Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460

Background

The 2009 High Court decision of Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 reaffirmed the established principles enunciated by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] 160 CLR 16 which protected principal contractors from suits arising out of a sub-contractors own system of work, those principles were (at [47] and [48]):-

Once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the [principal contractor]. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the [principal contractor] is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility

There are a number of decisions since then that have purported to erode the ‘comfort’ of that authority for principal contractors.

The first is the decision of Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk [2011] NSWCA 12 in which the New South Wales Court of Appeal held (at [13]):-

The defendant, as the on-site builder and organiser of sub-contractors, had the principal responsibility to take reasonable care to make the site safe for the performance of work by such subcontractors

The duty of care in that respect extended to the provision of safe means of access for sub-contractors, including the scaffolding on site”.

And further at paragraphs 22 and 23:-

The scaffolding was dangerous; someone had made it so. The state of the scaffolding was within the control of the builder (though, of course, it could be checked by tradesmen working on the site).

No doubt, in some respects, a person who retains an independent contractor can expect the latter to decide how to do the task and what safeguards to put in place. This does not include leaving it to the contractor to find the danger in scaffolding at a building site that reasonable care by the builder/occupier would have found and eliminated”.

The next decision is that of Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 where, in tragic circumstances, Mr Abrahim (the Plaintiff in the underlying action) a painter employed by Blue Star Pty Ltd fell in excess of 10 metres from scaffolding after a beam on a ‘hop-up’ platform, gave way as he traversed on it.

Parkview Constructions Pty Ltd (“Parkview”) was the head contractor on the subject construction site and had engaged Erect Safe as the contractor responsible for erecting the subject scaffolding and hop-up platform at the subject construction site.

Much turned on the mechanism of erecting and securing the subject hop-up platform and it is essential that readers understand the mechanics of a hop-up platform at the outset. Hop-up brackets are attached to a scaffold to protrude from the side of a fixed scaffold platform to create an external platform to work on. A hop-up platform will be 1, 2 or 3 boards wide and the boards are normally fixed to the brackets at either end by tie wire or a ‘tie bar’.

It was accepted that, at the time the scaffolding was erected by Erect Safe, only the third board (being that closest to the wall) was secured to the hop-up brackets by way of tie wire.

The Plaintiff filed proceedings against his employer, Parkview and Erect Safe as joint tortfeasors.

The trial judge found for Mr Abrahim as against Erect Safe and Parkview but dismissed Mr Abrahim’s action against his employer on the basis that it had not been negligent. Apportionment was directed at 60% to Parkview and 40% to Erect Safe.

His Honour accepted that the hop-up platform was safe so as long as it was not interfered with. It was also accepted that the third plank on the hop-up platform had been removed some five days prior to the incident, likely by contracted renderers to gain access to the wall. It was also accepted that if the third plank was removed, the brackets were inclined to splay, rendering the platform structurally insecure.

The findings against Parkview were that it had failed to carefully and regularly inspect the scaffolding, particularly the hop-up platform in circumstances where it was aware, from daily tool-box talks that contractors on the site had been removing the planks and the ties on the hop-up platforms. This was despite the fact that it had given regular instructions to contractors not to remove the planks themselves but to alert Parkview, who would arrange for Erect Safe undertake the work.

The findings against Erect Safe were based on the construction of the subject hop-up platform. Adam J said (at [44] and [45]):-

there was a substantial, obvious and manifestly foreseeable risk that the [plank] closest to the wall will need to be removed and hence might well be removed by a tradesperson

It was obvious that, should this [plank] be removed, as was certainly foreseeable, indeed distinctly likely, the platform would thus be rendered dangerous. The obvious solution was, at least, to tie the second [plank] to the bracket… together with the third board

As to apportionment, Adam J held that the failure by Parkview to inspect the scaffold could be directly linked to Mr Abrahim stepping onto it when it was unsafe. It was so burdened with a higher apportionment to that of Erect Safe. Damages were awarded for Mr Abrahim at $2,302,830.77.

Appeal

Unsurprisingly, Parkview and Erect Safe appealed the trial Judge’s decisions with both appeals mirroring each other in that each finding of negligence was challenged and alternatively, a reduction in apportionment was sought by challenging the finding that Blue Star was not negligent and that the other party was more at fault. Mr Abrahim also filed a cross-appeal against the finding that Blue Star was not negligent.

His Honour Sackville AJA handed down the leading judgment (with McColl JA and Gleeson JA agreeing) in which his Honour held that Parkview, Erect Safe and the employer were all liable.

