Dowthwaite Holdings Pty Ltd v Saliba - [2006] WASCA 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DOWTHWAITE HOLDINGS PTY LTD -v- SALIBA & ANOR [2006] WASCA 72

CORAM: MCLURE JA
PULLIN JA
MURRAY AJA

HEARD: 18 NOVEMBER 2005

DELIVERED : 3 MAY 2006

FILE NO/S: FUL 188 of 2004

BETWEEN: DOWTHWAITE HOLDINGS PTY LTD
Appellant
AND
CARMEL CHARLES SALIBA
First Respondent
BRISTILE OPERATIONS PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FRENCH DCJ
Citation  :BARLEY - v - SALIBA & ORS [2004] WADC 247
File No  :CIV 2935 of 2001

Catchwords:

Tort - Negligence - Whether employee guilty of contributory negligence - Whether head contractor owed a duty of care to subcontractor's employee - Whether owner builder breached duty of care to subcontractor's employee - Apportionment between employee, employer, head contractor and owner/builder - Approach to determination of the reasonableness of an out of court settlement

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947(WA)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Occupational Safety and Health Act 1984 (WA)
Occupiers' Liability Act 1985 (WA), s 5

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Appealed allowed in part
Crossappeal allowed in part

Category: B

Representation:

Counsel:

Appellant:     Mr W S Martin QC & Ms E C McLennan
First Respondent           :     Mr S Owen-Conway QC
Second Respondent       :     Mr A Stavrianou

Solicitors:

Appellant:     Jarman McKenna
First Respondent           :     E N Stamatiou & Co
Second Respondent       :     Bennett & Co

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

Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424
Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375
Bakker v Joppich (1980) 25 SASR 468
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bitumen & Oil Refineries (Australia) Limited v Commissioner for Government Transport (1955) 92 CLR 200
Brambles Construction Pty Ltd v Helmers (1966) 114 CLR 213
Commissioner for Railways v Halley (1978) 20 ALR 409
Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563
CSR Ltd v Della Maddalena [2006] HCA 1
Czatryko v Edith Cowan University (2005) 79 ALJR 839
Donohue v Stevenson [1932] AC 562
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Edith Cowan University v Czatryko [2002] WASCA 334
Hardie & Co Pty Ltd v Seltsan Pty Ltd (1998) 196 CLR 53
House v The King (1936) 55 CLR 499
Jones v Bartlett (2000) 205 CLR 166
Kondis v State Transport Authority (1984) 154 CLR 672
Miller v Paua Nominees Pty Ltd [2004] WASCA 220
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Norbis v Norbis (1986) 161 CLR 513
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552
Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tame v New South Wales (2002) 211 CLR 317
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603
Warren v Coombes (1979) 142 CLR 531
Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100
Achron Pty Ltd v Serco Water (WA) Pty Ltd [2001] WASCA 141
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529
Commonwealth v Introvigne (1982) 150 CLR 258
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Hackshaw v Shaw (1984) 155 CLR 614
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jaensch v Coffey (1984) 155 CLR 549
James Hardie & Co Pty Ltd v Roberts (1999) 47 NSWLR 425
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388
Pennington v Morris (1956) 96 CLR 10
Reed v Fleming [2001] WASCA 424
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337
Stapley v Gypsum Mines Ltd [1953] AC 663
Syd Matthews & Co Pty Ltd v Cavanagh [2005] WASCA 178
Watt v Bretag (1982) 56 ALJR 760
Western Australia v Dale (1996) 15 WAR 464
Williams v Trimview Roof Restoration Pty Ltd [2001] WASCA 414
Wilsons and Clyde Coal Co Ltd v English [1938] AC 57
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65

