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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Urch v Meneguzzo & Ors  QSC 200
DALE ROBERT URCH
S 4100 of 2001
Supreme Court at Brisbane
30 June 2004
15-17 June 2004
The third and fourth defendants’ claims for contribution and indemnity against the first defendants be dismissed with costs, including reserved costs, if any, to be assessed on the standard basis.
CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – INCORPORATION INTO CONTRACT – IN GENERAL – whether the standard terms and conditions were incorporated into the contract between the first defendants and the third defendant
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – GENERALLY - whether the first defendants exercised a reasonable standard of skill and care
TORTS – JOINT OR SEVERAL TORTFEASORS – CONTRIBUTION – GENERALLY – whether the third and fourth defendants were entitled to contribution from the first defendants
Law Reform Act 1995 (Qld) ss 6, 7
Workplace Health and Safety Act 1995 (Qld) s 30(1)(b)
ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Henry Kendell & Sons v William Lillico & Sons Ltd  2 AC 31
Raimondo v State of South Australia (1979) 23 ALR 513
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
TNT Australia Pty Ltd v Christie  NSWCA 47
D O J North SC, with S A McLeod for the first defendants
C Newton, with P Hay for the third and fourth defendants
Bradley & Co for the first defendants
Deacons for the third and fourth defendants
- On Wednesday 6 May 1998, the plaintiff and another painter employed by the first defendants were standing on a swing stage suspended from the roof of the Collieries Union House, a six storey building in East Street, Ipswich for the purpose of cleaning its exterior preparatory to painting when a support at one end of the stage failed causing the plaintiff to fall to the ground.
- The swing stage was suspended at each end from shackles positioned on the end of a length of tubular steel referred to as a “needle”. Both needles protruded over the edge of the building by about 0.9 metre and rested on the top of a solid wall at the edge of the roof. At the other end, a distance of approximately 12 metres, the needle of the failed unit rested on a horizontal steel scaffolding pipe at a level a little below the top of the wall. The scaffolding pipe formed part of a constructed framework of scaffolding piping referred to as a “rostrum”.
- To form the rostrum, piping parallel with piece on which the needle rested, was placed on the top of the needle.
- The two horizontal members were secured, towards each end, to pieces of vertical piping, the bottom ends of which were inserted into two cylindrical steel sockets or rings on the side of a steel counterweight box. The box, of heavy steel construction, was designed to contain 25kg weights. Steel brackets or clips, described as “safety 90s” or “safety couplers”, were fastened to the vertical pipes under and above each ring. Other such clips were attached at the point at which each horizontal pipe touched each vertical pipe in order to secure one to the other, on each vertical pipe just above the uppermost horizontal pipe and on the bottom horizontal pipe on both sides of the needle. For want of a better description, I will refer to the two constructions on the roof as “scaffolding rigs”.
- The accident happened when the needle supporting the eastern end of the stage separated from the counterweight box and thus lost capacity to support one end of the stage. The needle and the rostrum were pulled off the roof onto the ground below.
- The first defendant contracted with the third defendant, Instant Access Australia Pty Ltd, to supply scaffolding to the site. Instant Access in turn contracted with the fourth defendant, Galraith Pty Ltd, to erect the scaffolding.
- By the time of trial the plaintiff’s claims against the first, third and fourth defendants had been compromised and the plaintiff had discontinued against the second defendant. The trial concerned the third and fourth defendants' claims for contribution against the first defendant.
The claims for indemnity and/or contribution by Instant Access and Galraith against the first defendants.
- Contribution claims are made under ss 6 and 7 of the Law Reform Act 1995 (Qld) on grounds that:
- the first defendant failed to secure the scaffolding to prevent tampering with it between installation and use;
- the first defendant failed to carry out any or any adequate inspection of the rostrum prior to the use of the stage; and
- the first defendant failed to observe in the course of its inspection of the rostrum that “a significant number of the couplings were missing from the scaffold tube passing through the outrigger to the counterweight box”.
- A claim for indemnity was also made under a hire agreement alleged to have been entered into between the first defendant and Instant Access. From the particulars of that allegation, it appears that Instant Access relied also on a course of conduct in order to incorporate in the written contract its standard conditions of hire printed on the back of the hire contract.
