Di Vincenzo v McKrill
[2005] WASCA 222
•22 NOVEMBER 2005
DI VINCENZO -v- McKRILL & ANOR [2005] WASCA 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 222 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:63/2003 | 15 SEPTEMBER 2005 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA MILLER AJA | 22/11/05 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAROL ANN DI VINCENZO MARK GREGORY McKRILL PCH HIRE & SALES t/a PERTH CONSTRUCTION HIRE |
Catchwords: | Appeal Appeal against liability and damages Negligence Occupiers' Liability Act 1985 Whether appellant occupier Appellant the holder of ownerbuilder's licence First defendant in proceedings a builder engaged to supervise construction of house Whether builder was in the circumstances the occupier Whether appellant owed duty of care to first respondent Whether duty of care nondelegable Contributory negligence Whether first respondent failed to take care for his own safety when entering building site Damages Assessment of damages for past loss of earning capacity Whether excessive |
Legislation: | Builders' Registration Act 1939 (WA), s 4, s 10 Building Regulations 1989 (WA) Occupiers' Liability Act 1985 (WA), s 2, s 5, s 6 |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Apex Holiday Centre (Inc) v Lynn [2005] WASCA 58 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Australian Safeway Stores Pty Ltd v Zalunza (1987) 162 CLR 479 Cant v Fleay, unreported; FCt SCt of WA; Library No 960381; 18 July 1996 Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563 Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 Donoghue v Stevenson [1932] AC 562 Graham v Baker (1961) 106 CLR 340 Hackshaw v Shaw (1984) 155 CLR 614 Indermaur v Dames (1866) LR1CP 274 Jones v Bartlett (2000) 205 CLR 166 Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298 McKrill v Lincoln Constructions (WA) Pty Ltd & Ors [2003] WADC 84 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Tame v New South Wales (2002) 211 CLR 317 Town of Mosman Park v Tait [2005] WASCA 124 Uzabeaga v Town of Cottesloe (2004) Aust Torts Reports 81-739 Water Board v Moustakas (1988) 180 CLR 491 Barnes & Co Ltd v Sharpe (1910) 11 CLR 462 Barnes v BPG (Business Forms) Ltd [1976] 1 All ER 237 British Railways Board v Herrington [1972] AC 877 Bryant v Fawdon Pty Ltd (1993) Aust Torts Reports 81-204 Coatz v WestCourt Ltd [2003] WASCA 49 Coffs Harbour City Council v Backman (2001) Aust Torts Reports 81-614 Cretazzo v Lombardi (1975) 13 SASR 4 Demczuk v Polish Soc Dom Mikolaja Inc (1987) 46 SASR 223 Fox v Percy (2003) 214 CLR 118 Gould v Vaggelas (1985) 157 CLR 215 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 Johnson's Tyne Foundry Pty Ltd v Maffra Shire Council (1948) 77 CLR 544 Lackersteen v Jones (No 2) (1988) 93 FLR 442 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Pennington v Norris (1956) 96 CLR 10 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Sanderson v Blyth Theatre Company [1903] 2 KB 533 Shorey v PT Ltd (2003) 197 ALR 410 Short v Barrett, unreported; Ct of Appeal of NSW; 5 October 1990 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Suvaal v Cessnock City Council (2003) 200 ALR 1 Thompson v Woolworths (Queensland) Pty Ltd (2005) 214 ALR 452 Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DI VINCENZO -v- McKRILL & ANOR [2005] WASCA 222 CORAM : STEYTLER P
- ROBERTS-SMITH JA
MILLER AJA
- Appellant (Second Defendant)
AND
MARK GREGORY McKRILL
First Respondent (Plaintiff)
PCH HIRE & SALES t/a PERTH CONSTRUCTION HIRE
Second Respondent (Third Defendant)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
Citation : McKRILL -v- LINCOLN CONSTRUCTIONS (WA) PTY LTD & ORS [2003] WADC 84
File No : CIV 3898 of 1997
(Page 2)
Catchwords:
Appeal - Appeal against liability and damages
Negligence - Occupiers' Liability Act 1985 - Whether appellant occupier - Appellant the holder of ownerbuilder's licence - First defendant in proceedings a builder engaged to supervise construction of house - Whether builder was in the circumstances the occupier - Whether appellant owed duty of care to first respondent - Whether duty of care nondelegable - Contributory negligence - Whether first respondent failed to take care for his own safety when entering building site
Damages - Assessment of damages for past loss of earning capacity - Whether excessive
Legislation:
Builders' Registration Act 1939 (WA), s 4, s 10
Building Regulations 1989 (WA)
Occupiers' Liability Act 1985 (WA), s 2, s 5, s 6
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Second Defendant) : Ms A M I Schoombee
First Respondent (Plaintiff) : Mr A S Stavrianou
Second Respondent (Third Defendant) : Mr P V Lansell
Solicitors:
Appellant (Second Defendant) : Dibbs Abbott Stillman
First Respondent (Plaintiff) : Simon Walters
Second Respondent (Third Defendant) : Jackson McDonald
(Page 3)
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Apex Holiday Centre (Inc) v Lynn [2005] WASCA 58
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Australian Safeway Stores Pty Ltd v Zalunza (1987) 162 CLR 479
Cant v Fleay, unreported; FCt SCt of WA; Library No 960381; 18 July 1996
Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563
Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199
Donoghue v Stevenson [1932] AC 562
Graham v Baker (1961) 106 CLR 340
Hackshaw v Shaw (1984) 155 CLR 614
Indermaur v Dames (1866) LR1CP 274
Jones v Bartlett (2000) 205 CLR 166
Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
McKrill v Lincoln Constructions (WA) Pty Ltd & Ors [2003] WADC 84
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tame v New South Wales (2002) 211 CLR 317
Town of Mosman Park v Tait [2005] WASCA 124
Uzabeaga v Town of Cottesloe (2004) Aust Torts Reports 81-739
Water Board v Moustakas (1988) 180 CLR 491
Case(s) also cited:
Barnes & Co Ltd v Sharpe (1910) 11 CLR 462
Barnes v BPG (Business Forms) Ltd [1976] 1 All ER 237
British Railways Board v Herrington [1972] AC 877
Bryant v Fawdon Pty Ltd (1993) Aust Torts Reports 81-204
Coatz v WestCourt Ltd [2003] WASCA 49
Coffs Harbour City Council v Backman (2001) Aust Torts Reports 81-614
Cretazzo v Lombardi (1975) 13 SASR 4
Demczuk v Polish Soc Dom Mikolaja Inc (1987) 46 SASR 223
Fox v Percy (2003) 214 CLR 118
Gould v Vaggelas (1985) 157 CLR 215
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
Johnson's Tyne Foundry Pty Ltd v Maffra Shire Council (1948) 77 CLR 544
Lackersteen v Jones (No 2) (1988) 93 FLR 442
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
(Page 4)
Pennington v Norris (1956) 96 CLR 10
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Sanderson v Blyth Theatre Company [1903] 2 KB 533
Shorey v PT Ltd (2003) 197 ALR 410
Short v Barrett, unreported; Ct of Appeal of NSW; 5 October 1990
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Suvaal v Cessnock City Council (2003) 200 ALR 1
Thompson v Woolworths (Queensland) Pty Ltd (2005) 214 ALR 452
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 5)
1 STEYTLER P: I agree, for the reasons given by Miller AJA, that the appeal should be dismissed.
2 ROBERTS-SMITH JA: I have read the reasons of Miller AJA. I agree with those reasons and have nothing to add.
3 MILLER AJA: This is an appeal from a judgment of Yeats DCJ in the District Court at Perth delivered on 11 April 2003 (McKrill v Lincoln Constructions (WA) Pty Ltd & Ors [2003] WADC 84) when her Honour awarded the first respondent the sum of $97,076 by way of damages for personal injuries sustained when he fell from scaffolding on premises being constructed for the appellant and her husband in a residential street in the suburb of Coolbinia. The incident in which the first respondent was injured occurred on 24 July 1996 when he visited the site to see his brother, who was a roofing contractor at work on the building.
4 When judgment was delivered on 11 April 2003, the learned trial Judge made a number of consequential orders in relation to various contribution proceedings. She also reserved the question of costs. Costs were the subject of a separate order made on 26 May 2003, when the appellant was ordered to pay the second respondent's costs of the action. There was a further order for costs as between the appellant and second respondent in relation to certain costs thrown away.
Grounds of appeal
5 The grounds of appeal are prolix and voluminous. Each ground contains multiple particulars. In all, there are eight grounds of appeal with a total of 40 particulars. It is impossible to reproduce them, but they may be summarised as follows:
(1) The learned trial Judge erred in concluding that the first defendant in the proceedings (Lincoln Constructions (WA) Pty Ltd ("Lincoln")) had not undertaken the supervision of the construction of the premises and the tradesmen working at those premises, whereas in fact Lincoln was an occupier and had control of the premises under construction.
