Balesfire Pty Ltd t/as the Gutter Shop & Ors v Jamie Adams & Ors

[2006] NSWCA 112

New South Wales

Court of Appeal

CITATION:	BALESFIRE PTY LIMITED trading as THE GUTTER SHOP v JAMIE ADAMS and Others; JAMIE ADAMS v BALESFIRE PTY LIMITED trading as THE GUTTER SHOP and Others [2006] NSWCA 112 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	28 February 2006, 1 March 2006
JUDGMENT DATE:	15 May 2006
JUDGMENT OF:	Mason P at 1; Santow JA at 117; Hislop J at 118
DECISION:	Appeal dismissed with costs. For further orders see pars [115], [116]
CATCHWORDS:	NEGLIGENCE – Duty of care – Principal – Whether owed to third parties for torts of independent contractor – Only where principal authorises contractor’s tortious acts – Authorisation as express or implied – Whether authorisation may create liability in principal to the independent contractor for damage or loss sustained by contractor. - NEGLIGENCE – Occupiers liability – General principles – Concurrent occupation. - NEGLIGENCE – Construction safety – Requirement that any person who directly or by their servants or agents carries out construction work owes a duty of care – May be more than one person owing duty – Head contractor and subcontractor may be jointly liable – Construction Safety Regulations 1950, regs 73 and 74. (ND)
LEGISLATION CITED:	Civil Liability Act 2002 Construction Safety Act 1912 Construction Safety Regulations Home Building Act 1989 Law Reform (Miscellaneous Provisions) Act 1946 Supreme Court Act, s75A(10)
CASES CITED:	A C Billings & Sons Ltd v Riden [1958] AC 240 Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 Almeida v Universal Dye Works Pty Ltd [2001] NSWCA 156 Bhambra v Roet [2003] NSWCA 393 Booksan Pty Ltd v Wehbe [2006] NSWCA 3 Boylan Nominees Ltd v Sweeney [2005] NSWCA 8, (2005) ATR 81-780 BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Canberra Form Work Pty Ltd v Civil & Civic Ltd (1982) 67 FLR 66 Darke v El Debal [2006] NSWCA 86 Davey v Skinner [1961] SR(NSW) 648 H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 Heatherington v Mirvac Pty Ltd (1999) ATR 81-514 Lenz v Trustees of the Catholic Church & Anor [2005] NSWCA 446 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Thompson v The Commonwealth (1969) 70 SR(NSW) 398 Thompson v Woolworths (Queensland) (2005) 221 CLR 234 Todorovic v Moussa [2005] NSWCA 100 Wheat v E Lacon & Co Ltd [1966] AC 552
PARTIES:	BALESFIRE PTY LIMITED trading as THE GUTTER SHOP (Appellant CA 41131/04; Respondent CA 40061/05) Jamie ADAMS (Respondent CA 41131/04; Appellant CA 40061/05) JEMM BUILDERS PTY LIMITED (Second Respondent – both matters) John EKONOMOU (Third Respondent – both matters) Jenny EKONOMOU (Fourth Respondent – both matters) VEGA PTY LIMITED t/as RAFTARAIL (Fifth Respondent – both matters)
FILE NUMBER(S):	CA 41131/2004; 40061/2005
COUNSEL:	H G Shore SC (Balesfire) Ms S Norton SC/ Ms M Fraser (Adams) R R I Harper SC/ A Gee (Jemm Builders/J Ekonomou) J Maconachie QC/ W Strathdee (Jenny Ekonomou) R Gray (Vega)
SOLICITORS:	Goldrick Farrell Mullen (Balesfire) Brydens Law Office (Adams) Colin Biggers & Paisley (Jemm Builders/J Ekonomou) Wotton & Kearney Insurance Lawyers (Jenny Edonomou)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1164/2003
LOWER COURT JUDICIAL OFFICER:	COOPER ADCJ
LOWER COURT DATE OF DECISION:	12/13/2004

CA 41131/04
CA 40061/05

MASON P
SANTOW JA
HISLOP J

15 MAY 2006

BALESFIRE PTY LTD t/as THE GUTTER SHOP v ADAMS and Others

Jamie ADAMS v BALESFIRE PTY LTD t/as THE GUTTER SHOP and Others

JUDGMENT

1 MASON P: On 18 May 2000 Jamie Adams (the plaintiff) was injured when he fell more than seven metres from the roof of a residential property under construction at Strathfield.

2 He sued five defendants in the District Court:

• Jenny Ekonomou (Mrs Ekonomou), the owner;
• John Ekonomou (Mr Ekonomou), her husband;
• Jemm Builders Pty Ltd (Jemm), a company owned and controlled by Mr Ekonomou;
• Vega Pty Ltd t/as Raftarail (Raftarail), a firm that had fixed a safety rail near the edge of the roof; and
• Balesfire Pty Ltd t/as The Gutter Shop (Gutter Shop), a guttering firm.

3 Gutter Shop had contracted to supply and install the guttering on the property and had engaged the plaintiff as a subcontractor to do the installation.

4 The plaintiff sued the five defendants in negligence and (with the exception of Raftarail) for breaches of the Construction Safety Regulations. Cross claims for contribution or indemnity passed between the defendants. The plaintiff obtained a verdict against Gutter Shop but failed in his claims against the other defendants. Accordingly, a verdict for the cross-defendant was entered on each of the cross claims.

5 Gutter Shop has joined all of the parties below as parties to the appeal. It challenges the plaintiff's verdict against it, raises contributory negligence in answer to the negligence claim and seeks to reduce the plaintiff's damages in one respect. Alternatively, it seeks contribution and/or indemnity against its fellow defendants with the exception of Raftarail. Gutter Shop also challenges the Bullock order for costs that was made against it in the plaintiff’s favour.

6 The plaintiff, Jemm, Mr Ekonomou and Mrs Ekonomou have filed defensive cross appeals. The plaintiff's cross appeal raises claims similar to those raised by Gutter Shop in its alternative submission in this Court, ie claims that assert that other defendants (apart from Raftarail) were in breach of duties owed to the plaintiff.

7 The site belongs to Mrs Ekonomou and she had obtained an owner-builder permit under the Home Building Act 1989. The work involved erection of a new residence intended for occupation by Mr and Mrs Ekonomou and their family. Mrs Ekonomou was involved in any important decision-making about the project, but she performed no hands-on role in the building work. Mr and Mrs Ekonomou discussed the contractors they would use, including contractors engaged to do work at their previous residence. This was perfectly normal given the marital relationship. However, it does seem clear that it was Mr Ekonomou who took the initiative in deciding when to approach contractors and in the dealings with them (Black 305, 306).

8 Mrs Ekonomou was primarily involved in looking after children and her elderly parents. Nevertheless, she came on site on occasions with her husband and conversed with various tradesmen (Black 320ff). She was naturally interested in the amenity of the residence and discussed with tradesmen matters such as the style of and location of power points and the design of gyprock, tiles, kitchen installations etc. None of the discussions appear to go beyond the type that one would expect to pass between an informed owner and tradesmen. Nothing suggests that Mrs Ekonomou gave instructions of a technical nature. The fact that she took out the owner-builder permit seems quite neutral.

9 There was no building contract. Mr Ekonomou performed the role equivalent to that of head builder, organising the tradesmen and contractors (Black 305, 314-5). He prepared the development application form for signature by his wife and lodged it with the council. He was the person who organised the trades and the sequence of events of the trades on-site and he checked to see if work was done satisfactorily (376). He used to open and close the gates at the site (316). Mr Ekonomou has a degree of Bachelor of Applied Science in Building and had been in the building industry for over 22 years. He had worked as a project manager for large construction companies prior to becoming self-employed as a property developer.

