Anyco Pty Ltd v Kleeman - [2008] WASCA 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ANYCO PTY LTD -v- KLEEMAN [2008] WASCA 30

CORAM: PULLIN JA
BUSS JA
NEWNES AJA

HEARD: 12 NOVEMBER 2007

DELIVERED : 19 FEBRUARY 2008

FILE NO/S: CACV 114 of 2006

BETWEEN: ANYCO PTY LTD
Appellant
AND
ADAM THOMAS KLEEMAN & DONNA MARIE KLEEMAN T/AS THOMMO'S ROOFING
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WAGER DCJ
Citation  :ELLIOTT -v- KLEEMAN & DONNA MARIE KLEEMAN t/as THOMMO'S ROOFING & ANOR [2006] WADC 118
File No  :CIV 629 of 2004

Catchwords:

Personal injury - Workplace accident - Plaintiff an employee of sub-contractor - Plaintiff injured in fall from roof - Sub-contractor liable in damages for personal injury to plaintiff - Contribution proceedings by sub-contractor against main contractor - Whether main contractor owed duty to plaintiff to provide training in use of safety harness - Whether plaintiff's injuries caused by breach of that duty - Onus on sub-contractor to show plaintiff would have used safety harness if trained - No evidence that plaintiff had not had adequate training or that any lack of training casually related to plaintiff's failure to use safety harness

Legislation:

Law Reform (Contributory Negligence and Joint Tortfeasors' Contribution) Act 1947 (WA), s 7(1)
Occupational Safety and Health Act 1984 (WA), s 19(1)(a), s 19(b)
Occupational Safety and Health Regulations 1996 (WA), reg 3.114, reg 3.116, reg 3.117, reg 3.119

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Dr J T Schoombee
Respondent: Mr I R Freeman

Solicitors:

Appellant: Downings Legal
Respondent: Lavan Legal

Case(s) referred to in judgment(s):

Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125
Elliott v Kleeman [2006] WADC 118
Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16

PULLIN JA: I agree with Newnes AJA.
BUSS JA: I agree with Newnes AJA.
NEWNES AJA: This appeal arises out of an accident which occurred on 27 December 2002 while the respondent was engaged in the removal of an asbestos roof at the Carlisle campus of the South Eastern Metropolitan College of TAFE (Carlisle TAFE), pursuant to a contract between the appellant and the respondent. The plaintiff, an employee of the respondent, fell from the roof in the course of the work and sustained serious injuries.
The plaintiff commenced an action for damages for personal injury against both the respondent and appellant. On 17 May 2006, before trial, judgment was entered for the plaintiff against the respondent in the sum of $942,500 plus costs. The plaintiff discontinued the action against the appellant.
The respondent, however, continued proceedings against the appellant (the contribution proceedings) claiming contribution or indemnity in respect of the amount of the judgment, pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (the Joint Tortfeasors Contribution Act), on the basis that the appellant's negligence had caused or contributed to the accident. In the alternative, the respondent sought damages for breach of contract, alleging that the appellant was in breach of its contract with the respondent in failing to ensure that the plaintiff was provided with proper safety equipment and adequate training to enable him to make use of it.
The contribution proceedings went to trial between 31 May and 2 June 2006. In a reserved decision delivered on 22 August 2006, the learned trial judge held that the appellant was liable to contribute one‑fifth of the amount of the judgment entered against the respondent, the appellant's contribution therefore being an amount of $188,500: Elliott v Kleeman [2006] WADC 118. It is from that judgment that the appellant appeals.

The background

In late 2002, Serco Australia Pty Ltd (Serco) invited tenders for the removal of asbestos roof sheeting from what were described as 'D and C blocks' of the Carlisle TAFE. On or about 5 December 2002, the

appellant submitted a tender to carry out the work. That tender was accepted by Serco on or about 13 December 2002.

