Chandley v Roberts
[2005] VSCA 273
•14 November 2005
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 evidence at the trial. The evidence of the circumstances of the accident was the evidence given by Mr Roberts, which was unchallenged. Mr Chandley and Mr Roberts were installing plaster sheeting in accordance with their usual practice, with the assistance of a third man, Bradley Moore (an employee of Mr Roberts). In order to place sheets at the top of the northern wall and on the first-floor ceiling in the vicinity of a vacant stairwell, Mr Chandley and Mr Roberts erected scaffolding, using Mr Roberts’ planks and trestle and an extension ladder belonging to Mr Chandley.
Chandley and Roberts were on the first floor of the building. They did not discuss the construction of the scaffolding before commencing. Chandley descended to the ground floor and placed his ladder against the northern wall, near the corner with the western wall. Roberts, on the first floor, placed his trestle on the southern side of the open stairwell. He rested a 4.2-metre plank of wood on the trestle at one end, and handed it to Mr Chandley, who had climbed the ladder, and who rested the other end on a rung of the ladder so that it formed a horizontal plane across the open stairwell in a north-south direction. Mr Roberts (alone or with Mr Moore’s assistance) then placed 3-metre planks in an east-west direction, resting on the 4.2-metre plank at the western end and on the landing at the eastern end. He gave evidence that he may have rested the planks on his toolbox at the eastern end, to make the planks totally horizontal, but he was not sure.
At about 2:00 pm, Mr Chandley, Mr Roberts and Mr Moore were installing a plaster sheet on the ceiling. To complete the installation, Mr Roberts “hopped” onto the 4.2-metre plank. Facing the north wall, he inserted a screw with his screw gun. As he began to insert a second screw, without changing position or leaning in any way, the plank began to move as a result of the ladder moving across and down towards the western wall. Mr Roberts recalled making a slight turn with his body but not his feet. He recalled a floating sensation. His next memory was waking up in hospital.
Mr Roberts alleged that the ladder had moved because Mr Chandley had failed to secure it with a “chock”, that being a piece of timber nailed to the floor. He had expected Mr Chandley to have secured the ladder, as this was the practice between them when erecting scaffolding in this way. Roberts had not put up scaffold of this nature without securing the ladder. At paragraph 23 of her reasons, the learned trial Judge said this:
"In these circumstances the proper inference to draw is that the system of work and the system of erecting scaffolding was as alleged by the plaintiff and the method of securing the scaffold ladder was accepted practice at least as between the plaintiff and the defendant at the relevant time."
In my opinion that inference was open on the evidence before the learned trial Judge. As was pointed out by Justice Nettle in argument, there being evidence to support that inference, it is the more readily drawn because of the failure of the defendant to give evidence.
The evidence that Mr Chandley had failed to secure the ladder was not challenged. Under cross-examination, Mr Roberts admitted that he did not check to see if the ladder was secured. Instead he “expected it to be safe”,[3] assuming Mr Chandley would have secured it, especially given that Chandley, himself, later climbed the ladder. Roberts also conceded in cross-examination, quite properly, that the danger of not securing the ladder was “obvious and apparent”.[4]
[3]T69.
[4]T68.
The injuries sustained by Mr Roberts included head and facial injuries, spinal cord injuries, anxiety and depression, and pain and shock. He has not worked since the accident because of these injuries.
Proceedings
By writ dated 17 September 2003, Mr Roberts alleged that his injuries were caused by the negligence and/or breach of statutory duty of Mr Chandley. The matter went to trial on 8 and 9 March 2005. Mr Roberts and his wife were the only witnesses called.
On 17 March 2005, the learned trial Judge entered judgment in Mr Roberts’ favour and awarded him damages of $299,255.00 with interest of $9,943.44. She found that Mr Chandley owed a common law duty of care towards Mr Roberts by virtue of their relationship as principal and sub-contractor, and by virtue of Mr Chandley’s responsibility, on that occasion, for the system of work for securing the scaffold ladder. Her Honour found that Mr Chandley owed Mr Roberts a duty -
“to take care not to subject the contractor to the risk of injury posed by a scaffold structure and ladder over which [Mr Chandley] retained control at the relevant time”.
