Principal contractor liable for unsafe access ladders, despite third party’s specialist expertise

In this recent Supreme Court decision of Speziali v Nortask Pty Ltd [2023] QSC166, a principal contractor was found primarily (75%) liable for injuries sustained by an employee of a specialist contractor on the basis that the principal contractor failed to provide a safe means of access to an elevated work area.

This case serves as a convenient reminder that the ‘specialist contractor’ defence will only be available to principal contractors when injuries are sustained as a consequence of that core work. The defence does not extend to protect principal contractors for breaches of their responsibilities.

Facts

Mr Speziali was employed by Nortask Pty Ltd (a specialist civil construction and engineering company) as a rigger/dogger. He was instructed to perform repair works at an oil refinery owned by Dalby Bio-Refinery Limited (DBL).

On 15 June 2017, Mr Speziali was carrying out repair works in a metal silo called ‘the Cyclone’. He was descending a fixed ladder when he fell about 10 metres landing on concrete ground, sustaining serious injuries.

To access the platform, Mr Speziali had to negotiate a series of three ladders and two transitional platforms. Each platform contained a new ladder for him to climb in order to reach the platform at the top that required repair. He fell from the ladder that connected the middle platform to the top platform.

Nortask and DBL had detailed documented systems in place, including Job Safety and Environmental Analysis forms and Permits to Work – both of which identified the risk of falling from heights. It was also clear that DBL knew that Mr Speziali and his co-workers were using the relevant ladders.

The relevant access system was not compliant with the relevant Australian Standard (AS1657). The horizontal distance between the top ladder and the rear guardrail was 1 cm shorter than required and the distance between the top ladder and the side guardrail of the mid platform was 9 cm shorter than required.

Additionally, the evidence established that the area was muddy and often filled with water, which made the smooth, hot-dipped galvanised steel ladders extremely slippery.

Liability of DBL

Nortask admitted liability for the incident. However, DBL denied it was negligent at all.

Justice Hindman accepted the incident occurred broadly as alleged by Mr Speziali, including that he was descending the top ladder in an orthodox and careful manner when he lost his footing. Her Honour found that Mr Speziali was reasonably using the access method provided and there was no indication or instruction that the ladders were not suitable for use in particular conditions or that some fall arrest system was to be used while on the ladders. (The JSEA required harnesses only while workers worked on top of the platform and there was also evidence that DBL allowed its own staff to use the subject ladders, including on the day of the incident, without harnesses.)

DBL argued that the minor non-compliance with the Australian Standards was not causative because the evidence was more consistent with Mr Speziali having fallen over the rear guardrail of the mid platform, rather than through the gap. However, Justice Hindman rejected that argument noting that analysis treated:

the AS non-compliances as being the two dimensional space rather than the three dimensional space. Both non‑compliances mentioned, in combination, are likely to have contributed to the circumstances of Mr Speziali hitting the top of the mid platform guardrails (likely rear and side) and tumbling over the edge of same, rather than tumbling over the mid platform, when he slipped from the top ladder’.

Her Honour further found that the key failure of the access system was the unacceptably large gap between the bottom of the steel cage around the top ladder and the top guardrails of the mid platform, which meant that a person slipping from the top ladder could go over the top and thereafter fall more than 8.8 metres onto concrete below.

Justice Hindman found that a reasonable person in the position of DBL would have identified the non-compliance of the access system with the relevant Australian Standards, identified the risk that a person falling from the top ladder may fall through the gap and thereafter close the gaps, and that such precautions were not burdensome.

Importantly, at paragraph 68, Justice Hindman noted:

I do not consider it is an answer to the allegation of breach of duty for DBL to say that Nortask was an independent contractor specialised in the task. There is no specialisation required for the ascending and descending of a ladder. Nor is this properly a case about an independent contractor being required to ascertain its own system of work. It is a case about an occupier of premises making a method of access available to a person attending its premises in circumstances where it should have identified and fixed a non-compliance that made the method of access unsafe.

Apportionment between Nortask and DBL

Justice Hindman then had to consider the relevant apportionment between Nortask and DBL.

Her Honour started from the position that ‘equity is equality’. However, her Honour considered that the relevant culpabilities and causal impacts of the actions of Nortask and DBL were not indistinguishable.

Justice Hindman found the dominant cause of Mr Speziali’s injuries was the fact that there was a gap between the bottom of the steel cage to the top ladder and the guardrails from mid platform that a person, slipping in an uncontrolled way, could fall between to the ground. ‘The responsibility for that state of affairs lies with DBL, and could not have been readily identified by Nortask. Accordingly, a significantly larger proportion of liability should rest with DBL.’

Her Honour therefore accepted Nortask’s submission that appropriate apportionment was 25/75% in Nortask’s favour and noted that, if anything, ‘that is a generous assessment in favour of DBL and Nortask might properly have sought to sheet home an increased apportionment to DBL’.

Contributory negligence

Justice Hindman was also required to consider the issue of contributory negligence.

DBL alleged that a reasonable person in the position of Mr Speziali would have used a full arrest harness on the top ladder, reassessed the safety risks associated with using ladders once contaminants (i.e. mud and water) were observed, used the man-box (via the crane) rather than ladders to access the top platform, and taken steps to remove any contaminants/moisture from the ladder.

However, Justice Hindman had little hesitation rejecting all of those arguments. Her Honour found that there was no negligence in Mr Speziali:

• not using a full arrest harness because the top ladder was not designed or constructed for use with harnesses and the ladders and platforms were commonly used by staff, including DBL’s own staff, without full harnesses
• using the ladders rather than the man-box because the ladders were the logical means of persons accessing the top platform and the purpose of the man-box was to move materials and equipment unable to be safely carried via the ladder
• not reassessing the risks associated with the use of the ladders after observing them to be contaminated or in failing to remove the contaminants as it was reasonable for him to assume the ladders were safe for use in wet conditions.

Accordingly, no contributory negligence discount was applied.

Conclusion

Mr Speziali was awarded $1,203,193.00, of which the employer, Nortask (and therefore WorkCover Queensland) was required to pay only $224,813.50 inclusive of its statutory refund of $355,177.33 – meaning WorkCover will receive a partial refund back from DBL of more than $130,000.

This case serves as a convenient reminder that the ‘specialist contractor’ defence will only be available to principal contractors when injuries are sustained as a consequence of that core work. To put that another way, where an injury occurs because of some other risk on site – for example, a defective access ladder, as occurred here – that breach will still rest squarely with the principal contractor in control of the relevant site.