Brett v Rees - [2009] WASCA 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BRETT -v- REES [2009] WASCA 159

CORAM: MARTIN CJ
OWEN JA
MILLER JA

HEARD: 16 FEBRUARY 2009

DELIVERED : 27 AUGUST 2009

FILE NO/S: CACV 17 of 2008

BETWEEN: BRENDAN FRANCIS BRETT
Appellant
AND
RANDALL JAMES REES
First Respondent
AMERETTO PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MAZZA DCJ
Citation  :BRETT -v- REES & ANOR [2008] WADC 9
File No  :CIV 2259 of 2002

Catchwords:

Torts - Negligence - Appellant injured in fall from ladder leaning against a door opened by respondent - Whether incident foreseeable - Respondent not negligent - Turns on own facts

Appeals - Principles of appellate review - Findings based on credibility - Duty of appellate court to reach own conclusions - Limitations of appellate review - Advantages enjoyed by trial judge

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr D M Bruns
First Respondent           :     Mr J R Criddle
Second Respondent      :     Mr J R Criddle

Solicitors:

Appellant:     Bradford & Co
First Respondent           :     SRB Legal
Second Respondent      :     SRB Legal

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

Brown v Dato Pty Ltd [2006] WASCA 170
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472; (1993) 112 ALR 641
Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; 197 ALR 201
Nagle v Rottnest Island Board [1993] HCA 76; (1993) 177 CLR 423
Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362
Skinner v Broadbent [2006] WASCA 2
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1; (2003) 77 ALJR 1449
Voulis v Kozary [1975] HCA 44; (1975) 180 CLR 177
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447

MARTIN CJ: I agree with Owen JA.
OWEN JA: During 1999 and 2000 bungalows at a resort in Broome were being renovated. The appellant and the first respondent were (independently) working on the renovation project. In the course of his work the appellant suffered injuries that he says were occasioned by the negligence of first and second respondents. He commenced an action in the District Court to recover damages but his case on liability was rejected. This is an appeal against the dismissal of his action.

Background

The appellant is a qualified electrician. The second respondent is a company which, until 2002, was engaged in the business of installing and maintaining timber floors. The second respondent was owned and controlled by the first respondent and his wife. The first respondent was engaged in the day to day operations of the business.
It is convenient to adopt (with some additions) much of what the trial judge said in the early part of his reasons for decision to describe the background to the dispute.
In 2000 the resort had within its grounds 84 bungalows. In 1999 it was decided to renovate between 30 ‑ 34 of the bungalows. The layout of the resort is such that the bungalows are gathered in groups of about a dozen or so dwellings. A pathway surrounds the group, passing by the front of each unit. The back of each unit faces inwards, that is, towards the back of the other units in the group and towards an open area.
The bungalows were designed in 1987 and built in an 'old Broome style' which included a central bedroom with a surrounding verandah. The verandah windows were covered by flywire and shutters but not glass. Externally, around all areas of the bungalow, except the wet areas, was latticework up to a level of approximately 900 mm. Each bungalow had a front door which was the only way in and out of the building. This door opened inwards. It could be opened with a key from the outside and by a latch from the inside. The living areas of each bungalow had timber flooring.
In general terms, the bungalows which were to be renovated were to be extended by 700 mm at both the front and the back. This enabled an ensuite bathroom to be built at the back and a larger lounge, dining and entry area at the front. In addition, the flywire in the windows was to be replaced by sliding glass. Timber flooring designed to match the existing

floors was to be laid down in the extended front area. It seems that the original entry stairs, shutters and shutter hardware were to be used in the new front façade. It also seems that the original front façade was to be demolished and a new façade built 700 mm in front of it. The new façade was generally to match the old façade in appearance, materials, finish and details.

Fini Group Pty Ltd were retained to build the renovations, which included (among other things) the installation of new electrical works and the installation and sanding of new timber floors. Fini Group subcontracted the electrical works to Amec Engineering Pty Ltd who retained a labour hire company, Win Technical Resources Pty Ltd (Win), to supply some of the electricians to work on the project.
The appellant gained his formal qualifications as an electrician in Eire. He came to Australia in 1978 and to Western Australia in about 1985. He worked in various parts of the state as an electrician or electrical mechanic from then until the early part of 2000. On St Patrick's Day 2000 he was hired by Win to work on the resort project and left for Broome on 19 March 2000. At that stage Win had about four electricians working on the project. One of them was Toby Harris, under whose direction the appellant worked.
Fini Group subcontracted the refurbishment of the timber flooring for 32 of the bungalows to the second respondent. This involved sanding back the floors and applying sealers and polyurethane gloss. The first respondent went to Broome to supervise the contract and to carry out some of the day‑to‑day work on the project. The second respondent also engaged the services of Marcus Lakey. His job was to do the initial sanding of the main parts of the timber floors using a large drum sander. Others would then follow to sand the edges and other pieces.
As the renovations were extensive, a large number of other trades were active on the site during the relevant period. There is no evidence that the appellant and the first respondent had seen or met one another before 23 March 2000.
From about 21 March 2000, the appellant was allocated the task of installing sensor lights on a group of six or seven bungalows. That work involved the installation of a sensor unit and a light which was connected to the sensor unit. The units and lights were positioned to illuminate the front entrance to the bungalows. The evidence does not identify the exact bungalows on which the appellant worked. It is sufficient to say that it included bungalow number 123. This unit is, relevantly, one of four (numbers 120, 121, 122 and 123) that are next to one another (in that numerical order) along the eastern aspect of the path that surrounds that group. The evidence does not disclose the distance between the units.
The first respondent was also working on bungalows in that general area. The power supply to drive the drum sander was a large portable generator that was positioned between units and which could only be shifted by use of a fork lift. Extension leads of about 50 m in length conducted the power from the generator to the sander. This meant that sanding work could be done on four or five units before the generator had to be shifted. On 22 March 2000 the generator was situated between units 120 and 121. It was still there when work commenced on the morning of 23 March 2000.
On 22 March 2000 the appellant mounted the sensor unit underneath the eaves at the peak of the roofline at the front of bungalow 123. He then clipped cable leading from the sensor unit as far as the light fitting but he was not able to mount the light into its position above the front door because he did not have a drill to create the holes into which the light fitting would be screwed. The appellant marked the position he wanted to drill and left the light fitting dangling with the intention of coming back early the next morning (23 March 2000) to fix it into position.
At about 5.55 am on 23 March 2000 the appellant went to a bungalow which was being used as a storeroom to get the tools that he needed to finish installing the light at bungalow 123. He anticipated that it would not take long, something less than five minutes, to complete the task. He got the tools that he needed, including a battery drill and an electrician's wooden A-frame ladder which was 1.8 m (6 feet) high. The appellant first went to another bungalow, and then he went to bungalow 123. At that time the bungalow was locked and the person from Fini Group with the key to the bungalows had not arrived on site.
The events leading up to the accident are in dispute. But there is no dispute that the appellant, shortly after arriving at bungalow 123, placed the feet of the A‑frame ladder on the top step of the entry stairs to the bungalow and positioned the ladder in its closed position so that the top of the ladder leant against, and was supported by, the front door of the bungalow.
The appellant went up the ladder and drilled two holes. While the appellant was up the ladder, but before he had finished installing the light, the first respondent opened the front door from the inside. As a result, the ladder dropped inwards and the appellant fell backwards, landing heavily on his left shoulder. The impact of the fall caused the appellant to suffer a serious and debilitating left shoulder injury which has impacted adversely upon his life and in particular upon his earning capacity.
Unfortunately, no forensic investigations (such as the taking of photographs, the drawing of diagrams and the recording of the state of the renovations) were taken or done at the time. Such photographs as were adduced in evidence were taken much later and depict the scene after completion of the renovation project. Some of the witnesses drew diagrams for use at the hearing. But they, too, were done years after the event and may have been affected by lapses in memory. There is a dispute as to the state that the renovations of the bungalows, particularly number 122 and 123, had reached by 23 March 2000. The absence of records from contemporaneous forensic investigations did little to assist in the resolution of the disputes.
The writ was issued in August 2002 and came on for hearing late in October 2007, some 7 1/2 years after the accident.

