. He was asked by me at T 327: "In the year before the accident, did you have to push down on the hook or did it always automatically engage?" Counsel for the defendant confirmed that this was the question. Mr Mackie replied: "I can't recall. Is it pushing down on both of them together?" (T 328) This was followed by this question from counsel: "Q. Yes? A. So, I could visually see that the clamp part was not engaged." (T 328) I asked: "Q. Does that mean that you couldn't tell whether the hook was engaged or not? A. Well, yes, I suppose it does, yes." Counsel for the defendant asked the following questions and received these answers (T 328): "Q. … you never saw the hook once you'd put the ladder in its vertical position, you never saw the hook not engaged, did you? A. Not engaged? Q. Yes? A. Yes, that's right. Q. What caught your attention was there was a gap between the clamp and the anchor tube? A. Yes. Q. And it's that gap that caused you to use manual pressure to close the gap? A. Yes. Q. So you have never seen the hook in a position where it's only partially engaged? A. No. Q. No; so, as far as you're concerned, on your evidence the locking part of this mechanism always worked on gravity? A. I suppose so." 104 I do not think that Mr Mackie knew the answer to the last question. He was making an assumption. 105 Mr Mackie could not recall whether the rope used to haul the ladder up and down was attached to the anchor tube (T 328). He did not attach the rope to the anchor tube, but at some stage it had been placed there. Mr Mackie said that the clamps on each side of the ladder operated independently of each other (T 329). 106 Mr Mackie was referred to the yellow sticker attached to the Tallescope and agreed that he read it before preparing the document "Standard Operating Procedure" and that item 5 required the operator to lock the safety hooks at the bottom and that was referring to the latches that held up the ladder in the vertical position. That had to be done before climbing. 107 Mr Mackie agreed that it would not be necessary to lock the safety hooks manually at the bottom if reliance could be placed on gravity to do that task. It was Mr Mackie's complaint that the safety hooks used to lock with gravity. He understood that if the safety hooks did not lock by gravity he had to check them before climbing whether he found the ladder in its vertical position or he had placed the ladder in its vertical position (T 333). 108 Mr Mackie had read the placard on the Tallescope at various times and under the heading "BEFORE CLIMBING" it stated "LOCK LADDER HOOKS". He understood that as being an instruction to ensure that the hooks that latched the ladder in the vertical position locked before you climbed the ladder. Mr Mackie agreed that the outer flat hooks next to the clamps cannot be locked (T 334) as the latter can be. The inner clamps are hook shaped and have a locking mechanism. Mr Mackie said that when the placard referred to "LOCK LADDER HOOKS" it would only refer to "clamps". It was an instruction that, before climbing, he should ensure that each clamp has been locked into place that therefore there would be no gap between the clamp and the anchor tube (T 334 – 335). 109 Mr Mackie remembered seeing the red coloured label on the Tallescope and agreed that it cautions the operator to lock the safety hooks before climbing. He understood that the red-coloured label required him to ensure that the clamps were locked before climbing (T 335). Mr Mackie agreed that when climbing the ladder the operator was climbing to get into the workbox on the ladder. He realised that when the operator was in the workbox that he was maintained in that vertical position by the safety latches and that if they do not properly secure the ladder that puts the operator in a position of peril. It was common sense to ensure that those safety hooks (latches) were properly engaged prior to ascending the ladder (T 336). 110 In item 5 under the heading of Operation of Scaffold Ladder of the standard Operating Procedure which he prepared (Exhibit P) he wrote: "ensure base of ladder is locked into position on each side". He was referring there to the safety latches that keep the ladder in the vertical position. He was under no doubt that before climbing up the ladder he should ensure that the safety latches were locked into position. He said he always followed this standard operating procedure as described in Exhibit P. 111 Mr Mackie said that he always ensured that he locked the castor brakes on the individual wheels at the bottom of the Tallescope before he climbed the ladder. 112 In paragraph 4.5 of his report Mr Ng refers to photographs taken of the workbox assembly at the site of the accident shortly after it occurred as shown to him (Ng) by Inspector Sibilant, indicating that the ladder was fully retracted and in a horizontal orientation, the outriggers were not used and at least two of the three functional castor brakes were engaged. 113 Mr Mackie was shown Exhibit AK, said to be a photograph taken by an employee of the defendant after the accident. That employee was not called. On that photograph only one outrigger is shown as having been extended. Mr Mackie agreed that it would have been possible to extend more than just the one outrigger with the Tallescope in the position shown on the stage. He did not agree that he could have failed to extend and lock all the available outriggers in position before climbing the ladder. Mr Mackie agreed that the photograph showed the other outrigger in a non-extended position. There were two outriggers on the Tallescope. 114 Mr Mackie agreed that when he operated the outriggers he swung them out to approximately 90 degrees from the Tallescope and locked them into position. By pushing on the outrigger it would move by rotating in towards the Tallescope. 115 If he had ascended the ladder with the outrigger deployed as shown in the photographs comprising Exhibit AK that would have been a failure to follow the placarded instructions on the Tallescope, the standard operating procedure and common sense. 116 On the assumptions that Mr Mackie could not remember what happened on the day of the accident after he located the Tallescope, that he followed his normal practice, that he found the Tallescope in the horizontal position at the back of the stage and first moved the Tallescope into the vicinity of his place of work, i.e. the lighting bar, Mr Mackie would probably have moved the Tallescope into a position less than a metre away from his final place of work. Then he would have swung the ladder into the upright position and ensured the hooks would lock in the upright position if he followed his usual practice. He insisted that he attended to the securing of the hooks and clamps immediately he hauled up the ladder into the vertical position. Then he would have to adjust the workbox to the right height by pulling on the rope at hand height. The rope would then go down in front of him, the very end of the rope being attached to the anchor tube. The rope did not drop on the floor as it was permanently attached to the anchor bar. When he got the workbox to the appropriate height he would, if he needed to, make the final adjustments to the position of the Tallescope. He would then deploy the outrigger or outriggers. Changes in characteristics of Tallescope 117 I have referred to this matter earlier under the heading "Operation of Tallescope". Mr Mackie was employed in the maintenance department of the Club. One of the duties of the department was to ensure the equipment of the Club was in and operated in a proper operational state. He did not accept that if he was having to use unreasonable force to engage one of the clamps that would put him on notice that it required maintenance. He agreed that if unreasonable force was required to engage the clamp that demonstrated an obvious change in the characteristic of the Tallescope. He did not agree that the operator was put on notice that the change in the characteristic of the machinery of having to use unreasonable force could be indicative of the machine requiring maintenance. He regarded the Tallescope as serviceable – it worked (T 343). He and other people used it. As the Tallescope was serviceable it did not occur to anybody engaged in the Club's maintenance department that the Tallescope required maintenance because it required the application of unreasonable force. 118 Mr Mackie pointed out that he did not say that the clamp was becoming stiffer to operate over time. He maintained that the clamp did not click down and did not fall onto the bar evenly. The clamp has a moving part, namely the opposing latch, which operates rather like an opposing thumb on a hand. When you push the clamp onto the anchor bar the thumb (or latch) has to retract and then spring out again. He did not carry out any investigation as to what was causing the opposing thumb part of the clamp to become more difficult. He did not tell the owner of the Tallescope of the change in characteristic of the clamp. It did not occur to him that the changing characteristic might effect the operation of the latching hooks. 119 Mr Mackie agreed that he was quite happy to continue to risk his life "by using the device demonstrating that characteristic", that is, a change from not having had to use any force at all to being required to use excessive force. At the time when the plaintiff had to use excessive force to engage the latch (clamp), he did not think in terms of his life depending upon it. That is something which he subsequently realised. Lack of complaint 120 Mr Mackie denied the proposition that he did not make any complaint to the defendant because the locks (clamps) did not require excessive force to be engaged (T 351). He also denied that, if the locks required excessive force to be engaged, he would have told the defendant and investigated the problem, as an employee of the maintenance department. This passage appears in his cross-examination (T 351): "Q. And when you were an employee of the maintenance department you would have attempted to correct the characteristic? A. No. Q. So as an employee of the maintenance department you were quite prepared to let the locks become stiffer and take no action? A. Yeah, as I said it was serviceable, once those were locked in place it was safe, as far as I was concerned." Independent contractor 121 Mr Mackie agreed that the characteristic of the latches becoming stiffer was one that displayed itself to him when he became an independent contractor (T 351). That did not alert him that the equipment might be becoming unsafe. 122 When Mr Mackie resigned as an employee the Club engaged him on a weekly amount to maintain sound and lighting systems in the various rooms within the Club. He volunteered that the ladder was not his responsibility. He used the ladder to set up the lighting equipment. 123 During the period after he had resigned from the employment of the Club and was engaged by the Club as an independent contractor, Mr Mackie was responsible for his own safety. He used the Tallescope and considered it to be safe (T 354). When he resigned from the Club he still undertook work which involved setting up and operating sound and lighting equipment for various shows at the Club. 124 Between resigning as an employee of the Club and 7 September 2000 Mr Mackie used the Tallescope dozens of times. 125 After his accident Mr Mackie was still offered the event work at the Club. He had to employ someone else to do the work at heights. He would not use an elevated work platform. He did not want to climb ladders again to do his work. An elevated platform operates in quite a different manner from the Tallescope and is safer. If you are trying to run a business installing or adjusting audiovisual equipment the failure or reluctance to mount a ladder is rather inhibiting. He could no longer operate as a one-man audiovisual business. After the plaintiff ceased being an employee of the Club, it continued to be both his main source or work and income. He did hire audio-visual equipment to others at other venues. In 2003 he shut down Mackie Audio Visual and set up CCAV. On setting up CCAV he did no work for the Club. He did not employ anyone in his business prior to the accident. In about two instances he engaged a casual employee after the accident. Re-examination 126 In re-examination Mr Mackie said that his role in the maintenance department was to make sure the audio and lighting systems and the audiovisual equipment was maintained to working standard. 127 Mr Mackie said that the clamping devices sat above the bar – they did not sit right down on it. 128 Mr Mackie thought that the Tallescope would probably have been moved or used or both by others between the 6th and 7th September functions. Mr Russo 129 Mr Anthony Russo, a sound engineer, was in September 2000 employed by Technical Audio Group Pty Ltd (TAG). At that time that company was providing services to the Club via TAG's contractor. TAG was installing a new sound system within the auditorium. That involved working on the stage of the auditorium. He had been working at the Club on previous days. He recalled being at the Club on 7 September 2000. At some stage during the afternoon he was on the stage of the auditorium. He was familiar with the equipment known as a Tallescope. He had used a Tallescope himself on some occasions. He described it "as a movable ladder for accessing high heights …". He said (T 95): "I had noticed that it, as I was working at the forward thrust of the stage that the person has wheeled the ladder out to that, my position within three metres of where I was working." He added: "I seem to recall it in its vertical state." 130 As to the setting up of the Tallescope nothing in particular stood out. It was in its working vertical position. The person wheeling out the Tallescope seemed to get to where he wanted to gain access to the lighting equipment. 131 Mr Russo, referring to that person, said (T 96): "Just from the corner of my eye I saw that he began ascending the ladder. … The basket pivoted - the extension arm of the ladder pivoted down to 90 degrees." His evidence continued: "Q. And what did you observe about the person that you had observed to be ascending the ladder? A. The next I noticed that he had fallen head first on to the ground from approximately the working height which might have been three metres. … Q. … about how far away from the basket in terms of its alignment with the stage? A. Well, within two metres. Q. When this occurred did you go to him to render assistance to him? A. Yes, I did. Q. And what did you notice about him? A. I noticed that he was unconscious lying on his side. He had blood coming from his mouth." (T 96) 132 He estimated that it was about three seconds from the time he saw the person ascending the ladder until things went awry. Mr Russo said that he did not recall exactly where the Tallescope was on the day of the accident but on previous occasions it had been stored at the back of the stage. Mr Russo said that when he observed the Tallescope on previous days it was in the upright or working position. When he saw it the Tallescope was at the rear of the stage. 133 There was a major challenge to Mr Russo's evidence with the Club placing much reliance on a copy statement bearing date 14 December 2000 and purporting to be signed by Mr Russo and witnessed by Matthew Robert Symonds. 134 Mr Russo was interviewed about the accident by a man who came to Mr Russo's office after making an appointment. The copy statement was produced by the defendant during cross-examination. Mr Russo's recollection of the circumstances in which he made the statement was poor. The man who interviewed Mr Russo appeared to take notes of what Mr Russo was saying. Mr Russo could not recall if the man who had interviewed him came to see him again. The form of the statement suggests that the man was probably present when Mr Russo signed the statement. Mr Symonds was not called and thus there was no opportunity to explore the circumstances under which the original statement was made. Mr Russo thought he received back his statement typed out, either by mail or fax. Mr Russo did not recall whether he signed the statement and sent it back or faxed it back. The form of the statement suggests that Mr Russo may be incorrect and that probably Mr Symonds returned to Mr Russo with the statement and that Mr Russo probably signed it in Mr Symond's presence. 