CGU Insurance Ltd v Coote (by his next friend Stephen Desmond Coote)
[2018] WASCA 117
•17 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CGU INSURANCE LIMITED -v- COOTE (BY HIS NEXT FRIEND STEPHEN DESMOND COOTE) [2018] WASCA 117
CORAM: MARTIN CJ
MITCHELL JA
PRITCHARD J
HEARD: 22 JUNE 2018
DELIVERED : 17 JULY 2018
FILE NO/S: CACV 49 of 2017
BETWEEN: CGU INSURANCE LIMITED
Appellant
AND
BENJAMIN STEPHEN COOTE (BY HIS NEXT FRIEND STEPHEN DESMOND COOTE)
First Respondent
TERRY'S CRANE HIRE PTY LTD
Second Respondent
DEBRI PTY LTD
Third Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
Citation: COOTE (by his next friend STEPHEN DESMOND COOTE) -v- TERRY'S CRANE HIRE PTY LTD [2017] WADC 28
File Number : CIV 3722 of 2012
Catchwords:
Negligence - Duty of care of principal contractor organising activity - Failure of principal contractor to ensure that workplace of subcontractors was safe - Whether principal contractor had control of workplace - Principles relating to interference with apportionment of liability at trial
Legislation:
Civil Liability Act 2002 (WA), s 5B
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7
Occupiers' Liability Act 1985 (WA), s 5
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr J R B Ley |
| First Respondent | : | No appearance |
| Second Respondent | : | Mr G J Pynt |
| Third Respondent | : | No appearance |
Solicitors:
| Appellant | : | Greenland Legal Pty Ltd |
| First Respondent | : | Not applicable |
| Second Respondent | : | Mills Oakley |
| Third Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 (2009) 239 CLR 420
Anyco Pty Ltd v Kleeman [2008] WASCA 30; [2008] Aust Torts Reports 81-933
AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217
House v The King (1936) 55 CLR 499
Hunter Health District v McKenna [2014] HCA 44; (2014) 253 CLR 270
Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275
Pennington v Norris (1956) 96 CLR 10
Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257
Scope Machinery Pty Ltd v Ross [2009] WASCA 100
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Wyong Shire Council v Shirt (1980) 146 CLR 40
JUDGMENT OF THE COURT:
Summary
The first respondent, Mr Coote, was severely injured while working as a dogman employed by the second respondent, TCH. TCH had been engaged by The Mallon Company Pty Ltd, t/a Frontline Roofing (Frontline), to provide crane services during the repair of the roof of a workshop in Osborne Park. The third respondent, Debri, had been engaged by Frontline to remove and replace the roofing of the workshop. Mr Coote suffered serious injury when he fell through a skylight while or shortly after unslinging a load which the crane had lifted to the roof.
Mr Coote brought proceedings in the District Court against Frontline, TCH and Debri. The appellant, CGU, was substituted as a defendant to the District Court proceedings following Frontline's deregistration.[1] TCH settled the claim by Mr Coote and sought contribution from CGU as the insurer of Frontline. It was common ground that CGU had assumed any liability which Frontline had to make a contribution.
[1] Under s 601AG of the Corporations Act 2001 (Cth).
This appeal is against the orders made by the trial judge requiring CGU to pay 40% of TCH's liability to Mr Coote. For the following reasons, CGU's appeal must be dismissed.
Facts found by the trial judge
Damage to workshop roof structure
In March 2010, a severe hailstorm occurred in the Perth metropolitan region. The storm damaged the roof of a building at 7 Ruse Street, Osborne Park, which was owned by Pelican Manufacturing Pty Ltd (Pelican) and used as a workshop.[2]
[2] Primary decision [4] - [5].
The roof structure consisted of two sawtooth sections covered in asbestos and the adjoining flat patio roof. Two distinct areas of the patio roof were covered in skylights made of either fibreglass or polycarbonate sheets. One of those areas was towards the right-hand side of the patio roof, and the other was towards the left-hand side.[3]
[3] Primary decision [16].
Skylights in commercial premises normally have wire mesh installed on their underside as a safety barrier with the aim of preventing persons who may fall through them falling further to the ground. The skylights at the workshop did not have mesh fitted under them. During the storm, hailstones penetrated the skylights, leaving numerous holes in them.[4]
Contracting arrangements
[4] Primary decision [17].
After the hailstorm, but prior to 16 April 2010, Mr Bromberger, who was the controlling mind of Pelican,[5] saw an advertisement for Frontline. He contacted Mr Moore, the principal of Frontline, requesting a quote to replace the workshop roof. At that time, Frontline advertised itself as providing roofing services including 'asbestos removal, colour bond and zincalume, tile restoration, asbestos coating, insulation'. By such advertisements, Frontline held itself out as a roof contractor. The advertisements made no reference to Frontline's use of subcontractors.[6]
[5] Primary decision [12].
[6] Primary decision [18].
On or about 16 April 2010, Mr Moore attended the workshop and prepared a rough plan of the roof. That plan had endorsed on it 'damaged sheets on front section, removal and dump old asbestos and install zinc'.[7] Mr Moore subsequently forwarded a copy of that plan to Mr Houghton Senior, the controlling mind of Debri, so that he could measure and provide a quote to Frontline for the roofing work. In effect Debris was sub-contracting to Frontline.[8]
[7] Exhibit 11.
