Ben Meyboom v Classic Deco Pty Limited (ACN 097 921 232) and Complete Constructions (Australia) Pty Limited (ACN 085 957 204)

[2010] ACTSC 83

BEN MEYBOOM v CLASSIC DECO PTY LIMITED (ACN 097 921 232) & COMPLETE CONSTRUCTIONS (AUSTRALIA) PTY LIMITED (ACN 085 957 204)
[2010] ACTSC 83 (13 August 2010)

NEGLIGENCE – personal injury – injury to painter on building site – fall from roof – clam against principal contractor and painting subcontractor – both defendants conceding liability – apportionment between defendants – damages apportioned equally

Occupational Health and Safety Act 1989 (ACT)
Scaffolding and Lifts Regulation 1950 (ACT)

HC Buckman and Son Pty Limited v Flanagan (1974) 133 CLR 422
Steel v Twin City Rigging Pty Limited (1992) 114 FLR 99
Voce v Watson (1989) 97 FLR 488

No.  SC 767 of 2006

Judge:              Master Harper
Supreme Court of the ACT

Date:               13 August 2010

IN THE SUPREME COURT OF THE       )
  )          No.  SC 767 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:BEN MEYBOOM

Plaintiff

AND:CLASSIC DECO PTY LIMITED (ACN 097 921 232)

First defendant

COMPLETE CONSTRUCTIONS (AUSTRALIA) PTY LIMITED (ACN 085 957 204)

Second defendant

ORDER

Judge:  Master Harper
Date:  13 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The defendants each contribute in equal shares to the plaintiff’s damages and costs.

1. This action arises out of extensions and renovations to a semi-detached townhouse at Cook.  On 27 October 2005 the plaintiff, a self-employed painter, lost his footing and fell from the roof of the townhouse.  He suffered a fracture of the right ankle and other injuries.

1. The plaintiff brought proceedings against the first defendant, which joined the second defendant as a third party.  On the plaintiff’s application, the second defendant was later made a defendant. 

1. The action was listed for hearing on 2 August.  Prior to the hearing, the defendants reached a settlement with the plaintiff.  Although judgment had not been entered by the commencement of the hearing, I was informed that both defendants consented to judgment in the plaintiff’s favour for $330,000 plus costs, leaving the proportion in which that sum was to be contributed by the defendants to be determined by the court. 

1. The townhouse is two-storeyed, with the bedrooms upstairs and the living area downstairs.  The building can be described as two offset abutting A-frames with a steep tiled roof.

1. The second defendant was the building contractor, a party to the contract with the owners.  The first defendant was a subcontractor to the builder.  The contract price for the entire job was $154,429.00.  The painting subcontract was for $6,930.00 for the interior and $3520.00 for the exterior. 

1. The plaintiff has been a painter by trade for about thirty years, and has worked in Canberra for about twenty years, always as an independent contractor and never as an employee.  Most of his work has been on commercial buildings but he has done some work on residential properties.  At the time of the Cook job, he had worked with the first defendant for about eight months on other jobs.  He took on the subcontract work for the Cook job, and worked there for about a week before his fall.  The fall happened on his first day working on the exterior of the property.  His task on that day was to paint around a timber casement window, accessible from the adjoining tiled roof area above the front door of the house.  He set up an extension ladder and climbed on to the roof.  He positioned himself on the roof near the window, and painted the higher side of the timber frame.  He felt a little unsafe and decided to climb down the ladder before completing the task.  He climbed around the window and walked down the roof to the ladder to get down to ground level.  He put his foot on the ladder.  The ladder moved sideways.  The plaintiff fell, and the ladder also came down.  He landed on concrete pavers, apparently just missing a table and a pair of sawhorses.  If there had been a scaffold or a guardrail along the edge of the roof he would not have fallen.

1. The plaintiff completed a claim form, I assume a reasonably short time after the accident.  The accident description, completed in handwriting, read “I was painting boards on side of house up on the roof.  One foot on ladder which gave way.”

1. The plaintiff had a fellow worker on site with him, Darryl Brown.  Mr Brown did not give evidence.  The plaintiff said, after refreshing his memory from a statement he had made to an investigator in December 2005, that after he got up the ladder on to the roof, Mr Brown moved the ladder.  When the plaintiff wanted to come down, he asked Mr Brown to bring the ladder back and put it in position, which he did.

