The Supreme Court of NSW has found a construction company employer liable for its failure to warn an employee to refrain from standing upon the top rail of a scaffolding structure which was defective in any circumstances but accepted that the scaffolding company did not leave the scaffolding in such a deficient state three days before. The decision provides useful commentary on construction site practices and the potential for an employer to be held liable, even if the employee is injured in the course of an act that is found to be outside of the scope of the prescribed task at hand.
Sharp v Emicon Pty Ltd and ors  NSWSC 1072
In September 2010 the plaintiff, Jarrad Sharp, sustained spinal fractures when he fell from a scaffolding platform in the course of his employment as a carpenter. At the time of his fall, he was completing a task that involved affixing guttering to a building’s fascia boards, which required him to stand on a scaffolding platform approximately 5 metres above ground level. During this task, the plaintiff’s tape measure fell to a location beyond his immediate reach from his safe position on the scaffolding platform. To retrieve it, he alleges he stepped onto one of the upper rails of the scaffolding structure, which was not adequately secured, subsequently was propelled upward, causing him to lose his balance and fall to the ground.
Liability was upheld against the plaintiff’s employer, Coastwise Constructions Pty Ltd (“Coastwise”) for its failure to instruct him not to stand on the top scaffold rail in any circumstances.
The plaintiff’s claim against the scaffolding company Staiger Pty Ltd (“Staiger”), for whom Meridian Lawyers was acting, failed, and the cross-claim between Coastwise and Staiger was dismissed. There was a factual dispute as to whether or not the scaffolding rail in question, which was found to be unstable and improperly secured, was left in its unsecured state by Staiger or whether for some unknown reason it had been tampered with and detached at a later time without Staiger’s knowledge. His Honour Justice Harrison concluded that the unsecured condition of the scaffolding at the time of the plaintiff’s fall is wholly inconsistent with its likely condition when initially erected by Staiger, accepting the evidence of Staiger’s principal that it was likely the scaffolding had been altered by other trades. Hence, the plaintiff failed to prove on the balance of probabilities that the scaffolding was created or left in an unsafe or dangerous condition by Staiger.
A warning for employers
It was recognised that scaffolding structures and the primary purpose they are intended to serve – that is as a safety barrier to protect workers and to prevent falls – would become largely redundant if the workers whom the scaffolding is intended to protect move outside of the protected area. Furthermore, the plaintiff was not injured in the course of performing the precise task he had been assigned, but in the course of an interruption to his assigned task, caused by the need to retrieve his tape measure.
His Honour opined that the method the plaintiff adopted to retrieve his tape measure was unsafe. Venturing beyond the safe confines of the scaffolding platform represented a departure from his obligation to take such care for himself and a finding of 15% contributory negligence was made.
However, despite finding that the method the plaintiff adopted to retrieve his tape measure was unsafe, His Honour concluded that the plaintiff should have been warned by his employer not to stand on the top scaffold rail in any circumstances, even if it had been secured as it should have been, and his employer was also required to have inspected the area properly to detect and correct the deficiencies before sending the plaintiff to work there.
Employers still need to warn employees about workplace safety attributes, even if such attributes are seen to be obvious and are outside the scope of the assigned task.