Construction Safety Regulations 1950, Regs 73 And 74 - Whether "Construction Work"

The Uniting Church v Takacs [2008] NSWCA 141 20 June 2008

Hodgson JA; McColl JA, Basten JA

In Brief

• The Court of Appeal had to decide whether the owner/occupier of a property could be said to be in charge of construction work for the purposes of reg 74 of the Construction Safety Regulations, 1950, and whether for the purpose of reg 73, taking measurements for the purpose of providing a quote to paint the roof by an independent contractor constituted "construction work" which was "carried out" under reg 73.

• The Court also considered whether the occupier was in breach of its duty of care to the plaintiff, an independent contractor, with apparent expertise to safeguard himself in undertaking his trade.

Background

• Regulation 73 relevantly provided:

"Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk...to persons engaged in such construction work...and he shall...

(3) provide means by fencing for securing the safety of any person..."

• Regulation 74 relevantly provided:

"(1) Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold, the person in charge of the construction work shall provide –

(a) A safety belt and safety line or safety harness...; or

(b) A safety net...while the work is being carried out".

• On 4 May 1999 the plaintiff was injured when he fell from the roof of the premises owned and occupied by the defendant. On this day the plaintiff had gone to the defendant's premises at the request of the defendant's building maintenance manager, Mr Bruno Bagnara, for the purpose of providing a quote for some painting work.

• The plaintiff arrived at the defendant's premises at Northaven with his friend Mr Ayre. At the direction of Mr Bagnara, the plaintiff descended a ladder in order to gain access to a section of roofing for the purpose of measuring the roof so that a quote could be provided by the plaintiff. As the plaintiff approached the end of the roof, he crouched in order to place the tape measure along the roof. As he crouched his foot slipped between the ridges of the kliplok sheets, causing him to stumble and roll off the edge of the roof. He fell approximately nine metres, sustaining multiple injuries.

Supreme Court Decision

• The primary judge, Rothman J, held that the fact that the defendant was predominantly involved in providing aged care facilities did not mean that it cannot also be engaged in the building industry, or in building activities. The fact that the defendant employed Mr Bagnara, confirms that at least in relation to the work carried out by Mr Bagnara, the defendant was engaged in the building industry.

• On the question of whether or not the measurement of the roof for the purposes of providing a quote for construction work, constituted construction work. Rothman J held that measuring a roof in order to determine how much paint was required is a concomitant part of painting and therefore falls within the term "building work", which is encompassed in the definition of "construction work" as contained in s 3 of the Construction Safety Act, 1912 (NSW).

• Rothman J concluded that the defendant was responsible for duties imposed by reg 73. He found that the defendant had not complied with reg 73(3), and therefore found in favour of the plaintiff on the question of liability.

• The primary judge found that the defendant was also in reach of reg 74(1)(a).

• In relation to the plaintiff's claim against the defendant in negligence, the primary judge held that the defendant, as occupier of the land and building in question, owed the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury.

• The primary judge found that the defendant had breached its duty of care by failing to, amongst other matters, fence an area on which the plaintiff was required to walk and provide him with a safety harness.

• On the question of contributory negligence, the primary judge found that the plaintiff did depart from the standard of care of a reasonable person, but owing to his inexperience in relation to roofs, he only deducted 20% for contributory negligence.

Court of Appeal Decision

Judgment Hodgson JA

• The primary judgment was delivered by Hodgson JA.

• On the question of whether the defendant was carrying out construction work at the time of the plaintiff's accident, Hodgson JA held that it was not, hence reg 73 did not apply. His Honour found that the position of the defendant was no different from that of a householder engaging a contractor to do a particular piece of work on the householder's property. There was no evidence of any wider project or building work, and no element of co-ordination, not even the rudimentary co-ordination referred to in Lenz v Trustees of the Catholic Church & Anor [2005] NSWCA 446.

• The plaintiff submitted that the primary judge was correct in holding that the defendant, through Mr Bagnara, was in charge of the construction work. Referring to Heydon J in Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267, the question of is who is in charge of a building work means who has the overall responsibility for the conduct of that building work. As in the case of Almeida v Universal Dye Work Pty Ltd [2000] NSWCA 264, it must be the case that the person in question is in charge of the building work, and not the property on which the building work is being done.

• Hodgson J was not satisfied that the actions of Mr Bagnara in unlocking a door, providing a ladder, and requesting or directing the plaintiff to measure a roof amounted to the defendant, or the defendant throught Mr Bagnara, as being in charge of the building work. Accordingly, Hodgson JA held that the primary judge had erred in finding that the defendant, or indeed Mr Bagnara, was in charge of the work in painting the roof. As such reg 74 did not apply.

