Bhambra v Roet

[2003] NSWCA 393

CITATION:	Bhambra v Roet [2003] NSWCA 393
HEARING DATE(S):	7 October 2003
JUDGMENT DATE:	22 December 2003
JUDGMENT OF:	Santow JA at 1; McColl JA at 52; Davies AJA at 53
DECISION:	(1) Appeal allowed; (2) Verdict and judgment for the respondent set aside and in lieu thereof verdict and judgment for the appellants; (3) The respondent to pay the appellants' costs of the appeal and in the court below.
CATCHWORDS:	NEGLIGENCE - Breach of Statutory Duty - Builder injured whilst renovating a house - Failure to erect safety rails - Failure to provide a safety-harness - Breach of statutory duty as owners and occupiers - Appellant disallowed from raising new matter on appeal - Whether appellant carried out construction work.
LEGISLATION CITED:	Construction Safety Regulations 1950
CASES CITED:	Almeida v Universal Dye Works Pty Ltd (2001) Aust Tort Reports 81-603 Bright v Sampson & Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 H C Buckman & Son Pty Limited v Flannigan & Anor (1974) 133 CLR 422 Burston v Melbourne & Metropolitan Tramways Board (1948) 78 CLR 143 Coulton v Holcombe (1986) 162 CLR 1 Kolodziejczyk v Grandview Pty Ltd (2002) Aust Tort Reports 81-673 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR(NSW) 273 Paptonakis v Australian Telecommunications Commission [1985] 156 CLR 7 Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Water Board v Moustakas (1988) 180 CLR 491 Whisprun v Dixon (2003) 77 AJLR 1598
PARTIES :	Bhupinder Singh BHAMBRA (First Appellant) Harbans Kaur BHAMBRA (Second Appellant) Pierre Jacobs ROET (Respondent)
FILE NUMBER(S):	CA 41208/02
COUNSEL:	J D HISLOP, QC/ G A SEIB (Appellants) I HARRISON, SC/ J WILSON (Respondent)
SOLICITORS:	McCulloch & Buggy (Appellants) Lamond Howard & Associates (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC152/01
LOWER COURT JUDICIAL OFFICER :	J C Gibson DCJ

CA 41208/02
DC 152/01

SANTOW JA
McCOLL JA
DAVIES AJA

22 DECEMBER 2003

Bhupinder Singh BHAMBRA & 1 ORS v Pierre Jacobs ROET

Judgment

1 SANTOW JA:

INTRODUCTION
The appellants contend that the trial judge, Gibson DCJ, erred in finding them liable to the respondent for breach of statutory duty or in tort for negligence. There is also a challenge to the trial judge’s assessment of damages as erroneous and excessive. These actions arose in circumstances where the appellants, husband and wife, engaged the respondent, a carpenter, to finish off carpentry work in their home, from a previous builder, as part of substantial renovation and reconstruction works. The respondent fell from the first floor and injured himself, there being no safety rails installed.

2 So far as breach of statutory duty is concerned, following an amended pleading, the respondent was successful at trial in contending that the absence of safety rails around the first floor of that house where the respondent was carrying out carpentry work, contravened Regulation 73 of the Construction Safety Regulations. In consequence the appellants were held liable for breach of statutory duty as owners and occupiers of the relevant residential property. Of the two appellants the wife held an owner-builder’s licence but not the husband, with neither having any expertise in building.

3 The trial judge concluded that their liability also arose in negligence but, having concluded that liability arose from breach of statutory duty, no allowance was made by the trial judge for the contributory negligence that he would otherwise have found.

4 The injury occurred on 5 September 2000 when the respondent fell from the first floor of a partly constructed house. His evidence about the mechanism of the fall was that “I slipped and tripped on the piece of board” (Black, 32.15-19). The trial judge found that the respondent fell as a result of a loose board, which was present as a result of “his own negligent workmanship” or that of his labourer, Darren (Red, 31 [31] and [32] and 43 [58]).

