David Steele v Twin City Rigging Pty Limited; Tekmat Pty Limited (In Liquidation) and Senlos Design and Construction Engineers Pty Limited [1992] ACTSC 87 (28 August 1992)

SUPREME COURT OF THE ACT

DAVID STEELE v. TWIN CITY RIGGING PTY LIMITED; TEKMAT PTY LIMITED (in
liquidation) and SENLOS DESIGN AND CONSTRUCTION ENGINEERS PTY LIMITED
No. SC 23 of 1989
Torts - Negligence - Contributory Negligence - Contract

COURT

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

CATCHWORDS

Torts - Statutory duty - Breach of Scaffolding and Lifts Regulations - Carrying of building work when could not be done safely - Failure to provide safe means of access - Failure to secure safety at a height of more than six feet - Scaffolding and Lifts Regulations (NSW) application in ACT - Reg.73, 73(2), 73(3).

Negligence - Duty of care - Building site - Duty to provide safe system of work - Unsafe equipment - Defective rope - Breach of liability of sub-contractor - Liability of head contractor - Neglect by independent contractor amounting to breach of employer's duty to injured employee - Duty of employer - Damages - Assessment as to relative degrees of fault of joint tortfeasors.

Contributory Negligence - Failure to wear safety harness - Plaintiff experienced rigger - Plaintiff also director of defendant company - Company joint not sole tortfeasor.

Contract - Building and construction contracts - Apportionment of liability - Assessment of contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1955.

Contract - Construction of agreement - Indemnity and insurance clauses - Construction of Release agreement - Unpaid sum secured by Deed - Whether equitable set-off.

Scaffolding and Lifts Act 1912-1948 (NSW), Reg.73(1), (2) and (3)

Law Reform (Miscellaneous Provisions) Act 1955

Hudson's Building and Engineering Contracts 10th ed. p 306-313

Davie v New Merton Board Mills (1959) AC 604

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

Turner v South Australia (1982) 42 ALR 669

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

Volmer v NTEC (1985) 34 NTR 12

Buckman (H.C.) and Son Pty Ltd v Flanagan [1974] HCA 30; (1974) 133 CLR 422

Australian Iron and Steel Ltd v Ryan [1957] HCA 25; (1957) 97 CLR 89

Bertram v Armstrong and De Mamiel Constructions Pty Ltd (1978) 23 ACTR 15

March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Nicol v Allyacht Spars Pty Ltd [1987] HCA 68; (1987) 163 CLR 611

Norman Allan Betts v White Constructions (ACT) Pty Limited and Ors (ACTSC; SC 2058/86; Higgins J; 12/5/92; unreported)

Canberra Formwork v Civil and Civic Ltd (1982) 41 ACTR 1.

Cervellone v Besselink Bros (1984) 55 ACTR 1

US Surgical Corp v Hospital Products Int Pty Limited (1982) 2 NSWLR 766

Gibb Australia Pty Limited v Cremor Pty Limited (ACTSC; SCA68/91; Miles C.J., Gallop and Higgins JJ..; 10/7/92; unreported)

Commissioner for Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563

Ginty v Belmont Building Supplies (1959) 1 All ER 414

Shedlezki v Bronte Bakery (1970) 72 SR (NSW) 378

HEARING

CANBERRA
28:8:1992

Counsel for the First and
Third Defendants: Mr G Lunney

Instructing solicitors: Messrs Sly and Weigall

Counsel for the Second

Defendant: Mr B Meagher

Instrucing solicitors: Messrs Mallesons Stephen Jaques

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $222,304.18.

2. Leave be reserved for Twin City Rigging Pty Limited and Senlos Design and Construction Engineers Pty Limited to make an application for leave to proceed against Tekmat Pty Limited.

3. Each defendant should recover judgment against the other for a sum representing 10% for Twin City Rigging Pty Limited, 45% for Tekmat Pty Limited, 45% for Senlos Design and Construction Engineers Pty Limited of the amount of the judgment recovered by the plaintiff in this action.

DECISION

The Injury
HIGGINS J. During 1986, arrangements were made for the construction of twin buildings at Tuggeranong in the Australian Capital Territory for the Health Insurance Commission. The Project Manager was the second defendant, now in liquidation ("Tekmat"). Tekmat engaged the third defendant, Senlos Design and Constructions Engineers Pty Limited ("Senlos"), to fabricate, supply, deliver and erect structural steel for the building. Senlos, in turn, engaged the first defendant, Twin City Rigging Pty Limited ("Twin City"), to erect the steel which Senlos would fabricate and deliver on site.

2. The plaintiff was one of two directors of Twin City. He was a rigger of considerable skill and experience. He usually acted as supervisor on site for the process of erecting steel. That involved a "hands-on" approach rather than merely directing others.

3. There was a plan to erect glass fronted panels along the front of the two buildings in question. That process required the fixing of a series of steel frames to the superstructure of each building. Each frame was 12 metres high and 2 metres wide. It was slightly curved to follow the convex curve of the outer line of the building. It consisted of 2 vertical outer members and 7 horizontal frame members, all constructed of channel steel. The glass blocks were to be subsequently installed into the rectangles so formed. The effect was similar to fixing a giant ladder to the building.

4. The plan prepared by Senlos and given to the plaintiff to follow, called for each frame to have a baseplate supported by a triangular fin. Two frames would fill the space between concrete upright pillars. They were designed so that the base plate would fit into a pillar on one side , the plate being inserted into a pocket set in the pillar. A bolt was to be cast into the base. On the other side, the base-plate was to fit over a bolt set into the parapet and be similarly bolted into place. A crane, directed by the plaintiff and supplied by Twin City, would lower each frame into place. Packing was to be inserted both to ensure proper height and to wedge the frame back against the column and outer edges of the building. The plaintiff would then release the sling of the crane, an exercise requiring him to ascend one horizontal cross-member above the lower floor levels, a distance of about four metres. The frame would then be welded to the top steel parapet and the outer edge of the building at the level of each of the first and second floors. Welding was required so that the frame would be flush with the building.

5. The bolts and wedges used in the base of each frame was an integral part of the process of holding the frame in place for welding. The absence of the sling was also a requirement. The crane was, in any event, needed to load an adjoining frame. Each frame was, additionally, bolted to the next one. Thus, once one was in place, the next frame would enjoy more stability before the welders performed their task.

6. Unfortunately, Tekmat did not follow the plan. The columns were not cast with the pocket or rebate in the base at lower floor level. There was, it followed, no bolt to attach the toe of the frame to. There was no bolt cast into the parapet at the lower floor level to receive the other side of the frame.