10 There is an issue as to whether Mr Ekonomou was acting in his own right or on behalf of Jemm, a company wholly under his control. Gutter Shop’s principal, Mr Pike, had previously dealt with Jemm and the quotation for the instant job was addressed to “Gem Builders” (Blue 363). It was Jemm that paid Gutter Shop. Several other subcontractors invoiced Jemm and were paid by it (Black 315, 370). When Mr Ekonomou spoke to Andrew Galovic, seeking a quotation to erect the roof guardrail, he introduced himself as “John from Jemm Builders” and gave instructions that the invoice should be addressed to Jemm (J137-8). When Mr Ekonomou sought a quotation for contractors all risk insurance at the property he nominated Jemm as the insured (Black 358, Blue 616) although it is not clear whether the insurance was actually taken out. On the other hand, some of the other subcontractors were paid by Mr and Mrs Ekonomou, not Jemm. Jemm did not assume any contractual obligation to Mrs Ekonomou nor did it take out insurance or a contractor licence under the Home Building Act.

11 Mr Ekonomou arranged the installation of the safety fence and the guttering contract at about the same time, approximately a week before the accident.

12 When Mr Pike went to the site on 11 May 2000 to measure and quote for the guttering work, the roof had not yet been built. (Mr Pike’s next visit was after the accident.) The quotation was to supply and install a specified quantity of aluminium guttering and it made no reference to safety measures. The arrangement between Mr Pike and Mr Ekonomou in projects generally was that Mr Ekonomou would telephone Mr Pike when the building work had reached the stage when the roof was ready to receive the guttering. Mr Pike, on behalf of Gutter Shop, ordered the necessary lengths of guttering from the manufacturer and arranged for them to be delivered to the site.

13 Mr Andrew Galovic is a qualified builder and a director of Vega Pty Ltd (Raftarail). Raftarail manufactures and installs temporary rails for residential roofs. He was contacted by “John from Jemm Builders” who said he had a job at Strathfield requiring a roof guardrail (Black 427). A price was agreed and it was arranged for the work to be done on 15 May 2000. Jemm was invoiced for the work that day (Blue 614). Mr Ekonomou discussed the Raftarail quote with his wife and, at her request, asked Raftarail to proceed with the work (Black 312-313).

14 Mr Nick Galovic is the father of Andrew Galovic and it was he who constructed the guardrail on 15 May 2000. When he arrived on site he saw that the guttering had not been installed and that the rafters were exposed under the groove board. He decided that he could not install the rail in those circumstances. He spoke to a man who introduced himself as the builder or the owner/builder (Black 470). Like the trial judge (J144), I infer that this was Mr Ekonomou. Mr Galovic told him that he could not install the rail because the guttering had not been installed and the rafter was exposed. Mr Ekonomou asked whether it was possible to do anything and it was agreed that the rail would be shifted up the rafter although it would not be possible to supply a kickboard in those circumstances because that would impede the laying of tiles. It was necessary to pierce the sarking in places so that the upright posts of the rail could be fixed to the rafter. Sarking is a sheet material laid under tiles for insulation.

15 The relationship between Gutter Shop and the plaintiff was found to be that of contractors and not employer/employee. This characterisation has never been challenged.

16 The plaintiff finished a job at Clovelly in the morning of 18 May 2000. He rang Mr Pike and was told that the next job was at Strathfield. When the plaintiff arrived at the site that afternoon he found the roof ready for tiling. The battens had been nailed across the rafters and covered with sarking. The plaintiff saw the safety fence around the roof, but not at its extremity. It was set back about half a metre from the edge of the rafters. The fence consisted of metal uprights spaced 2.4m apart, with two horizontal rails. There was no scaffolding on-site.

17 The setback of the safety fence would have prevented the plaintiff from working from inside the rail as he had done on many occasions previously. And the sarking blocked ready access to the rafters to which the plaintiff might have fixed the ropes attached to his safety harness. (There is an issue as to whether the plaintiff ought reasonably to have cut the sarking for this purpose.)

18 The plaintiff telephoned Mr Pike and there was a conversation found by the learned trial judge to have been in the following terms:

The plaintiff said:

“This job is not what you said. The safety rail is not on the extremity of the roof. It is set back on the wall. The roof is already sarked and battened which leaves me nowhere to attach my harness. How are we going to do this job?”

Mr Pike replied:

“The material is already damaged. I don’t want to supply another length. Come on mate I’ll owe you.”
According to the plaintiff Mr Pike kept on saying that he wanted the plaintiff to do the job and that “it won’t take long” to which the plaintiff ultimately said: “Alright. We’ll see how we go” .

19 It is convenient at this stage to address the challenge to these findings raised by Mr Shore SC on behalf of Gutter Shop. It is submitted that Cooper ADCJ erred in not preferring the evidence of Mr Pike, which differed in some respects from that of the plaintiff. The trial judge’s analysis is at J34-60. I respectfully adopt and agree with it. Gutter Shop’s challenge lacks substance particularly when it is borne in mind that (a) the trial judge had the advantage of seeing the witnesses being tested on their oral evidence; (b) the plaintiff's version was substantially corroborated by his workmate Mr Micallef; (c) it was common ground that something had been said about the safety fence and about the roof being already battened and sarked.

20 The plaintiff interpreted the conversation (correctly, in my view) as a request by Mr Pike that the plaintiff proceed without using the safety harness because to do so would involve cutting the freshly laid sarking. He commenced installing the guttering, standing or crouching outside the safety rail without the protection of any harness or line or scaffolding. He fell to the ground more than seven metres when he brushed against a protrusion on the fence and lost his balance. He had been facing outwards with his back about 6in from the lower horizontal rail of the fence. He could not have held onto the safety fence as he moved sideways because he was using both hands to move. Damages for the injuries he suffered were assessed under the Civil Liability Act 2002 in the sum of $186,955.

21 Mr Ekonomou was not at the site when the plaintiff arrived and when he was injured. He first learnt of the accident a couple of days later.

22 Mr Andrew Galovic from Raftarail explained that the guardrail was designed to prevent roof tilers falling from the roof. It was not designed for use by people installing guttering (Black 432).

23 Mr Galovic had built 25-30 residential buildings with gutterings. A scaffold had been used for them because he considered it too dangerous to work from above (Black 435). He said it would be possible to attach the harness, or the ropes attached to a lanyard, to the Raftarail system, although it was not designed for this. The system is certified to take a static load of 88 kilos at the top of the vertical post (440). It was not designed to withstand a dynamic load such as a man falling and being brought to a dead stop (461).

24 It was the usual practice for the guttering to be installed prior to erection of the Raftarail guardrail (453). The system was designed to go on the outside edge of the rafters (455). Mr Galovic stated that it was poor building practice to cut sarking unnecessarily (464-5). This particular railing had to be erected 500mm back from the edge because there was tongue and groove boarding above the rafters (458).

Issues in the appeal

25 Many issues emerged. Some were raised only defensively by some parties, but were pressed by others on certain contingencies. The parties defended and attacked the trial judge’s conclusions on particular issues as it suited their respective interests.

26 The issues included:

• Did Gutter Shop owe the plaintiff a duty of care, was it breached and did the breach cause the injury?

• Was Gutter Shop bound by regs 73 and/or 74, did it breach them and did the breach cause the injury?

• Did the builder(s) owe a duty of care to the plaintiff, was it breached and did the breach cause the injury?

• Were Mr and/or Mrs Ekonomou occupiers of the land, and if so, was the occupier’s duty of care breached, causing the injury?

• Were Mr or Mrs Ekonomou or Jemm liable for breach of regs 73 or 74?

• Was Raftarail liable to the plaintiff on any basis?

• Were the plaintiff’s damages in negligence liable to be reduced for contributory negligence?

• Were the plaintiff’s damages correctly assessed?

• Did Gutter Shop have a contractual right of indemnity against Jemm?

• What contribution and/or indemnity should be awarded pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 as between the parties found liable to the plaintiff?

