In this Alert, Senior Associate Brooke Jacobs discusses the
decision of the New South Wales Supreme Court in Sharp v Emicon
Pty Ltd  NSWSC 1072. This decision highlights once again
the need for employers to give workers precise instructions about
how to safely carry out their duties.
The plaintiff was a carpenter working on a site occupied by
Emicon on 22 September 2008. He was employed by Coastwise, a
company operated by his brother. The scaffolding on site had been
erected by Staiger.
The plaintiff gave varying versions of events. Ultimately, the
case he advanced at trial was that he was affixing guttering to the
fascia of a building, working from a scaffolding platform about 5m
above the ground. His tape measure fell into the eave space above
the soffit. The plaintiff stood on a horizontal rail of the
scaffolding to retrieve it. The rail moved under the
plaintiff's weight and caused him to lose his balance and fall
head first through unlined roof timbers into a concrete stairwell.
He sustained spinal fractures and sued Emicon, Coastwise and
Staiger for damages in negligence.
There was a factual dispute about whether the plaintiff was
standing on the top or the middle rail of the scaffolding. It was
uncontested that the top rail was unsecured, although there was a
factual dispute whether it was erected that way by Staiger or had
been tampered with after installation. The plaintiff had previously
given statements to the effect that he had stepped on the mid rail
however had changed his mind after viewing photographs
demonstrating the unsecured top rail. The court ultimately regarded
the plaintiff as a witness of truth and this adjustment in his
version of events reasonable rather than "a self serving
shift in his evidence borne of a recognition or realisation that it
favoured his case."
The court also scrutinised the plaintiff's evidence in cross
examination, which revealed that Coastwise as his employer had not
given any instructions about how to use the scaffolding on this
site before commencing work. In particular, Coastwise did not give
any instructions to the plaintiff not to stand on the scaffolding
railings. The plaintiff conceded that, if such a direction had been
given (even though it was, in effect, given by his brother) he
would have obeyed it.
The claim against Emicon as the occupier was dismissed by
consent of the parties. The claim against Staiger was dismissed by
the court on the basis that it was satisfied that the scaffolding
had been altered or amended following its original erection by
However, the court was persuaded that Coastwise had failed to
take proper care for the plaintiff. The court found that Coastwise
had breached its duty to the plaintiff by virtue of:
Failing to inspect the scaffolding, which was deficient, in
circumstances where the defects would have been obvious on any
Failing to instruct the plaintiff not to stand on the scaffold
rails (even though the risk was obvious, the court found this duty
was enhanced by the unstable and unsafe nature of the
The court was not persuaded that the plaintiff's lack of
care for his own safety could be categorised as mere
inadvertence and therefore determined that his damages should
be reduced by 15% on account of contributory negligence.
Taking into account the 15% reduction, the plaintiff was awarded
$726,624 in damages from his brother's company, Coastwise.
Key take away points
Employers must provide site specific and comprehensive
instructions in how to safely perform duties in order to avoid
adverse negligence findings;
The duty to provide instructions extends even to the obvious
– such as "do not stand on the scaffold safety
Courts can be very forgiving of plaintiffs' inconsistencies
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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