[8] Primary decision [20].
On or about 16 April 2010, Frontline provided a quote[9] for the roofing work which included roof replacement, removing asbestos and installing zincalume and clear sheeting on the front section.[10]
[9] Exhibit 17.
[10] Primary decision [21].
On or about 20 August 2010, Mr Moore, Mr Houghton Senior and Mr Bromberger met with each other and gained access to the roof of 5 Ruse Street, Osborne Park so that they could view the roof of the workshop at 7 Ruse Street. At that meeting, the removal of a large aerial from the workshop roof was discussed, as was the installation of wall flashings.[11]
[11] Primary decision [22].
After that meeting, Frontline provided a further quote to re-roof the workshop,[12] which included roof replacement, removing the asbestos, installing insulating corrugated zincalume sheeting and some clear sheeting on the front patio roof, removing and dumping old material and the provision of special flashings. That revised quote was accepted by CGU, who engaged Frontline to perform those works.[13]
[12] Exhibits 22 and 23.
[13] Primary decision [23].
Frontline then engaged Debri to perform the roofing work and engaged TCH to provide a crane, crane driver and dogman to assist Debri to perform the work.[14]
[14] Primary decision [24].
Prior to the re-roofing work commencing, Mr Houghton Senior performed an additional site visit which involved obtaining more exact roof measurements and preparing a more detailed measurement diagram.[15] Mr Houghton Senior then sent his materials order to a supplier and the materials were supplied to him on the account of Frontline.[16]
[15] Exhibit 10.
[16] Primary decision [25].
After discussions with Mr Moore, Mr Bromberger moved his business from the workshop to 5 Ruse Street so that the re-roofing work could be carried out at the workshop.[17]
[17] Primary decision [26].
Other than engaging TCH to assist Debri, Frontline left the re-roofing work entirely up to Debri. Frontline provided no instructions as to how Debri was to perform the work nor did Frontline provide any instructions in relation to safety issues. Frontline essentially advertised for work, gave quotes and then subcontracted the work out. Frontline did not perform any roofing work itself.[18]
[18] Primary decision [27] - [28].
Debri's team was experienced and competent. Mr Houghton Senior had over 30 to 40 years' experience. Mr Houghton Junior, who worked on the site at the time of the accident, had worked for approximately six or seven years as a roofing contractor.[19]
[19] Primary decision [29].
Frontline was aware that the skylights required replacing.[20] Mr Bromberger was aware that Mr Houghton Senior would be the one carrying out the roofing work.[21]
Attendance at site by the roofing team
[20] Primary decision [30].
[21] Primary decision [31].
On 20 September 2010, Debri's team attended the site to commence work at about 7.00 am to 7.30 am. The team consisted of four persons: Mr Houghton Senior, Mr Houghton Junior and two others.[22]
[22] Primary decision [32].
All four members of the roofing team performed a job safety evaluation by walking around the site, examining the workshop and underneath its roof. A job safety evaluation form[23] was completed by Mr Houghton Junior. That form identified the potential safety hazards as the rusty sheets on the roof access and the skylights on the patio roof. The form was endorsed 'Be aware'. The team identified an appropriate way to access the roof from a ladder. Mr Houghton Senior also identified the roof's strong point, which was supported by metal trusses, as the area where the removed asbestos was to be stacked and wrapped before being removed by the crane. He also identified a safe manner for the roofing team to perform their work.[24]
[23] Exhibit 165.
[24] Primary decision [34].
The roofing team were aware that a crane, crane driver and dogman (the crane team) would be provided to assist them and would attend later that day. They were not involved with organising the crane team, which was left to Frontline.[25]
[25] Primary decision [36].
Mr Houghton Senior placed signs marked 'asbestos' and barrier tape around the area so that only authorised persons could come onto the site and commence work. His team then attached the ladder to the patio roof to provide access and went up the ladder onto the roof and started removing asbestos from the sawtooth roof. As they removed the asbestos they pulled it to the roof's strong point, which was near the air conditioning unit, and stacked and wrapped it into packs ready for removal by the crane. The team continued to work in this way for around 2 - 3 hours before the crane arrived.[26]
Attendance at site by the crane team
[26] Primary decision [37].
Upon the crane's arrival, Mr Houghton Senior removed the tape barriers to allow access to the crane and then immediately reinstated those barriers. He advised the crane driver that he wished to stack, wrap and remove one roofing pack at a time, even though it would take longer, to ensure that there was only the weight of one pack at any time on the roof's strong point.[27]
[27] Primary decision [39].
Upon attending the site, neither the crane driver nor Mr Coote sought any information from Debri about the state of the roof or performed any job safety analysis that involved examining the roof.[28]
[28] Primary decision [40].
When Mr Coote first stepped on the roof, Mr Houghton Senior told him to watch out for the skylights and to walk straight from the ladder across the patio roof to an area on the main roof near the air conditioning unit where the asbestos was being stacked and wrapped before removal by the crane and then to turn and walk along the main roof line to the parapet wall to the area where the crane was landing the new sheets.[29]
[29] Primary decision [43], [55].