135 In the statement Mr Russo said: "I saw David wheel a tallerscope (sic) ladder into position, however I did not see him set it up. He got the ladder from the club. No one offered to help him set it up. … I did not see David climb the ladder. As I was working on the pull out stage I heard the sound (of) the aluminium frame of the ladder striking itself. I looked around and saw that the tallerscope (sic) had pivoted 90 degrees to its storage position and that David was falling out. I saw him fall through the air. He landed on the stage face up, hitting his head and shoulder first." Mr Russo described the assistance he and others rendered. He continued: "We cleaned up the blood on the stage area and left the tallerscope (sic) in the position that it had collapsed in until club officials arrived. A club employee took some photos of the tallerscope (sic). I noticed that the outriggers had not been extended." The next sentence was struck out and the striking out initialled. It read: "It appeared that the safety clips had not been engaged but they may have failed while he was climbing the ladder." There was substituted: "I do not know if the safety clips were engaged". This substitution was initialled. The statement continued: "I did not notice whether or not the safety clips were serviceable. The wheels also have brakes. I cannot recall if he had the brakes engaged. … If I was using one [a Tallescope] I would definitely engage the safety clips, however I may not extend the outriggers. It would depend on what height I was working." 136 From the form of the statement it appears that Mr Russo read it through, that he made some alterations, which he initialled, and signed it in Mr Symond's presence. 137 Mr Russo said in cross-examination that out of the corner of his eye "I have sensed him [Mackie] climbing up the ladder". Mr Russo gave this evidence (T 102) : "Q. Mr Russo, did you see the plaintiff climb up the ladder? A. Not conclusively but I do feel he was climbing up the ladder." Mr Russo was asked if he recalled seeing the plaintiff climbing up the ladder. I interposed: "Q. There are two things to think of. First of all the lower rungs and secondly going right up to the top. A. Okay. Then I say conclusively no then." The transcript records that counsel for the defendant continued: "Q. … you have no firm recollection - withdrawn. You have no recollection of the plaintiff putting a foot on any rung of this ladder, do you, Mr Russo? A. No I don't. I did not see him specifically climbing the ladder, putting a foot on the ladder but - - OBJECTION. UNCOMPLETED ANSWER" Mr Russo continued: "A. But I can certainly know from being in proximity what someone is doing behind me. … A. Well, I could certainly feel that he was working behind me and could hear him climbing up the ladder." 138 The transcript (T 103 – 104) records these questions and answers in cross-examination: "Q. You said in evidence 'I saw the plaintiff out of the corner of my eye climb up the ladder'. That is simply not true, isn't it? A. Well, depends if you think I directly saw him or what. Q. Mr Russo, please. Do you see, I will ask this question again, did you see the plaintiff climb up the ladder? A. Not directly. Q. Well, did you indirectly see him climb up the ladder? A. Possibly for a split second from the corner of my eye. Q. What do you mean by indirectly saw him. You either see something or you don't. Isn't that correct? A. Correct. Q. Did you see him climb up the ladder? A. Then I'll say yes then. Q. Yes you saw him climb up the ladder? A. Correct. Q. Is that your final answer on this? A. Correct. Q. Your recollection back in December 2000 would be better than it is now of the incident, wouldn't it? A. Correct." 139 Mr Russo was shown the statement dated 14 December 2000. He insisted that he could certainly know from being in proximity what someone is doing behind him. Mr Russo said he could feel that the plaintiff was working behind him and could hear him climbing the ladder. 140 Mr Russo agreed that as at December 2000 his recollection was that he did not see the plaintiff climb the ladder. He did not recall when between December 2000 and giving evidence that he recollected seeing the plaintiff climb the ladder out of the corner of his (Russo's) eye. Mr Russo did not agree that his recollection must have changed between September and December 2000. Mr Russo added that his recollection could have possibly been more specific on 14 December 2000. Mr Russo explained that he was not cross-examined on the day that statement was taken. Mr Russo said that he probably did not see the plaintiff 95% climb the ladder. He did not stand there and watch the plaintiff climb the ladder. 141 Mr Russo had doubts about the assertion in his statement dated 14 December 2000 that he noticed that the outriggers had not been extended. As he gave evidence he did not recall if the outriggers had been extended. He meant by his statement that the feet (of the outriggers) may not have been pushed in the down position. They could have been at 45 degrees. Mr Russo added that there are two ways of extending an outrigger(s), one at 45 degrees and one pushing the poles to the ground. Mr Russo said he was not thoroughly examined about the operation of the Tallescope and what he meant by extended. In hindsight if he had been asked fully what he meant by extended he probably would have elaborated. 142 Mr Russo's present recollection (May 2010) was that he did not know whether on the day of the accident the outriggers were extended a little bit, fully, or not at all. 143 Mr Russo said he should have elaborated on the points of seeing the plaintiff climb the ladder and the extension of the outriggers. 144 On being recalled for further cross-examination, Mr Russo confirmed that he had said that he saw Mr Mackie wheel the Tallescope into place in the vertical position just to the one spot. Mr Russo said (T 519) that he did not see Mr Mackie wheel the Tallescope from the back of the stage. 145 I asked Mr Russo (T 519): "How far did you observe Mr Mackie wheeling the Tallescope, from where to where?" Mr Russo replied: "From where to where? Probably within a distance, within a metre, when he came into view of being in the, pushing it into the spot." In answer to counsel for the defendant, Mr Russo said he saw Mr Mackie actually pushing the Tallescope, "possibly a metre or so". Mr Russo had a clear recollection of this because he saw it. This was to the spot where Mr Mackie was going to use the Tallescope. 146 I accepted most of the evidence of Mr Russo. Mr Russo did not watch Mr Mackie climb up the ladder. Mr Russo was very close to where Mr Mackie was working. He could sense what Mr Mackie was doing and heard Mr Mackie start to climb up the ladder. Probably Mr Russo saw out of the corner of his eye Mr Mackie working in very close proximity to the Tallescope. Mr Russo was conscious that the Tallescope and the ladder were in the vertical position. He had seen that and Mr Mackie move the Tallescope about one metre in the vertical position. Mr Russo equated seeing Mr Mackie move the Tallescope about a metre in a vertical position, working in close proximity to Mr Mackie, hearing him climb the ladder and catching out of the corner of his eye what Mr Mackie was doing with having seen Mr Mackie climb the ladder. That was a conclusion that he drew when he said that out of the corner of his eye he saw Mr Mackie climb the ladder (or part of it). Mr Russo's statement that he did not see Mr Mackie climb the ladder was correct. Mr Russo experienced great difficulty in separating what he sensed, heard and had seen and the conclusion he had drawn. In the interview this matter was not sufficiently explored and Mr Russo apparently did not spell out the matters on which his subsequent conclusion was based. He may not have been asked in view of the terms of his statement. I thought that undue attention was being given to relatively minor points of difference. 147 As to the extension of the outriggers, again this matter was not explored. Unless a person was familiar with the operation of a Tallescope it would not be apparent that any exploration was desirable. It was apparent to me, as Mr Russo gave his evidence, that he had doubts whether his statement as to noticing that the outriggers had not been extended was correct. From the photographs in Exhibit AK it appears that one of them may have been extended on what appears to be the thrust stage. That photograph had not been verified by evidence but was admitted into evidence without objection (T 220). The photographs were said to have been taken after the accident by an employee of the defendant. Inspector Sibilant of WorkCover 148 On 12 September 2000 Inspector Sibilant attended at the Club's premises at Gosford, undertook some preliminary investigations and took some photographs of parts of the Tallescope. The Tallescope was at the rear of the stage of the auditorium. In his report headed "Factual Inspection", the Inspector referred to the five markings on the Tallescope. The terms of the markings are referred to earlier. They contain instructions as to the use of the Tallescope. The Inspector has also described the Tallescope and how it operated. Much of the detail also appears in the description taken from the TestSafe Australia report. 149 Inspector Sibilant's description incorporating the measurements he made was as follows: "… 2. The cantilevered extending scaffold workbox was approximately 2.4 metres long X 460mm wide X 1.74 metres high. 3. The base consisted of two (2) parallel 50mm scaffold tubing on each side the first was approximately 300mm from the ground with the second tube approximately 460mm above the first tube. The tubing was approximately 2.4 metres in length. 4. Attached to the four corners of the base tubing were four adjustable legs each with a caster attached. Each caster had a braking arrangement operated by a lever. Two of the casters had tape and other material caught up around the axle. 5. At a point approximately 1.2 metes from the front/back were two parallel up-right bars. At approximately 1.4 metres in height from the ground was the swivel point for the ladder component. 6. From the swivel point there were two (2) pieces of tubing approximately 1220mm in length, which went on an angle from the central swivel point to the front and back corners of the base. 7. Attached to the top of the swivel point was a ladder arrangement manufactured for (from?) 50mm aluminium tubing. At the top end of the ladder arrangement was a workbox. The ladder was approximately 2.75 metres long X approximately 560mm wide. 8. Mounted on the centre vertical tubes on each side were two adjustable outrigger supports with telescoping rubber-soled foot sections. 9. When the ladder was locked into the upright position, the rail of the workbox was approximately 1700mm high the perimeter of the workbox was approximately 480mm X approximately 460mm. 10. The ladder of the workbox could be extended in the upright position." 150 On 14 September 2000 a Notice was served on the Club of the intention to dismantle, take and keep the Tallescope on Friday 15 September 2000. On 15 September 2000 the Tallescope was transported by truck under the supervision of the Inspector to the premises of TestSafe Australia in Londonderry. The Inspector was present when Mr Ng of TestSafe carried out tests on 22 September. 151 The photograph numbered 17 taken by Inspector Sibilant on 22 September 2000 depicts the damaged handrail at the top of the workbox. There appeared to be some silver taping, some black taping and some yellow taping. 152 Mr Sibilant said that, after the letter of 20 November 2000 of Mr John Payne of the Club was received advising of the purchase of a portable personal lift UL25 and that the old workbox would not be used in future by the Club, the requirement that the Club comply with the Improvement Notices, especially 215993, was not pursued. 153 Mr Sibilant had no recollection of Mr Ng carrying out any inspection and testing of the locking devices. 154 Mr Sibilant said that from what he recalled the Tallescope was in the same condition when he accompanied the unit back to Londonderry as when he first inspected the unit on 12 September 2000. Mr Sibilant had not come across one of these units before, nor had he come across an accident such as the one the subject of these proceedings. 155 Mr Sibilant could not say whether the damaged rail shown in photograph 17 had failed as he had not tested it. Mr Sibilant said that if there was an immediate threat to personal safety a prohibition notice would be issued followed by an improvement notice telling the recipient what to rectify. The Notice issued by Mr Sibilant was based on Mr Ng's report and his recommendation to Mr Sibilant. No cause of the incident having been found, there was not a full investigation. 156 a) Mr Sibilant regarded the presence of tape on a machine as indicating that there may be something wrong. After watching Mr Ng undertake the testing of the Tallescope he understood how the Tallescope operated and how it was extended into the vertical position. b) Mr Sibilant said that during his investigation he did not recall being provided by the Club with any statements by any witnesses or any person with any knowledge of what had happened. Mr C Mitchell 157 Mr Mitchell had used a Tallescope but the model was not clear (T 462 – 464). He agreed that the operator would check (and he checked), before climbing the ladder, that the latching hooks had locked into place, even if he heard the click. Mr Fogg – Engineer 158 The plaintiff relied on the evidence of Mr Robert Fogg, who held qualifications in mechanical engineering, occupational health and safety and ergonomics and possessed much experience in these areas and the related field of safety management. He prepared three reports and gave extensive evidence. 159 On 15 October 2006 he attended Erina High School with Mr Mackie to inspect Tallescope Model 50518. That had a rating of 250 lb and a range from 3.9 metres (13 feet) to 5.9 metres (19.5 feet). Mr Fogg believed that Topdeck (Model 50512) had a rating of 250 lbs and a range of 3.1 – 4.4 metres. 160 In his first report of 22 May 2007 Mr Fogg proceeded on these assumptions: (a) The Tallescope on which Mr Mackie was working on 7 September 2000 when it collapsed has since been scrapped by the defendant and is no longer available for inspection. (b) On 7 September 2000 Mr Mackie was working from the workbox and undertaking the installation of lighting and sound equipment for a show to be held at the Club. (c) The scaffold/workbox structure failed and/or malfunctioned. It rotated forwards and Mr Mackie fell from the workbox. (d) The Tallescope Model 50512 on which that accident happened was as depicted in Figure 2 of TestSafe Australia Report 20600. (e) During the period he was an employee of the Club Mr Mackie used the scaffold/workbox structure depicted in Figure 2 on a regular basis to assist in the installation of lighting and sound equipment for special events and for day to day lighting and sound repairs. (f) At the request of the Club Mr Mackie developed and wrote a standard operational procedure (SOP) for the use of the Club's Tallescope based on the signage located on the side of the unit as no other instructional material was made available to him. (The document was headed SWP – Standard Workplace Procedure.) (g) Mr Mackie wheeled the unit to where he was required to erect sound and lighting equipment. (h) Mr Mackie set up the scaffold/workbox as per the written procedure he had previously developed for the Club and in accordance with the safety signage on the scaffold/ workbox and climbed the structure. (i) Mr Mackie had difficulty remembering any activity following this point. [Comment: If "this point" refers to climbing the structure Mr Mackie does not recall this, although other evidence establishes that he must have done so. How far Mr Mackie climbed up the Tallescope is a matter of debate.] 161 Based on his past practice, Mr Mackie believed in the truth of the matters set out in sub-paragraphs (g), (h) and (i), but in his evidence before the Court the last thing he remembered was going to the back of the stage to look for the Tallescope. He did not remember wheeling it out or subsequent events. The facts in (g) could be inferred. Mr Fogg records: "Mr Mackie advised me that he followed the required setup procedures in accordance with the stated instructions on the unit before climbing up the ladder to the workbox." 162 This assumption or advice represented what Mr Mackie believed, but his memory did not extend so far. Mr Fogg proceeded on the basis that Mr Mackie received no instruction or information regarding the setting up and use of the scaffold/workbox structure. The only instructions Mr Mackie received were contained in the markings on the Tallescope. The latter statements are correct, save he was shown how the Tallescope operated. 