Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140
• Hearing dates: 10 and 11 October 2013Written submissions 22, 25, 26 October 2013
• Decision date: 06 May 2014
• Before: Beazley P at [1]; Macfarlan JA at [2]; Meagher JA at [3]

Decision

(1) Appeal and cross-appeal allowed in part.

(2) Set aside orders 1, 2, 3 and 4 made by McCallum J on 8 August 2012.

(3) Judgment for the first respondent against the appellant in the amount of $1,000,000.

(4) Judgment for the first respondent against the second respondent/cross-appellant in the amount of $582,600.

(5) Judgment for the second respondent/cross-appellant against the appellant in the amount of $436,950.

(6) Judgment for the appellant against the second respondent/cross-appellant in the amount of $145,650.

(7) Judgments in orders (3), (4), (5) and (6) take effect on 8 August 2012.

(8) The appellant pay 90 per cent of the first respondent's costs of the appeal.

(9) The second respondent pay 90 per cent of the appellant's costs of the cross-appeal.

(10) If the appellant or cross-appellant wish to apply to vary any costs orders made by the primary judge, direct that within seven days of this order they lodge written submissions in support of that application. The respondent should then lodge written submissions in response within seven days thereafter. In each case those written submissions should not exceed three pages. The Court will then determine that question on the papers.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence claims by employee of independent sub-contractor against his employer and principal sub-contractor - employee injured whilst dismantling birdcage scaffolding - scope of duty of care of principal sub-contractor where had assumed responsibility to devise and supervise safe system of work for employees of independent sub-contractor - whether evidence to support finding of breach of duty - TORTS - causation - no question of principle - TORTS - contributory negligence - whether employee's inadvertence and inattention compatible with conduct of a reasonable and prudent worker - relevance of repetitive and tedious nature of the work - DAMAGES - apportionment - no question of principle.
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(1)(f), 5B(1)(b), 5B(2)(c); Corporations Act 2001 (Cth), s 601AD; Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6(4); Occupational Health and Safety Regulation 2001 (NSW), cll 210, 224, 226; Workers Compensation Act 1987 (NSW), s 151N(2)
• Cases Cited: Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563; Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839; Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192; Joslyn v Berryman [2003] HCA 34; 214 CLR 552; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; 155 CLR 306; Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406; Smith v The Broken Hill Proprietary Co Ltd [1957] HCA 34; 97 CLR 337; Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16; Sungravure Pty Ltd v Meani [1964] HCA 16; 110 CLR 24; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
• Category: Principal judgment
• Parties: Waco Kwikform Ltd; (Appellant/Second Cross-Respondent); Michael Perigo; (First Respondent/First Cross-Respondent); Workers Compensation Nominal Insurer (Second Respondent/Cross-Appellant)
• Representation: Counsel: J E Maconachie QC, J C Chapman; (Appellant/Second Cross-Respondent); D J Higgs SC, D-L Del Monte; (First Respondenet/First Cross-Respondent); D P Kelly; (Second Respondent/Cross-Appellant); Solicitors: Yeldham Price O'Brien Lusk; (Appellant/ Second Cross-Respondent); Maurice Blackburn; (First Respondent/First Cross-Respondent); Gillis Delaney Lawyers; (Second Respondent/Cross-Appellant)
• File Number(s): 2012/275937

Decision under appeal

• Jurisdiction: 9111
• Citation: Michael Perigo v Workers Compensation Nominal Insurer & Anor (No 2) [2012] NSWSC 830
• Date of Decision: 2012-08-08 00:00:00
• Before: McCallum J
• File Number(s): 2009/297523

HEADNOTE

[This headnote is not to be read as part of the judgment]

P (the first respondent) suffered serious injuries on 16 May 2006 when he fell eight metres whilst dismantling scaffolding. At that time refurbishment works were being undertaken. The principal contractor in relation to those works contracted with Waco (the appellant) for the supply, erection and dismantling of the scaffolding. Waco contracted with BTSS (P's employer) for the supply of scaffold labour services to erect and dismantle the scaffolding Waco was to supply.

P brought proceedings for negligence against Waco and BTSS. After BTSS was deregistered, P was given leave to continue those proceedings against its workers compensation insurer (the second respondent). The primary judge held that each of Waco and BTSS was negligent, that there was no contributory negligence on the part of P, and apportioned liability 75 per cent as to Waco and 25 per cent as to BTSS. A critical aspect of her Honour's reasoning was that following a serious accident involving another BTSS employee at a different site, Waco had assumed responsibility for devising and supervising the system of work to be followed by BTSS' employees when dismantling the scaffold.

Waco challenged the findings as to scope of duty of care, breach, causation, contributory negligence and apportionment. The insurer cross-appealed against the findings as to breach, causation and contributory negligence. It did not challenge the conclusion that BTSS continued to owe P a duty of care as his employer. Although the claim against it was not subject to the provisions of the Civil Liability Act 2002 (NSW), BTSS did not contend that the issues raised by it engaged any materially different principles from those which arose under the common law as between P and Waco.

The principal issues were:

(i) the scope and content of the duty of care Waco owed P as an employee of its independent contractor; and, in particular, whether after 5 May 2006 that duty of care extended to taking reasonable care to ensure that work methods employed by BTSS were safe;

(ii) whether a safe system of work required that precautions be taken to bring to the BTSS workers' attention that the way in which particular bays in the scaffold had been constructed required that wooden rather than metal planks be used in the dismantling process;

(iii) whether, in the particular circumstances, there was contributory negligence by P.

The Court held, allowing the appeal and cross-appeal in part:

In relation to (i):

(per Meagher JA, Beazley P, and Macfarlan JA agreeing)

After an earlier incident at another site, following which Waco assumed primary responsibility for devising a safe work method, Waco's duty to exercise reasonable care extended to ensuring that the system of work adopted by BTSS for dismantling the scaffold was safe: [46]-[47].

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16; and Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 applied.

Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 referred to.

In relation to (ii):

(per Meagher JA, Beazley P and Macfarlan JA agreeing)

The primary judge did not err in finding that a safe system of work required that steps be taken to identify for the scaffolders the bays in which wooden rather than metal planks would be required in the dismantling process. In exercising reasonable care in devising that system, Waco and BTSS were required to take into account the possibility of inadvertence and carelessness on the part of the scaffolder: [62]-[63], [66]-[67].

Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; Smith v The Broken Hill Proprietary Co Ltd [1957] HCA 34; 97 CLR 337; Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192; McLean v Tedman [1984] HCA 60; 155 CLR 306 and Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 applied.

In relation to (iii):

(per Meagher JA, Beazley P and Macfarlan JA agreeing)

P's conduct was not merely due to inadvertence or carelessness and was incompatible with the conduct of a prudent and reasonable scaffolder. Accordingly, there was contributory negligence: [79]-[82].

Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563; Joslyn v Berryman [2003] HCA 34; 214 CLR 552; and Sungravure Pty Ltd v Meani [1964] HCA 16; 110 CLR 24 applied.

McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; 155 CLR 306 discussed.