7. There was a conference with the plaintiff and his co-director of Twin City and with representatives of Senlos and Tekmat. The Senlos representative, a Mr Furst, proposed that a rebate be jack-hammered into the base of each column to receive the toe of the frame. The toe would be cut down and modified so as to fit around the nearest reinforcing bar located in the column. A plate would then be welded over the outer part of the rebate so as to lock the toe in place. A bolt would be "chem-set" to the parapet on the other side and the frame would thus be secured. The site welds would then complete the fixing of the frame.

8. There was, however, a defect in this system compared with that which had been planned. Until the column side was welded and the chem-set bolt had cured (an 8-9 hour process) the base would be unstable. It could move away at the top, even though it would be held to some extent by the steel rods within the column around which the cut-down toe had been hooked.

9. To ensure stability, therefore, whilst the base of the frame was being secured and before the top parapet welds could be done, it was decided that the plaintiff would tie the top of the frame to the lower horizontal steel beam of the top parapet. The crane could then be withdrawn and the welding could proceed. A length of rope would be used for the purpose of tying the frame to the parapet beam.

10. This process was, in fact, carried out successfully on the first building. It seems that there were 18 frames in two groups of 14 and 4 respectively. Of course, once the welding at the top of the frame had taken place, the rope would be removed.

11. This process required the plaintiff to ascend to the second highest cross-member to tie off the top of the frame. He was then approximately 10 metres above the lower floor level and about 12 metres above the ground level.

12. On 22 October 1987, work on the second building had progressed to the stage where the first frame could be fixed to it. The same defects had taken place with the preparation of the superstructure of the second building as with the first.

13. The plaintiff, with the frame held by one toe below and the crane above, ascended to the second highest cross-member and tied the top member off with a piece of rope he had obtained from Senlos' tool locker. It was quite a normal practice for Senlos and Twin City personnel to share equipment. They had worked together on a number of jobs previously.

14. The rope the plaintiff used was a nylon rope, 2-3 metres long, approximately 12mm in diameter. It seemed sound to the plaintiff although he did not inspect it closely. As the plaintiff completed the knot he was applying, he pulled the end of the rope to tighten it.

15. At that moment, the rope broke. The plaintiff, at that point, had both hands on the rope. He fell approximately 12 metres to the ground measured from the level of his feet.

16. The ground was strewn with building materials. It had bricks and part bricks, concrete, boxes, and other rubbish scattered about. Although the plaintiff avoided landing on these items, landing on his feet in a clear space, he suffered serious injuries.

17. As well as general bruising and abrasions, he sustained the following injuries,

(a) a compound crush burst fracture of the left os
calcis (heel bone);
(b) a fracture of the pelvis with diastasis of the pubic
symphysis;
(c) an undisplaced fracture of the body of the sacrum;
and
(d) an articular fracture of the left radius with some
displacement.

Liability
(i) Unsafe equipment -
18. Why the rope broke is no mystery. Mr Furst, foreman for Senlos, gave evidence. He said the rope in question had been damaged by him when he had been oxy-welding in its vicinity. It was, therefore, unsuitable for the use the plaintiff made of it.

19. Mr Furst did not either destroy the rope, as the plaintiff contended was the usual practice, or, at least, put it away so that it would not be used for tying off. He put it back in the tool-box where he knew that the plaintiff might go to obtain tools or equipment. He did not warn the plaintiff that the rope had been rendered defective.

20. It follows that Mr Furst was negligent. He knew, or should have known, that, if he put the rope in the tool-box, the plaintiff might use it for tying off a frame. If the rope broke in the course of such an exercise, a fall causing serious injury was highly likely. Mr Furst knew precisely how the plaintiff went about the task of tying off. He had probably observed it 18 times before.

21. Mr Furst's negligence is the responsibility of Senlos. It follows that Senlos is liable in negligence to the plaintiff.

22. Neither Twin City nor Tekmat knew that the rope was faulty. They would each have been entitled to expect that the rope Senlos had available for use would be sound.

23. However, whilst Tekmat had no positive duty to check the equipment to be used by Twin City, the latter did owe a duty to its employees to check equipment to be used (see Davie v New Merton Board Mills (1959) AC 604).

24. In the present case, there was no evidence to suggest that the defect in the rope would have been apparent to a reasonably careful employer. In this case, the plaintiff was the most senior and experienced rigger on site. He did not notice any defect in the rope. He was the one whose safety would depend on the rope's soundness. It seems to me, therefore, that, insofar as liability depends on responsibility for the failure of the rope, that liability, as between the parties, lies solely with Senlos. No issue as to causation arises under this head of negligence.

(ii) Unsafe system of Work -
25. There is a duty on an employer to devise and maintain a safe system of work (see Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672). That latter authority also makes it plain that such a duty may be breached by persons other than the employer.

26. If the system of work adopted here was not safe, the initial fault for that rests with Tekmat. It failed to have the rebates and bolts cast in place. It knew they were required. It knew that an improvised method of work had to be devised. It was aware, through its representatives on site, of the method chosen to avoid the consequences of its error. Indeed, Senlos had devised the method actually used. It too, was aware that the plaintiff, or some other rigger, would need to climb approximately 12 metres above the ground and tie a rope.

Was the system of work unsafe?
27. In my opinion, it was. Even if the rope had not broken, there was a risk that, in tying off the top of the frame from where he was required to stand, the plaintiff would slip and fall. There was the fact that cranage time was limited and that Teckmat's error placed greater time pressure to complete the task of fixing the frames. That added to the risk.

28. The risk, of course, was much lessened if no defective rope was used, but it was a real risk nevertheless.

29. As Gibbs C.J. noted in Turner v South Australia (1982) 42 ALR 669,

(670-1) "Where it is possible to guard against a
foreseeable risk which, although perhaps not great,
nevertheless cannot be called remote or fanciful,
by adopting a means which involves little
difficulty or expense, the failure to adopt such
means will in general be negligent."

30. (See also McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Volmer v NTEC (1985) 34 NTR 12.)

31. It follows, in the present case, that Tekmat was clearly negligent in failing to cast the columns and bolts according to the plan it received. If it had done as it was supposed to do, the plaintiff would have needed only to ascend the first cross-beam to release the sling.

32. Senlos, of course, as was Twin City, was faced with a situation where a system had to be devised to fix the frames to the superstructure of the buildings. The system in fact devised was considered by all parties to be the only practicable solution to the problem Tekmat had created. Insofar as it created a greater risk of injury to the plaintiff, consideration was required to be given by both Senlos and Twin City to means of avoiding or, at least, reducing that risk.

33. Not much could be done about the risk of slipping whilst ascending the frame. However, once the plaintiff commenced the tasks of tying off the top of the frame and unhooking the sling, his stability, simply by virtue of him devoting mental and physical attention to those tasks, necessarily was placed at much greater risk than in the case of a simple ascension to the second top cross-beam.