(2) The learned trial Judge erred in concluding that the first respondent was not a trespasser on the premises and that the appellant owed a duty of care to the first respondent in relation to defective scaffolding.
(Page 6)
- (3) The learned trial Judge erred in finding against the weight of the evidence that the appellant did not engage Lincoln as builder nor give it the responsibility for safety issues on site and therefore had not discharged her duty of care as occupier pursuant to s 6 of the Occupiers' Liability Act 1985 (WA).
(4) The learned trial Judge erred in finding that the appellant had failed to meet the required standard of care pursuant to s 5 of the Occupiers' Liability Act.
(5) The learned trial Judge erred in finding that the appellant's breach of her duty of care was causally linked to the first respondent's fall from the scaffolding and his consequential injuries.
(6) The learned trial Judge erred in concluding that there was no contributory negligence on the part of the first respondent.
(7) The learned trial Judge erred in her assessment of damages for past loss of earning capacity.
(8) The learned trial Judge erred in making a Sanderson order pursuant to which the appellant was ordered to pay the second respondent's costs.
The facts
6 The trial before the learned trial Judge occupied nine days of hearing. The evidence at trial was voluminous and is contained in three substantial appeal books. Those books comprise nearly 1000 pages. The reasons for judgment of the learned trial Judge were comprehensive and recount, at length, the facts of the case. This summary is taken from the learned trial Judge's account of the facts.
7 The first respondent was 41 years of age at the time of trial and a roof tiler by occupation. He had formed a company known as McKrill's Tiling Pty Ltd in 1992, of which he and his former wife were directors. The company performed roof tiling work on commercial sites. Another company, known as Condessa Holdings Pty Ltd, had been formed to perform roof tiling work on housing sites. The first respondent's primary source of work was for Bristile, but in April 1996 Bristile indicated that with effect from 10 July 1996, the agreement which the two companies had with it would be terminated due to a downturn in the building industry. The first respondent thereupon decided to wind up his business
(Page 7)
- and take a break until there was a change in the industry. He worked until the end of the 1996 financial year and was tying up some loose ends at the end of June 1996.
8 On 24 July 1996, the first respondent chose to visit his brother, who was engaged as a roof tiler working on a property in Inverness Crescent, Coolbinia. This was the property of the appellant and her husband. A two-storey residence was being constructed on the site and the roof was being erected.
9 It was about 3 pm when the first respondent went to the property. He met his brother and other workmen and walked around the property with his brother to see how the roof tiling job was progressing. He entered the house through the carport area and climbed a stairway to the interior. He walked onto a balcony at the front of the house with his brother. It was a concrete slab with no handrails and there was scaffolding protruding from the balcony at the balcony level. It looked to the first respondent to be normal scaffolding with planking and a metal framed deck. He did not and could not see beneath the scaffolding.
10 The first respondent saw a piece of tile batten which he thought should be in a rubbish pile. He walked to the end of the scaffolding to pick up the piece of batten, but the scaffolding collapsed. The metal planks gave way and he fell about one and a half metres to the ground, landing on his back.
11 The evidence revealed that the first respondent had visited his brother at the site at his brother's invitation. The first respondent was on holiday at the time and had gone to the site to pay his brother a visit. The visit was in no sense connected with the work that was being done there.
12 After the first respondent's fall, he and his brother inspected the scaffolding that had collapsed. It was missing a brace on one side, with the result that there was nothing to prevent the sides of the scaffolding separating and the planks falling to the ground. From the area where the first respondent stepped onto the scaffolding, it was not possible to see that the brace was missing. The scaffolding legs were also defective. They were planted in sand without feet on them. A Worksafe inspector visited the site on 25 July 1996 and found the scaffolding to be defective. He issued four improvement notices, the first of which stated that a single bay frame scaffold fitted with planks had not been fitted with double braces, thus causing planks to dislodge and injuring the person who was
(Page 8)
- working on the platform. The notices were issued to Lincoln, whom the inspector believed was the builder.
13 There was no sign at the building site indicating who was the builder. Such a sign is required by the Builders' Registration Board. An employee of Lincoln accepted the improvement notices.
14 The Worksafe inspector gave detailed evidence at trial about the deficiencies in the scaffolding. He made it clear that the absence of a double brace on the scaffolding upon which the first respondent had stepped meant that the metal planks on the scaffolding were at risk of sliding off. Further, the frame could move apart and the planks simply fall through. The situation was described as "a disaster waiting to happen".
15 The appellant was owner of the property at 29 Inverness Crescent, Coolbinia. She and her husband had purchased this property with the intention of demolishing a house on it and rebuilding. The appellant signed an application for and obtained an authority to demolish the house on the property. She applied for an owner-builder's licence with the City of Stirling. She contended that it had been the plan of herself and her husband to arrange the preliminary site work and then to engage a builder to build the house, but at all material times the appellant remained the owner-builder in the sense that no other building licence was issued in respect of the house.
16 The appellant and her husband sought and obtained a quote for the construction of the house from a builder, but then the husband spoke to Nino Ferrinda at Lincoln. He had been a friend for more than 20 years. He was chosen as "the builder" because the appellant's husband had seen units which he had built and built well. The appellant appears to have taken no part in the selection of Lincoln and she never took any interest in what capacity Lincoln had to supervise work upon the site. Her role was limited to the choosing of internal fittings and furnishings for the house when built and she contended that she understood that Lincoln would be responsible for supervising workmen on site. She understood that Lincoln would organise materials and tradespeople and direct them as to what work was needed and what the quality of the work should be.
17 The appellant gave evidence that it took approximately 15 months to build the house. She said she rarely visited the site at the commencement of building and only did so towards the end of construction when interior work was being done. She said she knew nothing about scaffolding and
(Page 9)
- had no knowledge of who had supplied it, when it had been supplied, or who had erected it. The only problems she knew of at the site related to a cracked footpath and some damage to a neighbour's house caused by the building activity.
18 The appellant conceded that there was no written documentation whatever of the contractual arrangements with Lincoln. No building contract had ever been signed. Although she remained the owner-builder, Lincoln was chosen to be the builder two to three months after the issue of that licence. The appellant admitted, however, that she took out contractors' work insurance on the property and she admitted that she did not ever see any sign at the front of the property indicating who the builder was. Although she knew nothing about scaffolding, she knew that scaffolding would be dangerous if not secured.
19 It is worth setting out some of the appellant's husband's cross-examination in relation to the relationship between the appellant as owner-builder and Lincoln:
"Was there any detail about what Lincoln were going to do on the job?---When the job was handed over to them they were given plans - - -
Is there any written detail about what Lincoln was to do on the job?---There was no written agreement about what Lincoln was to do, no.
And there was nothing about what Lincoln had to do on the site, was there?---I'm not - no, there wasn't anything specifying exactly what they had to do on site.
That's right, and there wasn't any differentiation of what Lincoln actually had to do in doing their work. You didn't tell them anything about what they had to do, did you?---No, I engaged them as a builder.
But you didn't tell them what they had to do?---I didn't know that I had to.
You are an experienced builder; you have told us that. You are a person who has built on a number of occasions?---But if I engaged - - -
(Page 10)
- What do you mean you didn't know what to tell them?---If I engage a lawyer, I don't know what to tell him to do. I expect he's going to do his job."
20 The appellant's husband was questioned about who was responsible for the safety of subcontractors on site:
"Who was going to look after them? How were they to do their work on site?---All contractors, regardless of whether I sourced them or not, were given over to Lincoln Constructions - - -
Is that the case?---Yes, it was as far as I'm aware.
What, that those contractors would be under the responsibility of Lincoln. Is that what you are saying?---Other than at the early part when we first started, yes, I believe so.
Are you sure about that?---It's 7 years ago. I can't be 100 per cent positive about everything, but I would say so, yes.
It wasn't that those subcontractors would be responsible for their own safety?---I never specifically discussed that with any subcontractor, no.
I see, so you didn't discuss it?---Not that part of it, no.
So what happened on site was never discussed with any of those people that were engaged?---I'm not sure - what do you mean by 'what happened on site'?
What happened as far as them performing their work, how they performed their work?---That was attended to by Lincoln.
That was in your expectation, wasn't it? That was never discussed though, was it?---Correct.
Because you've told us before that you didn't specifically ever discuss supervision on site?---I can't say that I never discussed it a hundred per cent.
That's what you said before?---I'm saying to you that at the time of engaging Lincoln, I think is the evidence that I gave - because I'm engaging Lincoln I didn't specifically discuss everything that he as [sic] to do, or they were to do.
(Page 11)
- I think your evidence was, 'I never specifically discussed supervision. I expected they would supervise'?---Correct. That was in context - - -
That what you said?---That was in context of engaging Lincoln, correct.
That's right, so it was never discussed who was going to supervise safety on site, it was just an expectation that you had. Correct?---Yes."
