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HG Insurance and Risk Alert: Sharp v Emicon Pty Ltd [2014] 15 August 2014

In this Alert, Senior Associate Brooke Jacobs discusses the decision of the New South Wales Supreme Court in Sharp v Emicon Pty Ltd [2014] NSWSC 1072. This decision highlights once again the need for employers to give workers precise instructions about how to safely carry out their duties.

Facts

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.

Decision

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 Staiger.

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:

  1. Failing to inspect the scaffolding, which was deficient, in circumstances where the defects would have been obvious on any inspection. 
  2. 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 scaffolding).

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 rails”;
  • Courts can be very forgiving of plaintiffs’ inconsistencies in evidence.

For more information please contact HopgoodGanim's Insurance and Risk team.

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