At the same time, the appellant entered into a sub‑contract with the respondent in respect of part of the work. On 5 December 2002 the respondent, which carried on business as roof plumbers, submitted a tender to the appellant to carry out the removal and replacement of the roof on the Carlisle TAFE. The respondent was well known to the appellant, having entered into sub‑contracts with the appellant on some 20 previous occasions. The appellant accepted the respondent's tender by a purchase order dated 13 December 2002. So far as relevant for present purposes, the appellant's purchase order contained, in cl 1(b) of the printed terms and conditions, the following term:
[The respondent] shall comply with all of the conditions imposed under the Occupational Health Safety and Welfare Act [sic] and indemnify [the appellant] against all costs or losses because of his non‑compliance.
The work to be carried out by the appellant under its contract with Serco, and in turn the work to be carried out by the respondent under its sub‑contract with the appellant, fell, in particular, within the provisions of the Occupational Safety and Health Regulations 1996 (WA) (the regulations) relating to demolition work. The regulations are made under the Occupational Safety and Health Act 1984 (WA) (the Act). It is appropriate to turn briefly to the substance of those regulations as they were relied upon by the respondent as informing the appellant's duty of care to the plaintiff.
Under reg 3.114 of the regulations, a person must not carry out demolition work comprising the total or partial demolition of a building or structure that is less than 10 metres in height unless they hold a 'class 2' demolition licence. The building in question in this case was in the order of 7 metres in height.
Regulation 3.116 provides that a class 2 licence may be issued if the WorkSafe Western Australia Commissioner (the Commissioner) is satisfied that the applicant is able to do that class of demolition work in a safe and proper manner. The licence may be issued subject to such conditions as the Commissioner sees fit and indorses on it: reg 3.116(3). All work must be carried out in accordance with the conditions of the licence: reg 3.117(2).
The licence holder is required, by reg 3.119, to notify the Commissioner at least five working days before the work is intended to begin. The notification must be accompanied, among other things, by written confirmation by the licence holder that no other person will be allowed to do the demolition work unless that person has been trained in safe methods of demolition work by a training organisation registered under the Australian National Training Authority framework, and by written confirmation that the demolition work will at all times be directly supervised by a competent person. A 'competent person' is not defined in the regulations.
A demolition licence was issued to the appellant in respect of the work. The licence was indorsed with the following condition relating to the appellant's obligation in relation to supervision of the work:
2.All demolition work is to be directly supervised by a competent person.
A competent person is one who has completed an approved training course relating to demolition work or who the WorkSafe Western Australia Commissioner considers to have appropriate experience in carrying out demolition work …
Direct supervision means oversighting the work while it is being carried out having regard to ensuring by way of direction, demonstration, monitoring and checking that the work is being performed in a safe manner in accordance with agreed procedures and that there is a capacity to respond immediately to emergency situations.
The appellant's obligations under its licence included the lodging of a risk control schedule with WorkSafe. In the schedule lodged by the appellant, the appellant's site supervisor, Mr Rhodes, was named as the person responsible for the implementation of risk control measures in respect of asbestos removal and 'working at height'.
By notice dated 9 December 2002, the appellant gave notice, pursuant to reg 3.119 of the regulations, of its intention to carry out the demolition work. In that notice the appellant listed a number of competent persons to supervise the demolition work. They included Mr Rhodes of the appellant and Mr Kleeman and Mr Powney of the respondent, on the express basis that each had had five to 10 years experience in such work.
Work on the removal of the asbestos commenced on 21 December 2002. The respondent's work involved, first, removing the asbestos roof sheeting and the safety mesh and ceiling insulation beneath it. The appellant then had the ceiling cavity vacuumed to remove any asbestos residue. Once that had been done, the respondent replaced the ceiling insulation and the safety mesh, laid a further layer of insulation over the safety mesh, and installed new roof sheeting. The work required those engaged in it to stand on parts of the roof.
While it was in place, the original safety mesh in the roof cavity provided a safety net if a worker fell from the roof into the roof cavity. The ceiling itself would not support a person's weight. Once the original safety mesh was removed, and until the new safety mesh was installed, workers were therefore exposed to the danger that if they fell from the structural supports of the roof onto the ceiling, there was nothing to prevent their fall to the floor some 7 metres below.
On 27 December 2002, after the original safety mesh had been removed but before new mesh had been installed, the plaintiff fell through the ceiling to the floor below and suffered serious injuries. The plaintiff was not wearing a safety harness or any other restraining device. The plaintiff had commenced employment with the respondent only some three days before work on the roof started.