• If the judgment below stands, was it appropriate for a Bullock costs order to be made with regard to the plaintiff’s costs payable to the successful defendants?

Did Gutter Shop owe the plaintiff a duty of care, was it breached and did the breach cause the injury?

27 The trial judge found that the plaintiff was an independent contractor of Gutter Shop, not its employee. Nevertheless, a duty of care existed and was breached (J81-86).

28 Cooper ADCJ cited passages from Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 at [84], Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 43 and Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 at [151]. His Honour continued:

[84] The foregoing dicta deal with circumstances where a principal can be liable to a third party for the tortious acts of his independent contractor. The instant case involves the question whether a principal can be liable to his independent contractor for damages on the basis of the danger created by the work to be done. It seems to me that if a set of circumstances exist where a principal is liable to a third party for the negligent act of his independent contractor because he has expressly or impliedly authorised the dangerous acts of his contractor then those same circumstances are capable of creating a liability in the principal to the independent contractor for damage and loss sustained by that contractor as a consequence of those dangerous acts.
[85] This is not a case where the plaintiff, an independent contractor, on his own initiative, adopted a careless way of doing the work. On the facts as I have found them, the plaintiff was aware of the dangers inherent in working outside the safety fence and without a securely anchored safety harness. Before commencing the work he brought those dangers to the attention of his principal who, as an experienced gutter fixer, was equally well aware of them. His principal, nonetheless, at the very least, authorised, or more probably directed, the plaintiff to work outside of the safety fence and without a securely anchored harness thereby knowingly exposing him to the risk of falling from the roof to the ground below. That risk materialised.
[86] I am satisfied that, by knowingly authorising or directing the plaintiff to fix the gutter without the security from falling provided by a safety fence or safety harness, the first defendant was in breach of its duty of care to him and was, therefore negligent.

29 In this Court these findings of duty and breach were attacked by Gutter Shop and supported by the plaintiff, Mr and Mrs Ekonomou and Jemm.

30 The plaintiff did not dispute the finding as to absence of an employment relationship. Nevertheless, the relationship with Gutter Shop was aptly described as a dependent one. Like many cases seen by the Court in recent years, the arrangement was structured as it was, from Gutter Shop’s perspective, to avoid exposure to workers’ compensation insurance (Black 270). Doubtless there would also have been financial incentives for the plaintiff in running “his own business” (at least so long as he stayed uninjured). The plaintiff owned his own vehicle and tools and was paid a rate per metre that varied depending upon the number of storeys of the building. In practice, he got two days a week work from Gutter Shop. On those days he was required to wear the livery of Gutter Shop and to place magnetic signs on his vehicle and a sign at the site representing himself to be part of Gutter Shop.

31 The economic and personal relationship created a vulnerability that was capable of exploitation with immunity from the consequences that flow from an employment relationship, depending upon the outcome of the argument under present consideration. Approximately five years earlier the plaintiff had worked for the principal of Gutter Shop (then operating a different business called Ezy Gutter) and when he had refused to do a job for safety reasons he received no further work from that source for the following two weeks. Mr Pike was himself an experienced gutterer, with many more years experience in the trade. The plaintiff’s conversation with Mr Pike that led him to take the unfortunate risk on the day of the accident is a further indication of vulnerability.

32 However, the critical question is whether there was a duty of care. Absent duty, breach is irrelevant. The plaintiff’s case is that the relationship was so akin to that of employment that there was a duty, especially when the plaintiff was (as the judge held) “authorised, or more probably directed [by Mr Pike], … to work outside of the safety fence and without a securely anchored harness”.

33 I do not consider it to be open to this Court to find a duty of care in the circumstances.

34 The plaintiff was himself a skilled and relatively experienced gutterer. He had his own safety harness and knew how to use it. He inspected the site and perceived the risk involved in working outside the fence without using the harness. He believed that he could not or should not cut the sarking in order to attach the safety ropes to the rafters underneath. Neither he nor Mr Pike appear to have thought of the possibility of lashing himself to the safety rail (the feasibility of doing so became a live issue at trial in the contexts of breach and contributory negligence).

35 This was insufficient to generate a duty of care, in my opinion. Mr Pike and his company had no control over the site and they exercised no general coordinating role. Gutter Shop had quoted for the job, effectively before the roof was erected. It never intended to organise a safety rail or scaffolding, and the plaintiff knew this, I infer. When the plaintiff went to the site on 18 May he saw that the safety fence was not in its anticipated position. He knew that it was not possible to fix the guttering if he worked from inside the fence and he perceived that it would be dangerous to work outside. For good or bad reasons, he decided that cutting the sarking was not a practical solution; a decision that his conversation with Mr Pike did nothing to disabuse. The important thing from the duty perspective is that Mr Pike knew nothing about safety on the roof beyond what the plaintiff told him. He, Pike, made no representation about the state of affairs on the roof.

36 The fact that Mr Pike was able to persuade the plaintiff to embark on the job appears to me to be neutral on the duty question.

37 The plaintiff’s vulnerability vis-à-vis Gutter Shop was distinguishable from that of the plaintiff Carey in Rockdale Beef. Mr Carey had previously been an employee; he had worked for no-one apart from Rockdale and had done so for many years; Rockdale was an occupier, as well as being in a contractual relationship with Mr Carey, its stockman; and Mr Carey had no control over the configuration of the workplace (see Rockdale Beef at [86]-[88], [90]).

38 In my view, the plaintiff was on the other side of the duty line as regards Gutter Shop. Ms Norton SC for the plaintiff sought to bolster the duty argument against Gutter Shop by reference to passages in Thompson v Woolworths (Queensland) (2005) 221 CLR 234, but since that case deals with the duty of care owed by an occupier it provides no assistance at this point in the argument.

39 Even had Gutter Shop been an occupier, its situation (with one possible qualification) was similar to that addressed by Brennan and Dawson JJ in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 30 where their Honours referred to the principle that where an independent contractor carrying on a particular trade is engaged by an occupier to work on premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind. The possible qualification is that the small metal protrusion in the railing fence that the plaintiff brushed against was something in the nature of a trap. This however could have no bearing on Gutter Shop’s liability because that party was not privy to the erection of the fence and Raftarail was a fellow subcontractor that was a specialist in its area. In Rockdale Beef itself, Ipp JA (with whom McColl JA and I agreed) said (at [89]):

Mr Carey’s position as independent contractor was not comparable to that, say, of an electrician or plumber or roof tiler, who enters premises of an occupier to carry out skilled work, and where care on the part of the occupier has no effect on how that work is carried out. At the relevant time, Mr Carey was a permanent fixture in Rockdale’s work force. Unlike the ordinary electrician or plumber or roof tiler, he had no say in where he worked and what work he carried out. In these respects he was under the control of Rockdale and was as reliant on Rockdale for his safety as any employee.

40 One strand of the trial judge’s reasoning was that the duty stemmed in part from the principal having authorised the very activity in question. Undoubtedly, a principal may be found liable for injury inflicted on a third party by an agent if the agent’s conduct was tortious and the principal had authorised the doing of the act which amounted to the tort (see generally Boylan Nominees Ltd v Sweeney [2005] NSWCA 8, (2005) ATR 81-780). But, with respect to his Honour, it is fallacious to move directly from that situation to the present case where no third party is involved. A relationship of independent contractor does not in itself preclude a duty of care, but neither does it establish a duty of care without more (see generally Heatherington v MirvacPty Ltd (1999) ATR 81-514 at [133]).

41 I would therefore uphold the argument that Gutter Shop owed no duty of care to the plaintiff in the circumstances. The issues of breach, causation and contributory negligence stemming from such a duty therefore fall away.

Who was or were the occupier(s)? Was there breach of duty?

