JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BARLEY -v- SALIBA & ORS [2004] WADC 247 CORAM : FRENCH DCJ HEARD : 26 JULY 2004 DELIVERED : 7 DECEMBER 2004 FILE NO/S : CIV 2935 of 2001 BETWEEN : NIGEL PATRICK BARLEY Plaintiff
AND
CARMEL CHARLES SALIBA
First Defendant
DOWTHWAITE HOLDINGS PTY LTD
Second Defendant
BRISTILE OPERATIONS PTY LTD
First Third Party
BRISTILE GUARDIANS PTY LTD
Second Third Party
Catchwords: Negligence - Damages - Contribution and indemnity proceedings - Duty of care of occupier, employer and principal contractor - Roof tiler injured in fall from unprotected balcony - Contributory negligence of roof tiler
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Legislation:
Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947
Occupiers Liability Act 1985
Occupational Safety and Health Act (WA) 1984
Result: Third party proceedings dismissed
First defendant to pay contribution to second defendant in the sum of $437,328 Representation:
Counsel:
Plaintiff : No appearance
First Defendant : In person
Second Defendant : Mr P E Jarman
First Third Party : Mr M H Zilko SC
Second Third Party : Mr M H Zilko SC
Solicitors:
Plaintiff : No appearance
First Defendant : In person
Second Defendant : Jarman McKenna
First Third Party : Bennett & Co
Second Third Party : Bennett & Co
Case(s) referred to in judgment(s):
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Edith Cowan University v Czatryko [2002] WASCA 334
Kondis v State Transport Authority (1984) 55 ALR 225
McLean v Tedman (1984) 155 CLR 306
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Williams v Trimview Roof Restoration Pty Ltd [2001] WASCA 414
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Case(s) also cited:
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28
Boral Roof Tiles Ltd v O'Brien; GIO Australia Ltd; BC9403385; NSWCA; 15 December 1994
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Bus v Sydney County Council (1989) 167 CLR 78
Con-Stan Industries v NorwichWinterthur Insurance (Aust) Ltd (1986) 160 CLR 226
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hetherington v Mirvac Pty Ltd [1999] NSWSC 443
Le Cornu Furniture & Carpet Centre Pty Ltd v Hammill (1998) 70 SASR 414
Makita (Australia) Pty Ltd v Sprowles (1002) 52 NSWLR 705
McArdle v Andmac Roofing Co [1967] 1 WLR 356
Mills v Richards [2002] WADC 57
Nagle v Rottnest Island Authority, unreported; SCt of WA; Library No 940724; 22 December 1994
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Northern Sandblasting Pty Ltd v Harris (1997) 146 ALR 572
Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49
Still v Bowter [2000] WADC 165
Sungravure v Meani (1964) 110 CLR 24
Telfer v Flinders Range Council (No 3) [1999] SASC 142
TNT Australia Pty Ltd v Christie [2003] NSWCA 47
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38
Wright v Shire of Albany (1993) Aust Torts Reprots 81-239
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1 FRENCH DCJ: On 18 June 2001 the plaintiff was employed by the second defendant Dowthwaite Holdings Pty Ltd ("Dowthwaite") as a roof tiler and was working on premises owned and occupied by the first defendant Carmel Charles Saliba ("Saliba") who was building a two storey house on those premises as an owner builder. He was doing a large proportion of the work himself as he was an experienced tiler and had built a number of houses as owner-builder. He contracted with one of the third parties ("Bristile") for the supply and installation of clay roof tiles at the premises on or about 3 May 2001. Bristile engaged Dowthwaite to undertake the installation of the tiles. In approximately May 2001 the tiles were installed in the upper storey. The plaintiff did not work on that installation. On 18 June 2001 the premises were ready for the installation of tiles on the lower storey roofs comprising a front portico, a carport and a rear skillion roof. The plaintiff attended at the premises with one other roof tiler, Joshua Brentnall, at approximately 9.30 am on that morning. Other tilers were to attend shortly after. On arriving at the premises the plaintiff and Brentnall, used internal stairs to access these roof areas. Brentnall was trying to shift scaffolding erected inside internal stairs to improve access. The plaintiff assisted him by shifting an A-frame scaffold. While so doing he fell down a void or landing from the second storey concrete slab situated above the front entrance. This fall occasioned serious and permanent injuries as the plaintiff fell approximately two metres onto a concrete floor causing a compression fracture dislocation of his spine at the T12/L1 level with complete paraplegia below together with a head injury including loss of consciousness. He is unable to return to his pre-accident employment and on 30 October 2001 it was agreed between the plaintiff and Dowthwaite that his degree of disability was not less than 30 per cent. Payments were subsequently made by Dowthwaite to the plaintiff pursuant to the Workers' Compensation and Rehabilitation Act 1981.
The course of these proceedings 2 The plaintiff issued a writ on 12 November 2001 alleging negligence on the part of Saliba and/or Dowthwaite and seeking damages. In the statement of claim the plaintiff claims as against Saliba for breach of his duty of care as occupier of the premises to keep the premises safe for tradesmen entering onto the premises or alternatively against Dowthwaite for breach of the duty of care to ensure a safe work place for its employees. In the defences filed in response both defendants denied negligence. In November 2002 Dowthwaite consented to judgment being entered against it in the amount of $1,150,000 exclusive of payments made pursuant to the Workers' Compensation and Rehabilitation Act.
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3 In September 2003 Dowthwaite commenced indemnity and contribution proceedings against Saliba claiming contribution in respect of the plaintiff's claim the subject of the judgment and the payments made pursuant to the Workers' Compensation and Rehabilitation Act. Dowthwaite's claim against Saliba alleges negligence by breach of his general duty of care as an occupier and a breach of statutory duty pursuant to the Occupiers Liability Act 1985.
4 In his defence to these contribution proceedings Saliba denies negligence or any breach of statutory duty. He admits that he owes a duty to persons entering on the premises but denies that there was any breach of his duty on the grounds that access to the upper storey was blocked off at the stairs and the plaintiff was not required to access the landing in order to lay the tiles and has therefore willingly assumed the risk he took. Saliba also claims that he had discharged any duty of care he owed to the plaintiff by engaging Bristile to supply and install the tiles so that Bristile had undertaken to assume responsibility for its sub-contractors including the plaintiff. Saliba alleges that Bristile had breached its duty of care by failing to inspect the premises to ensure that it was safe for tiling and failing to advise Dowthwaite that the tilers would require access to the upper storey and also by failing to supply ladders to effect such access.