Judgment

1 BEAZLEY P: I agree with Meagher JA.

2 MACFARLAN JA: I agree with Meagher JA.

3 MEAGHER JA: On 16 May 2006 the first respondent (Mr Perigo) suffered serious injuries when he fell eight metres whilst dismantling scaffolding in the Wentworth Park Grandstand in Glebe. At that time painting and refurbishment works were being undertaken to the roof of the grandstand. Axis Constructions Pty Ltd (Axis) was the principal contractor in relation to those works. It contracted with the appellant, Waco Kwikform Ltd (Waco), for the supply, erection and dismantling of birdcage scaffolding which provided access to the underside of that roof. That scaffolding was to be erected and dismantled in two stages. Waco contracted with Mr Perigo's employer, Bradley Tracey Scaffolding Services Pty Ltd (BTSS), for the supply of scaffold labour services to erect and dismantle the scaffolding which Waco was to supply.

4 Mr Perigo commenced proceedings for negligence against Waco and BTSS. After BTSS was deregistered (Corporations Act 2001 (Cth), s 601AD), he was given leave pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to continue those proceedings against its workers compensation insurer, the second respondent. The primary judge (McCallum J) held that each of Waco and BTSS was negligent: Michael Perigo v Workers Compensation Nominal Insurer & Anor (No 2) [2012] NSWSC 830. Her Honour also held that there was no contributory negligence on the part of Mr Perigo and apportioned liability 75 per cent as to Waco and 25 per cent as to BTSS.

5 By its notice of appeal Waco challenges her Honour's findings as to duty of care, breach, causation, contributory negligence and apportionment. By its notice of cross appeal the insurer challenges the findings as to breach, causation and contributory negligence. It does not challenge her Honour's conclusion that BTSS continued to owe a duty of care to its employee, Mr Perigo, to avoid exposing him to unnecessary risks of injury: [113]. Notwithstanding that any liability of BTSS was not subject to the provisions of the Civil Liability Act 2002 (NSW) (because of the application of s 3B(1)(f)), the insurer adopted the written and oral submissions of Waco in support of its appeal. It did so on the basis that the provisions of the Act applicable to those issues did not differ materially from the relevant common law principles.

6 There were two principal areas of controversy before the primary judge and in the argument of the appeal. The first concerns the scope and content of the duty of care owed by Waco to Mr Perigo as an employee of its independent contractor, BTSS. It was Mr Perigo's case, which the primary judge accepted, that because of events which occurred in early May 2006 and after the works had commenced, Waco's duty to take reasonable care extended to ensuring that BTSS adopted and implemented a safe system of work for its employees with respect to the dismantling process. On 5 May 2006 another BTSS employee, Mr Salisbury, fell from a roof at a building site in Bondi and sustained serious injuries. The primary judge held that from this time Waco "assumed control of the system of work for dismantling the second birdcage and substantial responsibility for the direct supervision of the workers whose task it was to follow" that system of work: [110]. Her Honour also found that Waco "did not consider it reasonable to entrust to Bradley Tracey control and supervision of the work system for dismantling the second birdcage": [109]. Each of those findings is challenged.

7 The second area of controversy concerns the question of breach and is whether a safe system of work required that precautions be taken to bring to the attention of the eight or so BTSS workers that the way in which particular bays in the scaffold had been constructed required that wooden rather than metal planks be used in the dismantling process. The primary judge held that steps should have been taken "to highlight for the workers during the dismantling phase the bays in which 'ledgers' had been used in place of 'transoms'"; and that the failure to do so "each morning" was a breach of the duty to implement a safe system of work: [154], [155].

8 This second question requires an understanding of the way in which the scaffold was constructed and as to the differences between the components used to form the square base of each bay in the scaffold structure.

Relevant facts

Scaffold structure

9 The scaffold was constructed in two stages. Each stage consisted of several rows of vertical stacks of bays to a maximum height of about 18 metres with the top bays providing a working platform of metal planks. When the first stage was completed those planks were in place on the top level of the scaffold. Each bay had a 2.4 metre square base. The vertical components forming part of each bay are known as "standards". The four components making up the base of each bay are known as "ledgers" and "transoms". The transoms are the two components forming the parallel sides across which the planks are placed. In traditional scaffolding (known as "tube and fit" or "tube and coupling" scaffolding) each of the transoms and ledgers is a metal pole. In the "kwikstage" modular scaffold system used at Wentworth Park the transoms were not cylindrical but purpose-designed to hold metal rather than wooden planks. Viewed in cross-section they were shaped like an inverted T and retained the metal planks within the lip provided by the foot of that T. The ledgers used in that system were metal poles.

10 During the construction of the first stage of the scaffold each bay was built using modular transoms and two traditional ledgers. However, during the erection of the second stage there was a shortage of the modular transoms. As a result, in some bays, generally higher in the structure, one or two cylindrical ledgers were used as transoms. That use of ledgers as transoms also created a need for the use of wooden rather than metal planks. Wooden planks were used because they were longer and could extend safely beyond the middle axis of the ledger. They were also heavier and for that reason there was more friction between the plank and the metal pole. The metal planks used in the modular system were shorter and prone to slip sideways if used on a cylindrical ledger or ledgers.

11 In the dismantling process the scaffolder works along each row of bays removing planks from the level immediately above and placing them on the base of the level on which he is standing so that the scaffolder, as he moves forward, creates a working platform one level down from the level being dismantled. This method of dismantling meant that if the base onto which planks from the bay above were being placed consisted of one or two ledgers, instead of modular transoms, it was necessary to use wooden planks so as to provide a stable platform for the scaffolder to work on. Those planks were longer and heavier than the metal ones.

Circumstances of the accident

12 At the time of the accident Mr Perigo was dismantling the second stage of the scaffold. He was working along a row of bays more than eight metres above the ground, removing metal planks from the level above and placing them on the base of the bay on the level at which he was working. He wore a harness with a single lanyard. That lanyard was to be attached to the vertical standard either immediately behind or in front of him depending on how many planks he had lifted from the level above to form the working platform on which he stood as he moved forward. On the day in question Mr Perigo had started work at 7 o'clock. He had a 45 minute lunch break at 10.00am and the accident occurred at about 1.30pm. His normal work day finished at 3.00pm.

13 Mr Perigo estimated that he would dismantle about 20 bays per hour. In so far as that process involved the use of the lanyard he described its use as follows:

"I would hook up to the scaffold, go about my business, half way through the bay I would unhook, hook up to the next standard, go about my business, get into the next bay, go about my business, get half way through, unhook, rehook throughout the day."

The "business" is that of removing each metal plank from the level above and placing it on the base of the bay on which he was standing. He also described that activity:

"... we'd get down onto the next deck below, start off with grabbing the boards from above our heads in 2 trannies, transoms, pull it out, drop it at my feet into 2 transoms, step on that board, move to the next board, grab it, put it at my feet, step on that one, grab the next one above my head and so on and so on all day throughout - from bay to bay to bay."

And:

"... you have to actually dislodge [the plank being removed] by pushing the right side, depends on what hand you are, usually for me it was the right side, push it to the right so that it could free down here, bring it down and then drop that one in your right-hand transom and drop that into the other transom so it fits snugly in."

14 In the bay at the level at which Mr Perigo was working when he fell, the component on his left was a cylindrical ledger and that on his right was a modular transom. Mr Perigo said that if he did not have two transoms "the only way to safely move across [the relevant bay] is to use overhanging wooden boards" and that had he appreciated that the component on his left was a ledger rather than a transom he would have known it was "necessary to go and get timber boards". Mr Perigo said that he did not notice that the component on his left was a ledger rather than a transom.