The pleadings

The appellant advanced a scenario of events leading up to the accident which, as pleaded, was set out in the statement of claim at par 4, including:
At about 6.10am on 23 March 2000 at [the resort]:
(i)the plaintiff … arrived at bungalow 123 to work on the project to complete the installation of a security light above the front door;
(ii)[Amec Engineering] had provided the plaintiff with an A-frame ladder of approximately 2 metres in length for the task;
(iii)Bungalow 123 was unoccupied at the time and the front door was locked thereby preventing the plaintiff from opening out the legs of the A‑frame ladder;
(iv)in order to carry out the task the plaintiff leant the A‑frame ladder against the front door of the bungalow and then ascended the ladder and commenced work on the security light;
(v)whilst the plaintiff was (working on the ladder which was leaning against the front door of the bungalow) the first defendant … passed by the plaintiff and the ladder and entered the bungalow through a window which the first defendant had forced open;
(vi)immediately prior to the first defendant entering the bungalow the plaintiff warned him not to open the door whilst the plaintiff was still on the ladder;
(vii)shortly afterwards and whilst the plaintiff was standing on the ladder the first defendant in the course of his employment opened the front door of the bungalow without warning to the plaintiff;
(viii)by reason of the opening of the door the ladder collapsed causing the plaintiff to fall heavily outside the bungalow ('the accident').
The plea of negligence against both respondents was essentially the same. Paragraph 6A of the statement of claim read:
The accident and the plaintiff's pain and injuries as pleaded aforesaid were caused by the negligence of the first defendant.
Particulars
The first defendant was negligent in that he:
(i)opened the front door to the bungalow when he knew or should have known that the plaintiff was on the ladder which was leaning against the door;
(ii)failed to heed the warning from the plaintiff made a short time beforehand not to open the door;
(iii)failed to locate and use the keys to open the front door so as to enter the bungalow in a normal manner;
(iv)entered the bungalow by forcing open a side window;…
The first respondent pleaded that the bungalow in question was number 122, not 123. In par 4.5 he said that:
When he walked past the plaintiff:
4.5.1the plaintiff was looking into a tool box located on the footpath;
4.5.2the A-frame ladder was not resting against the door of bungalow 122;
4.5.3he was unaware of the plaintiff's trade, nor did he know what task the plaintiff was intending to embark upon;
4.5.4the plaintiff was unaware of the first defendant's trade, nor did he know where the first plaintiff was travelling to.
While the pleaded position of both respondents was that the accident occurred at bungalow 122 not bungalow 123 as alleged by the appellant, during counsel for the respondents' closing address at trial it was conceded that the accident had in fact occurred at bungalow 123.
Both respondents denied that they were negligent as alleged or at all. In par 7 of the defence the respondents advanced a different scenario of events leading up to the accident:
Further and in the alternative, the first defendant says that:
7.1a key to bungalow 122 was not available for use prior to 7.00am on the material date;
7.2as a consequence, and by prior arrangement with the building company which had retained the second defendant to carry out work inside bungalow 122, he entered the bungalow, not forcibly, but through a rear window which he had left open the evening before;
7.3on approaching the door of bungalow 122, from the inside, he could not see outside as the external window shutters adjacent to the door were closed.'
At trial, counsel for the appellant submitted that the learned trial judge should be satisfied on the balance of probabilities that the appellant's account of events was accurate. But in the alternative, he submitted that even if the trial judge accepted that the accident happened in the way that the first respondent described in his evidence, the respondents would nevertheless be liable.
Counsel for the respondents properly conceded that if the trial judge was satisfied on the balance of probabilities that the accident happened in the circumstances pleaded by the appellant in par 4 of the statement of claim, the appellant would have established negligence against both respondents. However, he submitted that the appellant was not a credible witness and that the trial judge ought to reject his version of events. He submitted that the first respondent's version of events should be accepted and if this occurred the trial judge must conclude that the respondents were not liable because the first respondent could not reasonably have known or foreseen that the appellant was on a ladder leant up against the front door of bungalow 123.

Evidence of the parties at trial

The appellant, Mr Brett

The appellant gave evidence that he had been instructed to install sensor lights on the outside of the doors to the bungalows. At about 6 am on 23 March he returned to bungalow 123 with tools he had collected earlier to install the light over the door which he said was positioned in the middle of a narrow verandah. In order to illustrate this, the court was shown exhibit 3, a model of this bungalow made to the appellant's instructions. The door was locked. He knocked on the door, called out and assumed when there was no reply that the project manager had not arrived. His ladder could not safely fit in its opened position on the narrow verandah in front of the front door so he put its feet on the top step of the bungalow and leaned the ladder against the door.
The appellant said that while he was on the ladder the first respondent came up to him and asked if he had the keys, to which he answered no. The first respondent then stepped up on the verandah and attempted to open a window to the appellant's right. This aperture was closed and the appellant stepped off his ladder to allow the first defendant to try the window to the left side of the verandah. The appellant testified that the first respondent said this window was open and that he was going to hop in through it. The appellant then warned him 'Just be aware if you're going to hop in there, just my ladder is up against the door on it'. The first respondent replied 'Okay, okay, you will be fine'. Two minutes later when the appellant was again up the ladder, the door swung open inwards, he fell backwards off the ladder and was injured. After he fell the first respondent came out and said he was sorry and that he completely forgot.
In cross‑examination, the appellant was shown a series of recent photographs from exhibit 1 that showed bungalow 123 as having no verandah. The narrow verandah referred to by the appellant had been removed and a new front wall inserted at the outer edge of the verandah, which extended the internal size of the bungalow some 700 mm. This was part of the programme of extensions to the front of all the bungalows in the resort. Counsel for the respondents put to the appellant that on the day of the accident there was no internal wall present on bungalow 123 which the appellant denied. The appellant maintained that he saw the first respondent enter the bungalow right beside him and that he warned the first respondent, the latter acknowledged the warning and apologised after the accident.
It was put to the appellant that it was unsafe practice to lean the top of a ladder against a door that is capable of being opened away from a person on the ladder. The appellant agreed saying it was the first time he could recall ever doing this. He also acknowledged that while he had established that the front door was locked, he did not know whether there was a back door to the unit and had assumed that no one could get in other than through the front door.
Counsel for the respondents questioned the appellant about the nature of the window he said the first defendant entered. The appellant could not be sure if it was sliding or otherwise opening, but was pretty sure it was glass. He further said that he could not be a hundred percent sure that it was a window rather than a shutter. Later the appellant was shown exhibit 8, a general plan of the bungalows dated 12 June 1987 which established that the original bungalows had timber framed top‑hinged colorbond shutters opening outwards and top‑hinged flyscreens opening inwards. The appellant accepted it was possible there was no glass in the external walls of the bungalow.
It seems to have been the case that on the date of the accident the front gable was in its current position and the roof covering the entire 700 mm space in the front of the bungalow was in place. The appellant maintained however that the front door was still on the inside gable and there was no door hung on the outside gable.

The appellant denied the assertion that the first respondent only saw him momentarily when he walked past him down the path at the front of the units, and that he entered the bungalow through a rear sliding window. The appellant repeated that he was on the ladder when they spoke and the first respondent asked if he had the key. When it was put to the appellant that there was no wall 700 mm from the front of the building on any of the units from the time he arrived, the appellant maintained that was not what he saw.

