Varga v Galea [2011] NSWCA 76

The plaintiff/appellant appealed contributory negligence as a consequence of a fall at a building construction site. The plaintiff was the sole director and shareholder in a company which employed him, Greystanes Bricklaying Pty Limited (“Greystanes”). The proceedings were however, brought against the principal contractor. The respondents/defendants were successful at trial on the issue that there was 25% contributory negligence and that amount was equal to the amount of contribution had he joined his employer, and secondly the amount was liable to a further reduction for the appellant’s contributory negligence.

On appeal McColl JA with whom Beazley JA and Handley AJA concurred, considered whether there was contributory negligence and found that there was not. On this basis McColl JA determined ipso facto it also failed as against the employer (rather than determining the separate liability of the employer). In so doing McColl JA found it was not sufficient to simple allege a reasonably practicable precaution or alternative course of conduct, use of which would have avoided, or reduced the consequences of, the injury, but to show evidence of it.


It is convenient to commence consideration of the causation issue by determining whether the respondents established that Greystanes breached its duty of care to the appellant and, in particular, whether that negligence was a cause of his injuries. If that question is answered in the negative, he cannot have been guilty of the contributory negligence for which the respondents contended, and the primary judge accepted, in failing to wear a safety harness.


For the purposes of the s 151Z exercise, as I have said, the respondents bore the legal and evidentiary burden of establishing that Greystanes had breached its duty of care to the appellant. They had to demonstrate first, as was uncontroversial, that there was a reasonably foreseeable risk of injury to the appellant in his manner of performing the task he was undertaking. Secondly, they had to prove that Greystanes failed to take reasonable care to avoid that risk because it failed to devise a method of operation for the performance of the task that eliminated the risk, or failed to provided adequate safeguards: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (at [12]) .


The respondents’ case at trial was that Greystanes failed to provide adequate safeguards in the form of a safety harness. To establish that proposition, they had to be able to establish that a safety harness was a reasonably practicable precaution or alternative course of conduct, use of which would have avoided, or reduced the consequences of, the injury the appellant suffered: Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362 (at 364) per Dixon CJ, (at 369 – 370) per Taylor and Owen JJ; Vozza v Tooth & Co Limited [1964] HCA 29; (1964) 112 CLR 316 (at 319) per Windeyer J (with whom the other members of the Court agreed); see also Australian Iron & Steel v Krstevski [1973] HCA 42; (1973) 128 CLR 666. A practicable alternative will not be shown if it exposes the plaintiff to risks of a different, but equally dangerous, kind: Glass, McHugh and Douglas, The Liability of Employers , 2 nd ed (1979) The Law Book Company Limited (at 33).


Evidence of the practicability of a proposed alternative course or safeguard “is essential except to the extent that [it is] within the common knowledge of the ordinary man”: Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 (at 293) per Barwick CJ; see also Neill (at 369 – 370); Vozza (at 321 – 322). A mere allegation that a precaution is practicable is insufficient where the evaluation of whether or not the precaution is practicable involves issues of technical knowledge and experience: Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 (at [45]) per McHugh J, citing Bressington v Commissioner for Railways (NSW) [1947] HCA 47; (1947) 75 CLR 339 (at 348) per Latham CJ. Absent such evidence, or an ability to have recourse to common knowledge, it will merely be a matter of conjecture whether suggested precautions would be practicable or not: Neill (at 365) per Kitto J.


The primary judge appears to have approached the question of causation by deducing that the appellant could have been provided with a safety harness with a safety line, that such a harness could have been secured to the scissor lift railing and that by wearing it the appellant would not have been injured in the circumstances of this accident, in particular, that he would not have been impaled on the starter bars protruding from the Besser blocks into which the concrete was being poured. In my view this approach was not open to her Honour.


First, the evidence about whether a safety harness could have been attached to the scissor lift railing was confusing. The appellant said on several occasions that there was nowhere to put a safety harness, evidence which contradicted his evidence that a safety harness could be attached. Moreover, he gave evidence that it was dangerous to use a safety harness in a scissor lift.


Secondly, even assuming that a safety harness could have been attached in some manner to the scissor lift, whether such a device might have prevented the appellant being injured, or even reduced the risk of injury was a matter of speculation.


It might in some cases be a matter of common sense to infer that a safety harness will prevent injury to a person at risk of falling from a height. However, as General Cleaning Contractors Ltd v Christmas [1953] AC 180 illustrates, even in what appears to be such a case, evidence will be required of the reasonable practicality of the safety measures proposed. In that case, the plaintiff, a window cleaner, fell from the windowsill on which he was working when the sash of the window that he was holding to prevent him falling closed on his fingers causing him to lose his grip. The general system of work was to permit window cleaners to clean windows while standing on the window sill. The plaintiff led some evidence about alternative systems of work, such as the use of safety belts and hooks or ladders, but that evidence did not establish their practicability for general use. Lord Tucker (at 198) expressed the view that even in such circumstances “it should be clearly established by evidence that some other and safer system is reasonably practicable and that its adoption would have obviated the particular accident which has occasioned damage to the plaintiff.”


The appellant’s accident was unusual. He was first elevated into the air above the scissor lift (counsel for the respondents decried the use of the word “catapulted”, although that is the sense of the appellant’s evidence) in a trajectory which took him over a series of spear-like metal bars protruding up to 1.2 metres above the Besser block wall. How a safety harness might have operated in those circumstances was not a matter of commonsense. It required a technical explanation of the nature of safety harnesses, where one might have been safely attached to the scissor lift, and how it would have functioned in these circumstances. In the absence of such evidence it was not, in my view, open to the primary judge to conclude that the respondents had established that Greystanes was guilty of negligence which was a cause of the appellant’s injury in failing to provide a harness. Her Honour erred in so doing. Absent that finding, the respondents’ case of contributory negligence ipso facto also failed.


I would allow the appeal.


Brisbane Barrister – David Cormack

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