21 The appellant's husband also gave evidence about the question of who had the responsibility for safety on site:
"Because you were the owner-builder of it whose name was on the licence?---Yes.
Your wife's name was on the licence?---Correct.
Did you or your wife have together any recognised system for inspecting the property?---No.
Did you take any notes of any inspections you made when you went past the problem?---No.
And you went about five times in 15 months?---It may have been a couple more, it may have been one less. I don't know.
Did you ever discuss with the first defendant Lincoln Constructions, either Mr Lapedota or Mr Ferrinda, anything about safety?---Not other than that time or the cross-walk time.
…
Personally you didn't discuss it with Lincoln Constructions. You never ever discussed anything to do with site safety with anyone from Lincoln Constructions?---I was not aware it was my obligation to do so once a builder had been engaged.
And your wife didn't ever do it either, did she?---Not that I would know."
22 The appellant's husband contended in evidence that Lincoln engaged 95 per cent of the contractors on the site. He admitted, however, that he engaged some people. They included a second lot of roof carpenters,
(Page 12)
- grano workers, swimming pool people, stone masons, painters, ceramic tilers and perhaps a brick paver. He also obtained quotes for brickwork, painters, air-conditioning, ceiling and plaster work, timber and fencing. He knew that scaffolding had been provided at the site by the second respondent and he believed that the second respondent had erected that scaffolding. He gave extensive evidence about his relationship with Mr Ferrinda at Lincoln. He had known him for over 20 years and had been a director of Lincoln for a period between 1991 and 1993. His accounting business had prepared financial statements for Lincoln. It was also the registered office of the company. He had used Lincoln several times as a builder on projects that involved clients. He had also used the company to build units for himself and his wife. The arrangement he reached with Lincoln was that they would be paid $10,000 and given $3000 credit for an accounting fee outstanding to him. They were thus to be paid $13,000 for the work they did at the site. This amount must be considered in light of the fact that the overall cost of construction of the house was $620,000.
23 The appellant's husband admitted that there were financial benefits to his wife and himself through being the owner-builder. He also admitted that he had taken out owner-builder insurance for the site from the commencement of work on it. Although he said in his evidence that he expected Lincoln to look after safety issues with contractors on site, he conceded that this testimony was inconsistent with what he had said in a statutory declaration on 7 February 2000, where he said:
"15. It was our understanding that any tradespeople engaged were qualified and reputable operators who would adhere to the relevant statutory and other requirements associated with their respective trade.
16. Given that sub contract labour was used, the expectation was that the sub contractor involved would be responsible for the safety of themselves and their employees. Presumably if Lincoln saw something they would rectify the problem."
- On the same statutory declaration, the appellant's husband stated that for payment of a consideration of $10,000 Lincoln "assisted with purchase of some materials and supply of some trades".
24 The appellant's husband conceded in his evidence that neither he nor the appellant had any organised system of inspecting the site. They may have visited it only five or so times in a period of 15 months.
(Page 13)
25 There was evidence from the building surveyor from the City of Stirling that in cases in which a registered builder is appointed under the Building Regulations 1989 (WA), that builder is to submit and secure the issue of a building licence from the council. The building surveyor said that it was unusual for the council to issue a building licence to an owner-builder where there was a registered builder engaged, as that would be contrary to the provisions of the Builders' Registration Act 1939 (WA) ("the Act"). Normally, an owner-builder's licence would commence, but once a registered builder was engaged, that builder would apply for the licence in his own name. This had not happened on the site in question.
26 This evidence would appear to be a reference to reg 10 of the Building Regulations 1989. Section 10AA of the Act provides that where any building work is carried out by a natural person who is registered under the Act, that person shall personally manage and supervise the building work or ensure that the building work is managed and supervised. Section 10C of the Act provides that where any building work is carried out by a company or body corporate, the company or body corporate shall cause the building work to be managed and supervised by a director of the company or member of the board of management of the body corporate. Further, the company or body corporate shall cause the name and registered number of that person to appear in any sign affixed or erected on the building work pursuant to s 10(4) of the Act. Section 10(4) provides that every registered builder shall affix or erect on all works under his control, a sign of reasonable dimensions showing in easily legible letters and figures, his name and registered number.
27 Section 4A of the Act provides that a local government may not issue a building licence to any person not registered under the Act unless (inter alia) the person to whom the licence is issued is proposing to construct the building to which the building licence relates for himself and not for the purpose of the immediate sale thereof. Such a person, when issued with a licence, is to affix or erect on the site of the building a sign of reasonable dimensions in the same terms and conditions as that required of a registered builder. In the present case, there does not appear to have been any sign erected by any person.
28 The second respondent supplied scaffolding for building. It had a contract with Lincoln in 1996 whereby they supplied scaffolding for sites where Lincoln was the builder. They organised independent contractors, D & L Scaffolding Pty Ltd, to erect and dismantle scaffolds. Vincenzo Gullotti, manager of operations for the second respondent in 1996, testified that a licensed scaffolder was required to erect scaffolding higher
(Page 14)
- than six metres. In the case of the site at Inverness Crescent, a "brickies' kit" was supplied on 9 February 1996 and this meant that it was intended that the scaffolding would be erected by bricklayers and moved around the house as the walls went up. The scaffolding could not be stacked so as to breach the height requirement. The second respondent's responsibilities began with the delivery of the scaffolding and ended with the collection of it. The bulk of the scaffolding had been taken away by the second respondent on 9 July 1996.
29 Mr Gullotti testified that once scaffolding was delivered, any tradesperson on site could erect it unless it was over six metres in height. However, bracing and footing were required for safe erection of any scaffolding. The brickies' kit contained timber boards, not the steel boards which were on the scaffolding from which the first respondent fell. Damien Mark Keating, a licensed scaffolder and director of D & L Scaffolding, gave evidence that D & L Scaffolding did not erect the scaffolding from which the first respondent fell. He said that scaffolders never erect scaffolding up to the first floor of a building. That work is done by bricklayers.
30 Mr Keating was able to say from photographs taken at the site that there was only one brace on the scaffolding from which the first respondent fell and there were no proper footings. He said that nobody employed by D & L Scaffolding would ever erect scaffolding in that way. However, tradespeople were known to tamper with scaffolding and D & L Scaffolding had no control over that.
31 Ian David Laycock, co-owner of PIC Bricklayers, testified that his firm had been engaged to do the "red brickwork" on the house at Inverness Crescent and had done that work between April and June 1996. His workers were there for three months. They used a "brickies' kit" to erect their own scaffolding, but the scaffolding depicted in photographs of the site at the time the first respondent fell was not constructed the way that he would have constructed it. He agreed that it was unsafe and said he would not have stepped on the scaffolding because he knew it might fall.
Findings of the trial Judge
32 The learned trial Judge made a number of very clear findings of fact. Before doing so, she made an assessment of the credibility of the parties. She found the first respondent to have "presented his case well" and she accepted his testimony in relation to the accident. She had some reservations about his evidence in relation to the issue of pre-existing back
(Page 15)
- problems. Her Honour did, however, make the clear statement that she was prepared to rely on the first respondent's evidence so far as the accident was concerned. She also accepted the evidence of the first respondent's brother and that of the Worksafe inspector. Both were described as "careful and reliable witnesses".
33 By contrast, the learned trial Judge found the appellant and her husband to be unsatisfactory witnesses. The learned trial Judge gave two specific reasons why she was of the view that the appellant's evidence was unsatisfactory. The first was that she was said to have attempted to avoid giving evidence before her husband was called, and the second was that she was not satisfied that she displayed any signs of ADD, a condition from which she said she suffered and which she said affected her memory. Counsel for the appellant contended that the learned trial Judge had erred in these two assessments and for that reason, her assessment of the credibility of the appellant could not be relied upon. However, I do not see it that way. It seems to me that the learned trial Judge considered the appellant to be an unsatisfactory witness (indeed, she said at the conclusion of her findings that "neither the second defendant nor her husband were satisfactory witnesses") and the two examples I have given were simply indicators of the appellant's unreliability.
34 In relation to the question of the appellant "avoiding giving evidence before her husband was called", it appears that counsel for the appellant, in opening her case, proposed to call first her husband. There was debate about this and counsel for the plaintiff at trial contended that the appellant should be called before her husband was called. The learned trial Judge accepted this submission and said that there should be no "alteration in the normal rule" and that the appellant should be called first. An order excluding the husband from court was then sought and obtained by counsel for the plaintiff.
35 One can see the sense in the decision of the learned trial Judge. Had the husband of the appellant given evidence before his wife, his wife would have been present to have heard all that he said. It may have been important (and, indeed, it seems likely that it was) that the first witness should not give evidence in the hearing of the other. There was no way that the appellant could have been excluded from court, and hence it was logical that she should be called first. The learned trial Judge was critical of "initial hearsay evidence" given by the appellant and said that this had "formed a bad impression" on her.