MCLURE JA: This is an appeal from the decision of French DCJ in contribution claims brought by the appellant, Dowthwaite Holdings Pty Ltd ("Dowthwaite") against the first respondent, Carmel Charles Saliba, and the second respondent, Bristile Operations Pty Ltd ("Bristile"), in respect of a settlement sum paid by Dowthwaite to Mr Nigel Barley ("the plaintiff"). Mr Saliba had also claimed a contribution from Bristile.
Dowthwaite carried on the business of roof tiling. The plaintiff was a roof tiler employed by Dowthwaite. Bristile engaged Dowthwaite to undertake the installation of roof tiles on a two‑storey house being constructed by Mr Saliba ("the premises") on land which he owned and occupied.
On 18 June 2001, the plaintiff, in the course of his employment with Dowthwaite, fell from the second storey of the premises resulting in injuries which rendered him a paraplegic. In November 2001 the plaintiff commenced proceedings against Dowthwaite and Mr Saliba. He claimed damages for negligence from Dowthwaite and damages for negligence and breach of s 5 of the Occupiers' Liability Act 1985 (WA) against Mr Saliba.
In November 2002 Dowthwaite consented to judgment for the plaintiff in the sum of $1,150,000 exclusive of payments made under the Workers' Compensation and Injury ManagementAct 1981 (WA). Thereafter, Dowthwaite commenced contribution proceedings against Mr Saliba and third party proceedings for contribution against Bristile. The total amount of Dowthwaite's claim for contribution was $1,311,983 comprising the judgment sum of $1,150,000, $30,000 paid to the plaintiff for his costs and the balance being workers compensation payments.
The trial Judge found that the plaintiff had failed to take reasonable care for his own safety; that Dowthwaite was negligent; that Mr Saliba was negligent and in breach of s 5 of the Occupiers' Liability Act; that Bristile's duty of care did not extend to the interior of the premises and accordingly it was not negligent; and a just and equitable apportionment of responsibility for the plaintiff's loss was a third to each of the plaintiff, Dowthwaite and Mr Saliba. The trial Judge ordered that Mr Saliba contribute $437,328, being one‑third of the total of the judgment sum, $30,000 costs and workers' compensation payments made to the plaintiff (which together must total $1,311,984).
Dowthwaite abandoned one ground (no 1) and added two (nos 10 and 11) at the hearing of the appeal. In broad terms, Dowthwaite claims the trial Judge erred:
1.in finding that the plaintiff was contributorily negligent (grounds 2 ‑ 4);
2.in apportioning one-third responsibility for the loss to the plaintiff (grounds 5 and 6);
3.in finding that Bristile's duty of care did not extend to the interior of the premises (ground 7);
4.in the apportionment and calculation of the contribution of Mr Saliba (grounds 8 ‑ 11).
Mr Saliba cross‑appealed. He claims that:
1.as a result of steps he had taken to impede access to the second storey of the premises, he had discharged (not breached) his duty of care to the plaintiff;
2.the allocation of one‑third responsibility to him was outside the range of a sound discretionary judgment; and
3.Bristile's duty of care extended to the interior of the premises.