163 Mr Fogg proceeded on the assumption that Model 50518 was of a similar style to the one Mr Mackie used at the time of the accident. There were major differences, namely: (a) Model 50518 was appreciably taller and heavier than Model 50512. (b) Model 50518 had cross bracing of consequence, whereas there was no cross bracing on Model 50512. (c) Model 50518 at Erina High School did not have any wheels attached to the base. 164 Mr Fogg noted the observed defects on the defendant's Tallescope and that TestSafe Australia considered that these defects would not have caused the malfunction. 165 Mr Fogg was critical of the testing carried out by TestSafe Australia. He wrote: "I note from the TestSafe Australia report that the load of the scaffold/workbox that was undertaken to simulate a person located in the workbox only simulates a person standing inside and central to the work box. I note from the TestSafe Australia report that no side loading of the scaffold/workbox was undertaken to simulate a person leaning to one side or the other in order to reach objects located off centre of the work location which in my opinion would be typical of its use. I am of the opinion that thorough testing of the scaffold/workbox would require testing (simulation) of several scenarios of typical working positions when a worker is working from the workbox to reach and install and/or adjust light and sound equipment. As such, I find the investigative reporting undertaken by TestSafe Australia deficient in this matter. In addition, the TestSafe report has raised the issue of the ladder haul rope being tied in a position that interferes with the latching hook, and then does not even consider any testing on the basis that the tied ladder haul rope may have been in a position that interfered with the latching hook at the time that Mr Mackie was located in the workbox. As such, I find again the investigative reporting deficient. At this point, TestSafe Australia states that it could not establish what caused the accident, provides a comment regarding pre-existing damage of the scaffold/workbox and leaves it at that. On receipt of the TestSafe report, NSW WorkCover issued an improvement notice (no 215933) as provided at Appendix A and also leaves it at that. Both NSW WorkCover and TestSafe Australia note the wear and tear of the scaffold/workbox and discount this as a reasonable contributing factor and have completely ignored the issue of the ladder haul rope being tied in a position that interferes with the latching hook. In this whole investigation process, the logic is that Mr Mackie could not have climbed up the ladder and into the workbox unless it was locked. The scaffold/workbox failed in the 'locked' position, yet neither NSW WorkCover nor TestSafe Australia was able to address or consider this in their investigation process." 166 Mr Fogg also wrote: "Based on my inspection of an equivalent style of workbox and the review of the operating instructions, I am of the opinion that to be able to climb up the ladder of the wheeled scaffold/workbox and into the workbox without the workbox/ladder section rotating requires that the locking mechanism be in place (locked). This is required as part of the setting up procedure of the scaffold/workbox as the unit is a ' top heavy ' unit and without it being secured into place, will rotate down." 167 Mr Fogg expressed this opinion: "Based on the inspection of the workbox at the Erina High School Hall (TALLESCOPE Model 50518) and the photographs provided of the workbox in the TestSafe report (TOPDECK (sic) Model 50512), I consider that the most likely cause of the accident to Mr Mackie is due to the unlatching of the vertical locking mechanism as Mr Mackie leant to one side of the workbox whilst attending to the adjustments and modification of the lighting and/or sound equipment located above and to one side of the workbox." 168 Mr Fogg reaches these conclusions. "I am of the opinion that there was a failure of NSW WorkCover (through TestSafe Australia) to adequately undertake sufficient testing of the scaffold/workbox to determine the cause for failure. Also, both NSW WorkCover and TestSafe Australia note the age and wear and tear of the scaffold/workbox and discount this as a reasonable contributing factor. In addition they have completely ignored the issue of the ladder haul rope being tied in a position that interferes with the latching hook as part of their testing scenarios. In this whole investigation process, the logic states that Mr Mackie could not have climbed up the ladder and into the workbox unless it was locked. The unit is top heavy and locking is required before access up the ladder is possible. The scaffold/workbox failed in the 'locked' position, yet neither NSW WorkCover nor TestSafe Australia was able to address or consider this in their investigation process." [Comment: whether the scaffold/workbox failed in the locked position was not established. Dr Heathcote did not agree that this probably happened. Mr Fogg seems to have relied either on the past practice and belief of the plaintiff that he secured the locking mechanisms before climbing or his weight and climbing action causing the locking mechanisms on Model 512 to snap into position as they did on the heavier Model 518, or both.] "Based on the inspection of a similar type of scaffold/workbox and the information made available to me, I am of the opinion that there are two (2) contributory, although inconclusive, factors that relate to Mr Mackie's accident. 1. There appears to be a failure by the Central Coast Leagues Club, as the controller of this scaffold/workbox, to ensure that there was an adequate inspection process in place to identify equipment damage of the scaffold/workbox to ensure that it complied with the intent of Australia/New Zealand Standard AS/NZS 4576 Guidelines for Scaffolding. This is evident from the need of WorkCover to issue an improvement notice. Had the Central Coast Leagues Club implemented an inspection and reporting process, the damage as noted in the TestSafe Australia report and the interference of the ladder haul rope on the scaffold/workbox would have been detectable and the unit put out of service until repairs made. 2. The workbox upon which Mr Mackie was working upon was effectively an unbraced structure (TOPDECK (sic) Model 50512), compared to the workbox inspected (TALLESCOPE Model 50518). The leaning towards one side of the unbraced workbox to install/modify sound and lighting equipment that is off centre to the workbox location, as advised by Mr Mackie, would create a parallelogram effect of the unbraced structure and allow the locking mechanism to ' lift out of place '; and under certain circumstances would then allow the lift unit to become unlatched and swing down. To confirm this would require the same style of scaffold/workbox to be tested under the work conditions as advised by Mr Mackie." 169 AS/NZS 4576: 1995 – Guidelines Scaffolding extends over 144 pages. It contains a lot of motherhood statements or statements of general principle. Much of it has no present relevance. It emphasises training and avoiding unnecessary risks to the health of workers, inspection, testing and maintenance, the inspection of self-locking anchorages and sundry other matters. I was referred to the definition of "scaffold" as a temporary structure for supporting access platforms or working platforms and "mobile scaffold" as an independent freestanding scaffold that is mounted on castors. 170 While the lack of regular maintenance and regular inspections is a matter for comment, the question is whether these failings contributed to the accident that caused the injuries to the plaintiff. 171 In his second report of 29 June 2009 Mr Fogg reports at length on his inspection of the larger Tallescope Model 50518 at the Seymour Centre Chippendale. It "was in good condition with no visible damage to bracing or connections and rolled easily when pushed". Mr Fogg wrote, "… the unit when erected from the horizontal storage position to the vertical position and ready for use locks into position with a firm and loud 'snap' of the dual locking system". He observed that when the dual locking system was not locked into position and "when the weight of a person is applied to the bottom rung of the ladder and the person commences to climb the ladder the weight and action of the person commencing to climb the ladder causes the dual locks to 'snap' (lock) into position". Mr Fogg commented that if "all items (of the Tallescope) were functioning correctly with no visible damage … Mr Mackie could not have climbed up the ladder and into the workbox unless it was locked into position. The unit is 'top heavy' and locking is required before access up the ladder is possible. In effect the design is such that the unit self locks as a person attempts to climb the unit." Mr Fogg repeated that Model 50512 is effectively an unbraced structure. 172 After emphasising that the Tallescope used by Mr Mackie was in a state of disrepair and was poorly maintained (bent and damaged parts, taped together sections, tape stuck in moving parts), Mr Fogg continued: "Further the photographs [referred to in the TestSafe Australia report on Model 512] show the dual locking mechanism that forms part of the scaffold/workbox with some remnants of duct tape on one of the very important moving parts. The only plausible explanation for the TALLESCOPE collapsing after Mr Mackie climbed into the scaffold/workbox is that the dual locking system did not fully or properly engage as it is designed to do, and will do when properly maintained. This could only occur as a result of the malfunction of the dual locking mechanism due to a build up of extraneous matter (tape) within the moving parts, or the interference caused by the position of the rope (as discussed in my earlier report) or a combination of both factors. Based on the inspection of two (2) similar types of scaffold/workboxes (cross braced versions) and the information made available to me, I am of the opinion that the use of a poorly maintained scaffold/workbox as described and depicted in the TestSafe Australia Report No 20600 (dated 29 th September 2000) together with the leaning towards one side of the unbraced workbox to install/modify sound and lighting equipment, that is off centre to the scaffold/workbox location, and as advised by Mr Mackie as to how he would work when required, would create a parallelogram effect of the unbraced poorly maintained structure. This has caused the dual locking mechanism to disengage, which led to the fall." 173 One of the weaknesses of Mr Fogg's reports is that his reports are based on inspections of Tallescope 518 which differed from Model 512 used by the Club and Mr Mackie. Mr Fogg seems to have assumed that Tallescope Model 512 worked on the same design principles as Model 518. The evidence of Dr Heathcote and the markings on the smaller Model 512 suggest that this is probably not so. 174 Mr Fogg prepared a third report dated 29 April 2010. He wrote, "[t]he locking mechanism operates as is generally described in the report as prepared by TestSafe (item 2.2, page 3) and report prepared by Dr Kevan Heathcote … (item 8.3 page 10)". He reiterated the defects earlier mentioned. He continued on p 2: "1(c) The type of mechanism should not normally require maintenance under normal operational conditions. The locking mechanism may malfunction or not lock correctly if items become stuck or jammed in the mechanism (such as tape) or if items sit under the mechanism (such as rope). 1(d) If the Tallescope was working efficiently and safely, the locking mechanism should have locked into place by gravity alone. This was demonstrated by the inspection undertaken at the Seymour Centre …" 175 Mr Fogg wrote that the Tallescope was used to work at heights and that it was well known that it is risky to do so using incorrect equipment or practices. A piece of equipment being used should be in good condition. I agree with these propositions. 176 Mr Fogg understood (paragraph 4(c) of his report) that the sandbag test undertaken by TestSafe was not carried out at the full height of Model 512 and that the pulling forces were only undertaken in line (90 degrees) to the erected Tallescope (see paragraph 3.1 of TestSafe report). Based on the differences between the braced model and the unbraced model tested, Mr Fogg thought that side pulling of the test rope/weight should have been undertaken because of Mr Mackie's statement that he would lean out of the workbox to reach light and sound items that were to the side of the Tallescope. 177 Mr Fogg made some limited comments on the report of 16 October 2007 of Dr Kevan Heathcote. 178 Dr Heathcote viewed the Tallescope Model 512 at the Denistone East Primary School. It appears to be similar to the model used by Mr Mackie. Mr Fogg wrote, "Based on my inspection of the Tallescope at the Seymour Centre, I agree with the comment [of Dr Heathcote] that 'had these rotational safety locks [on Model 512] been properly engaged then it would have been almost impossible for them to disengage …'" Dr Heathcote had added "whilst the platform was in normal usage". 179 Mr Fogg contrasted the conclusion of Dr Heathcote that the rotational locks (on the Tallescope operated by Mr Mackie) must not have been fully engaged with Mr Mackie's statement that, whilst he had no recollection of the events of the day of his injury, he believed that he would have correctly locked the ladder into position prior to use. Mr Mackie's belief may be correct, but there is no evidence to support it. If his belief was proven the result of these proceedings would be different. 180 Mr Fogg also relied on (a) observing that the unit in the Seymour Centre when erected from the horizontal storage position to the vertical position and ready for use locked into position with a firm and loud snap of the dual locking system; (b) observing that when the dual locking system is not locked into position and when the weight of a person is applied to the bottom rung of the ladder and that person commences to climb the ladder the weight and action of the person commencing to climb the ladder causes the dual locks to snap (lock) into position; (c) the history provided by Mr Mackie that when he started at the Club gravity would enable the ladder to lock (secure) into place and that there would be a loud snapping sound when the safety mechanism grabbed onto the rung and that over a period of time he noticed that, on swinging the ladder from the horizontal to the vertical position, the locking mechanisms did not grab the rung correctly in that the safety mechanism would only partly rest on the rung and he had to physically push down the locking mechanism as he could not rely on gravity to secure the ladder and eventually he had to physically lock in the mechanism every time he used the Tallescope; (d) the statements of Mr Mackie indicated that the Tallescope had suffered some form of damage or was out of alignment precluding an unobstructed movement of the locking mechanism; (e) the Tallescope scaffold/workbox described and depicted in the TestSafe Australia report and in the photographs was in a state of disrepair and poorly maintained. Bent and damaged parts normally indicate that some form of misalignment would be present; and (f) the age of the workbox and the Club's decision not to carry out seemingly minor repairs and maintenance but to purchase a new workbox. 181 Mr Fogg wrote: "Based on the information made available to me I am of the opinion that the use of a poorly maintained scaffold/workbox as described in TestSafe Australia's report was the cause of the plaintiff's accident." 182 I have not overlooked that the Tallescope was moved from the stage to the floor of the auditorium, and more importantly, from the auditorium down a flight of stairs (about 25) and outside the Club. There was plenty of opportunity for its alignment to be affected. It was also used by a number of people. 