(Page 16)
36 Reference to the transcript reveals that the evidence of the appellant did begin badly. She said that there had been (or "would have been") discussions with her husband about the construction of the dwelling, but she could not remember them. Her counsel then resorted to leading questions and these were objected to. She said that she could not remember why the property had been registered in her name and she was asked by her counsel whether she had had discussions with her husband about various matters. In response to this, the learned trial Judge told counsel that she was to give evidence as to what she did and not what she discussed with her husband. There was nothing untoward in this. There was then an application by the appellant's counsel for an adjournment because the appellant's condition (presumably ADD) was said to be "severe".
37 After much debate about proposed amendments to the pleadings, the appellant was again called to the witness stand. There were numerous objections to her evidence on the basis that she constantly referred to what she and her husband had done. There were objections to counsel for the appellant cross-examining her own witness, and recourse to the transcript reveals that the appellant's testimony was very much to the effect that she was unable to remember much about the building and its progress, but that her husband had done many things, or they, together, had done many things. In all the circumstances, it is not surprising that the learned trial Judge took a dim view of the appellant's testimony and found her to be an unsatisfactory witness.
38 The learned trial Judge found the appellant's husband to be "equally unpersuasive" and gave various reasons for that conclusion. She found the focus of his evidence was to shift all responsibility for site safety to Lincoln without providing any documentation to support the case of the appellant. She made reference to the issue of the building licence, the absence of any contractual documents and the testimony of the appellant's husband that Lincoln was on site daily looking after safety issues when remunerated only to the extent of $13,000. She emphasised the inconsistency between the evidence of the appellant's husband on safety issues on site with that contained in his statutory declaration. That conclusion seems to me to have been open when one looks at the contents of the statutory declaration which I have quoted.
39 After making these findings on credibility, the learned trial Judge turned to her findings of fact. These were sequentially numbered in the following way:
(Page 17)
- "1. The second defendant owned the property at 29 Inverness Crescent and held an owner-builder licence for the construction of the residence on the property.
2. The second defendant entered into some sort of arrangement with Lincoln about the construction of the residence.
3. Mr Nino Ferendi [sic], the principal of Lincoln, never secured a building licence as was required by the Building Regulations 1989 if he were the builder. Nor did Mr Ferendi [sic] place a sign on the site identifying Lincoln as the builder.
4. The construction of the residence cost $620,000 and took 15 months to complete. The fee of $10,000 plus $3,000 owed in accountancy fees paid to Lincoln by the second defendant was not sufficient payment for a builder to build a house of this size.
5. Therefore I am not satisfied that Lincoln ever took over responsibility as the builder of the residence.
6. The second defendant with her husband undertook the building of the residence as an owner-builder with only some assistance from Lincoln commensurate with the fee paid to Lincoln. The second defendant and her husband obtained a financial advantage by proceeding as an owner-builder and by not engaging a builder for the project.
7. Lincoln arranged with PCH for the supply of scaffolding on site. The scaffolding pictured in Exhibit 12 is the property of PCH.
8. The frames, braces and wooden planks pictured in Exhibit 12 were parts from a brickie's kit delivered on site by PCH on 9 February 1996.
9. The scaffolding pictured in Exhibit 12 was not erected by PCH or its scaffolder D & L Scaffolding.
10. There is no evidence of who erected the scaffolding in Exhibit 12. Nor is there any evidence as to why that
(Page 18)
- scaffolding was erected in that position. Nor is there any evidence of when that scaffolding was erected.
- 11. The scaffolding pictured in Exhibit 12 was not properly erected. It had no cross-brace on one side. If anyone stepped on to it the frames would separate leaving the metal lip of the planks unsupported so that the planks would fall.
12. The scaffolding pictured in Exhibit 12 was placed in sand without any footings to prevent the frame from subsiding. That defect contributed to the accident.
13. Those defects in the construction of the scaffolding referred to (in 11 and 12 above) constituted a hidden danger - a trap for anyone stepping from the balcony onto the scaffolding.
14. The plaintiff was an experienced roof tiler and was familiar with scaffolding. If he had looked before he stepped he would have noticed the missing cross-brace and realised the scaffolding was unsafe.
15. It would not be reasonable to expect a person stepping onto the scaffold from the balcony to look to check that the scaffold was safe. From the balcony it appeared to be safe.
16. The plaintiff was invited onto the site by his brother. His brother was lawfully on the site engaged in roof tiling. The plaintiff was not a trespasser. He was not unlawfully on the site.
17. The second defendant and her husband made no arrangements with Lincoln about safety issues on site. Safety issues on site were left to individual contractors.
18. Some contractors on site were engaged by Lincoln. Some contractors on site were engaged by the second defendant's husband."
40 Having reached these findings, the learned trial Judge turned to the provisions of the Occupiers' Liability Act. After reference to a number of authorities, her Honour concluded that at common law an occupier's
(Page 19)
- liability is to be determined by the ordinary principles of negligence and those principles are to be applied to actions under the Occupiers' Liability Act. Her Honour found that, under that Act, the legislation had defined an "occupier of premises" and that, if a defendant fell within that definition, she was obliged to consider whether that defendant owed a duty of care to the plaintiff in the circumstances of the case and that question could not be determined without reference to the common law of negligence. The appellant does not challenge her Honour's approach in this respect and accepts that she correctly summarised the law (as to which, see Jones v Bartlett (2000) 205 CLR 166, esp at 231 [226], per Kirby J and Uzabeaga v Town of Cottesloe (2004) Aust Torts Reports 81-739 at 65,628 [14], per Murray ACJ).
41 The learned trial Judge turned to the question of duty of care and by whom and to whom it was owed in the present case. Her Honour found that the appellant was an occupier of the premises within the meaning of s 2 of the Occupiers' Liability Act because she was the owner and she held the owner-builder licence under which the premises were being constructed. Her Honour said:
"She clearly occupied or had control of the premises being the house under construction. It was not possible for me to make any findings as to the extent to which the second defendant gave control of the premises to Lincoln. It is clear that Lincoln had access to the site. I accept that Mr Ferendi [sic] may have been on site from time to time based on the evidence of Mr Di Vincenzo. But I do not accept that Lincoln undertook the day-to-day supervision of trades people and safety issues on site. I accept the evidence of Frederick McKrill that when he worked on site roof tiling at the time of the accident there was no supervision of the site. No other trades were on site and no-one from Lincoln was on site to supervise. I also note Mr Gullotti's evidence that the site was very disorganised.
I accept that there can be more than one occupier of premises under the Act (Jones v Bartlett per Gleeson CJ at [40]). In this case I am satisfied that the second defendant was an occupier of the premises at the time of the accident in the sense that she had control of the premises. I have no evidence sufficient to satisfy me that Lincoln had any control of the site and do not find that Lincoln was an occupier."
(Page 20)
42 Having reached this conclusion, the learned trial Judge concluded, after referring to Tame v New South Wales (2002) 211 CLR 317 at [12], per Gleeson CJ, that it was reasonable to require the appellant to have had the risk of injury suffered by the first respondent in contemplation. She found:
"She was the owner-builder involved in the construction of the premises. She knew or ought to have known persons would be entering the site to work or to visit workers. It is reasonable to expect the second defendant to have had some system in place for safety on site. No arrangements were made for safety. The defective scaffolding would have been obvious if there had been any inspection or supervision on the site.
I am also satisfied that the second defendant could have avoided the damage to the plaintiff by exercising reasonable care and that she ought to have acted to do so (Ryan's case per Kirby J at [240])."
43 The learned trial Judge concluded that the second respondent owed no duty of care to the first respondent in the circumstances of the case as there was no evidence that it had any responsibility, or involvement in the erection of the scaffolding on site.
44 The learned trial Judge then turned to the question of the negligence of an independent contractor within the meaning of s 6 of Occupiers' Liability Act. Section 6(1) of that Act is in the following terms:
"6. Negligence of independent contractor
(1) An occupier is not liable under this Act where the damage is due to the negligence of an independent contractor engaged by the occupier if –
(a) the occupier exercised reasonable care in the selection and supervision of the independent contractor; and
(b) it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken."
(Page 21)
- but she said she had no evidence on which to base an assessment of the appellant's supervision of Lincoln because she had no evidence that satisfied her as to what Lincoln's responsibilities were to the appellant. She then concluded:
"Because I am not satisfied that the second defendant ever engaged Lincoln as the builder for the residence this is not a case whether [sic] s 6 has any real operation. The second defendant and her husband retained control of the premises and constructed the house pursuant to the second defendant's owner-builder licence. The lack of any documentation or any reliable evidence means that I am unable to determine the extent to which (if any) Lincoln was given control of the premises. Lincoln certainly was not given responsibility for safety issues on site. For these reasons s 6 has no operation in this case. The second defendant has failed to satisfy me that the damage is due to the negligence of Lincoln."