On one occasion when Mr Coote was on the roof, he started to veer off slightly toward the skylight so Mr Houghton Senior yelled out to him 'stay on the base come straight towards the asbestos sheets' which were stacked over near the air conditioning unit on the roof's strong point and 'don't go off to the side'.[30]
[30] Primary decision [45], [56].
On another occasion, Mr Houghton Senior saw Mr Coote come up the ladder and walk directly over to the parapet wall, walking across the skylight in the process. Both Mr Houghton Senior and Mr Houghton Junior reprimanded Mr Coote for walking across the skylight.[31]
[31] Primary decision [46], [50] - [52], [57].
On another occasion, Mr Houghton Junior observed Mr Coote jump across the skylight.[32]
The fall
[32] Primary decision [50], [59].
Mr Coote fell through the skylight on the right hand side of the patio roof[33] shortly after he landed a load on the roof. In the process of unslinging the load, or shortly after he unslung the load, Mr Coote either stumbled or made a half turn and stepped back onto the skylight. On the occasion he fell, Mr Coote stepped onto the skylight inadvertently, due either to his keen desire to get on with the job or after becoming distracted having experienced some difficulty with the unslinging of the load.[34]
[33] The relevant skylight is depicted in Exhibit 187.
[34] Primary decision [58].
Immediately before he fell through the skylight, Mr Coote was performing his role as a dogman in guiding a load from the ground to the roof.[35]
[35] Primary decision [66].
The following day, the damaged skylight was removed and replaced with a new skylight and safety mesh was installed under it. The cost of the safety mesh was approximately $100.[36]
Risk assessment and training
[36] Exhibit 34, Primary decision [61].
The roofing team was not aware that Mr Coote would come onto the roof until he set foot on it. Mr Houghton Senior considered that he only had control of the roofing team who worked for him. Mr Coote was not part of the roofing team and Mr Houghton Senior assumed that, as Mr Coote was a licensed dogman, he knew the safe way to perform his job.[37]
[37] Primary decision [62].
TCH did not inspect or perform any safety assessment on the site prior to the arrival of the crane. Nor did it give any instructions or training to Mr Coote in relation to the work to be performed at the workshop. TCH's standard safety analysis involved keeping a written plan on the wall in their premises and another in the cab for the crane driver. TCH's standard safety assessment or plan did not involve the crane driver or dogman or anyone else on behalf of TCH visiting the site to identify potential hazards either before or after the crane arrived on the site.[38]
[38] Primary decision [63].
Frontline was the principal contractor. Mr Bromberger contacted Frontline to repair the roof. Mr Moore met Mr Bromberger on site. Frontline prepared a rough plan of the roof for Debri. Frontline provided quotes to Pelican's insurance company, coincidentally CGU, which authorised Frontline to proceed. Frontline engaged independent contractors to perform the work. Frontline organised materials for Debri. Frontline engaged Debri to re-roof the premises and TCH to provide a crane, a crane driver and a dogman to assist in that work. Frontline instructed Debri when to start the work.[39]
[39] Primary decision [72].
Frontline was aware that:
(1)there were damaged skylights on the patio roof;[40]
(2)there would be roofing contractors on site and members of that team would be on the roof;[41]
(3)a crane, crane driver and a dogman were assisting the roofing team;[42] and
(4)the re-roofing work entailed lifting material from the ground onto the roof and from the roof onto the ground.[43]
[40] Primary decision [89], [97].
[41] Primary decision [90].
[42] Primary decision [90].
[43] Primary decision [90]
Roofing contractors do on occasions sling loads themselves. Whilst it is not common for dogmen to go on the roof, dogmen do go onto roofs.[44]
[44] Primary decision [95].
Trial judge's approach
Negligence
The trial judge found that Frontline owed Mr Coote, who was engaged in the activity that Frontline organised, a duty to use reasonable care in organising the activity to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in that activity.[45] The risk of harm which the trial judge identified was the risk that a person engaged in the re-roofing work would walk on the damaged skylight, fall through it and sustain serious injury.[46]
[45] Primary decision [73], [85].
[46] Primary decision [86].
The trial judge found that:
(1)The damaged skylight was an obvious danger;[47]
(2)It was foreseeable that a dogman may go onto the roof to perform his task of slinging loads or guiding the crane;[48]
(3)If a dogman is on the roof landing materials and the roof has a damaged skylight on the flat patio part of the roof, it is foreseeable that through inadvertence, accident or inattention the dogman may walk on that skylight;[49] and
(4)If a dogman walks on a damaged skylight he may fall through the skylight and fall to the ground some 3 m below and sustain serious injury.[50]
[47] Primary decision [88].
[48] Primary decision [97].
[49] Primary decision [98].
[50] Primary decision [99].
The trial judge found that there was no failure to take reasonable care in the engagement of Debri and TCH. Both were competent to control their own systems of work.[51] However, in the trial judge's view, the circumstances made it necessary for Frontline to retain and exercise a supervisory power to the extent of ensuring that the skylights were made safe by either covering them (with planks or temporary sheeting) or installing mesh over or under them to prevent workers falling through the skylight to the ground below.[52] The trial judge found that the risk of harm was not insignificant, but rather was a moderate risk in view of the size and position of the damaged skylights.[53] In the trial judge's view, a reasonable person in Frontline's position would have taken precautions by ensuring that the skylights were either planked over, or would have installed wire mesh under or over them. This would have prevented the harm suffered by Mr Coote.[54]
Occupier's liability
[51] Primary decision [102].