5 The claim for breach of statutory duty was pleaded by reference not only to Regulation 73(3) but also Regulation 74, albeit by reference to the defendant having “23 … (g) failed to provide a safety harness which would have prevented the plaintiff from falling from the first floor”. The latter appears as a particular under “Particulars of Statutory Breach”. It immediately follows paragraph 22 of the pleadings. At the commencement of the trial an application was made, which ultimately was not opposed, to delete the words “Occupational Health and Safety Act, 1983” and replace them with the words “Construction Safety Regulations 1950”; Red, 4, Black, 1.42-2.48.

6 Regulations 73 and 74 of the Construction Safety Regulations are, so far as relevant, in the following terms:

“73. Safeguards and accident prevention measures for construction work
Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74:
(1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations,
(2) provide and maintain safe means of access to every place at which any person has to work at any time,
(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m,
(4) ……

74. Provision of safety nets or belts and life lines
(1) Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold, the person in charge of the construction work shall provide:
(a) a safety belt and safety line or safety harness and safety line complying with the requirements of AS 1891 for the use of that person, or
(b) a safety net complying with the requirements of BS 3913,
while the work is being carried out.
(2) ……”

7 The claim under Regulation 74(1) based on absence of safety harness was not in terms dealt with by the trial judge. But inferentially at least she found the appellants were persons who, directly or by their servants or agents, “carried out” construction work for the purposes of the Construction Safety Regulations, Regulation 73. The grounds of appeal as to breach of statutory duty dealt with Regulation 74 in these terms,

“(b) Her Honour erred in finding, as inferentially she may have found, that the Appellants were persons in charge of the construction work for the purposes of the Construction Safety Regulations, Regulation 74.” [emphasis added]

8 Issue was however taken by the appellants as to whether it was open to the respondent by Notice of Contention, filed at the appeal hearing, now to raise Regulation 74(1) at all. This was particularly in light of what was said at the conclusion of the hearing by Counsel for the respondent (to which I make reference below) as to making no submission concerning a safety harness. The particular passage in the transcript appears on the last day of the hearing (10 October 2002) and is in these terms:

“HER HONOUR: … I gather you’ve abandoned the scaffolding entirely, is that right?

WILSON: Yes, I have your Honour.

HER HONOUR: We can forget about the scaffolding. You’re just saying there should be a handrail. What about the safety harness. I never heard anything about a safety harness?

WILSON: I made no submissions in relation to that.

HER HONOUR: All right.” [Black, 146.49 to 147.4]

9 The appellants’ contention was that not only had Counsel for the respondent signified that Regulation 74 was not in play but had withdrawn any contention on that basis. This was in circumstances where no evidence was led by the plaintiff regarding the application of Regulation 74 nor had there been cross-examination of the defendant in that regard.

10 Moreover, the appellants point out, questions as to whether there was any safety harness or safety line on site or whether there was an adequate hand-hold or foot-hold, both directly relevant to the application of Regulation 74, as can be seen from its terms, were not put at trial. They would need to have been put, in order to test the application of Regulation 74, but because, by the way the respondent conducted its case at trial, there was no occasion for doing so. Nor was there anything in the respondent’s written submissions in the orange book on appeal seeking to put a Regulation 74 case. Emphasis was placed by the appellants in oral argument on the fact that Regulation 74 would have no application if there were an adequate foot-hold or hand-hold; that in any event there was an adequate foot-hold save as resulted from the respondent’s own negligent workmanship in there being a loose board which led to the respondent falling by reason of his own negligence (Red, 43D and T, 52P-S) as the trial judge found. In those circumstances it was put that Regulation 74 could not apply in any event. For reasons developed below, I consider the appellants’ arguments should be accepted, in opposing the introduction of regulation 74 as a separate basis for the trial judge’s decision.

11 Regulation 74 was indeed in the forefront of the oral submissions made by the respondent on appeal. In submissions, the respondent did not take issue with the trial judge’s finding as to the circumstances of the fall. Nor did the respondent take issue with there being, as the appellants contended, no evidence either in chief or by way of cross-examination bearing directly on Regulation 74, beyond an expert’s report of Mr Ross Trethewy described as an “Occupational Health and Safety Consultant”. He, at Blue, 53, said this in the conclusion under his report:

“No safety harness or safety net was provided also a requirement of the Construction Safety Regulations 1950 R734. Mr Bhambra failed to provide, or ensure through adequate supervision or instruction, a system of work and a safe workplace as required by the Occupational Health and Safety Act 1983 s(16).”