Background and findings

Mr Saliba obtained a building licence as an owner builder to build the premises. He had previous experience as an owner builder and had built approximately 15 houses although this was the first two‑storey house he had built. He did much of the construction work himself.
Mr Saliba entered into a written contract with Bristile for the supply and installation of clay roof tiles at the premises. The contract expressly provided that Mr Saliba was to supply at his own cost scaffolding, hoists, safety rails etc, and continued:
"Safety requirements are governed by the Occupational Health, Safety and Welfare Act of 1984 and its amendments of 1988. Should you have any queries please call the Tile Supervisor for safety requirements on your particular job … "
The contract also provided that at least five working days prior to requiring roof tiles a nominated person at Bristile had to be contacted which prompts "the supervisor to check your site for our requirements including safety issues".
Mr Neville Stone had been a Bristile tile supervisor for 27 years and gave evidence of Bristile's procedure. Following a request from a builder for the installation of roof tiles a supervisor would attend at, and inspect, the site and liaise with the builder regarding any safety issues. He would then organise delivery of the tiles and for a tiling contractor to go to the site. After the tiles were delivered, a Bristile tile supervisor would inspect the site again to ensure the premises were ready for installation including the erection of any required scaffolding and other safety requirements.
Dowthwaite had a standing subcontract with Bristile for the fixing of roof tiles on projects agreed to from time to time. Bristile, by its subcontractor Dowthwaite, installed the upper storey tiles on the premises on 27 April to 3 May 2001. Mr Saliba made prior arrangements with Bristile for the installation on 18 June 2001 of tiles to relevant parts of the first storey of the premises, including the portico at the front of the premises and the double carport at the rear of the premises.
Dowthwaite was owned and controlled by Mr Stephen Cleggett. On the morning of 18 June 2001 Mr Cleggett and six employees of Dowthwaite were finishing a job in Murdoch. He instructed the plaintiff and Mr Joshua Brentnall to go to the premises ahead of the four other tilers who were packing up the equipment from the job in Murdoch. The plaintiff was an experienced tiler and Dowthwaite's leading hand who was responsible for giving instructions to members of the tiling team in Mr Cleggett's absence.
The plaintiff and Mr Brentnall arrived at the premises without ladders or other tiling equipment. For present purposes it is sufficient to note that tiling requires marking out or pegging the gauge on roof timbers on which battens are laid, nailed and cut in. The tiles are laid on the battens.
On 18 January 2001 the premises were incomplete. They were a construction site. Inside the house there was an internal staircase to the second storey. At the top of the staircase was a passage, the floor of which was a concrete slab. Diagonally across the passage from the top of the staircase was a Juliet balcony in front of an open space extending from the ground floor concrete slab to the top of the second storey ("the void"). At the time of the accident there was no guard rail or barricade preventing a person from falling from the edge of the Juliet balcony on the second storey.
On the day of the accident Mr Saliba had placed a number of wooden planks side by side on the top of the stairwell and an A-frame scaffold on top of some of the planks. The trial Judge found that Mr Saliba had placed the planks and the A-frame scaffold on the planks to enable him to fix cornices and apply cement render in the stairwell area. The wooden planks were not secured in any way save for those planks bearing the weight of the A-frame scaffold. As appears from a video containing images of the scaffold, it actually comprises two pieces of scaffold (more H‑shaped than A‑shaped), one at the back and one towards the front of the stairwell, connected to each other by side cross struts. Planks were placed on top of, and between, each piece of scaffold.
On the morning of 18 June the plaintiff went into the house and up the stairs to the second storey. He accessed the roof of the portico from an external balcony which he in turn accessed from the front bedroom and commenced pegging the roof to mark out where the battens were to be placed. The edge of the balcony was unprotected. After completing that task he re‑entered the house on the second storey and walked through it to access the carport roof. He commenced pegging that roof.
Mr Brentnall had been placing the battens against the roof gutters. He then commenced to transport the roof tiles close to the areas of roof to be tiled. He did this by going through the house. On his first trip he carried approximately six tiles on his shoulder up the stairs. He removed some of the planks at the top of the stairs to gain access to the second storey. He placed his first lift of tiles in a room adjacent to the portico roof. Mr Brentnall went to get a further lift of tiles but decided to remove the A-frame scaffold from the top of the planks to make access easier. He moved the first section of the A‑frame scaffolding to a bedroom and then asked the plaintiff to help him move the other frame. The plaintiff came from the carport roof through a window and grabbed the A‑frame scaffold. He started dragging it backwards. Before Mr Brentnall could shout a warning, the plaintiff fell backwards into the void. He landed on the concrete floor below.

Contributory negligence (grounds 2-4)