[52] Primary decision [103] - [104], [110].
[53] Primary decision [112] - [114].
[54] Primary decision [121] - [122].
The trial judge found that Frontline was the occupier of the premises without the need to consider Frontline's conviction of an offence under the Occupational Safety and Health Act 1984 (WA).[55] The trial judge found that Frontline was in actual control of the workshop even though it did not direct the activities of the workers at the workplace.[56]
[55] Primary decision [150], [185] - [186].
[56] Primary decision [153] - [156].
The trial judge said that the duty owed under s 5 of the Occupiers' Liability Act 1985 (WA) was to take reasonable care to ensure that Mr Coote would not suffer injury by reason of any danger due to the state of the workshop or any activity being undertaken thereon.[57]
[57] Primary decision [178].
For reasons which reflected the negligence finding, the trial judge concluded that Frontline failed to take reasonable care in not ensuring that the skylights were made safe by either covering them (with planks or temporary sheeting) or installing mesh above or below them to prevent a person falling through the skylight to the ground below.[58]
[58] Primary decision [180].
The trial judge held that Frontline's failure to cover or instal mesh to the skylights caused the harm to Mr Coote.[59]
Breach of statutory duty
[59] Primary decision [184].
The trial judge did not find it necessary to determine the claim based on Frontline's breach of the Occupational Safety and Health Regulations 1996 (WA).[60]
Relationship between Mr Coote and TCH
[60] Primary decision [208].
The trial judge found that Mr Coote was an employee, rather than an independent contractor, of TCH.[61]
Apportionment
[61] Primary decision [257].
The trial judge took the view that the primary obligation to Mr Coote rested with TCH, as his employer.[62] The trial judge concluded:[63]
TCH knew of Mr Coote's limited experience. He was injured in the course of his normal duties. TCH sent him to the site knowing it was going to be re‑roofed and knowing that this would involve landing and removing materials on the roof. They ought to have known that in those circumstances it was reasonably foreseeable that to perform his job he would go onto the roof. They failed to provide any training. They failed to carry out any site inspection. They gave Mr Coote no specific instructions and left it entirely for him to determine whether to go onto the roof. Their system of work in my view was unsafe.
On the other hand, Frontline was the occupier of the premises. They were aware of its dangerous state. They had primary responsibility for the premises. They drew the danger to the attention of [Debri]. They did not draw the danger to TCH's attention.
However, the cause of the fall was not Mr Coote's lack of knowledge of the danger. It had been pointed out to him by the roofing team. The cause of the fall was his presence on the roof whilst the skylight was unsafe and inadvertently walking on the damaged skylight whilst performing his duty.
TCH did not provided any instruction to Mr Coote as to what to do in circumstances where he found the roof was in a dangerous state or if others pointed out potential dangers to him. On the other, hand Frontline had not issued any instructions to [Debri] to make the roof safe.
In those circumstances I would apportion liability as to 40% to Frontline, 60% to TCH.
[62] Primary decision [261].
[63] Primary decision [262] - [266].
The trial judge said that he would have apportioned liability in the same manner had Mr Coote been an independent contractor, rather than an employee, of TCH.[64]
[64] Primary decision [271].
Grounds 4, 5 and 7: challenges to factual findings
It is convenient to begin by considering the grounds of appeal which attack various findings of fact made by the trial judge.
General principles in dealing with challenges to findings of fact
The principles governing challenges to findings of fact on appeal in civil proceedings were summarised by Newnes and Mitchell JJA in Proudlove v Burridge.[65] We adopt that summary without repeating it.
Ground 4: knowledge of engagement of dogman to assist
[65] Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257 [123] - [127].
Ground 4 contends that the trial judge erred in finding that, at the material time, Frontline knew that a crane, a crane driver and a dogman were assisting the roofing team provided by Debri, in performing the roofing work on the premises, when there was no evidence of that fact.
The challenged finding appears in the following passage of the trial judge's reasons:
Frontline were aware that there would be roofing contractors on site and members of that team would be on the roof. Frontline was also aware that a crane, crane driver and a dogman were assisting the roofing team. Frontline were aware that the re-roofing work entailed lifting material from the ground onto the roof and from the roof onto the ground. [90] (emphasis added)
Paragraph 10 of TCH's Statement of Claim pleaded that Frontline engaged TCH 'to provide a crane, a crane operator and a dogman to assist Debri with its work' on the roof.[66] That aspect of the pleading was not admitted, but was not denied, in CGU's Defence.[67] However, par 4 of CGU's opening submissions indicated that:[68]
The evidence will also be that, although Frontline did none of the roofing work itself, it arranged and paid for TCH to provide, on the first day of the roofing work, a crane, a crane driver and a dogman to assist Debri with the roofing work … (emphasis added)
[66] BAB 59.
[67] Par 8(b) of the Defence (BAB 68).