The third party proceedings 5 In December 2003, Saliba commenced third party proceedings against the first third party, Bristile Operations Pty Ltd claiming indemnity or contribution if he is found to be liable to pay any contribution towards the judgment sum and workers' compensation payments made by Dowthwaite. Saliba's third party proceeding raises the same claims of failure to inspect premises and advise of safety requirements as are claimed in the defence to the contribution proceedings. In addition, further particulars allege a failure to warn Dowthwaite and the plaintiff that a safety inspection of the premises had not been carried out. 6 In June 2004 Dowthwaite commenced third party proceedings against the first third party claiming contribution and/or indemnity for the judgment entered against it and the workers' compensation payments made. Dowthwaite's third party claim alleges that Bristile had a responsibility pursuant to the installation agreement and its proximal relationship and therefore had a duty of care to the plaintiff and Dowthwaite to ensure that the premises were safe. It is claimed this duty
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of care was breached by a failure to inspect the premises and failing to detect the unguarded and dangerous balcony landing. 7 The third party proceedings was initially commenced against the first third party "Bristile Operations Pty Ltd". When it became apparent that there was some question that that may not be the correct entity the second third party "Bristile Guardians Pty Ltd" was included. I was advised in the early stages of the trial that there had been some confusion as to the correct legal entity as the corporate structure is complex and some arrangements seem to be made simply by using the business name of "Bristile Clay Tiles". Bristile advised that there is no issue as to the correct corporate entity. It does appear however that the contract for the supply and installation of the tiles was with the first third party and the first third party entered into a sub-contract agreement with Dowthwaite for the installation of the tiles. 8 In its defence to Saliba's third party proceedings Bristile denies that it had a duty of care to the plaintiff or to sub-contractors. It claims that Saliba had a duty to ensure that persons at the premises were not exposed to hazards. He breached that duty by allowing the balcony void to remain unguarded and by failing to warn of that danger. Bristile also claims that Saliba was convicted in the Perth Court of Petty Sessions on 23 April 2004 of an offence under s 22 of the Occupational Health and Safety Act 1984 of failing to ensure that tradesmen were not exposed to hazards at the premises. Alternatively, if Bristile did have a duty of care it had discharged that by engaging Dowthwaite who had a duty to inspect the premises to ensure that they were safe for its employees. 9 In the defence to Dowthwaite's third party proceedings Bristile states that the sub-contract agreement with Dowthwaite was subject to the terms and conditions of the Bristile Sub-contract Work Order Form that provided that Dowthwaite will establish and maintain safe working conditions which comply with the Occupational Health and Safety Act including the provision of proper guard rails and warning signs. 10 In an apparent contradiction to its defence to Saliba's third party proceedings Bristile claimed that Saliba had provided an appropriate barrier in the form of boards and scaffolding at the top of the stairs to prevent access to the landing. The defence also disputes that Dowthwaite contributed to the accident by its negligence and/or alternatively claims that Dowthwaite's decision to consent to the judgment in the sum of $1,150,000 did not take into account the plaintiff's contributory negligence in obtaining access to the roof from inside the house rather
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than waiting for the ladders to arrive to obtain safe access to the roof from the outside. 11 The contribution proceedings by Dowthwaite against Saliba and the third party proceedings against Bristile were heard together. Saliba was initially represented by a firm of solicitors who withdrew from the record on 25 November 2002. He subsequently engaged a second firm of solicitors who withdrew on 3 May 2004. However, it is apparent from the affidavit filed to support their application to withdraw that they had been unable to obtain appropriate instructions and/or payment from Saliba for some time. When the matter proceeded to a listing conference on 10 March 2004 when it was listed for 15 days as from 26 July 2004 it was foreshadowed by Saliba's solicitors that they had trouble getting instructions and may have to cease to act. 12 These proceedings had been stayed from December 2002 until August 2003 following an application by Saliba's solicitors to appoint a guardian ad litem to represent him in these proceedings. That application was not pursued and the matter progressed through until the first day of the trial. Saliba was advised on a number of occasions to engage alternative solicitors. At a directions hearing approximately two weeks before the trial Saliba advised the Court that he was in the process of engaging alternative solicitors. He was warned that the matter was proceeding on 26 July and it was unlikely that the trial would be adjourned as the other parties had engaged counsel and a number of witnesses were subpoenaed to attend court. 13 On 26 July 2004 there was no appearance by Saliba. The Court had been advised by a telephone call from a relative that Saliba was admitted to a psychiatric clinic. Saliba's previous solicitors attended as a courtesy and also advised that they had received communication from their former client that he was unable to attend court as he was receiving treatment in a psychiatric clinic for depression and a reported suicide attempt. Dowthwaite's solicitors engaged a psychiatrist who attended on Saliba and provided an oral report to the Court on the following day. Although there was no formal application for an adjournment from Saliba his advice of his inability to attend court was treated as an application for an adjournment. Following receipt of the oral report from Dr Peter McCarthy I ruled that the hearing would proceed in Saliba's absence if he was unable to attend. Although Dr McCarthy confirmed that Saliba was suffering from anxiety and depression he also stated that he appeared to understand the issues and what was happening in court and the situation that he was facing. He advised that there were no problems with
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cognition and Saliba was orientated in time and place. Saliba had advised that he had taken an overdose of tablets on the previous week and had admitted himself to the Perth Clinic under Dr Wu who was treating him with medication and electro-convulsive therapy. 14 A ruling was made that the matter would proceed because of concerns that Saliba's behaviour was a continuation of his general avoidance of the reality of this litigation and the fact that such behaviour was likely to continue so that there was no point in granting an adjournment. In any event, Saliba attended shortly after the proceedings commenced. Although there is no doubt that Saliba was prejudiced by his lack of legal representation I was satisfied by his responses and demeanour during the course of the hearing that he was not significantly affected by his depression or his ongoing treatment. He was coherent and appeared to have a good comprehension of the evidence presented and the nature of the course of the proceedings. Any difficulties he experienced during the course of the trial and before the trial commenced are the result of his deliberate decision to terminate his previous legal representation and not to engage alternative solicitors. 15 As a result of the various contribution and indemnity proceedings being heard together and because Saliba was not represented the issues to be determined emerged partly from the pleadings referred to above and partly from a demonstrated consensus between the parties as to the issues to be determined by the Court. Although the pleadings in the actions between the three parties involved in the trial raised some discrete matters as between the relevant parties the trial essentially focused on the relative responsibility of each of the parties for the accident. It is appropriate at this point to note the position of each party in relation to this issue. Dowthwaite admits some responsibility because it accepts that it did breach a non-delegable duty of care. However, Dowthwaite claims that Saliba shares responsibility because he was the occupier of the premises and responsible for the condition of the premises. Dowthwaite also contends that Bristile is responsible because it had responsibility for checking the safety of the premises. Dowthwaite contends that there was no contributory negligence on the part of the plaintiff. The position of Saliba is that he had no responsibility as he had blocked off access to the upper storey and the accident was a consequence of the negligence of the plaintiff, the failure of Dowthwaite to provide ladders for the plaintiff to access the roof from the exterior, and the failure of Bristile to ensure that Dowthwaite provided the right equipment and supervised its tilers. The position of Bristile is that it had a general common law duty of care arising from the system it employed, but that duty of care was restricted to
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the safety of the exterior of the premises. It only had responsibility in relation to the safety of the interior of premises to be tiled if it was necessary for the tilers to have access to the inside of the premises.