In Dowthwaite's appeal, the issue of contributory negligence arises in the context of the successful claim at trial that the settlement sum paid by Dowthwaite was excessive because it made no allowance for the plaintiff's contributory negligence.
The relevant legal principles are not in dispute. A person will be guilty of contributory negligence if he or she ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310.
However, in applying the standard of care to contributory negligence on the part of an employee, the Courts have taken into account a variety of factors that have a tendency to excuse the employee for inattention to his personal safety. As Windeyer J said in Sungravure v Meani (supra) at 37, it is for the tribunal of fact to consider whether:
" … inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions … caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man."
The circumstances and conditions in which the plaintiff had to do his work have to be taken into account: Bankstown Foundry (supra) at 10. An unsafe system of work increases the risk of injury to an employee through inadvertence: Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563 per Mason J at 572. In determining whether an employee has breached the standard of care, relevant matters to consider include the nature and extent of the risk of injury, the effective cause of the omission to take precautions, the nature of the precautions and a worker's knowledge or understanding of what is required of him by his employee: Commissioner for Railways v Halley (1978) 20 ALR 409 at 415.
It has been held by the Full Court in Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375 at 384 - 385 that where there are joint tortfeasors, the test whether an injured plaintiff has been guilty of contributory negligence is the same for each defendant even though one was the plaintiff's employer and the other a stranger. That is consistent with the fact contributory negligence differs from negligence in that there is no duty of care owed to another person: Ruprecht (supra) at 570.
The trial Judge relied on the following matters in concluding that the plaintiff was contributorily negligent:
(a)in attempting to move the A-frame scaffolding, the plaintiff pulled it backwards without checking that it was safe to do so;
(b)the plaintiff could have waited for ladders and other equipment to arrive on site before commencing work;
(c)it was not common for tilers to access the inside of premises and Bristile had, to the plaintiff's knowledge, not carried out any internal safety inspection as their practice was to inspect the exterior;
(d)the presence of the planks and the A-frame in the staircase while not a complete barrier made access difficult and this "should have alerted the plaintiff to the fact that workers or other persons were not gaining easy access to the upper storey and to the possibility that there may be some danger present such as unprotected voids".
(e)when the plaintiff went to assist Mr Brentnall he knew or ought to have known of the possibility that there may be other unprotected edges (in addition to the balcony) in the second storey.
The trial Judge found that the plaintiff's action in grabbing the A-frame and walking backwards without checking was an instinctive movement and reasonably quick and without hesitation which was consistent with the plaintiff's energetic approach to his work. However she concluded that in the circumstances to which she referred:
" … to attempt to move the A-frame scaffolding by pulling it backwards without checking that it was safe to do so was negligent. Such a deliberate act in those circumstances could not be characterised as mere inadvertence or inattention."
In reaching that conclusion, the trial Judge relied on the decision of the Full Court in Edith Cowan University v Czatryko [2002] WASCA 334. In that case the appellant, during the course of his employment with the respondent, was required to load and stack boxes onto the back of a truck. The truck was fitted with a mechanical lifting platform. When the appellant stepped backwards from the tray of the truck to where he expected the platform to be, he fell to the ground and was injured. One of the appellant's co-workers had lowered the platform without informing the appellant. The trial Judge found in favour of the appellant. On appeal, the Full Court found that the respondent had acted reasonably because he was entitled to expect that the appellant would look where he was going when stepping backwards, looking to see if the platform was in the appropriate position. The Full Court also found that even if the respondent was in breach of its duty of care by not making provision for a warning, the appellant's negligence in failing to look where he was stepping was to be regarded as a substantial cause of his injuries and liability would be apportioned to the extent of 70 per cent against the appellant. On appeal, the High Court concluded that the Full Court erred in holding that the respondent was not negligent: Czatryko v Edith Cowan University (2005) 79 ALJR 839. The respondent submitted that the Full Court's provisional finding of contributory negligence of 70 per cent on the part of the appellant should not be disturbed. The High Court disagreed. In a joint judgment, the Court said (at [18]):
"In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and [his co‑worker] were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than 'mere inadvertence, inattention or misjudgment'. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made."