183 Before he prepared any of his reports Mr Fogg had access to the report of TestSafe Australia and the photographs referred to in that report, the NSW WorkCover Factual Inspection Sheet, Improvement Notice 215933 and AS/NZS 4576:1995 – especially Appendix H. 184 Mr Fogg pointed out that when the Tallescope was in the vertical position access was gained to the workbox by climbing up the left hand side of the ladder. Mr Fogg explained that, assuming Mr Mackie weighed about 77 kilograms and was standing in the workbox, the centre of gravity would appear, based on visual observation, to be to the right of the pivot. If the person was climbing the ladder that would change the centre of gravity more to the left hand side. 185 Mr Fogg said that as the person climbed the ladder his body would have a tendency to move from one side to the other and that would change the force from one side to the other (T 487). Mr Fogg said that if the locking mechanism was correctly secured the alteration of force does not become more excessive the further the person climbs. If the mechanism is not correctly secured, there is a greater tendency for the unit to sway as the person climbs up the ladder. Assuming the operator got to the workbox, if the operator leans out of the workbox about a metre to a metre and a half to one side and then to the other to change the focus of some lighting, that changes the centre of gravity (T 488 – 489) and alters the forces being applied to the clasping (T 489). Mr Fogg referred to AS/1450, 1990 section 9 – Machinery Plant and Equipment. He also referred to section 6 – Training and Supervision and section 8 - Working Environment. These were in the broadest terms. I admitted sections 6, 8 and 9. 186 Mr Fogg agreed with the Guidelines, describing them as very good and solid and very much industry practice. 187 When dealing with the outside metal hook and the clamp (clasp) on the inside, Mr Fogg said that both members hook onto the cross bar, both moved independently and both were equally important because each one is a backup (T 502). If one was correctly secured and one gave way it would be expected that the one which was correctly secured would remain securing the Tallescope. Mr Fogg said that both the outside hook and the inner clamp were spring loaded and that the springs in each mechanism create the latching effect (T 502). 188 Mr Fogg was asked to assume that when Mr Mackie first started with the Club the vertical member and its clasping devices (of the Tallescope) could clip into place automatically with gravity. If, as time went by, Mr Mackie found that it became necessary to apply some force with his hand to the clasping devices, and subsequently what was described as excessive force, that would indicate that the latching devices were not operating efficiently and safely (T 506). Further, the force that Mr Mackie was applying may interfere with the efficiency of the locking mechanisms. The spring mechanisms could be replaced if not working correctly. It would be sound practice not to engage in the forcing of moving parts with physical force. 189 In cross-examination Mr Fogg agreed that this was the first Tallescope he had ever seen. He did not contact the manufacturer of the Tallescope in order to see a Tallescope of the same model number as the one the subject of the accident. He appears to have relied on the plaintiff's solicitor to locate such a model and arrange for him to inspect it. 190 He understood that the ladder portion of the Tallescopes he had inspected was taller and that portion of the ladder had cross bracing. They were significant differences. He did not know if the height of the hinge (pivot) point was higher from the ground on the Tallescopes he inspected than the one used in the accident. In producing his opinion he had to review various turning moments on this hinge. The turning moment is the product of the distance from the pivot point and the force applied. The force applied was the force of gravity applied to the mass of the Tallescope. 191 Mr Fogg did not know whether the distance from the bottom of the ladder to the pivot points was longer or the same in the Tallescopes he examined as in the one the subject of this accident. At T509 this passage appears: "Q. So you don't know that any of the factors that effect the performance of the Tallescope that you looked at under gravity were the same as the ones the subject of this accident? A. Correct." 192 Mr Fogg did not undertake measurements of the mass of the ladder or the length of ladder. Based on a mathematical analysis he could not express an opinion as to the centre of gravity in respect of this Tallescope ladder. He was unable to operate the Tallescope at Erina. 193 The cross examiner challenged the applicability of the reference to AS/NZS 4576 on the ground that the Tallescope was not a scaffold. Mr Fogg said that it could be inferred that the characteristic of all scaffolding is that after it is used it is dismantled. Mr Fogg said that the Tallescope was folded down and that folding could be termed as a form of dismantling. The Tallescope was not taken apart into constituent parts whereas all other scaffolding was taken down into its constituent parts. Mr Fogg agreed that the characteristic of scaffolding that it is put up and taken down is fundamental to the need for guidelines in how scaffolding is dealt with. Mr Fogg agreed that any scaffolding erected over a particular height has to be erected by someone who is certified by WorkCover as competent in doing that task. Mr Fogg understood that the Tallescope used by Mr Mackie does not require the operator to be certified by WorkCover. 194 Mr Fogg regarded the workbox attached to Tallescope Model 512 as a working platform. When pressed whether AS/NZS 4576 applied to a Tallescope, Mr Fogg expressed the belief that, as the Tallescope has a portable work platform, it fell under that guideline in general terms. He said that that particular standard does not reference Tallescopes. He agreed that the Tallescope provides an elevated work platform on the end of a ladder. He thought that the Standard was a good guideline for use with that type of portable work structure (i.e. the Tallescope used at the Club). 195 Mr Fogg agreed that a Tallescope could be used as a building maintenance unit and that a building maintenance unit differed from a scaffold. A scaffold is constructed for a particular use and is then dismantled whereas a building maintenance unit is wheeled into place and used for maintaining a building. Mr Fogg was aware that AS/NZS 4576 specifically excludes building maintenance units (see the exclusion in paragraph 1.3). He was of aware of the general definition of scaffolding. He considered a Tallescope to be a temporary structure. It is not dismantled. Mr Fogg would not refer to a Tallescope as a mobile scaffold. If a mobile scaffold involves putting up the scaffold and dismantling it after use, a Tallescope could not be described as a mobile scaffold. 196 Typical mobile scaffolds can be erected and dismantled whereas a Tallescope, apart from elevating the ladder, does not have to be put up or dismantled. Erecting or dismantling a structure poses perhaps greater exposure to hazard for the worker. Mr Fogg agreed that the Club, by having a Tallescope rather than using tower framed scaffolding, avoids the hazard of having to construct a mobile scaffold every time the Club has to do work in the ceiling. 197 In my opinion the reliance placed by Mr Fogg on AS/NZS 4576 in his report of 22 May 2007 was misplaced. That standard did not apply to the Tallescope. Without explaining that, Mr Fogg sought to use some of the provisions of that standard as a guide. However, the criticisms of Mr Fogg that the Club did not properly maintain its Tallescope and keep it in good repair are correct. The Club had no adequate inspection regime to ensure that its Tallescope generally remained in a serviceable condition and was safe to use. 198 Mr Fogg agreed that he needed to modify his first report in that he (Fogg) was suggesting by one of his comments that Mr Ng had not carried out any testing "attempting to obstruct the operation of the latching hook with the rope". Mr Fogg misread Mr Ng's report. Mr Fogg did not believe that there was a sufficient amount of testing undertaken on the basis that there was an issue raised by TestSafe Australia that the rope may have interfered with the operation of the Tallescope. 199 Putting aside differences in expression, which is appropriate, Mr Fogg agreed that, to the extent that the metal hook enables the clamp to rise up over the anchor tube, they do not act independently of each other. The hook is a mechanism by which the clamp can be raised up over the anchor tube (T 523). Mr Fogg continued: "The triangular section latch commences to lift, and after it's started to lift it then lifts a second latch, and then as the ladder coupling comes underneath each, the both of them fall into place." Mr Fogg said, "My understanding, from memory, they're a spring loaded type arrangement" (T 524). This passage appears at T 524: "Q. You're not suggesting though, are you, Mr Fogg, that that clamp is in anyway designed to rely simply on its own weight to engage properly on the anchor tube? A. No. … Q. It may require manual assistance to engage on occasions? A. The unit that I tested did not require manual assistance. Q. I accept that. A. However, it may, yes. Q. One couldn't say it was designed not to require manual assistance, could one? A. I can't answer that without understanding the design parameters." 200 Mr Fogg had not seen any evidence from the WorkCover report, or the photographs taken, that the spring mechanism did not work in respect of the Tallescope to cause this accident. 201 At the interview held on 15 October 2006 Mr Mackie did not mention to Mr Fogg that he had to use excessive force to engage the clamp. Mr Fogg was first told of that by the plaintiff's solicitor earlier in 2010. Mr Fogg said that if an operator had to use excessive force to operate any machine that is a matter of importance when considering if the machine failed. 202 Mr Fogg agreed it was possible that, if the clamp was fully engaged on the anchor tube, there would be no gap between the anchor tube and the clamp. That had been his experience with the Tallescope he had checked at the Seymour Centre. In Mr Fogg's experience it was not possible to engage the clamp to any extent and then cause it to fail. 203 Mr Mackie did not attend with Mr Fogg at the Seymour Centre. Mr Fogg said that, on his testing at the Seymour Centre, when he pulled down on the bottom of the ladder the workbox went up on the other side and that when he got the ladder near the vertical position less force was required to keep it in the vertical position. Mr Fogg could not recall if at some stage no force was required to keep the ladder in the vertical position. He added: "You pull down and you push, and just a continual movement of it coming up and pushed it into a locked position with a clear audible snap. As part of that testing process I tended to recreate a scenario that if the locks did not lock properly, so I brought it down and it was in a meta stable position, however, when I started to climb the ladder, as I put my first foot on, the extra weight of my body created an additional fulcrum and pushed it into position." (T 528) Mr Fogg agreed that the addition of his weight to the ladder provided some turning moment around the fulcrum. 204 Mr Fogg gave this evidence (T 529): "Q. Okay. There comes a point, doesn't one, as when one is climbing up the ladder that your body may actually, so as you climb up the ladder towards the fulcrum, the turning moment produced by your body being on the ladder reduces? A. Yes, that's correct. Q. Right. And as you pass the fulcrum the turning moment might increase again or be directly opposite to that before you - directly opposite to the moment that you were exerting before you passed the fulcrum? A. That's a reasonable assumption. Q. So if one climbs the ladder, and it's a different model, it would be possible, wouldn't it, for you to step on the ladder and the turning moment you exert to be insufficient to engage any of the latches? A. Just go through that again please. Q. It would be possible to have a model of a ladder where you stepped on the ladder and the turning moment might not be sufficient to engage any of the latches? A. It's possible, yes. Q. Yes. And then as you took some steps up the ladder towards or past the pivot point, or the fulcrum, the turning moment you exert reduced, yes? A. Yes. Q. And the workbox would commence to descend towards the ground, is that possible? A. That's possible, yes. Q. And it would be a bit like, as the workbox descended towards the ground, its turning moment would increase, wouldn't it? A. Very quickly, yes." 205 As the workbox accelerated towards the ground the operator would be dislodged and thrown to the ground. This would have happened because the operator had failed to engage to any degree the latches at the bottom of the ladder (T 530). 206 When put to him broadly, Mr Fogg could not say categorically yes or no as to whether any of the incidents of lack of maintenance would have had any impact upon the possible cause of the accident. He did however agree that one castor brake not working would not have any causative effect. He did not know whether the damage to the guardrail of the workbox was significant, for example, whether it had created some misalignment of the unit or some other defect. 207 Mr Fogg regarded Mr Mackie's weight of 77 kilos as being mid-range. Mr Fogg thought that the designer would probably design the Tallescope for an operator weighing 55 to 90 kilos. While a heavier person would provide a stronger force to lock the ladder in place, a lighter person would still provide, if the design assumptions were correct, sufficient force to lock the ladder into place. 208 Mr Fogg thought that, if the spring mechanism was working properly and efficiently and had not engaged and an operator put his foot on the first rung of the ladder, he would expect that the clamp would latch into place and be secure. The maintenance of the spring loading mechanism in a proper working order would, in his opinion, be an important maintenance issue. Mr Ng – TestSafe Australia 209 In the report of TestSafe Australia (dated 29 September 2000 and 10 October 2000 on the coversheets) Mr Ng refers to the ladder at the longer top end with the workbox being heavier and its tendency to fall forward if the latches are undone. Mr Ng wrote that the latching hooks securing the ladder to the anchor tube appeared to be working properly with the inner ones clicking into place with the application of light pressure. He further wrote that when the ladder was lowered the latches did not engage onto a rung of the lower section. 210 As mentioned, in paragraph 4.1 of the report it was stated, "[t]he tests carried out at TestSafe Australia were unable to establish what caused the accident". In his oral evidence Mr Ng said that his opinion was "based on the scenario described to me by the inspector at the time of the accident when the latches suddenly released itself without any warning. I'm at this stage unable to determine what caused that sudden release." Mr Ng said that was the assumption he proceeded on when preparing the report. He added, "We had the impression that the latches released themselves under strain, so we determined to provide a scenario where it was subjected to the greatest strain, that is, we tilt them in that direction (indicated) which caused the retaining device to be in the greatest stress". Based on the history he was given, I do not question that Mr Ng was unable to establish what caused the accident. Dr Heathcote, in effect, queried the validity of that history. 211 Mr Ng said that they undertook investigations as to the efficacy of latches engaging. He continued (T 614): "We started to remove them in the sense one by one to see whether, how many of the latches required to hold it in place, a load on, in the platform in the work box. … if I can go back to my report, I think I described it in the … testing part. We actually started with two of the latches. If I could just describe the latches, the outside one was actually blade-shaped, the inside one a bit more substantial, a hook, has got a toggle, spring-loaded toggle which, in the open position the toggle would be in that position, and when it's pressed in to lock on, into the tube, the anchor tube, it just clicks in so that this, I think it's the left-hand side, yes, the left-hand side ones were prevented from engaging onto the tube by moving a loop of rope which is tied to the anchor tube, the rope being intended for raising or lowering the, extending the ladder, so that it prevented both latches from engaging and we had just one hook engaging on the right-hand side which would be the metal hook, we had really the worst case scenario if the spring-loaded catch was not properly engaging." 