- Clause 6 of the standard terms, under the heading “HIRER’S OBLIGATIONS”, provided that the first defendant must:
“(e)Ensure the operators of the Equipment … use appropriate safety equipment and follow appropriate safety measures;
(h)Regardless of who is to erect the Equipment, be fully responsible for the safekeeping of the Equipment and must comply at (the first defendants’) own expense with all laws, ordinances and regulations which may affect the Equipment … including in particular, any occupational health and safety laws.
- Clause 7(a) of the standard terms provided:
“7.RELEASE AND INDEMNITY
(a)Except as provided in Clause 8, [the First Defendant] assume all risk of loss, damage or injury to person or property by reason of the condition of the Equipment or the use, management, control or operation thereof and [the First Defendant] release [the Third Defendant] from and indemnify [the Third Defendant] or any of [its] agents or employees whether the claim is made by [the First Defendant], a First Defendant or any of [the Third Defendant’s] employees or agents arising in any way out of this agreement including [the First Defendant’s] use of the Equipment whether caused by [the Third Defendant’s] negligence or the negligence of [the Third Defendant’s] agents or employees or otherwise.”
- It was pleaded that Galraith also had the benefit of these contractual provisions but that allegation was abandoned in the course of the trial.
- It is further alleged that:
- the first defendant was a “person in control of a workplace” and the subject premises were a “workplace” within the meaning of the Workplace Health and Safety Act (Qld) 1995;
- the first defendant owed duties to the plaintiff, Instant Access and Galraith to –
- ensure the scaffolding was kept in a safe and serviceable condition and not tampered with.
- the first defendant owed the following duties:
- a duty to Instant Access and Galraith to properly and adequately inspect and ensure the safety of the scaffolding before its use;
- a duty to Instant Access to comply with its requirement that daily checks of all components be carried out every morning before work; and
- a duty to the plaintiff pursuant to s 30(1)(b) of the Workplace Health and Safety Act 1995 (Qld) to prevent injury from the scaffolding.
- the cause of the accident was interference with the stage and rostrum by an unknown person or persons. Such interference was alleged to be able to be inferred from:
(i)the fact that the swing stage had been left “a safe distance from the ground” by its installers but was at or near the ground when first seen by Mr Meneguzzo and Mr Toki, one of the first defendants’ employees, on the date of the accident;
(ii)five couplers were found to be missing by a Workplace Health and Safety audit conducted immediately following the accident; and
(iii)the scaffolding components of the rostrum did not show signs that the couplers had been attached at the time of the accident.
- Mr Newton, who appeared with Mr Hay for Instant Access and Galraith, stated in the course of the hearing that no indemnity would be claimed under clause 7 and that there was no direct reliance on any breach of clause 6. Its terms were relied on, however, to identify the parties’ respective duties and responsibilities.
- Whilst Mr Edwards, a sales representative employed by Instant Access at relevant times was giving evidence, it emerged that its documentation, including standard terms and conditions had changed in about 1997 or 1998 when it adopted a computerized system. That evidence led to an amendment to the statement of claim to allege that, prior to about March 1997, there were different standard printed documents which contained terms and conditions similar in effect to those used after about March 1997, “namely that the goods once installed on site were at the risk of the first defendant”.
The incorporation in the contract between the first defendant and the third defendant of the first defendants’ terms and conditions of contract
- To support its allegations of a course of dealings Instant Access put in evidence the following bundles of contractual documents:
Hire Agreement No
Invoice, delivery docket, pick up advice
Onsite pick up receipt
- There were another five invoices in respect of four hire contracts put in evidence and also four pick up receipts in respect of unidentified contracts. All of these documents were in respect of transactions between the first defendant and Instant Scaffolds in 1997. All of the invoices were computer generated and had printed terms and conditions on the reverse side under the bold heading “Instant Access Australia Pty Limited Terms and Conditions of Trading”. The on-site pick up receipts were on printed forms which did not have terms and conditions on the reverse side or referred to on the front. Only one of the documents, the delivery docket, referred on the front of it to standard terms and conditions. It stated:
“You & us (sic) agree to fulfil our respective obligations set out in the agreement which includes the conditions on the reverse side of this page.”