Her Honour found that this duty was breached. That finding is not challenged by Mr Chandley. Her Honour also found that Mr Chandley had breached his duty towards Mr Roberts under the Occupational Health and Safety Act 1985 and in particular under Reg.715 of the OHS (Plant) Regulations 1995. Given the breach of common law duty already found, that conclusion, about a breach of statutory duty, did not affect the outcome of the case.
Her Honour then dealt with the question of contributory negligence, noting[5] that “whether there was contributory negligence depends on all the facts of this case”. She expressed her conclusion as follows:
“Having regard to the nature of the duty owed and the long-standing working relationship where Mr Chandley and Mr Roberts worked alongside one another without instruction or direction on the various tasks to be performed in setting up the scaffolding and fixing plaster sheets, I am not satisfied that the failure to check that his principal had completed the task he undertook in the usual and expected way amounts to a failure to take any or any proper care for [Mr Roberts’] own safety.”[6]
[5]at [49].
[6]at [50].
Appeal
By notice of appeal dated 30 March 2005, Mr Chandley challenged two aspects of the judgment, namely –
(a) the finding that Mr Roberts was not guilty of contributory negligence; and
(b)the assessment of damages for future economic loss.
In his outline of submissions, Mr Chandley abandoned the second ground of appeal.
In my opinion, the appeal should be dismissed. My reasons are as follows.
The principal submission of Mr Chandley is that the Judge did not appropriately consider the issues relevant to the issue of contributory negligence. In particular, it is submitted that the learned trial Judge applied a subjective test, rather than an objective one, in determining whether there was contributory negligence. Mr Chandley submits through his counsel that, had the trial Judge appropriately considered the relevant issues, she should have reached the conclusion that Mr Roberts did fail to take reasonable care for his own safety, and that there should be a finding of contributory negligence of between 30 and 50 per cent. Mr Chandley further submits that “[t]he question of contributory negligence did not simply depend on all the facts as suggested.”
Mr Chandley submits that the test of contributory negligence to be applied is an objective one.[7] He argues that an objective test means that “a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained.”[8] He further argues that, in excusing Mr Roberts’ failure to observe that the ladder was not secured “on the basis of his longstanding working relationship with Mr Chandley”, the trial Judge applied a subjective test.
[7]Citing Joslyn v Berryman; Wentworth Shire Council v Berryman (2003) 214 CLR 552 at [32] per McHugh J.
[8](supra) at [39].
In my opinion, this last submission must be rejected. There was no error in the learned trial Judge’s approach to the question of contributory negligence.
The test of contributory negligence is, indeed, an objective one. As McHugh, J. explained in Joslyn[9] -
“Contributory negligence, like negligence, eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.”[10]
[9](supra) at [32].
[10]Citing Glasglow Corporation v Muir [1943] AC 448 at 457.
As a result, the plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff’s injury or damage.[11] In determining whether the plaintiff failed to take reasonable care for himself, the Court is not limited to what was actually known by the particular plaintiff but must –
“take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care.”[12]
[11]Joslyn at [35].
[12](supra) at [37].
The question remains, nevertheless, what would have constituted the exercise of reasonable care by the plaintiff in the circumstances in which he found himself. To take account of the surrounding circumstances is not in any sense to convert an objective test into a subjective one. On the contrary, in my opinion, those circumstances provide the factual context in which the Court determines what the plaintiff ought reasonably to have done for his own protection. Indeed, it seems to me that that question cannot be answered unless it is set in the factual context of the relevant incident. So it was that in Thompson v Woolworths (Queensland) Pty Ltd,[13] the High Court took into account - in deciding that the plaintiff there had been guilty of contributory negligence - that she was aware of the particular risk, had recorded it in her diary and had made a previous complaint about it.[14] Prior knowledge of the risk was also held to be relevant in Rabay v Bristow,[15] though in the particular case the New South Wales Court of Appeal held that there was no “blameworthy negligence” on the plaintiff’s part, notwithstanding his prior knowledge of the risk.[16]
[13](2005) 214 ALR 452.
[14]at [39]-[41].
[15][2005] NSWCA 199 (15 June 2005).
[16]at [57].