15 In a statement made to Waco's occupational health and safety manager about six weeks after the accident, Mr Perigo is also recorded as having said:

"The accident - I placed the board in the transom (when looking at right side) dropped board in, it fitted OK. It must have been in place. I did not check the left side (where the ledger was). I placed three or four boards, stepped on them.

As I was falling I thought the harness would take up. ..."

16 In his oral evidence as to what he did when placing the three or four boards on the base of the bay from which he fell, Mr Perigo said:

"I've just grabbed it, put it into the transom, and then the common thing is to just because you think there's a transom there you put it in, drop it down, go for the next one."

The primary judge accepted this evidence and found that at the time of the accident Mr Perigo had moved three or four metal planks from the level above to the level on which he was standing: [32]. Her Honour also held that he was wearing a harness which had only one lanyard; that the lanyard was not hooked "to the standard at the outset of his work on the bay from which he fell": [84]; and that Mr Perigo's failure to attach it was due to inadvertence or inattention: [184]. These findings are not challenged.

The period before 5 May 2006

17 Because the work of erecting and dismantling the scaffold was "high risk construction work", a site specific occupational health and safety management plan had to be prepared before the work commenced. Axis, as the "principal contractor", was required to ensure that plan was prepared: Occupational Health and Safety Regulation 2001 (NSW) (the OHS Regulation), cll 210, 226. The plan had to include "safe work method statements for all work activities assessed as having safety risks". A safe work method statement (SWMS) is a statement that describes "how the work is to be carried out, identifies the work activities assessed as having safety risks, identifies those safety risks and describes the control measures to be applied to those work activities": cl 224.

18 Axis prepared an occupational health and safety management plan (the OHS plan) for the scaffolding works which were to be undertaken by Waco. That plan identified BTSS as subcontractor and provided for a line of reporting in respect of occupational health and safety matters from Mr Tracey, BTSS' nominated site supervisor, to Mr MacAskill as site supervisor for Waco, to its branch manager, Mr Geoffrey. Mr Pade was identified as Waco's occupational health and safety manager . Mr MacAskill's responsibilities were described as including co-ordinating with BTSS to ensure safe practices on the site, ensuring that BTSS had attended site specific induction meetings and ensuring that BTSS had understood the SWMS. The OHS plan also provided (cl 12.1) that Waco would by its site supervisors monitor the key elements of scaffold erection, alteration and dismantling "during regular inspections of the scaffolding".

19 BTSS' roles and responsibilities under the OHS plan were described in Appendix C and included ensuring that all works were conducted in a manner that was safe and without risk to employees' health and safety and facilitating the preparation of a SWMS for scaffolding tasks. Appendix D was a SWMS consisting of two parts - one for Waco which addressed the delivery to and return of the scaffold from the site; and one for BTSS which covered the unloading, erection and dismantling of the scaffold. In relation to the activity of dismantling the scaffold the original SWMS identified as a risk having the potential to "kill or permanently disable" the risk of "falling from the scaffold". There was no reference in this first SWMS to any requirement that a scaffolder wear a harness or as to there being any need, as part of the dismantling process, to have timber planks available for use in the event that one or two ledgers had been used as transoms.

20 The subcontract between Waco and BTSS provided by cl 17(b) and (c):

"(b) It is the responsibility of the Subcontractor to ensure that:

(i) All scaffolders to be employed by the Subcontractor on the Site, will via a 'tool box' meeting or other training, have read and understood all aspects of each Work Method Statement issued;

(ii) In respect of each Work Method Statement it will promptly furnish Waco Kwikform with an acknowledgement in the form set out in Schedule 5, signed by all of the scaffolders employed on the Site confirming that the Work Method Statement has been discussed understood and agreed to.

(c) The development of the Work Method Statement will not relieve the Subcontractor from its obligation to develop its own work method statement or alter or affect the Subcontractor's liabilities, responsibilities or obligations for occupational health and safety and specifically the Subcontractor's obligation to ensure that its employees work in a safe manner.

21 Works on the erection of the first stage of the scaffold commenced in about January 2006 and proceeded for two to three weeks. Over the following period that stage of the scaffold was dismantled and the second stage erected. In late April or early May the dismantling of the second stage commenced. Mr Perigo agreed that when he started work dismantling the scaffold he knew that there were ledgers where transoms would have normally been used and that as a result he had to be careful. The fact that ledgers had been used as transoms was also known to Mr Pade and Mr MacAskill of Waco.

The position after 5 May 2006

22 As a result of the incident at the Bondi site on 5 May 2006 a number of things happened. Mr Mill, an executive general manager of Waco, decided, because of that accident and an earlier incident in January 2006 which involved the death of a BTSS scaffolder, that Waco would no longer subcontract with BTSS for the supply of scaffold labour services. He also determined that Waco should terminate immediately BTSS' involvement at the Wentworth Park site. However, following a meeting called by the relevant union, the CFMEU, Mr Mill agreed to allow the nine remaining scaffolders employed by BTSS to finish the job at Wentworth Park. There followed discussions between representatives of Waco, BTSS, that union and WorkCover. A revised SWMS was prepared and work on the site resumed on 12 May 2006, in circumstances which are considered in more detail below when addressing the arguments on appeal.

Scope of duty of care of Waco (grounds 1 to 8)

The decision of the primary judge

23 The primary judge found that before 5 May 2006 Waco had acted reasonably in organising and engaging the services of BTSS as an independent contractor competent to control the system of work for the erection and dismantling of the scaffold. Whilst it retained a supervisory function "at a high level", it was under no continuing duty to prescribe and enforce a safe system of work for the dismantling of the scaffold: [107]. However, the position was different after that date. The critical findings are in [109] to [112], as follows:

"[109] ... As discussed above, the evidence clearly demonstrates that, after 5 May 2006, Waco did not consider it reasonable to entrust to Bradley Tracey control and supervision of the system of work for dismantling the second birdcage.

[110] I am satisfied that, from 5 May 2006 and in light of the review of procedures precipitated by Mr Salisbury's fall, Waco assumed control of the system of work for dismantling the second birdcage and substantial responsibility for the direct supervision of the workers whose task it was to follow the system of work prescribed by Waco. That emerges clearly from the evidence of Mr Mill and Mr MacAskill set out above."

...

[112] Accordingly, I am satisfied that, from 5 May 2006, the content of Waco's duty of care to Mr Perigo extended to controlling the system of work and participating in the direct supervision of Bradley Tracey's employees."

The arguments on appeal

24 Waco challenges the primary judge's conclusion that after 5 May 2006 its duty to exercise reasonable care extended to ensuring that the work methods employed by BTSS were safe. It submits that in so concluding the primary judge erred in applying the relevant principles and in findings made as to what happened after 5 May 2006.

25 Specifically, it is submitted that her Honour's conclusion imposes a duty of care on Waco in relation to its independent contractor, BTSS and its employees, which is contrary to the principles stated in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at 47-48 (Brennan J) and affirmed in Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 at [20] (French CJ, Gummow, Hayne, Heydon and Bell JJ). It is also submitted that when determining the existence and scope of that duty, her Honour erred by attaching "too much significance", in circumstances where the OHS Regulation required that an SWMS be prepared, to the fact that Waco had prepared a revised SWMS for the work to be carried out by BTSS. In this context reference is made to the statement of the Court in Leighton Contractors at [49]:

"While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law."