- It may be inferred that in respect of the dealings to which the above documentation relates, there was no written document described as a hire agreement signed by the first defendant or given by Instant Scaffolds to the first defendant.
- Also put in evidence was a bundle of telephone hire agreement forms signed on behalf of the first defendant and Instant Scaffolds with printed terms and conditions of hire on the reverse side for the period February 1992 to October 1994. Two of the documents were in respect of transactions in 1994. One was for a transaction in 1993 and the remainder were for 1992 transactions.
- The quotation submitted by Instant Access for the subject job was sent by fax, had no standard terms and conditions on the faxed page, made no reference to standard terms and conditions and was accepted orally. The delivery docket generated in respect of the subject equipment was signed by Mr Ramsay, a contract carrier, on behalf of Instant Access and Mr Bell on behalf of Galraith. No other document in evidence in relation to the subject transaction appears to have been signed on behalf of the first defendant.
- The evidence discloses that both of the first defendants, who were in partnership, were familiar with the documentation received from time to time from Instant Access. Mrs Meneguzzo looked after the books but Mr Meneguzzo kept himself informed of the business’s paperwork. I think it improbable that they were not aware of the existence of printed material on the back of the documents although there is no direct evidence on the point. The printing is extremely faint on the computer generated documents and reading of it would require a determined effort in good lighting. There is no evidence that the terms and conditions were read and, having regard to the faintness of the printing, I doubt that they would have been.
- Mr North SC placed reliance on the absence of evidence that the printed terms and conditions had been read by a representative of the first defendant and upon the fact that the subject contract came into existence prior to the production of any document in respect of it which contained or referred to standard terms and conditions of contract. That appears to have been the case also in relation to many, if not all, of the 1997 contractual dealings.
- For standard terms and conditions to be incorporated in a contract it is not essential that they be read by the party sought be bound by them or that the written terms relied on be received before an oral contract has been agreed between the parties.
- But in view of my conclusions as to the way in which the accident occurred, it is unnecessary for me to express a concluded view on whether the printed terms and conditions were incorporated in the contract between the first defendant and Instant Access.
- The clauses on which Instant Access relies are set out above. Referring to clause 6(h), the accident was not caused by any failure to carry out an obligation in respect of “the safekeeping of the equipment”. It is not submitted that the clause was breached by any breach of statutory duty. It is not argued that clause 7, which provides for a release and indemnity, operates to confer any right of indemnity on Instant Access or Galraith in the circumstances under consideration.
- Also Mr Newton accepted that if there were findings that the equipment was not adequately installed and that Mr Meneguzzo’s inspection was reasonable in the circumstances, Instant Access and Galraith would fail in their claims against the first defendants.
Possible causes of the accident
- There are three possible causes of the failure of the equipment:
- vandalism or sabotage;
- the inadequate tightening of couplers;
- the failure to fit the four couplers intended to be fitted on the tubular uprights above and below the rings on the counterweight box.
Unauthorised interference with the rostrum
- Instant Access and Galraith argue that the following matters point to unauthorised interference with the rostrum:
- between 30 April and 6 May 1998 there was ready access to the roof of the building providing the opportunity for tampering;
- the stage had been moved from the position in which it was left by its installers just above an industrial waste bin and electrical power box and placed on the ground when Mr Meneguzzo arrived on site on the mornings of 5 and 6 May;
- the evidence of 5 missing couplers; and
- the absence of vertical scrape or score marks on the vertical scaffolding pipes.
- Out of normal office hours the doors which give access to the building were locked. By this I mean outside of the hours during which personnel in office buildings normally arrive at and depart from work. The evidence indicates, for example, that the ground floor doors were still locked at about 7am on weekdays.
- A degree of security for the building’s rooftop was provided by the fact that the lift between the fifth and sixth floors could be, and normally was, locked off. The fact that the lift did not go to the sixth floor did not, however, provide complete security as there was access to that floor via the fire stairs which could be entered from any floor. Access to the roof from the sixth floor was through an unlocked fire door on that floor and then through a self-closing and self-locking door which lead into the plant room where the air conditioning equipment and lift mechanism was situated. From the plant room, metal stairs lead to a door which opened onto the roof. That door does not appear to have been kept locked at relevant times.