34. There were two possible practicable solutions suggested in evidence. The first was for the plaintiff to have been hoisted in place by a cherry-picker. That would have required Tekmat to clean the site sufficiently for access by such a hoist and to arrange for it to be on site. It was Tekmat's fault that such equipment was needed. The added cost would not be a great factor. There was no evidence that such a hoist would have been required for any other task.

35. The other course was for the plaintiff to be supplied with, and instructed to use, a safety harness. Evidence on that question was fairly scant. The plaintiff was wearing a rigger's belt. That enables a short safety line to be attached to it. A long safety line would, of course, be quite useless. It must be short to prevent injury. The plaintiff did say that the use of the usual short line was impractical in the situation he was in at the top of the frame. He did, however, concede that something could have been improvised although it would have needed to be able to be used and released quickly to avoid unacceptable delays.

36. If something needed to be improvised to reduce risk of injury to the plaintiff, then all three of the defendants should have considered it. Tekmat was responsible for devising the new system. Twin City was the employer. It had a duty to ensure that the system was as safe as reasonable care and foresight could make it. Tekmat had created the risk in the first place and had overall responsibility for and occupation of the site.

37. It is obvious from the photographs of the site, taken whilst the plaintiff was still lying injured on the ground that safety harnesses could have been devised to prevent his fall. Quick release catches could have been used. Such equipment is readily available. It may have required some releasable anchor point on the frame before it was hoisted into position. Once the tying off was completed, that detachable anchor point or points could be released as well as the safety lines being withdrawn.

38. As I say, the evidence on this aspect was not precise but I am satisfied such a harness could have been devised. It was not. In the absence of it, the plaintiff was liable to fall as he did.

39. It would therefore follow that each defendant is guilty of negligence in failing to make the system of work as safe as reasonable care could make it.

40. However, Tekmat and Twin City raise the issue of causation. They contend that it was not the lack of safety in the system of work which caused the accident but the defective rope. Additionally, all defendants contend that it was the plaintiff's responsibility personally to see to safety measures such as cherry pickers or safety harness. His negligence is the cause or, at least a contributing cause of his injuries.

41. I will consider those issues further on. There is, also, the issue of breach of the Scaffolding and Lifts Act 1912-1948 (NSW), in its application to the Territory and the regulations made thereunder.

Scaffolding and Lifts Regulations
42. Breach of Regulations 73(1), 73(2) and 73(3) was alleged. Those Regulations provide as follows:-

"73. Any person who directly or 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 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 or more than six feet;"

43. There is no doubt that each of the defendants was, at the time of the plaintiff's injury, engaged in "building work" within the meaning of Reg.73. But for the words "(including every independent contractor from time to time engaged in that work)" now appearing in Reg.73, I would be obliged to find, in conformity with Buckman (H.C.) and Son Pty Ltd v Flanagan [1974] HCA 30; (1974) 133 CLR 422, that Tekmat was not engaged in "building work" so far as the erection of the frames was concerned. Whether the rebating of the columns and the setting of the bolts would have been a sufficient involvement is a moot point. It is also a moot point whether Senlos was so engaged by reason of its rope being used. Fortunately, those questions do not need to be decided.

44. So far as breach of the Regulations is concerned, the plaintiff gave evidence, and I accept it, that there was no scaffolding suitable for use in carrying out the work in question. I conclude, therefore, that none of the defendants was in breach of Reg.73(1).

45. Regulation 73(2) calls for "safe means of access" to the place where the work had to be performed. The means of access was the frame itself. In my opinion, that means of access was inherently unsafe. It follows that each of the defendants was in breach of Reg.73(2), as was the plaintiff.

46. The place at which the plaintiff was required to work was a place from which he would be liable to fall more than 6 feet. He was not secured from falling in any way although he could have been, whether by being contained in the bucket of a "cherry-picker" hoist or by the use of a safety harness. It follows that the defendants, as well as the plaintiff, were in breach of Reg.73(3).

47. If those breaches are causally related to the plaintiff's fall then the defendants will usually be liable to the plaintiff for the damage sustained by him. (See Australian Iron and Steel Ltd v Ryan [1957] HCA 25; (1957) 97 CLR 89; Buckman (H.C.) and Son Pty Ltd v Flanagan (supra); Bertram v Armstrong and De Mamiel Constructions Pty Ltd (1978) 23 ACTR 15.)

48. However, it is not every breach of the regulations which creates a private right of action upon which an injured person may sue.

49. In Buckman (H.C.) and Son Pty Ltd v Flanagan (supra), the majority (Barwick C.J., McTiernan and Stephen JJ..) had to construe the previous version of Reg.73 which did not then contain the words in parenthesis. They held that Reg.73 imposed no duty on a person who caused building work to be carried out by an independent sub-contractor. It was on that sub-contractor that those duties would fall. Mason and Jacobs JJ.. concurred in the ultimate conclusion that the breaches of regulation arising out of and in the course of the work being done by the sub-contractor (Flanagan) gave rise to no cause of action. However, in coming to that conclusion, their Honours construed Reg.73 as if the words now appearing in parenthesis therein were present.

50. Essentially, their Honours, in separate judgments (pp 442-3, 446-447) concluded that, if the precaution which was not taken was part of the task delegated to the sub-contractor, then the statute conferred no private right of action for the breach of that obligation. It was different, of course, when that which constituted the breach was an act or omission which it was not the sub-contractor's duty to perform.

51. Mason J expressed that view in the following terms:-

(443) "It is in this sense that it may be said
here that the statute and the regulation confer no
private right upon a sub-contractor against the
builder or head contractor to performance of a
statutory duty when the doing of the work which
attracts the performance of the duty has been
wholly delegated to the sub-contractor so as to
impose the same duty on him and he does the work in
breach of the duty in the absence of fault on the
part of the builder ... This implication is made as
a matter of construction of the statute and the
regulations and in the sense already explained."

52. Jacobs J expressed a similar view in the following terms -

(446) "When a person carrying out building work
delegates to an employee or sub-contractor the
performance of acts required to be done in order to
comply with the statutory duties he is not likely
to be able in all cases prior to that delegation
and the consequent performance of those acts to
provide that employee or that sub-contractor with
the protection which the particular statutory duty
imposes. It must therefore often be the position
that the statutory duty does not extend to the
employee or sub-contractor engaged in the acts
necessary for the fulfilment of that same statutory
duty ... An employee must be particularly directed
to do the specific work necessary in order to
fulfil the employer's statutory duty and must be
provided with all material, assistance and
supervision necessary to ensure his ability to
comply with the statutory duty. A sub-contractor
must be under a particular contractual obligation
expressed or necessarily to be implied from the
nature of the work to carry out the preliminary
work necessary to ensure that when he and those
under him are engaged in the building work they
will be so engaged in conditions which satisfy the
statutory duty."

