Chandley v Roberts - [2005] VSCA 273

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3721 of 2005

KEVIN CHANDLEY
	Appellant
v.
COLIN EDWARD ROBERTS	Respondent

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JUDGES:	MAXWELL, P., NETTLE, J.A. and HABERSBERGER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2005
DATE OF JUDGMENT:	14 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 273

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Personal injuries – Negligence – Contributory negligence – Sub-contractor and principal – Sub-contracting plasterer injured falling from scaffolding after principal failed to secure supporting ladder – Whether judge erred in not finding contributory negligence – Whether subjective or objective test applied by judge – Judge entitled to take into account surrounding circumstances in applying objective test – No lack of reasonable care by plaintiff in failing to check that ladder secured – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C.J. Blanden	Hunt & Hunt
For the Respondent	Mr J. Kennan, S.C. with Mr P.G. Misso	Petersons

MAXWELL, P.:

The issue in this appeal is whether the learned trial Judge erred in finding that there was no contributory negligence on the part of the respondent, Mr Colin Roberts.

Factual background

Mr Roberts was injured on 31 March 2003 when he fell four metres from a scaffold plank in the course of working as a sub-contracting sheet plasterer. The appellant, Kevin Chandley, is a carpenter/builder. He was the owner of the premises in Kilgour St, Geelong, at which the injuries occurred, and was responsible for the construction of units there.

Mr Roberts was 62 years of age at the time of the accident. He had worked as a plasterer for more than 40 years, and as an independent contractor for more than 25 years. He operated a plastering business in partnership with his wife, who performed the administrative tasks for the business.

Mr Chandley and Mr Roberts had worked together for approximately 30 years in the relationship of principal and sub-contractor. The arrangement between them was that Chandley would buy the plastering sheets, and would then ring Mr Roberts who would attend at the building site. Either was capable of cutting the sheets. They would work together to erect scaffolding and to fix the sheets in place. At times, because of the size of the sheets, a third person would work with them. Mr Roberts would do the “stopping” work, that is, filling gaps and installing cornices.

The Judge accepted that, after 25 to 30 years, Mr Roberts and Mr Chandley worked together “automatically”, without much discussion before or during tasks. [1] Her Honour found:[2]

“At the relevant time [Mr Chandley] (a) was the principal at the workplace; (b) was a tradesman with considerable experience in cutting and hanging plaster; (c) was experienced in erecting the scaffold structures from which the plasterers worked; (d) did not receive or require instruction or direction on the erection of the scaffolding structure or the performance of the work involved in hanging plaster sheets; (e) retained a right to instruct and supervise the sub-contractor.”

[1]at [11].

[2]at [9].

Mr Chandley did not give…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chandley v Roberts

Details

AGLC: Chandley v Roberts [2005] VSCA 273
Case: [2005] VSCA 273
Decision Date: 14 November 2005

CaseChat Overview and Summary

The matter of Chandley v Roberts involved a sub-contractor who was injured while working on a construction site. The sub-contractor, Chandley, had been engaged by Roberts, the principal contractor, to undertake plastering work. While performing the work, Chandley fell from a ladder that had been improperly secured by Roberts, resulting in significant injuries. The case was brought before the court to determine whether the trial judge had erred in not finding Chandley contributory negligent and to ascertain the standard of care applied by the judge in making this determination.

The primary legal issues before the court were whether the trial judge had erred in not finding Chandley contributory negligent for his failure to check if the ladder was secured and whether the judge applied an appropriate test—subjective or objective—in assessing Chandley's actions. Chandley argued that the judge should have applied an objective test and considered his subjective belief that the ladder was secured, while Roberts contended that the judge correctly applied an objective test and took into account all relevant circumstances.

The court held that the judge was entitled to apply an objective test and consider the surrounding circumstances when determining whether Chandley exercised reasonable care. The court found that the judge's assessment of Chandley's actions was not flawed and that there was no evidence suggesting Chandley lacked reasonable care by failing to check if the ladder was secured. The court emphasised that in the context of contributory negligence, the standard is objective and requires an assessment of the reasonable person in the position of the plaintiff. The appeal was dismissed, upholding the trial judge's decision.

No further orders were made by the court beyond the dismissal of the appeal. The decision reinforces the principle that the assessment of contributory negligence is based on an objective standard, considering the reasonable person in the plaintiff's position and the circumstances surrounding the incident.

Orders