Leslie Arthur Voce v Brian Patrick Watson [1989] ACTSC 49 (13 October 1989)

SUPREME COURT OF THE ACT

LESLIE ARTHUR VOCE v. BRIAN PATRICK WATSON
No. S.C. 222 of 1989
Scaffolding and Lifts Regulations (A.C.T.)

COURT

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

CATCHWORDS

Scaffolding and Lifts Regulations (A.C.T.) - Building Work - Alleged failure by employee to take required safety precautions - Whether employee bound by relevant regulation - Words and Phrases - meaning of "carrying out building work" and of "engaged in building work" considered

Scaffolding and Lifts Act 1912-1948 (NSW) in its application to Australian Capital Territory by virtue of Scaffolding and Lifts Act (A.C.T.)

Buckman and Son Pty Limited v Flanagan & Anor [1974] HCA 30; (1974) 133 CLR 422

Davey v Skinner (1961) SR (NSW) 648

Birkett v A F Little Pty Limited (1962) NSWR 492

Grant v National Coal Board (1956) AC 649

HEARING

CANBERRA
13:10:1989

Counsel for Appellant: Mr G. Delaney
Instructed by: Director of Public Prosecutions

Counsel for Respondent: Mr M. Tubbs
Instructed by: Messrs Gary Robb & Associates

ORDER

The order nisi be discharged.

That the appellant pay the respondent's costs to be taxed.

DECISION

By information laid on 26 February 1987, Leslie Arthur Voce, Chief Inspector of Scaffolding and Lifts in the Australian Capital Territory, alleged that Brian Patrick Watson contravened regulation 164 of the Regulations under the Scaffolding and Lifts Act 1912-1948 (NSW) (the Act) (in operation in the Territory by virtue of the Scaffolding and Lifts Act 1957 (A.C.T.)), in that being a person who directly carried out building work, he did not take all measures that appeared necessary to minimise accident risk and to prevent injury to the health of persons engaged in such building work, namely, that he failed to cause a collar to be attached to the supporting structure of a crane in the course of its erection, contrary to regulation 73 of the said Regulations.

2. Regulation 164 provides:-

"When any matter or thing is by these Regulations
required, directed or forbidden to be done, or
where any authority is given by these Regulations
to any person to require, direct or forbid any
matter or thing to be done, and such matter or
thing so required or directed to be done remains
undone, or such matter or thing so forbidden to
be done is done, in every such case every person
offending against such requirement, direction or
prohibition, shall be deemed guilty of a breach
of these Regulations"

3. So far as is relevant, regulation 73 of the Regulations provides that:-
"Any person who directly or who by his servants or agents (including every independent contractor from time to time engaged in that work) carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work ....."

4. The information was heard on 13 March 1989 when the learned Magistrate reserved Judgement which he handed down on 30 March 1989. Referring to the work in question, the dismantling and re-erection of a particular crane, he said,

"I certainly found myself somewhat confused as to
the actual role that Mr Watson was supposed to
have in relation to it...Anyhow, on whatever view
one takes, Mr Watson was clearly an employee."

5. The learned Magistrate then went on to consider the interpretation of regulation 73 and, in particular, whether there was any differentiation between the concept of "carrying out or carrying on work" and "being engaged in work". He eventually held that regulation 73 was not intended to impose a duty on a person in Mr Watson's situation but rather on his employer. He said that it seemed wrong in principle to him that an employee in a situation such as was being considered could be prosecuted for failing to comply with the terms of the regulation. He therefore reached the conclusion that the prosecution was misconceived and that no prima facie case had been made out. He dismissed the information.

6. The informant (now appellant) obtained an order nisi to review the learned Magistrate's decision and the order for costs he made against the appellant on the ground that the decision should not in law have been made in that the learned Magistrate was wrong in law in holding that Regulations made pursuant to the Act were not intended to apply to a person in the situation of the respondent and that the duty imposed by the said Regulations was imposed on his employer.

7. Originally regulation 73, so far as is relevant, read,

"Any person who directly or by his servants or
agents, carries out any building work, shall take
all measures that appear necessary or advisable to
minimise accident risk and to prevent injury to the
health of persons engaged in such building work ..."

8. The expression "(including every independent contractor from time to time engaged in that work)" now appearing in the regulation was inserted in 1976 by the Scaffolding and Lifts Ordinance of that year, presumably to deal with the situation which became apparent after the decision of the High Court in Buckman and Son Pty Limited v Flanagan & Anor [1974] HCA 30; (1974) 133 CLR 422. In that case the High Court by majority held that regulation 73 imposed obligations on persons actually carrying out building work whether personally or by servants or persons whose acts were in law their acts but did not impose obligations on persons who had sub-contracted work to independent contractors.