In ground 2, the appellant contends the finding that the plaintiff's action was instinctive, quick and without hesitation leads to the inevitable conclusion that the plaintiff's conduct was nothing more than mere inadvertence, inattention, or misjudgement with the consequence that there is no contributory negligence. This ground focuses on the plaintiff's conduct which the trial Judge found was a cause of the accident (walking backwards without looking) without express reference to the other matters on which the trial Judge relied as summarised in (b) to (e) above.
It is tolerably clear from the reasons that the trial Judge did not find that the matters in (b) to (e) independently gave rise to a failure to exercise reasonable care but rather were circumstances that supported the conclusion that the plaintiff's conduct in grabbing the A-frame and walking backwards without checking was a failure to take reasonable care for his own safety.
Ground of appeal 2 is advanced on the assumption that the matters in (b) to (e) are correct. Grounds 3 and 4 relate specifically to the matters in (b) and (d). By ground 3, the appellant contends that the only finding reasonably open was that the plaintiff did not act unreasonably in failing to wait for ladders to arrive and in seeking to access the roof from the inside of the premises. The appellant contends in ground 4 that the trial Judge erred in finding that the presence of the planks and scaffold over the top of the staircase should have alerted the plaintiff to possible dangers on the second storey.
I start with ground 2 which, as already noted, assumes the correctness of the matters relied on by the trial Judge. The central question is whether, in the particular circumstances referred to by the trial Judge, the act which the trial Judge found to have caused the injury (moving backwards without checking it was safe to do so) was mere inadvertence, inattention or misjudgement and thus compatible with the conduct of a prudent reasonable man.
The circumstances in (b) and (c) are related. Both concern the original decision of the plaintiff (and Mr Brentnall) to perform their duties by accessing the roof from inside the premises. The trial Judge did not find that the failure to wait until a ladder was available was itself a failure by the plaintiff to take reasonable care for his own safety. This is apparent from the trial Judge's summation of the evidence of industry practice relating to tilers accessing the roof from the inside of premises. She said (at [57]):
"Witnesses who have had considerable experience in roof tiling or in supervising roof tiling confirmed that in the vast majority of cases (easily in excess of 90 per cent) tilers access the roof area from the exterior of buildings. Although there was some mention of safety issues this is generally because it is the only and easiest way of getting on the roof. Obviously in single storey residences the only means of access would be from the outside by using ladders and tile hoists to lift the tiles up. No doubt in most multi‑storey premises access will also be from the exterior. It would only be in cases where a lower storey roof is being tiled and there was access from inside the house to the lower storey roof that there would be any point in tilers gaining access to the roof by going through the inside of the premises. That is the main reason, coupled with concerns that the carrying of tiles through the interior of premises may cause damage, plus the speed of access by ladder, why most tiling jobs are accessed from the exterior."
This is an accurate summary of the evidence. If regard was had solely to the practice of roof tilers where roof access was possible from within the premises to be tiled, it is likely that the proportionate use of ladders would be significantly less. In any event, the evidence establishes that internal access occurred in around 1-5 per cent of all jobs.
Moreover, the trial Judge noted that there was nothing inherently dangerous about accessing a roof from the interior of premises unless the premises themselves were unsafe. Indeed, accessing a roof from a ladder carries its own inherent risks and a comparative risk analysis would be required, particularly if tiles were to be carried up the ladder. In this case, the roof edges were not protected by scaffolding, guardrails or otherwise and Dowthwaite did not intend to use a tile elevator to transfer the tiles to the roof. There was evidence that Dowthwaite was following accepted industry practice in these respects.
In any event, the evidence does not support a conclusion that the plaintiff acted unreasonably in his decision to access the roof from the premises. He did not act unreasonably because the plaintiff was acting in accordance with his employer's instructions to go ahead and start the job for Mr Saliba knowing that the ladders and other tiling equipment were to follow some time later.