53. Barwick C.J. (at 430) agreed with Mason J's comment concerning co-relative duties.

54. The failure to provide scaffolding (Reg.73(1)), safe means of access (Reg.73(2)) and failure to secure safety at a height of more than 6 feet (Reg.73(3)) were each, in that case, considered by Mason J and by Jacobs J to have been that of the sub-contractor (Flanagan). The steel fabricator (Shaw) had delegated the task to Flanagan. Jacobs J held that the Regulation, therefore, imposed no duty on Buckman or Shaw to take those precautions. Mason J was content to hold that no "private right" was conferred. However, a Buckman's employee had rendered the column Flanagan ascended unstable by cutting the bolts at the base. Buckman did not, then, warn Flanagan of this. That would, if done, have been likely to avoid the danger. Buckman was therefore in breach of Reg.73(17) but not the other regulations referred to.

55. The distinction is between a breach by the injured person of the Regulation which is co-extensive with the breach by others and a breach which is not co-extensive.

56. The distinction referred to is further illustrated by Bertram v Armstrong (supra). There, Davies J held that a builder who had, by an employee, inadequately secured a part of a frame which a sub-contractor needed to use to descend from the place where he had to work was thereby in breach of Reg.73(2). "Access" included "egress". However, although the sub-contractor was also in breach, the breaches in question were not co-extensive.

57. There are, therefore, two questions. Who carried out the building work which was the breach of duty? Was the plaintiff the person who had the duty to take the relevant precautions? Had that duty been delegated to him and him alone? Was his breach, if any, co-extensive with that of the defendants?

58. In this case, the relevant work was the fixing of the frames to enable site welding and subsequent work to be performed. That was Twin City's task. It was not the task of either Tekmat or Senlos. However, those defendants also had a duty to take precautions. That duty was delegated by them, ultimately, to Twin City. The performance of that duty by Twin City was delegated by it to the plaintiff. It follows that the breaches of statutory duty alleged were co-extensive with the duties to take precautions imposed on the plaintiff. It, therefore, would further follow that whether or not the defendants were, by reason of the plaintiff's breach also in breach, no private right of action for any breach accrued to the plaintiff.

59. Accordingly, had the plaintiff fallen merely because of the failure to provide safe access and/or to secure his safety whilst working at a height above 6 feet he could not call in aid breaches of Regs.73(2) and (3).

60. The real cause of the plaintiff's fall, however, was the defective rope. He would not have fallen, even so, had Reg.73(3) been complied with. In providing a defective rope, Senlos rendered the place the plaintiff had to work less safe than it appeared.

61. Having supplied the rope, Senlos had to ensure precautions to guard against failure of the rope over and above those imposed on Tekmat, Twin City or the plaintiff. However, the duty to use some other means of access than climbing the frame was co-extensive to all parties. In any event, even had a safer means of access been used, the defective rope would have effected the fall which occurred. The failure to provide safe access did not cause or contribute to the fall.

62. It follows that Senlos is in breach of Reg.73(3) and liable to the plaintiff accordingly.

Causation
63. The defendants argued that the plaintiff was really injured because of his failure to wear a safety harness or to gain access to the place where the rope was to be tied in a different and safer manner which would have enabled the work to be performed safely, such as by use of a "cherry-picker" hoist.

64. Certainly, "but for" those failures the plaintiff would not have been injured. However, to adopt the defendants' contention would require the court to disregard the failure of Tekmat to enable a safer system of work to be adopted, to accept that the fault of Senlos in providing a defective rope was "spent" and that the "real" cause was the failure to wear a safety harness or insist on the provision of a cherry-picker. That would leave Twin City solely responsible to the plaintiff as his employer unless the relevant fault was really that of the plaintiff.

65. In my opinion, those arguments should be rejected.

66. In March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, the legal concept of causation was considered thoroughly. Mason C.J., Deane, Toohey and Gaudron JJ.. affirmed the proposition that causation was not to be decided by reference to "the" sine qua non, or by reference to "last opportunity" or "most proximate cause". It is a matter to be decided by reference to common sense and experience. Considerations of policy are relevant and value judgments will enter into the question. There may be successive or concurrent causes. Some of those other causes may themselves be events for which another person is culpably responsible.

67. The risk of the plaintiff falling as he did was caused or contributed to by the negligence of Tekmat in failing so to construct the relevant portions of the building so as to enable a safer system of work to be adopted. Senlos caused or contributed by failing to devise a safer system and by supplying a defective rope. Twin City was at fault in conniving at the unsafe system of work. Thus the defendants were each of them negligent in devising or approving the unsafe system which was used.

Fault of the Plaintiff
68. Insofar as liability rests on the system of work devised to cope with the situation created by Tekmat, Senlos argues that the plaintiff's responsibility for it is co-extensive with its own. Twin City advances the same argument.

69. That argument is based on Nicol v Allyacht Spars Pty Ltd [1987] HCA 68; (1987) 163 CLR 611. In that case, the plaintiff was a co-director of the defendant company. A flag-pole supplied by the defendant, had required adjustment to a banner attached to it. That was about 27ft above the ground. The plaintiff and his colleagues mounted a trestle on the back of a utility vehicle. They then attached an extension ladder onto the trestle. The plaintiff actually succeeded in reaching the banner. He even worked on it before the inevitable collapse of one of the feet of the trestle. The defendant asserted the plaintiff should be denied recovery because he had participated, as a director, in the adoption of an unsafe system of work.

70. Mason C.J., Toohey and Gaudron JJ.. (618) expressed the view that to warrant the conclusion that the plaintiff should be precluded from recovery, his fault would have to be "co-extensive" with that of the defendant through its other employees.

71. Brennan J pointed out, however, that the defendant company owed no less of duty of care to an employee simply because that employee was also a director of it (see 619-20).

72. The present case is very like Nicol's case. The discussion as to what to do about the lack of bolts involved representatives of Tekmat and Senlos. It also involved the plaintiff's co-director. That person was also an experienced rigger, even more experienced than the plaintiff. At best, therefore, the plaintiff could be said to have contributed to his misfortune rather than to be solely responsible for it. His responsibility was not co-extensive with that of the defendants even if only the system of work is considered.

73. It follows that each of the defendants is liable to the plaintiff. I will first consider damages then contributory negligence and, finally, contribution as between the defendants.

Damages
74. The plaintiff was born in Auckland, New Zealand on 6 January 1958. He left school in 1973 and obtained an apprenticeship as a carpenter. However, he left that trade in favour of steel rigging. He also obtained Trade Certificates as a crane driver and in scuba diving. Up to 1985, he had had 10 years experience in all aspects of steel rigging on construction sites.

75. In 1985, he became a director, with a Mr Ken Foord, of Twin City. The latter person, though an older man and a very experienced rigger, concentrated more on administrative matters. The plaintiff would attend and supervise on site.

76. In addition to his trade qualifications and experience, the plaintiff had been a keen sportsman. Rugby Union football and baseball were sports he had participated in. He had even taken part in Rugby League football competitions.