- In relation to questions concerning access to the roof, I accept the evidence of Mr Indomenico, an architect who supervised the refurbishment of the building in 1998. His evidence was not the subject of any serious challenge and, in relation to the door to the plant room, was corroborated by that of Mr Osbrough, an employee of the building’s property managers, Laing & Simmonds. At relevant times keys for the building were kept by the building owner, Mr Osbrough and the building caretaker. The building was on the market and other agents seem to have had some involvement with prospective sales or rentals. But the evidence does not disclose whether those agents had keys. Mr Osbrough did not think that they did. The building was in the process of refurbishment, although, by the date of the accident, most of the refurbishment work had been done. The evidence is that, although there were tradesmen working on the fit out of one or more of the lower floors, any work which needed to be done on floors five, six and the roof, other than painting, had been completed. The sixth floor was untenanted and it is likely that the fifth was also untenanted. Only about 30% of the building was tenanted. The location of the roof on top of a seven storey building itself provided some protection against intruders.
- In order to minimise the significance of the self-locking door between the sixth floor and the plant room, Instant Access and Galraith relied on evidence which suggested that the door may have been found open by various people on the site at relevant times.
- In a statement dated 22 June 1998 given to Workplace Health and Safety officers, Mr Edwards said that when he first attended at the site and met with Mr Meneguzzo to inspect the job, he was “sure that the door was not locked”. The statement appears to assume that there is only one door between the lift on level five and the plant room and appears to refer to a door at the top of a staircase. He states that on a second visit to the premises he picked up keys from a real estate agent, took the lift to the sixth floor, walked up stairs and gained access to the plant room through an unlocked door.
- Mr Bell, a director of Galraith who, together with his employee, Mr Hall, installed the scaffolding rigs, in an undated statement, recorded that on 30 April 1998 when they went to the building to install the equipment the lift was locked off above the fifth floor. He said that he contacted the architect for access to the sixth floor and the roof.
- In cross-examination, he too recalled only one door between the lift and the plant room and said that no keys were needed for it. He did not recall if it was a self-closing door.
- In his statement dated 20 May 1998 Mr Meneguzzo stated that when he went to the building with Mr Edwards he had a key but did not need it to gain access to the roof because the door was open. He states that on 6 May he could not enter the building because the doors were locked. He was let in by the caretaker at about 7am and had to unlock the door to the plant room. The door to the roof was ajar as a power lead ran through the doorway.
- In his oral evidence Mr Meneguzzo resiled from the assertion in his statement that he did not need a key to gain access to the roof on the occasion of his visit with Mr Edwards. He said that when he was working on the building some 12 months after the accident he saw that the door which led to the plant room shut automatically and was self-locking. He then came to appreciate that his earlier recollection was wrong. In cross-examination he said that if the door had been pinned or propped back, he was fairly sure that he would have remembered it.
- There is necessarily considerable uncertainty as to whether or not the door to the plant room was locked or unlocked at relevant times. That is hardly surprising. There is likely to be uncertainty about recollections, invoked some time after events in question, about whether a door was locked or unlocked, where access to part of a building is through a number of doors and via a lift. That is particularly so where another person has the responsibility for locking and unlocking doors. Prior to the accident, the scaffolders’ and painters’ respective jobs at the subject building were routine in nature. There is no reason why such mundane matters as the types of doors through which they passed to gain access to the roof would have imprinted themselves in their consciousness. None of the witnesses, when giving their statements in 1998, appeared to appreciate that the door giving access to the plant room was self-closing and self-locking. That, in itself, assists in demonstrating the deficiencies in the witnesses’ recollections.
- I find it more probable than not that between 30 April and 6 May 1998, access to the roof of the building could be obtained only by unlocking the self-closing and self-locking door. I find also that out of the normal hours access to the lifts and stairs in the building could be had only through doors which were kept locked. It may well be that the door to the plant room was propped open at the time of the visit by Mr Edwards and Mr Meneguzzo but that was well before the date of installation of the equipment.
Was the stage moved from the position in which it was left by Messrs Bell and Hall on 30 April?