Accordingly, in determining whether a reasonable person in the position of Mr Roberts would have checked to see whether the “chock” was in place, it was in my opinion relevant and necessary for her Honour to take into account, as she evidently did, the following circumstances:
· there was a long-standing system of work in place as between Mr Chandley and Mr Roberts in relation to the use of scaffolding for plaster work;
· one of the elements of the system was the securing of the ladder by a “chock”;
· on the occasion in question, Mr Chandley had assumed responsibility for securing the ladder;
· Mr Roberts had no reason to doubt Mr Chandley’s competence or reliability in this or any other respect.
In my opinion, the elements of the system were so well known to both men that it was reasonable for Mr Roberts on this occasion to assume, without checking, that Mr Chandley had secured the ladder with the “chock”, in accordance with the accepted practice between them. In reaching this conclusion I take into account the obviousness of the risk of injury were the ladder not secured. Accordingly, in my opinion, the learned trial Judge was correct to conclude that –
“the failure [by Mr Roberts] to check that [Mr Chandley] had completed the task he undertook in the usual and expected way [did not amount] to a failure to take any or any proper care for Mr Roberts’ own safety.”
The appeal must therefore be dismissed with costs.
NETTLE, JA: I agree that the appeal should be dismissed. As has been observed, the Judge found that it was a proper inference to draw that the system of work and the system of erecting scaffolding was as alleged by the respondent and the method of securing the scaffold ladder was accepted practice, at least as between the respondent and the appellant, a the relevant time.
That finding has been attacked but it was, in my judgment, a finding open to the trial Judge to make.
The respondent was asked in cross-examination why he had not checked that the ladder was chocked by the appellant and he said "Because he'd done it before and he was on the ladder and I assumed if he was climbing up on the ladder it must be safe." Pressed further as to why he should have made that assumption, he answered: "Well normally that's what you do, that's how you build a scaffold." When it was then put to him that he had a duty himself to ensure that the equipment and structure that he was to use was safe for his use as well as for that of his employer he answered: "Well I expect it to be done properly like it should be and don't go checking everybody's work." Pressed again with the question "But you had a duty to your employee to make sure yourself that it was safe and you did not do that job, did you?" He answered "Well I left it to Kevin". Finally, and perhaps most importantly, when asked whether that meant that he agreed that he did not check to make sure it was safe, he answered: "I did not check it, no, I expected it to be safe." It was not suggested to the respondent in the course of cross-examination that it was unreasonable for him to expect the appellant to make it safe and the appellant chose not to give evidence.
The appellant submitted that, even if it were established that it was the practice to chock the ladder or otherwise make it secure, the respondent was guilty of contributory negligence because of the obviousness of the risk and the relative ease of checking to ensure that it had been chocked. I do not accept that contention as the evidence made plain, the appellant and the respondent had worked together for in excess of 25 years, more or less according to some sort of practice established between them, and on this occasion the respondent was working on the first floor, with responsibility for the scaffold trestle, while the appellant was working on the ground floor, some ten feet below, with responsibility for the scaffold extension ladder. In those circumstances it was, in my view, neither logically to be assume nor reasonably to be expected that the respondent would come down from the first floor or take the obvious risk of looking through the stair void to a point ten feet below to ensure that the chock had been put in place. It was suggested that it would have been enough for him to ask but, in the circumstances of this case, where it appears that the nature of the relationship of some 25 years' duration was informed by a laconical lack of communication, I think that to be unrealistic.
The authorities are clear that, other things being equal, an appellate court should be slow to intervene in a trial Judge's assessment of contributory negligence. It is something which by reason that the trial Judge has seen and heard all of the evidence he or she is ordinarily in a much better position to assess. Perhaps uninstructed as particular circumstances of this case, it might present as surprising that an independent contract plasterer who failed to check the safety of his scaffolding should be held to have acted without contributory negligence. But in the particular circumstances of this case, to which the learned President has referred, I am unable to detect error in her Honour's analysis or otherwise see why this Court should interfere with her assessment.
It is for those reasons that I would dismiss the appeal.
HABERSBERGER, AJA: I agree, for the reasons given by the President and by Nettle, JA., that the appeal should be dismissed.
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