12 The respondent then contended that because Regulation 74 was pleaded, because Mr Trethewy was not required for cross-examination, because no challenge was made to that report otherwise and finally because the appellants’ grounds of appeal included that quoted below, it was properly open to the respondent to rely upon Regulation 74(1), or at the least he could do so following the filing of a Notice of Contention raising Regulation 74(1) which he should be permitted to do.

13 The relevant ground of appeal is in the following terms:

“2. As to breach of statutory duty:

(a) ……

(b) her Honour erred in finding, as inferentially she may have found, that the Appellants were persons in charge of the construction work for the purposes of the Construction Safety Regulations, regulation 74;”

14 The appellants contended that this latter ground was for more abundant caution, in view of the lack of specificity in the trial judge’s findings on this appeal; hence the guarded “as inferentially she may have found”.

15 I should quote the Notice of Contention below:

“1. Her Honour should also have found a verdict for the respondent upon the basis that the appellants were the persons in charge of the construction work and failed to provide equipment in breach of the statutory duty imposed upon them by Regulation 74(1) of the Construction Safety Regulations .”

16 The substantive issue before us is whether the respondent should be permitted to file that Notice of Contention and to rely on appeal on Regulation 74(1). For the reasons set out below I do not consider that the respondent should be so permitted. However, even if the respondent were so permitted, I would conclude that the fundamental requirement for Regulation 74 to apply, namely that “there is no adequate hand-hold or foot-hold” has not been made out on the evidence, being the precondition for any obligation to provide a safety belt and safety line, or safety harness and safety line in terms of Regulation 74(1).

17 It is well settled that the public policy favouring the finality of litigation, and the principles requiring the just and efficient conduct of proceedings, limit the circumstances in which parties are permitted to raise new matters, here on an appeal. The general principle is that parties ought to be bound by the way they conduct the proceedings and they are consequently ordinarily disallowed from raising new matters on an appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, Coulton v Holcombe (1986) 162 CLR 1, Water Board v Moustakas (1988) 180 CLR 491. The latter bears some analogy to the present case insofar as it dealt with new particulars of negligence. Although the prohibition against raising new matters is relatively strictly enforced, there is no absolute bar. Thus the limitation is said not to apply with the same force to a respondent who seeks to support the judgment below upon a ground other than one that was relied upon at the trial; NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR(NSW) 273 provides an example. The discretion to allow a new point to be relied upon depends importantly on whether so to do would unduly prejudice the other party: Bright v Sampson & Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346. Thus the Court’s task, in determining whether a new point should be able to be raised, is to give effect to the demands of justice by balancing, on the one hand, the entitlement of the party to have the case determined according to law and, on the other, the public and private interest in the proper conduct of first instance proceedings; Burston v Melbourne & Metropolitan Tramways Board (1948) 78 CLR 143. But in that balancing, what is said in the majority judgment of Gleeson CJ, McHugh and Gummow JJ in Whisprun v Dixon (2003) 77 AJLR 1598 at [51] is directly in point:

“[51] Accordingly, this appeal must be allowed. It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.” [omitting footnotes]

18 The present case it is true did involve a pleading which, while not referring specifically to Regulation 74, could be understood as necessarily encompassing it, insofar as the relevant regulations were by agreement substituted in para 22 of the Statement of Claim. Moreover, under “Particulars of Statutory Breach” reference is made to the defendant having “failed to provide a safety harness which would have prevented the plaintiff from falling from the first floor”.