77. The plaintiff was, at the time of his fall, married with two children. He now has three children aged seven years, five years and 18 months respectively.

78. When he fell, the plaintiff landed almost upright but leaning back, probably on his heels. He tried to stand but, not surprisingly, having regard to his injuries, fell back down.

79. He was taken by ambulance to Woden Valley Hospital. His left leg, back and left arm were painful. He was treated by Dr Kitchen.

80. On 4 November 1987, the plaintiff was transferred to Albury Hospital. He was there under the care of Drs Haig and Isbister.

81. In Albury, problems developed with the open wound of the left heel. A skin graft was required. He was discharged on 25 November 1987. He was on crutches and in plaster up to the knee. His left wrist was also in plaster up to the forearm. He was in pain, including pain in the pelvic area and lower back. In short, he was a mess.

82. He found it very difficult and painful to move around for several months after this.

83. The wrist injury gradually resolved. It was left weaker but the plaintiff says that it now troubles him only if he has given it "too much of a work-out".

84. Improvement also occurred in the plaintiff's lower back and pelvic area. The plaintiff found some discomfort when he returned to work in May 1988 but that area did not greatly trouble him.

85. The major problem has been the left ankle and heel areas. Aching, pain and swelling greatly limited the plaintiff's capacity for physical work.

86. When the plaintiff resumed work with Twin City he did so on a light duties basis. He did clerical work for the most part. He was not good at it, he said. He did do some work supervising riggers. He did not do actual "hands-on" rigging work.

87. He ceased work with Twin City about November 1990. Indeed, it seems that Mr Foord and the plaintiff had a falling out at about that time and decided to cease their association. Twin City ceased to trade, although it did not go into liquidation.

88. On 22 July 1991, the plaintiff submitted to a subtalor fusion carried out by Dr Haig in an effort to reduce the pain and swelling in his left ankle and foot. He was in plaster for another three months. He found that the operation did effect an improvement.

89. However, he still finds the left ankle to be stiff and sore in the morning. He can free it up after 10-15 minutes. He gets aching in the ankle. A long day at work will produce significant pain lasting overnight. The worst feature of the ankle from the plaintiff's view point is the instability of the ankle. Uneven surfaces pose a real problem. Climbing and walking on steel is really quite hazardous for him if the ankle gives way. The plaintiff, quite reasonably, feels insecure at heights.

90. The lack of mobility has restricted the plaintiff's attractiveness to an employer. From November 1990 the plaintiff actively sought work. He had a family to support. He found that most of the major construction employers required medical examinations of prospective employees. They were not interested in hiring disabled employees, however experienced.

91. He got only sporadic work up until his operation in July 1991. After he recovered he sought further work. In January 1992 he obtained employment of a more long term nature than he had during 1991. The job was in Melbourne as a rigger for Rockaway Pty Ltd on a project to refurbish the Doncaster Westfield Shopping Town. He got the job due to the good offices of a friend who had been a union delegate. Work will probably conclude about October 1992.

92. It is apparent that the plaintiff is managing to cope with the work of a rigger. However, he does so with difficulty and he does represent an unacceptable accident risk, certainly to himself and possibly to others, if his ankle gives way at a critical time.

93. Although crane-driving is an option, there are very few cranes the plaintiff can now efficiently and safely operate. He finds scuba diving difficult; he tends to "go round in circles" because of the left foot and ankle disability.

94. The disability seems to have been stable since the effects of the operation wore off. It has prevented the plaintiff's previous sporting interests being open to him. He cannot run although he can "skip" in a rolling motion quite quickly.

95. What of the future? The plaintiff intends to be active. He seems to me determined to overcome his disability as best he can. He is prepared to seek work far afield. That is to his credit. It was not suggested that this plaintiff has in any way exaggerated his injuries and disabilities. Indeed, he tends to make light of them. He will work to his capacity if he has the chance. He may even be considered to be prepared to work beyond his capacity. He was an honest and straightforward witness.

96. The plaintiff's disabilities must, however, be assessed realistically in the light of the medical evidence.

97. Dr Kitchen reported on 14 December 1987,

"He will suffer permanent disability as a result of
his injuries. It will affect his working
capacity."

98. Dr Haig reported on 22 December 1987,

"This disability will limit the physical type of
work he will be capable of doing. I would think at
this stage it is unlikely that he would be able to
return to his work as a rigger, as he was doing
before."

99. On 22 November 1991 Dr Haig felt able to report,

"The question of whether he will be able to return
to his original job is a moot point. I have,
however, cleared him for work but I think this
would have the reservation that working in the
construction industry where perhaps working on
scaffolding, ladders and at heights would, I think,
be contra-indicated."

100. Dr Corry, an expert in rehabilitation medicine, provided a report dated 15 June 1992. As to the plaintiff's present employment, he noted as follows,

"He states that his ability to work as a rigger are
(sic) somewhat restricted. He has some problems
with climbing and feels that he generally lacks
stamina. He avoids carrying loads at heights and
does not walk in more dangerous situations such as
over narrow purlins. Provided he is able to follow
these
restrictions he feels fairly confident about his
capacity and hopes to continue in that form of
employment. He worries that there are no
alternative options for him if he does fail in this
type of work."

101. There is also some deformity of and scarring to the foot and ankle area. Dr Corry felt the function of the foot and ankle could be improved by the use of a 1cm build up of the heel of the shoe or boot with a cushion insert to improve ankle stability and tolerance for walking and standing.

102. Dr Corry then concluded,

"It is clear however that consequent to the changes
which are permanent that the ankle joint is not
stable. Consequently he is at risk of further
injury and possible falls. He is coping in his
present position by being careful about the sort of
work that he is doing. This may be possible and
successful with a sympathetic and supportive
employer. Ideally, Mr Steele should not work in a
position where poor ankle stability could lead to
major injury. Unfortunately, he has no other
experience to equip him with alternative work, and
some retraining would be necessary if he were to
move into another occupation."

103. What the plaintiff's "transferable skills" are Dr Corry was not able to say.

104. I accept Dr Corry's assessment. It is moderate, well-balanced and unchallenged.

105. The difficult question for me is the determination of the loss to the plaintiff's earning capacity. I am satisfied that if the plaintiff was fully fit he would be capable of earning between $19,000.00 and $29,000.00 per annum net. It is possible he could earn more if, following his falling out with Mr Foord, he had gone into business again as a sub- contractor. However, considering the investment and risk factors in such a course, I think the range I have indicated, which ranges between the minimum award rate for five days and the plaintiff's present earnings for a six day week is reasonable. It does not include the effect of special allowances such as might apply to unusual jobs such as the New Parliament House.