The contribution proceedings

In the contribution proceedings, the respondent alleged that the appellant was in breach of certain implied terms of the sub‑contract in, among other things:
(a)failing to ensure that the respondent followed safe working procedures in carrying out the removal and replacement of the roof sheeting;
(b)failing to ensure that the respondent provided safety equipment such as a harness to the plaintiff;
(c)failing to provide safety equipment such as a safety harness to the plaintiff;
(d)failing to ensure compliance by the respondent and its employees, including the plaintiff, with the Act.
The respondent also alleged, among other things, that the appellant was in breach of the sub‑contract in that it was in breach of its obligation under s 19(1)(a) of the Act to provide and maintain, so far as practicable, a safe working environment in which the plaintiff was not exposed to hazards, including by failing to take all steps necessary to safeguard the plaintiff and other workers from the risk of falling through the roof. It alleged too that the appellant was in breach of its obligation under s 19(1)(b) of the Act to provide such instruction, training and supervision as was necessary to enable the plaintiff to perform his work in a manner that he was not exposed to hazard.
The respondent further alleged that, by reason of each of the above matters, the appellant was negligent.
The appellant denied that there were terms of the sub‑contract of the nature alleged and denied that it was in breach of the sub‑contract or that it was negligent or in breach of the Act. The appellant denied that it owed any relevant duty of care to the plaintiff, but said that if it did owe any such duty, it was not in breach of that duty.
The appellant alleged that the plaintiff's injuries were caused solely by the negligence of the respondent in, among other things, failing to provide a harness or other mechanism to secure the plaintiff against falling, failing to provide training and supervision to ensure that the plaintiff was not exposed to the risk of injury, and failing to implement the safety system agreed between the appellant and the respondent by failing to ensure that where there were open penetrations in the roof without safety mesh, any person working in the area wore a properly secured safety harness.
The appellant also contended that, by virtue of cl 1(b) of its purchase order of 13 December 2002, the respondent was liable to indemnify the appellant in respect of any liability of the appellant in respect of the accident, as the respondent was in breach of its obligations under the Act to implement and maintain a safe system of work and it was that breach which had caused the plaintiff's injuries.