19 Again what was said in the majority judgment in Whisprun (supra) at [52] is appropriate:

“[52] As Water Board v Moustakas makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is “necessary to look to the actual conduct of the proceedings”. Thus in Water Board , the plaintiff's case at trial had been that his employer was negligent in failing to prevent traffic from crossing in to the lane in which he was working. On appeal, the Court of Appeal of New South Wales allowed the plaintiff to raise a case that the employer was negligent in failing to provide a barrier to prevent the plaintiff from straying into the adjoining lane. This Court held that, although this alternative case was within the particulars, it had not been the plaintiff's case at the trial and the Court of Appeal had erred in allowing it to be raised on appeal.” [omitting footnotes]

20 Moreover, there are real difficulties even in the pleading. There is no reference in the pleading or particulars to the other elements that would need to be established for the purposes of bringing Regulation 74 into play. These include in particular the absence of “adequate hand-hold or foot-hold”, to which I have earlier made reference. Nor was any evidence was given to that effect. Rather the evidence given suggests that there was adequate foot-hold but for the plaintiff’s negligence in failing properly to secure the floor board upon which he stood. Nor was there any evidence given by the plaintiff at trial that he would have worn such a safety harness in circumstances where, quite clearly, he did not choose to erect a safety rail for himself when that lay within his power to do so.

21 The respondent cites in response to the last matter, Kolodziejczyk v Grandview Pty Ltd (2002) Aust Tort Reports ¶81-673 at 69,200. There Heydon JA held that “in the absence of contrary evidence, it must be presumed that the injuries would have been avoided, and there is no contrary evidence”. In that case, the defendant submitted that if even one of the relevant safety items had been provided, there was no evidence that the plaintiff would have used it although it would have avoided his injuries. Heydon JA rejected that argument.

22 Here however the defendants’ evidence at trial, which the trial judge accepted, was that the plaintiff did not say anything to the defendants about scaffolding or safety rails or the condition of the site [39] and [50] of judgment (Red, 32 and 35). Moreover, at [56] (Red, 42), the trial judge observes:

“The plaintiff in the present case was a skilled contractor with knowledge of the requirements for construction of a safety rail. His evidence in cross-examination on this point was inconsistent. I prefer his first answer (that he said nothing about it because he needed the work) as it is the answer more consistent with events …”

23 That constitutes to my mind contrary evidence of the kind Heydon JA concluded was lacking in Kolodziejczyk (supra). Moreover, because of the way in which the plaintiff conducted his case at trial, there was no other reference to Regulation 74 than the expert’s report. It is fair to say that the plaintiff at trial did not lay the ground work for establishing the essential elements of Regulation 74. It was therefore to be expected that the plaintiff would disavow at the end of the hearing any intention to make any submission in regard to the safety harness, following the trial judge’s observation that “I never heard anything about a safety harness”. Given the only reference to Regulation 74 is in terms of a safety harness, that exchange between plaintiff’s Counsel and the Bench at trial clearly referred to Regulation 74.

24 I accept the appellants’ argument that they would have conducted their case differently if they had known that the Regulation 74 case was pressed. Her Honour’s observation that she “never heard anything about a safety harness” is telling as regards the case that the appellants must have thought they had to meet.

Conclusion

25 The respondent is not to be permitted to file the Notice of Contention earlier referred to nor raise Regulation 74 or otherwise rely upon it.

FACTUAL ELABORATION

26 It is convenient that I now elaborate on the facts, issues and principal findings of the trial judge. I do this below:

(1) The appellants were defendants in District Court proceedings commenced by the respondent, Mr Roet. The respondent sought damages for injuries suffered as a result of a fall from a partly constructed first floor area in the home of the appellants. Causes of action were pleaded in contract, negligence and breach of statutory duty.

(2) The breach of statutory duty claim was originally pleaded on the basis that the appellants had breached the Occupational Health & Safety Act , 1983: see paragraphs 22 and 23 of the Statement of Claim. However, at the commencement of the trial an application was made, which application ultimately was not opposed, to delete the words “ Occupational Health & Safety Act , 1983” and replace them with the words “ Construction Safety Regulations 1950”. The trial judge, Gibson DCJ, granted that leave (Black, 1.42-2.48). No particulars of the alleged breaches of statutory duty appear to have been given beyond those in para 23(f) (“ failure to install and erect guardrails round the perimeter of the roof ”) and “ failure to provide a safety harness which would have prevented the Plaintiff from falling from the first floor ”). The judgment quotes regulations 73(1) to (3) and 74(1) at Red, 44-5 at [63]. There is no finding in relation to Regulation 74 but a finding in relation to Regulation 73(3) is to be found, inferentially at [66] in the judgment which I quote below:

“66. The defendants’ failure to erect a safety rail [relevant only to Regulation 73(3)] was a clear breach of the Construction Safety Regulations . The only matter to rebut this that counsel for the defendant could put to me was that safety rails were not required for houses and that all the reported cases dealt with large building sites. There is no lay or expert evidence to support such a contention and indeed there is evidence to the contrary in the plaintiff’s expert’s report. Accordingly, the plaintiff has succeeded in establishing liability.”