Relevant background to the accident 16 Saliba obtained a building licence as an owner builder to build the premises on 17 May 2000. He began construction shortly after. He had previous experience building houses as an owner builder and had built approximately 15 houses although this was the first two storey house that he had built. He did most of the work himself as he was an experienced wall and floor tiler and had some experience as a plasterer, a bricklayer and a concrete worker. He did the concrete work himself but had the frames constructed and started the bricklaying with the help from another bricklayer. Saliba engaged a roof carpenter to construct the timber framework on the roof and installed the gutters himself. 17 In approximately April 2001 he contracted with Bristile for the supply and installation of clay roof tiles. The terms and conditions of that contract provide that Saliba was to supply scaffolding hoists and safety rails. Safety requirements are to be governed by the Occupational Health Safety and Welfare Act. The conditions also provide that Saliba was to contact the tile supervisor for safety requirements for the job five days before the installation was required. It is noted that that prompts the supervisor to check the site for Bristile's requirements "including safety issues". Saliba contacted Bristile late in April. Although he referred to Australia Day it seems likely that he was referring to Anzac Day. The contemporaneous notes indicate that the upper storey tiles were installed on approximately 27 April to 3 May. 18 Mr Neville Stone was employed as a tile supervisor with Bristile for 27 years. He explained that the procedure operated by Bristile following a request for the installation of tiles from a builder was that the supervisor would get a card from the office regarding a specified site. The supervisor would then go and inspect the site and organise delivery of the tiles. He would liaise with the builder regarding any safety issues and then organise the tiling contractor to go on the site. After the tiles were delivered a further inspection would take place to make sure that the premises were completely ready for installation including the erection of any required scaffolding and other safety requirements. 19 Stone did not initially attend the premises in relation to the installation of the upper storey tiles, however he noted that the supervisor who did inspect in April and May had commented that the premises
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required scaffolding that had to be fixed on 27 April and that there was a comment made on 3 May that work was stopped because of an unsafe scaffold. At some stage Stone did inspect the premises in relation to the installation of the upper storey tiles and he recalls there being some complaint regarding flimsy scaffolding. Stone recalled receiving a phone call from Saliba's wife regarding the tiles for the lower storey and he thinks that that was on a Friday. The Bristile office organised for Dowthwaite to install the lower storey tiles the following week. 20 Stone attended at the premises on 18 June at approximately 9.00-9.30 am. He said that he walked through the premises on the ground floor and saw the plaintiff on the roof of the garage and saw the other tiler, Brentnall, standing batons up around the house. He saw Saliba working on the rear skillion roof. Stone noticed that there were no ladders or other tiling equipment on the site. In response to his query regarding this the plaintiff advised him that he had got on the roof by walking up the stairs and out onto the roof through a window. Stone said that he then told the plaintiff not to bring any tiles or material up onto the roof until the ladders and elevator arrived. Although Stone said that he made this statement to the plaintiff because of the risk that tiles might damage the inside of the house or damage the windows, and because it was dangerous, he agreed that in an earlier statement he said his warning was restricted to the possibility of damage being caused to the inside of the premises. The fact that Stone did not refer to giving any warning to the plaintiff when questioned by the work safe inspector suggests he may be reconstructing this. 21 Stephen Cleggett is the director of Dowthwaite Holdings. He incorporated the company as a prerequisite to obtaining work from Bristile. He explained that the procedure put in place by Bristile was that he would ring Bristile requesting work and they would fax a job docket to him advising of details of the work required and the address of the premises. He stated that when the upper storey of the premises was constructed in April and May there was a safety issue as he considered that the scaffolding that had been supplied by Saliba was not safe. He contacted Neville Stone who stated that in his opinion the scaffolding was safe. They went ahead with the tiling despite the fact that the scaffolding was "a bit flimsy in places" and a Union representative had commented that it appeared to be unsafe. When he was contacted in relation to the installation of the lower roof he advised Bristile that he would attend at the premises mid morning on 18 June.
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22 Mr Steven Trend is a work safe inspector with Worksafe WA. He stated that he went to the premises in April 2001 as a result of a complaint from a roof carpenter regarding the size of the scaffolding. At that stage he issued an improvement notice to Saliba requiring him to fix the scaffolding. Following a complaint from roof tiling contractors relating to edge protection he issued a further improvement notice to Saliba on 4 May 2001. During his attendance at the premises on those occasions Trend noticed unguarded edges in the house and issued a further improvement notice in relation to that matter as well as a notice requiring rubbish to be removed. The improvement notice required the open edges to be barricaded. Although the compliance slips in relation to those improvement notices were not returned on time no further action was taken. Mr Trend re-attended the site on 29 May 2001 but said that at that stage he had some doubts about his jurisdiction in relation to safety issues on the premises as it was not apparent at that stage that Saliba had any employees or any sub-contractors working there. The jurisdiction of Worksafe is restricted to a work site, that is, building premises where employees or sub-contractors other than an owner/builder are working.
The accident 23 On the morning of 18 June 2001 Cleggett and six employees of Dowthwaite were finishing a job in Murdoch. Cleggett had intended that he and his team would then go to the premises and complete the tiling on the lower storey. He received a phone call from his wife advising that she needed assistance taking his children to the doctor. He instructed the plaintiff and Brentnall to go to the premises ahead of the four other tilers who were packing up the equipment from the job in Murdoch. He told the plaintiff to finish off the tiling job at the premises and then knock off for the day. The plaintiff and Brentnall then drove to the premises in the plaintiff's car. At that stage the plaintiff had approximately 11 years experience working as a tiler and had been working for Dowthwaite since March 2000. He had been in the position of leading hand for some time prior to 18 June. He agreed that as leading hand he was second in charge to Cleggett and in Cleggett's absence was responsible for giving instructions to the other tilers. 24 The plaintiff had not been in the tiling team when the top storey tiles were installed in April and May. He described the area around the house as being full of rubbish. He said that he walked up the stairs of the house and then through the front master bedroom out on to a small balcony that was adjacent to the portico. He does not remember any scaffolding in the stairwell. He said that the portico would only require approximately
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50 tiles. The plaintiff described the general procedure in installing the tiles in the following terms. A junior tiler usually puts the ladder up and makes sure the gutter guard is in place. He then breaks open the batons and leans them up against the gutter. While that is happening other tilers mark out or "peg" the gauge along which the batons are laid and the batons are then nailed off and cut in. The elevator is then put up and the tiles are loaded and carried up to the roof. Another tiler then gets the hammer and sheets the tiles in and the tiles are then cut at the hip and valley. 25 On this occasion the plaintiff commenced the installation by pegging out the portico area and then walked through the house out to the rear gaining access to the roof of the carport by climbing through a window. He then commenced pegging out the roof of the carport. While he was doing that Brentnall was standing the batons up around the house. The plaintiff said that he saw no warning signs at the bottom of the staircase and he described himself as walking straight up the staircase and not having to move any scaffolding or barrier out of the way. The plaintiff has no personal recollection of anything that happened to him from when he was out on the carport roof until after he recovered consciousness in hospital. Although the plaintiff said that he must have seen the void or knew that the void was there it was not clear whether he was talking about the void created by the staircase or the void over the Juliet balcony that he fell through. In cross-examination the plaintiff insisted that he went up the stairs because that was the easiest way to get the tiles up in the circumstances. Although he conceded that if he had had a ladder he could have got up onto the roof by using the ladder he maintained that even if a ladder had been there it was still easier to use the stairs to access the roof. When questioned as to why he did not wait for the arrival of the other tilers with the ladders and other tiling equipment he repeatedly responded that he was just there to do his job and he was not paid simply to sit around and do nothing. The plaintiff does not recall Stone speaking to him at the premises that day. 26 Joshua Brentnall is the tiler who was working with the plaintiff on the day of the accident. He confirmed the plaintiff's evidence that there was a lot of rubbish around the site when he arrived. He stated that the plaintiff told him to put the batons up and that the plaintiff then started pegging out the portico roof. He said that he did not see how the plaintiff got on the roof. Saliba cautioned him about not marking the gutters when he was standing the batons up around the premises. Brentnall described carrying the tiles on his shoulder up through the stairwell and having to move some planks that were laid across a scaffold in the stairwell to gain