- In his statement of 20 May 1998 to Workplace Health and Safety officers, Mr Meneguzzo said that when he went to the site at about 7.30am on 5 May with the plaintiff the stage was on the ground on the northern side of the building. The statement does not mention its location on the morning of 6 May. In his oral evidence, he said that the stage was at ground level with one end sitting on a SEQEB power box and the other end on a waste bin but that he could not tell whether the stage was actually touching the structures or just above them. Cross-examined about this seeming change in his evidence, he said of the stage:
“It couldn’t have been on the ground. There was no way it could come down to the ground. To bring it down to the ground, you would have had to physically drag it out away from the rubbish bin and the meter box and we’re talking a 12 metre, half a tonne structure here, you know, …”.
He said also that if he had to manoeuvre the stage to get it above those structures, he would not have attempted to have done so because of the presence of the “20 odd thousand volt SEQEB box”.
- Mr Toki, a painter employed by the first defendant, in his statement of 29 June 1999 also said that when he arrived at work at about 7am with Mr Meneguzzo the swing stage was on the ground and that he noticed nothing unusual about it. Neither his statement nor Mr Meneguzzo’s mentions having to manoeuvre the stage away from and over the power box and industrial waste bin before making it ready for testing and subsequent use. That tends to suggest to me that when the subject statements were given their makers were speaking in a generalised way about the stage being accessible from the ground rather than literally indicating it was sitting on the bitumen or concrete outside the building. It is relevant also that at the time of making his statement Mr Toki was recuperating from severe injuries, in pain and under medication. Mr Meneguzzo also was suffering from pronounced stress and was on medication. It is also unlikely that persons making unauthorised use of the stage would go to the considerable trouble of bringing it to the ground clear of the power box and industrial waste bin.
- I have not overlooked Mr Hall’s evidence that when he left the site on 30 April he switched the power off and unplugged the electricity lead. Mr Meneguzzo’s evidence was that when he went up on the roof on the day of the accident the lead was plugged in but the power was switched off. The most obvious explanation for these accounts is that one of the two has a faulty recollection.
Were there in fact five missing safety couplers?
- The tampering theory has its genesis in a calculation made by Mr Gary Thornton, the Workplace Health and Safety inspector who attended the scene of the accident and carried out an investigation into its causes. On the date of the accident, on three sheets of paper he made detailed drawings of the needle, the rostrum, the weight box and recorded relevant measurements and descriptions. On one of the sheets the following appears in black handwriting:
“20 90s on roof
1 in stairwell
1 near ballast box
8 on rostrum …
- Mr Thornton thought initially that these words and figures were written by him on the date of the accident. In cross examination, however, he conceded that he did not become aware of the number of safety 90s said by Instant Access to have been delivered to the site until he received a copy of its delivery docket printed on 22 June 1998. After its receipt, Mr Thornton wrote a note on it similar to the one set out above. He was unable to recall the source of his recollection for the notes. His belief is that he would have written the information on a piece of paper which has since been lost, mislaid or destroyed.
- By the time Mr Thornton arrived at the scene of the accident, the fire brigade was there, police were in attendance, an ambulance or ambulances had been and gone and a mobile crane was on site. Also, some men, at an early stage, had gone up onto the roof to assist in securing the stage which was suspended from the intact scaffolding rig.
- I find that Mr Thornton conducted an equipment audit on-site in the sense that he made a note of the items of plant and equipment on-site which he perceived to have some connection with the failed equipment. That note was probably made on a scrap of paper which has since been mislaid.
- Mr Thornton’s recollection is that when he inspected the plant on the roof in the course of his investigations on the day of the accident, he noticed a coupler near the western side of the counterweight box. He or one of his colleagues took some photographs, including at least one which shows the box and this coupler. Other photographs taken that day show a group of couplers clustered near two weights a few metres from the subject counterweight box. Another coupler was found in the stairwell.
- Mr Thornton had limited time within which to undertake his inspection. When he arrived at the site a crane was being used and his initial concerns were with the safety of the site. He had left the site by lunch time. Before leaving he made detailed measurements of the subject plant, sketched it and, together with a colleague, made various enquiries.