(3) The appellants were the owners and occupiers of a residential property at 13 Trafalgar Street, Glenfield. Mrs Bhambra had obtained an owner/builder’s permit but played no role in these events. Substantial renovation and reconstruction works were to be undertaken on their property. The appellants engaged a builder to undertake the works. However, after disputes with Mr Bhambra, the builder abandoned the works in an incomplete state.

(4) Mr Bhambra saw an advertisement by the respondent, who advertised as Peter Roet Carpentry Services . Mr Bhambra told the respondent that he (Mr Bhambra) was a computer engineer and knew nothing about building (Black, T21/08/02: 4.36-38). The respondent agreed to an engagement by which he would undertake the carpentry work for the price of $2,200. Mr Bhambra was to supply additional labour and/or materials and was to “help” the respondent (Black, T21/08/02: 6.37-7.9). In fact, the respondent obtained the materials and received a cheque reimbursement from Mr Bhambra (Black, T22/08/02: 12.21-28). The respondent also arranged to have a labourer, Darren, on site.

(5) The respondent was a carpenter of over 20 years’ experience and observed that the site was dangerous (Black, T21/08/02: 4.34-39). He originally asserted in his evidence that he told Mr Bhambra that a handrail was required around the second storey of the building (Black, T21/08/02: 7.11-34), but he later resiled from that assertion (Black, T22/08/02: 23.4-35), which in any event was rejected by her Honour: judgment paragraph 56 (Red, 42).

(6) On 5 September 2000 the respondent was injured when he fell from the first floor of the partly constructed house. His evidence about the mechanism of the fall was that: “ I slipped and tripped on the piece of board ” (Black, T22/08/02: 32.15-19 see also Black, T21/02: 15.33-50). Her Honour found that the respondent fell as a result of a loose board, which was present as a result of “ his own negligent workmanship ” or that of his labourer, Darren: judgment paragraphs 31, 32 and 58 (Red, 31, 43).

(7) Her Honour found that liability arose both for breach of statutory duty and in negligence. The relevant breach in respect of both causes of action was the failure to install a handrail: judgment paragraphs 65 and 66 (Red, 52). As liability arose for breach of statutory duty, no allowance was made by Her Honour for contributory negligence. Had contributory negligence been relevant, Her Honour would have made a “significant reduction” to the award of damages: judgment paragraph 60 (Red, 43). No attention was paid at trial to the contractual claim, on which the Respondent failed in any event: judgment paragraphs 61 to 63 (Red, 44).

RESOLUTION OF APPEAL
Negligence

27 I should deal first with negligence before turning to Regulation 73 of the Construction Safety Regulations.

28 I agree with the appellants’ contention that the trial judge erred in finding that the appellants owed a relevant tortious duty to the respondent.

29 The starting point is indeed the nature of the relationship between the appellants and the respondent. The appellants were owners of a residential property undertaken through the mechanism of an owner-builder’s permit held by Mrs Bhambra the renovation and construction of their home. The Bhambras had no particular experience in building. As was said in evidence, obtaining an owner-builder’s licence seems, surprisingly, to involve no particular knowledge. Thus the defendant in cross-examination said this (Black, 123.31-.42)

“Q. So you are aware of any delegation or any request by your wife in relation to anyone else taking responsibility for the safety aspect associated with those premises during the construction of these questions?