212 Mr Ng was taken to this part of his report (page 4, paragraph 3): "The latching hooks securing the ladder to the anchor tube appear to be working properly, with the inner ones clicking into place with the application of light pressure. The relative positions of the upper and lower sections of the extending ladder appear to allow the load of the upper section to be carried entirely by two aluminium angle sections when fully retracted (lowered). The latches did not engage onto a rung of the lower section, and continued loading on the aluminium angles have caused them to be bent upwards." 213 Mr Ng explained (T 615) that he was referring to the toggle catches which were on the inner latching hooks which were clicking "into the last (sic) with the action of slight pressure" by which he thought they would have used a "slight hand pressure to put it on, because they were located fairly low down in the ladder, and assuming normal operation the operator would have used his foot to press it in just as his bloke start climbing the ladder …". 214 Mr Ng said that they found that both toggles required light pressure to click, i.e. for the toggle to lock onto the tube with a clicking sound. They found no defect in the latching hook mechanism. It was assumed that the Tallescope had not been interfered with in any manner between 7th and 22nd September 2000 (accident and examination days). He did not notice anything to the contrary. 215 Reference was made to photograph A6 attached to Mr Ng's report. He pointed out the flat blade hook and the snap hook. The latter has two positions – it is spring loaded in the open position with the toggle visible and sitting as shown. The caption on photograph A6 reads: "Left side latching hooks, showing the flat steel hook behind the snap toggle. The end of the upper ladder is shown with its restraining catch engaged." Mr Ng explained (T 617): "… below the ladder this blade actually will then ride onto the tube and as approaches the tube it raises it, because the whole, both of them are sitting on a rest back and that step is being raised, that … will also raise the second latching hook, and as it arises or until the cutaway part is, which is … semicircular, slides into the tube and it drops in by gravity onto the tube and latches on and this second latching hook, because they're side by side will actually be, it drops in a, you will need apply manual pressure here for that spring-loaded toggle to snap, so when it snaps that will grip the tube …" Mr Ng said that Mr Sibilant told him that the hooks or latches had given way causing the workbox to fall down into its horizontal position. 216 Mr Ng accepted that he did not know what happened to the ladder between the time of the accident and the time of Mr Sibilant's visit to the Club. 217 Mr Ng thought that the clasp and toggle mechanism were the primary source of maintaining the ladder in the vertical position (T 634). He added that they had "done the test where we've defeated both these latches with the toggles and left only one of the flat bladed hooks to hold the ladder vertical. And we have not been able to dislodge it during the test." 218 Mr Ng explained (T 635): "… one of the steel hooks and a latching hook was held up by a loop of wire, remove it, … slid it along the tube where it would prevent the steel hook and a latching hook from contacting the tube. And on the other side we actually let the hook with the toggle, the latching hook, rest without pressing it down to engage. And the only remaining piece of the equipment which is engaging on the tube was a flat steel hook and that was on the opposite side." 219 Mr Ng said that they pulled on the back of the workbox (i.e. on the guard rail at the back), "similar to the force of somebody leaning against the guard railing, tip it forward so that gave it the worst case scenario so the latching hook was subjected to the greatest tensile strength" (T 635). The wire (rope) on which they pulled was attached to the back part of the workbox, i.e. to the safety railing at the back of the workbox. Photograph A2 of Exhibit 2 shows the ladder in its raised and unextended position. Photograph A12 of Exhibit 2 shows the attachment point for the rope during the test. Mr Ng marked on photograph A2 the attachment point for the rope and the direction in which the rope attached to the workbox, and thus the workbox and the ladder, were pulled. 220 Mr Ng said that when testing, the pulling down was in the direction that the ladder purportedly fell. The ladder/workbox was not pulled from side to side. The assumptions were that the plaintiff may have been in the workbox and may have been leaning in the direction in which the ladder fell (T 639). 221 Mr Ng agreed that the Tallescope exhibited a poor level of maintenance or a lack of maintenance (T 640 – 641). 222 Mr Ng thought that to operate the Tallescope in a safe manner the operator would need to be trained to obey the instructions posted on the various parts of the Tallescope. The operator should demonstrate that he understood the operating instructions and can use the Tallescope in accordance with the manufacturer's instructions. 223 The defendant complained that the plaintiff had not stated what he should have been told and was not told which would have prevented the accident. Mr Fogg and the plaintiff contended that the plaintiff should have been trained by a representative of the manufacturer or by somebody who had been trained by the manufacturer. 224 Mr Ng agreed that if the plaintiff's practice was to lean sideways when he got into the Tallescope the test that he (Ng) carried out or supervised would not replicate what the plaintiff did. Mr Ng thought that the spring-loaded toggles gripping into place on the tube in a vice-like manner was an important mechanism. It is one of the methods which keeps the ladder in its vertical plane. The plaintiff's counsel put to Mr Ng that if the clamp and toggle mechanism is more stable and the triangular outer hook is heavier then the outer hook ought to have locked into place if it was working safely and efficiently. This elicited the response (T 647): "We normally need a light pressure and that is the way it's designed. If it was a spring it may have been stronger than the actual weight of the short arm." Mr Ng was entitled to draw an inference from his inspection and the tests he witnessed as to how the locking mechanism was designed. He did not know what the design parameters of the locking mechanism were, but it was his view that with the type of hooks used (with toggles) pressure would need to be applied before the hooks (with toggles) would lock in and that "It won't fall into place with gravity alone". This was not his "experience with previous use of this type of clamps" (T 648). 225 Mr Ng was referred to the photograph Exhibit T. The clamp and toggle appear to be not resting properly on the anchor bar. This passage appears at T 648 – 9: "Q. … if the clamp and toggle was in its proper place then there ought to be no gap … and it ought to be sitting neatly around the bar on it? A. No. Let me explain that is position is when the toggle is in the unlocked position. When it's locked when pressure is applied to the top of the hook it will lock and sit properly because the toggle stands proud of the mouth of the hook before it's locked in." 226 Mr Ng said he would not be surprised if over a period of time the plaintiff found that the clamp (with toggle) locked into place with gravity rather than having to apply any force. Nor would Mr Ng be surprised if over a period of six years as an employee and one year as a contractor the plaintiff found, as time went by, that the clamp and toggle mechanism required the application of force in order to click the toggle mechanism into place. Mr Ng added that in the test it was found that if they were not pressed in the action of the person climbing the ladder would cause it to lock in. 227 Mr Ng said it would not surprise him, as even further time passed, in order to get the toggle and clamp in place so it sat neatly and in fact engaged the tube that excessive force may be required. Mr Ng added that to engage the clamps and toggles you would hear a distinctive click and the Tallescope's operating instructions say lock it in. A click would have been heard when the toggle moved. 228 Mr Ng said that in carrying out the test light force was applied on more than one occasion. His report does not state on how many occasions. Mr Ng said that he was referring to the application of pressure by the use of the hand on both the clamp and toggle. 229 Mr Ng said that if the toggle was not connected appropriately and if the operator put his foot on the ladder that would have the effect of locking the ladder into place. This was actually done and found. Mr Ng said that such an effect would depend on the weight of the person who put their foot on the ladder. 230 Mr Ng said that if the operator stepped off the stepping off platform to a lower rung or even a higher rung the toggles may not have connected. 231 This passage is in Mr Ng's evidence (T 653): "Q. …over a period of time if force was required to be applied to the clasp and the toggle that could damage the toggles' working mechanism? A. … that spring may have been broken already. Q. Or caused it to work inefficiently? A. Inefficiently in the sense it does not click in. Q. Or does not click in tightly enough when it does click in, would that be correct? A. It works by action of the springs. If the spring is broken it will probably click in but not click - but not hold it. Q. Not the vice like grip that is necessary to maintain the integrity of the ladder in the vertical plane? A. Yes." 232 Mr Ng agreed that in the testing of the Tallescope the test proceeded on the basis that the plaintiff was in the working platform. He did not consider that the Tallescope may have failed as a result of the plaintiff climbing the ladder and before he got to the working platform. Mr Ng said that he went by the eyewitness account related by the Inspector. Mr Ng agreed that as the operator climbs the ladder and before he gets to the pivot point there would be very little rotational forces on the clasp and toggle area. The weight of the operator would assist in the stability of the whole structure. Mr Ng agreed that when the operator gets beyond the pivot point rotational forces are created. 233 Mr Ng said that the centre of gravity of the person who is climbing is outside the vertical line of the Tallescope. He would create an overturning moment because the centre of the workbox is outside the centre of the stiles, the vertical members of the ladder. Mr Ng said that a person who was climbing the Tallescope would climb it up the left-hand side. This passage appears at T 656: "Q. …if the toggles are not properly secured then that movement of his could cause the ladder to disengage completely and to fall into the horizontal plane from the vertical plane. … Could that have happened? A. I find very hard to imagine that can occur …" 234 Mr Ng disagreed with the suggestion that if the toggle mechanisms are not properly in place the operator's climbing the ladder causes one or other of them to lift up because "the ladder from the pivot point downwards is fairly rigid in the sense that the two styles has got holes engaged into pins, and the pins hold the styles relative to the anchor tube to prevent them from moving sideways, up and down" (T 657). Photograph A10 shows one of the pins and Mr Ng's point appears to be well made. 235 Mr Ng said that if the Tallescope had been very badly manhandled, that could have an effect upon the efficient working of the toggles. However, no evidence of the toggles not working efficiently or being affected by the Tallescope being shifted up and down stairs was found. No evidence was found of the integrity of any of the moving parts being affected by an event nor of the structural integrity of the full base of the Tallescope being affected. There was no evidence of any cracked welds other than the railing in the workbox. 236 Mr Ng agreed that if the hole in the anchor tube through which the pin from the stile goes had, as a result of the Tallescope being bumped up and down stairs, been enlarged or elongated the Tallescope would not be as secure as if the hole was a good fit. Mr Ng could not recall whether that part of the ladder was examined to see whether it was snugly fitting. The matter was not mentioned in the report. 237 Mr Ng said that he could not see the Tallescope being carried up and down the stairs with the ladder in the vertical position and that the pin only engages when the ladder is in the vertical position. When the Tallescope is shifted the ladder is in the horizontal position, otherwise it would not go through doorways. These statements appear to be correct. 238 On looking at the photographs in Exhibit AK (T 667), Mr Ng agreed that one of the outriggers appeared to be at an approximately 90 degree angle to the side of the Tallescope but Mr Ng thought that that outrigger was a long way from the floor and that this could be deduced from the shadow. 239 Mr Ng said that when the accident occurred with the weight of the upper part of the Tallescope, including the workbox, coming down on this could have bumped the outrigger out of place. 240 Mr Ng agreed that in paragraph 4.6 of his report he was saying that if the latching hooks had come undone with a person in the workbox and the ladder had fallen forward until its fall was all the way to the aluminium construction strut fully unfolding to its Y shape then the tensile force would tend to straighten the bent section and possibly damage the attachment appointments and hinge in the strut between the Y and straight sections. He was envisaging the latching hooks having come undone at some stage. He said that that was what "was described to us by eyewitnesses" as having occurred. This is probably a reference to what Inspector Sibilant was told and what he related to Mr Ng. No other details were given. 241 Mr Ng said he carried out no testing to ascertain what the effect might have been on the toggles as a result of the climbing of the ladder, nor in relation to the effect on the toggles as a result of the plaintiff possibly having his foot on the top rung of the ladder and leaning with his weight into the workbox. Nor were any dynamic tests carried out as far as climbing was concerned. 242 If the Tallescope had been used over many years, elevating the ladder to the vertical position could have caused some damage to this bolting mechanism as a result of wear and tear. Mr Ng said that no evidence was found suggesting that the rigidity of the stiles had been affected or a movement of the stiles. Mr Ng pointed out the hole around the pins was not very elongated and was still a very round hole. It was not significantly out of shape. 243 Mr Ng had not previously examined or tested a Tallescope of the type in question. Mr Ng said (T 679) that if you looked at the instructions on this Tallescope they all repeatedly state to lock in the ladder, which implies that they were not designed to fall in by gravity. They are required to be manually locked in place. Mr Ng agreed that none of the stickers had a person's hands over the clamps indicating how it should be clamped into place. 244 Mr Ng said that if the Tallescopes were manhandled in the horizontal position without the benefit of these holes engaging the tapered pins there could be some distortion. But again, the pivot tube is fairly substantial and the pivot pins rotate. So any distortion to the ladder would occur from the pivot tube upwards to the platform. 245 Mr Ng said (T 682) that if the stiles had been manhandled in such a way that they could be distorted and the only distortion that you see is from each end of the pivot point, which is the pivot tube which is bolted to where it rotates about, there could be some distortion either way of the stiles. That could affect the free movement of the pivot that goes through the tube. "The tube itself is a pivot and the stiles are actually bolted to the pivot. If the bottom sections were to be distorted, they would not be engaged into the tapered pin." "If the holes were not engaged [or engaged fully], the top ones are fairly free to move in the top of the ladder." Mr Ng pointed out that the bolts actually are the tapered pins. Mr Ng said that if the mechanism was not operating properly, he would have made reference to it in his report. 