The first respondent, Mr Rees

The first respondent gave evidence that the second respondent was awarded the contract to sand back and apply sealer and polyurethane gloss to the flooring of 32 bungalows at the resort. They were given 2 1/2 weeks to complete the exercise commencing on 12 March 2000. The units concerned were numbered from 101 ‑ 132. He had expressed concern that he may not be able to complete the job within the stipulated time unless his workers were able to obtain access to the bungalows at first light which was around 5.30 am ‑ 6 am. As a result he had come to an arrangement with the works coordinator for the builders that a window would be left open where access was easy, generally at the back of the buildings, for the sanding teams to gain entry and begin the work early.
The process required that the work be done in three stages. First, drum sanders would take the old coatings off the flooring and sand to the level of the new flooring. Secondly, the edges would have old coatings sanded and levelled with the new flooring. Finally the floors would be fine sanded, vacuum cleaned and prepared for coating. The entire process for each unit would take about three days including application of the coat.
The teams would work on as many as four units at a time. A generating plant was hired to supply power to the drum sanders. This generator was moved by bobcat so it could be placed near pathways or in between units. On 23 March 2000 the generator was placed between units 121 and 120.
The first respondent gave evidence that on the morning of 23 March 2000 he walked out of a unit around the pathway between units 131 and 124, around unit 123 then through the car park past units 123 and 121. There was someone kneeling by his toolbox to the left of bungalow 122 and a ladder leaning against the handrail. The first respondent walked past the man bending over the toolbox and when questioned regarding any conversation taking place, said it would only be in his character to have said 'G'day' and move on as he was in a hurry to attend to the generator.
After the generator had been attended to, the first respondent said he walked around the back of unit 121 and got into the rear window of 122 by lifting the unlocked awning and pushing the window aside, stepping up onto the building and climbing through the window. He had no view of the front of the bungalow from the point at which he entered. He walked around inside the building to see what stage of the sanding process had been reached and whether they could proceed to the next stage that day. He then walked out of the building by the only door, the front door which opened inwards, was struck on the head by the ladder and then saw the appellant laying on the ground. Prior to opening the door he was not conscious of anybody being outside it.
When questioned about any conversation which had taken place, the first defendant recalled asking the man if he wanted him to help him up and if he was all right. Two other men were walking down the paths and once he recognised they knew each other the first respondent said 'Well if you guys are going to carry on and look after him, then I will just take off and go to work'. The first respondent denied seeing a ladder against the front door at any time prior to entering the bungalow. He denied at any time asking or requiring the appellant to get off the ladder in order to gain entry to the unit.
The first respondent said there was no internal wall 700 mm from the external wall in this unit. The plan of the bungalows was such that when the front door was opened it led into an open space leading some 4 or 5 m to an internal bedroom door. He said that all the structural work involving the 700 mm extensions to the front and back of the units had been completed by the time he arrived. There was no logical progression through the 32 units as some tasks such as painting, internal plumbing and second fixing were still taking place and they could not get in until all that work had been completed.
In cross‑examination, the first respondent said that it was after the first few days into the contract that he realised access would be a problem and the arrangement for opening windows to gain access was made. He said the back window was left open rather than the front because it was more concealed from other trades that were on site. He denied that it was his practice first to test the front door in the mornings to see if it had been unlocked. He did not go to the front door in the morning to test if someone had come and unlocked it in the meantime: he would have found that out when he got in through the window.
There was confusion about the layouts of bungalows 122 and 123 which are mirror images of one another. The first defendant consistently maintained that he had entered bungalow 122 at the window on the rear left hand corner looking from the front. However, it was put to him that he could not have entered unit 122 at that location because there were no windows on that side. It was also put to him that bungalow 123 (not bungalow 122) had windows at the back right hand corner, looking from the rear, and that he had entered unit 123. He maintained his stance that it was unit 122. In re‑examination the first respondent confirmed that the window he had entered was a sliding glass window. During counsel for the respondents' closing address it was conceded that the first respondent had entered unit 123 (not unit 122) and that the accident occurred at bungalow 123.
The first respondent denied each of the assertions that he had seen a man at the front door of the bungalow, that he had asked the man if the door was unlocked and that he had climbed onto the verandah to test the front windows. When asked if he had uttered any words of apology he said he may have done but he could not recall.

Mrs Rees

Mrs Rees is the first respondent's wife and a director of the second respondent. She outlined the process involved in completing the contractual work at the resort. All structural alterations undertaken on the bungalows were, as far as she could see, completed by the time they arrived on site. She saw evidence of new jarrah flooring on the areas that had been extended. There were no walls dividing the new and old flooring. During the time she was at the resort, at no time did she come across a wall still in place 70 cm from the front of the building on the inside. Mrs Rees did not give any evidence specific to the layout of, or work on, bungalow 123.

Mr Gathorne‑Harris

Mr Gathorne‑Harris (Harris) was working as an electrician at the resort at the time of the accident. He thought he recalled units 122 and 123 being extended. When asked to explain the front façade of bungalow 123 he described a verandah coming out from the front of the façade. When asked to draw the bungalow he drew steps leading up to a recessed front door and said that he thought the verandah was enclosed: see exhibit 12. He said that he was a bit confused, that he had been to the resort several times since and was having trouble remembering.
Harris accepted that one of the jobs was to install an external light and sensor on the renovated bungalows. He did not recollect where he would have told the appellant to place the lights. He had no recollection of an existing wall remaining in place in any of the bungalows after the external wall had been completed, or of an internal wall being demolished after the external wall had been completed.

Ms Thom

Ms Thom had worked at the resort since 1988. She confirmed the general nature of the renovations and the state of external windows prior to the renovations, but did not give evidence specific to bungalow 123 on 23 March 2000.

Mr Lakey

Mr Lakey worked with the first respondent on the resort contract. He worked the drum sander that started the process of sanding the floors. After the edges were done he would return to do the fine finish to the floor ready for coatings. The generator used to power the sanders could operate the sanders to a distance of about 50 m in all directions. He gave evidence that to get into the units they always left a back window ajar to climb through in the mornings and when leaving they left through the front door and locked it.
Lakey gave evidence that it was possible to see where the extensions had been laid at the front on the verandahs where they had added the new floor. There were no walls between the old and new flooring. In cross‑examination he said that the arrangement of getting in though the back window saved the hassle of finding keys. He also said that some windows had shutters but the windows just slid open. He went through the back window pretty well every morning.
Lakey denied the assertion that they would first try the front door to see if it was open. He said the system was that once he had climbed through the back window and opened the front door, the door stayed open all day. The last person to leave at night locked the front door as they went. Lakey did not give any specific evidence about work he had carried out on bungalow 123.

The trial judge's findings of fact and reasoning

The juridical task ‑ credibility

While his Honour's decision was not based solely on an evaluation of the witnesses' credibility, he identified credibility as critical to the outcome of the case. He went so far as to include a heading in part of his reasons 'Credibility Looms Large'. Aside from the evidence of the appellant and the first respondent, there were no witnesses to the accident or to what happened immediately before or after the accident occurred. No photographic evidence was collected at the time of the accident. Instead, the trial judge was handed what he described as 'the unenviable task' of relying on photographs of the bungalows taken some 7 1/2 years after the accident as evidence, and on the eroding memories of those who were working at the resort at the time of the accident and who gave evidence at the trial.