A. Well when we got that owner-builder’s licence, we asked the Fair Trading – Fair Trading, and they said to us only one thing. They said, “as long as you contract the work out to some people you don’t need to know anything about the building work” because we told them that we don’t know anything about …”

30 The respondent on the other hand was a licensed carpenter of many year’s experience. He had informed Mr Bhambra (wrongly) that he had also been a licensed builder. It is common ground that he was not employed by, but was a contractor to the appellants. The respondent conceded that Mr Bhambra was concerned to ensure that he (Mr Roet) was an experienced man; Black, 15.41-50.

31 The respondent’s evidence, as I have said, was that he identified safety problems but did not raise them because he wanted the work. He did not suggest the installation of a handrail (Black, 23.4-.17). The trial judge expressly found that the respondent was a “skilled contractor with knowledge of the requirements of a construction of a safety rail” and that he “knew there should be safety rails but (as I have found) did not mention them because he needed the work …” and referred to his “greater knowledge … of safe building practices” (Judgment [56] to [58]).

32 Nor did the accident occur in the course of carrying out an overall co-ordinating function on the part of Mr Bhambra, to the extent that he had such a function. It is true that there were a series of trades required over successive periods. But the circumstances were far from those in Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 where co-ordinating a series of trades in a complex process was very different from simply bringing on to the site each trade serially as appears the case here.

33 In any event when one looks to the circumstances of the fall, while it is true that handrails were found by the trial judge as capable of preventing the accident, the fall was in the first instance occasioned by the respondent’s own negligence in failing to fix the floor board on which he stood, probably leading to him slipping and tripping on the loose piece of board. That was therefore the result of his own negligent workmanship.

34 In these circumstances the situation fits aptly the description given to the circumstances in Paptonakis v Australian Telecommunications Commission [1985] 156 CLR 7 at 30 where Brennan and Dawson JJ refer to the applicable principle in these terms:

“… where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind.”

35 As the late Professor Fleming noted in the “Law of Torts” 9th ed at 510-11 (omitting citations):

“Homeowners who engage an independent contractor to work on their premises may expect him to appreciate and guard against any special risk ordinarily incident to the job, to satisfy himself as to the safety of the working site and to decide how he will perform his tasks... Even less would an occupier be responsible to an employee of a contractor for an unsafe manner of work adopted by the employer. Not that the contractor’s negligence will always completely negate the occupier’s responsibility, as when the latter fails to warn of an unusual danger of his own making and not discoverable by a skilled worker”

36 Even accepting that a duty of care was owed, there was no breach of that duty of care. As Heydon JA noted in Kolodziejczyk v Grandview (supra) at [52]:

“The danger was the reverse of hidden. It was actually apparent to the plaintiff… Particularly in view of the plaintiff’s experience, the need to behave with an eye to safety was so plain, and the measures to be adopted which would achieve safety were so simple, that the defendant was not in breach of duty. The defendant was entitled to trust the plaintiff to make appropriate provision for his own safety”.

Conclusion

37 There was either no duty of care owed in the circumstances, or insofar as any duty of care was owed, there was no breach of that duty of care. The trial judge was, with respect, in error in concluding otherwise.

Regulation 73

38 For a breach of Regulation 73 to have occurred, it is necessary that the appellants or one of them be a “person who directly or by his servants or agents carried out any construction work”.

39 I accept that the trial judge’s reasons amount to a conclusion that Regulation 73 was contravened.

40 The trial judge relied on the decision in Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 in concluding that the tasks of co-ordination undertaken by the appellants were such as to render the appellants or at any rate Mr Bhambra, a person who “carries out any construction work”. However, in Maggiotto (supra) it must be remembered that Maggiotto had been engaged as head contractor to construct 35 home units. That involved a co-ordination function in a process of substantially greater complexity than the serial introduction of a series of trades. Ipp AJA concluded in Maggiotto that the decision of Barwick CJ in H C Buckman & Son Pty Limited v Flannigan & Anor (1974) 133 CLR 422 concurred in by McTiernan and Stephen JJ, did not stand in the way of concluding that the co-ordinating function meant that, whilst a person is not engaged in actually carrying out building work who has sub-contracted work to independent contractors, such a person is nonetheless actually “carrying out” building work himself. Barwick CJ (at 427) however expressed the ratio of the case in these terms:

"For my part, I perceive that the Act and regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law are his acts. This seems to me an eminently practical and workable scheme of legislation. By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured. I am unable to accept the view that the word 'agents' comprises the independent contractors who are themselves carrying out the building work which they have contracted to do".