In the course of Parkview’s appeal, his Honour considered the established authority of Leighton Contractors Pty Ltd v Fox [2009] HCA 35 and noted that a builder in occupation of a site owes a duty to persons coming onto that site to use reasonable care to avoid physical injury to them, where the risk of injury is foreseeable. He further said (at [67]):-

Parkview was the head contractor in overall control of the building site [and] the principal of the project and the occupier of the site. As such, it owed a duty to Mr Abrahim to exercise reasonable care to prevent him from sustaining injury by reason of dangers on the site. The duty was not to ensure his safety; it was only to exercise reasonable care to prevent him and other persons working on the site from being injured

His Honour accepted that the risk was not only foreseeable but “was actually foreseen” given that Parkview was aware, by way of its tool box meetings, that contractors were repeatedly admonished for removing planks on the hop-ups without going through proper procedures.

The Court of Appeal was also persuaded by the fact that Parkview’s policy was to carry out daily inspections for that purpose, which it accepted was precisely the precautions that a reasonable person would have performed and was not a precaution that created excessive burden.

Parkview breached its duty of care when it failed to detect the unsafe state of the subject hop-up platform (which his Honour accepted was an obvious risk) either due to the frequency of the inspections or the attentiveness of same and upheld the finding against Parkview.

The Court did not accept evidence from Erect Safe that it was an industry standard and practice to only secure the third plank with tie-wire to the hop-up braces and held that the evidence it put forward “[fell] well short of establishing that [its] method… conformed with industry practice”.

His Honour was also satisfied that Erect Safe was aware of the tendency to remove secured planks from hop-up platforms on a regular basis without requisite authority and without ensuring that it was returned to a secure state, (at [96]):-

there was a foreseeable risk that workers would suffer harm by reason of the unauthorised removal of Plank 3… where the only mechanism employed to secure the hop-up was tie-wire affixed to Plank 3… In light of Erect Safe’s knowledge of and experience with the practices in building sites, including the practices of renderers and painters requiring access to walls adjacent to hop-ups, there is no element of hindsight reasoning this finding”.

His Honour further said that this took place notwithstanding the fact that Parkview repeatedly gave instructions to not remove the planks themselves, which he said were obviously “manifestly ineffective” and that the risk of injury was not insignificant and the harm, if an incident was to occur, was serious. Accordingly, his Honour said that there was very little burden in taking the precautions to secure the second plank and upheld the finding against Erect Safe.

The Court accepted the appeal against the employer’s liability and held that it owed Abrahim a “personal, non- delegable duty to ensure that reasonable care was taken to prevent him from being injured while working on the site” and that as Parkview and Erect Safe had each breached its duty of care to him, Blue Star was too in breach of its non-delegable duty. His Honour also noted that it was not open for Blue Star to escape liability by contending that it relied on the expertise of Erect Safe or Parkview’s inspection or warning regime.

The Court apportioned the defendants’ liability at one-half to Parkview, one-third to Erect Safe and one-sixth to Blue Star.

Implications

What can then be drawn from this decision for occupiers and principal contractors of construction sites is that there is a particularly onerous duty to undertake regular and thorough safety inspections on scaffolding and other such equipment that can cause the potential for serious harm to any person lawfully entering onto that site, particularly in circumstances where it can be proven that there is actual knowledge of an ongoing issue on the site, or where an occupier/principal contractor is aware that there are safety ‘shortcuts’ with equipment or work methods being undertaken by staff or sub-contractors. As his Honour Sackville JA said (at [73] and [74]):-

On the basis that reasonable care required daily inspections of the site, the failure to detect the obvious danger created by the removal of [the plank] from the hop-up, either because no inspection occurred or inspections were carried out inadequately, constitute a breach of Parkview’s duty of care to Mr Abrahim”.

The case establishes that where a principal contractor is on notice of a safety issue with equipment on the site, or on the site in general, its duty of care will extend not only to issuing warnings and policies relating to that safety issue, but further to ensuring that such warnings and policies are implemented and carried out properly.

What can also be taken away for specialist sub-contractors, such as, in this instance, scaffolders, is that, when erecting equipment, it is not enough to render it safe for the strict purpose for which it was intended, but also for any industry or site known ‘shortcuts’ that are often taken by tradesmen during the course of using that equipment.

It will be interesting to see whether there is an appeal from this decision which sets the bar particularly high for the principal contractor.