3 Defendants Accept Liability for a Worker’s Serious Injury

In the recent case of Iannello v BAE Automation and Electrical Services Pty Ltd & Ors [2008] VSC 544 an experienced engineer who fell through a skylight of a building whilst undertaking routine maintenance resulting in serious injury sustained to the back, neck and head sought compensation for pecuniary loss and pain and suffering against 3 separate defendants.

The building had recently been renovated to allow for the installation of two new air-conditioners, necessitating all maintenance work to be done via climbing a ladder, crossing the lower roof, and then climbing onto the raised roof, where the skylight was situated.

He brought proceedings against his employer, the council as the occupier of the building, and the architect responsible for the design of the renovations.

The three defendants each admitted liability, however lacked agreement as to apportionment of contribution.

The Supreme Court of Victoria was presented with evidence of gross deficiencies in safety mechanisms and procedures, and collectively deemed the risk of a worker falling through the skylight and suffering a serious injury should have been anticipated by all 3 defendants.

In determining the scope of each liability, His Honour Forrest J addressed each of the defendants’ individual roles in determining apportionment.

Employer

His Honour held that the employer should bear 25% of the responsibility. His Honour noted that the employer had failed to undertake adequate risk assessments, nor were any instructions provided to the plaintiff regarding safe access to the air-conditioning units on the roof.

The employer sought to minimise its responsibility, arguing that the plaintiff was an expert in his field and vastly experienced in the type of duties he was performing at the time of the accident.

His Honour dismissed this defence as an attempt to “… avoid duty by relying solely on the expertise of the employee”. He held that it was the employer’s obligation to devise and implement a safe system of work where there is a real risk of serious injury, and could not avoid responsibility which is fundamental irrespective of the fact that the work undertaken was carried out at a premise outside the employer’s control which His Honour described as a “… common experience in this day and age”.

Architect

The court criticised the architect of the renovations as failing to consider the risks posed by installing 2 air-conditioners on the raised roof.

The architect absolved himself from responsibility in the context of OHS obligation citing that that was the responsibility of the employer, and something which he lacked the qualification to take into consideration. The architect defined the scope of his duty as of someone who solely submits plans and specifications.

His Honour rejected this characterization as being out of touch with the modern building projects stating that

• “… One could have understood this evidence being given in the 1930s or perhaps the 1950s, but not in relation to a project undertaken in the late 1990s when even the Code of Practice addressed the question of design planning”.

His Honour attributed the architect’s liability at 10%, significantly less than the Council or Employer, explaining the discrepancy by noting that the architect had no control over the premises or the plaintiff’s working conditions, and that its role in preparing plans and specifications ceased a few years prior to the plaintiff’s accident during which time there was ample time for the employer and council to identify potential risks and to take ameliorating action.

Council

His Honour apportioned the majority of liability of 65% to the council who he deemed that as the controller of the workplace had an obligation to conduct a risk assessment to ensure safe access to the roof.

Council in turn argued that the renovation was completed by experts thus it was reasonable to assume that any OHS concerns were resolved.

His Honour rejected the council’s argument and held that the building supervisor had previously informed the council of the risks posed by the skylight and the means of access to the lower roof used by the contractors. This was further enforced by the fact that other members of the maintenance crew, such as plumbers, regularly required access to the roof.

Subsequent to the accident the Council had installed safety mesh over the skylight as instructed by the Victorian WorkCover Authority, which His Honour deemed as establishing that the Council had means of providing a safe area for maintenance contractors on the roof.

Damages

The plaintiff was awarded damages to the sum of $420,000.