Duro Lukic v John Holland Constructions Pty Ltd [1986] ACTSC 19 (14 March 1986)

SUPREME COURT OF THE ACT

DURO LUKIC v. JOHN HOLLAND CONSTRUCTIONS PTY. LTD.
S.C. No. 1031 of 1983 Negligence - Breach of Statutory Duty - Practice and
Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - employer's liability - hole in floor of building under construction - temporarily covered by plywood which workers were likely to lift in order to use in their work.

Breach of Statutory Duty - Scaffolding and Lifts Regulations - distinction between person carrying out building work and person engaged in building work.

Breach of Statutory Duty - Scaffolding and Lifts Regulations, Regulation 73(e) - need to prove place from which person liable to fall is a place at which he is working.

Breach of Statutory Duty - Scaffolding and Lifts Regulations, Regulation 73(8) - whether opening in floor ceases to exist when temporarily covered.

Practice and Procedure - pleading - need to plead separate courses of action separately - need to plead accurately failure to act "in the manner prescribed".

Jacob v. Utah Constructions [1966] HCA 67; (1966) 116 CLR 200

Buckman v. Flanagan [1974] HCA 30; (1974) 133 CLR 422

HEARING

CANBERRA
14:3:1986

ORDER

There be a verdict for the plaintiff.

The matter be stood over for further hearing.

DECISION

The plaintiff was injured on 21 September 1982 whilst working for the defendant as a carpenter during the construction of the National Sports Centre at Bruce in the Australian Capital Territory. The facts relating to his injury are not really in dispute. The plaintiff's evidence was supported by that of a witness, Mr. Charles Sweeney, and on the question of the injury itself the plaintiff was an acceptable witness. I make no finding at this stage as to the plaintiff's credit on the question of damages. The plaintiff had worked for the defendant company for several years before the injury in question and about three months on the particular site. Some days before his injury he had been asked by a foreman to make a door out of plywood for the purpose of completing a store into which some electrical equipment was to be moved. Having other tasks to attend to, he had not yet made the door when on the day of his injury he was reminded by his superior that the matter needed prompt attention. He enlisted then the services of an apprentice, Mr. Sweeney. He went to an area called the yard where various building materials were kept and where he expected to find a suitable piece of plywood. None of an appropriate size could be found however and the two men then went to search the site elsewhere. They found such a piece lying on a concrete slab which formed the floor of a raised area some metres from the edge of the swimming-pool. As it happened, the slab also formed the ceiling or roof of a basement underneath. The dimensions of the piece of plywood were not given in evidence but presumably it was somewhat larger than the size of an ordinary door. The two men then proceeded to lift the piece of plywood in order to take it where it was to be cut to size and fitted. The plaintiff lifted the plywood from one end and Mr. Sweeney lifted it from the other. The method of lifting was simply to raise the plywood from the floor level with both hands to a height which both men said was at chest height. Having lifted the plywood in that fashion and thus far, the two men proceeded to move off. The plaintiff commenced to step forward. He stepped forward one or two steps and found himself falling into a hole 600 to 900 millimetres in diameter. He fell about five metres to the floor below and sustained injury. The purpose of the hole was for the installation of ducting and photographs in evidence showed the ducting in place in the opening or hole in question. The plaintiff said in his evidence that he knew that there were holes or openings of this nature on the premises in various places but he did not know of the particular one into which he fell until in fact he found himself falling into it. He said and Mr. Sweeney said and I accept that there is a method for securing such openings by placing a covering such as the sheet of plywood over the hole and then securing it to the concrete slab by fastening it by Ramset nails. An alternative method of securing such a covering is to fix timber runners underneath it which would fit alongside the edges of the hole. A further step which may be taken in relation to the safety of such holes is to place a guard rail which may or may not be fixed to the floor around the hole or around the covering of the hole. Such methods of covering an opening and securing the covering to the opening had in fact been used on the particular construction site to the knowledge of both the witnesses prior to the accident to the plaintiff.

2. The plaintiff brings his claim in common law negligence and for breach of statutory duty. I have little hesitation in finding that the defendant was in breach of its duty to provide a safe place of work or a safe system of work or both. The foreseeability of injury to a person such as the plaintiff was abundantly clear and is proved by the very fact that the defendant had arranged for the placing of the plywood over the opening prior to the plaintiff's fall. I cannot accept that the plywood simply happened to be where it was without some reference to the opening. On the other hand, the plaintiff said and it was not denied that pieces of plywood were left around the construction site for workers like the plaintiff to pick up and utilise, and there was no particular reason for the plaintiff to suspect that the particular plywood lying as it was, loose on the concrete slab, had been placed there for the purpose of covering an opening. Failure to ensure that the plywood was securely fixed to the slab and failing to provide a guard rail around the opening, or both, amounted, in my view, to a failure to take reasonable care for the safety of workers on the site, particularly those who might be required by virtue of their duties to use such a piece of plywood.

3. The question of the plaintiff's contributory negligence was raised. Obviously, the plywood itself obscured the plaintiff's vision of the opening and explains his failure to observe the opening before he fell into it. The simple question arises as to whether the plaintiff should have taken some particular measure such as stooping to look underneath it before he stepped off. In all the circumstances I am not convinced that failing to take such a measure amounted to a failure on the part of the plaintiff to take reasonable care for his own safety.