Mr Cleggett's evidence was that he sent the plaintiff to Mr Saliba's address "to complete the lower roof and then ‑ told him to finish it off then he could knock off for the day". Mr Cleggett estimated that the plaintiff and Mr Brentnall left around 10 minutes before the rest of the tiling team who were packing up the equipment at the Murdoch job. This is consistent with the plaintiff's evidence that Mr Cleggett expected him to get on with the job for Mr Saliba without waiting for the ladders or the tiling equipment.
Further, although the plaintiff was, according to the trial Judge, aware that Bristile had not carried out an internal safety inspection, Bristile's tile supervisor (and safety representative) was also on site with the plaintiff before the accident and did not warn the plaintiff of any safety concerns. Mr Stone attended at the premises at approximately 9‑9.30 am. He said he walked through the premises on the ground floor and saw the plaintiff on the roof of the garage and Mr Brentnall standing battens up around the house. He saw Mr Saliba working on the rear skillion roof. Mr Stone noticed that there were no ladders or other tiling equipment on site. In response to a query from Mr Stone, the plaintiff advised him that he had got on the roof by walking up the stairs and out onto the roof through a window. Mr Stone said he told the plaintiff not to bring any tiles or material up onto the roof until the ladders and elevator arrived because of the risk that tiles might damage the inside of the house or the windows and because it was dangerous. The trial Judge was not satisfied that Mr Stone gave any warning to the plaintiff and, if he did, it was only with regard to concerns that the tiles may damage the interior if taken inside. Thus, the plaintiff's continued use of internal access was not in breach of any direction from Bristile, or at least, no safety direction. There is no suggestion that Bristile had authority to direct Dowthwaite or its employees on non‑safety issues
Matters (d) and (e) relate to what the plaintiff knew or ought to have known about the possibility of dangers. In relation to the presence of the planks and the A-frame scaffold, the trial Judge concluded (at [54]) "that they operated to warn any person negotiating their way around it that there was not free access to the upper storey". When considering the plaintiff's contributory negligence, the trial Judge draws the further inference that it was also a warning of the possibility that there may be some dangers present such as unprotected voids. Assuming the correctness of those inferences, they go no further than the unchallenged finding in (e) that the plaintiff knew or ought to have been aware of the possibility of unprotected edges in the second storey. However, it is clear from the Tiling Industry Code of Safe Work Practice (ex 20) that roof tiling has inherent dangers which, although they can be controlled, cannot be eliminated. It is difficult to attribute fault to the plaintiff in circumstances where there is a new risk from a relatively unusual working environment in an inherently risky occupation.
In the circumstances of this case, I am not satisfied that actual or constructive knowledge of the possibility of a danger or the other matters relied on by the trial Judge individually or collectively justify the conclusion that the plaintiff's conduct involved more than mere inadvertence, inattention or misjudgement. Dowthwaite owed a personal non‑delegable duty to take reasonable care for the safety of its employees: Kondis v State Transport Authority (1984) 154 CLR 672 at 687 ‑ 688 per Mason CJ. That duty encompasses an obligation to take reasonable steps to provide, inter alia, a safe workplace and a safe system of work: Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424 at [34]. The plaintiff's employer had directed him to commence work on the premises in advance of the other tilers and in advance of the ladders and other tiling equipment. In addition, Bristile's tile supervisor was present on site and aware of relevant matters. He gave no safety direction to the plaintiff or Mr Saliba. The plaintiff did not breach any standing or specific safety instruction from Dowthwaite (or Bristile) in accessing the roof from the interior of the premises. It was not a remote risk that tilers would, where possible, access the roof from the inside of premises to be tiled. Yet, there was no system to prevent or regulate internal access or to minimise the safety risks associated with such access.
The plaintiff's failure to wait for a ladder and his deliberate conduct in gaining access to the roof from the interior, even after he knew and ought to have known of the possibility of dangers, does not in my view affect the characterisation of the conduct that caused the damage. The plaintiff's conduct in moving the A-frame was in the course of performing his duties as an employee and in order to facilitate the timely conduct of the tiling job. The fact that his action in grabbing the A-frame and moving backwards without checking was instinctive, quick and without hesitation indicates his preoccupation with the matter in hand which caused a temporary inadvertence to danger or a lapse of attention. In my view, the trial Judge erred in concluding that the plaintiff had failed to take reasonable care for his own safety. I would uphold ground 2.