42 The trial judge found that Mr Ekonomou was the occupier of the premises, leaving it open whether Jemm and Mrs Ekonomou were also occupiers (J169). But the occupier(s) were acquitted of negligence because the duty was no more than to take reasonable care for the safety of entrants and that duty was not breached. Judge Cooper concluded that (J169):

The danger which caused the plaintiff to fall did not arise out of the condition of the premises. They [sic] arose out of the decision of the plaintiff (induced by the first defendant) to work outside of the safety rail without being attached to a safety harness. In addition to this consideration, whatever dangers there were on the roof were clearly visible. The plaintiff did not have to be warned of their existence.

43 In this Court, Gutter Shop and the plaintiff argued that one or all of Mr Ekonomou, Jemm and Mrs Ekonomou had the common law duties of an occupier and that Mr Ekonomou was also subject to a duty of care as found in Stevens having regard to the coordinating role that he adopted. The plaintiff pressed this submission defensively, ie only if he was left without a verdict against Gutter Shop. On the other hand, Gutter Shop and Mrs Ekonomou pressed these matters in aid of their claims for contribution from other tortfeasors said to be liable to the plaintiff.

44 I cannot see any basis on which Jemm became the occupier given that there was no building contract let alone building lease. I do not overlook the material indicating that Mr Ekonomou interposed Jemm for certain purposes (par 10 above).

45 In my view, both Mr and Mrs Ekonomou were occupiers. Mrs Ekonomou was the owner who retained and exercised the right of access to the site. But Mr Ekonomou was also an occupier given that he had control of the site as builder de facto. It was he that let tradesmen on and off the site and who opened and locked the gate as required.

46 Mrs Ekonomou submits that she gave over the whole of the site to Jemm and/or Mr Ekonomou. Mr Ekonomou had extensive building experience and he (or his company) of necessity needed occupation and control of the premises to do the work required of him under the informal arrangement with the owner. A C Billings & Sons Ltd v Riden [1958] AC 240 was cited by senior counsel for Mrs Ekonomou. In my opinion, that case does not assist because it decides no more than that a building contractor may assume a duty of care to a visitor. Indeed, the contractor in Billings was not viewed as the occupier, the occupier being separately liable to the injured plaintiff (see Lord Reid at 249, Lord Cohen at 259).

47 There is no reason why two persons may not each be an occupier even though their legal interest in the land differs (see Wheat v E Lacon & Co Ltd [1966] AC 552 at 581A, 585E, 587B and 591B, Thompson v The Commonwealth (1969) 70 SR(NSW) 398 at 401). A building contractor may become an occupier of the building in course of construction, even if the building owner is also an occupier (Canberra Form Work Pty Ltd v Civil & Civic Ltd (1982) 67 FLR 66 at 71).

48 I am, however, persuaded that the occupiers discharged their duty of care in the circumstances. Since Gutter Shop was a specialist independent contractor engaged to install the guttering I cannot see that there was a breach of the relevant duty in light of the principles in Papatonakis discussed above. The safety fence was in an unusual position, but the difficulties it presented were quite obvious to an experienced gutterer. See also Heatherington at [169], Bhambra v Roet [2003] NSWCA 393 at [32]-[36].

49 Mr Ekonomou also assumed a coordinating role as regards the respective trades. Whatever its scope, the duty of care extended to the plaintiff given that Mr Ekonomou took on himself the role of organising the safety fence. The Stevens duty of care is of course different in content to that which falls on an occupier.

50 I nevertheless agree with the trial judge that any coordination error on Mr Ekonomou’s part that may have led to the fence being located where it was, was not causative of the plaintiff’s injury in a legal sense. His Honour did not exactly use this language, but it is the thrust of the passage at J169 that I have already set out.

Construction Safety Regulations 73 and 74

51 Regulations 73 and 74 relevantly provide:

Safeguards and accident prevention measures for building work
73 Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74, -
(1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with these Regulations;
…
(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m;

Provision of safety nets or belts and life lines
74(1) Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold, the person in change of the construction work shall provide -
(a) a safety belt and safety line or safety harness and safety line complying with the requirements of AS 1891 for the use of that person; or
(b) a safety net complying with the requirements of BS 3913,
while the work is being carried out.

52 If applicable to any of the defendants, regs 73(1) and (3) were not complied with, given the absence of any scaffolding or fencing for securing the safety of the plaintiff when working in an obviously dangerous location. Nor was reg 74(1)(a) in that none of the specified items of equipment were provided by any of the defendants. The primary judge considered both regulations to have been invoked by the plaintiff in his claim against all defendants, except Raftarail (see J 162-5). This view was open on the pleadings as between the plaintiff and the defendants. It was made explicit in Gutter Shop’s Cross-Claim.

53 It is accepted that contributory negligence is not a defence to a cause of action for breach of statutory duty arising, as here, before the commencement of the Civil Liability Act 2002 in a non-employment context (see Booksan Pty Ltd v Wehbe [2006] NSWCA 3 at [160]-[173]).

54 The live issues are the application of the regulations to any of the defendants and the question of causation.

55 Cooper ADCJ referred to H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 at 428. He held that the particular construction work being carried out on 18 May 2000 was the installation of guttering and that it was Gutter Shop and not Mr or Mrs Ekonomou or Jemm who were carrying out that work: “Consequently the obligations under the Regulations lay upon the first defendant” (ie Gutter Shop) (J 165).

56 The learned judge had earlier held (J 91):

The plaintiff did have an appropriate safety harness but it was useless and did not comply with the Regulation unless it could be securely anchored. The plaintiff told Mr Pike why it could not be so anchored and Mr Pike did not demur from those reasons in the 14:27 telephone conversation.

57 In Lenz v Trustees of the Catholic Church & Anor [2005] NSWCA 446 I explained my understanding of the application of the two regulations. My reasons were concurred in by Santow JA and Basten JA. I said:

[49] The leading cases in this Court on the latest form of the Regulations are Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264, Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65; (2001) Aust Torts Reports 81-603; Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; Bhambra v Roet [2003] NSWCA 393; Multiplex Constructions (NSW) Pty Ltd v Lopez [2004] NSWCA 319 and Todorovic v Moussa [2005] NSWCA 100.
…
[51] Building (and therefore, relevantly, construction) work does not necessarily refer to the total work to be performed in a building. Each section of work performed (for example, painting, cleaning, sign-writing, dismantling or demolishing: see s3(1)(a) of the Act for the definition of “building work” ) is regarded as building work so that the obligation to take specific safety measures in the sub-pars of reg 73 may be imposed on the person who is carrying out that particular work ( H C Buckman and Son Pty Ltd v Flanagan (1974) 133 CLR 422 at 428).
…
[54] Regulation 73 speaks to “any person who directly or by his servants or agents carries out any construction work”. Reg 74 addresses “the person in charge of the construction work”. The terms are not synonymous in expression or identical in application. Neither are they mutually exclusive.
[55] Merely to establish that a person is the owner or occupier of a building site will not prove that he or she was also carrying out the construction work (cf reg 73) or in charge of the construction work (cf reg 74) (see Almeida at [143]).
[56] Prior to its amendment in 1987, reg 74 contained the words “the contractor or” before “person in charge of the building work”. In 1987 the reference to “contractor” was removed and “construction work” substituted for “building work” . In Almeida , Santow AJA (with whom, in this regard, Priestley JA agreed (see at [8])) held that the removal of “contractor” did not have the effect of excluding the class of head contractors. Rather, the amendment was effected because “contractors” were already subsumed in the reference to “person in charge of the construction work” (see at [126]-[136]).
[57] Regulation 73’s class of persons who “directly or by servants and agents carry out any construction work” is capable of embracing persons involved at different layers of responsibility or particularity of work. The reference to agency is expansive. Regulation 73 does not restrict itself to imposing an obligation on an employer as such, or limiting its safety measures to employees as such. “By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured”. ( Buckman at 427-428 per Barwick CJ (McTiernan and Stephen JJ agreeing), Maggiotto at [16]-[17]).
[58] It is, however, clearly established that reg 73 only places the obligation upon “the active person, that is the one who carries out the work in actual fact” ( Davey v Skinner [1961] SR (NSW) 648 at 651; Buckman at 428; Maggiotto at [17], [24]; Multiplex at [56]-[61]. See also Hetherington v Mirvac Pty Ltd [1999] NSWSC 443).
[59] It follows that reg 73 does not apply to a head contractor who has wholly delegated the task in question to a sub-contractor ( Buckman at 428; Almeida at [117] (Santow AJA)). Independent contractors who themselves carry out the work they have contracted to do are not thereby the agents of the head contractor who thereby expose the head contractor to reg 73’s obligations with reference to the construction work they are performing ( Buckman at 428; Almeida at [117]; Maggiotto at [16]).
[60] But, as Heydon JA pointed out in Kolodziejczyk at [83] (Ipp AJA agreeing), it is important to remember that the opening words of reg 73 raise a factual question, not a normative question. Heydon JA illustrated this proposition by reference to the facts of that case (at [83]):
The question is not whether in all the circumstances the defendant should have closely examined the question whether the plaintiff was unable to diagnose and solve problems relating to dangerous cladding operations on steep roofs before effecting a full delegation of the cladding construction work and everything connected with it. The question is whether as a matter of fact the defendant effected that delegation. If the defendant had realised that the plaintiff was relevantly unable to work out safe solutions to obvious problems, that might be an evidentiary factor pointing against the likelihood of full delegation. But there is no evidence either of any relevant inability on the part of the plaintiff or of the defendant having perceived that that inability existed.
[61] In some circumstances, a head contractor or building owner who has otherwise delegated the performance of particular construction work to a sub-contractor, may participate in that building work and thereby become one of the persons carrying out the construction work ( Maggiotto at [24]-[25]). This was the basis for liability under reg 73 found against the head contractor in Maggiotto . Ipp AJA, with whom Meagher JA and Stein JA agreed, said at [38]:

Gordon [the sub-contractor] was instructed merely to do the carpentry work at unit 33 and to do so without there being stairs in place. He was not directed to do the specific work necessary to protect himself from the dangers and risks caused by the void. Nor was he supplied with scaffolding or other appropriate material. Additionally, the obligations of co-ordinating and supervising the work remained with Maggiotto, and these obligations had direct relevance to the safety of the work Gordon was instructed to perform. It follows that the performance of Maggiotto’s duties under Regulation 73 was not “wholly delegated” to Gordon. Maggiotto still had to do construction work in regard to unit 33. That work involved co-ordinating and supervising the activities to be performed by Gordon and others, and supplying the necessary materials to Gordon.
[62] Similarly, a head contractor fell within reg 73 when it engaged in an activity so “intimately connected” with the construction activity (organising “dewatering” ) as to constitute part of it ( Multiplex ); when an employee of the head contractor actually participated in the building activity in question ( Buckman ); and when the head contractor became involved in coordination and supervision of different trades on the site or the supply of building materials to sub-contractors ( Maggiotto at [36]; Zahner v Andreas Pty Ltd [2001] NSWCA 352 at [33]-[34]; Todorovic at [26]-[27]; F & D Normoyle at [20]-[26]). See also Mason J’s reference to participation “by act or approval” in Buckman at 444. The line between delegation and continuing participation on the head contractor’s part may be a fine one on the facts (see for example how Maggiotto was distinguished in Kolodziejczyk at [73], [83]).
[63] Furthermore, when a head contractor delegates a particular aspect of building work, circumstances may arise that require preliminary steps or ancillary work to be undertaken to ensure the safety of those who will be working on the delegated task. The task of doing the work necessary to complete the preliminary steps or ancillary work may not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. It is a question of fact in each case as to whether the sub-contractor has been instructed to perform the preliminary steps as well as the work the subject of the express instructions ( Buckman at 446 (Jacobs J); Maggiotto at [26]-[29], Kolodziejczyk at [72]; Todorovic at [27]).
[64] If no more can be said than that the building is for and at the expense of a person, then reg 73 does not impose obligations on that person ( Castellan v Electric Power Transmission Pty Ltd (1966) 84 WN (NSW) 502 at 504). The activities of owner-builders who engage in rudimentary coordination of various trades or who occasionally act in the capacity of builder’s labourer are not generally sufficient to bring such persons within the ambit of reg 73 ( Bhambra at [41]-[48]).
[65] In contrast to reg 73, reg 74 is directed at “the person in charge of the construction work” . It is always necessary to identify the relevant construction work. However, a head contractor, with or without an interposed sub-contractor, is usually “the person in charge of the construction work”. This is borne out by the language of reg 74 and is consistent with the relatively passive obligation to “provide” items of safety equipment that forms the main content of the regulation.
[66] The case law establishes that the “person in charge of construction work” includes the head contractor (without an interposed subcontractor) or the person with overall responsibility for the construction work, that person being the person responsible for the work to the proprietor, co-ordinating the various trades and making the site under its control available to those doing the work ( Almeida at [130]-[131] per Santow AJA; Kolodziejczyk at [88] per Heydon JA). Because the head contractor remains responsible to the proprietor for the work done, it could not discharge that responsibility if not in overall charge of the work and the site ( Almeida at [130] per Santow AJA).

58 The Buckman line requires close attention to be paid to the tasks actually performed on the worksite. However, the regulations do not require that only one person in the chain may be liable if injury occurs (Darke v El Debal [2006] NSWCA 86 at [48]).

59 The trial judge held the relevant construction work to have been the installation of guttering (J 165). This finding was supported by all parties to the appeal except Gutter Shop that contended for a wider characterisation, namely that the construction of the house was the relevant activity. Gutter Shop placed emphasis on the interconnectedness of the guttering and other tasks, especially as regards the roof. The very fact that Mr Ekonomou became involved in coordinating the roofing, roofing safety and guttering subcontracts was prayed in aid.

60 Cooper ADCJ found that Gutter Shop was the person that directly or by its agents was carrying out the guttering installation (J 87).

61 This finding was challenged from both angles. Gutter Shop submitted that his Honour ought to have concluded that the work was in fact being carried out by the plaintiff as an independent contractor to whom Gutter Shop had wholly delegated the task. This outcome was said to be dictated by the majority reasons in Buckman. Alternatively, Gutter Shop and the plaintiff (defensively) submitted that one or more of the “builders” and Mrs Ekonomou were also liable under the regulations.

62 Mr Maconachie QC, representing Mrs Ekonomou, politely but firmly submitted that this Court clearly had erred in misconstruing Buckman in the recent stream of cases starting with Maggiotto and including Almeida, Kolodziejczyk and Todorovic. Leave was sought to reargue the correctness of these decisions which had, it was submitted, failed to recognise that the reasoning of Barwick CJ (with whom McTiernan and Stephen JJ agreed) could not be reconciled with that of Mason J and Jacobs J. Mr Maconachie said nothing about Lenz, but I am prepared to assume that it too was in his sights.

63 I would refuse the leave sought. For one thing, the matter was raised far too late, on the second day of the hearing. Furthermore, the recent cases in this Court have been consistent in their reading of Buckman. If that means that they have been consistently wrong then it is for the High Court to say so, in my respectful opinion. The High Court refused special leave to appeal in Maggiotto.