The competing versions of events

His Honour was satisfied that the appellant was injured at bungalow 123 consistent with the evidence of the appellant and Mr Harris. He accepted that the first respondent's evidence regarding the location of the rear window he entered confirmed this fact. The floor of bungalow 123 was probably in the process of being sanded on the day of the accident. It was most likely that the system of allowing entry into the bungalows by way of the back window was in place. He found that as at 23 March 2000 the renovations to the bungalows were at a point where the old front wall of each bungalow had been removed leaving a newly constructed front wall.
His Honour was satisfied that the appellant's testimony concerning the existence of two walls at the front of the bungalow was incorrect. He declined to accept the appellant's evidence about the way the first respondent entered the bungalow. The appellant's account of there being two internal walls went to the heart of his evidence and in his Honour's opinion he was badly mistaken about the state of the front of the bungalow. His Honour did not accept that the first respondent entered the bungalow through a front window or that the appellant gave him a warning or saw him prior to the accident.
The trial judge found that the appellant leant his ladder up against the renovated front door and not the old one contrary to his evidence. He did not accept the appellant's evidence that he thought he had to fix a light to the internal rather than the external entrance. If, as the appellant described there were two entrances, and as he knew, the internal entrance was to be demolished, it did not make sense to fix a light on the internal entrance. It is much more likely that the appellant would have realised that any light had to be fixed on the new entrance. It was an implausible mistake.
The trial judge also found that the first respondent's evidence was, in a number of respects, confirmed by Lakey and by Mrs Rees. He mentioned the general state of the renovations at the resort and the system of leaving a rear window open to enable access to a bungalow early in the morning. His Honour went on [76]:
I found the first defendant to be a thoughtful and plausible witness. In my opinion, the plaintiff came to be injured in the circumstances described by the first defendant and not in the circumstances as described by the plaintiff.
Counsel for the appellant submitted that the first respondent's error in identifying bungalow 122 as the place of the accident went to the heart of his account and credibility. This was rejected. His Honour found that this error did not damage the first respondent's credibility to a point where his evidence should not be accepted.

Findings on forseeability

The trial judge summarised counsel for the appellant's submissions on the liability of the first respondent to the appellant based on the first respondent's own version of events. But his Honour rejected the submission that the risk of injury to the appellant was reasonably foreseeable. He adopted the test set out in Nagle v Rottnest Island Board [1993] HCA 76; (1993) 177 CLR 423 at 431: 'a risk may constitute a foreseeable risk even though it is unlikely to occur. It is enough if the risk is not far-fetched or fanciful'. In his Honour's opinion, however, such a risk was far-fetched or fanciful. He went on [85]:
I do not see how the first defendant could reasonably have foreseen any risk of injury to the plaintiff in all of the circumstances. I have come to this conclusion because:
1The first defendant did not know and could not have reasonably known what trade the plaintiff was involved in.
2The first defendant did not know and could not have reasonably known what work the plaintiff was to perform on the morning in question.
3Apart from perhaps knowing that the plaintiff may be intending to perform some work with a ladder somewhere in the resort where bungalows were being renovated, the first defendant did not know and could not have reasonably known whereabouts the plaintiff would be working.
4The first defendant did not know and could not reasonably know when the plaintiff was to carry out his work. Was the work the plaintiff intended to carry out, going to be performed immediately or was the plaintiff preparing to perform work later that morning?
5There was nothing to indicate to the first defendant that the work the plaintiff intended to perform involved the possibility of leaning a ladder against the front door so that it was supported only by the door itself.
6There was no evidence that the first defendant became aware or ought to have become aware the plaintiff was up the ladder against the door between the time he saw the plaintiff rummaging in the toolbox and when he opened the door.

Findings on the first defendant's apology

His Honour said that while it was distinctly possible that the first respondent said he was sorry for what had happened, he did so out of an understandable concern for the appellant. It was most unlikely that he would have said anything suggesting he had forgotten that the appellant was on the ladder, when in the trial judge's opinion the first respondent was never aware that the appellant was on the ladder.

Conclusion on liability

The trial judge noted that it was for the appellant to satisfy him on the balance of probabilities that the accident occurred in the circumstances he alleged. He also noted that he could only be so satisfied if he accepted that the appellant was a credible witness as to the circumstances leading to the accident but that he was not able sufficiently to rely upon the evidence of the appellant as to the circumstances surrounding his fall from the ladder. His Honour said [89]:
I prefer the first defendant's version of events surrounding the plaintiff's fall. As to the plaintiff's submission that even on the first defendant's version of events I should find the first defendant liable to the plaintiff, I reject that submission. In my opinion, a reasonable man in the first defendant's position would not have reasonably foreseen that his conduct in opening the door of the bungalow involved a risk of injury to the plaintiff and so I reject [counsel's] contention that the defendants are liable on the first defendant's version of events. In these circumstances, I must dismiss the plaintiff's claim.

Provisional assessment of damages

The trial judge went on to say that had he found in favour of the appellant he would have assessed damages in a total amount of $815,070. This provisional assessment is not in issue in this appeal.

Grounds of appeal

There are five grounds on which the appellant challenges the trial judge's findings and conclusions. Omitting particulars, they are as follows:
1.The Learned Trial Judge erred in fact and in law and his discretion miscarried in rejecting the whole of the Appellant's testimony of the surrounding circumstances of the accident and accepting the whole of the First Respondent's testimony of the surrounding circumstances of the accident.
2.The Learned Trial Judge erred in failing to find that the First Respondent was negligent by forgetting that the Appellant was on a ladder leaning against the door when the First Respondent opened it.
3.Further, and alternatively, to Grounds 1 and 2 above, the Learned Trial Judge erred in finding that the Appellant's action in leaning his ladder against the door was far fetched and fanciful.
4.The Learned Trial Judge should then have found that opening the door without prior warning, the First Respondent was negligent and that such negligence caused the loss and damage suffered by the Appellant.
5.The Learned Trial Judge should then have found that the second Respondent was vicariously liable for the negligence of the First Respondent.

Relevant principles of appellate review

In his grounds of appeal the appellant makes a direct attack on findings of fact made by the trial judge. This is not a case where, for example, the complaint is that there was no evidence to support findings or that the trial judge overlooked evidence or had regard to irrelevant or inadmissible material. Put bluntly, the appellant says the trial judge got it wrong when he preferred the respondents' version of events over his (the appellant's) testimony. Due to the nature of the challenge it is necessary to traverse well trodden ground and to spend a little time examining the principles governing appellate reviews in these circumstances.
The statutory context is clear. An appeal to this court is by way of rehearing: Supreme Court (Court of Appeal) Rules 2005 r 25. A rehearing in the statutory sense is an appeal on the basis of the record: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; 197 ALR 201. The relevant principles on which the court operates in carrying out its task are set out in some detail in Brown v Dato Pty Ltd [2006] WASCA 170 [114] ‑ [117] and Skinner v Broadbent [2006] WASCA 2 [31] ‑ [36]. I adopt, without repeating, what is said in those passages. Nonetheless, it is worth repeating some of what the High Court has had to say on this subject.
There has long been two somewhat different descriptions of the appellate approach. One approach (that has come to be called 'the traditional view') emphasises the duty of the appellate court to decide for itself on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge: see, for example, Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212, 218 ‑ 224. The other view placed restraints on appellate intervention, certainly where the findings were based on witness credibility or demeanour, but generally if the findings made by the trial judge were reasonably open on the evidence: see, for example, Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, 307. The plot thickened as the traditional view came to be associated with an approach that seemed to derogate from the previously perceived wisdom that a trial judge was in an advantageous position when it came to making findings on disputed facts based on credibility assessments. Some of the cases have been interpreted as suggesting that this applies even where the finding is based wholly or in part on credibility: see, for example, Voulis v Kozary [1975] HCA 44; (1975) 180 CLR 177, 196.