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access. He confirmed the plaintiff's evidence that there was no warning sign at the base of the stairs. He described the structure in the stairwell as comprising three to five planks placed across the stairwell with an A-frame scaffold resting on the top of the planks. He placed his first lift of tiles (approximately six) in the room adjacent to the portico roof. He described seeing the void over the Juliet balcony at the front entrance. It had no barricade or scaffold protecting the open edge. Brentnall went to get a further lift of tiles and then decided to remove the A-frame scaffold in the staircase to make his access easier. He moved the first section of the A-frame scaffold into a bedroom and then asked the plaintiff to help him move the other frame. The plaintiff came through from the carport roof through a window and grabbed one side of the A-frame scaffold and started dragging it backwards. Before Brentnall could shout a warning, the plaintiff fell backwards over the void. When he saw the plaintiff lying on the concrete floor below with blood gushing from the back of the head he ran outside calling for an ambulance. At that stage the other tilers from Dowthwaite's team had turned up as well as workers from the building next door. Brentnall remained with the plaintiff in the entrance hall area until the ambulance arrived. He saw Saliba erecting a barricade over the edge of the void from which the plaintiff had fallen. Saliba also told Brentnall that he had seen the plaintiff jump from a window at the front of the portico and that it had looked like the plaintiff was trying to jump from the window across the void. Brentnall advised Saliba that this could not have happened as he had seen the whole thing. Once Cleggett had arrived everyone was yelling and arguing about what had happened. Brentnall saw Saliba cleaning up all the rubbish around the entrance hall area and cleaning up the blood from the plaintiff's accident. 27 In cross-examination Brentnall agreed that in the majority of cases – approximately 95 per cent – tilers would access the roof by using a ladder with the tiles being brought up by a tile elevator. He stated that the exceptions were cases where the roof could not be accessed from the outside or a two storey house where the internal stairwell can be used to access a lower storey roof. He stated that the instructions that he and the plaintiff had received from Cleggett were to go and start the job – to "start pegging out" and the other tilers would follow to finish it off. 28 Brentnall agreed that individual tilers are responsible for their own safety and that they are taught to spot hazards while they are working. He stated that he could see the void when he first started moving the A-frame away from the stairwell. He said that there was nothing blocking the plaintiff's view of the void. Although he agreed that it was unusual for a tiler to remove scaffolding he said he "didn't think anything of it" because
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it was in the way and he did not see the scaffolding as a barrier in the sense of a warning to go no further. When Brentnall was shown the video that had been filmed by Saliba he agreed that the structure of planks and A-frame scaffolding demonstrated in the video was the structure that was in place in the stairwell on 18 June but that there were less planks across the stairwell. Brentnall agreed that it was a basic rule of safety on building sites not to walk backwards without looking and checking on what was behind. 29 Stephen Raven is another tiler employed by Dowthwaite. He followed the plaintiff and Brentnall to the premises with Wayne Murphy. He said that when they arrived Brentnall was running over to say that the plaintiff had fallen. He went in to try to help the plaintiff and saw Saliba attempting to put up a barrier across the void above the entrance hall. Raven agreed that in most cases (95 per cent) tilers access the roof from the outside by means of a ladder with the tiles being taken up on a tile elevator. On small jobs tiles can be manually carried up the ladder although he said that there had been some occasions when he has used internal stairs to access a second storey roof. Raven stated that he and Murphy did not have ladders or an elevator in the car with them when they went to the Leederville premises. He stated that he did not know where that equipment was as at that stage his work was restricted to standing up battens. He did not know who amongst the team of tilers had the ladders and other equipment to bring to the premises. He agreed that if ladders had been provided the tilers would always use the ladder but otherwise they would access the lower storey roof by going inside the house. 30 Wayne Murphy is the roof tiler who accompanied Raven to the Leederville premises. He had been working for Dowthwaite for approximately six years and has been the leading hand since the plaintiff had his accident. He was in the tiling team that installed the roof tiles on the upper storey roof and described the premises at that time as being a "pigstye". He said that the scaffolding was built on concrete blocks and he refused to use the scaffolding because he thought it was not safe. On the day of the accident he stated that he did not travel to the premises with Raven but with another tiler and he says he remembers Raven running out towards him to tell him about the plaintiff's accident. He describes seeing the plaintiff lying in a pool of blood and also states that he saw Saliba erecting a temporary scaffold across the void. He described what he called a "slanging match" taking place between Brentnall and Saliba and also recalls Saliba saying that he thought the plaintiff had jumped across the void through the window. He agreed with the other tilers who had
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given evidence that in the majority of cases access to a roof is gained by means of a ladder although he has gone through the interior of the house before as it is often an easier means of gaining access. He cannot remember who brought the ladders and equipment to the premises site but he stated that he and the tiler Jay were the last persons to get to the site as they had stopped off at a shop to get some lunch on the way. 31 Michael Verbrugge is a bricklayer who was working on a building site next door to the premises. On the day of the accident he was having a cup of tea when he saw a young man run in from the next door building calling for help. While the builder Don Gavin rang an ambulance he said he went in to help the plaintiff. He described the plaintiff lying on the floor with his legs up against a wall and his head and shoulders on the floor. He described seeing scaffolding half hanging down over the open edge of the void. He drew a mud map depicting the bottom half or the legs of scaffolding hanging down over the open edge of the void. He said that he did not see any barricade across the void. He described the appearance of the building site as messy but that when he returned at 3.00 pm to speak to the work safe inspector the area had been cleaned up. 32 After the second storey roof tiles had been installed in April/May Saliba continued working on the premises. After he had finished rendering he called Bristile and spoke to Mr Stone and advised that the premises were ready for the installation of the lower storey tiles. He explained that by 18 June he was installing cornices inside the house. On the morning of 18 June he invited Don Gavin the builder from the next door premises to come inside and have a look. He said that he took him up the internal stairs and had to remove a plank to get past the scaffolding erected inside the stairwell. He said that the stairwell was blocked off because he was in the process of putting up sheets of gyprock and plaster on the ceiling in that area. The walls had already been rendered. He explained that the planks were resting on ledges in the stairwell with the A-frame scaffolding resting on the top. A video depicting a number of planks placed across the stairwell with scaffolding resting on the top was produced by Saliba, shown to a number of witnesses and tendered in evidence (exhibit 35). He said it was blocked off for his own safety so that he would not fall into the stairwell when he was working on the scaffolding and also to prevent anybody from going up the stairs. He also gave evidence that up until the day before (Sunday 17 June) there was a plank barrier erected across the Juliet balcony void. Saliba stated that he had taken it off either on the Sunday or early on the Monday morning (18th) to get up onto the second storey by means of a ladder. He said that the plank was still lying on the floor adjacent to the edge of the void. On