41 There is an immediate difficulty in the present case. On any view of matters, the respondent was, within Regulation 73, carrying out construction work. It is clear that, even if it be said that the co-ordinating functions carried out by Mr Bhambra, albeit of rudimentary nature, were such as also to constitute carrying out construction work, there can be no doubt that the respondent too was carrying out construction work. That creates the paradoxical situation where, for the plaintiff to succeed at trial, there would have to have been a concurrent obligation on both parties to provide the handrails; yet with the party directly doing the carpentry work (the respondent) being entitled to render the owner-co-ordinator liable for the latter’s failure to provide the handrails though himself obliged also to do so. That, as the respondent recognised, but far too late, is why Regulation 74 was potentially available, subject to closer consideration of the circumstances; Almeida v Universal Dye Works Pty Ltd (2001) Aust Tort Reports 81-603. The respondent is not now permitted to raise this by way of Notice of Contention.

42 But for the purpose of Regulation 73, the question to be answered is this. Do the particular functions carried out by Mr Bhambra, of introducing trades successively on the unfinished building project, occasionally acting as a builder’s labourer in passing pieces of timber to the respondent and finally making occasional criticism of the use of too many nails or too much glue allow Mr Bhambra to be described as a “person who directly or by … agents carried out any construction work”? Here the relevant construction work was laying the timber. Quite clearly the degree of co-ordination was far less than in Maggiotto in constructing 35 home units. Here all that was involved was finishing off work started by another builder. All that was required was to get tradesmen to the site but not co-ordinating their activities on the site. Most definitely it did not involve co-ordinating the timber laying which was carried out by the respondent as independent contractor. The owner had nothing in reality to contribute to that task, his concerns being apparently more that of an owner worried about paying too much for materials.

43 In the respondent’s written submissions some reliance was placed on what was said by Mason J in Buckman. Where the head contractor participates “by act or approval” in the doing of the work (there in reducing the stability of the column), that can constitute an incomplete delegation to the sub-contractor, so allowing Regulation 73 still to operate against the contractor; at 444.

44 Let it be accepted that what Mason J there concludes is consistent with the judgment of Barwick CJ in the majority judgment. Let it be also accepted that such participation may in certain circumstances amount to directly carrying out any relevant construction work. Nonetheless in the present case Mr Bhambra’s role involved neither act or approval in failing to erect handrails or have them erected. Mr Bhambra was simply unaware of that requirement and the respondent chose not to make him aware. Moreover, Mr and Mrs Bhambra were neither of them properly capable of being described as head contractor, as distinct from owner.

45 Jacobs J in Buckman went further. He would implicitly qualify the proposition that delegation to a sub-contractor obviates any scope for Regulation 73 in relation to the head contractor, doing so in the following passage (at 446):

“When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do actual things in order to ensure their safety when engaged in the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions whereunder the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer’s statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged on conditions on conditions which satisfy the statutory duty.”

46 Ipp AJA in Maggiotto at [26] explains that passage as

“Jacobs J merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe, so that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps”; at [28]

47 Again, even if for present purposes one accepts that what Jacobs J thereby concludes can be reconciled with Barwick CJ’s majority judgment, the fundamental difficulty is that here there is no suggestion that Mr Bhambra and his wife, neither of whom were head contractors, had any notion of there being building work required to provide guardrails. In any event they were delegating the whole task of carrying out the timber work to the respondent. It would be quite artificial in those circumstances to require a particular specific direction from the appellants to the respondent that the respondent erect guardrails in those circumstances.

48 I must add that I do have difficulty with reconciling what Jacobs J here said with the majority judgment of Barwick CJ. There is a sense in which, with respect, the question is begged as to whether there was already a statutory duty upon the employer to erect guardrails that was then to be delegated. This is particularly when the statutory duty only arises on the occasion when a person actually carries out construction work, and necessarily falls on that person who does so. It does not fall on the person who, as head contractor, engages a subcontractor to do it. Here in any event the rudimentary co-functions carried out on the building site by Mr Bhambra and his limited co-ordinating role could not in my opinion bring him within the scope of Regulation 73 in the first place. I should add in fairness that the respondent argued but faintly to the contrary, placing primary reliance on the belated resort to Regulation 74.