The findings of the trial judge

The learned trial judge found that it was an implied term of the sub‑contract that the appellant would provide and implement a safe system of work for the plaintiff. Her Honour also found that the appellant owed to the plaintiff a duty of care at common law to provide and implement a safe system of work. It was not suggested that the content of the contractual and common law duties differed in any material respect and her Honour appears thereafter to have treated the case as one involving the appellant's duty of care at common law.
The learned trial judge held that the appellant's liability turned on whether:
(1)the appellant had failed to provide a safe system of work for the plaintiff;
(2)if the appellant had provided a safe system of work, it had failed to ensure the plaintiff was adequately trained properly to access that system.
In relation to the first issue, her Honour held that the appellant had discharged its duty to physically provide adequate safety measures on the site. Her Honour found that, following a meeting held on or about 20 December 2002, attended by Mr Rhodes and Mr Bruce of the appellant and Mr Kleeman and Mr Powney of the respondent, the appellant had arranged for an appropriate number of safety harnesses and complementary equipment, in working order, to be brought onto site and it had provided a steel cable for a hook‑up point for the safety harnesses.
The learned trial judge also found that at a meeting held early on 27 December 2002, attended by Messrs Rhodes, Bruce, Kleeman and Powney, Mr Rhodes had directed that safety harnesses were to be worn on the roof when the safety mesh was being removed and it was agreed that Mr Powney would be responsible for the installation of the steel cable, to which the safety harnesses could be hooked up when work commenced that day.
Her Honour further found that at the morning 'smoko' on 27 December 2002, Mr Kleeman had told a group of the respondent's employees that they must use the safety harnesses and that the appellant was insisting upon it. After the 'smoko' Mr Kleeman had gone onto the roof and told three employees, including the plaintiff, that they must put their harnesses on. Mr Kleeman understood they agreed to do so. Mr Kleeman had then told Mr Rhodes that the three employees were getting harnesses to put on.
The learned trial judge accepted Mr Rhodes's evidence that subsequently, at about midday on 27 December 2002 and prior to the accident, he had enquired of Mr Powney whether all of the respondent's employees were wearing harnesses and Mr Powney had told him that they were. Her Honour considered that in the circumstances there was no reason for Mr Rhodes to make his own investigations into whether the respondent's employees were in fact complying with the direction to wear safety harnesses.
Her Honour concluded:
Although the [appellant] had a responsibility in relation to safety, I find that it had discharged its duty of care because appropriate serviceable equipment was physically available on site and timely instructions had been given to the [respondent] and accepted by the supervisors of the [respondent]. The supervisors advised that their employees had complied with the instruction. It would be unreasonable to expect Mr Rhodes to anticipate that this was not the truth given that the [appellant] had had 20 prior contracts with the [respondent], and given the nature of the undertakings that had taken place at the meetings on site [87].
Those findings were not challenged on this appeal and, in my view, were plainly open to the learned trial judge.
The learned trial judge then turned to the question of whether the appellant had failed to ensure that the plaintiff was adequately trained properly to access the safety system provided.
Her Honour found that, prior to the commencement of the work on the site, the appellant had provided safety training for supervisors and for a number of workers employed by the respondent and the appellant respectively, but there was no evidence that the plaintiff had been provided with any safety training by either the respondent or the appellant, or that he had had any prior safety experience or training relevant to his work on the site.
The learned trial judge held that it was incumbent on the appellant to ensure that all of the workers on the site were familiar with safety procedures in accordance with the risk control schedule.
Her Honour continued:
Mr Kleeman acknowledges that although he told the plaintiff where the harnesses were, he made no enquiries as to whether the plaintiff knew how to wear one and there is no evidence that the [appellant] had provided this information to the plaintiff either. To this limited extent the [appellant] failed to adequately train the plaintiff on how to use the safety system available and failed to advise the plaintiff as to why the safety system should be used [90].
The learned trial judge concluded that:
The [appellant] discharged its duty to provide safety equipment and did everything reasonably necessary to ensure that the [respondent] was aware of the agreed safety plan. I am satisfied however that the [appellant] failed to discharge its duty of care to the plaintiff by failing to ensure that he was adequately trained in the use of the relevant safety equipment relating to potential falls from heights. This breach was a cause of the accident that resulted in the plaintiff's injury. I am satisfied that if the plaintiff had proceeded against the [appellant], the [appellant] would have been found liable [92].
The learned trial judge held that the respondent was entitled to contribution from the appellant pursuant to the Joint Tortfeasors Contribution Act. Her Honour found that the appellant's degree of culpability was toward the lower end of the scale and concluded that an appropriate apportionment was a one‑fifth contribution by the appellant.
The learned trial judge did not make any findings in respect of the appellant's claim for an indemnity in respect of any amount for which it might be found liable to the respondent, pursuant to cl 1(b) of the purchase order.