26 Waco challenges several of the primary judge's findings. They include the findings that after 5 May 2006 it did not consider it reasonable to entrust to BTSS control and supervision of the system of work for dismantling the second stage: [109]; that after 5 May 2006 it decided that it was necessary to develop a revised safe work statement: [43]; and that after 5 May 2006 it assumed control of the system of work for dismantling the scaffold and also assumed substantial responsibility for the direct supervision of the BTSS employees: [110].

27 It is convenient first to deal with the challenges to these findings of fact.

Challenges to findings of fact

28 The challenged findings are principally based on the evidence of Mr Mill, Waco's general manager, and Mr MacAskill, its nominated site supervisor, and the content of the revised SWMS prepared on 11 May 2006.

29 The major reason for Mr Mill's initial decision to terminate BTSS' involvement was because of its poor safety record. Following discussions with the union and WorkCover, Mr Mill decided that "for the remainder of the Wentworth Park job a Waco employee would be on-site at all times to oversee the dismantling of the scaffold": [40]. That involved a change to the position which applied before that time. That position was that Waco supervisors would "only sometimes" visit the site which, in Mr Mill's words, involved "dropping in from time to time between other jobs".

30 The instruction Mr Mills gave to Mr Geoffrey, the Sydney branch manager, after 5 May 2006 was that one of Waco's project managers should be present at all times until the scaffold was dismantled. That project manager was to "supervise the dismantling of the scaffold from a safe position away from the scaffold [and to] ensure as far as possible that the revised SWMS is followed and to look out for any obvious safety concerns".

31 Mr Geoffrey spoke to Mr MacAskill, the site supervisor, and told him that the union and WorkCover had become involved and were not happy with BTSS' safety record and the work method statement used on the job at Wentworth Park. Mr MacAskill's evidence was that Mr Geoffrey said:

"Waco Kwikform will have to take over all responsibilities for the work method and supervision of workers on Bradley Tracey's jobs to ensure that the jobs could be completed."

Mr MacAskill also gave evidence that either Mr Geoffrey or a Mr Steel, the Waco sales manager, said to him that "close supervision of the Wentworth Park job will be taken over by Waco" and:

"You, or someone else when you cannot be there, must put yourselves in a position where you are in full view of all men on the scaffold while they are working. You and Waco supervisors are to enforce the work method statement. You have to ensure that all workers are using their harnesses at all times and if any worker is not wearing a harness, you must tell them that they are to get off the scaffold."

32 Mr MacAskill's evidence was that the revised SWMS "came about" as a result of discussions with "the union and then WorkCover". The first version was prepared and signed by Mr Pade, Waco's occupational health and safety manager, and dated 11 May 2006. It related specifically to the activity of dismantling the second stage of the scaffold which was expected to commence on 12 May and conclude by 26 May 2006. It required that the scaffolders responsible for moving decks from one bay down to the next level wear safety harnesses which were to be attached "to adjacent standard by approved double lanyard". (That would mean that at any point in time the scaffolder would have at least one lanyard attached to a standard). The revised SWMS also drew a distinction between the task of moving "top deck down to next lift of transoms" (Ref. 5.0) and the task of moving "top deck down to next lift of ledgers" (Ref. 5.1).

33 Each of these activities was said to involve the risk of "falling from scaffold" which had the potential to "kill or permanently disable". The first (Ref. 5.0) describes the task of moving the top deck of steel boards down to the next level assuming modular transoms have been used at that level. In that case the "lift" down to the next level was to be undertaken by moving the top deck of metal boards down. The second (Ref. 5.1) describes the same task, the difference being that it assumes that cylindrical ledgers have been used as transoms. In that case the statement provides that a "timber deck" should be completed at each lift "along one full run of scaffold". Each of these descriptions of the relevant activities assumes by the references to "transoms" and "ledgers" and to "one full run of bays" or "one full run of scaffold" that one of the alternatives being addressed involved the use of two ledgers instead of two transoms along a full run of bays. Neither alternative addresses the possibility of the use of only one ledger instead of a modular transom and then only in one bay rather than in a full run of bays.

34 That revised SWMS was submitted to Axis and returned by it to Waco on 11 May 2006 with handwritten amendments. The amendments were minor but made clear that the personal protective equipment to be worn by the scaffolders included the "safety harness" with double lanyard described in the revised SWMS. The final version incorporated the amendments made by Axis. At an early morning meeting of the BTSS employees on 12 May 2006 (described in Waco documentation as a "Tool Box Talk") those employees were informed that all work to be performed by BTSS "must be in accordance with revised SWMS". Whereas the earlier records of these meetings identified as the relevant "supervisor" an employee of BTSS, the persons named as supervisor in the agenda for this meeting were Mr Tracey and Mr Semke, the nominated Waco site supervisor for that day. Although it appears that Mr Semke was not present at the meeting, he signed the agenda and a copy of the revised SWMS to acknowledge that he had read and understood its contents. At that meeting each of those employees also signed a copy of the revised SWMS to confirm each had "discussed and agreed with the controls and my responsibilities".

35 The findings at [43], [109] and [110] are justified on the basis of the evidence described above. Mr Mill's first reaction to the event of 5 May 2006 was to terminate BTSS' further involvement on the site because of concerns about its safety record. He was talked out of that position on a basis which required that a revised SWMS be prepared for the remaining work to be performed by BTSS, that it be prepared by Waco and that Waco supervise that work, not to the exclusion of BTSS, but so as to ensure that the revised SWMS was followed by BTSS' employees. At the same time BTSS was to agree to comply with the revised SWMS.

36 Waco contends that the primary judge's finding at [43] that it "decided" that it was necessary to develop a revised SWMS was wrong because it was Axis which decided that was necessary. That is contrary to Mr MacAskill's evidence, which was that after discussions between the union, WorkCover, Waco and BTSS it was agreed that Waco would take responsibility for the "work method"; and that as a result Mr Pade "designed a new work method statement" for the remaining works. Axis was involved at the end of that process because the SWMS formed part of the OHS plan for which, by cll 210 and 226 of the OHS Regulation, it was responsible. The evidence did not show that it was involved in initiating or preparing the draft revised SWMS. That being the evidence, the primary judge's finding that Waco "decided" it was necessary to revise the SWMS may overstate the position, which was that the decision was made at a meeting of the union, WorkCover and Waco. However, the significant fact remained that it was made clear to BTSS that Waco would take over responsibility for the revised work method and supervision of BTSS' workers.

37 Waco submits that nothing really changed after the "Salisbury incident" and relies on the following matters: Mr Perigo agreed that from 12 May 2006 his working responsibilities did not change and Mr Tracey continued to work on the scaffold; the subcontract between BTSS and Waco remained on foot; and that Mr Tracey continued to give instructions that the work had to be done in accordance with the revised SWMS. This evidence does not contradict or call into question the correctness of the primary judge's findings at [43], [109] and [110].

38 Waco also submits that its "full time supervisors" were only engaged to oversee at a high level and not to supervise directly the scaffolders. That submission is not supported by the evidence of its site supervisor, Mr MacAskill, who said:

"Q. Because Waco wanted - your instructions were to make sure this birdcage was dismantled as safely as possible?

A. Yes.

Q. Waco didn't want to have any more accidents; correct?

A. Nobody did.

Q. No, that's right. In effect, after the Workcover involvement, you were there to oversee the dismantling of the birdcage; correct?