[68] BAB 80.
In its opening oral submissions, TCH's counsel said:[69]
And although it's not clear from the defence, as I understand it, it's common ground that TCH, Terry's Crane Hire, was the entity that Frontline Roofing engaged to assist Debri with the reroofing by providing a crane, a crane operator and a dogman, Mr Coote, for the purpose of taking asbestos sheets off the roof of the premises and raising new sheets onto the roof.
[69] Trial ts 29 - 30.
That statement was not subsequently contradicted by CGU's counsel. We do not accept CGU's submission in the appeal that the point was taken in closing submissions at trial.[70] CGU's closing submissions at trial contended that Debri and its officers did not know that a dogman would be associated with the crane.[71] However, that submission did not deny that Frontline, which had engaged the crane team, knew that a dogman would be on-site. Later, CGU submitted to the trial judge that there was no evidence that Frontline, through Mr Moore, was aware that the dogman would come onto the roof, and no evidence that he knew about the state of the skylights.[72] However, counsel for CGU did not positively submit that Frontline did not know that it had engaged a dogman to attend the site.
[70] Appeal ts 40 - 41.
[71] Trial ts 244 - 245.
[72] Trial ts 253.
The evidence of the booking with TCH was given by one of its officers, Mr Rylance. Understandably, Mr Rylance was unable to recall the details of the booking, which was made by telephone. However, the booking form that he completed indicated that a crane, crane driver and dogman had been booked.[73] Mr Houghton Senior also gave evidence that it was decided that a crane and dogman were needed 'right back when we first looked at the job' and that Mr Moore organised the crane.[74]
[73] Trial ts 176 - 178; Exhibit 26 (GAB 14).
[74] Trial ts 126 - 127.
It was open to the trial judge to proceed on the basis that it was common ground that Frontline had booked a crane, crane driver and dogman from TCH. The evidence referred to at [54] above left open the inference that Frontline had booked a dogman. Plainly, if Frontline had hired a dogman then it must have known that a dogman would be on site.
In any event, success on this ground would not lead to success in the appeal. Even if there was not a dogman specifically engaged for the work, someone would have needed to do the work done by a dogman in order to complete the re‑roofing, and that person would have been exposed to the hazard of falling through the skylight.
Ground 5: foreseeability that a dogman may go onto the roof
Ground 5 contends that the trial judge erred in finding that it was reasonably foreseeable by Frontline that Mr Coote would climb onto the roof to do his work as a dogman.
The challenged finding was made by the trial judge in the following passage:
In this case roofing materials were being landed on and dispatched from the workshop roof. Mr Coote's job was to sling and unsling those loads and guide the crane driver in manoeuvring those loads. In those circumstances I find it was foreseeable that a dogman may go onto the roof to perform his task of slinging loads or guiding the crane. Frontline ought to have known that. [97]
In assessing this finding, the nature of the concept of foreseeability in the context of breach of duty must be kept in mind. To say that it was foreseeable that a dogman may go onto the roof is not to say that the prospect of him doing so was probable or even likely. As Mason J noted in a well-known passage of Wyong Shire Council v Shirt:[75]
A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
Later, Mason J observed that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.[76] The applicability of these observations when assessing whether there has been a breach of a duty of care is well established.[77]
[75] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47.
[76] Shirt (48).
[77] See, for example, Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44 [19], [33]; Hunter Health District v McKenna [2014] HCA 44; (2014) 253 CLR 270 [30].
Once the trial judge's finding of foreseeability is understood as referring to foreseeability in the sense explained above, the finding that it was foreseeable that the dogman may go on the roof is unassailable in the circumstances of this case. Frontline knew that a dogman would be on site. It knew that slinging and unslinging loads was part of the dogman's work. It knew that loads were being moved to and from the roof (indeed this was the very reason that Frontline hired the crane). It therefore knew that somebody on the roof would need to sling and unsling the loads. The prospect that the dogman may go onto the roof to sling or unsling the loads or guide the crane cannot be regarded as far-fetched or fanciful in these circumstances. The risk was real and therefore foreseeable.
The evidence as to the expectations of Mr Brown and Mr Houghton Senior on which CGU relies, to which the trial judge referred,[78] did not preclude his Honour's conclusion that it was foreseeable that the dogman would go onto the roof to do his work.
[78] Primary decision [95] - [96].
There is no merit in ground 5.
Ground 7: knowledge of danger
Ground 7 contends that the trial judge erred in fact in finding that Frontline knew of the danger posed by the skylights on the roof.
This finding appears in the following passage of the trial judge's reasons:
Frontline was aware that there were damaged skylights on the patio roof. They were noted by Mr Moore on exhibit 11 and the various photographs being exhibits 187, 190, 193, 194, 195 and 196 shows the skylights were weather affected and damaged by hailstones. Frontline was aware that the job description included replacing the skylights. [89]
The trial judge repeated his finding that Frontline knew that there were damaged skylights in the context of finding that it was foreseeable that the dogman would go onto the roof.[79] The trial judge later said:
The skylights were a danger on the roof. Frontline was aware that [Debri] knew of the skylights as it had drawn them to their attention on exhibit 10 and was aware they had inspected the roof at the meeting. [106]
[79] Primary decision [97].