9. It is convenient at this stage to set out regulation 73 in full:-

"73. Any person who directly or by his servant or
agents (including every independent contractor
from time to time engaged in that work) carries
out any building work shall take all measures
that appear necessary or advisable to minimise
accident risk and to prevent injury to the health
of persons engaged in such building work and for
this purpose, without limiting the generality of
the foregoing, he shall -
(1) provide suitable and safe scaffolding, which
shall conform to the requirements of these
Regulations, for all work which cannot be
done safely by a person standing on
permanent or solid construction, except when
such work can be done safely from ladders
constructed in conformity with the
provisions of these Regulations;
(2) provide and maintain safe means of access to
every place at which any person has to work
at any time;
(3) 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;
(4) make provision to secure and maintain
lighting (natural or artificial) sufficient
and suitable for the illumination of all
work places, stairways, corridors and
passageways where persons must frequent,
pass or use in the performance of their work
or in passage to or from their work.
Whenever artificial lighting is provided
lamps shall be so placed and shaded that they
will not affect the safety of persons by
producing glare or deep shadows and suchlamps
shall be protected against breakage by guards;
(5) keep all stairways, corridors and
passageways free from loose materials and
debris, building materials, supplies and
obstructions of every kind;
(6) where practicable provide overhead
protection for persons working below other
persons or where there is a likelihood of
persons being injured by objects falling
from above; such overhead protection shall
be by means of timber or other material of
strength and construction reasonably adequate
to catch, deflect or hold any reasonable
weight of material or objects that may
fall upon such protective construction;
(7) provide head protective helmets, of an
approved type, for the use of persons
working in places over which it is
impracticable to fix overhead protection;
(8) effectively fence in the manner prescribed
by these Regulations, all platforms, the
open sides of all floors, openings in floors,
roofs and platforms into which persons could
accidentally walk, the open sides of
stairways and stairway landings and all
excavations and holes more than 5 feet deep.
Provided that it shall be permissible to
remove when necessary any guard rail, fence
or part thereof for the purpose of handling
materials or for the installation of other
work, subject to such guard rail, fence or
part thereof being at once replaced upon
completion of such work;
(9) cause all working places and approaches
thereto to be adequately ventilated by the
circulation of fresh air the ventilation to
be such as to render harmless all fumes,
dust or other impurities that may be injurious
to health, generated or produced by any means
in any such working place and approach;
(10) where in connection with any chipping,
grinding, cleaning, spraying or manipulation
of any material, there is given off any dust
or fume of such a character and to such
extent as to be likely to be injurious to
the health of persons employed, take all
practicable measures either by securing
adequate ventilation or by the provision and
use of respirators or otherwise to prevent
inhalation of such dust or fume. Only
respirators of a type approved by the Chief
Inspector shall be used for this purpose;
(11) cause all exhaust gases of every engine used
in an enclosed or confined space to be
conducted to the open air and the place to
be adequately ventilated so as to prevent
danger to health from such exchaust gases;
(12) where any persons are employed in a process
in which a lead compound or other poisonous
substance is used, provide for the use of
persons liable to come into contact with
such compound or substance adequate and
suitable facilities for washing which shall
include nail brushes, soap and towels. For
the purposes of this Regulation "lead
compound" means any material containing lead
which when treated in the manner prescribed
in the Fifth Schedule of these Regulations
yields to an aqueous solution of
hydrochloric acid a quantity of soluble lead
compound exceeding, when calculated as lead
monoxide, five per centum of the dry weight
of the portion taken for analysis;
(13) provide, where there is carried on any
process specified in the Fourth Schedule to
these Regulations such goggles of such types
as are approved by the Chief Inspector, or
effective screens to protect the eyes of
persons employed on the building work;
(14) cause measures to be taken to ensure that
scaffolding materials, tools and other
objects and materials (including waste
material) shall not be thrown, tipped or
shot down from a height where they are
liable to cause injury, but shall be
properly lowered; in any place where proper
lowering is not practicable and also where
any part of a structure is being demolished
or broken off he shall cause adequate steps
to be taken, where necessary, to protect
persons from falling or flying debris;
(15) cause protruding nails to be knocked in or
removed from all materials used in the
construction of scaffolding, false work and
shuttering and he shall take measures to
ensure that no timber or material with
projecting nails is allowed to remain in any
place where persons are liable to come into
contact with them;
(16) take all practicable precautions by the use
of adequate temporary guys, stays, supports
and fixings or otherwise to prevent danger
to any person through the collapse of any
part of a building or structure during any
temporary state of weakness or instability
of the building or structure or part before
the building or structure is completed;
(17) where any building work is carried on which
is likely to reduce, so as to endanger any
person, the security or stability of any
part of an existing building or structure or
of a building or structure in course of
construction, take all practicable
precautions by shoring or otherwise to
prevent danger to any person from the
collapse of the building or structure or the
fall of any part thereof;
(18) not move or permit or allow to be moved on
the site of the building work any ironwork
or steelwork on which there is wet paint
other than paint for the purpose of jointing;
(19) where on or adjacent to the site of any
building work to which these Regulations
apply there is water into which a person
employed is in the course of his employment
liable to fall with risk of drowning,
provide and keep ready for use suitable
rescue equipment of an approved type and
take all steps necessary for the prompt
rescue of any such person in danger of drowning;
(20) cause electric light and electric power
installations and the electrical equipment
of cranes, hoists, and plant to be
installed, used and maintained in conformity
with the provisions of these Regulations;
(21) provide adequate and suitable overhead
protection to prevent persons being struck
by the falling products of an electric arc
or flame metal cutting process;
(22) provide such first aid equipment, sanitary
conveniences, washing facilities, drinking
water and shelter, change and dining
accommodation as is prescribed by these
Regulations."