106. So far as the duration of the plaintiff's working life is concerned, I have to have regard to the arduous nature of his chosen occupation. It is risky. I doubt he would have worked at it beyond age 60. However, I do not think the plaintiff would, thereafter, have remained idle in terms of earnings. That offsets, to an extent, the vicissitudes arising out of the physical demands and risks of his occupation as a rigger.

107. It is clear that, after October 1992, it is possible that the plaintiff will continue as a rigger. It is not probable. However, I think that the plaintiff will seek to re-train. He will do something. Nevertheless, I think he will find employment difficult to obtain. He will have periods of low paid employment. There will be gaps in his employment. That such a scenario is likely I can infer from his employment history since he left Twin City. He was there earning $367.00 net (plus the advantages of proprietorship).

108. Doing the best I can with these imponderables, balancing the various vicissitudes, including possible further deterioration of the ankle joint, I assess the present value of the diminution of earning capacity at $160.00 per week (net).

109. Bearing in mind the fact the plaintiff has work until October, I think 25 years is an appropriate assessment of the length of the plaintiff's working life. That produces a figure of $147,520.00. As I have already considered all relevant discounts in arriving at the $160.00 per week figure, it is not appropriate to further discount that sum.

110. So far as past earnings are concerned, the only question is over the period 14 November 1990, when the plaintiff left Twin City and the period leading up to his present employment. Of course, there is no argument about the plaintiff's earnings from casual employment in that period ($2,576.00) being allowed as a deduction from that loss. Equally, there is no doubt that the plaintiff is entitled to recompense for the earnings lost during the three months following his foot operation on 19 July 1991.

111. The earnings from the casual employment in the period abovementioned would represent 5-6 weeks earnings at the award rate for a rigger. The period between 19 July 1991 and 9 January 1992, when the plaintiff obtained his present employment, is 28 weeks. Thirteen weeks of that period was convalescence. During the balance of the period, therefore, the plaintiff was either unemployed or under-employed. I think that, given the plaintiff's disabilities and his determination to get work, it is reasonable to attribute that period of loss of earnings to the plaintiff's disabilities. I award $10,690.40 accordingly.

112. As to the earlier period, there is the difficulty that the 35 weeks in question were partly the result of a falling out between Mr Foord and the plaintiff. That falling out was undoubtedly contributed to by the fact that the plaintiff was disabled.

113. There is also the fact that the plaintiff's disability was greater then than after the operation of 19 July 1991. I think that at some point between 14 November 1990 and 19 July 1991, the plaintiff would have been unemployed or under-employed. Even without the falling out between Mr Foord and the plaintiff, it would not have been reasonable to expect that he would have been carried by Twin City at previous earnings. But for that employment, I do not believe that the plaintiff would have been gainfully employed for more than the equivalent of five or six weeks at the rate of pay for a rigger throughout that period. Insofar as before 14 November 1990 Twin City was "carrying" the plaintiff, I would view that as a loss mitigation exercise. I think that $17,000.00 fairly represents the plaintiff's net loss of earnings attributable to his injury for this period.

114. For general damages, I consider that the sum of $50,000.00 is appropriate. Interest thereon, attributing half to the past, should be assessed at $2,400.00.

115. As to interest on the past wage loss, I am informed that $15,781.82 was paid to the plaintiff by way of weekly payments of compensation. Interest should be allowed, therefore, only on $11,908.58. The precise dates and periods when that loss happened is uncertain. It follows that I can only allow a lump sum intended to compensate for the income foregone. An award of interest for a financial loss should allow for commercial rates less the tax that would be levied on that income (if any). That figure would need then to be halved to average the loss over the past period. I consider $4,250.00 to be an appropriate figure for that item.

116. The award therefore, including agreed figures, may be calculated as follows:-

General Damages $50,000.00
Interest thereon 2,400.00
Past wage loss (including agreed
figure) 27,690.40
Interest on $11,908.58 thereof 4,250.00
Fox v Wood component 2,144.00
Future loss of earning capacity 147,520.00
$234,004.40

117. The sum of $234,004.40 seems appropriate as an award of damages.

118. As between the defendants there are claims for contribution. There is also a question as to contributory negligence. As the latter question is itself dependant, substantially, on the degree of negligence to be attributed to Twin City, it is best to deal firstly with contribution as between the defendants.

Contribution Notices
119. Many of the issues raised were discussed by me in Norman Allan Betts v White Constructions (ACT) Pty Limited and Ors (ACTSC; SC2058/86; 12/5/92; unreported). There is no claim for contribution as between Twin City and Senlos. However, those defendants claim contribution from Tekmat. Tekmat claims contribution from each of Twin City and Senlos.

120. As Tekmat is now in liquidation, leave to proceed against it is required. Only the plaintiff has been granted that leave. That was granted on 5 August 1991 on the usual condition as to leave being required before any order is enforced. That condition is intended to ensure that insurance indemnities (if any) are called upon so that ordinary creditors are not delayed or prejudiced by this claim.

121. Only Senlos has formally applied for leave to proceed with its contribution claim against Tekmat. I propose to reserve leave to Senlos and Twin City to proceed with or to make such an application in the light of my findings if they are so advised.

122. I proceed with my consideration on the issues relating to contribution, therefore, subject to leave being granted so far as the claim against Tekmat is concerned.

123. The claims for contribution rest, in the first instance, on s.12 of the Law Reform (Miscellaneous Provisions) Act 1955.

124. Twin City and Tekmat were, or should have been, aware that the system of work required by the failure of Tekmat to properly prepare the building superstructure constituted an unacceptable risk of injury by falling. That the risk was increased by Senlos providing defective equipment does not remove that initial failure as a real contributor to the plaintiff's injury.

125. So far as the system is concerned, Tekmat is primarily responsible for it being necessary. It also had responsibility for rendering use of a "cherry-picker" hoist impracticable. Senlos, as the engineering consultant, had some responsibility to suggest ways of proceeding that would be safe. Twin City was an experienced rigging company. Its directors did not consider use of safety harnesses although it had no responsibility for devising the system of work otherwise. It also was unaware of the magnitude of the actual risk because it did not know, nor could it be blamed for not knowing, that the rope provided by Senlos was, on the occasion relevant to the plaintiff's fall, defective.

126. It is a value judgment, but having regard to the decisions I reviewed in Bett's case and that case itself, I consider that it would be "just and equitable" for Senlos and Tekmat each to bear 45% of responsibility for the plaintiff's injuries. The remaining 10% I consider to be the responsibility of Twin City in failing to devise and insist on the use of a safety harness whilst carrying out the tying off process.

127. That is not an end to the matter.

128. Tekmat claims that it is entitled to a full contractual indemnity against its liability to the plaintiff from Senlos by virtue of the written agreement between them. Senlos claims that, following the completion of the work it was required to perform, there was a dispute which arose under that written agreement. That dispute was resolved by the execution of a Deed of Release dated 14 June 1989. Senlos claims that the effect of that deed is to release it from any claim by Tekmat for contribution, whether statutory or contractual.