246 Mr Ng said that, thinking back over the test, he thought that once they left it (the ladder) unattached, they had somebody climb and it was probably discovered that just the weight of one person on one of the rungs was enough to cause the latches to lock themselves. In paragraph 3.3 of his report he referred to a person's weight being transferred to the bottom rung of the ladder and that this action assisted in the proper engagement of the latches. Mr Ng could not recall whether the staff member climbed all the way up to the platform. Mr Ng agreed that if someone had climbed up the ladder and some manoeuvre had been carried out he would have mentioned that in his report. 247 Mr Ng confirmed that the Y-strut, as shown in photograph A13, had been damaged and should have been repaired during maintenance. Mr Ng said that the fact than an inspector issued a PIN notice implied it was not safe for use by any party (T 687). 248 Mr Ng said that they had not found a significant amount of wear on the toggles (T 687). Mr Ng agreed that it would be unwise for the toggles to be forced. He said that if a toggle did not click into place he would not recommend that significant pressure should be applied (T 687). 249 Mr Ng agreed that to get the toggles into their proper position it was necessary for him to apply some force (pressure) with his hands to get the toggles, being moving parts, into place. Mr Ng confirmed that he had to apply light pressure to the toggles to get them to clamp but if you had to apply more than light pressure then that would indicate that there was trouble (T 689). Mr Ng explained that it would not be prudent to operate the Tallescope if significant force, i.e. equivalent to somebody's body weight, was required (T 689). It was the plaintiff's case that the Tallescope used on the day of the accident should not have been used at all having regard to its condition (T 690). 250 Mr Ng thought that the stickers on the Tallescope could provide adequate instructions, probably augmented by hands-on training provided by the manufacturer itself to one party (T 690). The plaintiff's point was that he was not given any hands-on training by the manufacturer or his representative. 251 Mr Ng said that on testing the top of the ladder they found that if the latching toggles were not engaged and one of the steel hooks was engaged this would not cause the ladder to fail because the steel hook would still have enough resistance against the turning moment (T 690 – 691). 252 Mr Ng said (T 691): "Now, a person climbing a ladder is located on the left side, which is anticlockwise moment. When he reaches the top of the ladder and enters the workbox, his weight is transferred to cause a clockwise moment, and that is the tipping moment which cause the ladder to fall forward, and that is resisted by horizontal force, a tension induced onto the arm of this latching devices. So the horizontal force opposes the overturning moment." and "So as he climbs, … because he's on this side of the fulcrum, it creates an anticlockwise moment, until he reaches and enters the workbox. Then his weight is transferred to this side of the fulcrum pin and that is the overturning moment which would cause it to collapse." 253 Mr Ng thought that if the operator was stationary, leaning on the ladder preparatory to climbing into the workbox that applies a force in a direction that generates a clockwise moment, and that will cause the ladder to fall if the toggles and the steel hooks are not engaged. 254 Mr Ng did not agree that if the toggles are not in place, the operator got to the top of the ladder and is leaning on it with his weight, and if the ladder starts to move, the triangular outer hook would ride up. Mr Ng said the ladder would be held there by gravity and that the only way the triangular outer hook could ride up is when someone physically lifts it up (T 691 – 692). 255 This passage appears in Mr Ng's evidence (T 692): "Q. But for the ladder to have come down, the hook must have lifted up. Otherwise it would have stayed there. A. Yes, it's lifted up because of the blade-shaped edge. It rides away and then it falls from gravity, where the cutout - semicircular cutout would fall onto the tube. And in order to pull it out of the tube, you need to raise it up because it can ride it, because as you slide the ladder - spring the ladder downwards, the blades will actually contact the anchor tube and ride on it, and it will fall in where the semicircular cut-out of the blade would engage onto the anchor tube. Q. Mr Ng, in order for the ladder to have collapsed, the outer hooks must have disengaged, mustn't they? A. They must have disengaged somehow." 256 Mr Ng said that it was unwise to have the centre of gravity outside the base of the ladder, "base" meaning the area described by joining all the contact points. 257 Mr Ng did not know whether Mr Mackie was working at a height of four to five metres off the stage. He understood that he may have been about 3.1 metres, the height when the ladder was fully retracted. He was not aware of the requirements in New South Wales as to the height when an operator needed to use scaffolding and not a ladder. 258 Mr Ng said that in the testing there was no evidence that the latches were not working properly in attaching to the clamping bar and even if they had been in place when the plaintiff commenced his journey up the ladder, they could have become disengaged in the course of that climbing. Based on the tests performed Mr Ng found it very hard to visualise what happened (T 694). 259 I drew Mr Ng's attention to the yellow sticker attached to each side of each stile and the words "Read Safety Rules". Mr Ng read this as incorporating what is written on Figure 4, headed STOP (p 5 of his report). I doubt if this reading is correct. 260 In re-examination Mr Ng said that a person with some trade background who is used to handling tools would be able to follow the instructions on the Tallescope just by reading them. However, such a person may not have come across the latching arrangements on this Tallescope and may need someone to show him how they latch on, that is, what is meant by locking the safety hooks. Mr Ng thought that if a person had operated the Tallescope correctly 50 times without incident then he would be in a position to train another person. The operator would have to show an understanding of how to lock the latches with pressure (T 697). 261 Mr Ng said that a person in a workbox will actually cause greater stresses on the latching device than if he were to climb a ladder (T 695). 262 Mr Ng stated that when the clamp is in the closed position the mouth of the hook becomes smaller than the tube diameter so it needs physical force to remove it. When the clamp is on the anchor tube the turning moments are transmitted through the clamp to the anchor tube. The function of the toggle is to keep the clamp onto the tube (T 699 – 700). 263 Mr Ng explained that he did not attach a rope to the top of the workbox and pull it to the side because the ladder from the pivot point downwards is "fairly secured into these pins. So there's very little or hardly any lateral movement which can occur to cause any displacement of the hooks". Secondly, "if the outriggers were in place, there would have been "fairly little sideways movement of the ladder in relation to the base" (T 702). 264 On testing the main operating functions – that is, the swivel points and attaching hooks, these were found to be working correctly. The points of repair were listed in Mr Ng's email to the Inspector and covered by the Improvement Notice. When asked what effect any of the defects or repairs had on the stability of the ladder, Mr Ng replied that the missing brake device could be a factor if the floor was not exactly level. All four braking devices are needed to prevent any movement when the operator is up in the workbox. 265 Mr Ng said that none of the items that required repair would have had any effect on the ladder remaining in its upright position. 266 Mr Ng found no evidence of the toggle mechanism being worn or that the spring in the toggles was not operating as expected. The clamp and the toggles were working efficiently. The grip of the toggle does not really resist the horizontal forces, but it gives added safety in that, should somebody bump it in a vertical direction, it will not lift off easily from the tube. He also explained that if one transfers weight from one side to the other in a vertical plane as he steps into the workbox, there will be increased tensile force on the clamp, but not on the toggle. When he said that for the ladder to collapse the hooks must have been disengaged he assumed that the ladder was in the vertical position and that the ladder was held in place by the latches. 267 Mr Ng emphasised that they still did not know exactly how the accident occurred and that until this was known he could not suggest any maintenance. Dr Heathcote 268 Evidence was given by Dr KA Heathcote, a highly experienced and qualified engineer, who has had extensive practical experience and was formerly a Senior Lecturer at the University of Technology, Sydney, working in both the post graduate and undergraduate courses. He has published widely and made many conference presentations at international conferences. 269 Dr Heathcote was asked to assume: The plaintiff is a sound and lighting technician. Prior to 2000 he had been employed by the Club. He left its employment and continued to be retained by it as a contractor on an as needed basis. On 7 September 2000 the plaintiff was utilising a Topdek 512 or 50512 work platform to install lighting in the Regency Room. Whilst working in the "workbox" the structure rotated forward and the plaintiff fell to the floor. The plaintiff had previously used this workbox/scaffold on numerous occasions and was well versed on how to set up the workbox and the safety requirements for its operation. As to the assumptions, the plaintiff may not have been in the workbox but climbing into it, or about to do so; probably he had passed the fulcrum point. That suffices. 270 Amongst the documents provided to Dr Heathcote were copies of: 1. WorkCover Authority factual inspection report of Inspector J Sibilant 2. Accident Report dated 7 September 2000 of the Club 3. Email from David Ng to John Sibilant dated 29 September 2000 4. WorkCover Consumer and Business Services Team Report – Accident Investigation, dated 29 September 2000 (This was a draft of the report which was finally dated 10 October 2000. It was prepared and signed by Mr David Ng, the head of the Mechanical Unit. The draft and the final report did not differ.) 5. WorkCover Authority of NSW Improvement Notice, dated 20 October 2000 6. Copies of Statement of Claim dated 7 September 2005, Defence dated 28 March 2006, letter from Sparke Helmore to CBD Law dated 22 August 2006, letter from CBD Law to Sparke Helmore dated 6 October 2006, WorkCover NSW Form IMI: Accident/Investigation Compliance Category C, dated 12 February 2001 and the report of Mr Robert Fogg dated 22 May 2007. 271 Dr Heathcote wrote that his report was based on the assumed facts, the documents given to him, on his inspection of a similar work platform at Denistone East Primary School (being Tallescope Model 50512) and on his 34 years of experience as a structural engineer and 17 years of experience as a lecturer and researcher in Building Technology and Construction Management. Dr Heathcote was asked to comment on: 1. the cause of the plaintiff's fall on 7 September 2000; 2. Mr Fogg's report; and 3. whether the cause of the fall was the plaintiff's failure to correctly set up the work platform, or 4. whether the cause of the fall was the design of the scaffold ladder/workbox. 272 Dr Heathcote was of the opinion that the work platform he inspected was the same model as that involved in the accident. That opinion was probably correct. Dr Heathcote drew attention to this warning sign on Tallescope 50512 at Denistone East Primary School. That sign relevantly read: "BEFORE TILTING, MOVING OR CLIMBING 1. LEVEL & LOCK ADJUSTABLE LEGS 2. LOCK CASTOR BRAKES 3. CHECK OVERHEAD CLEARANCE 4. ADJUST & LOCK OUTRIGGERS …" 273 The full text of this warning sign (a metal plate) is set out earlier and in Figure 3 of p 5 of the TestSafe Australia report. Dr Heathcote also drew attention to the yellow sticker which is set out earlier and is Figure 1 on p 4 of the TestSafe report. 274 After noting that the Statement of Claim fails to set out exactly what happened other than "the ladder failed causing the plaintiff to fall to the ground", Dr Heathcote records these particulars supplied by the plaintiff's solicitors, CBD Law: "David fell five metres from a cantilevered extending ladder on the stage of the auditorium …, David wheeled the ladder into place and raised it from a horizontal to a vertical position. David climbed the ladder into the workbox at the top of the ladder. The ladder fell forward projecting David to the floor of the stage." These particulars do not state that Mr Mackie locked the locks (both sets, or either set of hooks) into place. 275 Dr Heathcote proceeded on the basis that the plaintiff had used the ladder many times previously and had prepared a "standard operational procedure" for the unit based on signage available on the unit. 276 Dr Heathcote referred to the testing carried out by TestSafe and noted that the testing failed to cause the rotational locks to disengage. 277 Dr Heathcote disagreed with the assumption made by Mr Fogg that the rotational locks must have been in place in order for Mr Mackie to climb the ladder, based on the "top heavy" nature of the work platform. Dr Heathcote regarded this as a natural assumption to make, but stated that his observation was that it was possible for the ladder he inspected to remain vertical while the catches were undone, particularly so if one foot was on the lower rung of the ladder and the ladder was being held at roughly the point where the ladder rotates. Dr Heathcote made these further comments: "9.2 Mr Fogg then goes on to say (Section 3.3) that 'the most likely cause of the accident to Mr Mackie is due to the unlatching of the vertical locking mechanism ( rotational lock ) as Mr Mackie leant to one side of the workbox'. His justification for this is the 50512's lack of diagonal bracing (as observed on the taller 50518 model he inspected), together with some possible interference by the ladder haul rope. As he noted this is a 'hypothesis' only and although it has a slight theoretical appeal I cannot agree that this scenario is at all likely if the locks were properly engaged. 9.3 Both my observations on the smaller 50512 model and the tests conducted by WorkCover indicate to me that when the rotational locks are in place it is extremely difficult to dislodge them. The WorkCover report … states that even with only one outer 'latching' hook in place it was not possible to cause the ladder to rotate." 278 Dr Heathcote reached these conclusions: "10.1 I believe that the work platform I inspected at Denistone East Primary School (Tallescope 50512) was the same model as that involved in the accident. Both this work platform and the one inspected by WorkCover had safety signage indicating the importance of locking the rotational safety locks at the bottom of the ladder before climbing. 10.2 It is my opinion, based on my site inspection and the WorkCover report, that had these rotational safety locks been properly engaged then it would have been almost impossible for them to disengage whilst the platform was in normal usage. 10.3 The obvious conclusion from this is that the rotational locks must not have been properly engaged when Mr Mackie commenced to climb the ladder … As I observed in my inspection the ladder could have remained vertical without the locks being engaged, particularly if someone was holding on to it after rotating it to a vertical position. 10.4 I further observed from my site inspection that it was possible to commence climbing the ladder with the rotational locks disengaged. As noted above the tendency of the rotational locks to engage the tubular treads of the ladder was not automatic when the ladder was not fully extended. On my inspection the action of putting my foot on the lower rung of the ladder tended to prevent the ladder from immediately rotating when the rotational locks were not engaged. 10.5 Once Mr Mackie climbed up further and moved beyond the point of rotation the stabilising force of his weight on the lower rungs of the ladder would no longer exist and the whole ladder would rotate, causing Mr Mackie to be thrown forward. The analogy to this is climbing up a seesaw. The seesaw remains stable until the fulcrum point is reached, at which point it becomes decidedly unstable and the climber is projected forward. 