10. The question raised for decision is whether an employee who actually performs building work but is not concerned with that building work otherwise than as an employee is bound by the requirements of regulation 73.

11. Section 3 of the Act provides, inter alia, that building work means work in constructing, erecting, adding to, altering, repairing, equipping, finishing, painting, cleaning or demolishing which, when done in relation to a building or structure, is done at or adjacent to the site. I proceed on the basis that the work being carried out in connection with the crane at the time when the accident occurred was building work.

12. In Davey v Skinner (1961) SR (NSW) 648, the plaintiff was injured in a fall from a defective scaffold erected and maintained by a building owner who had let a bricklaying contract to the defendant, the plaintiff's employer.

13. At p 651 the majority of the Full Court of the Supreme Court of New South Wales (Evatt CJ and Herron J (as he then was)), said of regulations which included regulation 73 and were made under the Act,

"...they are imposed on the employer personally and
he is therefore under a duty to see that they are
observed not only by himself but also by his servants
and agents and even by independent contractors."

14. At p 652 they said,

"Regulation 6 emphasizes that the persons to whom
the regulations are addressed are not limited to
any one person or narrow class but require
compliance broadly by every person who directly
carries out any building work or who does so by
his servants or agents......Regulation 73 does
not impose its obligations on an employer as such
nor does it limit its safety measures to
employees as such......In broad terms it directs
its provisions to any person who carries out any
building work......
The respondent argues that the obligations
imposed by regs. 73-80 are directed to a person
who contracts to build the whole structure or
building or, as in the present case, to the
building owner himself. His contention is that a
person who carries out building work by servants
or agents must relate to the head contractor who
normally employs servants or sub-contractors.
But we see no reason for reading down the
ordinary meaning of the words used. The plain
words refer to a person who carries out building
work whether he does so himself, that is
directly, or whether he engages servants or
agents to do so for him. The obligation rests on
the active person, that is the one who carries
out the work in actual fact. .....The framers of
the Regulations, as we have shown, were alive to
the many categories of persons who can be classed
as performing building operations yet chose to
cast the safety obligations on the person who
carries out any building work. As we have said
the opening words of reg. 73 and of reg. 80(3)
require the observance of both the general and
specified measures by any person who carries out
any building work. A definition of such a person
is in turn provided. He is a person who carries
out the work:-
(a) directly; that is one who personally
performs or executes the work;
(b) by his servants - no difficulty arises here
as this refers to his employees;
(c) by his agents.

Counsel for the respondent also argued that if the construction for which he contends is not adopted the obligations of the regulations would be imposed on every workman and employee employed on a building project. But this is not a permissible view. Such persons are, it is true, engaged on building work but are not carrying out the work as that phrase is used in the regulations."