A. Yes.

Q. Bradley Tracey still retained his usual authority in respect of his own men; didn't he?

OBJECTION (KELLY).

A. It was limited."

He also gave the evidence referred to in [31] above as to the instructions he received. Those instructions were to deal directly with BTSS employees in the event that they were not complying with the work method statement, by ordering them off the scaffold.

39 At [50] of the primary judge's reasons, when referring to cl 17 of the subcontract between Waco and BTSS, her Honour observed that the terms of the SWMS were ultimately Waco's responsibility. Waco takes issue with the correctness of that statement, pointing out that under the OHS Regulation it was Axis which was ultimately responsible for the preparation of the SWMS. That is so but is beside the point. As between itself and BTSS, Waco had agreed to "develop" the SWMS. At the same time BTSS had acknowledged that it was not released from its obligations to develop its own work method and to ensure that its employees worked in a safe manner (cl 17(c)). Owing to the events of early May 2006, Waco formulated a revised work method statement which specifically addressed how the remaining dismantling work was to be carried out and it did so without consultation with BTSS as to its contents.

40 Finally, Waco challenges findings of the primary judge relating to the period prior to 5 May 2006. Those findings, at [101] and [102], were as to Waco's having had "some" responsibility for the system of work which was required to be carried out by the scaffolders because it supplied the scaffolding system which was used and participated in the preparation of the original SWMS and reviewing that part of that SWMS prepared by BTSS.

41 Waco's written submissions take issue with the finding that these matters meant that before May 2006 Waco had a "substantial" role in the establishment of the system of work because that description of the extent of its role was not material to her Honour's subsequent conclusion as to the scope and content of the duty of care. That conclusion was based on Waco's response to the events of 5 May 2006: [110] Her Honour found that prior to that time Waco was justified in proceeding on the basis that it had engaged a competent contractor to undertake the activity of erecting and dismantling the scaffold: [105].

42 Waco's challenges to these findings of fact are not made out.

No error in application of relevant principles

43 In Leighton Contractors it was recognised at [20] that "in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe".

44 Those circumstances are described in Brennan J's statement of the relevant principles in Stevens v Brodribb at 47-48:

"An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman (1985) 59 ALJR 564 at 587; 60 ALR 1 at 42) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility."

45 It was Mr Perigo's case that in organising the activity of erecting and dismantling the scaffold, Waco was under a general law obligation to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It was not suggested that this obligation required that it retain control of the scaffolding subcontractor's system of work, or that it was unreasonable for Waco to subcontract that task. Nor was it part of Mr Perigo's case that in doing so Waco had failed to engage a competent contractor; or that at some stage it should have terminated its contract with BTSS because it no longer answered that description. Mr Perigo's case was that from 12 May 2006 Waco assumed control of its subcontractor's system of work because it was no longer satisfied as to its competence; and that in doing so its general law obligation to exercise reasonable care extended to the prescribing of a safe system of work to be employed by BTSS.

46 Contrary to the submissions made by Waco, that case respects the distinction that the common law draws between the duty a principal owes to its own employees and the duty it owes to its independent contractors and their employees. As the analysis above shows, Mr Perigo does not contend for a more extensive obligation in the circumstances of this case than that recognised in Stevens v Brodribb. Here the primary responsibility for the adopting and following of a safe system of work with respect to the task of dismantling the scaffold was assumed by Waco. From that point in time it had taken primary responsibility for adopting such a system out of the "contractor's hands": see Stevens v Brodribb at 48; Leighton Contractors at [59].

47 That conclusion accords with the following statement of the Court in Leighton Contractors at [59]:

"However, provided that the contractor was competent, and provided that the activity of concrete pumping was placed in the contractor's hands, [the principal] was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor or those with whom the contractor subcontracted."

48 It is also consistent with the statement of this Court (Allsop P, Beazley and Giles JJA) in Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 at [122] that a principal contractor which has engaged an independent contractor to perform an activity nevertheless might owe a duty to an employee of the independent contractor to exercise reasonable care in the supervision of that employee's work where there has been an assumption of responsibility for that supervision by the principal contractor.

49 For these reasons, Waco's submission that the primary judge's conclusion as to the scope of Waco's duty of care was contrary to these principles must be rejected. So also must its submission that it did not extend to the exercise of reasonable care in relation to the devising of a safe system of work for BTSS' employees.

50 The remaining argument made on behalf of Waco in relation to its duty of care concerns the significance of Waco's preparing the revised SWMS which is referred to in [25] above. The passage relied upon in Leighton Contractors accepts that "obligations under statutory or other enactments have relevance to determining the existence and scope of a duty". Here the primary judge did not seek to impose, by reference to the existence of any such obligation, a more stringent or onerous burden on Waco than arises under the general law, or do so other than in accordance with the principles in Stevens v Brodribb. Those principles direct attention to whether the principal has placed a discrete activity in the hands of an independent contractor, on the basis that it is competent to and will exercise control of its own systems of work in relation to the conduct of that activity. That consideration made it necessary in this case to address the events following 5 May 2006 and in particular to address what was proposed as between Waco and BTSS with respect to the adoption and supervision of a revised system of work. Her Honour undertook that exercise in accordance with those principles. This remaining argument also must be rejected.

Breach of duty of care (grounds 9 to 12 and 16)

The decision of the primary judge

51 At [127] the primary judge observed:

"By the end of the hearing, I did not understand the plaintiff to maintain that Waco's failure to supply enough transoms for the second birdcage, or Bradley Tracey's use in that circumstance of ledgers in place of transoms, was in itself negligent. The plaintiff ultimately relied upon the fact that the modular system was departed from rather as a circumstance that created an additional risk, prompting the need to revise the system of work in light of the change."

52 As formulated in final address, that case was that where ledgers had been used in place of transoms, that "ought to have been highlighted at toolbox talks each morning during the dismantling phase". It was submitted that "an inspecting scaffolder" should have been required to move through each section of the birdcage before dismantling scaffolders worked through those sections. The primary judge accepted this argument, concluding at [155]:

"I am satisfied that the failure to identify each morning the bays in which ledgers had been used in place of transoms, so as to highlight for the scaffolders the places where they would need to use wooden planks, was a breach of the applicable standard of care."

53 In reaching that conclusion, her Honour reasoned as follows. Ledgers were used sporadically during the construction of the second stage: [19], [142]. The use of one ledger with a transom rather than two ledgers in parallel was "unusual": [22], [30]. Where a ledger or ledgers had been used instead of a transom or transoms it was necessary to use wooden planks in that bay: [29]. The relevant risk of harm to the scaffolder engaged in the dismantling activity was that he might fail to observe that a ledger or ledgers had been used and as a result "lift" the metal planks from above and place them in the bay at the level at which he was working; and that those planks would be unstable causing him to lose balance and fall: [152].

54 The experts retained by the parties (Dr Baigent for Waco and Mr Campion for Mr Perigo) expressed different views as to whether an experienced scaffolder was likely to have observed the use of the ledger on the left side of the bay in which Mr Perigo was working. Dr Baigent considered that it would have been obvious to an experienced scaffolder that a ledger had been used when the first metal board was placed down. Mr Campion was more equivocal, stating that he would not necessarily have expected an experienced scaffolder to pick up that the ledger had been used. He accepted, however, that an experienced scaffolder was likely to have become aware of the presence of the ledger after putting down three boards: [145]-[146].