Exhibit 11 is a rough plan of the roof drawn by Mr Moore for the purposes of quoting for the work.[80] The plan notes the area of the roof, the location of a dividing wall and indicates the position of the damaged skylights with arrows accompanied by a note:
Damaged sheets on front section
[80] GAB 9.
The quotes provided by Frontline to Pelican and CGU (as insurer of Pelican) state that the quoted work '[i]ncludes clear sheeting on front section as discussed'.[81] Photographs taken after the accident show that the skylights, and their damaged and unmeshed condition, were readily apparent from the floor of the workshop.[82]
[81] Exhibit 17 and 22 - 23 (GAB 11 - 13).
[82] Exhibits 187, 190, 193 - 196 (GAB 33 - 38).
Mr Moore did not give evidence at trial, and there was no direct evidence of him observing the damaged skylights during the two occasions on which he visited Pelican's premises. However, it may readily be inferred from the evidence noted above that Mr Moore must have observed the damaged skylights, with the consequence that, through him, Frontline was aware of their existence. In particular, the fact that Mr Moore drew and labelled the damaged skylights on Exhibit 11 and quoted for their replacement is compelling evidence that he knew of their existence and condition.
Once the location of the damaged unmeshed skylights was appreciated, the danger that they posed to a person working on the roof was, as the trial judge found, obvious.
There is no merit in ground 7. In any event, success on that ground could not lead to success in the appeal. If Frontline was under the duty which the trial judge identified, then its failure to inspect the skylights and consequent ignorance could not be relied on as discharging its duty.
Grounds 1 - 3: duty and breach
We now turn to consider grounds of appeal 1 - 3, which challenge the trial judge's conclusion that Frontline breached a duty of care which it owed to Mr Coote.
Nature of the duty
The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.[83] The relevant principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd,[84] in the passage quoted by the trial judge:[85]
An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility. (citations omitted)
[83] Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 [20].
[84] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 47 - 48; see also, to similar effect, Mason J at 31.
[85] Primary decision [70].
The duty imposed on a principal for the benefit of an independent contractor is to be contrasted with the more stringent non-delegable duty owed by an employer to its employees to ensure that reasonable care is taken for their safety.[86]
[86] Leighton Contractors [21].
However, as CGU's counsel accepted,[87] the examples given in Stevens of when a duty may arise are not exhaustive. As Newnes JA, with whom Pullin and Buss JJA agreed, noted in Anyco Pty Ltd v Kleeman:[88]
It is not necessarily the case, however, that the circumstances referred to in [Stevens] are exhaustive of the circumstances in which liability may be found on the part of a principal or head contractor. As Ipp JA pointed out in Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, the nature and extent of the duty of care must be established by a reference to the general law of negligence and the examples given in Stevens are not exhaustive. Ipp JA (with whom Mason P and McColl JA agreed) said:
Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens …) such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present. [84]
The duty found in this case
[87] Appeal ts 5.
[88] Anyco Pty Ltd v Kleeman [2008] WASCA 30; [2008] Aust Torts Reports 81-933 [43].
As noted above, in the present case, the trial judge found that Frontline was under a duty to use reasonable care in organising the activity of re‑roofing Pelican's workshop to avoid unnecessary risk of injury or minimise the risk of injury to those engaged in the activity that it organised. On appeal,[89] CGU does not take issue with the trial judge's finding as to the existence of this duty, or the degree of particularity with which it was expressed.[90] The issues which CGU seeks to raise by grounds 1 - 3 concern the trial judge's finding that Frontline breached that duty, rather than its existence.
Section 5B of the Civil Liability Act
[89] Appeal ts 3.
[90] As to which see Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287 [88].
In addressing the question of whether Frontline breached its duty of care, it is necessary, as the trial judge recognised,[91] to have regard to the terms of s 5B of the Civil Liability Act 2002 (WA), which provides:
[91] Primary decision [77] - [78].
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Section 5B has been construed as setting out preconditions for establishing a breach of duty, rather than the existence of a duty.[92] We agree with the analysis of Buss JA in Smith for reaching that conclusion.[93]
[92] Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275 [48]; Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217 [70] - [83]; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 (2009) 239 CLR 420 [27].
[93] Cf Southern Properties [71].
The questions posed by s 5B(1), and the considerations referred to in s 5B(2), are to be answered and assessed prospectively and not with the wisdom of hindsight. In particular, the precautions which a reasonable person would have taken are to be assessed before the accident began. The court must look forward to identify what a reasonable person in Frontline's position would have done, not backward to identify what would have avoided the injury to Mr Coote.[94]
[94] Adeels Palace [31]; State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57] - [58].
In the present case, the trial judge identified the risk of harm as the risk that a person engaged in the re-roofing work would walk on the damaged skylight, fall through it and sustain serious injury.[95] As noted above, the trial judge found the risk to be a foreseeable moderate risk of very serious harm, and that a reasonable person in Frontline's position would have taken the reasonable precaution of ensuring that planks, temporary sheeting or mesh were placed across the skylights. The trial judge found that the burden of taking that precaution was not high, as both installing mesh and planking were easy and inexpensive.[96] Taking that precaution would not adversely affect the high social utility of re‑roofing the workshop.[97]
Grounds 1 and 2: supervision
[95] Primary decision [86].