64 In my view, there is no incongruity between the recent cases in this Court and the majority judgments in Buckman. I say this, whether or not it is correct to hold that the majority and minority judgments in Buckman are capable of being reconciled (Maggiotto at [23]). In Lenz (at [58]) I acknowledged that reg 73 imposes its obligations only upon “the active person, that is the one who carries out the work in actual fact”. However, as I pointed out in the later paragraphs in Lenz set out above:

• more than one person in the chain can assume an active role in the task in question;

• the question whether there has been “full delegation” is a question of fact (see esp Kolodziejczyk );

• a superior or head contractor or building owner may participate in the relevant building work and thereby become one of the persons carrying it out ( Lenz at [61]-[62]);

• a superior or head contractor or building owner may by itself or its servants or agents carry out preliminary steps or ancillary work that involves the very aspect of reg 73 that is said to have been wholly delegated ( Lenz at [63]-[64]).

65 As I endeavoured to point out in Lenz at [59]-[62], no-one suggests that an independent contractor becomes the “agent” of the principal for the purpose of reg 73 merely because the parties enter into a contract for services. In my view, this extreme position is what Barwick CJ rejected in Buckman in the passage at 428-429, that is particularly relied upon by Mr Maconachie QC. The Chief Justice said:

Building work is so defined that it does not necessarily refer to the total work to be performed in a building, but the definition is suitably worded to enable each section of work being done, eg as “painting, cleaning and signwriting”, being regarded as building work so that the obligation to take the specific safety measures are imposed on that person who is carrying on or carrying out that particular work.
It is not consistent, in my opinion, with that conclusion to include independent contractors who are carrying out particular building work as “agents” of the building owner or contractor so as to impose on him the obligation which clearly will fall upon the independent contractors vis-à-vis the building work they are actually doing. Consequently, I am unable to accept the view expressed by the majority in Davey v Skinner when they said: “In some circumstances such an expression” (servants or agents) “could extend to independent contractors, as Williams J held in Ryan’s Case ”. But I do agree that: “The use of the familiar phrase ‘servants or agents’, from the subject matter of the Regulations, is intended to embrace those employed under a contract for services, that is, not merely servants properly so called, but also the agents, whom, though not strictly servants, the person carrying out building work employs to do for him what he has engaged to do”, that is to say, persons whose acts are in law the acts of a principal. But this description does not include independent contractors. (footnotes omitted)

66 Regulation 73 expressly contemplates that a person may carry out construction work “directly or by … servants or agents”.

67 In Lenz, I pointed out the difference between reg 73 and reg 74 in that the latter addresses “the person in charge of the construction work”. The application of reg 74 to the particular facts is discussed at pars [82] to [84] of the reasons in Lenz. Buckman did not involve reg 74 (cf Bhambra at [58]).

68 Cooper ADCJ did not advert to the distinction between the two regulations. His Honour concluded in effect that Gutter Shop alone was involved because none of Mr or Mrs Ekonomou or Jemm was carrying out the guttering installation (J 165).

69 The obligation imposed by the latter regulation is a simple one, namely to supply safety equipment such as a safety belt and safety line or safety harness. None of these items was provided to the plaintiff by anyone. Regulation 74 was clearly breached, but there is a live issue as to whether the breach caused the plaintiff’s injury.

70 Returning to reg 73, it would be wrong to regard the plaintiff as the mere subcontractor of Gutter Shop or as the person to whom Gutter Shop had wholly delegated the relevant construction work. Gutter Shop was not a head contractor with responsibility for the work generally. It and its principal, Mr Pike, were involved in all aspects of the very task for which it had quoted, namely to “supply and install” guttering. Mr Pike had the dealings with Mr Ekonomou. When the unexpected problem arose, the plaintiff telephoned Mr Pike, explained the situation, and received explicit authorisation, if not direction, to proceed there and then. Implicit in that authorisation/direction was Mr Pike’s concurrence with the plaintiff working outside the fence, without using the harness, and in circumstances involving a known risk. In this way Gutter Shop actively participated in the construction task at hand, even if it was no more than the installation of guttering.

71 If contributory negligence had been an issue there might be room for debate about whether the plaintiff was in a superior position to prevent the accident either by refusing to do the job at all or by choosing, off his own bat, to cut the sarking and lash his safety harness to the rafters. But contributory negligence is not an available defence to the statutory counts in this case and it is clear from the conversation that Mr Pike played an active role in the very construction task at hand, ie the installation itself.

72 In Buckman, the plaintiff was injured when he fell from a ladder placed against a stanchion that began to sway because it was insufficiently held by guy ropes. The plaintiff had subcontracted with the defendant Shaw to erect structural steel for a school building. Shaw had contracted with the defendant Buckman to supply and erect the necessary structural steel. Buckman had contracted with the Department of Education to build the school. Neither Buckman nor Shaw was held to be carrying out the relevant building work found by the majority in the High Court to have been carried out exclusively by the plaintiff in accordance with his sub-sub-contract with Shaw. Barwick CJ perceived (at 427):

…that the Act and regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally or by his servants or by those whose acts are in law his acts.

73 There was no suggestion in the facts of Buckman that Shaw played any part in the actual building work involving securing the stanchion. The plaintiff Flanagan and Flanagan alone was the person who was carrying out the work “in actual fact” (cf the passage from Davey v Skinner [1961] SR(NSW) 648 at 652 that was quoted with approval by Barwick CJ at 428).

74 As Heydon JA pointed out in Kolodziejczyk at [83], the opening words of reg 73 raise a factual question. There will be cases in which the head contractor (or even the building owner) participates in the relevant building work and thereby becomes one of the persons carrying it out (see Lenz at [61] and [62]). At least as regards Gutter Shop, this was such a case in light of the terms of the conversation between the plaintiff and Mr Pike, himself an experienced gutterer, shortly before the plaintiff climbed onto the roof and fell.

75 It is unnecessary to decide as between Gutter Shop and the plaintiff, whether reg 74 also applied to Gutter Shop or was breached by it.

76 But Gutter Shop presses its appeal seeking contribution from any other tortfeasor (Raftarail excepted) that can be found liable to the plaintiff. Its cross-claim at trial invoked regs 73 and 74 and there is nothing to suggest that it abandoned its rights in that regard. Judge Cooper obviously thought that both regulations were in play (J 162, 165). The application of both regulations as regards Mr and Mrs Ekonomou and Jemm is therefore a live issue in these proceedings.

77 Gutter Shop’s primary submission is that Mr Ekonomou was the person actively involved in carrying out the relevant construction work in the context of reg 73. Alternatively, it looks to Jemm, particularly since Jemm contracted with and paid Gutter Shop. Alternatively, it is submitted that Mrs Ekonomou is liable on the basis that she was the owner/builder acting directly by agents. To the extent necessary, Gutter Shop also invokes reg 74, submitting that any and all of the three named parties were “in charge of the construction work”.

78 In my view, Mr Ekonomou was the person who (like Mr Kenny in Lenz) exercised the day-to-day supervision of the trades and it was he who attended to organising safe means of access for the Gutter Shop people about to come onto the site. He took an active role in procuring what passed as a safety fence for Gutter Shop’s gutterer, concurring in locating it back from its usual position when it was pointed out by Raftarail that the premature installation of the tongue and groove timbering of the eaves necessitated this. In this regard, his situation was analogous to that discussed in pars [62]-[63] of Lenz, a fortiori if the construction work is seen as building the roof, as I think it can. But, even on the narrower approach favoured by the trial judge, the builder, Mr Ekonomou, involved himself in the guttering work by coordinating the roofing trades and by procuring the safety fence and approving its particular location.

79 In Maggiotto, Ipp AJA (with whom Meagher JA and Stein JA agreed) said (at [29]):

It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task. In that event, the task of doing the work necessary to complete the ancillary work or preliminary steps may well not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. The strictures expressed by Jacobs J are designed to prevent such a gap from opening. To ensure that the policy of the legislation, as enunciated by Barwick CJ, is fulfilled, the approach of Jacobs J should be adopted.

See also Todorovic v Moussa [2005] NSWCA 100 at [35].