- No evidence which I accept suggests that Mr Thornton’s mind was directed to the possible significance of missing pieces of plant or that careful measures were taken to identify and secure all items of equipment which potentially had evidentiary significance. For example, no examination appears to have been made of the coupler found near the counterweight box. It was not kept separate from the other couplers and the couplers which remained on the rostrum do not appear to have been examined on the day of the accident for tightness. If couplers became detached from the rostrum on the ground, I would not find it particularly surprising if they were lost or removed by a workman or bystanders.
- The point at which the possibility of missing couplers was first adverted to is unclear but it seems that Mr Thornton did not check for any discrepancies in items of plant until after receipt by him of a copy of Instant Access’s delivery docket printed on 22 June 1998. The evidence does not record precisely when the hired plant was picked up from Ipswich and returned to the premises of Instant Access in Brisbane. Instant Access’s pick up advice form signed by Mr Tate, then a storeman employed by Instant Access, records an “offhire date” of 6 May 1998 and that the document was printed on 7 May 1998. Mr Tate filled in details of the returned missing and damaged equipment in his handwriting. Next to that part of the form is a red stamp “ENTERED 20 May 1998”, against which initialling appears also in red. The circumstance in which the document was stamped in that manner was not explored in evidence.
- Mr Tate explained that his checking, in the normal course of events, consisted of checking the returned equipment against the equipment listed in the telephone hire contract form. The only items of equipment noted by Mr Tate as being missing were 12 couplers. Assuming that the 35 couplers listed on the telephone hire document had been delivered, only four would remain unaccounted for, as 8 remained on the rostrum in the possession of Workplace Health and Safety officers.
- Mr Tate, whose evidence I accept, had an actual recollection of the return of the equipment and recalled taking the needles off the truck and putting them aside for inspection by Workplace Health and Safety officers. When the inspection took place is undisclosed.
- The only expert evidence called in the course of the hearing was that of Dr Duncan Gilmore a mechanical engineer who inspected the rostrum, or what remained of it, and the weights box in early 2002. On the basis of that inspection, a site inspection, tests conducted by him and materials including Instant Access’s documentation, drawings of the subject equipment and statements taken by Workplace Health and Safety inspectors, he prepared a report in which he concluded that:
- the absence of couplers on and around the site following the incident suggests that they may have been absent at the time of the accident. The needle support structure may possibly be retained under low vertical loads by the counterweight box side rings without couplers but this is likely to have required “some degree of misalignment which was able to induce a vertical restraint”;
- couplers which retain the subject structure could be loosely fitted on the day of the accident under two scenarios: either not sufficiently tightened at the time of construction or (being) deliberately loosened;
- the absence of significant longitudinal scrape marks caused by tightened couplers on the vertical legs of the tubular structure is consistent with all couplers having been either loosened or removed by a person unknown between 30 April and 6 May 1998. If four couplers had been originally fitted to the vertical tubular structures “it is unlikely that none would leave a significant score mark if they were all forcibly slid off the tube”.
- In cross-examination, Dr Gilmore accepted that the absence of scrape marks suggested that there was very little friction applied between the rings and the vertical posts at the time of separation. He accepted also that it was more probable than not that at the time the stage was tested immediately after erection, couplers were fitted. In that regard he took into account that two men were on the stage and that the stage had been moved thus increasing the relevant forces “above the static level”. He similarly accepted that, having regard to the movement of the stage on the day of the accident prior to the accident and to the actions of the workers on the stage, it was more probable than not couplings were fitted.
- As against these considerations, he was concerned about the absence of scrape marks and what he perceived to be lack of evidence of the positioning of the couplers where they could have expected to fall if pulled or broken off.
- Dr Gilmore lacked sufficient data to enable him to calculate the forces which would have been required in order to pull the unsecured rostrum free of the weight boxes and, in that regard, there was a degree of speculation about his evidence. One possibility he raised was that if the stage had been handled in a gentle manner, the friction generated, without the presence of one, or perhaps two couplers, may have been sufficient to hold the structure in place until it was subjected to particular stress or force. He considered that misaligned uprights on the rostrum would also have caused additional friction which, although slight, would have helped in that regard.
- The mere fact, if correct, that four couplers were missing from those delivered to the site, would not appear to me to provide overwhelming evidence of malicious tampering with the equipment. It is unlikely that anyone would have removed the couplers to steal them. There were 20 loose couplers nearby from which to choose. If four couplers had been removed for the purposes of sabotage, there is no obvious reason why they would have been taken away rather than placed with the 20 loose couplers.