• In relation to whether or not the defendant had breached its duty of care to the plaintiff, the defendant submitted that the defendant owed no duty of care to the plaintiff. However, Hodgson JA held that it was clear that the defendant owed a duty of care to the plaintiff. This duty arose from its occupation of the property on which the plaintiff was injured, and its invitation to the plaintiff to come onto its property for the purpose of providing a quote for painting works. He broadly described this duty as a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.

• In relation to the question of breach, the defendant submitted that the risks of injury to the plaintiff were obvious and did not call for any precautions to be taken by the defendant. Accordingly, they submitted that there was no breach of duty of care on the part of the defendant. Hodgson J agreed with the defendant's submission in respect of this issue finding there was no evidence that the plaintiff was not experienced in working on roofs, or that there was anything particularly unusual with the Kliplok roof, although the magnitude of injury that could have been caused to the plaintiff was very great, the risk of him actually injuring himself was so very small that a reasonable person in the position of the defendant would not have taken any steps to avert a possible injury to the plaintiff.

Judgment of McColl JA.

• McColl JA, agreed with the Orders of Hodgson JA and found also that the defendant did not breach any duty of care it may have owed to the plaintiff. Shenoted the plaintiff was an independent contractor with apparent expertise to safeguard himself in undertaking his trade and the defendant had no duty to warn or provide safeguards in such circumstances; Papatonakis v Australian Telecommunications Commission [1988] HCA 3.

• Turning then to the question of whether the defendant breached its statutory duty to the plaintiff pursuant to regs 73 and 74 of the Construction Safety Regulations, 1950. McColl JA did not deal with the question of whether the measuring the roof for the purpose of providing a quote amounted to "building work" as she agreed with Hodgson JA's finding that the defendant was not directly or by its servants or agents carrying out any "building work".

• McColl JA also agreed with Hodgson JA in his finding that the defendant was not in charge of the building work. McColl JA found that by Mr Bagnara requesting that the plaintiff attend the premises for the purpose of giving a quote and giving him access to the roof, did not mean that he was participating in the activity in which the plaintiff was engaged in, in the sense referred to by Mason P in Lenz v Trustees of the Catholic Church [2005] NSWCA 267.

• In relation to the reg 74 argument, McColl JA held that it was the plaintiff was in charge of the activity of measuring the roof, and the mere fact that the defendant was the owner or occupier of the premises did not establish that it was carrying out the building work, or that it was in charge of it. Accordingly, no obligations were imposed on it under the Construction Safety Regulations 1950 (NSW).

Judgment of Basten JA (dissenting)

• In his dissenting judgment, Basten JA held that there was no doubt that the act of measuring the roof in order to provide a quotation for such intended work was "construction work" within the meaning of the definition contained in the Construction Safety Act.

• Basten JA held that the plaintiff was neither an employee nor an independent contractor of the defendant. He was simply a person who had been invited on to the defendant's premises in order to provide an estimate for painting work. He found that the task of repainting the roof, had not been at that stage "wholly delegated" to the plaintiff or in fact any person, and accordingly the defendant was carrying out building work through an agent, the agent being the plaintiff.

• Basten JA having accepted that construction work was being undertaken at the time of the plaintiff's accident indicated the next question for the purposes of reg 73 was whether the plaintiff was "engaged in" such work. His Honour considered once it is was accepted that construction work was then being undertaken, it was difficult to resist the conclusion that both the Plaintiff, Mr Bagnara and the plaintiff's friend were "engaged in" the work for the purposes of the regulation. His Honour concluded the fact that their engagement was confined to a limited task and may have proceeded no further was beside the point, so long as the task itself formed part of the construction work. Accordingly Basten JA considered reg 73 applied and the defendant was in breach for failing to fence the roof.

• In relation to the reg 74 argument, the defendant argued that this regulation did not apply as the plaintiff was not at the relevant time engaged in construction work. Basten JA rejected that submission for the reasons he expounded in relation to the reg 73 argument.

• Having found that the defendant was in breach of its statutory duties pursuant to regs 73 and 74 of the Constructions Safety Regulations, Basten JA did not deal with the plaintiff's claim in negligence. Contributory negligence was not available as a defence to breach of statutory duty at that time.

Implications

• This decision confirmed the approach of the High Court in Papatonakis v Australia Telecommunications Commission that an occupier can rely upon a competent independent contractor to safeguard himself in undertaking his trade.

• The Construction Safety Regulations 1950 were repealed on 1 October 2001 and replaced by the Occupational Health & Safety Regulations 2001 which is a significantly different legislative regime, so this decision will be of less significance going forward.

• Regulation 73 will not apply in circumstances where the occupier does not "carry out" any construction work itself. Even though the defendant was a significant property owner with a building maintenance manager there was no wider project or building work and no element of co-ordination involved. An independent contractor carried out the work.

• Regulation 74 will not apply unless the defendant "is in charge" of the work and simply directing a person to carry out a particular task does not amount to being in charge of construction work.

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