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the Monday morning he took the planks off from the Juliet balcony area and went downstairs to mix cement to put a coat of plastering on one of the pillars in the garage. He said that he took the two planks down from the Juliet balcony just before Don Gavin came through the house. 33 Saliba said that when he saw the tiler with the battens he told him not to put them up against the Colourbond gutters to avoid any damage. It was shortly after that that he heard a big crash. He stated that when he saw the plaintiff's body in the front entrance hall he thought that he had jumped through the window from the portico. He then said that he saw the A-frame leg hanging down over the edge. Saliba then went upstairs and grabbed a stool and put the plank back across the Juliet balcony so no-one else could fall. He denies cleaning up the blood or tidying up the area in which the plaintiff had fallen. Saliba insisted that there was a warning sign placed at the foot of the stairs stating "Danger – Don't enter". During the course of cross-examination Saliba's account of when and in what circumstances the barrier across the Juliet balcony was removed became quite confused. He was cross-examined on statements and statutory declarations that had been made by him in relation to the Worksafe prosecution. It was suggested to Saliba that in those statements he had said that the Juliet balcony was barricaded off by three wooden planks fixed to the side walls when he was last at the site on the Thursday or Friday before the plaintiff's accident. He had said in those statements that he did not go up the stairs on the Monday morning prior to the accident and did not know if the wooden planks had been removed. He said that he did not know how they came to be removed. Saliba said that although he could remember signing the statement he said that he could not read it properly because his glasses were broken. However, during cross-examination Saliba also agreed that when he took the builder Don Gavin through the premises on the morning of the 18th Don Gavin made some comment to him in relation to the fact that there was no barrier across the Juliet balcony void. 34 Saliba admitted that he was convicted in the Worksafe prosecution of an offence of failing to ensure that a work place was free of hazards and that the particulars of the complaint was in relation to the risk of falling from an unguarded void on the Juliet balcony. A certified copy of that complaint was tendered as an exhibit in these proceedings. He also agreed that he was the person who was in control of the premises and that he had a responsibility to provide protection for the Juliet balcony void. In cross-examination he confirmed his earlier statement that he was the person who had taken down the barricading on the Juliet balcony void because he was going to put a ladder up from the ground floor to the first
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floor through that void. He said he did this so he could gain access to the upper storey without having to move the planks across the stairwell void. 35 Mr Andre Vassallo is an electrician who undertook electrical work on the premises in the period April and May 2001. He described assisting Saliba in constructing a wooden barricade across the Juliet balcony void by nailing a wooden plank on one side in approximately February 2001. He explained that he and Saliba nailed it to the one door. He stated that he advised Saliba that he should replace the plank with a stronger piece of wood and that he should use a Ramset nailing gun to affix it to the walls. He said that as far as he was concerned it was only nailed on one side and could be easily pulled off. He stated that it had been nailed to the door frame of the bedroom quite solidly but on the other side there was a nail placed underneath to support it rather than to fix it to the wall. 36 Mr Don Gavin gave evidence at a De Bene Esse hearing prior to the trial. Unfortunately it became apparent during the course of the trial that Saliba had not been given adequate notice of the date of the De Bene Esse hearing and therefore did not attend and did not have an opportunity to cross-examine Mr Gavin. A ruling was therefore made that the evidence from the De Bene Esse hearing would not be admitted.
Expert evidence and the Worksafe inspection 37 The accident was reported to Worksafe WA by Cleggett in the afternoon of 18 June and Mr Peter Green, an inspector with Worksafe, attended at the site. Green had 12 years experienced in the building industry as a carpenter and registered builder before joining Worksafe in 1986. He conducted an inspection of the site and took measurements and photographs of relevant areas and subsequently interviewed witnesses. His inspection of the premises revealed a lot of rubbish in and around the premises. He also noted unprotected roof edges that exceeded three metres in height and unprotected open edges from landings on the premises over two metres in height contrary to Occupational Safety and Health Regulations. He stated that the area where the plaintiff had fallen inside the entry hall had been cleaned up and there was no blood in evidence. Green had been advised that that area had been cleaned up prior to this arrival. As a result of his investigation he issued prohibition and improvement notices to Saliba. One prohibition notice related to the failure to provide guard rails on exterior roof edges and inadequate guard rails on interior open edges including the Juliet balcony. A further prohibition notice was issued relating to rubbish around the site and inside
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the building. Two improvement notices were issued for not having a toilet facility on site and for a hole in the floor of one of the bedrooms. 38 Green recommended that Worksafe proceed with a prosecution against Saliba. He was prosecuted and subsequently convicted of an offence under s 22(1)(b) of the Occupational Safety and Health Act (WA) 1984 for failing to ensure that the means of access or egress from the working place did not expose persons to hazards. The particulars provided relate to the unguarded void to the Juliet balcony. Saliba was convicted in June 2004 following a trial in the Perth Court of Petty Sessions. 39 Green also issued an improvement notice to Bristile and initially recommended a prosecution in relation to the Bristile supervisor, Mr Neville Stone. Green stated that after discussions with Stone and Mr Brad Moore, a manager at Bristile, he issued an improvement notice on Bristile because he had "'grave concerns' about Stone's knowledge of his obligations and responsibilities as a supervisor in ensuring the area was fit for tilers to go onto that roof." There followed a lengthy discussion between the Court and counsel as to the basis for Green's opinion and the reasons for the issue of the notice. It became apparent that Green's opinion was based on a view that Bristile was in the position of an employer of the plaintiff and had a general responsibility in relation to the condition of the premises. The improvement notice does not actually relate to the unguarded Juliet balcony void but to a failure to provide edge protection for tilers working on the front portico roof, rear carport roof and rear skillion roof as these roofs were in excess of three metres in height. The improvement notice also related to rubbish around the site limiting safe access and egress to work areas. The improvement notice directs that Bristile ensure that supervisors are provided with appropriate training in the identification and assessment of hazards in relation to falling so employees are not exposed to a risk of injury. However, no matter what the nature of Green's concerns were or on what basis they were made he eventually stated in cross-examination that the notice was unrelated to the unguarded Juliet balcony void. His concern was related to the exterior of the building and he was not asserting that Bristile had a responsibility in relation to the Juliet balcony void. 40 Green referred to a document entitled "Code of Safe Practices for the Roof Tiling Industry (exhibit 20). The foreword to this document describes it as an industry initiative presenting the standards of safety and work practices required in the industry. Bristile is a signatory to the Code, along with the major roofing and tiling companies. The Code sets out the
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main statutory and regulatory requirements but these are generic in nature. All the detailed operational requirements refer to work on the exterior of building premises. There is no reference to safety matters inside building premises. 41 As an experienced building supervisor Green said that tiling contractors were under the general supervision of a building supervisor and in the case of an owner builder that would be Saliba. He stated that building supervisors should not allow persons to work in the vicinity of open voids like the Juliet balcony and should not allow persons to gain access to work areas by going through premises with such an open void. 42 Green stated that there were a number of ways in which roof tilers could have gained access to a roof such as the portico roof in the front of the premises. Tilers could access the roof from the exterior by means of a ladder carrying roof tiles up on their shoulder. Green did not consider that this was a safe means of transporting tiles as the tiler would not have three points of contact with the ladder as he climbed. He agreed that it was something that was done in the industry but did not agree that it was a common practice nowadays. The alternative of hand balling or throwing the tiles up from the ground to a tiler positioned on the roof was also a dangerous option because of the risk of someone being struck with a falling tile. Although tile elevators or hoists are now the almost universal means of conveying tiles to the roof Green considered that that would not be practical for a small area requiring approximately 50 tiles. He also commented that rubbish around the area underneath the portico roof could make it difficult to erect a hoist in that area. Green considered that in the circumstances in this case the safest way would have been to gain access to the roof through the interior of the house using the internal stairs, carrying the tiles out onto the portico roof through the adjacent doorways and small bedroom balcony. He described this as the "most desirable way to take tiles up". Despite being pressed in cross-examination Green stated that ladders were to be used for access and egress only and that it was clearly unsafe for a tiler to carry tiles on his shoulder walking up a ladder. He accepted that that practice did occur but said he hadn't seen tiles carried in that way for years. 43 Green said that appropriate guard rails for a Juliet balcony void are generally available, are not expensive and can be hired from scaffolding firms. He also stated that planks of timber of an appropriate size and fixed securely across the void would provide adequate protection. The single wooden plank that had been placed across the void by Saliba after