By the time Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 came to be decided the traditional view was firmly in the ascendancy; see 542 ‑ 543. But there was a movement back towards the view emphasising the advantages enjoyed by the trial judge: see, for example, Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472; (1993) 112 ALR 641, 479. This divergence of authority was examined in detail by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588 [81] ‑ [86]. His Honour's conclusion seems to have tended more towards the traditional view: [86].
The High Court returned to this question in two cases decided in 2003: Fox v Percy and Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1; (2003) 77 ALJR 1449. In Fox v Percy Gleeson CJ, Gummow and Kirby JJ observed [23] (footnotes omitted):
[The appellate court] must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Despite these limitations however, the appellate judges may still draw their own inferences and conclusions. The mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute: Fox v Percy [28]. In the joint judgment their Honours also observed at [25] (footnotes omitted):
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'.
It can be seen, therefore, that the weight of authority embraces elements of both the traditional view and the more restrained approach. As McHugh and Kirby JJ said in Suvaal [73]:
It is probably true to say that at different times in legal history, the weight given to credibility assessment and the impediment it presents to the exercise of an appellate rehearing have changed, influenced by the quality of the record available for scrutiny; the growing knowledge of psychology and the consciousness of the imperfections of credibility assessment; and a heightened appreciation of the benefits of appellate correction of error, including factual error. But these considerations have not eliminated the appellate obligation to respect the advantages which the primary decision-maker has that are denied to the appellate court. As a matter of logic, experience and legal authority, it cannot be otherwise.
It would, in my view, be wrong to limit 'the advantages which the primary decision‑maker has' to demeanour as a guide to credibility assessment and to ignore the 'feeling of a case' that usually emerges from running a trial. The primary decision‑maker is able to assess testimony against the entirety of the evidence and in a situation in which she or he has an appreciation of the way the trial was run. There may, for example, be subtleties in the way questions were asked (or avoided) that are apparent in the heat of battle but which are not quite as clear in a more clinical examination of a transcript. Similarly, the effect of evidentiary rulings or rulings about the pleadings made at one stage of a trial may have a greater impact at another point in the proceedings than will be apparent from the record. In carrying out its duty to decide for itself on the proper inference to be drawn from facts an appellate court must be alive to the entire context in which findings were made.
The onus of proof in any negligence action is distributed such that the plaintiff (the appellant) bears the onus of proving, on the balance of probabilities, any factual elements of his or her case. This is the context (and recognising the limitations of an appeal on the basis of the record) in which the issues in the grounds of this appeal fall to be considered.

Issues in the appeal

An overview

The critical issue to be decided in this appeal is whether the trial judge erred in accepting the first respondent's version of events leading up to the accident over that of the appellant. In an exchange with the bench it was put to counsel for the appellant that if the trial judge accepted the first respondent's evidence that he saw a person hunched over a toolbox, said 'g'day' with no other conversation, went to the generator and then went to the back of the units and climbed in the rear window before eventually opening the front door, 'it would be all over'. Counsel responded: 'It was all over'. Whether that comment was intended as a statement of fact as to what happened as a result of the trial judge's approach or whether it is a concession is not clear. In any event, counsel submitted that the trial judge ought not to have accepted that version of events. He submitted that the trial judge's train of logic led inexorably to the conclusion that the respondents were not liable but there were three points where his Honour misunderstood the facts 'and that unravels the whole train of logic'. The three fundamental factual errors which, on the appellant's case, infected the ultimate conclusion are that :
(a)the first respondent had entered the unit by a window at the back right hand corner (looked at from the rear of the building);
(b)at the time of the accident there was no internal wall 700 mm inside the external front wall; and
(c)at that time sanding work had begun on the unit.
The last two of those questions are related because it was common ground that unless the old (internal) wall had been removed it was unlikely sanding work would have commenced. Those questions go the heart of the appellant's challenge because if they cannot be supported the 'train of logic' which persuaded his Honour to prefer the first respondent's version of events unravels.
There were some other issues raised in the trial and on appeal and I will deal with them in due course. But it is convenient to start with these three critical questions.