"If she had appointed a registered builder and contracted with it so that it took on the construction of the house, obtained a builder's licence and received a fee appropriate to organising and supervising the construction of the residence then I believe the second defendant could have delegated her responsibilities as occupier of the site. She simply has not done that in this case. Her duty of care was a delegable duty had she and her husband chosen to do so."
47 Having reached these conclusions, the learned trial Judge turned to the question of whether the appellant had taken reasonable care to avoid foreseeable risk of injury to the first respondent. She found that the first respondent was not a trespasser but "labelling a person as a trespasser is no longer appropriate" since Australian Safeway Stores Pty Ltd v Zalunza (1987) 162 CLR 479. Her Honour correctly understood that the circumstances of the first respondent's entry to the site was relevant, saying:
(Page 22)
- "The circumstances of the plaintiff's entry (s 5(4)(b) of the Act) is one of a number of circumstances which must be considered in determining the standard of care. In this case the plaintiff was invited on the site by his brother. There were a number of trades coming and going from the site. I am satisfied that it was foreseeable that a person such as the plaintiff would visit the site. The second defendant ought to have known that trades and persons such as the plaintiff would be on the site from time to time."
48 The conclusion reached by the learned trial Judge was that the defectively constructed scaffolding at the site posed a serious risk of injury to workers on site and to anyone visiting the site. It posed a hidden danger or trap for a person who walked onto the balcony. The defective construction of the scaffolding should have been apparent to anyone on the ground and the appellant and her husband could have met their standard of care by appointing a builder to take responsibility for safety issues. They had chosen not to do so for financial reasons. Her Honour found that a reasonable person in the appellant's position would have made arrangements for safety issues on site when building a house of the size this construction was. Her Honour concluded that neither the appellant nor her husband went on to the site regularly and no arrangements had been made for site safety. She held that in the circumstances, the appellant as owner-builder ought to have realised that failure to make any arrangements about safety issues might result in injury to a person visiting the premises and it should have been expected that persons in the first respondent's position would visit the site from time to time. The appellant was thus liable in negligence for the first respondent's damages.
49 The learned trial Judge turned to the question of contributory negligence. Her Honour reviewed various authorities and concluded that the scaffolding constituted a hidden danger or a trap and in those circumstances, it was not reasonable to have expected that the first respondent would have checked the scaffolding before stepping onto it. Her Honour was not satisfied that he had failed to keep a proper lookout, nor that he failed to pay any or any sufficient attention to the state of the scaffolding. She concluded that she was not satisfied that he had failed in any way to meet the standard of a reasonable and prudent man when he stepped onto, what appeared to be, secure scaffolding. For these reasons, the allegation of contributory negligence on his part failed.
(Page 23)
50 I shall deal with the learned trial Judge's conclusions on damages and costs when I turn to the grounds of appeal which deal with those issues.
Appeal on Liability
Ground 1
51 This ground contests the learned trial Judge's conclusion that Lincoln had not undertaken the supervision of the construction of the house. It contends that the learned trial Judge should have found that Lincoln was the occupier and in control of the building works and that the appellant was not the occupier of the building works pursuant to s 2 of the Occupiers' Liability Act.
52 Counsel for the appellant argued that on the evidence, the appellant had, as owner of the premises, residual control over those premises but no practical control over the building works. She contended that the evidence showed that control had been handed over to Lincoln when it was engaged as builder and supervisor of trades people. It was said to be in practical control of the building works.
53 Reliance was placed upon the fact that the first respondent had pleaded in his statement of claim that Lincoln had been engaged by the appellant to supervise the construction of the residence and this allegation was admitted by the appellant in its defence.
54 This point should be dealt with immediately. The pleadings do reveal that the first respondent alleged in his amended statement of claim filed 12 June 1999 that on a date unknown but prior to July 1996, the appellant had engaged Lincoln to supervise the construction of a two-storey residence upon the "premises" which were identified as 29 Inverness Crescent, Coolbinia. The first respondent went on to allege that his accident was caused by the negligence of Lincoln, its servants, agents and employees and/or in the alternative, by the negligence of the appellant, her servants, agents and employees. In her reamended defence filed 9 September 2002, the appellant (inter alia) admitted that Lincoln was the occupier of the premises and admitted that the accident was caused by the negligence of Lincoln.
55 It is plain from the pleadings that the plaintiff made alternative cases against the appellant and Lincoln respectively. The case which was made against Lincoln involved the allegations that Lincoln was the occupier of the premises, that it had, prior to July 1996, been engaged by the appellant to supervise the construction of her home and that the accident was caused
(Page 24)
- by its negligence. The case which was made against the appellant involved allegations that she was at all material times the owner and occupier of the premises and that the accident was caused by her negligence. The particulars of negligence which were pleaded against the appellant and Lincoln respectively were identical. In these circumstances, I am not persuaded that, merely by admitting the allegations pleaded by the plaintiff against Lincoln, the appellant could do away with the alternative case which had been made against her. Moreover, as will be plain from what I have earlier said concerning the evidence at trial, the question whether or not the appellant had had occupation and control of the site at the material time was very much in issue (as to which see Water Board v Moustakas (1988) 180 CLR 491 at 497, per Mason CJ, Wilson, Brennan and Dawson JJ). A major part of that issue, as matters developed at the trial, was the question whether, and to what extent, the appellant had given control of the site to Lincoln.
56 Counsel for the appellant contended, in this last respect, that neither the appellant nor her husband were cross-examined on the issue whether or not Lincoln had been engaged as builder or supervisor. It was also said that the first respondent's case against the appellant was based on an allegation that she was the occupier and had a non-delegable duty of care in respect of safety measures with the result that s 6 of the Occupiers' Liability Act was of no avail to her because she had not personally exercised reasonable care in the selection of the independent contractor and she was vicariously liable for any negligence of the builder. It was claimed that a new case was established against the appellant.
57 However, it seems to me, as I have said, that the case at trial proceeded on the basis that the learned trial Judge was called upon to decide who was the occupier of the premises. What the learned trial Judge had to focus upon was the question who had control and occupation of the premises. The appellant's case at trial was that she was not the builder but only the owner of the premises and that all responsibility for building and supervision of the site had been delegated to Lincoln.
58 What the learned trial Judge found was that the appellant was indeed the occupier. Her reasons for reaching that conclusion were that the appellant owned the property, that it was her to whom the building licence was issued, that no building licence was ever issued to Lincoln, that there was no written agreement which revealed any transfer of possession and control of the site to Lincoln, that the appellant and/or her husband were actively involved in the carrying out of work on the site and that the appellant insured the property. All of these conclusions were open on the
(Page 25)
- evidence. In addition, the learned trial Judge found the appellant and her husband to be unsatisfactory witnesses. She found against them on the issue of credibility. She concluded for these reasons, and others, that it was not possible to make any findings as to the extent to which the appellant had given control of the premises to Lincoln. This conclusion had inherent in it, a conclusion that some degree of supervision and control of the premises had been given to Lincoln, but how much could not be shown.
59 The finding that the appellant was the occupier was thus open on the evidence. It was a clear issue between the parties and required the determination of the learned trial Judge. There was no question of the appellant being taken by surprise on the issue, as the focus of the cross-examination at trial was clearly on that issue.
60 Much reliance was placed by counsel for the appellant on the decision in Cant v Fleay, unreported; FCt SCt of WA; Library No 960381; 18 July 1996. This was a case in which a shearer suffered injury in a shearing shed. He was employed in a team provided by one Jones which was under contract to one Cant. The contract was to shear Cant's sheep in a shed on Cant's property. It appears that prior to commencement of work on 3 July 1985, condensation had accumulated beneath the roof of the shed and had dripped on to a shearing board in the vicinity of the shearing stand used by Fleay. The board became wet and slippery and by reason of this, Fleay slipped and fell heavily whilst dragging his sheep across the board towards his shearing stand. He claimed that the injury resulted from the negligence of both Cant and Jones.
61 Franklyn J considered that Cant had an owner's residual control of the shed during the period of shearing operations each day, but had no practical control of it over that period. The practical control resided in his licensee who was the independent contractor, Jones. Cant did not have control of such a nature that he ought to have realised that a failure on his part to use care might result in injury to a person coming into the shed and, in particular, persons employed by Jones as shearers in the shed. Consequently, Cant was not an occupier within the meaning of the Occupiers' Liability Act during the period in question. Jones was, however, undoubtedly an occupier and he had accepted responsibility by reason of the contract he had with Cant to remove such water as might form on shearing boards in the course of shearing operations.
(Page 26)
62 Wallwork J agreed with the reasons of Franklyn J save on the question whether Cant was an occupier. Wallwork J held that Cant was an occupier as he had a sufficient degree of control over the relevant premises to put him under a duty of care towards those who lawfully came onto the premises. However, the independent contractor engaged to work on the premises (Jones) could be expected by the owner to satisfy himself as to the safety of the working site and to decide how the tasks were to be performed.