Conclusion

49 Regulation 73 is not applicable to the circumstances here.

OVERALL CONCLUSION

50 It follows that the appellants are successful in their appeal on liability. I conclude that there is no liability on the part of the appellants to the respondent in either negligence or for breach of statutory duty. In those circumstances it is not necessary that I consider the question of damages. There would of course be the usual constraint upon appellate intervention in relation to the damages insofar as these involve a discretionary determination.

ORDERS

51 I would propose the following orders:

(1) Appeal allowed.

(2) Verdict and judgment for the respondent set aside and in lieu thereof verdict and judgment for the appellants.

(3) The respondent to pay the appellants’ costs of the appeal and in the court below.

52 McCOLL JA: I agree with Santow JA.

53 DAVIES AJA: The facts and issues are set out in the reasons for judgment of Santow JA. I agree with his Honour but would add some observations of my own.

54 The case as put for Mr Roet in this appeal relied heavily upon regulation 74(1) of the Construction Safety Regulations 1950 which read:

“Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold, the person in charge of the construction work shall provide:

(a) a safety belt and safety line or harness and safety line complying with the requirements of AS 1891 for the use of that person; or

(b) a safety net complying with the requirements of BS 3913, while the work is being carried out.”

55 In Almeida v Universal Dye Works Pty Limited & Ors (2001) Aust Torts Reports 81-603 Santow JA, with whom Priestly JA agreed, expressed the view that, in regulation 74, the words “the person in charge of he construction work” comprehended the head contractor as well as the contractor responsible for the particular work. Santow JA said at para [132]:

“I consider that a subcontractor's control of the manner of performance of the work can and typically does co-exist with the head contractor being, for purposes of reg74, ‘the person in charge of the construction work’. That the contractor retains overall responsibility for the construction work necessarily entails being in charge of it, whether carried out by the contractor itself, or as is more usual, via a subcontractor”.

56 The view taken by Santow JA appears to me to be inconsistent with the approach enunciated by Barwick CJ, McTiernan and Stephen JJ in H. C Buckman and Son Pty. Limited v. Flanagan and Anor (1974) 133 CLR 422. At 427, Barwick CJ with whom Stephen J agreed, said:

“For my part, I perceive that the Act and regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work , that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts. This seems to me an eminently practical and workable scheme of legislation. By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured”. (emphasis added)

57 In adopting that construction, Barwick CJ took account of the overall purpose and effect of the Act and the regulations. His Honour rejected the view taken by Mason J and Jacobs J that the regulations cast a dual responsibility upon both the head contractor and the contractor actually carrying out the work in question.

58 Furthermore, the subject matter of the regulation 74, safety belts and safety harness, are matters which necessarily must be the responsibility of the contractor carrying out the particular work rather than the responsibility of a head contractor who may be removed from the work actually being performed. This is a factor of the type which influenced McTiernan J in H. C Buckman and Son Pty. Limited v. Flanagan.

59 Although regulation 74 was mentioned in the report of an expert which was tendered in evidence on behalf of Mr Roet, the case below was not conducted on the footing that the claim was based on the views expressed by Santow JA and Priestly JA in Almeida v Universal Dye Works Pty Limited & Ors. The statement of claim did not make that claim specific. No evidence was produced by Mr Roet as to the availability or suitability of a safety belt or safety harness. The subject was not mentioned in the oral evidence.

60 In this circumstance it is not surprising that at the end of addresses her Honour said to counsel for Mr Roet:

“Q: What about the safety harness. I never heard anything about a safety harness?”

Counsel replied:

“ I made no submissions in relation to that”.

61 Therefore, although the trial Judge set out regulation 74 in her judgment, she made her finding on breach by virtue of regulation 73(3) and the lack of safety rails.

62 I would not permit the issue to be raised at this stage.

63 I agree with the orders proposed by Santow JA.

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Last Modified: 12/23/2003