Who and when to sue in the zoo

06 June 2022

A scaffolding contractor on a building site was liable for injuries to the employee of a sub- contractor, and its defence that the claim was statute barred was rejected.

In issue

  • The court had to consider a number of issues including: whether a scaffolding contractor on a work site (first defendant) or the sub-contractor employer of the injured plaintiff (second defendant) was responsible for injuries sustained from a falling plank; whether the proceedings had been commenced within the relevant limitation period; and the associated statutory indemnities or contribution applicable in the circumstances.

The background

The plaintiff claimed damages for personal injury he suffered in a work site accident. Mr Aleaimat was paid by the second defendant, DJ Scaffolding (DJ Scaffolding) for work as a ‘sub-contracting’ truck driver delivering and collecting scaffolding. The first defendant, Synergy Scaffolding Pty Limited (Synergy Scaffolding), was the scaffolding contractor on the work site where the accident occurred.

On 10 October 2012 the plaintiff was directed by Synergy Scaffolding’s Operations Manager, from whom he took his instructions, to attend a work site to pick up scaffolding materials. The plaintiff arrived at the site and found that the scaffolding was still being dismantled. He rang Synergy Scaffolding’s Operations Manager for further instructions, and was told to assist the workers dismantling the scaffolding. The workers had set up a work-line, passing the scaffolding components down from hand to hand. The scaffolding was more than three storeys high and the plaintiff was on the ground level receiving components passed down. At some point the plaintiff was struck from above by a falling 2.4-metre-long metallic scaffolding plank or “bench” across the left shoulder and down his lower back knocking him to the ground.

The decision at trial

The court gave judgment for the plaintiff against the first defendant, Synergy Scaffolding, but gave judgment for the second defendant against the plaintiff.

In relation to determining which defendant was responsible for the plaintiff’s injuries, the court noted that the relevant risk of injury was correctly identified as the risk of injury to a person within the class of persons working in or near the manual process of dismantling the scaffold by reason of a dismantled component falling and striking a member of that class. The court determined a reasonable person in charge of the operations of dismantling the scaffold would have taken precautions against the risk of harm by creating an exclusion zone at ground level into which components dropped or fell, either by cordoning it off with safety tape to clearly mark the area, or by instructing workers to keep clear of the designated area.

Synergy Scaffolding was solely liable in damages for the injury suffered by the plaintiff. Synergy Scaffolding’s Operations Manager hired and trained the plaintiff, and there was no evidence that anyone associated with DJ’s Scaffolding ever gave any instruction to the plaintiff about where to work or how to perform the work. There was no evidence that anyone from DJ’s Scaffolding or any other identified labour hire “sub-contractor” might have been utilised by Synergy Scaffolding, and there was no evidence that anyone "employed" by DJ’s Scaffolding was even on site on the day of the accident.

In these circumstances, Synergy Scaffolding came under a duty to use reasonable care to ensure that the system of work for dismantling the scaffolding at the work site was safe. Without more, it was “... negligent to leave the task to what might have been a disparate crew of scaffolders wearing Synergy Scaffolding’s livery on the chance that someone would be sufficiently competent and possessed of sufficient leadership skills to come up with and institute a safe system of work and supervise the compliance of other workers with it. This was not a situation where it was reasonable to simply leave experienced tradesmen to their own devices for the performance of a simple and familiar task.

DJ Scaffolding was not liable because the premises and system of work were not under its control. There was no evidence that any other person employed by DJ’s Scaffolding was engaged in the performance of the work of dismantling the scaffolding. DJ’s Scaffolding had no control over the general process of disassembly of the scaffolding or over the scaffolders engaged in that task. It had no power to co-ordinate or direct their activities. In addition, it had no opportunity to enquire about the conditions at the worksite, what system of work was in place and of the competence of those who might have been in charge. As such, it was not shown to have breached an employer’s duty of reasonable care.

In relation to the limitation issue, the court was not satisfied that the plaintiff’s claim was statute barred. Although there was no doubt the plaintiff was aware that he had suffered an injury, the position was unclear in relation to whether he knew or ought to have known that his injury was caused by the fault of Synergy Scaffolding. He certainly had the belief that his “employer (was) negligent” but that was insufficient, especially given the issues about legal responsibility between Synergy Scaffolding, on the one hand, and DJ’s Scaffolding on the other.

In addition, it had to be demonstrated that the plaintiff had actual or constructive knowledge that he had sufficient prospects of recovering enough damages for it to be worthwhile litigating. This was not clear on either the medical or legal evidence.

Implications for you

This case provides useful guidance on the circumstances in which multiple parties engaged in construction activities will be found liable for injuries suffered by a worker injured on site. Of particular relevance will be matters relating to the control of the site, the work practices and the ability to direct the conduct or behaviour of the injured party. This case demonstrates the care which must be taken when investigating and preparing evidence for trial in matters involving multiple parties on work sites.

Updated 15 September 2023: On 7 September 2023, the NSW Court of Appeal varied the orders made by the primary judge following an appeal by Synergy Scaffolding. The Court of Appeal held that the limitation defence raised had been correctly rejected. However, it held that the primary judge had erred in finding that DJSS was not negligent. Notwithstanding this, Synergy Scaffolding had not discharged its onus of establishing that it was entitled to contribution or indemnity. The Workers Compensation Nominal Insurer (WCNI) was not entitled to an indemnity for the workers compensation paid as the conditions for the application of s 151Z(2)(e) were not met in the circumstances of the case. As a result, the respondent worker was not required to repay WCNI for the medical expenses it had paid on his behalf, but the Court of Appeal indicated that those medical expenses should be deducted from the damages awarded against Synergy Scaffolding so as not to create a windfall in the respondent worker’s favour.

Alelaimat v Synergy Scaffolding Services (No 3) [2022] NSWSC 536

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