63 Scott J agreed with the reasons for judgment of Franklyn J, but also agreed with Wallwork J that Cant had a sufficient degree of control over the premises upon which Fleay was working for him to be an occupier within the meaning of the Occupiers' Liability Act and an occupier at common law. Jones was, however, an independent shearing contractor and in Scott J's view, he had taken the responsibility for removing water from the floor.
64 It will be seen that to the extent that counsel for the appellant relies upon the decision, she appears to rely upon the decision of Franklyn J which was in dissent on the point of who had occupation and control of the premises. In any event, the case is quite different from that under appeal here. There was evidence of a clear contractual agreement between the owner of the premises and the independent contractor who came to occupy the shearing shed. Further, considerations of employer's liability loomed large in the case. They did not exist here.
65 In my view, it was open to the learned trial Judge to conclude that the appellant was occupier of the site at Inverness Crescent. Not only was it open, but, in my view, a correct conclusion for Her Honour to have reached. I say that because:
(1) The appellant was the owner of the property and elected to take out an owner-builder's licence for the construction of the house on the site.
(2) Although there was an agreement reached between the appellant's husband and Lincoln for some supervision of the building site, this agreement was never reduced to writing and it was not possible for the learned trial Judge to reach any conclusions as to what specifically was agreed.
(3) Whatever was agreed with Lincoln, there was no question of there having been any agreement reached on the subject
(Page 27)
- of who was responsible for safety at the site. At most, the appellant's husband assumed that if Lincoln "saw a problem", it would attend to it.
- (4) Lincoln was a registered builder and if it was to take over the responsibility as builder at the site, it had an obligation under the provisions of s 10AA of the Act to personally manage and supervise building work, or at least ensure that the work was managed and supervised with a responsibility for ensuring that the name and registered number of the builder be shown on a sign affixed or erected on the site. If it took over the responsibility for building, the obligation was upon Lincoln to have the owner-builder licence issued to the appellant transferred to it pursuant to reg 10 of the Building Regulations.
(5) Not only was there no written agreement between the appellant and Lincoln which set out the responsibilities of Lincoln (particularly as to safety), there was no outward indication by way of sign on the site that indicated that Lincoln had the responsibility for which the appellant contended. Nor was a building licence issued in favour of Lincoln.
(6) There was evidence that the appellant and her husband took responsibility for various aspects of the work.
(7) The appellant was responsible for the insurance of the property.
(8) The fee paid to Lincoln for the degree of supervision which it exercised was minimal in the context of a $625,000 dwelling and suggested in itself that whatever supervision it was called upon to do, it was minor.
66 I have said that the learned trial Judge considered the evidence of the appellant and her husband to be lacking in credibility. That finding is not one that this Court would lightly overturn and no good reason has been shown why it should: see Abalos v Australian Postal Commission (1990) 171 CLR 167 per McHugh J at 178:
"Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard
(Page 28)
- the witnesses, could not be sufficient to explain or justify the trial judge's conclusion': Watt or Thomas v Thomas [1947] AC 484 at p 488."
67 In all the circumstances, I am firmly of the view that on the evidence at trial it was open to the learned trial Judge to conclude that the appellant was the occupier of the building site at all relevant times and responsible as occupier under the provisions of the Occupiers' Liability Act.
Ground 2
68 This ground contends that the learned trial Judge ought to have found that the first respondent was a trespasser at the site and that the appellant owed no duty of care to him in the particular circumstances of the case.
69 In Australian Safeway Stores Pty Ltd v Zaluzna (supra) the High Court made it clear that it is no longer necessary to resolve questions between the categories of entrants to premises when looking at the duty of care which rests upon an occupier of land. The majority of the Court (Mason, Wilson, Deane and Dawson JJ) said, at 487, that there remains neither warrant nor reason for continuing to search for fine distinctions between the so-called special duty enunciated by Willes J in Indermaur v Dames (1866) LR1CP 274 and the general duty established by Donoghue v Stevenson [1932] AC 562 and that the "same is true of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers". Their Honours went on to say that, so long as these alternative formulae are retained, courts were committed to pursuing the "barren exercise" (referred to by Brennan and Dawson JJ in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 27 - 28) of considering whether the special and general duties are distinct, but co-existing or whether the special duty is subsumed under the general duty, and that they could see no sufficient justification for their continued recognition. Consequently, the fact that an entrant is a trespasser might be relevant to the question of liability, but is not, of itself, determinative. In Hackshaw v Shaw (1984) 155 CLR 614 at 662 - 663 Deane J said (in a passage applied to Zalunza at 488):
" … it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a
(Page 29)
- duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk."
70 The learned trial Judge in this case found as a fact that the first respondent was not a trespasser on the site in the sense that he was not unlawfully there. He had been invited onto the site by his brother and his brother was lawfully engaged on the site in the activity of roof tiling. Although counsel for the appellant persisted with the assertion that the first respondent was a trespasser, it seems to me that it is of no moment. The question is whether the appellant, as occupier of the premises, discharged a duty of care to the first respondent as entrant having regard to the factors which are set out in s 5(4) of the Occupiers' Liability Act, namely:
"Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
(Page 30)
71 Counsel for the appellant argued that the appellant had given neither express nor implied permission to the first respondent to walk about on the building works or clamber about on the scaffolding. The circumstances in which the first respondent went there have already been mentioned. The transcript reveals that the first respondent arrived and saw his brother at the building site. It was a two-storey residence and construction was getting to the roof. The first respondent went there for the purpose of catching up with his brother and for what he described as a social visit. The first respondent agreed that he had not been asked by his brother's employer, P J Constructions, to come to the site, but he said that he had spoken to his brother and agreed to meet him at the site on the day in question. When the first respondent arrived, he observed his brother coming to the ground level. He and his brother spoke and then went for a walk through the house to have a look at the progress of the building. When cross-examined about walking up to the balcony and then stepping out onto the scaffolding, this is what the first respondent said:
"So you stepped onto the scaffolding to have a wander around before you saw the piece of wood that you were going to pick up?---Yes.
And it was none of your business to step on that scaffolding?---No, probably not.
You had no idea who had put up that scaffolding, did you?---No.
And you don't know for what purpose it was put up?---Yes, I do.
For what purpose was it put up?---For the construction of the house.
But you don't know whether it was the bricklayers or the plasterers or the people putting in the windows?---No.
And you had no idea whether this scaffolding had been completed by the person who had erected it?---No.
You had no idea whether the person that had used it was busy dismantling it?---No.
You were not employed to step onto that scaffolding?---No.
(Page 31)
- You also did not know whether the scaffolding was safe to step on, did you?---I presumed it was.
You didn't know who had erected it?---I didn't know it was unsafe."
72 This passage will later be referred to in the context of contributory negligence, but it and other sections of the evidence to which I have referred are relied on by counsel for the appellant as suggesting that the first respondent was in some way unlawfully on the premises. Whatever may be the position in that regard, the fact remains that the first respondent was at the premises at the invitation of his brother who was a worker on the site. It must have been anticipated by the occupier of the premises that many people would come and go during the course of construction. Indeed, the learned trial Judge found that the appellant as owner-builder involved in the construction of the premises knew, or ought to have known, that persons would be entering the site to work or to visit workers. Her Honour found that it was reasonable to expect the appellant to have had some system in place for safety to avoid the risk of injury to such persons. In my opinion, each of those findings was rightly made.
73 Reliance was placed by counsel for the appellant upon the decision of the Full Court of the Supreme Court of South Australia in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 and in particular, on a number of the conclusions of Doyle CJ. At [37] Doyle CJ said of a situation in which a man named Henry, a boilermaker employed by Allied Engineering Pty Ltd, who had entered into a contract with Adelaide Brighton Cement Ltd ("ABC") to carry out maintenance work for ABC at its premises, suffered injury when on a building site at which scaffolding had been provided and erected by a company known as Complete Scaffold Services Pty Ltd ("Scaffolding"):
"As an occupier of the premises in question, ABC owed a duty to take reasonable care for the safety of persons entering the premises, including persons like Mr Henry: Wrongs Act (SA) s17C. That duty would include a duty to take reasonable care to protect a person like Mr Henry from harm resulting from the activities of contractors working on ABC's premises. That duty in turn could involve a duty to warn an entrant to the premises about a source of harm, or a duty to keep an entrant away from an area in which contractors are working. Subject to that, the main focus of the duty of an occupier relates to the state of the premises, rather than to activities taking place on the premises.
