Apthorpe v QBE Insurance (Australia) Limited & Ors [2019] NSWDC 135 (18 April 2019)

Summary

A roofing labourer has been awarded damages after successfully pursuing a claim in negligence against the builder, scaffolder, guttering contractor and his employer at a domestic building site. The worker fell from the roof when bridging planks connecting the roof and an adjacent scaffolding structure gave way.

Background

The worker was 18 years old of age when he fell six metres down a scaffolding void from a second storey scaffolding tower platform at a residential building site. It was his first day on the job. An adjacent scaffolding tower had been erected on site. Bridging planks were placed between the edge of the roof and the scaffolding platform, which the scaffolder maintained were secured prior to the worker’s injury. There was a gap in the planks to accommodate a protruding scaffolding component.

The scaffolding tower blocked access for other tradesmen to undertake their work. As a result, the guttering contractor moved the bridging planks in order to facilitate his work on site, and later restored them to their former position. The guttering contractor submitted that he had moved the planks because they had not been tied down.

On the date of injury, the worker was filling skip bins with roofing tiles. After filling one skip bin, the worker saw another skip bin near the base of the scaffolding tower. The worker picked up some tiles and stepped onto the timber bridging planks with the intention of accessing the scaffolding tower when the planks collapsed and he fell.

Decision

After reviewing evidence from the scaffolder, guttering contractor and a WorkCover Inspector, Judge Levy determined that the bridging planks had not been secured by the scaffolder by either tie wire or by any other means. Once the guttering contractor moved the planks, he made no effort to indicate that the planks were not secure. The builder was not notified.

His Honour stated that if a proper inspection had been performed at roof level by any of the defendants, it would have been readily apparent there was a gap in the bridging planks, and the planks were not secure.

Each defendant owed the worker a duty of care, which varied between the defendants. The question of whether the builder, scaffolder and guttering contractor were negligent was determined in accordance with the Civil Liability Act, whilst any breach of the employer’s duty of care was determined according to common law principles.

Judge Levy found that all of the defendants were negligent. His Honour accepted that the builder had breached its duty of care to the worker for failing to conduct an inspection from the upper level of the site works, whilst the scaffolder breached its duty of care by failing to secure the bridging planks or prevent access to the bridging planks. In the context of the works on site, the precautionary steps of inspection, barricading, posting warnings and securing the bridging planks involved comparatively little time and effort.

Judge Levy also held that the guttering contractor had breached its duty of care to the worker by failing to warn the builder that he had moved the bridging planks and left them unsecured. The employer was negligent for failing to assess how the worker could safely dispose of tiles whilst at roof level, and failing to assess the safety of the bridging planks.

When considering apportionment, His Honour compared the respective culpabilities of each defendant according to the degree of departure from the required standard of care. There was no evidence to suggest that any of the defendants had delegated their duty of care in relation to the site to any other party.

Judge Levy considered the causative potency of the scaffolder’s conduct to be proportionally much greater than the other defendants. His Honour considered the culpability of the builder and guttering contractor to be on par, whilst the employer’s failures were ‘on a relatively minor and far lesser scale of culpability’ when compared with the builder, scaffolder and guttering contractor. When the employer came onto the site and had the opportunity to carry out a site inspection, the site had already been rendered unsafe by the successive failures of the builder, scaffolder and guttering contractor.

The scaffolder was apportioned 40% of liability, whilst the builder and guttering contractor were apportioned 25% each. 10% of liability was apportioned to the employer. The worker’s damages under the Civil Liability Act 2002 were assessed at over $780,000, whilst his damages under the Workers Compensation Act 1987 were assessed at over $280,000.

Conclusion

This case serves as a timely reminder of the employer’s non-delegable duty of care on construction sites. Employers need to inspect the areas where their employees will be working to ensure safe access has been provided, and that the area is free from hazards and any potential risks of injury. This duty persists even in situations where the employer does not have overall control of the worksite.