The grounds of appeal

The appellant's grounds of appeal were as follows:
1.The Learned Judge erred in fact and in law in finding that the appellant owed a duty at common law to the plaintiff to:
1.1provide and implement a safe system of work for the plaintiff; and
1.2ensure the plaintiff was adequately trained properly to access the safe system of work.
2.The Learned Judge, after having correctly found there was no evidence that the plaintiff had attended any safety or induction sessions on site prior to 27 December 2002, or that the appellant had provided the plaintiff with training and instruction concerning the safe system of work available to the plaintiff, erred in fact and in law in drawing an inference therefrom that the appellant had not, in fact, given the plaintiff adequate training or instruction.
3.The Learned Judge, after having correctly found there was no evidence that the plaintiff had any safety experience or training relevant to his position, erred in fact and in law in drawing an inference therefrom that the appellant did not, in fact, have such safety experience or training.
4.The Learned Judge erred in fact and in law in finding that:
4.1the appellant had failed to discharge its duty of care to the plaintiff by failing to ensure that he was adequately trained in the use of a safety harness on the grounds set out in paragraphs 1, 2 and 3 above; and
4.2the appellant's failings were a cause of the accident there being no evidence that:
4.2.1the plaintiff required specific training or instruction concerning the use of a safety harness in order for him to use that item of safety equipment;
4.2.2the plaintiff did not, in fact, know how to use a safety harness; or
4.2.3assuming the plaintiff had received training and instruction concerning the use of a safety harness he would, in the circumstances in which he sustained his injuries, have worn a safety harness;
and the weight of the evidence was to the contrary.
5.The Learned Judge erred in fact and in law in failing to find that, on a common sense approach to causation, the sole legal causes of the plaintiff's injuries were:
5.1the plaintiff's negligent and deliberate failure to obey a lawful instruction of its employer, the respondent, to use a safety harness; and
5.2the respondent's negligent failure to implement and maintain a safe system of work for working at height for its employees and in breach of section 19(1) of the Occupational Safety and Health Act 1984 (WA).
6.The Learned Judge erred in law in failing to find:
6.1there was an express term of the sub‑contract between the appellant and the respondent to the effect that:
6.1.1the respondent promised to comply with all obligations imposed on them under the Occupational Safety and Health Act 1984 (WA) from time to time; and
6.1.2the respondent promised to indemnify the appellant against any costs incurred or losses suffered by the appellant caused by any failure of the respondent to comply with the obligations imposed on them under the Occupational Safety and Health Act 1984 (WA); and
6.2the respondent breached the term referred to in paragraph 6.1.1 by failing to implement and maintain a safe system for working at heights for its employees and that breach caused the plaintiff's injuries; and
6.3if the appellant would have been liable to the plaintiff, if sued, then the appellant would have been liable to the plaintiff by reason of the respondent's breach of the term referred to in paragraph 6.1.1 and pursuant to the term referred to in paragraph 6.1.2 the respondent was liable to indemnify the appellant for that amount together with the costs and expenses incurred by the appellant in defending the proceedings brought against it by the plaintiff and the respondent.
7.The Learned Judge erred in fact and in law in failing to find:
7.1there were implied terms of the contract between the appellant and the respondent to the effect that:
7.1.1the respondent promised to supervise properly their employees in the performance of their work under the sub‑contract; and
7.1.2the respondent promised to provide a safe system of work and ensure that their employees were not exposed to an unreasonable risk of injury; and
7.2the respondent breached the terms referred to in paragraph 7.1 by failing to implement and maintain a safe system for working at heights for their employees and those breaches caused the plaintiff's injuries; and
7.3the appellant suffered loss and damage by reason of the respondent's breach of contract, being:
7.3.1any amount in which the appellant may be found liable to contribute to the respondent;
7.3.2the legal costs of the contribution proceedings; and
7.3.3the legal costs of the plaintiff's claim against the appellant.