1. It was a frosty morning and the roof felt slippery, despite the plaintiff’s boots with non-slip rubber soles.  He felt unsafe on the roof, although he did not say that his foot actually slipped on the tiled surface.  The ladder was an extension ladder in the fully extended position and protruded well above the gutter.  The plaintiff had to manoeuvre himself around to the outside of the ladder to descend.  As the plaintiff put one foot on the ladder, he felt the ladder start to move sideways.  At the same time his other foot, still on the roof, slipped and he came down.  The plaintiff said that the ladder was provided by the first defendant, the painting contractor.

1. The director of the first defendant company Mr Farhad, gave oral evidence.  He has been a painter by trade for more than twenty-five years, the last seven or eight years of that period in Canberra.  The Cook job was the first job his company had undertaken for the second defendant.  He had not previously known anyone from that company.  He received a request for a quotation.  He contacted Mr Hattersley, the representative of the second defendant on site, attended the site, made some calculations and gave a quote.  On the day of his visit there was scaffolding along the front of the house.  He noticed that some work was being done on the roof.  Mr Farhad had the impression that the workmen were installing a roof window or skylight into the tiled roof.  His recollection was that the scaffolding was in place for three or four weeks.  He assumed that the scaffolding would remain in place and would be available for his painters to use.  He said that normal practice was for the builder to provide scaffolding to be used by different tradespeople on a small job of that kind. 

1. While the Cook job was on, Mr Farhad had other jobs at sites elsewhere in Canberra.  He attended the Cook site almost every day to make sure the job was going according to plan.  He generally stayed at the site for a couple of hours.  On most of those occasions Mr Hattersley was also present. 

1. Mr Farhad was not on site at the time of the fall, having attended a funeral on the morning.  He received a telephone message from Mr Hattersley to inform him that the plaintiff had fallen and been injured. 

1. Mr Farhad’s evidence in cross-examination was that his company did not own scaffolding, and almost always used scaffolding provided by the builder when it was required.  He had very rarely hired scaffolding for a job, in perhaps one or two percent of the jobs he had done.  He conceded that there was no mention of scaffolding in the quotation or acceptance for the Cook job.  He could not remember discussing scaffolding with Mr Hattersley.

1. He agreed that he had been at the site on 26 October 2005, the day before the accident.  The scaffolding had been removed some days earlier.  He had no reason to believe there would be scaffolding in place for the exterior painting work to be done on 27 October and he did not speak to Mr Hattersley about providing scaffolding on the following day.

1. Although he had not mentioned it in chief, Mr Farhad recalled in cross-examination a conversation with the plaintiff and Mr Brown the day before the fall.  He said that on that day he walked around the exterior of the townhouse with them.  There was a section in relation to which he was unsure of the paint colour required.  He said that he told both the plaintiff and Mr Brown not to proceed with that part of the job until he had spoken with the builder and was sure which colour it was to be.  He said that he told them not to get onto the roof because he wanted to be sure that he was there before they did any work, to make sure that the colour was right.  This conversation was not put to the plaintiff, who gave evidence after Mr Farhad, and is inconsistent with his evidence.  I draw the inference, from the fact that the conversation was not elicited from Mr Farhad in chief, that it did not form part of any statement included by the first defendant’s solicitors in counsel’s brief.  In all of the circumstances I cannot be satisfied on the balance of probabilities that the conversation took place.

1. Mr Farhad conceded that the ladder from which the plaintiff fell was his company’s ladder, though he said he had not provided it for the purpose for which the plaintiff was using it.  He had thought it unnecessary to give any specific instruction to the plaintiff about the use of the ladder, considering the plaintiff’s experience as a painter.  He did not agree that the reason he had not insisted on scaffolding for the external painting work on the day of the plaintiff’s fall was that in his opinion the work could be done safely from the ladder and without scaffolding. 

1. I generally preferred the evidence of the plaintiff to that of Mr Farhad.  By the time he gave his evidence, the plaintiff had settled his claim against the defendants and the issue of apportionment of damages between them was not capable of affecting his position.  Quite apart from that, I formed the view that he was an honest and truthful witness doing the best he could to remember the events of almost five years earlier.