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- The duty of ABC as occupier of the premises would not usually extend to a duty to protect a person on the premises, not being an employee of ABC but an employee of a contractor working on the premises, from harm that resulted from the carelessness of the worker's own employer, or from harm that resulted from the manner in which another contractor carried out its work. Once again, even that proposition has to be qualified. As occupier of the premises ABC had a duty to consider safety issues arising from the presence of Allied and Scaffolding on ABC's premises, and from the interaction between those two firms as contractors separately engaged for the one task."
74 I see nothing in this passage which supports the contentions of counsel for the appellant. Of course an occupier of premises does not usually have a duty to protect persons on the premises from harm that results from the manner in which another contractor carries out its work, but there is still a responsibility on the part of the occupier to consider safety issues at the site generally. Here, no safety issues were considered at all by the appellant. The case is far different from that which is under consideration.
75 Although counsel for the appellant relied upon the first respondent's knowledge that scaffolding may often be erected in what was described at trial as "a shonky manner" on building sites, and that he failed to check that the scaffolding was safe before stepping onto it, this did not, in my view, alleviate the appellant's responsibility towards him as an entrant on the land of which she was the controller and occupier. Of course the respondent knew that from time to time scaffolding was faulty. In this case, however, there was no basis upon which the first respondent could assume fault. He could see nothing wrong with the scaffolding onto which he stepped because it was a hidden trap. There was nothing to alert him to any need to check that it had been safely erected. As will be apparent, the trial Judge found that, from the balcony when he stepped onto the scaffolding, it looked to be secure and properly erected.
76 In my view, the learned trial Judge took full account of all of the relevant circumstances and the conclusion arrived at by her was open on the evidence. I can see no substance in ground 2 of the grounds of appeal.
Ground 3
77 The third ground of appeal contends that the learned trial Judge erred by finding that the appellant had not engaged Lincoln as builder and
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- therefore could not rely upon the provisions of s 6 of the Occupiers' Liability Act.
78 I have already dealt with the question whether there was a sufficient basis for the learned trial Judge to conclude that the appellant had not engaged Lincoln as "the builder" of the house. I have concluded that the learned trial Judge was correct in her assessment in this regard.
79 The provisions of s 6 of the Occupiers' Liability Act were considered by Malcolm CJ in Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298 and particularly at [67] where his Honour said:
"In my opinion, under s 6(1) of the Occupiers' Liability Act, a plea and proof that the damages claimed against it were 'due to the negligence of an independent contractor engaged by it' as [sic] the foundation for the defence."
80 Murray and Parker JJ agreed with the reasons for judgment of Malcolm CJ. Counsel for the appellant urged this Court to conclude that Malcolm CJ was wrong in saying that proof that the damages claimed were due to the negligence of an independent contractor is the foundation for a defence under s 6(1) of the Occupiers' Liability Act. The Court was given no prior indication that this contention would be advanced, and it seems to me that it adds little to the proposition advanced by ground 3.
81 The submissions of counsel for the appellant on ground 3 are repetitive of what was put in support of ground 1. Given my conclusion that the learned trial Judge was correct in her finding that the appellant had not engaged Lincoln as builder or overall supervisor of the building site, her Honour was correct to conclude that the appellant had failed to establish that responsibility for construction of the residence had been delegated to a qualified builder. Although the learned trial Judge accepted that reasonable care had been taken in the selection of Lincoln to perform whatever tasks it was engaged for, she rightly concluded that there was no evidence on which to base an assessment of what those tasks were. This meant that the threshold question whether the damage in issue was due to the negligence of an independent contractor engaged by the occupier was resolved adversely to the appellant. In my view, the resolution of it in that way was correct. I can see no substance in ground 3.
Ground 4
82 This ground contends that the learned trial Judge erred in concluding that the appellant did not meet the required standard of care pursuant to
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- s 5 of the Occupiers' Liability Act. It contends that the learned trial Judge should have found that in all the circumstances, the first respondent's entry onto the premises and upon the scaffolding, and his knowledge and experience of scaffolding were such that the appellant had discharged any duty of care she, as occupier, owed to him.
83 Reliance was placed upon a letter written by Mr Ferrinda to the solicitor for the first respondent in which Mr Ferrinda said that Lincoln had been contracted by the appellant to supervise the building works at 29 Inverness Crescent. Counsel for the appellant also relied upon the fact that Lincoln had acknowledged that it was the party to receive an infringement notice in relation to defective scaffolding at the site. However, in my view, these factors were insufficient to cast doubt upon the trial Judge's finding that the appellant did not meet the required standard of care. The letter gave no detail regarding the extent of the supervision which was contracted for and had to be considered by the trial Judge in the light of the oral evidence which was led in that regard at the trial. (Mr Ferrinda did not give evidence). The fact that Lincoln had agreed to receive the infringement notice had to be considered in the light of the whole of the evidence. Neither the existence of this fact, nor that of the letter, detracts from the conclusions arrived at by the trial Judge, in my opinion.
84 As to the more general arguments advanced in support of this ground, the appellant, as occupier of the premises, was obliged to take reasonable steps to ensure that there were no hidden traps on the property. She was not entitled to rely upon the fact that the first respondent, lawfully entering the site, knew something about scaffolding and the possibility that there may sometimes be defective scaffolding on worksites. The problem for the appellant was that she exercised absolutely no supervision over the premises. She had no plan or arrangements for the implementation of safety at the site. It was relevantly uncontrolled. It is not possible, in my view, to argue that in the circumstances of the case the appellant owed no duty of care to the first respondent. I therefore conclude that ground 4 has no substance.
Ground 5
85 This ground contends that the learned trial Judge erred in concluding that the breach of duty of care of the appellant was causally linked to the first respondent's fall and injuries. In support of the ground, it is contended that the finding was wrong because there was no evidence led as to how long the defective scaffolding had been on the site, nor how
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- often the appellant or anyone engaged on her behalf to supervise should have inspected safety and even if she had made an inspection, whether the defective scaffolding would have been noticed.
86 Reliance was placed upon the recent decision of the Court of Appeal in Town of Mosman Park v Tait [2005] WASCA 124, a case in which an assistant coach of a youth club T-ball team had stepped into a hole while running on an oval of which the Town of Mosman Park was occupier. It will be seen immediately that the case was a very different one from that under consideration. Counsel for the appellant relied on what Steytler P said at [2] to the following effect:
"What the Commissioner should, in my respectful opinion, have done, but did not do, was to identify, with some precision, what a reasonable person in the respondent's position would do by way of response to the reasonably foreseeable risk of harm that existed to users of the oval arising out of imperfections in its surface: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 611 - 612 [192]."
87 However, the case was concerned with whether inspection other than looking at the state of the oval by weekly mowing, was called for in the circumstances of the case. I can find nothing from the principles expressed which goes directly to what is in issue in the present case.
88 There was no obligation on the part of the first respondent to call evidence of what type of system a reasonable builder who had been instructed to supervise the building works, including the safety of the works, would have employed to ensure that the building works were safe at all times. Nor did it matter for how long the scaffolding had been unsafe. I have already pointed out that there was no evidence that the appellant had any system for supervision of the issue of safety. Once the finding was made that Lincoln was not engaged in order to supervise all building activities on the site or to ensure that the site was safe, the appellant carried the responsibility as occupier to ensure that there was a system of safety in place to avoid the unnecessary risk of injury from hidden traps such as that which faced the first respondent on the day he was at the property however long that trap had existed. On her own admission, the appellant did nothing. There is no substance in this ground.
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Ground 6
89 This ground contends that the learned trial Judge erred in concluding that there was no contributory negligence on the part of the first respondent. The ground contends that the learned trial Judge erred in finding that it would not have been reasonable for a person stepping onto the scaffolding from the balcony to look and check that the scaffolding was safe and erred in concluding that the construction constituted a hidden danger.
90 Reliance is placed by counsel for the appellant on the fact that the first respondent admitted that as a roof tiler he knew that tradesmen sometimes left scaffolding in what was described as a "shonky state". I have already referred to the passage in the evidence in which the first respondent agreed that scaffolding was often erected in a faulty way. The full passage is as follows:
"So, Mr McKrill, you know that people leave scaffolding which is erected in a shonky manner on building sites?---Yes.
And you also know that tradesmen leave scaffolding on building sites in a state of disrepair?---Yes.
You did not know for what purpose this short leg of the L of the scaffolding had been erected?---To support the wooden planks.
Did you know whether the tradesperson that had worked there previously had at any time been standing on the short leg of the L?---I've got no idea.
So as far as you are concerned, the short leg of the L could have been only there to support the wooden planks?---It could have been there for any reason.
Yes; and another reason might have been to put the tradesperson's equipment on there while he was standing on the longer leg of the L of the scaffolding?---I've got no idea.
That is a possibility though?---That's right. There are lots of possibilities, yes."