[96] Primary decision [115] - [117].
[97] Primary decision [118].
By ground 1, CGU contends that the trial judge erred in finding that the circumstances made it necessary for Frontline to retain a power of supervision over Debri in the performance of re-roofing work at the workshop. By ground 2, CGU contends that the trial judge erred in finding that Frontline breached the duty of care it owed to Mr Coote by failing to retain a power of supervision over Debri.
These grounds misconstrue the trial judge's reasons for decision. It is true that the trial judge referred to a failure by Frontline to retain or exercise a supervisory power. However, when the trial judge's reasons are read as a whole, it is clear that his Honour is not referring to a requirement that Frontline have a presence on-site monitoring and directing the work being undertaken by officers of Debri. Rather than identifying any separate requirement for supervision, the trial judge identified the breach as a failure to exercise a supervisory power to ensure that the damaged skylights were made safe by either covering them or installing mesh over or under them. That is, the essence of the breach found by the trial judge was a failure by Frontline to ensure that the workshop was made safe, by covering or installing mesh over or under the skylights, before work began.
The trial judge's first reference to a supervisory power appears in the following passages:
However, the circumstances made it necessary for Frontline to retain and exercise a supervisory power.
I find that there was a failure to take reasonable care by Frontline in not retaining a supervisory power. There was a need for Frontline to retain supervising power to the extent of ensuring that the skylights were made safe. [103] - [104] (emphasis added)
While the first of these paragraphs contains a general statement, the emphasised words of the second paragraph qualifies that generality.
Later, the trial judge said:
Frontline had a duty of care to exercise a supervisory power over the works organised to the extent of ensuring that the skylights were made safe for the independent contractors they invited to the workshop and their employees or subcontractors by either covering them (planks, temporary sheeting) or meshing them to prevent any inadvertent contact between the dogman and the skylight. [110] (emphasis added)
At this point the trial judge further confines the nature of the breach, which is a failure to ensure that the skylights were made safe by either covering them or installing mesh over or under them. That is confirmed by the trial judge's statement of conclusion that:
Frontline breached its duty of care in organising the activity to avoid unnecessary risks of injury to those engaged in the activity by its failure to exercise a supervisory power over the works by ensuring that the skylights were made safe by either covering them (planks, temporary sheeting) or meshing. [130] (emphasis added)
That conclusion was restated by the trial judge in dealing with the claim under the Occupiers' Liability Act, when his Honour referred to:
my findings at common law that Frontline should have kept a supervisory power to the extent of ensuring that the damaged skylight was covered over or meshed … [205]
That is, the breach of duty identified by the trial judge was not a failure to supervise but was rather a failure to ensure that the skylights were made safe by covering or installing mesh over or under them before work began. Grounds 1 and 2 are not established because they presuppose a finding that the trial judge did not make. Therefore, CGU's challenge to the trial judge's finding of breach of duty must stand or fall on ground 3.
Ground 3: failure to mesh or cover the damaged skylights
By ground 3, CGU contends that the trial judge erred by finding that Frontline breached its duty by failing to ensure that planks were placed across the skylights, or to ensure that wire mesh was placed under or over the skylights.
In our view, the trial judge was correct, for the reasons which his Honour gave, to conclude that a reasonable person in Frontline's position would respond to the foreseeable and not insignificant risk of a person falling through the skylights by covering or installing mesh over or under the skylights. The preconditions in s 5B(1) were satisfied in a manner which, in the circumstances of this case, established Frontline's breach of the duty of care it owed to Mr Coote.
A critical passage of his Honour's reasons is set out below:
Frontline organised the job. It knew of the danger, it knew or ought to have known that two trades would be on the roof. They knew or ought to have known that a crane would be lifting materials on and off that roof. They knew or ought to have known that one trade had no control power over the other. The work of the two contractors was [inextricably] bound up. [108]
At the hearing of the appeal, counsel for CGU indicated that only the second sentence in this paragraph was challenged by ground 3.[98] We have rejected that challenge in the course of dealing with grounds 4, 5 and 7.
[98] Appeal ts 8 - 9.
The trial judge then made the following observations, with which we respectfully agree:
It ought to have been obvious to anyone that whilst people were on the roof working there was always a risk that due to inadvertence, particularly whilst performing a task of either guiding a load on or off the roof or slinging or unslinging that load, that someone on the roof could come into contact with the skylight and fall through it. [109]
In some circumstances, a reasonable person's reaction to a risk of harm may take account of the possibility of thoughtlessness, inadvertence or carelessness on the part of persons to whom a duty is owed. That is a well-established aspect of the duty owed by an employer to its employee.[99] While the duty owed by Frontline was of a less stringent character, as a matter of fact we agree with the trial judge's view that, in the circumstances of this case, a reasonable person in the position of Frontline would take account of the risk of inadvertent contact with the skylights by a person working on the roof, resulting in such a person falling through the skylight to the ground below
[99] Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12] and cases there cited.