The point of entry to the unit

There are three parts to this question and they are interrelated. First, did the accident occur at unit 123 (the appellant's case) or at unit 122 (as the first respondent maintained)? Secondly, did the first respondent enter the unit through a front window (the appellant's case) or through a rear window (as the first respondent maintained)? Thirdly, if the first respondent was wrong in his evidence about the identity of the unit, what affect should it have had on the trial judge's view of his credibility?
The answer to the first of those questions is that the accident occurred at unit 123. So much was conceded by counsel for the respondents in closing addresses at trial. Despite the ease with which that question can be answered it is still necessary to examine what effect (if any) the first respondent's error has on the resolution of the second question. I will leave the third question for separate consideration in the overall examination of the credibility issues.
The appellant consistently maintained that the first respondent had entered bungalow 123 and that he did so through a front window. The first respondent consistently maintained that he had entered bungalow 122 (not unit 123) and that he did so by walking behind the bungalow and through a window at the right‑hand back corner (from the perspective of someone facing the rear of the bungalow).
Cross‑examination of the first respondent concentrated on the number of the bungalow he had entered prior to the accident. Evidence confirmed that each bungalow had wet areas (kitchen and bathroom facilities) towards the rear of the building. The position at which the wet areas were situated had a solid wall and exhaust vents but other parts of the side on which the wet areas were located had windows, or perhaps more correctly, openings protected by shutters and flywire. Exhibit 2 is a plan of 'Bungalow Type B'. It was common ground that bungalow 123 was a 'Bungalow Type B'. The bungalows were 'handed'; that is, they had the wet areas (and thus the solid walls) on opposite sides. For example, bungalow 123 had the facilities on the right side (looked at from the front) and it seems that unit 122 was the opposite. Bungalows 122 and 123 were in close proximity to each other and were similar in layout and appearance, other than for their 'handed' layout. The trial judge concluded that there were rear external windows to the right back corner of bungalow 123 (looked at from the rear of the building) but that the windows in unit 122 were in the opposite corner.
A series of photographs depicting bungalow 123 was tendered in evidence at trial as exhibit 1. The photographs were apparently taken close to trial and therefore showed the building as it was in 2007, not 2000. Nonetheless, there was no evidence that the position of windows had altered between 23 March 2000 and the time the photographs were taken.
In an exchange between the trial judge and the first respondent the witness was shown a photograph (numbered 11 of exhibit 1) of bungalow 123 taken facing a corner and showing two sides with windows on both sides. He was asked: 'When you went into the bungalow that you have identified as 122, is that what it looked like at the rear?' To which the first respondent replied: 'as I recall, yes'. No objection was taken to this exchange at the time. It seems clear that this influenced his Honour in reaching the conclusions that he did concerning the identity of the unit at which the accident occurred and the point of entry utilised by the first respondent. It may also have been influential in causing counsel for the respondent later to concede that the accident occurred at bungalow 123.
As well as photograph 11, the pictorial images numbered 2 and 3 from exhibit 1 are relevant for the determination of this issue. At the hearing of the appeal it became obvious that the parties had differing views as to the position from which the photographs were taken and what they depicted.
In his oral submissions, counsel for the appellant contended that the trial judge erred because, according to the photographs, the first respondent could not have entered the rear right-hand side of bungalow 123 (looked at from the rear), and this is a fundamental error. This was because there were no windows at the point at which the first respondent said he entered. He submitted that photographs 2 and 3 depict the area of entry to bungalow 123. He said (ts 5):
The evidence is that the wet areas at the back of the unit ‑ so if we look at photograph 2. The wet areas are the corrugated iron areas and you can see the exhaust fans on photograph 2 and the windows are, in fact, not in the wet areas themselves; they are beside the wet areas but it can be seen that those windows which look like awnings in photograph 2 are, in fact, on the right-hand side looking from the front.
….
And the photograph number 3 … is at a different angle of the rear, so one can see that there is a lattice portion at the extreme right-hand side as one looks at it but the windows remain at the extreme left-hand side as one looks at it.
In par 3 of supplementary submissions handed to the court the appellant said: 'The rear of bungalow 123 can be seen in photographs 2 and 3. The windows are on the right hand side looking from the front'.
Counsel for the respondents provided a different explanation of what the photographs depicted. He said that on photograph 2 the left hand side is the front and the right hand side is the back. It was put to him that this was contrary to what counsel for the appellant had said; namely, the photographer would be standing behind 123. Counsel replied (ts 36):
That's not the position, your Honour. … The photographer was standing to the right of bungalow 123 to take that photograph … As you are looking at it from the front to the right. … it's the side of it that is being photographed. … and if you look at the next photograph, photograph 3 is the same photograph of the side.
The parties were directed to confer with respect to the appropriate characterisation of the photographs in evidence and in the event of disagreement to set out their relative positions.
On 4 March 2009 the solicitors for the respondents wrote to the court saying the parties had conferred but had been unable, within the time the court had stipulated, to agree with respect to the photographs. The solicitors referred to trial transcript pages 16, 17 and 18 which contained part of the opening address of counsel for the appellant. According to the solicitors the extract correctly identified 'that which is depicted in the photographs and the positions from which the photographs were taken'. They then submitted that:
(a)the appellant's supplementary submission that photographs 2 and 3 depict the back of bungalow 123 was wrong; and
(b)there was no factual basis to challenge the findings that the first respondent had entered the bungalow by the right rear hand window (left rear corner looking from the front) and that the first respondent, when he described the back of the bungalow in which he entered, described a layout consistent with bungalow 123.
By letter of 18 March 2009 solicitors for the appellant indicated that they had no objection to the court taking account of the trial transcript pages 16, 17 and 18. They also said: 'Whilst the judge might not strictly have been entitled to act on that information the appellant does not press par 3 of the supplementary submissions'. They went on to maintain the submission that the trial judge was not justified in assuming that the first respondent's evidence he entered through the rear unit 122 through a window on the right hand side was a 'mere transposition'. The way the trial judge resolved the confusion created a conflict about the configuration of the walls in unit 123 where none had existed before.
I have examined the photographs in the light of exhibit 2 and what was said during counsel's opening at trial. It is clear, as the appellant's solicitors letter of 18 March (almost) concedes, that the position put on behalf of the appellant (namely, that ' the windows are on the right side as you look from the front') is incorrect. Photograph 2 was taken in front of the bungalow and facing the corner to the right of the front door. It therefore depicts a little of the front wall and most of the right hand side wall. The windows (shutters) shown in photograph 2 are at the front corner to the right of the front door (looked at from the front). Photograph 3 was taken from the rear of the bungalow and facing the corner to the left rear (looked at from the rear). It therefore depicts a little of the left rear wall (looked at from the rear) and the whole of the same side wall as is shown in photograph 2. The windows (shutters) that can be seen in photograph 3 are the same as those that appear in photograph 2.
Photograph 11 was taken from the rear of the bungalow and facing the corner to the right rear. It therefore depicts the whole of rear wall and some of the right side wall (looked at from the rear of the building). It shows windows (shutters) on part of the rear wall (at the back right-side corner) and on the right side wall. This is consistent with what was said by counsel for the appellant when he put the photographs to the first respondent at trial: 'I'm told that … photograph 11 is the photograph of bungalow 123 and taken ... looking at the corner of the rear wall and the left wall as you face the bungalow'.
The appellant had confirmed the accident occurred at bungalow 123. The first respondent gave evidence that he entered bungalow 122 through the rear right-hand window (facing the back of the bungalow), walked out the front door and was hit in the head by the appellant's ladder. The appellant was correct, and the first respondent was incorrect, in saying that the accident occurred at unit 123. But photograph 11 and exhibit 2 confirm that bungalow 123 had a rear right hand window. While the appellant's supplementary submissions contend that there was no evidence that the windows in unit 122 were on the opposite side, that is the way the trial was fought: see, for example, ts 187. It was, therefore, physically possible for the first respondent to have entered the bungalow (which we now know to have been unit 123) by a window at the back right hand corner (looked at from the rear). The next question is whether it was open for the trial judge to find that the first respondent's error in identifying the incorrect number of the bungalow was not a fundamental mistake and did not damage his credibility.
There was some support for the first respondent's testimony in one important respect. The system of entry into the bungalows through a back window that had been left open overnight was central to the first respondent's version of events leading up to the accident. His evidence regarding this system was verified by Lakey who was involved in the same work. A logical reason for the establishment of this system was provided by both witnesses; namely so they could start work early without having to wait for a supervisor to arrive with the keys. In addition the appellant acknowledged that he had not walked around the bungalow so he could not verify whether this system was or was not in place. In my view it was open for the trial judge to find on the balance of probabilities that this alternative method of entry through the rear window was in place.
The trial judge was alive to, but rejected, the submission that the first respondent's error in identifying the bungalow at which the appellant was injured as unit 122 and not unit 123 was not a mere mistake but rather went to the heart of his account and his credibility. His Honour accepted that the first respondent was 'obviously mistaken' in this regard and 'was firmly of the view that the accident happened at bungalow 122' but the error did not damage his credibility to a point where his evidence could not be accepted. In explaining that conclusion, the trial judge made these points:
(a)the appearance and layout of all the bungalows were very similar and that bungalow 122 and 123 were in close proximity to each other;
(b)it would be easy to have made an error in identifying the correct number of the bungalow at which the accident occurred;
(c)the first respondent, when he described the back of the bungalow in which he entered, described a layout consistent with bungalow 123; and
(d)the location of the rear window on bungalow 122 would have been on the other side to that indicated by the respondent.
His Honour then pronounced himself satisfied that the bungalow that the first respondent described was bungalow 123 and concluded: 'The fact that he got the number of the bungalow wrong is, in my view, therefore, of little consequence'.

In my view this was a valid and logical process of reasoning. The trial judge was not looking at this issue in isolation but in the context of the evidence as whole. There was no doubt that the first respondent entered a bungalow. The important question was not so much which bungalow but, rather, the point at which entry was gained. While the first respondent was mistaken as to the unit number he consistently maintained that he entered through a window at the back of the building and on right hand side (looked at from the rear). He could not have done so if he were entering unit 122 but it was physically feasible to have gained entry to unit 123 by that means and in that location. It seems to me that in this aspect of the 'logical train of reasoning' his Honour did not err.