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the accident was in his opinion not sufficient and did not comply with standard building regulations. 44 Philip Faigen is a practising architect and registered builder and lectures at Curtin University in commercial arbitration. He explained the general obligations of builders regarding safety on building sites and the need to provide a safe work place for employees and contractors. That obligation includes the need to identify hazards and prevent injury including falling from open edges. He explained that there are two ways in which an adequate barricade could have been erected over the Juliet balcony void. A series of steel hand rails can be connected to steel uprights and bolted onto the adjacent walls or to the concrete slab. Alternatively, a temporary floor over the void can be erected. Both systems are readily obtainable and can be hired from scaffolding firms. Although they are not difficult to remove it is important that they be fixed into position. Either of these systems of guard rails or barricades should be used on all sites that have open voids or open stairwells. Faigen was shown photographs of the plank that had been placed across the void by Saliba after the accident. He considered that this was a poor substandard guard rail and even if nailed into the brickwork on both sides was not an acceptable guard rail. He considered that it would only really serve as a visual warning. 45 Faigen was shown the video film depicting the planks and A-frame scaffolding erected in the stairwell void. He considered that this was a dangerous working platform as the scaffolding could move and fall between the planks. He did not consider that it was erected as a barrier but was placed in the stairwell to support the frame and to act as a working platform. He stated that if it was to be considered a barrier to stop people getting upstairs it would require warning signage to be placed at the foot of the stairwell. Faigen stated that warning signs are easily available. He explained that the fact that the planks could be moved implies that access is available and it is just a temporary closing off rather than a safety barrier. Faigen was asked what such a structure would communicate to persons coming on to the site and he stated that he had often seen that kind of arrangement in building sites. In his opinion workers who want to move small amounts of material such as bags of cement will commonly use internal stairs and would be likely just to move the planks aside. He added that in those cases they usually didn't even both replacing such structures. Faigen agreed that it is an unsafe practice to walk backwards on a building site unless the area had been checked for hazards.
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46 Faigen stated that the usual method for transporting tiles to the roof was by means of a tile hoist or elevator. Like Green he was of the opinion that ladders should be used for access only rather than as a means of transporting tiles. He stated that although he knew that on some occasions tilers did carry tiles on their shoulders walking up a ladder he had not seen that for some time and did not consider it to be safe. If such a practice occurred on a site under his control he would prohibit it. He stated that he considered that it was safer to walk up an internal staircase carrying tiles rather than carry them up by means of a ladder although the safest and best option would be to transport the tiles by means of a tile hoist or elevator. In cross-examination however he agreed that if there was an unprotected void such as the Juliet balcony void then a ladder would have been preferable to using the internal stairs.
47 Mr John Rawlins has been a tile supervisor with Bristile for 15 years and has worked as a roof tiler for 25 years. He explained that the task of a tile supervisor is to inspect the site to ensure that it is ready for the job, to check requirements for scaffolding if it is a two storey construction, to arrange for the delivery of tiles and for labour and to check the work when it has been completed. He stated that scaffolding is required for two storey buildings or for single storey buildings when the roof is over a height of three metres. Plank scaffolding is also required around the perimeter of a roof when it is a steep pitch. He explained that if he encountered safety problems in relation to the scaffold he would contact the builder and ask him to rectify the problem. He explained that it was not his practice to generally inspect the inside of a house unless there was a need to. In his experience there had been hardly any occasions when he was required to inspect the interior of a house for safety aspects. 48 Mr Rawlings stated that tiles are generally transported to the roof by means of a tile hoist or elevator and that generally tilers bring up all supplies from the exterior of the building. He stated that if the building was at the extreme of the perimeters of the block tiles may need to be transported to the roof through the house. He stated that this happened rarely and estimated that to be between two and three per cent of tiling operations. However, when that does occur it is the tiler's supervisor's practice to inspect the inside of the house for safety purposes and to also check that the tiles had not damaged interior walls or door frames during the transportation. He stated that tilers are not encouraged to go through the house because of the possibility of such damage to the interior. However, he did agreed that everyone in the building trade tends to access the interior of building sites. Rawlings stated that in his experience tilers do carry tiles on their shoulder up a ladder and he had done that for many
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years before the introduction of hoists. He has never seen anyone fall while doing so. He explained that a gutter block or guard is used to stop the ladder moving on the roof. He considered that it would be a waste of time to take tiles up through the interior of a house and as a supervisor he would expect the tiles for a small job such as the portico roof to be transported up by ladder. He would not expect that tilers would remove planks and an A-frame constructed in the stairwell to get access to the roof. 49 Rawlings agreed that the document entitled "Uniform Code for Safe Work on Roofs" does not mention anything about safety issues only being confined to the exterior of buildings but he stated that "our issues are always external". He also agreed that the uniform code stated that ladders were to be used for access and egress only. His response to the question that it is contrary to the code of practice to take tiles up by means of a ladder was that what "works on paper does not work in practice". In the context of tiling the portico roof on the premises he said that in his opinion it was "silly to use the internal stairs rather than the ladder". In his opinion the ladder is safer and shorter. He also stated that "the people who wrote the uniform code don't know anything about it". He stated that if he had gone to the site without a ladder he would have gone up the stairs and out through the window and set out the battens on the portico or the rear roof. However, if the stairwell had been planked up in the manner shown in the video he said that he would have thought about it and probably would not have gone up there. 50 Paul Clarke operates a roof products supply business and Bristile is one of his customers. Prior to establishing that business in 2002 he operated a tiling business for 15 years with Bristile as his major client. In addition to that 15 years experience he had also been employed as a tiler for four years. Clarke is a very experienced tiler working in both domestic and commercial roof tiling. Clarke was asked for his opinion on the issue of a tiler gaining access to the roof through the interior of a building. He stated that generally tilers gain access to the roof by means of a ladder but tiles are taken up by a tile hoist. However, he said a tile hoist would not be used for small numbers of tiles between 50 and 100 tiles. He stated that they would be carried on the tiler's shoulder up the ladder. He stated that that happens all the time and he does not see it as a safety concern. Clarke stated that tilers would only walk through the house if they were not able to gain access from the exterior. He explained that as all of their work is on the outside there was no need to go inside the house. It was not the quickest way to reach the roof and the tiles could cause damage to the interior walls. He also pointed out that it could be
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hazardous for tilers to walk inside premises if there was a tiler working on the roof as they could be hit by falling tiles or tools. When tilers access the interior of the premises to clean up any fallen debris that was at the end of the day when there were no persons working on the roof. 51 Clarke stated that when he was in charge of a tiling contractor team he regarded himself as being in charge of the tilers on his team rather than Bristile. However, he stated that he would not check the inside of building premises for safety issues as all the work was conducted from the exterior. He said that he would not send any tilers ahead to start work without a ladder as there was no point in doing that. He stated that if he found himself in that position that is, of being on a building site without a ladder to tile an area such as the portico roof, he would walk upstairs if the stairs were unblocked and the area was totally accessible. He would not touch planks or move scaffolding if erected in the stairwell void.