15. At p 657 Sugerman J (as he then was), dissenting, said,

"The subject of the duty and the objects of the
rights conferred by reg. 73 are, respectively,
"any person who directly or by his servants or
agents carries out any building work" and
"persons engaged in such building work". The
relationship envisaged is not necessarily, or
limited to, that of master and servant or
employer and employee, which relationship in any
event involves a common law duty of the master or
employer to use due care for the safety of his
servant or employee. The contemplated
relationship is, rather, one of proximity in the
wider sense, based on control of a suitaiton, on
the one hand, and exposure to risk in that
situation, on the other. The "persons engaged in
such building work" may include employees,
independent contractors working on the job,
independent contractors who work on the job along
with their own employees, and the employees of
independent contractors. To treat the words "any
person who ... building work" as related to
individual operations, such as bricklaying,
carpentery, plumbing, tiling, electrical work and
so on, would introduce great complexity. It
would make it difficult to discover any rational
distinction between the subjects and the objects
of the duties imposed and the content of the
expression which describes them - between the
person who "carries out" any building work and
the person who is "engaged in" such building
work - or to stop short of regarding the first of
these expressions as comprehending everybody who,
whether as employer or employee, works on the
job. "Carries out building work" and "engaged in
building work" would thus mean the same thing.
In the suggested sense, the labourer who hands up
the bricks is as much carrying out building work
as the tradesman who lays them or as the
bricklaying contractor who supervises the work.
Then there is a further difficulty. If the
subject of the duty is the contractor for a
single operation, the objects of it are those
engaged in that operation - that is in "such
building work"; the master-bricklayer, that is
to say, is obliged to ensure (reg. 73(14)) that
broken bricks shall not fall on the heads of
bricklayers, bricklayers' labourers, or
bricklaying apprentices, but is not required to
concern himself with the safety of, for example,
the plumber or the carpenter. The wide
protective network thus becomes a web of
distinct and individual duty-relationships
between individuals and groups (including, it may
be, some purely self-regarding duties). That is
contrary to the wide single purpose of reg. 73
and of the regulations generally. This, as I
understand it, is to impose upon the person who
undertakes the building work a comprehensive duty
to take measures to ensure the safety and health
of everybody who is engaged on it, in whatever
particular job, and whether as employee,
contractor, or employee of contractor."

16. The passages just quoted emphasise the dichotomy between the phrases "any person who ..... carries out any building work" and "persons engaged in such building work". The example of the bricklayer's labourer chosen by Sugerman J seems to me to emphasise what the legislature intended to be the meaning of the phrase "person who carries out", ie a person who, in effect, has the role of ensuring that the necessary building work is performed normally to its completion either by himself or by his servants or agents. It does not, in my opinion, mean that every person who is actually performing any of the building work in question "carries out" such building work unless authority forces a contrary conclusion. This view is strengthened by reference to the 22 sub-paragraphs of regulation 73. It would be, in my opinion, absurd to think that an employee is required to:-

(a) provide suitable and safe scaffolding for all
work (sub-reg. 1);
(b) provide and maintain safe means of access
(sub-reg. 2);
(c) provide means by fencing or otherwise for
securing the safety of the persons described in
the sub-regulation (sub-reg.3)
(d) make provision to secure and maintain lighting
(sub-reg. 4);
(e) keep all stairways, corridors and passageways
free from loose materials and debris etc.
(sub-reg. 5);
(f) where practicable provide overhead protection
(sub-reg. 6);
(g) provide head protective helmets (sub-reg. 7);
(h) effectively fence (sub-reg. 8);
(j) cause all working places and approaches to be
adequately ventilated (sub-reg. 9);
(k) take all practicable measures by securing
adequate ventilation or by the provision and use
of respirators to prevent inhalation of dust or
fume (sub-reg. 10);
(l) cause all exhaust gases of every engine used in
an enclosed or confined space to be conducted to
the open air and the place to be adequately
ventilated (sub-reg. 11);
(m) provide washing facilities for the use of persons
employed in a process where a poisonous substance
is used (sub-reg. 12);
(n) provide goggles or effective screens (sub-reg.13);
(o) cause measures to be taken to ensure that
scaffolding materials etc shall not be thrown,
tipped or shot down from a height (sub-reg. 14);
(p) cause protruding nails to be knocked in or
removed from all materials used in the
construction of scaffolding etc. (sub-reg. 15);
(q) take all practicable precautions by the use of
adequate temporary guys, stays, supports and
fixings to prevent danger through collapse of any
part of a building before its completion
(sub-reg. 16);
(r) take all practicable precautions by shoring or
otherwise to prevent danger to any person from
the collapse of a building or structure or the
fall of any part thereof (sub-reg. 17);
(s) not move or permit or allow to be moved on the
site of the building work any ironwork or
steelwork on which there is wet paint other than
paint for the purpose of jointing (sub-reg. 18);
(t) provide rescue equipment to obviate the risk of
drowning (sub-reg. 19);
(u) cause electric light and electric power
installations and the electrical equipment of
cranes, hoists, and plant to be installed, used
and maintained in conformity with the provisions
of the Regulations (sub-reg. 20);
(v) provide adequate and suitable overhead protection
to prevent persons being struck by the falling
products of an electric arc or flame metal
cutting process (sub-reg. 21);
(w) provide such first aid equipment, sanitary
conveniences, washing facilities, drinking water
and shelter, change and dining accommodation as
is prescribed by the Regulations (sub-reg. 22).