The state of the front wall of bungalow 123 prior to the accident

His Honour was aware that the state of the renovation on bungalow 123 on the date of the accident was a major difference in the respective parties' evidence. His finding that the appellant was so badly mistaken about the state of the front of bungalow 123 that he was totally unconvinced of his account of the first defendant's actions relating to the accident is the nub of this appeal.
While some exhibits established the general nature of the renovations they did not refer to the actual state of the front of bungalow 123 on that date. In addition only one witness, Mr Harris, testified to the state of bungalow 123 on 23 March 2000 and his testimony was understandably vague. However he did state when asked in cross‑examination 'Can I ask you to go down to the bottom, to units 123 and 122? Right, they are two units that you say had been extended?' To which he replied 'yes'. He had earlier stated after being asked which units were being extended 'I'm positive 105 got extended. Then 123 …'. This evidence though vague casts some doubt on the evidence given by the appellant as to the state of bungalow 123.
His Honour reviewed the evidence given by the appellant and first respondent and their cross‑examinations. He discussed the model of bungalow 123 that had been made to the appellant's instructions and which clearly showed two walls parallel to each other at the front. Clear plastic in the windows of the internal walls suggested they were glazed. In cross‑examination the appellant was firm about the presence of the two front walls and about the attempt by the first respondent to enter the window first to his right and then (successfully) to his left. When cross‑examined about the nature of the window he said the first respondent opened 'whatever was there'.
Lakey gave evidence that at no time had he seen any of the structural work for the extensions being undertaken and that there were no walls between any of the old and new floorings in the bungalows he worked upon. Harris gave evidence that he had no recollection of an old existing wall remaining in place after external walls had been completed in any of the bungalows that were being extended. Harris also gave evidence that bungalow 123 was one of the bungalows being renovated. This supported the first respondent's evidence that the contract for his flooring work was for bungalows 101 ‑ 132. Unfortunately, the purchase order (exhibit 13) issued for the contract to the second respondent does not stipulate the bungalow numbers included in the contract. The bungalows are merely referred to in this document as 'type A and B bungalows as specified'.
Both the first respondent and Mrs Rees gave evidence that all structural work had been completed to the bungalows before they arrived to perform their contracted work. Only things such as painting, internal plumbing and second fixing remained to be completed before they had access to the bungalows. The first respondent gave evidence that there was no internal wall in the bungalow he entered prior to the accident.
The logic of events concerning the state of the front of bungalow 123 in my view supports the evidence of the first respondent. There is reason to question the logic of the evidence by the appellant that the first respondent entered the front window to check on the sanding process. If the two front walls were intact as the appellant asserted the first respondent would have had no logical cause to enter the bungalow and check on progress: the bungalow would not be ready for sanding. He could have seen this by standing at a window at the front of the bungalow.
It was in my view open for the trial judge to infer from this evidence that on the balance of probabilities all structural work had been completed to bungalow 123 before the respondents began their contracted work. It would follow that the appellant's testimony that two front walls existed at the front of bungalow 123 on 23 March 2000 was incorrect. I will return to this issue in the more general discussion about the trial judge's conclusions on the appellant's credibility.

Whether sanding in bungalow 123 had begun

The finding that the internal wall of bungalow 123 had been removed and all structural work had been completed prior to the sanding team arriving to start the contract is relevant to the next question. Aside from any incidental painting, plumbing or second-fixing work, the renovations had reached a stage where the floors were ready for sanding. There was little, if any, evidence other than the appellant's testimony to suggest otherwise. The trial judge found that the floor was 'probably in the process of being sanded on the day of the accident'. He did not specify the stage of the sanding process, stating merely that the process had already begun.
The trial judge had rejected the appellant's evidence regarding the state of the front of bungalow 123 and found that the first defendant had entered the bungalow through the rear window. The first respondent had no reason to enter bungalow 123 other than to see whether it was either ready for sanding or, if the sanding process had commenced, what stage it had reached. Either scenario required the defendant to check the bungalow to assess the progress of the sanding. In my view it was open for the trial judge to find that the floor in bungalow 123 was in the process of sanding when the first respondent entered it on the morning of the accident.
In the supplementary written submissions the appellant contended that no power would have been available for any sanding work at bungalow 123 and, therefore, the sanding process could not have commenced. This is because the 50 m extension leads used to connect the generator to the sanders would not reach bungalow 123 from the position of the generator on the morning of the accident. There is no direct evidence that this is so. It cannot be inferred from the map (exhibit 4) that the distance from the generator to bungalow 123 is more than 50 m. Lakey was cross‑examined about the length of the leads and the system involved in positioning the generator. It was never put to him or any other witness that on 23 March 2000, bungalow 123 was outside the reach of the generators.
On the state of the evidence I do not think this submission can be sustained.

A further issue ‑ the conversation and the apology

I should comment on one other question. Counsel for the appellant submitted that the appellant's evidence as to the conversation between him and the first respondent before the accident and the latter's apology to him after the incident was unchallenged and ought to have been accepted: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 370 ‑ 371; Brown v Dato [26].
Although the appellant was not directly cross‑examined as to the conversation it must have been apparent that the veracity of his version of events (including what happened before the first respondent entered the premises) was in issue. The respondent's case was clear on the pleadings. The first respondent pleaded that when he walked past the appellant:
(a)the plaintiff was looking into a tool box located on the footpath;
(b)the A-frame ladder was not resting against the door of bungalow; and
(c)he was unaware of the appellant's trade, nor did he know what task the appellant was intending to embark upon.
The appellant was cross‑examined as to the context in which the alleged conversation was said to have taken place. According to the appellant, when the conversation occurred the ladder was in place against the door. It had been necessary for him (the appellant) to climb down from the ladder to let the first respondent get to the front window through which he entered the unit.
It was put to the appellant during cross‑examination that the first respondent would say he entered the building from a window at the back. To this, the appellant responded: 'That's not true. That's not true at all. That's a complete lie'. He was cross‑examined about his evidence that he got down from the ladder to let the appellant access a front window right beside him. Counsel for the respondent put this to the appellant (ts 91):
Mr Brett, isn't it the position that you didn't see [the first respondent] enter the building? --- No, that's not true at all. The man came up behind me and asked if I had the key. That was the first I met ----.
Counsel for the respondents put this to the appellant: 'Mr Rees will say that when he walked past you, you were leaning over a tool box and that the ladder was not up against the front door of the unit'. The question went nowhere because the trial judge pointed out it contained two propositions. When counsel returned to the exchange it was directed at the tool box. The appellant denied he had a tool box with him. A little later this exchange occurred (ts 98):
[Rees] will give evidence that all of the units had their internal walls gone by the time he commenced work on this contract … none of the internal walls remained? --- That's not true.
He will also say that the door on the unit where the accident occurred, was in place at the front of the building? --- Not true.
[Rees] will say that his first knowledge of you being on the ladder at the front of the building was when he opened the door and the ladder fell towards him? --- Not true.
In the light of these exchanges it is clear that the appellant's version of the context in which the conversation took place and the manner in which the first respondent entered the building were disputed. It is true that it was not put squarely to the appellant that his version of the conversation was a fabrication but I do not think it can properly be said that the testimony was unchallenged.
In his evidence in chief the first respondent said he had walked past unit 122 and had seen someone in front of the unit. He was asked whether either he or that person had said anything. He answered (ts 177):
As I recall it would only have been in my character to have said 'g'day' and moved on as I was in a hurry to attend to what I had to do.
That is not particularly elegant or fulsome. And as counsel for the appellant pointed out there was no direct evidence that the man leaning over the tool box was the appellant. However, the first respondent gave no evidence of any other conversation with a stranger at the time. And while the appellant was not directly challenged in cross-examination about the content of the conversation the context in which it is said to have taken place was put squarely in issue.
This is not a case where, as described by Kirby J in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447; [122], the decision making process was reduced to a simple contest of credibility at the expense of a proper evaluation of objective testimony in the context of all evidence called at trial. Here, the trial judge had resort to the evidence of other witnesses in finding that, for example, the internal walls had been removed. Once that had been established a central part of the appellant's case as to the way the conversation occurred became problematic. Credibility was, and remained, a critical factor. But credibility issues were determined in the context of the evidence overall.
I would say the same thing about the apology which the appellant says the first respondent proffered immediately after the accident had occurred. He says that after he fell the first respondent came out and said he was sorry and that he completely forgot. That must mean that the first respondent 'completely forgot' that the ladder was against the door and 'completely forgot' the conversation in which he was warned by the appellant as to the work the latter was in the process of carrying out. For reasons already given in relation to the conversation I think the apology was put in issue and I do not believe that the appellant's evidence about the apology was relevantly unchallenged.

Issues in the appeal - conclusion

In my view the appellant has not made good the contention that the trial judge made fundamental errors in his appreciation of the evidence or his reasoning process on all or any of these important questions.