Findings on the issue of causation of the accident 52 There is no doubt that there was no barricade across the Juliet balcony void when the plaintiff fell on 18 June. I am satisfied that a plank had been placed across the void and affixed in the manner described by Vassallo, that is that the plank had been fixed to the wooden door frame and was resting on a nail on the other side. Whether Saliba did use the Ramset gun provided by Vassallo to nail it to the opposite wall is not of significance as Saliba removed the barricade before the plaintiff came to the premises. The most likely inference to be drawn from the removal of the plank is that it was not securely fixed to the other side otherwise it would have been easier for him to gain access to the top floor by pushing aside the planks in the stairwell as he did when he showed the premises to Mr Gavin earlier that morning. Although Saliba had made statements in relation to the Worksafe prosecutions suggesting that the barricade was taken down by someone else without his knowledge it is now the case that he does accept that he was responsible for the removal of the plank and is responsible for the Juliet balcony void being unprotected. This is also consistent with his conviction in the Worksafe proceedings. 53 Access to the upper storey was blocked off by the planks placed across the stairwell and held in place by the A-frame scaffolding placed on top. I find that the planks and A-frame scaffold in the stairwell were not erected by Saliba to prevent access to the upper storey but to provide a working platform for him to be able to continue to fix cornices and apply cement render to the stairwell void area. Although Saliba said that it was also done to prevent persons gaining access to the upper storey I consider
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that this is an explanation that has been offered to ameliorate his responsibility for the unprotected Juliet balcony void. 54 However the scaffold would have the effect of making access difficult. The plaintiff does not have any recollection of having to move any planks or push them aside in order to be able to walk up the stairway. Brentnall stated that he had to remove some planks to be able to walk up the stairway. Although he may have required more room because he was carrying six or seven tiles on his shoulder I find that it is likely that the plaintiff would either have had to remove a plank or at the very least ease his way past one. I consider that the presence of the planks and the A-frame scaffolding placed on the top would have operated to warn any person negotiating their way around it that there was not free access to the upper storey. Brentnall had seen the void on his first trip up the stairwell with tiles and there was nothing to prevent the plaintiff also seeing it. Both Brentnall and the plaintiff said it was not unexpected to have those kinds of voids in a second storey house. When the plaintiff came through from the garage roof to help Brentnall move the A-frame he must have overlooked or forgotten that the void was there and pulled the A-frame towards him moving backwards towards the void. It is this action together with the fact that there was at that stage no barrier across the Juliet balcony void that caused him to fall over the edge and suffer serious spinal injuries as a result of his fall. If he had not walked backwards he would have seen the void. If a barrier, even a single wooden plank, had remained fixed across the void it is also likely that contact with that as he was walking backwards towards the void would have alerted him to the danger. 55 In the light of these findings I now propose to examine the responsibility for the accident of each of the parties involved in these proceedings.
The plaintiff 56 Dowthwaite does not claim that the plaintiff was contributorily negligent. Both Saliba and Bristile contend that the plaintiff must take a significant share of responsibility because of the fact that he walked backwards and was therefore not able to see the void and that he did not need to access the interior of the premises and should have waited for ladders and other equipment arrive. 57 The plaintiff was Dowthwaite's leading hand and an experienced tiler who had gone ahead to the premises with Brentnall on the instructions of Cleggett. Although it is apparent that the other tilers were expected to
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follow in a short time the plaintiff was not the kind of workman to "simply sit and wait". He was hard working and energetic and just "wanted to get on with the job". He decided that he and Brentnall could go up to the second storey by means of the internal stairs and access the portico and garage roof through windows and doorways. Although the evidence establishes that this was an uncommon practice there is nothing inherently dangerous in it unless the premises were unsafe. Witnesses who have had considerable experience in roof tiling or in supervising roof tiling confirmed that in the vast majority of cases (easily in excess of 90 per cent) tilers access the roof area from the exterior of buildings. Although there was some mention of safety issues this is generally because it is the only and easiest way of getting on the roof. Obviously in single storey residences the only means of access would be from the outside by using ladders and tile hoists to lift the tiles up. No doubt in most multi-storey premises access would also be from the exterior. It would only be in cases where a lower storey roof is being tiled and there was access from inside the house to the lower storey roof that there would be any point in tilers gaining access to the roof by going through the inside of the premises. That is the main reason, coupled with concerns that the carrying of tiles through the interior of premises may cause damage, plus the speed of access by ladder, why most tiling jobs are accessed from the exterior. 58 When Brentnall called him to assist the plaintiff grabbed the A-frame and walked backwards without checking that it was safe to do so. I find that in the circumstances of this case that constituted a failure to take reasonable care for his own safety. I would not characterise it as an act of "gross negligence". It was an instinctive movement in response to the need to move the scaffold. However, I am satisfied that it was an act that in the circumstances goes beyond inattention or mere inadvertence. In Edith Cowan University v Czatryko [2002] WASCA 334 a worker was loading a truck and fell off when he stepped backwards. In deciding that the employer had not breached a duty of care by failing to provide a warning device Murray J commented that there was "no substitute for the worker looking where he was going". Brentnall described the plaintiff as grabbing hold of the scaffolding and pulling it while taking backward steps that led to the void before he was able to shout out any warning. I infer from that that the action of the plaintiff was reasonably quick and without hesitation which is consistent with the plaintiff's obvious energetic approach to his work. It is also the case that although it was understandable that someone like the plaintiff would not sit around and wait for the ladders if he felt he could start without them there is no reason
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why he could not have waited until the other tilers on the team had arrived with the ladders and other equipment. 59 The plaintiff had been a leading hand for Dowthwaite and was an experienced tiler. He was aware that it was not common for tilers to access the inside of premises and was also aware that Bristile had not carried out any internal safety inspection as the practice was for them to inspect the exterior and the state of the exterior scaffolding. The presence of the planks and A-frame in the staircase void while not a complete barrier did make access difficult. This should have alerted the plaintiff to the fact that workers or other persons were not gaining easy access to the upper storey and to the possibility that there may be some dangers present such as unprotected voids. The plaintiff acknowledged in his evidence that Juliet balconies were common place in two storey homes. He should have been aware that there may be other unprotected edges in the second storey as he had accessed the portico roof by means of the unprotected balconies off the bedrooms. In those circumstances to attempt to move the A-frame scaffolding by pulling it backwards without checking that it was safe to do so was negligent. Such a deliberate act in those circumstances could not be characterised as mere inadvertence or inattention.