80 In Buckman, there is a passage in the judgment of Barwick CJ (at 429) that reads:

In that case, the respondent defendant clearly was a person carrying out building work, i.e. the laying of the brickwork, and was bound to attend to the scaffolding. It was nothing to the point that the building owner had taken on itself the provision of scaffolding. But, in my opinion, the building owner was not relevantly a person carrying out the bricklaying by himself or by servants or agents. That was the work of an independent contractor.

The “that case” mentioned at the beginning of this passage is a reference to the preceding paragraph, being the passage I refer to above at par 65 which I construe as a statement by the Chief Justice to the effect that a person does not become the “agent” of a building owner or head contractor for the purpose of reg 73 merely because of entry into an independent contract whereby responsibility to carry out particular building work is assumed by the independent contractor. Does the second sentence of the passage at 429 (ie “It was nothing to the point that the building owner had taken on itself the provision of scaffolding” ) preclude a finding that Mr Ekonomou and the person for whom he was an agent (ie Mrs Ekonomou, see below) were severally liable for the breach of reg 73? I think not. Barwick CJ was not stating a legal proposition. He was making a factual observation referable to the case in hand. Here, Mr Ekonomou was more intimately involved in the guttering work. (There is of course an even lesser problem if the relevant building work is seen as the erection of the roof, as I believe it can.) As indicated, the arrangement between Mr Ekonomou and Gutter Shop (confirmed by silence in the bald terms of the Gutter Shop quote) left the builder taking responsibility for arranging the safety fence that all parties expected would be supplied before the Gutter Shop gutterer came on site. This had been the previous practice and it was what the builder set about doing. Safety for the gutterers was a practical necessity without which everyone knew they could not and would not be able to install the guttering.

81 Mr Ekonomou went even further, in that he actively brought about the situation whereby the rafters were covered and the safety fence was located where it was. This was more than the mere provision of scaffolding (cf Buckman) or its equivalent because the builder’s activity brought about the dangerous situation that presented itself to the plaintiff. But it went further, in that there was an involvement on the part of the de facto builder in a vital aspect of the very task at hand, namely installation of guttering given that this task was not intended to take place at the particular site without a safety fence. The matter falls within the category of cases referred to in par 62 of Lenz that I consider to be consistent with the decision in Buckman for reasons already stated.

82 I note also that, in Buckman, Barwick CJ recognised that the head contractor Buckman did undertake relevant building work in the form of resiting a stanchion, thereby drawing down upon itself certain obligations under reg 73(17) (see 133 CLR at 429-30).

83 My mind has wavered over the position of Jemm, as regards the application of reg 73. I have concluded that it escapes liability, because it exercised no contractual role on behalf of Mrs Ekonomou. Its involvement as the party contracting with and paying some of the subcontractors, including Gutter Shop, was not reflective of it having assumed the function of a head builder, nor detractive of the actual position directly assumed by Mr Ekonomou.

84 If Mr Ekonomou was actively involved so as to make himself a person carrying out the relevant work so too was Mrs Ekonomou. There was no contractual arrangement between Mr and Mrs Ekonomou. Mr Ekonomou was Mrs Ekonomou’s agent simpliciter, much in the same way that Mr Ireland, by his non-contractual but active coordinating role on behalf of the Catholic Church Trustees, brought about the situation that the Church was “directly” carrying out construction work in Lenz (see Lenz at [72]-[77]).

85 The plaintiff should therefore have recovered verdicts against Mr and Mrs Ekonomou in addition to Gutter Shop.

86 Jemm and Mr Ekonomou submitted that the application of reg 74 must fail, in effect because the plaintiff did not establish any causal link between the putative breach and his injury. The plaintiff had his own safety harness and the expertise to use it. He decided not to do so. He led no evidence to indicate that he would have acted differently had a safety net been provided in accordance with reg 74(1)(b). Regulation 74 does not oblige “the person in charge” to provide each and every item of specified safety equipment. It follows that the plaintiff’s attitude with respect to his own safety harness may be treated as an indication of what he would have done if “the person in charge of the construction work” had addressed the requirements of reg 74. I agree with these submissions. In my opinion, the plaintiff would still have proceeded as he did, influenced by his conversation with Mr Pike and his perception that it would not be a good idea to cut the sarking. For this reason it becomes unnecessary to pursue the identification of the person or persons addressed by reg 74 in the particular circumstances.

Should the plaintiff’s damages be reduced for contributory negligence?

87 The trial judge was not satisfied that the plaintiff was guilty of contributory negligence (J93-126).

88 At the invitation of the parties, his Honour had proceeded on the basis that contributory negligence was available in relation to all of the plaintiff’s claims. As indicated, it is now common ground that contributory negligence is not available in relation to the statutory counts. Since none of the defendants is liable otherwise than through the statutory counts I need not address contributory negligence.

Gutter Shop’s claim for contribution on contractual principles

89 The pleadings had invoked an implied contract that was said to be part of the arrangements between the owner and/or builder and Gutter Shop. The implied terms pleaded against Mrs Ekonomou, for example, were that she would:

(a) erect safety railings in suitable positions so as to prevent persons such as the Plaintiff from falling while working on the roof;
(b) ensure the Plaintiff would at all material times carry and use a safety harness and/or safety lines;
(c) ensure the Plaintiff would perform his work from inside the safety railings;
(d) comply with the obligations cast upon it by virtue of Clause 73(1), (2), (3) and (8) of the Construction Safety Regulations;
(e) comply with the obligations cast upon it by virtue of Clause 74(1) of the Construction Safety Regulations;
(f) comply with the obligations cast upon it by virtue of Clause 75 of the Construction Safety Regulations;
(g) comply with the obligations cast upon it by virtue of Clause 81(1) of the Construction Safety Regulations.

90 In my view, the claim is untenable. It could not be said that the terms pleaded were necessary to give business efficacy to the contract for gutter installation, nor was it so obvious that “it went without saying” (see BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283).

91 One frequently encounters building contracts or subcontracts that address safety issues, throwing the burden on one party or the other. The bland provisions of the Gutter Shop Quotation were silent on the topic.

92 It is therefore unnecessary to linger in an endeavour to identify the party or parties who contracted with Gutter Shop and the related question whether Jemm/Mr Ekonomou were acting as agents when contracting with Gutter Shop.

Apportionment as between tortfeasors liable to the plaintiff

93 Various cross-claims for contribution and/or indemnity under the Law Reform (Miscellaneous Provisions) Act 1946 come back into play if, as I have concluded, the trial judge erred in finding Gutter Shop solely liable. The matters to be considered focus upon the comparative fault of the tortfeasors and the causal impacts of the respective torts.

94 I have concluded that Gutter Shop, Mr Ekonomou and Mrs Ekonomou were tortfeasors liable to the plaintiff.

95 In my view a just apportionment as between the defendants would be 65 per cent attributed to Gutter Shop and 35 per cent to Mr and Mrs Ekonomou, who were joint tortfeasors as principal and agent and who should justly bear that 35 per cent equally as between themselves. I regard Gutter Shop’s breach as more heinous and as having greater causative impact in the circumstances. This in essence is because of what passed between the plaintiff and Mr Pike shortly before the accident. That conversation brought home the risk in very clear terms. There was also a positive encouragement stemming from Gutter Shop that contrasts with the somewhat more static situation brought about by the “safety fence” having been located where it was. Had Mr Ekonomou been given a similar warning he might well have taken a less robust attitude to safety than that adopted by Mr Pike.

Damages for non economic loss based upon 30 per cent of a most extreme case was excessive

96 Gutter Shop submitted that the appropriate range was between 25 and 28 per cent and not 30 per cent as determined by the trial judge.

97 This submission proceeded on the fallacious basis of comparing the sums derived from application of s116 of the Civil Liability Act 2002 for a 30 per cent assessment ($92,000) compared to a 28 per cent assessment ($56,000).