Disposition of the appeal

Turning first to the question of the appellant's duty of care, it is well established that, in addition to any relevant statutory duty, a principal or head contractor may owe a duty of care at common law to sub‑contractors and their employees to establish a safe system of work. The law was stated in Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16 by Mason J as follows:
Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co‑ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system (31).
In the same case, Brennan J said:
An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk … The entrepreneur's duty arises simply because he is creating the risk … and his duty is more limited than the duty owed by an employer to an employee … It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care … in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility (47 ‑ 48).
It is not necessarily the case, however, that the circumstances referred to in that case are exhaustive of the circumstances in which liability may be found on the part of a principal or head contractor. As Ipp JA pointed out in Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, the nature and extent of the duty of care must be established by a reference to the general law of negligence and the examples given in Stevens are not exhaustive. Ipp JA (with whom Mason P and McColl JA agreed) said:
Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co‑ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens …) such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present [84].
On this appeal it was submitted on behalf of the appellant that, on the facts, no duty of care at common law to take reasonable steps to provide a safe system of work arose on the part of the appellant because the risk of the injury which the plaintiff suffered did not arise as a consequence of an activity organised by the appellant or over which the appellant exercised control. While the appellant exercised a degree of control and coordination in respect of the activities undertaken on the site, it did not exercise any relevant control over the manner or method of work of the respondent or the respondent's employees. It was not a risk of injury which arose as a consequence of the interdependence of two or more trades organised by the appellant or any special vulnerability of the plaintiff. The respondent was a competent independent contractor with specialist expertise in roof plumbing.
It was submitted on behalf of the respondent that the learned trial judge had properly found that there was a duty of care on the appellant to ensure that the plaintiff was appropriately trained in the use of the safety equipment before being engaged in the demolition work. The respondent argued that the purpose of the regulations was to protect, among others, workers engaged in demolition work from injury and, as the licence‑holder, the duty to ensure compliance with the requirements of the regulations in that respect fell on the appellant. The effect of the regulations was that the appellant was required to ensure that any person directly engaged in the demolition work was appropriately trained. That was not an obligation the appellant could delegate to the respondent and it informed the appellant's duty at common law.
The respondent contended that the learned trial judge had also properly found that the appellant was in breach of that duty in allowing the plaintiff to work on the roof without ensuring that the plaintiff had received appropriate safety training. Through Mr Rhodes, the appellant had control over all personnel who were admitted to the site and was able to ascertain from them their level of training. Mr Rhodes did not, however, make any effort to see if the plaintiff had passed any relevant safety training course and there was no evidence that the plaintiff had had appropriate safety training for working at heights. The uncontroverted evidence of the respondent was that it had not trained the plaintiff and the evidence established that the appellant had not trained the plaintiff.
The learned trial judge found, in effect, that the appellant owed a duty of care - at common law or arising under the sub‑contract - to take reasonable care to provide a safe system of work for the plaintiff, the discharge of which required the appellant to take reasonable steps to ascertain whether the plaintiff was adequately trained in the use of the safety harness and, if not, to ensure that he was provided with such training. I do not think that for the purposes of this appeal it is necessary finally to determine whether the learned trial judge was correct in so finding. If such a duty existed, on the evidence it was clearly open to the learned trial judge to find that the appellant was in breach of it in that it made no enquiry as to whether the plaintiff had such training. But such a duty, and any breach of it, would be relevant only if it were found that the lack of adequate training in the use of a safety harness was a cause of the plaintiff's injuries. I do not consider that such a finding was open.
The onus lay on the respondent to make good its contention that the accident was caused or contributed to by the failure of the appellant to ensure that the plaintiff had had adequate training to enable him to make use of the safety system. To do so, the respondent had to show not only that the safety harness, if used, would have been effective to prevent the plaintiff's injuries, but also that the plaintiff would have made use of it had he received the relevant training: Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125, 138 (Gibbs J), 143 (Mason J), Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743, 762.
It was apparently common ground that if the plaintiff had been wearing a safety harness, it would have prevented the injuries he suffered. There was, however, no express finding by the learned trial judge that a lack of adequate training in its use was a factor in the plaintiff's failure to wear a safety harness. Her Honour simply found that the appellant had failed to ensure that the plaintiff was adequately trained in the use of the safety harness and concluded that that failure was a cause of the accident.