Dowthwaite 60 By consenting to judgment in favour of the plaintiff Dowthwaite has accepted that its negligence contributed to the causation of the accident. It had a non-delegable duty to provide a safe system of work: Kondis v State Transport Authority (1984) 55 ALR 225. This duty extends to ensuring that proper care is taken by employees in the performance of that work. In circumstances where it is uncommon for tilers to access the roof internally without the use of ladders the plaintiff and Brentnall should not have been sent on ahead without specific instructions to wait for ladders and the other tilers. It is likely that Cleggett had given no thought to the means by which the plaintiff would have been able to start work ahead of the other tilers and the equipment. Cleggett assumed that there would only be a short period of time before the balance of the team arrived at the premises. However, it was foreseeable that the plaintiff would seek out some means to access the roof. In circumstances where it had not been inspected by Cleggett and Cleggett knew it had not been inspected by Bristile there was a foreseeable risk that the premises would not be safe. All that was required for Dowthwaite to avoid such a risk was to ensure that the plaintiff and Brentnall travelled to the premises at the same time as the balance of the team together with the equipment or advised them to
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wait at the site until the equipment had arrived and to not use interior as access unless it was checked for any hazards. In McLean v Tedman (1984) 155 CLR 306 at 311 the High Court described an employer's duty of care in the following terms: "In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. … The employer is not exempt from the application of this standard viz a viz his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care will give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk."
Saliba 61 Saliba was the owner of the premises and as an owner builder had control of the site. He clearly had a duty of care to persons coming on to the premises to keep the premises safe and prevent a foreseeable risk of injury. The same responsibility also arises as a result of the statutory duty pursuant to s 5 of the Occupiers' Liability Act. 62 The plaintiff was injured as a result of his fall from the unprotected Juliet balcony void. Saliba was well aware of the need to provide a guard rail or barrier to open edges in the building. To this end he had erected a wooden plank across the void in approximately February 2001. Whether this was an adequate barrier is irrelevant as it had been removed by Saliba before the accident. There is no doubt that a void at that height should have been protected by a guard rail or other appropriate means. Guard
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rails that comply with uniform standards are readily and cheaply available from scaffolding hire firms. Wooden panels of an appropriate strength could also have been bolted to the walls. Saliba, however, disputes that the absence of any guard rail constitutes a breach of his duty of care. He claims that the planks placed across the stairwell with the A-frame scaffolding on top together with the warning sign at the foot of the stairs was a sufficient barrier in circumstances where he had no knowledge that the plaintiff would go inside the premises to access the roof. Saliba maintains that the plaintiff only went inside the premises because he had been sent without a ladder or other means of access. In addition Saliba also contends that any duty of care he had towards the plaintiff was discharged by his engagement of Bristile who had a duty to check safety aspects in relation to tilers coming on the premises. 63 I am satisfied that Saliba has breached his duty of care to the plaintiff by allowing the Juliet balcony void to remain unprotected by a guard rail. Although he clearly did not expect that the tilers would access the lower storey roof by using the internal stairs it was foreseeable. The evidence establishes that while in the vast majority of cases tilers take tiles up to the roof from the exterior they do go inside building premises in a number of circumstances. Any tools or pieces of tile dropped from the roof are cleaned up by the tilers. If there are difficulties in obtaining access from the exterior and access to a lower storey roof is available from the interior of premises interior access would be employed. Where there is access available from a lower storey roof through the inside of premises to a lower storey roof on the other side then there may be times when tilers would walk through the interior of premises. 64 While the planks and A-frame scaffolding inside the stairwell would operate as some kind of impediment to persons using the internal stairs it is clear from the evidence that the planks can be moved aside to allow entry. On the morning of the accident Saliba showed the builder next door through the house by means of moving those planks. In the absence of an accompanying warning sign I find that the structure in the stairwell was not a sufficient barrier. I find there was no warning sign at the foot of the stairs. None of the witnesses who were inside the premises on the day of the accident saw any warning sign. I do not accept Saliba's evidence that there was a warning sign that had been removed by an unknown person.
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Bristile
65 Both Dowthwaite and Saliba claim that Bristile had a contractual responsibility as well as a duty of care in relation to the safety of the unguarded Juliet balcony void. However, the terms of the contract between Saliba and Bristile do not include any provision express or implied that Bristile has responsibility for the safety of the premises. The contract (exhibit 24) is dated 4 February 2000. It states it is made subject to the terms and conditions contained in quotation No 371226. It also contains a term that Saliba agrees to be bound to the terms and conditions set out on the reverse face of the contract document. Those terms include provisions in relation to the timing of the delivery of the tiles and installation and payment procedures. Under the heading "Preparation for Tiling the Roof" there are provisions that relevantly include that Saliba is to supply all scaffolding, hoists, and safety rails, etc. The provision then states: "Safety requirements are government by the Occupational Health Safety and Welfare Act of 1984 and its amendments of 1998. Should you have any queries please call the tile supervisor for safety requirements on your particular job. The supervisor's name and phone is on the booking letter." This clearly places the responsibility for safety of the premises onto Saliba. The reference to the suggestion that the tile supervisor can be contacted for advice in relation to safety requirements confirms that the safety requirements for the premises are Saliba's responsibility rather than Bristile's. 66 A further provision invites the builder to contact a representative of Bristile at least five working days prior to installation. It then notes that that "prompts the supervisor to check your site for our requirements including safety issues". The advisory capacity that this suggests is emphasised by the direction at the top of the page containing the terms and conditions with the notation "to discuss safety and on job requirements please call the site supervisor". 67 Although it was not specifically articulated in the course of submissions the contention of Saliba and Dowthwaite is that these provisions in the contract impose on Bristile an obligation to check that the premises are safe for tiling. If the express terms do not extend to this it is submitted that the contract contains an implied condition that Bristile would undertake to conduct a safety check of the premises. I find that the construction of the terms of the contract does not impose an obligation on
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Bristile to check that the premises were safe for tiling either internally or externally. The combined effect of the provisions that the builder supplies equipment such as scaffolds and hoists together with the advice of the application of the Occupational Health and Safety Act and the invitation to discuss the safety requirements with the tile supervisor do no more than amount to an undertaking by Bristile to provide advice to a builder if required. 68 The reference to a "check by the supervisor for Bristile's requirements including safety issues" when seen in the context of the balance of the relevant provisions in the contract does not impose a requirement to check the condition of the premises to ensure that they are safe for the tilers to access. There is no other reference in the contract to the condition of the premises. The references to safety or safety related matters are either in relation to the supply of equipment such as scaffold, hoists, or safety rails or are a general reference to the relevant statutory requirements. There is nothing in the contract or the arrangements between Saliba and Bristile that support the inclusion of an implied term that Bristile would undertake such a safety inspection and such a term would be inconsistent with the express terms referred to above. It would also not be reasonable to imply such a term when Saliba has the care and management of the premises. (See Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337). 69 The sub-contract agreement between Dowthwaite and Bristile contains no express term that Bristile would conduct a safety inspection of the premises. There is also no basis for the implication of such a term. On the contrary, cl 16 provides that the sub-contractor (Dowthwaite) will "establish and maintain safe working conditions which comply with the Occupational health Safety and Welfare Act and regulations. |