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NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
Abrahim v Parkview Constructions Pty Limited (No 2) [2013] NSWSC 95
Hearing dates:
12 - 16 September 2011 & 19 - 23 September 2011
Decision date:
19 February 2013
Jurisdiction:
Common Law
Before:
Adams J
Decision:

The first defendant is to pay 40% and the second defendant 60% of the plaintiff's judgment of 23 November 2012.

Catchwords:
Torts - negligence - joint tortfeasors - apportionment - liability of builder and scaffolder for accident on building site
Legislation Cited:
Law Reform (Miscellaneous Provisions) Act 1946
Cases Cited:
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529
Category:
Consequential orders
Parties:
Ronnie Abrahim (plaintiff)
Parkview Constructions Pty Limited (first defendant)
Erect Safe Scaffolding (Australia) Pty Limited (second defendant)
Bluestar Painting Solutions Pty Ltd (third defendant)
Representation:
B Dooley SC & G Hickey (plaintiff)
J Guihot (first defendant)
R A Cavanagh SC & S J Walsh (second defendant)
HJ Halligan (third defendant)
Drexler & Partners Lawyers (plaintiff)
A R Conolly & Company (first defendant)
Sydney Law Group (second defendant)
Hicksons Lawyers (third defendant)
File Number(s):
2010/18002

Judgment

Introduction

1In this matter judgment was given for the plaintiff against the first and second defendants (respectively the builder and the scaffolder) and for the third defendant against the plaintiff. The question then undecided was the appropriate contribution that the builder and the scaffolder should make to the judgment sum, each of these parties having cross-claimed against the other pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Recovery from each tortfeasor should be such amount "as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage".

The relevant test

2In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 the Court said (omitting references) -

[10] The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

The comparison of responsibility

3In the principal judgment I described in considerable detail the respective duties and failures of the scaffolder and the builder that led to the plaintiff's injury. It is unnecessary to repeat that account here. Briefly, the accident occurred because a scaffold plank fell to the ground with the plaintiff when he stepped onto it, thinking it was safe when it was not. The support on which the plank rested had been held in place by the removed plank, and moved away from the end of the remaining planks, most markedly that on which the plaintiff stepped. Had this plank also been tied to the support, the support would have remained in place even when the adjacent plank was removed and the accident would not have happened. The propensity for tradespersons to remove planks which were in place adjacent to walls to enable them to work on the wall, although they were continuously warned not to do so, was a notorious fact. Even accepting that the scaffolder expected regular and frequent inspections by the builder would reduce the risk of a dangerous scaffold causing an accident, there was always the distinct possibility that the inspection might overlook some problem and, of course, that an accident might occur between inspections. The obvious and simple solution, had the scaffolder thought of the problem as it should have, was to tie not only the plank nearest to the wall to the support but also the next plank. (Other, somewhat more elaborate steps to give rigidity to the support even if the planks were removed were available, but I did not need to consider them.) So far as the builder was concerned, it had put in place an inspection regime that, had it worked properly, would have picked up the fact that the plank on which the plaintiff stepped was unsafe. I held that the regime had not been complied with, whether as to timetable or adequacy of inspection.

Relative responsibility

4Both scaffolder and builder were aware of the danger posed by workmen removing or interfering with scaffold. Both were aware that this happened, if not often, certainly with dangerous frequency. In brief, the scaffold was safe so long as it was not interfered with, in particular by removal of the plank closest to the wall. Both the scaffolder and the builder were aware that interference of this kind was likely. Each had a duty to ensure that the thereby the scaffold was not rendered unsafe, the former by tying the second plank to the support so that, when the outside plank was removed, the support would not move and the latter, by undertaking its inspection regime, would ensure that unsafe scaffolding was repaired. It was, however, obviously possible that the interference might occur between inspections or that the dangerous effect of the interference might not be noticed. Having regard to the time frame mentioned in the principal judgment, the builder had a number of opportunities, had the asserted programme of inspection been undertaken, to observe the fact that the platform was unsafe. At the same time, prevention of the problem in the first place was plainly the preferable course and would have avoided the risk that the system of inspection on what was a busy worksite might fail.

Conclusion

5During argument, I was minded to think that the scaffolder and the builder should be regarded as equally responsible. However, on further consideration bearing in mind the matters referred to above I have concluded that the scaffolder's contribution to and responsibility for the accident should be assessed at 60% and the builder's at 40%.

6Accordingly, the first defendant is to pay 40% and the second defendant 60% of the plaintiff's judgment.

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Decision last updated: 05 April 2013