10.6 Without having the benefit of an eyewitness report it is impossible to say whether the above chain of events caused the accident. It is my opinion however that the accident is more likely than not to have occurred due to the scenario I have presented. I do not believe there is an inherent design fault in the equipment." 279 In his oral evidence (T 714) Dr Heathcote repeated his opinion in his report that the locks were not in place. He did not think that putting a reasonable amount of force on the locks putting them into place would necessarily affect their behaviour. I am not persuaded that Mr Mackie applied or had to apply more than reasonable force on the locks. 280 Dr Heathcote put the Tallescope (at East Denistone) in the vertical position. He said, "Obviously I had to apply force to the clamps to get them into position" (T 715) and disagreed that the clamps ought to have fallen into place with gravity. That did not happen when he tested the Tallescope at East Denistone. 281 In response to the suggestion that he did not mention in his report that to get the clamps into position he had to apply force to the clamps, Dr Heathcote drew attention to p 12 of his report at 10.4 where he wrote "as noted above the tendency of the rotational locks to engage the tubular tread of the ladder was not automatic when the ladder was not fully extended". He added (T 716), "If that was the case then I would have had to have engaged the locks". 282 Dr Heathcote said he did not climb the ladder. When he put the ladder into the vertical position he engaged the latches and took a photograph after he put the latches on. He would have made a note if it was particularly difficult to get the latches in. Dr Heathcote did not agree that after he elevated the ladder the clasp (or clamp) fell into place without him having to apply any physical pressure of his hand or hands. 283 Dr Heathcote thought that in the present case the locking device was not in place, that it (the ladder) was ascended by Mr Mackie, that he got beyond the pivot point further up the ladder, that that caused "rotational forces producing the see-saw effect" (T 719) thus causing the ladder to fall from the vertical plane to the horizontal plane. (Dr Heathcote had earlier used the seesaw analogy with the plank tilting the opposite way once the fulcrum was passed – he equated in his analogy the pivot point on the ladder with the fulcrum on a seesaw.) 284 Dr Heathcote said that for the ladder to have tilted into the horizontal plane the plaintiff would have had to move towards the workbox. He would not necessarily have to be in the workbox. Weight distribution was the determining factor. He produced a model to demonstrate his point. 285 Dr Heathcote explained (T 720): "As soon as he gets to the top and gets above that fulcrum point there, above there and like that, it will fall forward and that's the box. It's pretty clear the ladder can remain stable while [the operator] climbs up. If he leans over like that, there's going to be a tendency for it to be unstable. Basically while he is climbing the ladder, his mass, sort of 80 kilos or something like that, this is providing a rotating moment that's actually stabilising the ladder. And that occurs until he is right up the top there. There's no tendency for it to rotate because that is providing a twisting moment about that point that is actually stabilising. It's only when he gets past there, the top of the ladder and it's going to fall over. As I said, that's my view what's happened. Because basically I believe there's no way those locks could have been disengaged." 286 Dr Heathcote said that the purpose of the toggles is basically to stop the hook moving upwards, but the hook does all the work (T 724). 287 Dr Heathcote did not know if the inner clamp rides up whether that can force the outer hook to also ride up. He had not carried out any tests and could not say for certain. 288 Dr Heathcote agreed that the ladder could remain in the vertical position even with the locks being partly engaged. 289 Dr Heathcote thought that the clamps could not be considered apart from the metal hooks. He agreed that the metal hooks have a capacity to move up, even independently of the clamps, but added that they still engage. 290 Dr Heathcote was asked to assume that the evidence of the plaintiff was correct when he said that, about six or seven years before his accident, when he elevated the Tallescope to its vertical position the latches and clasp would drop into place with gravity without the application of any pressure, that as time went by he found that, in order to get the locking mechanism to engage, he needed to apply some pressure on the clamps with his hands on both sides and, as further time went by, it became necessary for him to apply more pressure in order to get the clamps and the locking mechanisms to engage. Dr Heathcote declined to assume that towards the end the locking mechanisms of the clamp and the spring loading mechanism were not working efficiently. 291 Dr Heathcote pointed out that a new piece of equipment is going to work better than an old piece. He added (T 729): "I don't believe … that initially when they popped into place implies that they should do that forever, because there is a sign at the bottom saying to check that the locks are engaged and in that case there wouldn't be any need to check because they automatically go into place. … as things get older they don't automatically click into place and you have to apply a bit of force …you have to check the locks are in place before you climb." 292 Dr Heathcote did not agree that the gradual increase of force required to get the locking devices to close would suggest that the locking devices were not operating as efficiently as when he first started using it. Dr Heathcote said that efficiency meant the ability to do its job and that once the clamp was hooked onto the bar the clamp does its job and it was 100 per cent efficient. Dr Heathcote said that there was no evidence that the Tallescope 512 was designed to automatically engage (T 731). 293 Dr Heathcote did not agree that, if the internal locks were not working and the ladder was being ascended, this combination could cause the outer hook to also ride up. 294 In summary, Dr Heathcote stated that all the locks were not properly engaged and that when the plaintiff climbed up the ladder it fell over. 295 As to the first instruction on the yellow sticker, namely, "READ SAFETY RULES", Dr Heathcote agreed that there was no marking on Tallescope Model 512 headed "Safety Rules", but he added that there was a set of rules on the right hand side which tells you what to do to operate the equipment. They were, in substance, safety rules, and he so interpreted them. 296 Dr Heathcote agreed that it would be an appropriate safety rule that a Tallescope should not be used which is damaged or incorrectly assembled. He agreed that it would be a proper safety rule to provide that excessive force should not be used on parts, but it would be proper to use reasonable force on parts of the Tallescope that move. Dr Heathcote did not agree that, if the Tallescope was operating properly, then no force would have been required to get the locking devices into place. 297 Dr Heathcote accepted that the rope shown in photograph A11 of the TestSafe Australia report should be moved to the centre of the bar. He noted that the prominent "Caution" reading "LOCK SAFETY HOOKS BEFORE CLIMBING" made it fairly obvious that you had to move the rope to engage the hooks before climbing. Dr Heathcote referred to the tests carried out by TestSafe. 298 Dr Heathcote said that Tallescope Model 512 was fairly short and there was a lot of rotational stability in it. He did not think that leaning over the side or forward would cause some adverse forces on the clasp area. Dr Heathcote did not think that extending the ladder by three rungs was going to make much difference. He doubted if there was any problem effecting the torsional stability of the Tallescope. 299 There was nothing on any of the markings on the Tallescope Model 512 indicating that a person who was endeavouring to secure the ladder was required to use any hand pressure to engage the clasp or the hook. Dr Heathcote doubted if you would find that on any ladder. 300 In re-examination Dr Heathcote explained that the hinge at the ends of the bar on which the clamp is attached becomes stiff over time. Force would be needed to overcome any resistance. 301 Dr Heathcote was referred to photograph A6 in the TestSafe Australia report. Counsel for the defendant asked: "Do you see at the end, I call it hinge but both the clamp and the hook rotate around the bolt it appears?" Dr Heathcote replied, "Yes". Dr Heathcote said that the hook and clamp in photograph A6 were similar to the ones he examined (at Denistone East). 302 After referring to photograph A7 in the TestSafe Australia report and saying that the model the subject of that report and the model he examined were the same model, Dr Heathcote said that basically the hook and latch rotate about that bolt and if that bolt tightens up then it becomes harder to push the hook down (T 757). 303 Dr Heathcote further explained (T 757): "… there is a force required to bring both the hook and the latch down and they are both on the same pin bolt at the end so if they were on and that was tighter it might require a bit of force to pull down and again I say the latch mechanism underneath could become tighter but essentially it is a different operation, this is an operation to push it in place and the other is an operation to lock it." 304 Dr Heathcote agreed that the need for increasing force to push down the arm, and the need for increasing force to push down the latch and the hook need not be indicative of some failure of the latch. Dr Heathcote added: "Once the latch is in position, it is doing its job but the actual force required to pull it down does not mean an actual failure it just means you are applying a lot of force to put it in position to latch it." (T 758) Resolution of conflicting causes of accident 305 Mr Fogg, not having examined Tallescope Model 512 but having seen photographs of it and having inspected Tallescope Model 518, thought that as the plaintiff put his foot and weight on the bottom rung of the ladder and commenced to climb the ladder this combination would cause the ladder to lock into position. See the last paragraph on p 2 of his report of 29 June 2009 (Exhibit AAB). 306 Mr Ng thought that the outer metal hooks, with their tapered leading sections which ride over the anchor tube, allow the tube to enter the mouths of the hooks by gravity, thus latching the ladder. His tests showed that, if one of these outer metal hooks grasped the tube, the ladder would remain upright and vertical. 307 Dr Heathcote thought (and I accept), based on his site inspection at East Denistone and the WorkCover report, that, had the rotational locks been properly engaged on Model 512, it would have been almost impossible to disengage them whilst the platform was in normal usage. Mr Fogg did not disagree. At p 7 of his report, Dr Heathcote summarised the testing by WorkCover thus: "Their testing involved putting a 91 kg weight in the cage at the top of the platform and pulling on it in a longitudinal direction. They repeated the experiment 'with the loop and knot of the ladder hauling rope moved underneath the left hand side hook and latch to prevent the proper engagement with the tube.' In both cases the testing failed to cause the ladder to rotate, i.e., to cause the rotational locks to disengage." Dr Heathcote further wrote (top of p 11 of his report – Exhibit 8): "… with both sets of rotational locks disengaged the ladder on the work platform I inspected at Denistone East Primary School remained vertical and did not automatically return to the horizontal. The maintenance person at the school demonstrated to me that he had to physically pull the ladder to initiate its return to the horizontal once the rotational locks were disengaged." Dr Heathcote added that he observed that when the ladder was not extended there was a reduced tendency for the rotational locks to engage on their own. 308 Mr Ng's approach was influenced by the history he was given by Inspector Sibilant to the effect that eyewitness statements provided to the Inspector "indicate that the employee fell from the workbox when it suddenly rotated from the vertical working position to the horizontal position". It seems that the hooks were not in the latched position. Dr Heathcote looked for an explanation pointing to why the accident happened. 309 (a) I have contrasted the terms of paragraphs 10.3 – 10.5 of Dr Heathcote's report, especially his observation that it was possible to commence climbing the ladder with the rotational locks disengaged and Dr Heathcote's oral evidence at T 714 that the locking mechanisms were not in place, with Mr Ng's evidence that in the test it was found that, if the clamps and toggle mechanisms were not pressed in, the action of the person climbing the ladder would cause it to lock (T 649). Mr Ng was testing the model on which the accident had occurred and Dr Heathcote was not examining that Tallescope but the same model. (b) There was also the evidence of Mr Fogg that with the Tallescope Model 518 when the dual locking system is not locked into position the weight and action of the person commencing to climb causes the dual locks to snap into position. This does not necessarily happen with Model 512, which is lighter. Dr Heathcote stated that, if the dual locking system is not locked into position, the weight and action of the person climbing up the ladder will not necessarily cause the dual locking system on Model 512 to lock into position. The markings on Model 512 emphasise that before climbing the ladder the operator should ensure that the dual locking system is locked into position, that is, secured. 310 The evidence of what Mr Ng found on the testing of Tallescope Model 512 is accepted and the evidence of Dr Heathcote based on his examination and observations of Tallescope Model 512 is accepted. I thought Dr Heathcote's analysis of the problem and his opinion were correct. While I paid much attention to Mr Fogg's evidence, he inspected a different model Tallescope. He did not sufficiently establish that the defects of Tallescope Model 512 used by the Club caused, or contributed to, the accident. I accepted that the lack of maintenance, or poor maintenance, of Model 512 did not cause or contribute to the accident. Mr Mackie was not able to give evidence of what he did on 7 September 2000 and what happened, but relied on evidence of his consistent past practice and the difficulties he had experienced with the Tallescope Model 512 at the Club. On the evidence, the probable cause of the accident is that the hooks were disengaged. Mr Ng was unable to determine the cause of the accident. Dr Heathcote thought that the locking mechanisms were not engaged prior to Mr Mackie climbing the ladder. Mr Fogg's views were not sufficiently substantiated. I am not able to find that the Club was negligent in either providing its Tallescope for use by Mr Mackie or allowing him to use it to set up the lighting or that it breached any implied term of any contract. 311 This case was not free of technical complexity. I have reviewed the evidence at some length. The accident has drastically affected Mr Mackie's capacity to work and earn income, his matrimonial and personal relations. One difficulty was that Mr Mackie had no recollection of what he did after he went to the back of the stage to look for the Tallescope and there was no witness who saw what happened as to the securing of the safety hooks or their coming adrift. It is regrettable that there is no eyewitness account of exactly what happened after Mr Mackie went to the back of the stage. That may have affected the conclusions I have reached. Mr Russo sensed Mr Mackie climbing the lower rungs of the ladder and was present when the accident occurred. He relied on what he heard and what he saw after the extendable ladder collapsed. Mr Mackie relied on his usual practice and did not and could not believe that he did not secure the extendable ladder before climbing it. 312 Dr Heathcote thought that extending the ladder by three rungs would make no practical difference. Dr Heathcote's view was based on him having seen the ladder at East Denistone in a vertical position and unsecured, and his assessment of the effect of a man weighing 80 kilos climbing up the ladder. The ladder would not collapse until the man had climbed up the ladder to a point where his weight combined with the weight of the workbox caused the ladder to tilt as it did. 313 As mentioned, the plaintiff relied on the defects in Model 512 and the examples of poor maintenance or lack of maintenance. Mr Fogg stressed these. While Mr Ng required these to be remedied, he did not think that the defects and lack of proper maintenance played any part in causing the accident. Dr Heathcote accepted the views expressed in the TestSafe Australia report to the effect that the lack of maintenance did not cause or contribute to the accident. 