- The presence of the loose coupler near the counterweight box suggests that it came off the rostrum at the time of its failure. That suggests also that there was at least one other coupler which also came off the rostrum. If the rostrum was constructed to the intended design, the presence of only one of four couplers at the base would have tended to have alerted Mr Bell to a deficiency in construction. It may even have caught Mr Meneguzzo’s attention. It will be recalled that one coupler was found in the stairwell. The pile of couplers was irregular and it is impossible to tell whether one may have landed at or near the pile. It is possible also that one or more could have been kicked or carried over to the pile by one or more persons on the roof on the morning of the accident. The evidence does not disclose the time of day at which photographs were taken and no particular significance seems to have been attached to couplers on the day of the accident.
The cause of the equipment failure
- There are other factors which support the conclusion that the equipment failure was not caused by tampering. The couplers fitted to the rostrum were tightened by means of a scaffold key with a nine inch handle. It is unlikely that a properly tightened coupler could be loosened by hand. There was no indicia of vandalism at the site. The movement of the stage before work started that day, if it took place, contrary to my conclusion, does not suggest that tampering took place on the roof. The stage could not have been used to gain access to the roof, except perhaps by use of the mechanical winches and that I think would be highly unlikely. The stage itself was the more obvious target of any vandalism. The roof was reasonably remote and access to it was difficult at any relevant time.
- I do not doubt that Mr Bell is a competent operator who normally goes about his work carefully but experience tells us that, for a variety of reasons, highly skilled and competent persons can be responsible for negligent acts and omissions when performing routine duties. It is relevant that although Mr Bell checked his own work as he progressed he had no system in place, such as checking by himself or another after completion of erection, which would detect any errors or omissions in construction.
- In my view, the cause of the equipment failure was more likely to have been either the failure to fit the four couplers intended for the base of the rostrum or the failure to tighten two or four couplers fitted to the base, rather than the malicious act of an unauthorised person. The absence of couplers or failure to tighten couplers would explain the lack of obvious score marks on the bottom ends of the rostrum uprights. Although Dr Gilmour thought it unlikely, the absence of noticeable score marks could be explained, to a degree, by the dulling of markings over time on the pieces of well used scaffolding.
- I do not consider that the fact that the equipment did not fail when tested on 30 April provides much evidence of interference with it between 30 April and 6 May. It operated for about 10 minutes on 6 May and appears to have failed when both men on it moved to one end of the platform. That was a stress to which it was not subjected previously. That, perhaps allied with some movement of the verticals in their rigs over the previous 10 minutes, is the probable explanation of why failure did not occur earlier.
The first defendants’ duty of care
- The first defendants were under a duty to take all reasonable precautions against injury to the plaintiff in the course of his employment.
- In the performance of the duty to take such reasonable care, the first defendants were obliged to ensure “that all reasonable steps were taken to provide a reasonably safe system of working”. In Raimondo v State of South Australia, Mason J, with whose reasons Barwick CJ and Gibbs J agreed, said –
“In the first place, the employer will not be liable unless it appears that he has failed to take measures, or adopt means, which were reasonably open to him and which would have eliminated or significantly reduced the element of danger (Neill v NSW Fresh Food and Ice Pty Ltd  ALR 258; 108 CLR 362 at 369; Vozza v Tooth & Co Ltd  ALR 196; 112 CLR 316 at 319). And it has been held that (a) the degree of risk of an accident occurring; (b) the degree of injury likely to result from such an accident, and (c) the nature and extent of the remedial action suggested to be taken are all elements to be considered in deciding whether the employer is in breach of a duty to take reasonable care (Morris v West Hartlepool Steam Navigation Co Ltd  AC 552 at 579:  1 All ER 385; Foufoulas v Strang Pty Ltd  123 CLR 168 at 172).”
- What is a reasonable standard of care for an employee’s safety is “not a low one”.