4. The plaintiff also relied on alleged breaches of the Scaffolding and Lifts Regulations of the State of New South Wales made law in the Australian Capital Territory by the Scaffolding and Lifts Ordinance 1957. The claims were made in paragraph 5 of the Statement of Claim which reads as follows:

"Alternatively to paragraph 4 hereof the work upon

which the defendant was engaged was building work
within the meaning of the Scaffolding Lifts
Legislation in force in the Australian Capital
Territory and the plaintiff was injured as
aforesaid as a result of the breach by the
defendant of its obligations under the said
Legislation.

PARTICULARS

(a) The defendant failed to provide means by
fencing or otherwise for securing the
safety of the plaintiff, he being a person
working at a place from which he was liable
to fall and did fall a distance of more
than six feet in that at the time when he
was lifting and carrying the plywood he was
engaged upon his work and standing at the
edge of an opening five metres deep. Had
the board been secured or had there been
some other means for warning him of the
presence of the hole or had the hole been
fenced, his safety would have been secured
as provided in Regulation 73(3) of the said
Regulations.

(b) The defendant failed to fence in the manner
prescribed the open sides of the opening
into which the plaintiff accidentally
walked as required by Regulation 73(8) of
the said Regulations."

5. Regulation 73(8) is contained within part V of the Regulations, and that part makes provision for "safeguards and measures to be taken for securing the safety and health of persons engaged in building work". Breach of the duties imposed by the Regulations on the part of a person carrying out building work resulting in personal injury to a person engaged in that building work gives rise to a cause of action on the part of the person injured against the person carrying out the building work: Jacob v. Utah Constructions [1966] HCA 67; (1966) 116 CLR 200, Buckman v. Flanagan [1974] HCA 30; (1974) 133 CLR 422. Although the statement of claim inaccurately alleges that the defendant was engaged in building work, there is no issue that in fact it was a person carrying out building work within the meaning of the regulations nor was there any issue that the plaintiff was a person engaged in that building work. Paragraph 5 of the Statement of Claim in effect alleges two distinct causes of action one being a breach under Regulation 73(3) and the other being a breach of Regulation 73(8). No amendments were sought at the hearing but it is nevertheless necessary at this stage for the two causes of action to be considered separately.

6. The duty under Regulation 73(3) is to "provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet". To prove a breach of this sub-Regulation it is necessary to show that the builder failed to secure the safety of a place at which a person happened to be working at the time of the alleged breach. The Regulations distinguish between a work place and a means of access to and from any such work place: see for example, Regulation 73(2). In dealing with the provisions of the Factory, Shops and Industry Act 1962 of New South Wales relating to safety of means of access, the learned authors of Glass McHugh and Douglas The Liability of Employers 2nd ed. state at p.158:

"In order to give effect to the contrast between
the place of work and the means of access to that
place, it is necessary to determine the area over
which the employee will reasonably be expected to
range in the performance of that job of work."

7. In my view the distinction between a place of work and a means of access under the Scaffolding and Lifts Regulations is similar to that in the Act referred to.

8. Insofar as the parties did not address that issue, the evidence is quite silent on the point and it is impossible to determine the issue positively in the plaintiff's favour. I am not convinced that when the plaintiff fell he was working at a place where he was liable to fall more than six feet. The breach of Regulation 73(3) has not been proved.

9. The further breach relied upon by the plaintiff is a breach of Regulation 73(8) which casts upon the builder a duty to "effectively fence in the manner prescribed by these Regulations . . . . openings in floors . . . . into which persons could accidentally walk". There is a proviso to Regulation 73(8) that it is permissible to remove guard rails and fences for the purposes of handling materials or for the installation of other work, but the onus of proving the proviso was on the defendant and no point was taken on behalf of the defendant in that regard. Accordingly, I will give no further consideration to the proviso. However, it was argued on behalf of the defendant that by placing the plywood over the hole intended for the installation of the ducting, it could not be said that there was any longer an opening in the floor. Whether there was or was not an opening is, in my view, a question of fact. If the plywood had been securely fixed to the floor, perhaps it could be said that the opening no longer existed, but the mere placing of a piece of plywood over the opening without any means of securing it when it is foreseeable that it could be removed manually by a worker who wished to use the plywood in the course of his duties, did not result in the opening in the floor ceasing to be such. The statement of claim does not plead the nature of the failure to fence in the manner prescribed, nor does it plead what it is that is prescribed. However, I was informed from the bar table and again there is no issue that the manner of fencing is prescribed by Regulation 75. Briefly, such fencing is required to be effected by positive fastening of uprights or posts of timber or steel of a particular dimension with guard rails and toe boards. Clearly the defendant failed to comply with that standard and accordingly I find that the plaintiff has proved a breach of Regulation 73(8).

10. There will accordingly be a verdict for the plaintiff. Counsel have agreed that although the evidence on damages has been taken, I should pronounce my decision on liability and adjourn the hearing of addresses on damages to a later date. A date for the further hearing of the matter may now be fixed.