In our view, the trial judge was correct to conclude that a reasonable person in the position of Frontline would have taken steps to ensure that the damaged skylights were covered or mesh was installed above or below them, and that the failure to do so constituted a breach of the duty of care owed by Frontline. Frontline was organising for two different trades - a roofing team and a crane team - to perform the work. Neither team controlled the others' activities or had the right to direct the other as to how work was to be performed. Frontline must have known that workmen engaged by its contractors would be working, and walking on, the roof. There was an obvious hazard of a very serious injury occurring if persons working on the roof inadvertently walked or fell onto the skylights, causing them to fall through the skylights to the ground, and easy and inexpensive means of addressing that hazard. While it may be accepted that a reasonable person in Frontline's position would not have directed the contractors as to the manner in which they performed work in their area of experience, such a person would have made the site safe for the workers in the two separate teams it was engaging, in the manner described above. We do not accept CGU's submission that this involves impermissible hindsight reasoning.[100]
[100] Appeal ts 10 ‑ 12.
CGU's case was that it was not foreseeable that anybody other than Debri's employees would be on the roof and it was, therefore, reasonable for Frontline to assume that Debri would take all precautions in respect of its employees.[101] That case fails with the rejection of the challenge to the trial judge's finding that it was foreseeable that a dogman may go onto the roof to perform his task of slinging loads or guiding the crane.
[101] Appeal ts 17.
For these reasons, ground 3 is not established.
Ground 8: Occupiers' liability
Given the above conclusion that the trial judge made no error in finding that Frontline was liable in negligence, it is strictly unnecessary to determine ground 8. Ground 8 contends that the trial judge erred in finding that Frontline was in control of the premises, and was therefore an occupier of premises which owed the duty prescribed by s 5 of the Occupiers' Liability Act.
Given the above conclusions, ground 8 can be dealt with briefly, for the sake of completeness.. The finding that Frontline had control of the workshop was based on evidence that it arranged for Pelican to vacate the workshop and invited the trade teams that it engaged, neither of whom understood themselves to control the site, to perform the relevant work.[102] In addition, as TCH observed,[103] the removal of asbestos necessitated Frontline controlling and excluding others apart from its contractors from the site. The evidence to which CGU refers, concerning the delegation of the re‑roofing work to Debri, does not deny that Frontline was in actual control of the site. The trial judge's conclusion that Frontline was in actual control of the workshop site has not been shown to be in error.
[102] Primary decision [155].
[103] Second respondent's submissions, par 32(c).
Ground 9: apportionment
By ground 9, CGU contends that the trial judge erred in apportioning liability for Mr Coote's damages 40% as to Frontline and 60% to TCH. It contends that this apportionment was outside the range of a sound discretionary judgment, and that the trial judge ought to have apportioned a greater part of the liability to TCH.
CGU's submissions in support of this ground do not take account of the broad nature of the discretion conferred on a trial judge in apportioning liability under s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA). As the High Court noted in Pennington v Norris:[104]
It is clear that the [cognate Tasmanian legislation] intends to give a very wide discretion to the judge or jury entrusted with the original task of making the apportionment. Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged. (citations omitted)
[104] Pennington v Norris (1956) 96 CLR 10, 15 - 16.
The challenges facing ground 9 are also reflected in the following observations of the High Court in AV Jennings Construction Pty Ltd v Maumill:[105]
The appellants do not press any challenge to the learned judge's findings, except his finding on the question of apportionment of responsibility; but that finding and the portion of the judgment which is based upon it they attack as unwarranted by the evidence. Such a finding, it must be remarked at once, is not lightly reviewed by a court of appeal. As Lord Wright observed in British Fame (Owners) v. Macgregor (Owners) ((1943) A.C. 197, at p. 201), it is a finding upon a question 'not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.' Accordingly re‑consideration of the question in the exercise of an appellate jurisdiction is subject to the limitations imposed by the principles which govern all appeals against judgments given in the exercise of discretions, principles which this Court has stated repeatedly in recent cases. Consequently, as Lord Simon remarked in the case just cited at pp. 198‑199, 'the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge.'
[105] AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100, 101, cited by this court in Scope Machinery Pty Ltd v Ross [2009] WASCA 100 [62] - [63].
In the present case, we have rejected the challenges to the trial judge's factual findings. We are far from satisfied that the trial judge's conclusion as to the comparable culpability of Frontline and TCH on the facts found was unreasonable or plainly unjust. Of the two entities, Frontline had primary responsibility for the state of the premises, while TCH had primary responsibility for ensuring that Mr Coote carried out his tasks at the site in a safe manner. CGU has not identified any proper basis for this court to interfere with the trial judge's decision to allocate responsibility between Frontline and TCH on a 40%:60% basis. We reject CGU's submission[106] that the apportionment made by the trial judge is so unreasonable as to manifest error in the way explained in House v The King.[107]
[106] Appeal ts 24.
[107] House v The King (1936) 55 CLR 499, 504 - 505.
Conclusion and orders
For the above reasons, none of grounds 1 - 5 or 7 - 9 are established. Ground 6 was abandoned at the commencement of the hearing of the appeal.[108] Given the dismissal of all of the grounds of appeal, it is unnecessary to deal with TCH's notice of contention. The appeal should be dismissed.
[108] Appeal ts 2.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL17 JULY 2018
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