- An employer’s responsibility for equipment supplied to it for use by employees was addressed in the following terms by Kirby J in Schellenberg v Tunnel Holdings Pty Ltd:
“So far as equipment such as the grinder used by the appellant here was concerned, the employer was not an insurer for its safety. An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration. (Pearce v Round Oak Steel Works Ltd  1 WLR 595;  3 All ER 680; Fleming, Law of Torts, 9th ed (1998), p 563) Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence.
Thirdly, the duty remains that of reasonable care. It is not one of strict liability. Workers' compensation legislation affords basic protection upon proof of the happening of an injury to an employee in defined circumstances. But to recover damages, the added element of negligence or breach of a statutory duty sounding in damages must be shown.”
This passage was cited with approval by Mason P, with whose reasons the other members of the court were in general agreement in TNT Australia Pty Ltd v Christie.
Was the first defendant a tortfeasor?
- Plainly, the plaintiff, by using the stage, would be placed in a position whereby in the event of failure of the stage or any part of its support structure, he would be in danger of death or serious injury.
- In his 20 May 1998 statement, Mr Meneguzzo said that prior to the stage being used he inspected the equipment, observed the needles, looked at the cables holding the shackles at the end of the needles, ascertained that the same quantity of weights was in the weight boxes and observed the rig. He then gave instructions for the winches on the stage to be checked. This was done by a person operating the winches and moving the stage up and down by about half a metre. He then had another look at the weight boxes and saw nothing out of the ordinary. Prior to going onto the roof, Mr Toki and the plaintiff checked over the stage and its fittings.
- It is submitted on behalf of Instant Access and Galraith that Mr Meneguzzo was negligent in failing to properly inspect the rostrum prior to authorising its use. The substance of the argument is that Mr Meneguzzo was experienced in the use of scaffolding rigs of the type in question and was alert to the risk of tampering. He knew that the most significant feature of the structure, from a safety point of view, was its connection to the weight box and he should have manually checked the couplers for tightness. It is submitted that the inevitable result of Dr Gilmore’s evidence was that if the four couplers on the bottom of the rig’s upright members were in place they were loose.
- Mr Meneguzzo may have been experienced in the use of scaffolding rigs of the type in question, but the design was not a standard one. Even the other rig had a different, and to my mind more sensible, configuration. Its needle fitted into metal sections on the underside of the counterweight box and no rostrum was required. With the advantage of hindsight, the deficiency in the rostrum, if all four couplers to be fitted in the vicinity of the rings on the counterweight box were missing, was fairly obvious. Mr Meneguzzo, however, did not enjoy that advantage.
- I do not accept that, in the circumstances, Mr Meneguzzo was under an obligation to manually test the couplers for tightness. The rigs had been assembled by skilled and reputable scaffolders, Mr Meneguzzo had dealt with Instant Access for years and had experienced no problem with its workmanship.
- There was no evidence which suggested that the checking of couplers on scaffolding or rigs of the type in question was an industry practice. Nor did the evidence address the general utility of such a check. There is no reason on the evidence to suppose that couplers of the type in question could work loose over time and, here, they had just been fitted by skilled workmen. It is relevant also to the question of negligence that the testing of the winches on the stage acted as something of a test of the rigs.
- For the above reasons, I find that Mr Meneguzzo, and therefore the first defendants, exercised reasonable care and skill in and about the operation of the rigs and stage.
- The case was argued on the basis that Instant Access and Galraith could succeed against the first defendants in the event of a finding that the failed scaffolding rig was not properly installed, only if there was negligence on the part of the first defendants resulting from Mr Meneguzzo’s inspection of the rig.
- Consequently, Instant Access and Galraith, for the reasons I have given, fail in their claims against the first defendants.
- The only order required appears to be that the third and fourth defendants’ claims for contribution and indemnity against the first defendants be dismissed with costs, including reserved costs, if any, to be assessed on the standard basis.
 Henry Kendell & Sons v William Lillico & Sons Ltd  2 AC 31.
 ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 at 378-9.
Raimondo v State of South Australia (1979) 23 ALR 513 at 517 per Mason J.
 At 513.
 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308.
 (2000) 200 CLR 121 at 160, 161.
  NSWCA 47.
- Published Case Name:
Urch v Meneguzzo & Ors
- Shortened Case Name:
Urch v Meneguzzo
 QSC 200
30 Jun 2004