1. I am satisfied that Mr Farhad, as principal of the first defendant, was aware a few days prior to the fall that the builder had removed the scaffolding.  I find that Mr Farhad knew that the plaintiff was to paint the timber window-frame on the day of his fall, and knew that the plaintiff would have access to the window-frame only by use of the ladder and the roof. 

1. From Mr Farhad’s perspective, there would have appeared little risk of injury.  The plaintiff was a very experienced tradesman.  The job was a small one in dollar terms, and was almost finished. 

1. No witnesses were called on behalf of the second defendant, the builder.  In particular, Mr Hattersley did not give evidence.  There was no explanation for his absence, and I draw the available inference that his evidence would not have assisted the second defendant’s case.  He was the representative of the second defendant on site and knew that the scaffolding had gone.  He must have observed the task the plaintiff was engaged in, and the way in which he gained access to the roof.

1. I suspect that the cause of the fall had something to do with the fact that Mr Brown moved the ladder while the plaintiff was on the roof, and then put it back.  There must be suspicion that in replacing it he failed to ensure that its base was firm and level.  Mr Brown was a witness who might have been expected to be called in the first defendant’s case, although he was an independent contractor rather than an employee of the first defendant.  There was no explanation for his absence.  I infer that his evidence would not have helped the first defendant’s case. 

1. Senior counsel for the first defendant relies in his claim for contribution against the second defendant on failure to comply with the Scaffolding and Lifts Regulation 1950 (ACT). Regulation 73 requires the provision of suitable and safe scaffolding or fencing for a task such as the one on which the plaintiff was engaged, and fencing. On the application of the regulation and the statutory cause of action available under it, counsel referred to the decision of the High Court of Australia in HC Buckman and Son Pty Limited v Flanagan (1974) 133 CLR 422, and decisions in this court of Kelly J in Voce v Watson (1989) 97 FLR 488 and of Higgins J in Steel v Twin City Rigging Pty Limited (1992) 114 FLR 99.

1. Senior counsel for the first defendant also relies on the Code of Practice for Work On Roofs, part 1. The Code has been in force since June 1999, having been approved by the Minister for Industrial Relations under section 87 of the Occupational Health and Safety Act 1989 (ACT). Whilst it is not submitted that the Code creates a statutory cause of action, its purpose is to prevent injury to persons engaged in work on roofs, and it contains detailed provisions setting out the responsibilities of principal contractors and subcontractors on building sites. Specifically, the Code requires provision to be made to prevent persons falling if work is to be carried out within two metres of any edge of a roof from which a person could fall 1.8 metres or more. The Code requires the provision of such safety measures as scaffolding and guard rails.

1. There is no question in the present case that both defendants failed to comply with their obligations both under the Scaffolding and Lifts Regulation and under the Code. The pitch of the roof was very steep and there was an obvious danger that a person working on the roof might fall, regardless of any problem with an unstable ladder. The plaintiff’s fall could almost certainly have been prevented if the ladder had had a simple ladder stabiliser attached to it at gutter level, something which could be purchased from a hardware store for a very modest figure.

1. My task is to apportion liability between the defendants.  Both concede liability to the plaintiff.  The question of whether or not the plaintiff was guilty of any contributory negligence is not relevant. 

1. A principal building contractor owes a duty of care to all tradesmen on site.  The second defendant, through Mr Hattersley, was aware that the scaffolding had been removed and that there was painting work remaining to be done at roof level.  The danger presented by the roof to someone required to work on it, and to climb up to it and descend from it, was obvious.

1. The first defendant, through Mr Farhad, owed a duty to the plaintiff as its subcontract painting tradesman to provide him with a safe place and system of work.  The level of the duty of care was not as high to the plaintiff as an independent contractor as it would have been to an employee.

1. Counsel for each defendant sought to persuade me that the other defendant was much more to blame for the plaintiff’s injuries than, in each case, his own client.  After consideration, I am not persuaded that either defendant was responsible to a greater degree than the other.  The plaintiff’s damages and costs should be apportioned equally between the two defendants.

1. I shall hear the parties as to costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date:      13 August 2010

Counsel for the first defendant:  Mr R L Crowe SC
Solicitors for the first defendant:  Sparke Helmore
Counsel for the second defendant:  Mr F M G Parker
Solicitors for the second defendant:                  Moray & Agnew
Date of hearing:  2 August 2010

Date of judgment:  13 August 2010