129. Alternatively, it contends that, as Tekmat has not paid in full the amount secured by the Deed of Release, it is entitled to a set-off against the amount Tekmat claims by way of set-off equal to that shortfall.

130. There is no dispute that Tekmat has since 1 September 1989, failed to pay the final instalment of $65,000.00 due under the Deed. It was a term of the Deed that monies unpaid when due should bear interest at current overdraft rates compounded monthly.

131. Tekmat denies that the Deed entitles Senlos to any such relief.

132. I turn first to Tekmat's contention.

(i) Contract Agreement For Structural Steel - Indemnity and Insurance Clauses
133. Clauses 29 and 30 of the Conditions of Contract executed by Tekmat and Senlos are particularly relied upon.

134. Those clauses are as follows:-

Indemnity
"29. The Contractor shall be liable for and shall indemnify the
Project Manager against any legal liability loss or claim or
proceeding in respect of -
(a) Any loss or damage whatsoever to any property real or personal
insofar as such loss or damage arising out of or in the course of or
by reason of the execution of the Works or in any way relating
thereto, and
(b) Any liability loss claim or proceeding whatsoever arising under
any Statute or at Common Law in respect of personal injury to or
death of any person whomsoever arising out of or in the course of or
caused by the execution of the Works or in any way relating thereto,
to the extent that the same is due to any act negligence omission or
default of the Contractor his servants or agents or of any
sub-contractor his servants or agents."
Insurance
"30.1(a) The Contractor shall be solely liable for and shall
indemnify the Project Manager and employees in respect of and shall
insure for a sum not less than that stated in the Fourth Schedule
against any liability loss claim or proceeding whatsoever arising
under any statute or at common law or assumed under this clause in
respect of personal injury to or death of any person or injury or
damage to any property real or personal occurring in respect of the
Works or arising out of or in the course of or caused by the
execution of the Works.
(b) The Contractor shall effect insurance for -
(i) Workers' Compensation or Employers' Liability insurance extended
to include the name of the Project Manager for an amount not less
than stated in the Fourth Schedule against any liability loss claim
or proceeding whatsoever whether arising by virtue of any statute
relating to Workers' Compensation or Employers' Liability or at
common law in respect of any person employed by him or who shall be
deemed to be or have been his worker or employed by him in or about
the execution of the Works for the purpose of any such statute AND
shall ensure that every sub-contractor from him (nominated or
otherwise) is insured in like manner.
(ii) Public Liability Insurance to cover injury to persons and
property extended to include name of the Project Manager and the
owner of the site of the project and for an amount not less than
stated in the Fourth Schedule."

135. Clause 29, in terms requires the "Contractor", Senlos, to indemnify the "Project Manager", Tekmat, against legal liability in respect of personal injury to any person. The plaintiff would be such a person. The indemnity, however, is "to the extent that the same is due to any act negligence omission or default" of Senlos or any of its sub-contractors. That expression would include Twin City. It follows that cl 29 would require Senlos to bear as against Tekmat, its own and Twin City's liability, ensuring that Tekmat bears only the consequences of its own negligence. Senlos has not, by virtue of cl 29, contracted to bear the cost of Tekmat's negligence.

136. It follows that Tekmat is entitled, pursuant to cl 29, to an order that Senlos hold Tekmat harmless as to all but 45% of the judgment debt.

137. Even where such a limitation was not expressly stated, a clause that was otherwise similar was read down as if it contained such a limitation by Blackburn C.J. in Canberra Formwork v Civil and Civic Ltd (1982) 41 ACTR 1.

138. However, Tekmat also contends that Senlos is obliged to indemnify it for any liability such as that imposed upon it in these proceedings by virtue of cl 30.

139. Clause 30.1(a) is apparently couched in wider terms. It is not expressly limited, as is cl 29, to liability due to an act or omission of Senlos or its employees or sub-contractors. Under cl 30.1(b), Senlos is obliged to insure in the names of itself and Tekmat against any such liability. There was no evidence before me as to whether such insurance had been taken out. That, however, is not essential. Tekmat contends that I should follow the decision of Kelly J in Cervellone v Besselink Bros (1984) 55 ACTR 1 and hold that it is entitled to full indemnity from Senlos. That indemnity is to be inferred from the terms of the obligation to insure, notwithstanding the limited terms of cl 29.

140. Certainly the fact situation in Cervellone's case is analogous. Cervellone was employed directly by the sub-contractor rather than by a further party, as happened in this case, but that is not a significant difference. The head contractor and the sub-contractor were held to have contributed to Cervellone's injury by their own respective negligent acts or omissions. It was not a case of the head contractor being liable only by reason of a vicarious liability or by reason of the breach, by the acts of the sub-contractor, of a non-delegable duty. Their breaches of duty were not "co-extensive".

141. However, there the similarity ends. The injury to Cervellone arose because of the failure of scaffolding provided to the sub-contractor by the head contractor. The sub-contractor expressly agreed (by cl 13) to use the scaffolding so provided entirely at its own risk. It agreed that no warranty or undertaking was to be deemed to have been expressed or implied that the scaffolding was fit for use. Additionally (by cl 9), there was an obligation to insure, in joint names, against liability arising out of the works to be performed by the sub-contractor.

142. Kelly J had to interpret a clause which required such insurance against (cl 9(b)),

(10) "... claims by employees in respect of
injuries sustained during the carrying out of the
works whether arising at common law or by virtue of
any statute relating to Workers' Compensation.
Such common law cover to be unlimited."

143. His Honour dealt with that as follows,

(12-13) "The word "employees" in cl 9(b) of the
contract may well be properly limited to employees
of Besselink (the sub-contractor employing the
plaintiff). The works referred to in the clause
were, as the contract provides, the painting works.
It follows that Besselink's obligation to insure
and thereby protect Citra (the head contractor)
against a claim by the plaintiff arose in this
case. It is unnecessary to attempt to construe cll
9(a) and 9(c). It is plain that the purpose of cl
9(b) was to protect Citra by insurance and thereby
keep it safe against such claims as might fairly
come within the ambit of the clause. In other
words its purpose was to require Besselink to
indemnify Citra by the indirect means of effecting
appropriate insurances against any claims which
employees might make and which might fairly be
brought within the ambit of the clause. Besselink
failed to insure appropriately and hence is liable
to its full extent for any loss which Citra may
sustain at the suit of the plaintiff in this
action. The extent of the damages for the breach
of contract will be the amount which Citra will be
ordered to pay pursuant to this judgment. But for
the breach it would have been held safe by an
appropriate policy of insurance. It is, therefore,
in my opinion, entitled to be indemnified
completely by Besselink.
In view of that finding I give no further
consideration to cl 13 of the contract."

