Chaffey v MPM Maintenance Services Pty Ltd & Anor
"Mr Dimopoulos identified the failures which contributed to the incident."
Date of Judgement: 12 June 2019
Court (Location): District Court of New South Wales
Expert (for the Plaintiff): John Dimopoulos, forensic engineer, Dohrmann Consulting
Legal Matter: Plaintiff slipped and fell from dusty bank counter while attempting to demolish plaster ceiling.
Court Decision: Plaintiff awarded $268,745 (from First Defendant); $202,020 (from Second Defendant).
Extracts from Judge Hatzistergos DCJ's comments in relation to an expert report prepared by forensic engineer Mr John Dimopoulos.
Paragraph 126: In an expert report prepared by Mr John Dimopoulos, forensic engineer from Dohrmann Consulting, he states:
The assumed facts describe a scenario in which Mr Chaffey was directed to use a bank teller counter as an (unprotected) platform to reach a suspended ceiling that he was demolishing. As he was pulling down a section of the ceiling, his foot slipped on the laminated counter which was contaminated with dust and debris. This contamination made the surface slippery, causing him to slip. The lack of any edge protection meant that he fell off the counter.
The demolition works caused the surface of the counter to be covered (or “contaminated”) with dust and debris. In my experience, a hard, smooth, laminate surface as described by Mr Chaffey, would likely be dangerously slippery when contaminated as described.
Further, Mr Chaffey was not provided with any hand tools to aid in the demolition of the suspended ceiling. Since he was instead required to use his hands to pull down the structure, his centre of gravity would have been continuously changing when the structure gave way. Maintaining balance in such a situation would have been very difficult.
Mr Chaffey’s changing centre of gravity would have also meant that the level of grip required for him to maintain his traction would also vary.
The risk of a fall was further increased as Mr Chaffey was required to work overhead which would tend to raise his centre of gravity and there was no handrail or support provided on which Mr Chaffey could use to help brace and balance himself.
To put the counter height of 1.25 metres into perspective, under current Australian Building Code regulations, any balconies or landings which have the potential for a fall from 1 metre or higher require a barrier to be fitted.
It should also be considered in this instance that the ground on which someone would land should a fall occur was a hard concrete surface, increasing the risk of injury.
I consider that Mr Chaffey was placed at risk of injury by the defendant in the circumstances described. The basis of the reasoning process leading to that concluded opinion consists in the fact that Mr Chaffey was directed to stand on a 1.25m high counter that was not suitable as a working surface as it would likely become slippery when contaminated with dust and debris and did not provide any fall protection. The risk was increased by the apparent lack of lighting in the area and lack of tools or equipment that would reduce the risks associated with removing the suspended ceiling.
I note that information about the risks of slip and falls and working at heights, together with advice on the control of risks and measures for such incidents, had been widely available to employers (through publications in the trade, industrial and general media) for many years prior to the occurrence of this injury.
Paragraph 127: At [7.20] Mr Dimopoulos identified the failures which contributed to the incident as follows:
- The lack of an adequate safe system of work, particularly relating to working at heights and the pulling down of ceilings
- The lack of risk assessment/control processes and procedures to enable the identification of hazards and the control of risks
- The lack of supervision of the work being conducted at the site to ensure that unsafe systems of work were not employed
- The lack of resources and equipment, such as suitable platforms or ladders, lighting and tools to reduce the risk associated with working at heights
Paragraph 128: Counsel for the First Defendant indicated that whilst he was not in a position to make a formal admission of breach of duty, he accepted that the evidence would establish such a breach. He conceded that there was no proper work method statement or toolbox meeting record, and nothing identifying how the work should be done. Whilst he did cross examine the Plaintiff as to a discussion about lighting being “very, very bad,” he did not challenge the Plaintiff as to his assertion that he was told that if he didn’t want to do it, “to walk.” Ultimately, Counsel for the First Defendant conceded that despite not having formal instructions he was essentially admitting that the First Defendant breached the duty of care owed to the Plaintiff.
Paragraph 129: In the case against the First Defendant I am satisfied that for the purposes of section 5B of the Civil Liability Act 2002 (NSW) the relevant risk of harm was the risk that a worker would fall and be injured when required to work on a bank teller counter over one metre in height from a concrete surface whilst stripping a ceiling with another worker in circumstances where the worker was unable to see what he was doing and dust and debris contaminated the working surface. The risk of harm was foreseeable and not insignificant. I accept that the probability of harm if care were not taken was high and that the likely seriousness of harm was also high. No submission was advanced by the First Defendant that the method identified by Mr Dimopoulos in his report to prevent the exposure of the Plaintiff to the risk of harm involved any significant burden nor any social utility in performing the work as undertaken by the Plaintiff.
Full court report can be accessed via the Australasian Legal Institute - Chaffey v MPM Maintenance Services Pty Ltd & Anor.