55 The primary judge considered, taking into account the impact of the "tedium and repetition" involved in the activity, that whilst the risk of the scaffolder failing to notice the ledger may have been "relatively small", the consequence of his failing to do so entailed a substantial risk of death: [152], [153]. That being the case, her Honour concluded that a reasonable person seeking to devise a safe system of work would have required that it include the taking of steps to identify and highlight in advance the bays in the scaffold in which a ledger or ledgers had been used as a transom or transoms: [154], [155].

56 The steps to which her Honour refers are those described at [144]:

"Since no steps were taken during the construction phase to identify the bays in which ledgers had been used in place of transoms, the only way to give the crew an understanding as to where they would need wooden planks and where they would be able to use metal planks was by means of such an inspection each morning or, indeed, periodically throughout the day."

The inspection referred to is one involving a scaffolder moving "through each section of the birdcage before the dismantling scaffolders proceeded each day" for the purpose of identifying where ledgers had been used in place of transoms: [144]. That being the case, her Honour's observations that "the expense, difficulty and inconvenience of taking" alleviating action were small and that the burden of doing so was "negligible" are to be understood as being that such a visual inspection could have been undertaken each morning or periodically throughout the day with little expense, difficulty and inconvenience: [152], [153].

The arguments on appeal

57 Waco challenges two aspects of this reasoning. First, it says that her Honour erred in not concluding, in accordance with Dr Baigent's opinion, that an experienced scaffolder "ought to have identified that he was dealing with a transom on one side and the ledger on the other". It is submitted that such a finding would have required a different assessment as to whether the risk of harm was "not insignificant" (s 5B(1)(b) of the Civil Liability Act) and as to the probability of its occurrence being "relatively small" (Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47).

58 Secondly, it says that there was no evidence to support the conclusion that the burden of undertaking visual inspections in the morning or throughout the day was "negligible" as her Honour concluded (s 5B(2)(c) and Wyong Shire Council v Shirt at 47). The particular findings for which it is submitted there was no, or no sufficient, supporting evidence are those in [144], [154], [155] and [178]. Waco argued that because there was little or no evidence as to how bays in which ledgers had been used might be highlighted, "it was impossible to address issues of practicability and reasonableness" which must be considered in the breach analysis, whether under the Act or the common law.

59 Partly in response to these arguments, Mr Perigo sought to support the primary judge's conclusion as to breach on the ground that Waco and BTSS at least should have warned the scaffolders, following the resumption of work, that there was a significant likelihood that they might encounter some bays in which a ledger had been used as a transom. At a late stage Mr Perigo sought leave to file a notice of contention in support of that argument. Waco opposed that application on the basis that it was made too late and without any adequate explanation. It was also said that it would be futile to grant leave because each of the grounds relied upon by way of contention "must fail". The insurer took the same position.

60 Finally, by its written submissions, Waco argues that for the purpose of addressing the question of breach of duty, the relevant risk of injury which it was required to take precautions against was not the risk described by the primary judge at [152] but whether "BTSS might not take reasonable care for the safety of Perigo by failing to observe the requirements of the SWMS as a result of which [he] might fall and be injured". The primary judge is said to have erred in failing to address that risk of harm.

No error in finding breach of duty

61 The last of these arguments may be dealt with briefly. The primary judge was required to address the risk of harm which Mr Perigo alleged was foreseeable and against which it was said that Waco and BTSS did not take reasonable precautions. That risk was that a scaffolder engaged in dismantling the second stage would become unbalanced and fall because he had not observed the use of a ledger instead of a transom and for that reason used metal instead of wooden planks. Mr Perigo's case was that the precaution which should have been taken was to adopt a system of work which included identifying the bays in which wooden planks were required because ledgers had been used instead of transoms. He did not make a case that Waco's duty of care required that it address any other risk of harm. Waco's submissions which address a differently formulated risk of harm that is not part of Mr Perigo's case are irrelevant.

62 The inquiry as to what precautions a reasonable person would have taken in response to a foreseeable risk of injury is a prospective one: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [105], [124], [126] per Hayne J. In the employment context, if there is a real risk of injury to an employee in the performance of a task, the employer must take reasonable care to avoid that risk either by devising a method of operation for the performance of the task that eliminates it or by providing adequate safeguards to minimise it. In considering whether a particular task involves a real risk of injury, there must be taken into account the possibility of thoughtlessness, inadvertence or carelessness on the part of the employee in the performance of his or her task, particularly where it involves repetitive work: see Smith v The Broken Hill Proprietary Co Ltd [1957] HCA 34; 97 CLR 337 at 343 (Taylor J); Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 218 (Gibbs J); McLean v Tedman [1984] HCA 60; 155 CLR 306 at 312 (Mason, Wilson, Brennan and Dawson JJ); Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12] (per curiam).

63 The primary judge assessed the relevant risk of harm as being "relatively small" and not insignificant. In doing so her Honour is not shown to have erred. Dr Baigent's evidence, even if accepted, could not determine the outcome of that assessment. The primary judge did not give much weight to the views of either expert because neither took account of the repetitive nature of the activity in which Mr Perigo was engaged: [147]. Her Honour's finding that that activity was repetitive and tedious was justified in the light of Mr Perigo's evidence. It is also relevant in this context that at no stage was it suggested that Mr Perigo's description of the way in which he dismantled the scaffold involved any departure from that activity as ordinarily undertaken; being a departure which might not reasonably have been foreseen by Waco or BTSS. In the way he went about the dismantling task the risks which Mr Perigo faced were that he might overlook the need to check first that there were no ledgers used as transoms before he commenced lifting planks down into the new bay; and that in doing so he would focus only on the transom on his right and not check to see whether there was a ledger on the left. Those inadvertent or careless acts and omissions were foreseeable and, because of the attendant risk of serious harm, were not such that they could be ignored.

64 The primary judge held that the precautions which a reasonable person in the position of Waco and BTSS would have taken were to undertake a visual inspection of the scaffold each morning, or periodically throughout the day, to identify the bay or bays where it was necessary to use wooden planks because a ledger or ledgers had been used instead of a transom: [155]; and to communicate that information to the relevant scaffolder. Waco submits that there was no evidence from which her Honour could find that such an inspection would have enabled the identification of those bays and could have been carried out safely and without difficulty, inconvenience and unnecessary expense. Her Honour made findings addressing those questions at [152], [153] but did not refer to any evidence supporting them, except perhaps for the evidence of Mr Campion.

65 Mr Campion's evidence was that the use of a ledger or ledgers as a transom meant that wooden planks were required in the dismantling process and that this "needed to be known or made obvious to the scaffolder". In cross-examination, in response to a question as to how that might be brought to the attention of the scaffolder, Mr Campion said (in an answer which is set out as it appears in the transcript):

"As I have stated in my report and I think opined slightly differently in the joint report, can be done a number of ways. Not necessarily the same person or group of people who erected the scaffold dismantle it. We can't presume the person dismantling had prior knowledge of putting it up. One of the ways it could be done is marking up progressively and the plan as the scaffold is being built what parts are in which situation. At a toolbox talk, pre-start meeting every day, you go through the crew what they were going to do that day and they would have an understanding of what they were working on, whether a dismantling bay that was needed wooden planks or a dismantling bay that requires steel planks."