98 This untenable reasoning ignores the statute which requires the court to focus upon the percentage proportion of a most extreme case (s116(3)).

99 Nothing further was advanced that cast doubt upon the correctness of the trial judge’s assessment. This ground therefore fails.

The position of Raftarail

100 Gutter Shop joined Raftarail as a respondent to the appeal. However, the grounds of appeal sought no order touching that respondent apart from the order granting a new trial that was at the bottom of a list of alternative claims. The written submissions confirm that Raftarail was joined merely so that it could be part of any retrial (Appellant’s submissions dated 28 April 2005 par 83).

101 Gutter Shop did not contend that Raftarail owed or breached any relevant duty to the plaintiff. Gutter Shop’s written submissions in the appeal further record that it is not contended that Raftarail was negligent in the installation of the fence in light of the conversation that passed between Mr Nick Galovic and Mr Ekonomou.

102 Gutter Shop’s appeal against Raftarail should be dismissed with costs.

Gutter Shop’s challenge to the Bullock order

103 Judge Cooper ordered Gutter Shop (the first defendant) to indemnify the plaintiff in respect of the costs of the other four defendants that the plaintiff had himself been ordered to pay in consequence of his claims against them being dismissed.

104 The trial judge found that it was reasonable for the plaintiff to have joined all five defendants, indeed it would have been quite unreasonable for him not to have done so. This was because it was only after hearing all the evidence that the judge came to the conclusion that Gutter Shop was liable when it authorised or directed the plaintiff to do his task in an unsafe manner even though, although there was fault on the part of each of the other defendants, it was not fault that caused or materially contributed to the plaintiff’s injury.

105 His Honour further held that the actions of Gutter Shop made it proper that it should bear the costs of the successful defendants. This was, firstly, because Gutter Shop had joined them in its cross-claim, alleging fault on their part that had materially contributed to the plaintiff’s injury. Secondly, Gutter Shop denied the plaintiff’s evidence as to the terms of the telephone conversation when the plaintiff told Mr Pike about the unexpected location of the safety fence.

106 Gutter Shop disputed the Bullock order in its notice of appeal, but did not file any submissions on the topic until the omission was pointed out by the Court during the hearing of the appeal. The Court granted leave to Gutter Shop and the plaintiff to exchange submissions on this issue.

107 There is an air of unreality in Gutter Shop challenging the Bullock order while in the same breath arguing that Mr and Mrs Ekonomou and Jemm were in truth always liable to the plaintiff and therefore ought to contribute to any substantive verdict awarded against Gutter Shop. In any event, the substantive disposition of this appeal means that the trial costs orders have to be revisited as regards Mr and Mrs Ekonomou.

108 There was no dispute about the relevant principles concerning a Bullock order and in particular the need for the plaintiff to show that it was reasonable to have joined the successful defendants. The trial judge had these matters firmly in view. The issue is whether he erred in applying them in a manner that attracts appellate review. For reasons stated, the focus is upon the Bullock order made at trial in respect of Jemm and Raftarail.

109 In Almeida v Universal Dye Works Pty Ltd [2001] NSWCA 156 Priestley JA said (at [9] and [13]):

9. What was submitted for Mrs Almeida was that the conduct of Universal which justified the orders she was seeking was the position of Universal vis-à-vis the other two respondents and the uncertainty that their relationships created as to whether it was safe to do other than proceed against all three. The specific incidents of conduct relied on were that Universal had accepted the quotation for the roofing work done by Mr Almeida’s employer, that Universal and Newtown had a common directorship and that Mr Motebello had conducted business on behalf of all three respondents with Mr de Sylva the person in charge of the work being done at the time Mr Almeida fell to his death.
13. Looked at from the point of view of the plaintiff, she was faced with the task of proving that some party was an occupier of the factory roof, either in an undefined sense or in a statutory sense; she had joined what she had some reason to believe was the company which had contracted to have the work done, the company lessee, and the company owner of the premises. The questions of occupation and whether Universal was the head contractor were put in issue by Universal. This alone would in my opinion have been sufficient conduct on the part of Universal to warrant the making of the orders against it which Mrs Almeida now seeks.

110 The plaintiff initially sued Gutter Shop and Jemm. Jemm and Mr and Mrs Ekonomou were promptly joined as cross-defendants by Gutter Shop. It is true that the joinder of Mr and Mrs Ekonomou occurred about the same time that the plaintiff applied to add those two as additional defendants. But Gutter Shop had already denied being a “constructor” within the meaning of the Construction Safety Act 1912 and its solicitor had (on 5 September 2003) written to the plaintiff’s solicitor asking whether it was the plaintiff’s intention to seek leave to file an amended statement of claim naming Mrs Ekonomou as the “First Defendant”.

111 Raftarail was first joined in the proceedings by Mrs Ekonomou who lodged a cross-claim against it on 15 March 2004. Gutter Shop did likewise on 2 August 2004, followed shortly afterwards by the plaintiff joining Raftarail as the fifth defendant.

112 The cross-claims were promoted actively at the trial and, as is apparent, have been urged vigorously by Gutter Shop in particular in this Court.

113 In these circumstances Gutter Shop has not established that the Bullock order in the plaintiff’s favour in respect of the costs ordered to be paid by the plaintiff to Jemm and Raftarail ought to be displaced. (Whether Jemm incurred any substantial costs at trial that were not part of Mr Ekonomou’s costs, that are no longer the plaintiff’s responsibility, is another matter, but not for this Court. Jemm and Mr Ekonomou made common cause in the appeal such that no separation of their interests, qua costs, is called for in this Court. The situation may well have been the same at trial, but that can be addressed at the costs assessment stage if it is contentious.)

114 Gutter Shop’s success in this Court in enlivening the cross-claims against Mr and Mrs Ekonomou (assisted, defensively, by the plaintiff) means that it is appropriate for verdicts and judgments to be entered in the plaintiff’s favour against those additional defendants, with costs (Supreme Court Act, s75A(10); Law Reform (Miscellaneous Provisions) Act 1946 s5(1)(c)) as a prelude to the making of appropriate orders on the cross-claims touching the three defendants liable to the plaintiff. This obviates the need to trouble further with the Bullock issues regarding Mr and Mrs Ekonomou’s costs.

Disposition

115 The following orders are therefore proposed:

1. Gutter Shop’s appeal against the plaintiff dismissed with costs.

2. Gutter Shop’s appeal against Jemm and Raftarail dismissed with costs.

3. Gutter Shop’s appeal against Mr and Mrs Ekonomou upheld with costs, the respondents to have certificate under the Suitors’ Fund Act 1951 if qualified.

4. No order as to costs on the plaintiff’s cross-appeal.

5. In lieu of the orders made at trial, order as follows:

(i) Verdicts and judgments in favour of the plaintiff against Gutter Shop, Mr Ekonomou and Mrs Ekonomou in the sum of $186,955, with costs, judgment to take effect from 13 December 2004.

(ii) Verdicts and judgments in favour of Jemm and Raftarail against the plaintiff with costs.

(iii) Gutter Shop to indemnify the plaintiff in respect of the costs of Raftarail and any costs actually payable by the plaintiff to Jemm having regard to the manner in which Jemm and Mr Ekonomou conducted the case at trial.
(iv) Order that Gutter Shop contribute as to 65 per cent of the liability established in (i) above, the remaining 35 per cent to be borne equally by Mr and Mrs Ekonomou.
(v) Cross-claims for contribution as between the other defendants dismissed with costs.

116 Lest matters have been overlooked, including any question of restitution of moneys paid, in the formulation of these orders, I would add the following:

6. Liberty to apply within 14 days, any application to be accompanied by evidence of consent to any variation or written submissions supporting the proposed variation. The party or parties affected by any such variation to have a further 14 days to respond.

117 SANTOW JA: I agree with Mason P.

118 HISLOP JA: I agree with Mason P.

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