Deficient scaffolding leads to brick cleaner’s 4.5 metre fall Deficient scaffolding leads to brick cleaner’s 4.5 metre fall

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Deficient scaffolding leads to brick cleaner’s 4.5 metre fall

4 July 2019 | Damages

A brick cleaner sustained severe injuries after falling approximately 4.5 metres from deficient scaffolding onto a pile of bricks below. The occupier of the premises was found to have breached its duty to the plaintiff, which caused or materially contributed to the aggravation of a pre-existing back condition and neck condition.

In issue

  • Whether the defendant breached its duty to the plaintiff by allowing him to work on incomplete and/or inadequately secured scaffolding.
  • If there was a breach, whether this caused the plaintiff’s injuries.
  • Whether the plaintiff was suffering from a pre-existing degenerative back and/or neck condition, and if so, whether it was aggravated by the fall.

The background

On 30 October 2007 the plaintiff was working as a self-employed brick cleaner on a residential building site (premises) of which the defendant was sole proprietor.

The plaintiff fell approximately 4.5 metres from a defective scaffolding bay onto a pile of bricks below (incident). There were no witnesses and no direct evidence surrounding the circumstances of the fall. The scaffolding company was a third party to the proceedings, and the claim against it settled on the morning of trial.

The plaintiff sustained a fractured wrist, fractured ribs, a collapsed lung and a laceration to the head (direct injuries). He also alleged injuries indirectly attributable to the fall comprising aggravation of a pre-existing back and neck conditions (indirect injuries), as well as psychiatric injuries and cognitive impairment. The focus of the plaintiff’s complaints immediately following the incident was on the direct injuries. Complaints about the indirect injuries did not occur until more than three years later.

Pursuant to Part IIA of the Wrongs Act, the plaintiff alleged that the defendant breached its duty as occupier of the premises by, among other things, failing to provide a safe working environment, particularly in respect of the incomplete and/or inadequately secured scaffolding. Further, and in the alternative, the plaintiff alleged statutory breaches under Part 3.5 of the Occupational Health and Safety Regulations 2007.

The decision at trial

The court was satisfied that the scaffolding was deficient and that the defendant had breached its duty to the plaintiff. The plaintiff was awarded a total of $1,043,000 in damages, with general damages of $300,000 and special damages of $743,000.

In finding negligence the court pointed to evidence of, among other things, the scaffolding only being partially complete and the presence of ‘live edges’ due to no guard rails being installed. The defendant admitted to not having inspected the premises in the seven days prior to the incident.

In relation to causation, it was not in dispute that the direct injuries were caused by the incident. As to the indirect injuries, the defendant was unsuccessful in arguing that the plaintiff was suffering from a natural evolution of his pre-existing back and neck conditions.

Even though there were other possible explanations for the indirect injuries, on the balance of probabilities they were aggravated or exacerbated by the incident. It was accepted that the cognitive and psychiatric injuries were responsive to the physical injuries. It followed that these injuries were also caused or materially contributed to by the incident.

Implications for you

The decision offers another reminder to occupiers of the importance of maintaining safety requirements and carrying out regular inspections in respect of scaffolding on building sites. More importantly, though, it demonstrates that causation in relation to indirect injuries may be broadly applied notwithstanding delays in the plaintiff’s complaint about such injuries.

Bucic v Arnej Pty Ltd [2019] VSC 330


This case note was written by Nick Hellyer, a graduate in our Insurance & Health team.