17. When regard is had to the individual sub-regulations it is clear, in my opinion, that the regulation is directed at the person who is engaged in ensuring the ultimate performance of the building work and not at the person who engages in such work as an employee. An employee cannot, in my opinion, be said to be "carrying out" the work unless, as I have said, authority compels a contrary conclusion.

18. I also refer to Birkett v A F Little Pty Limited (1962) NSWR 492, a decision of the Full Court of the Supreme Court of New South Wales. The two Judges who formed the majority in Davey v Skinner (Evatt CJ and Herron J) said at p 505,

"The appellant also argued that as to both counts
the case was concluded against the plaintiff
.....in that no duty was owed to him by the
defendant as the plaintiff was a leading hand.
The facts of the case cited were so entirely
different from the present that the decision has
no real application here. The argument for the
appellant overlooks the consideration that the
duty cast by the common law and the regulations
is cast upon the builder, the employer in this
case, and mistakes the true character of a
leading hand."

Collins J seems to have concurred with that view at p 509.

19. In Grant v National Coal Board (1956) AC 649 at p 659 Lord Reid said,

"The question whether an employer is liable to an
employee for injuries caused to him by breach of
a statutory duty depends on whether there can be
implied from the terms of the statute imposing
the duty an enactment that the employer shall be
so liable. In general that is implied from the
enactment of a duty in the interest of the safety
of employees ....."

That dictum seems to me to indicate that where an enactment provides that a duty in the interest of the safety of the employees shall be undertaken by a person carrying out, in this case, building work, the duty lies solely upon the employer and not upon the employee. Of course, it is true, that the duty in respect of a particular aspect of regulatory requirements may be delegated to an employee but that does not make him responsible for the carrying out of the duty within the meaning of that expression as used in the Regulations. Such a delegation may operate as a defence to a claim brought by him if he disobeys the order delegating the duty to him or is otherwise negligent in carrying out that duty and is thereby injured but it does not make him the person responsible under the regulation for carrying out its requirements.

20. When one turns to the meaning given the phrase "carry out" in the Shorter Oxford Dictionary one finds that the relevant meaning is "to conduct to conclusion". This meaning may not, of course, be entirely applicable in respect of a partly completed building but obviously in completing such a building the person concerned with the building work is carrying out the necessary building work from the beginning of the works upon which he is engaged.

21. But the appellant submits that Buckman's Case (supra) does require such a contrary conclusion to be reached. Several passages in the case were referred to. At page 428 Barwick CJ said,

"Regulation 73 imposes the obligation, not with
respect to employment and so not on an employer
as such, but with respect to building work which
is being carried on or carried out. I agree with
the majority in Davey v Skinner (supra at
p 652) when their Honours said: "Regulation 73
does not impose its obligations on an employer as
such nor does it limit its safety measures to
employees as such. Nor does it, for example,
refer to a contractor as the person obliged to
conform to its provisions. In broad terms it
directs its provisions to any person who carries
out any building work .....The obligation rests
on the active person, that is the one who carries
out the work in actual fact.".....Building work
is so defined that it does not necessarily refer
to the total work to be performed in a building,
but the definition is suitably worded to enable
each section of work being done, eg as
"painting, cleaning and signwriting", being
regarded as building work so that the obligation
to take the specific safety measures are imposed
on that person who is carrying on or carrying out
that particular work."

Nothing in that passage seems to me to require an interpretation of the regulation which would impose its burden on an employee as well as on the person conducting the particular building work to a conclusion.

22. At p 441 Mason J (as he then was) said,

"I approach the matter on the footing that the
regulation imposes duties on builder and
sub-contractor and that the duties extend to
building work done by a person through a
sub-contractor."

Again, I see no reason to conclude from those words that the duty in question is imposed upon an employer actually performing the work in question.

23. At p 447 Jacobs J said,

"It will generally be found in the case of an
employee and it will often be found in the case
of a sub-contractor that, though performance of
the acts necessary to performance of some
statutory duties may properly be delegated to
them, the performance of other acts and the
compliance with other statutory duties will
remain the direct obligation of the employer or
the head contractor as the case may be."

Again, it seems to me that that passage merely indicates that liability under regulation 73 remains in the employer carrying out the building work and not in the employee performing the actual work although his employer may in fact have delegated to him the duty of performing all the building work necessary for the completion of the contract into which his employer had entered.

24. In my opinion the learned Magistrate's interpretation was correct, there was no prima facie case made out against the respondent and the order nisi should be discharged.