144. If his Honour was suggesting that cl 9 or a similar clause, irrespective of context, created a right to indemnity by creating an obligation to effect insurance against a particular risk, then I would respectfully disagree. Such a clause seems to me to be subordinate to a primary obligation to give indemnity. It seeks to ensure that, if the contractor were called on to meet a claim against which it had indemnity, there would be an insurance fund it could claim against. It avoids the necessity for the contractor to be dependant on the solvency of the sub-contractor or upon the latter's dealings with its own insurers to recover any such loss.

145. However, in Cervellone's case, it seems to me that the insurance clause was intended to support the apparently complete indemnity granted to the head contractor by cl 13. It was a complete indemnity limited in relation to certain particular equipment only, but it was the failure of that equipment which caused the loss in question.

146. To regard the decision as authority otherwise would bring it into conflict with the approach of Blackburn C.J., which I would respectfully support, in Canberra Formwork v Civil and Civic Ltd (supra) (see particularly pp 20-24). (See also the cases referred to in Hudson's Building and Engineering Contracts 10th ed. p 306-313.) Accordingly, whilst I concur with the result, I think that the expressed reasons require qualification.

147. In this case, cl 29 is limited to indemnity against liability arising only from the acts or omissions of subordinate contractors. Clause 30 is intended to support that primary right to indemnity granted by cl 29. It has no wider scope than that. (ii) Indemnity by reason of Deed of Release of 14 June 1989

148. That Deed refers to the Contract Agreement under which Tekmat claimed a right to indemnity. There was, it seems from the recitals in that Deed, a dispute between Senlos and Tekmat as to the total sum due from Tekmat on completion of the works. By an Award dated 6 July 1988, an arbitrator awarded Senlos $189,417.40. Tekmat disputed that result and took proceedings in this Court to have the Award set aside.

149. The Deed of Release purports to resolve that dispute. It provides for Tekmat to pay $195,000.00 by three instalments each of $65,000.00 in full satisfaction of all outstanding claims whether for costs or otherwise.

150. In the substantive part of the Deed there were mutual releases. For the present purposes it is necessary only to refer to cl 2,

"The Contractor (Tekmat) hereby releases and
forever discharges the Sub-Contractor (Senlos) from
all actions, suits, claims, costs and demands for
payment and from its obligations pursuant to cl 23
of the Contract arising out of the execution by the
Sub-Contractor of the work pursuant to the Contract
including any variations or other works carried out
by the Sub-Contractor whether pursuant to the
Contract or in addition to it at the Health
Insurance Commission building site at Tuggeranong
in the Australian Capital Territory."

151. The threshold question is whether, on its true construction, the Deed applies to the claim by Tekmat for contribution from Senlos under the Law Reform (Miscellaneous Provisions) Act 1955. It is obvious to me that it was not so intended.

152. The approach taken by McLelland J in US Surgical Corp v Hospital Products Int Pty Limited (1982) 2 NSWLR 766, 818 seems apt. It would be inequitable to use the general words of this Deed as a means of escaping an obligation falling outside of the true purpose of the transaction in respect of which the Deed was executed. It is clear that the disputed transaction in contemplation under the Deed was the price for and, possibly, the quality of the work performed by Senlos and the sum due to it from Tekmat.

153. It follows that the Deed does not affect Tekmat's right to claim contribution from Senlos in respect of this matter.

154. However, Senlos raises a subsidiary matter. It contends that, even if the Deed does not effect a release of Tekmat's claims for contribution, it is entitled to a set-off for a sum of $65,000.00 remaining due under the Deed.

155. Of course, that claim for contribution is contingent only. It only creates an enforceable right to claim money if Senlos has to pay a sum representing Tekmat's liability to the plaintiff. Tekmat is entitled to contribution from Senlos to the extent that it has to pay any sum representing Senlos' or Twin City's liability to the plaintiff. That is a contractual obligation. It is also entitled to recover, from Twin City, any payment made representing Twin City's liability to the plaintiff. That right is solely statutory. If the claim to set-off is denied, and it meets Tekmat's obligation, Senlos would have a claim ranking with other creditors in the liquidation of Tekmat. If, however, Tekmat pays more than its share, it is suggested that Senlos could reduce its liability to contribute by the full amount of $65,000.00. It could not get the full benefit of that $65,000.00 otherwise. In my opinion, that result would be absurd.

156. The true test is twofold. As was affirmed in Gibb Australia Pty Limited v Cremor Pty Limited (ACTSC; SCA68/91; 10/7/92; Miles C.J., Gallop and Higgins JJ..; unreported), there must be a connection between the two liabilities sought to be set-off and it must also be just and equitable to do so. The contention by Senlos, in my opinion, fails both tests.

157. In the result, the claims for indemnity and set-off by Senlos fail.

Contributory Negligence
158. It was suggested that the plaintiff should bear the entire responsibility for his own misfortune. I have rejected that contention. It is, nevertheless, contended that the plaintiff contributed to his own misfortune by failing to wear a safety harness during the time he was engaged in tying off the top of the steel frame.

159. Ordinarily, such a contention would fail where an employee in the interests of his or her employer, did not observe a safety procedure. In such a case, it would be negligent for the employer not to insist on the employee taking the safety precautions in question. It would be unlikely, if the employer was negligent in not insisting upon safety precautions being taken by employees that the blame could be shifted, even partly, to the employees who were the victims of that negligence (see, for example, Commissioner for Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563). Of course, that is subject to a consideration of the circumstances. A worker may have unreasonably ignored warnings. A worker may be so experienced and have so misconducted himself or herself that a finding of contributory negligence is warranted. The employee might, also, be the person or one of the persons responsible for devising or enforcing safety precautions.

160. Ginty v Belmont Building Supplies (1959) 1 All ER 414 and Shedlezki v Bronte Bakery (1970) 72 SR (NSW) 378 are examples of situations where the fault of the employee is, in fact, co-extensive with the fault of the employer.

161. In this case, the fault of the plaintiff cannot realistically be greater than the contribution of his employer to his injury (that is, 10%). That estimation does not overlook the fact that the two duties in question have some juristic differences. The plaintiff was one of two experienced riggers who were directors of Twin City. If the plaintiff was at fault in not insisting on the use of appropriate safety harness or insisting on use of a "cherry-picker" so also was his co-director. I consider that the plaintiff was guilty of contributory negligence. I consider that he is responsible for 50% of the contribution of Twin City to his misfortune. That is 5% of the total.

162. It follows that the net figure to be awarded, and for which I order judgment to be entered for the plaintiff against the defendants, will be $238,822.61.

163. As between themselves, the defendants will bear that loss and any costs ordered in the proportions 10% by Twin City, 45% by Tekmat and 45% by Senlos. Any defendant paying a greater sum than its proper apportionment will be at liberty to enter judgment for the difference against the other defendant or defendants from whom contribution is recoverable.

164. I will hear the parties as to costs.