91 When dealing with the issue of contributory negligence, the learned trial Judge correctly appreciated that the question of contributory negligence depended upon the issue of foreseeability, so that the first respondent would have been guilty of contributory negligence if he ought
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- reasonably to have foreseen that if he did not act as a reasonable and prudent man, he would expose himself to the risk of injury: Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563 per Mason J at 570. In the context of the employer's liability, it has been said that mere thoughtlessness or inadvertence is not necessarily negligent and (in the context of a worker in a factory) things like inattention, bred with familiarity and repetition, the urgency of the task, and a man's preoccupation with the matter in hand, may be excusable in the circumstances because it is not incompatible with the conduct of a prudent and reasonable man (see Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37).
92 This, of course, is not a case of employer's liability and not a case in which temporary inadvertence in work circumstances was relevant. As Windeyer J said in Sungravure Pty Ltd v Meani, an act done in forgetfulness of something that if he were careful he would not overlook, may amount to negligence on the part on a reasonably prudent man. However, the mental processes of the plaintiff, although relevant insofar as they relate to actual knowledge of risks, are not decisive of the question whether there was contributory negligence. That is to be judged by external and objective standards because the law of negligence is concerned with acts, conduct that is negligent, rather than states of mind (Sungravure Pty Ltd v Meani per Windeyer J at 38).
93 In this case, the question was whether the first respondent had failed to take reasonable care for his own safety when he walked about on the building site. The learned trial Judge found that the first respondent "had made a number of admissions under cross-examination … (which did not) go so far as to amount to an admission of contributory negligence". She said:
"It may well be that if the plaintiff had looked he could have seen the missing brace and the lack of footings. But from the balcony where the plaintiff stepped onto the scaffolding it looked to be secure and properly erected. I have already found that the scaffolding constituted a hidden danger or trap. In these circumstances I do not consider it reasonable to have expected the plaintiff to check the scaffolding before stepping onto it. I am not satisfied that he failed to keep a proper lookout; nor am I satisfied that he failed to pay any or any sufficient attention to the state of the scaffolding. I am not satisfied that the plaintiff failed in any way to meet the standard of the reasonable and
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- prudent man when he stepped onto what appeared to be secure scaffolding."
94 Given that it was open to the learned trial Judge to find that the defective scaffolding constituted a hidden danger or trap and that it was not reasonable to have expected the first respondent to have checked the scaffolding before stepping onto it, I consider her conclusion on contributory negligence to have been open.
95 Counsel for the first respondent referred to Apex Holiday Centre (Inc) v Lynn [2005] WASCA 58 and in particular to the judgment of E M Heenan J at [31]. His Honour was dealing with circumstances in which a person had gone in the middle of the night to a toilet block some distance from the holiday cottage and descended what his Honour described as "plainly, steep, old and dangerous steps". His Honour said:
"In doing this she simply succumbed to the trap which was posed by this dangerous condition and this does not, in my view, amount to contributory negligence: see Sungravure v Meani (1964) 110 CLR 24; Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492; McLean v Tedman (1984) 155 CLR 306 and Pennington v Norris (supra)."
96 There are similarities between the circumstances under review in Apex Holiday Centre (Inc) v Lynn and those which are present here. It can easily be said that the first respondent here succumbed to the trap which was posed by the dangerous condition of the scaffolding and which, notwithstanding his acceptance of sometimes faulty scaffolding at building sites, gave no outward appearance of fault. I can find no substance in ground 6.
Ground 7
97 This ground contests the conclusion of the learned trial Judge on past loss of earning capacity. It is the only basis upon which the award of damages to the first respondent is the subject of challenge. The award in total was $97,076, of which $56,926 represented past loss of earning capacity and $3985 past loss of superannuation.
98 In assessing past loss of earning capacity, the learned trial Judge appreciated that what was required was compensation for loss of earning capacity, not loss of earnings. Her Honour made reference to Graham v Baker (1961) 106 CLR 340 and in particular, to the judgment of Dixon CJ, Kitto and Taylor JJ at 347 where their Honours said that an
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- injured plaintiff recovers not merely because his earning capacity has diminished, but because the diminution of his earning capacity is or may be productive of financial loss. To this I would add reference to Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 and, in particular, the passage of Barwick CJ where his Honour pointed out (at 659) that the calculation of loss of earnings by calculation which introduces some sort of mathematical accuracy into the assessment may often ignore the realities of loss. Much of what Barwick CJ said related to future loss of earning capacity, but the same principles apply in relation to past loss of earning capacity.
99 In the present case, the learned trial Judge looked at the first respondent's average earnings over the three years prior to the accident. She calculated those earnings at $715.46 net per week. She concluded that although the first respondent had regained his earning capacity within 18 months of the accident, it was fair to award him $34,273.92 for the year 1996 - 1997 and $22,651.92 for the year 1997 - 1998. No award was made for the year 1998 - 1999 because the learned trial Judge found that by that time the first respondent was quite able to have been earning at his pre-accident rate.
100 Her Honour said that in choosing to make the award, she took account of the fact that the first respondent's (roof) tiling business had virtually ceased operating at the time of the accident due to a downturn in the industry and even if he had not been injured, market forces would have substantially reduced his earnings for the 1996 - 1997 year.
101 The challenge to the assessment of past loss of earning capacity is long and detailed in terms of the ground advanced. Amongst other things, the appellant contends that the learned trial Judge failed to take account of actual earnings received by the first respondent in the years 1997 and 1998; failed to take into account the first respondent's evidence that he had wound down the roof tiling business after his contract with Bristile had come to an end and had decided to take three months' holiday from about July 1996; failed to take into account the evidence of the first respondent that he could have worked as a supervisor in his own business after the accident apart from 15 weeks' sick leave prescribed by his medical practitioner; failed to give sufficient weight to the evidence of the first respondent that he would have been able to work as a supervisor in his own business during 1998 when he was doing handyman jobs; and failed to take into account the evidence of a witness that the first respondent had said he was capable of working between January 1997 and January 1998 without any change to his work capacity.
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102 There was evidence that the first respondent had wound down his roof tiling business and was intending to take a break for some three months in the latter half of 1996. There was also evidence that he was capable of working as a handyman from at least 1998 onwards. Further, his doctor said that there was no reason why he could not have been working as a supervisor in the same period that he was working as a handyman and said that the first respondent had reported to him that there was no change in his working capacity between January 1997 and August 1998.
103 The learned trial Judge's calculations in respect of past loss of earning capacity appear to have been taken from a schedule provided to her by counsel for the first respondent. It is said to have revealed the figures which are set out in her Honour's judgment. Counsel for the first respondent submitted that the assessment of loss of earning capacity was conservative because the average earnings were taken over only a period of three years and had they been taken over a longer period, a greater figure would have been arrived at. It was contended that there was no need for any adjustment to be made for the potential three-month holiday for this reason.
104 The learned trial Judge did take account of the downturn in the first respondent's tiling business and took account of the fact that had his injury not occurred, market forces would have substantially reduced his earnings in the 1996 - 1997 year. She does not appear to have made specific allowance for the three-month holiday period because it was not mentioned in the short reasons which relate to past loss of earning capacity. However, I am not persuaded that when one looks at the assessment of damages under this head, it can be said that it was a plainly erroneous assessment of damages. It appears to me that it was a modest award and given the amount involved, I would not be prepared to alter it. In my view, ground 7 should be dismissed.
Ground 8
105 This ground contests the learned trial Judge's costs order pursuant to which a Sanderson order was made requiring the appellant to pay the second respondent's costs. The learned trial Judge gave reasons for her decision on costs. She pointed out that late in the trial before her, there had been an opportunity for both the first respondent and the appellant to free the second respondent from further participation in the case on the basis that there be no order for costs upon the first respondent and the appellant discontinuing the proceedings against the second respondent.
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- The appellant declined to accept this offer and the learned trial Judge found that she wrongfully pursued matters that were not raised in the pleadings and by her conduct, had rendered it fair in the circumstances that a Bullock order (Sanderson order) in regard to all of the costs of the first respondent in relation to the second respondent be paid by the appellant.
106 The findings made by the learned trial Judge included a conclusion that there was no evidence brought, or anything put to the second respondent that challenged its basic case that it did not erect the scaffolding at the site. Her Honour said that nothing ever came forward in support of the appellant's contentions and counsel for the appellant had sought to raise extraneous matters in cross-examination which had been disallowed.
107 The reality of the situation was that the appellant chose not to accept a proposal by the second respondent whereby it withdrew from the proceedings on the basis that there be no order as to costs. Costs could thus have been avoided in those circumstances. The appellant chose to continue, without any apparent justification for this. In the circumstances, her Honour had a discretion to make the order which she did and I would not interfere with the exercise of that discretion. I would dismiss ground 8.
108 It is unnecessary to deal in detail with the comprehensive written submissions of the second respondent which were before the Court. I accept the second respondent's submission that it was proper in all the circumstances for the appellant to be liable for the entire amount of the second respondent's costs and the Sanderson order should not, in the circumstances, be disturbed.
109 It follows, in my view, that this appeal should be dismissed.
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