The finding regarding the appellant's credibility

The trial judge outlined the problems he faced in the case. There were two conflicting versions of events and only one of them could be accepted as being correct. Both the appellant and the first respondent were found to be mistaken as to some of their evidence but it was the appellant who bore the onus of proving the facts on the balance of probabilities.
The trial judge found that the appellant's testimony that the internal wall and external front walls were both in place at the time of the accident was incorrect. But this did not necessarily mean the appellant must fail in his claim. However, his Honour noted that the appellant's account of the two walls went 'very much to the heart of his evidence'. It, explained, for example, why the ladder could not be placed on the verandah. The appellant's assertions in this respect were such a 'bad error' that it left him totally unconvinced of the appellant's account of events of the morning insofar as they related to the first respondent's actions. This led the trial judge to reject the appellant's evidence that the first respondent had entered bungalow 123 through the front window. Consequently he accepted the first respondent's evidence that he had entered through the back window in the system of entry that was found to be in place for the floor sanding crew.
His Honour identified two further aspects of evidence that influenced his credibility findings. First the appellant described the fittings on the door against which he leaned the ladder. It is to be remembered that the appellant testified the two walls were still in place and that the door remained on the internal wall. In cross‑examination the appellant gave this evidence (ts 70):
I'm still uncertain from your evidence as to what was above the door in unit 123 on the morning of the accident? --- Above the door.
Above the door? --- Are you talking about the - well, there was the inside door, that's where the door was, yes.
You say the door was back 700 millimetres? --- Yes, it was. It had glass on it and the lattice on it. I remember that was on it.
So you remember there being glass? --- Yes.
At the back of the lattice work? --- Yes.
This is an important piece of evidence as it relates to the finding regarding the state of the front of the bungalow and the appellant's credibility. The appellant's evidence was not consistent with evidence given by Ms Thom. According to Ms Thom, before the renovations there were no glass windows but flywire inside the shutters.
The plans for 'Bungalow Type B' (exhibit 2) contain the following notation: 'Bead single sheets of glass (to code) internally to latticed areas around door and in gable'. It follows that if the door on which the appellant leant his ladder had glass behind the lattice in the insert above the door, then the appellant was leaning his ladder against the extended renovated front door. This seems to contradict the appellant's assertion that he was working on the original door. In my view this supports the trial judge's finding that the appellant was working on and leaning his ladder against the renovated front door at the time of the accident. It supports his characterisation that the appellant's assertions that the two walls were still in place was a 'bad error' and his consequent finding regarding the appellant's credibility.
Secondly, the appellant gave evidence that he was fixing a light to the internal entrance. In cross‑examination he accepted that he made a mistake about where the light should be positioned but had only come to this realisation recently. While in hindsight it does not make sense to fix a light onto an internal entrance that was going to be demolished, it was not put to the appellant that he knew this was going to happen. In my view the trial judge may have erred in finding the appellant knew the internal entrance was going to be demolished. However, he had already found that the appellant was badly mistaken as to the state of the front of bungalow 123. The question of the appellant's knowledge is only one of a number of facts upon which the trial judge relied in accepting the first respondent's version of events over that of the appellant. In my view it is not sufficient to undermine the efficacy of his overall finding on the appellant's credibility, particularly when balanced against the significance of the appellant's evidence regarding the presence of glass behind the lattice above the front door of the bungalow.
When deciding between competing versions of the facts it is necessary for a trial judge to explain why one version has been preferred over another. In this case the trial judge has clearly set out his findings and has explained in some detail why it is that he came to accept the first respondent's version of events. Save for the statement regarding the appellant's knowledge that the internal front wall entrance was going to be demolished, his findings are supported by evidence and his reasoning process unassailable.
This is a case in which the court should respect the advantages which the trial judge had. He was looking at the evidence in its entirety and it is apparent that demeanour may have played some part in the credibility findings. For example, he described the first respondent as 'a thoughtful and plausible witness'.
This is a case in which due regard must be paid to the advantages the trial judge had in seeing and hearing the witnesses. In many respects the case boiled down to a direct conflict between what the appellant said and what the first respondent said. On the trial judge's findings they both made mistakes but:
(a)the appellant's errors were more egregious than those of the first respondent;
(b)the appellant's errors were on issues that went to the heart of his case;
(c)in important respects the first respondent's version of events was supported by other evidence; and
(d)the first respondent was a thoughtful and plausible witness.
In reviewing the evidence and deciding what findings were (and are) proper I have borne in mind the duty on an appellate court to decide for itself on the proper inference to be drawn from facts while paying due respect to the advantages which the primary decision-maker has and which are denied to the appellate court. I have not been persuaded that this court should intervene and reverse the findings based, as they are, significantly on the trial judge's assessment of credibility. It has not been demonstrated that his Honour's conclusions were erroneous. None of the findings were glaringly improbable or contrary to compelling inferences. The appellant bore the onus of establishing on the balance of probabilities that his version of events was to be preferred. In my view the appellant did not make out a case to that standard.

Ground 1 is not made out.

The finding that the first defendant was not negligent

In my view it was open for the trial judge to make the findings that he did in accepting the first respondent's version of events over that of the appellant. What must now be examined is whether, given that the accident happened in the way that the first respondent described in his evidence, the first respondent (and therefore vicariously the second respondent) would nevertheless be liable to the appellant.
In his written submissions counsel for the appellant referred to many cases to support the proposition that it was not necessary for the appellant to show that the particular accident and the particular damage were probable. It is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act: see, for example, Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 120. I do not think it is necessary to examine the authorities because the principles are not in dispute. In my opinion the trial judge correctly identified the relevant test in his reference to Nagle. The essential question is whether the trial judge was correct in finding that a reasonable man in the first respondent's position would not have reasonably foreseen that his conduct in opening the door of the bungalow involved a risk of injury to the appellant.
Based on the version of events which the trial judge accepted, the first respondent passed a tradesman (assumed to be the appellant) on his way to attend to the generator. He may have offered a cursory greeting to the tradesman as he passed but there was no other conversation. At that stage the ladder was not positioned against the front door to the bungalow. The first respondent could not then have known of the type of work that was about to be undertaken by the appellant, nor could he have known where the appellant would ultimately place the ladder. In those circumstances, as he came to enter the bungalow the first respondent could not have known that the appellant was resting a ladder against the front door of the bungalow because he approached the building from the rear. This was consistent with the arrangements which were found to be in place for early morning access to units. When he was inside the building, and at the time when he opened the front door, he had no view of the area in which the appellant was working.
On the trial judge's findings, no conversation of the type contended for by the appellant had taken place and no warning had been given by the appellant as to what he intended to do. He could not, in all the circumstances, have been aware of the appellant being on the ladder which was resting against the front door.
In cross‑examination the appellant conceded that the act of leaning a ladder against a door was unsafe practice. He could not recall in 30 years of work, other than on the day of the accident, ever having done it before. He did not walk around the unit prior to climbing the ladder to see if there was a back door. It could be said that a reasonable person in the appellant's position, knowing that what he was about to do was unsafe practice, would have taken such a precaution. Rather he checked that the front door was locked, knocked and called out and assumed that no‑one was in the bungalow.
In referring to the appellant's conduct in placing the ladder against the front door does not raise an issue of contributory negligence. That is not how the case was fought. It goes directly to the question whether the risk of injury to the appellant by the first respondent opening the front door from the inside was reasonably foreseeable. A reasonable person in the position of the first respondent could not have foreseen that such an unusual practice was in place. Once the first respondent was inside the building he checked progress of the sanding work. The first respondent then opened the front door to leave the building. All of this was done in a way that was consistent with work practices as established by the evidence: see, for example, the evidence of Lakey that they customarily entered through a back window and left through the front door. In my view the accident that occurred when the door was opened was beyond what could reasonably have been anticipated by the defendant.
In my view it was open for the trial judge to reach the conclusion that the first respondent had not been guilty of negligence as alleged. Accordingly, no question of vicarious liability being visited on the second respondent would arise. None of grounds two, three, four and five are made out.

Conclusion

The appeal should be dismissed.
MILLER JA: I agree with Owen JA.