It is not therefore apparent on what basis her Honour found that the lack of training was a cause of the accident. But it is necessarily implicit in that finding that her Honour concluded that at least a factor in the plaintiff's failure to wear a safety harness was that, by reason of a lack of training, he did not appreciate that he should use it, or did not know how to do so, or possibly both.
I do not, however, with respect, consider that on the evidence it was open to the learned trial judge to make such a finding.
In the first place, in my view it was not open to the learned trial judge to find that the plaintiff had not had sufficient training or experience to enable him to use a safety harness or to appreciate the need to do so. The plaintiff did not give evidence at the trial of the contribution proceedings and there was no evidence as to his relevant previous work history. In particular, there was no evidence as to whether or not he had had any training or experience in the use of such equipment before he commenced work with the respondent. In the absence of direct evidence, it appears that her Honour sought to draw an inference that the plaintiff was either not familiar with the use of a safety harness or did not appreciate the need to use it, from the fact that the plaintiff had not been given any relevant training by the appellant or the respondent and from the absence of evidence that the plaintiff had had any relevant safety training or experience previously.
In my view, however, the fact that the plaintiff had not been given relevant training by the appellant or the respondent, in circumstances where the plaintiff had commenced work with the respondent only some three days before work started on the site, was of itself of little significance. And to the extent the learned trial judge, in drawing the inference, relied on the absence of evidence as to the plaintiff's previous experience, I consider her Honour erred. To do so was effectively to reverse an onus which lay on the respondent. It was necessary for the respondent to prove, on the balance of probabilities, that the plaintiff had not had sufficient training or experience to be able to use the safety harness or to appreciate the need to do so, not for the appellant to prove that he had. In the circumstances, the absence of evidence as to the plaintiff's previous experience could not assist in drawing an inference that he did not have the necessary training or experience.
In my view, on the evidence there was no basis upon which the inference could properly be drawn that the plaintiff had not had sufficient training or experience to be able to use the safety harness or to appreciate the need to do so. The evidence simply did not permit any conclusion to be drawn, one way or the other.
Secondly, I do not, with respect, consider that it was open to the trial judge to infer that the plaintiff would have worn a safety harness had he been adequately trained in its use by the appellant.
Her Honour found as a fact that on the day of the accident the plaintiff had been specifically instructed by Mr Kleeman to put on a safety harness and the plaintiff had indicated that he would do so immediately. Why the plaintiff did not then comply with the instruction is not apparent. But there was no evidence to suggest that at that point, or at any other time, the plaintiff raised any question about the need to use a safety harness or that he indicated he was unfamiliar with how to use it. The fact that he agreed to put on a safety harness suggests the contrary. Moreover, Mr Kleeman gave evidence, without objection, that the plaintiff had previously told him that he knew how to use a safety harness.
The failure of the plaintiff to wear a safety harness has also to be considered in a context where it appears that none of the employees of the respondent engaged in the work who had had the relevant safety training was wearing a safety harness on the day of the accident. The respondent's supervisor, Mr Powney, an experienced roofing supervisor who had been working for the respondent for a number of years and who must have realised the risks involved, deliberately ignored the instruction that safety harnesses were to be used and, despite the assurance he gave to Mr Rhodes shortly before the accident, made no effort to see that the respondent's employees wore them.
In my view, with respect, in the circumstances there was no basis upon which it could reasonably be inferred that the plaintiff's failure to wear a safety harness was related to a lack of adequate training in its use. Rather, it seems that all of those involved in the work, including the plaintiff, simply decided, presumably for their own reasons, not to wear a safety harness. A conclusion that a lack of training in its use was a factor in the plaintiff's failure to wear a safety harness could be no more than conjecture, and, moreover, conjecture which was against the weight of the evidence.
I consider that on the evidence the learned trial judge erred in concluding that a breach of duty on the part of the appellant was a cause of the plaintiff's injuries. In my view, the respondent failed to establish that the plaintiff did not have adequate safety training or experience and, in any event, that any lack of training was causally related to the accident. Accordingly, the respondent failed to make out any entitlement to contribution from the appellant.
I would therefore uphold the third and fourth grounds of appeal and allow the appeal. In the circumstances, it is unnecessary to consider the other grounds of appeal, including the appellant's contentions in respect of the effect of cl 1(b) of the purchase order.

Conclusion

I would allow the appeal, set aside the judgment and dismiss the respondent's claim.