66 In terms that answer only identifies one of the ways in which knowledge as to the identity of the bays in which ledgers had been used as transoms could be obtained so as to be communicated at an early morning meeting. The answer assumes that there are other ways, but does not identify them. The primary judge at [144] must be taken to have found that those other ways included an inspection of the scaffold as erected. Her Honour described that as a "necessary corollary" of Mr Campion's evidence which was given in circumstances where it was also established that no "as-built" plan of the second phase of the scaffold had been prepared.

67 There was evidence, not referred to by the primary judge, that supports her Honour's finding that periodic inspections of the scaffold could have been made as it was being dismantled. That evidence addressed two matters. The first was the dismantling process which involved the scaffolder constructing a series of decks (referred to as dismantling or reverse erection decks), each of which was constructed immediately below the deck being dismantled. Her Honour's finding that the dismantling phase of the scaffolding was the reverse of the construction phase, requiring the scaffolders "to bring the whole platform down from the top to the ground, level by level, plank by plank" was no doubt informed by such evidence: [27]. The second was that on each day during the construction phase a leading hand scaffolder, such as Mr Perigo, would "go around" the scaffold to check that things were being built properly. That evidence, considered with Mr Campion's evidence, provided a sufficient basis for her Honour's conclusion, that in the process of dismantling the scaffold, inspections could have been carried out to determine where ledgers had been used as transoms. The logical time for that to occur was before the dismantling scaffolder commenced to work on a particular row of bays in a dismantling deck. That inspection would have resulted in the identification of bays which required wooden planks. That fact was then available to be communicated in advance to the scaffolder who was to work on that bay. The undertaking of that inspection did not require any additional resources or involve risks which were not already undertaken in the process of constructing and dismantling the scaffold. As in my view there was evidence to support her Honour's conclusion that visual inspections could have be undertaken periodically with little expense, difficulty and inconvenience, Waco's second argument also must be rejected.

68 This conclusion makes it unnecessary to consider Mr Perigo's notice of contention.

Causation (ground 13)

The decision of the primary judge

69 As to causation, her Honour concluded at [178]:

"I am satisfied that, but for the failure to highlight the areas in which ledgers were filling the role of transoms, Mr Perigo probably would not have overlooked the ledger in the bay from which he fell and would have called for wooden planks in that bay. He was an experienced and able scaffolder. Neither defendant suggested that his failure to use wooden planks was due to anything other than the failure to observe the ledger on his left. The transom on his right was apt to mislead or distract him in that regard."

70 The primary judge rejected Waco's argument that Mr Perigo's failure to attach his harness to the standard meant that its negligence was not a cause of his injuries: [172]. Her Honour did so on the basis that had he been told of the bays in which ledgers had been used as transoms (being the bays that required the use of wooden planks) he would not have overlooked the use of the ledger as a transom and would have called for and used wooden planks in that bay.

The argument on appeal

71 Waco challenges that finding. It is said that because the finding of breach was "dealt with at a high level of generality" it could not be concluded that Mr Perigo would have acted any differently. In support of that argument it is pointed out that Mr Perigo was not put on notice of the presence of the ledger on his left side although it could have been seen from where he was working facing the bay and notwithstanding that he had lifted three or four metal planks from the level above and placed them in that bay before he lost his balance and fell.

72 Reference is made, in particular, to the evidence of Dr Baigent that placing a metal plank on the ledger on the left would have "felt different" and meant that the plank as laid down was not flat but at a slight angle. Each of those matters was rejected by the primary judge as a reason for concluding that it was likely that an experienced scaffolder in Mr Perigo's position would have noticed the presence of the ledger on his left: [149], [150].

No error in finding as to causation

73 It is not correct that the primary judge made no finding as to the "form of highlighting". The primary judge's reference to the "failure to highlight" in [178] is to be understood having regard to her earlier finding that the negligence was the "failure to identify" the bays in which ledgers had been used in place of transoms", so as to "give the crew an understanding as to where they would need wooden planks and where they would be able to use metal planks": [144], [155]. That finding does not descend into detail as to how precisely the identification was to occur - by marking the particular bays, providing the scaffolder with a rough plan of each deck or run of bays which showed where the relevant bays were or by pointing out, at the commencement of each run of bays, where in that run ledgers had been used as transoms. At a minimum, discharge of the duty required that the scaffolder be told where there were bays in which it was necessary to use wooden planks.

74 The question for the primary judge was whether, had Mr Perigo been given that information, he would have called for and used wooden planks in the bay from which he fell. That question was to be considered on the basis that had Mr Perigo been aware of that need to use wooden planks, he would have done so: [178].

75 Mr Perigo's evidence indicates that he did not check that there was a transom on the left side before he commenced working on the bay in question. Although he was aware that ledgers had been used as transoms in the second phase scaffold, he was not aware that that was the position in relation to the particular bay he was about to work on or even in relation to a bay or bays in the run on which he was working. At the time of the accident Mr Perigo had been working for two and a half hours without a break and in that period had dismantled about 50 bays. In none of those bays had he encountered a ledger used as a transom. In those circumstances, with the benefit of knowledge that he was about to come across a bay in which a ledger had been used, the probability was, as her Honour found, that he would have checked and seen the ledger on the left side and called for wooden planks. Of course, that would not have been necessary if the bay had already been marked for that purpose.

Contributory negligence (ground 17)

The decision of the primary judge

76 The primary judge was not satisfied that there was any contributory negligence on the part of Mr Perigo, holding that his failures to attach the lanyard and to observe the ledger on his left side were both due to inadvertence or inattention resulting from the nature of the task which he was undertaking which was both "repetitious and arduous": [184].

The argument on appeal

77 The test for contributory negligence under s 5R of the Act and the common law is an objective one notwithstanding that it differs from the test for negligence in that it focuses on conduct of the actor which exposes him or her to the risk of injury without necessarily exposing others to such a risk: see Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563 at 570 (per Mason J); Joslyn v Berryman [2003] HCA 34; 214 CLR 552. Whether Mr Perigo was guilty of contributory negligence was to be assessed against the risk of injury to which he was exposed if he did not act as a reasonable and prudent worker in his position would have acted.

78 Mr Perigo had a general awareness that ledgers had been used as transoms in the upper part of the second phase of the scaffold. He did not agree that he was specifically aware that there were bays in which only one ledger had been used as a transom. Significantly, during the stage two dismantling works and before the accident he had not come across ledgers used as transoms. In these circumstances it is said by Waco that a careful and experienced scaffolder would have checked the components which had been used in each bay before lifting metal boards from the bay above. Mr Campion agreed that he would have expected that to occur. Waco also submits that such a scaffolder would have fastened the single lanyard on his harness to the vertical standard on his right before starting to lift boards into that bay.

There was contributory negligence

79 The primary judge treated this case as one involving inadvertence and inattention resulting from the repetitive nature of the task in which Mr Perigo was engaged. As Gibbs J (as his Honour then was) observed in Ruprecht at 568, referring to the often cited judgment of Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; 110 CLR 24:

"... in deciding whether the respondent was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention born of familiarity and repetition, and the man's preoccupation with the matter in hand, with a view to deciding 'whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man': Sungravure Pty Ltd v Meani, per Windeyer J."