314 I am not persuaded that Mr Fogg is correct in attaching causative importance to the defects he noted in the Club's Tallescope, or that he is correct when he wrote that the most likely cause of the accident to Mr Mackie is due to the unlatching of the vertical locking mechanism (rotational lock) as Mr Mackie lent to one side of the workbox. I prefer Dr Heathcote's analysis and the views he expressed in his report and evidence. 315 On the balance of probabilities I am not satisfied that the rotational locks were in place when on 7 September 2000 Mr Mackie started to climb the ladder. As earlier mentioned, Dr Heathcote concluded that the rotational locks must not have been properly engaged when Mr Mackie commenced to climb the ladder and his weight and action in climbing he ladder did not cause the locking mechanisms to engage. While there can be no certainty in the present case, these conclusions are probably correct on the existing evidence, despite Mr Mackie's careful work practices and his usual practice built up over many years. 316 I did not attach weight to Mr Mackie's initial acceptance of the TestSafe Australia report. He could not recollect exactly what had happened, nor did he have the technical expertise to evaluate the report and the tests that should have been conducted. It was unrealistic to expect him to be able to raise and sustain reservations about the report. 317 Mr Mackie did not report to the Club that there were difficulties in operating Tallescope Model 512. 318 I have previously referred to the evidence of the plaintiff that initially the ladder fell into place by means of gravity, that over time he had to use force to lock the ladder into position and that then, over further time, he had to use more or excessive force. As stated in paragraph 5.1 of the TestSafe Australia report, "The steel outermost hooks engage on the anchor tube by the action of gravity as soon as the ladder is swung into position." However, in paragraph 2.2 of the TestSafe Australia report on p 3 it is stated, "[t]he latching hooks securing the ladder to the anchor tube appear to be working properly, with the inner ones clicking into place with the application of light pressure". I accept that this was found by TestSafe. 319 I have noted the evidence of the plaintiff as to his experience with Tallescope Model 512 and the need he experienced for the use of increasing force. On the balance of probabilities I accept the test results of TestSafe Australia (Messrs Ng and Sibilant) and the evidence of Dr Heathcote. Because of the terms of the markings on Tallescope Model 512, for example, "LOCK SAFETY HOOKS AT BOTTOM" (yellow sticker), "LOCK LADDER HOOKS" (on sticker attached to plate with the heading "STOP"), and "CAUTION – LOCK SAFETY HOOKS BEFORE CLIMBING" (red sticker), I do not agree that it was envisaged that the safety hooks would always drop into place by gravity. Those warnings strongly suggest that before climbing the ladder the operator should either lock the safety hooks or check that the safety hooks had locked. 320 The Club's Tallescope Model 512 was moved from the Club and set up afresh at the premises of TestSafe Australia. The evidence does not suggest there was any significant difference in the operation of that Tallescope. The tests were designed to ascertain the cause of the accident. Contract and tort – independent contractor 321 As at 7 September 2000 Mr Mackie had ceased to be an employee of the Club, but it was aware that he used the Tallescope to attend to lighting and sound work required when portions of the Club's premises were used for functions. As mentioned, by its order, the Club required a Light & Sound Operator. The plaintiff was engaged by the defendant as an independent contractor. It was an implied term of the contract that the defendant would take reasonable care not to injure the plaintiff or to permit him to be injured when using the Club's equipment. 322 In my opinion the defendant also owed the plaintiff duties in tort on the basis that he was an independent contractor. In Stevens v Brodribb Saw Milling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 31 Mason J said that an entrepreneur owed a duty to prescribe a safe system of work whether or not those he engaged were independent contractors or employees. 323 As was pointed out by Heydon JA in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [68], "Mason J spoke of where there was a risk of … injury arising from the nature of work and of a need for co-ordination". Heydon JA considered the grounds relating to foreseeability separately from breach of duty of care. 324 In Van Der Sluice Heydon JA remarked that the plaintiff was a skilled workman experienced in the type of repetitive task in question and had set up a freelance business. There had been a fairly long association and the plaintiff had done work for the defendant on an extensive basis. That is close to the facts of the present case. Heydon JA at [72] held that the defendant could not reasonably foresee that the plaintiff would fall: "… because the defendant was entitled to assume that [the plaintiff] would identify any risk of falling and take measures to prevent that risk from arising if he did. For the defendant it was not reasonably foreseeable that the plaintiff would come to harm because of the skill it had detected in him during their earlier association … and because of his experience, and hence his capacity to perceive any possible risks and his capacity to devise methods of negating them …" 325 While not identical, a similar situation existed in the present case. Between about 1993 and September 2000 Mr Mackie had safely used the Tallescope Model 512 on many occasions. He was well aware of the necessity to lock the safety hooks, and indeed had noticed over the years that he had to use increasing force to ensure that the clamps clicked into place. He had prepared the document "Standard Operating Procedure" which encapsulated the warnings on the markings on the Tallescope. He had applied his commonsense and his not inconsiderable technical skills. He regarded the Tallescope as functioning effectively because it was safe to use once the locking mechanisms were locked into place. The defendant was entitled to assume that the plaintiff would identify any risk of falling and to take measures to prevent that risk from arising by securing the locking mechanisms before climbing the ladder. 326 If the clamps had been locked into place before climbing the ladder, as directed, the accident would not have occurred. 327 In my opinion, the plaintiff has not established any breach of duty of care by the defendant, nor any breach of any implied term of any contract to take reasonable care for the plaintiff's safety. 328 The implied term pleaded in paragraph 9A of the Second further Amended Statement of Claim, filed 21 May 2010, was a contractual duty to provide the plaintiff with a portable scaffold that was as safe for use by the plaintiff as anyone could make it. Tallescope Model 512 was safe for use by the plaintiff if operated correctly, that is, in accordance with the instructions contained in the markings attached to it. The locking devices had to be secured, that is locked into place, before the operator climbed the ladder. That is made clear by the markings on Tallescope Model 512. The operator was not entitled to rely on Tallescope Model 512 locking into place by gravity alone and not check that the safety hooks had been locked before climbing. I would not ignore the history of the plaintiff having safely and correctly operated Tallescope Model 512 on many occasions between 1993 and 7 September 2000. Decision on negligence and contract counts 329 There should be a verdict for the defendant on the negligence count and on the contract count. I turn now to the statutory counts. Factories Shops and Industries Act 330 The plaintiff submitted that the premises of the defendant in which the accident occurred, being the Central Coast Leagues Club premises, meet the definition of a factory within s 4(1) of the Act. Under s 4(1) "Factory" means: "(a) any building or place … in which four or more persons are engaged directly or indirectly in a manufacturing process" "Manufacturing Process means any process in or incidental to the making … preparing … cleaning, washing … any goods". 331 The plaintiff alleged that the manufacturing processes of the defendant included: washing and/or cleaning drinking glasses cleaning plates and /or cutlery and/or cookware and/or tables, preparing food for sale to customers laundering linen. 332 Meals and drinks are served in connection with functions in the auditorium (Regency Room). As previously mentioned, there was a restaurant and bistro within the Club. Meals, sweets of all sorts and cakes were prepared and drinks of various kinds were served with bottles and cans being chilled. Glasses were washed. The Club had a substantial bar staff. 333 The plaintiff submitted that the premises occupied by the Club should be taken as a whole and that the Court should not separate the Regency Room from the rest of the premises. Reliance was place by the plaintiff on there being a bar in the Regency Room. The defendant contended that the Regency auditorium did not meet the definition of a factory and that was the area with which the Court was concerned. 334 The plaintiff also relied on s 4(1)(a)(iv)(b) of the Act in that mechanical power is used as ancillary to any specified businesses. It was alleged that ancillary to the defendant's businesses it ran and used various industrial fridges and freezers within its premises for the cold storage of food and beverages. 335 It was also alleged that ancillary to the defendant's business it generated power from time to time within its premises by the use of one or more generators. There was evidence that there was a generator which operated in the Club until the time of the accident. Mechanical power means, inter alia, power generated by electricity or any power other than manual power. 336 It was further alleged by the plaintiff that the defendant's premises met the definition of a "factory" in s4(1)(a)(v) of the Act in that electricity was generated or mechanically transformed there. 337 "Factory" means, under s 4(1)(b), "any bakehouse": "'Bakehouse' means any building or place in which any bread, biscuits, cakes, confectionery, cereal food for human consumption, pastry, sweetmeats, sugar goods, muffins, crumpets or goods of a like kind are made or baked for trade or sale, and include any place or room used in connection with the bakehouse for storing such goods when made or baked or the ingredients and materials to be used in the manufacture of such goods." There is evidence that cakes and confectionery were made on the Club premises (see T 81 – 82). 338 The definitions to which I have referred have a wide scope. Nevertheless, my primary opinion is that the Regency Room should not be regarded as a factory or part of a factory, nor as a bakehouse. It was used for holding a variety of large functions, it seems, mostly of outside bodies. I was inclined to separate the Regency Room or auditorium from other parts of the Club premises. However, the Regency Room was said to have a bar. Mr Mackie described what was in the bars in the Club. If it is assumed that the auditorium is, or was, a factory or part of a factory and that the provisions of the Factories Shops and Industries Act 1962 apply to the auditorium, there are further questions. Section 34(d) provides that all ladders shall be of sound construction and properly maintained. Neither the defects identified in the ladder nor the lack of maintenance of the ladder caused, or contributed to, the accident. If operated correctly, the ladder of Tallescope Model 512 was of sound construction in that the defects mentioned had no bearing on the cause of the accident. Section 40 requires safe means of access to every place of work; such means of access were provided if Tallescope Model 512 was operated in accordance with the instructions attached to it. The problem in the present case was probably caused by the plaintiff climbing the ladder without ensuring that the safety mechanisms had been locked into place. Safety Construction Act and Regulations 339 The plaintiff alleged that, at the time of the accident on 7 September 2000, the plaintiff was performing and the defendant was engaged in "construction work" and "building work" within the Safety Construction Act 1912 (NSW) and Regulations. Under that Act "construction work" means, inter alia, "building work". Under the Act "building work" means "(a) work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, [others omitted] … that (i) … in relation to a building or structure at or adjacent to the site thereof, or …" Adjusting the lighting for a fashion parade, even if it involves adding additional lights to the lighting bar and re-focussing the lights, cannot be regarded as building work or construction work. Nor can installing sound equipment for the fashion parade be so regarded. 340 Regulations 73(1), (2) and (3) and 74(1) proceed on the basis that the defendant carries out "any construction work". Regulation 75 proceeds indirectly upon the same basis in that it provides that wherever by this part (Part 5) of the Regulations it is required that a floor, platform, landing, working place, stairway or stairway landing, excavation or hole, or an opening in a floor, roof, platform or landing, or that any other place shall be fenced, then such fencing shall be effected by one of the methods specified or permitted. 341 Part 5 of the Regulation deals, as its heading indicates, with the carrying out of construction work and measures to be taken for securing the safety and health of persons engaged in such work. 342 In my opinion neither the defendant nor the plaintiff was engaged in construction work when adding lights to the lighting bar, re-focussing the lighting and providing and installing sound equipment for the fashion parade. 343 As to Regulation 73(1), the defendant did provide suitable and safe scaffolding if the Tallescope was operated correctly by the plaintiff and is to be regarded as scaffolding. That included ensuring the locking mechanisms were fully engaged. The plaintiff did not operate the Tallescope correctly. Nor does a Tallescope Model 512 fall within the definition of scaffolding. 344 As to Regulation 73(2), the defendant did provide suitable and safe means of access if the Tallescope it provided was operated correctly by the plaintiff, as it should have been and probably was not. 345 At to regulation 73(3), the defendant purported to provide means, by fencing or otherwise, for securing the safety of the plaintiff at a place from which the operator (the plaintiff) would be liable to fall a distance of 1.8 metres. The workbox was intended to satisfy this requirement but it was in a poor state of repair. The defendant relied, and was entitled to rely, upon the failure to comply with Regulation 73(3) not being the cause of the accident. 346 As to Regulation 74, the defendant was not required to provide a safety belt, safety line, safety harness or safety net because there was no absence of any adequate handhold or foothold. If the Tallescope had been operated correctly by the plaintiff, the defendant had provided an adequate handhold or foothold. 347 As to Regulation 75, the defendant provided an adequate platform if the plaintiff operated the Tallescope correctly. Decision on statutory (or regulatory) counts 348 In my opinion the plaintiff's case on each of the statutory (or regulatory) counts has not been proven on the balance of probabilities and fails. 349 I regard this case as a very unsatisfactory one because of the lack of eyewitness evidence as to the cause of the collapse of Tallescope Model 512. On the present state of the evidence there will be a verdict for the defendant on all counts. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.