80 In McLean v Tedman & Brambles Holdings Ltd, a garbage collector was hit by a motor vehicle as he was running across a road carrying a heavy garbage collection bin on his right shoulder. The majority (Mason, Wilson, Brennan and Dawson JJ) restored the trial judge's finding that in the circumstances there was no contributory negligence in the employee's failure to observe an oncoming vehicle as he crossed the road. The factors described as significant to that conclusion included that the system of work adopted by the garbage collectors involved running across the road to collect and return rubbish bins and keeping up with the garbage truck as it moved forward; that carrying the heavy bin on his right shoulder considerably restricted the collector's capacity to observe any oncoming vehicle or accurately to assess its speed; and that the performance of the task of carrying the bin required a degree of preoccupation with the matter in hand (at 315-316).

81 Here Mr Perigo was to dismantle each row of bays at his own pace. He had been told it did not matter how much time that took. The lifting of boards from the bay above did not impede his ability or capacity, as he finished dismantling planks from one bay, to see whether a ledger or ledgers had been used as a transom in the next. The tasks he had to perform were repetitive and had to be performed for long periods of time without a significant break. They were not, however, complex in the sense that they required attention to a number of matters happening at the same time. Furthermore, the fact that Mr Perigo was working eight metres above ground level continued to emphasise the need for him to be careful when finishing work in one bay and moving to the next because of the risk of serious injuries in the event of a fall.

82 The primary judge emphasised the repetitive nature of Mr Perigo's work in lifting planks down to the level below as supporting the conclusion that the fact that he did not see the ledger on his left did not involve a failure to take reasonable care on his part. In doing so her Honour's analysis does not, in my view, take sufficient account of the fact that Mr Perigo's method of work required that he move forward from one bay to another, lifting down boards from the bay above as he went. As each bay was finished it was necessary to check the components which had been used in the next bay to make sure that it did not require wooden planks. The fact that the task of lifting planks from the level above was repetitive or "robotic" (see [190]) does not explain why, to adopt the language of Mason J in Ruprecht at 574 "a reasonable and prudent man" in his situation "would have omitted to take an obvious and necessary precaution for his safety". Mr Perigo's failure to do so was, as Mr Campion's evidence suggested, incompatible with the conduct of a reasonably careful scaffolder.

83 The position in relation to Mr Perigo's failure to have his lanyard connected is different. He was provided with a harness which had a single rather than double lanyard. That meant, as his evidence showed, that the lanyard could not be hooked up at all times and that the process of unhooking and re-hooking as he moved forward in a row of bays was a difficult and dangerous one:

"A. ... so I would get half way through the bay, and then the lanyard would start to pull me back, so which makes it very difficult. So you would be, before you unhook that, if you have two, you unhook and lean over the hole and hook onto the standard in front of you.

HER HONOUR

Q. Could you reach the standard in front?

A. With a stretch, you could. It's a bit of a stretch, but you could get there and unhook that one."

84 Mr Perigo had only worn a harness with a lanyard on two or three occasions before May 2006. That was consistent with the joint evidence of Dr Baigent and Mr Campion that in 2006 it was not industry practice to use a harness in the dismantling process. As Mr Perigo had for a number of years performed the same work without any harness at all, his omission to do so in the bay from which he fell could fairly be explained as being due to a lapse of attention not incompatible with the exercise of reasonable care. For that reason, I am not satisfied that this aspect of her Honour's conclusion involved any error.

85 The conclusion that in one respect there was contributory negligence makes it necessary to apportion responsibility between Mr Perigo on the one hand and Waco and BTSS on the other. The assessment of that apportionment must take account of the extent to which each failed to act with due care and the relative importance of their respective acts or omissions in causing Mr Perigo's injuries.

86 In my view, an appropriate allowance for Mr Perigo's contributory negligence is 20 per cent. That negligence was in not checking the components which had been used in the bay before he lifted planks down to it. That omission was explained partly by the repetitive nature of the task he was undertaking, partly by the fact that before the day in question he had not come across any ledgers used as transoms and partly because of the use of the transom on his right and ledger on his left. It involved, however, precisely the kind of carelessness or inadvertence which the system of work that Waco and BTSS had a duty to devise should have taken into account. Had they done so the accident and Mr Perigo's injuries would not have occurred.

Apportionment (grounds 18 and 19)

87 Her Honour apportioned liability 75 per cent to Waco and 25 per cent to BTSS because the former had the principal responsibility for controlling the system of work as at 16 May 2006: [191]. Waco's submissions in support of its appeal against the primary judge's apportionment of liability are made on the basis that it was "remote from the actual doing of the work". They do not address the primary judge's conclusions as to liability, which have been upheld on appeal. Nor, more significantly, do they establish that the apportionment was unreasonable or plainly unjust.

Conclusion

88 The appeal and cross-appeal have been unsuccessful except in respect of the issue of contributory negligence. That success requires that the judgments entered in favour of Mr Perigo be adjusted to take account of the 20 per cent allowance for contributory negligence. In the case of the workers compensation insurer it is agreed that s 151N(2) of the Workers Compensation Act 1987 (NSW) requires that the 20 per cent adjustment only be made to the past economic loss component of the judgment. That amount is $337,000. As between Waco and that insurer, the amounts sought to be recovered by way of contribution determined in accordance with s 151Z(2)(d) must also be adjusted to take account of the reduced amount for which the insurer is liable.

89 As to costs, some allowance should be made for the limited success of Waco and BTSS on the issue of contributory negligence. The principal issues in the appeal were those concerning Waco's duty of care and whether there was a breach of duty by Waco and BTSS. Those issues were raised by Waco's appeal and the second of them also was raised by the insurer's cross-appeal. A reduction of 10 per cent of the costs of the appeal otherwise recoverable by Mr Perigo from Waco and BTSS is sufficient to take account of the additional costs incurred on the contributory negligence issue.

90 Finally, in a judgment delivered on 25 January 2013 (Perigo v Workers Compensation Nominal Insurer (No 3) [2013] NSWSC 6), the primary judge ordered that the first and second respondents "jointly and severally pay the plaintiff's costs of the proceedings". The proceedings below involved a six day trial in which each defendant contested liability, causation, contributory negligence and the apportionment of liability between them. Any costs incurred solely in relation to the contributory negligence issue are likely to have been minor. For that reason, notwithstanding the defendants' success on appeal on the issue of contributory negligence, I do not consider that any variation should be made to the primary judge's costs order, which reflects the plaintiff's overall success in the proceedings against each of the defendants.

91 In the circumstances, I propose the following orders:

(1) Appeal and cross-appeal allowed in part.

(2) Set aside orders 1, 2, 3 and 4 made by McCallum J on 8 August 2012.

(3) Judgment for the first respondent against the appellant in the amount of $1,000,000.

(4) Judgment for the first respondent against the second respondent/cross-appellant in the amount of $582,600.

(5) Judgment for the second respondent/cross-appellant against the appellant in the amount of $436,950.

(6) Judgment for the appellant against the second respondent/cross-appellant in the amount of $145,650.

(7) Judgments in orders (3), (4), (5) and (6) take effect on 8 August 2012.

(8) The appellant pay 90 per cent of the first respondent's costs of the appeal.

(9) The second respondent pay 90 per cent of the appellant's costs of the cross-appeal.

(10) If the appellant or cross-appellant wish to apply to vary any costs orders made by the primary judge, direct that within seven days of this order they lodge written submissions in support of that application. The respondent should then lodge written submissions in response within seven days thereafter. In each case those written submissions should not exceed three pages. The Court will then determine that question on the papers.

**********

Decision last updated: 06 May 2014