Grounds 3 and 4

In the event I am wrong and the trial Judge did impliedly find that the plaintiff acted unreasonably in accessing the roof from inside the premises, I would uphold ground of appeal 3 as I have concluded, for the reasons set out above, that such a finding was not reasonably open on the evidence.
As to ground 4, the trial Judge found that the planks and A-frame scaffold in the stairwell were not placed there by Mr Saliba to prevent access to the upper storey of the building but to provide a working platform. His assertion to the contrary was rejected by the trial Judge as being an explanation proffered to ameliorate his responsibility for the unprotected void. However, Mr Saliba's purpose is not directly relevant to the objective question of whether the existence of the planks and scaffold would convey to the ordinary reasonable person in the position of the plaintiff a warning of the possibility of the existence or danger of an unguarded void.
It can be accepted that the arrangement impeded access. Indeed that is why Mr Brentnall wanted to remove it and sought the plaintiff's assistance to do so. However, I am not persuaded that it conveys the warning contended for. The planks did not cover the whole stairwell and were not secured. There was no accompanying sign prohibiting access to the upper storey or warning of relevant dangers. The house was a construction site with work continuing. The arrangement looked like what it was intended to be, namely a working platform. In these circumstances, I am not persuaded that a reasonable tiler would infer from the mere presence of the planks and A‑frame that he was being warned of the possibility of the existence or danger of an unguarded void. I would uphold ground 4. However, even if I am wrong, the inference drawn by the trial Judge goes no further than her unchallenged finding that when the plaintiff went to Mr Brentnall's assistance he knew or ought to have known of the possibility of unguarded edges in the second storey.
As I have concluded that the plaintiff was not contributorily negligent, it is unnecessary to consider Dowthwaite's challenges to the extent of the apportionment of liability to the plaintiff and the apportionment and calculation of Mr Saliba's contribution. However, as the matters were fully argued and for the sake of completeness I propose to address those grounds but will do so after considering Dowthwaite's and Mr Saliba's challenge to the trial Judge's findings concerning Bristile.

Ground of appeal 7 and Grounds of cross-appeal 3 and 4.

The appellant contends that the trial Judge erred in finding that Bristile's duty was limited to the exterior of the premises when in all the circumstances it was reasonably foreseeable that the appellant and its employees would be likely to access the interior of the premises and given:
(a)the finding that if there was no access from the exterior, the safety inspection that Bristile had instigated as part of its system had to be carried out internally;
(b)Dowthwaite contracted exclusively to Bristile and was generally subject to the direction and control of Bristile;
(c)in the event there were any safety issues on the site, Dowthwaite would contact Bristile to rectify the safety issues;
(d)Dowthwaite and its employees would regularly access the interior of the premises and Bristile was aware of that;
(e)Bristile did not inform Dowthwaite that its safety inspections were limited to the exterior of premises;
(f)Bristile, in its contract with Mr Saliba, specified that Bristile's supervisor would " … check your site for our requirements including safety issues";
(g)Mr Saliba was an owner/builder and Bristile took more care in relation to owner/builders.
Mr Saliba's grounds (3) and (4) overlap with Dowthwaite's. He also relies on the terms of his contract with Bristile and Bristile's contract with Dowthwaite, Bristile's knowledge that on occasions tilers would access the interior of premises and its actual knowledge (by Mr Stone) prior to the accident that the plaintiff had accessed the roof from the internal stairs. Mr Saliba also contends the trial Judge erred in limiting the duty because Bristile knew on the morning of 18 June prior to the accident that there was no scaffolding, hoists, guardrails, ladders or other tiling equipment present on the exterior of the premises.
The trial Judge rejected the claims of Dowthwaite and Mr Saliba that Bristile had a contractual duty in relation to the safety of the premises. There is no appeal from that decision.
As to the tortious claim, the trial Judge found that the establishment and implementation by Bristile of its system of checking the premises gave rise to:
" … a duty of care owed by Bristile to subcontractors and their employees to exercise reasonable care in implementing the system it had put in place. However, the system of inspection does not extend to inspecting the interior of the premises unless access to the interior was necessary for the installation of the tiles. This only occurs on the rare occasion when the premises are built close to a boundary line or other building preventing access to the roof from the exterior."
Internal access in this case was not "necessary" in the limited way defined by the trial Judge. However, she accepted that when internal access was necessary, Bristile's duty would extend to ensuring that internal access did not put subcontractors or their employees in danger of falling from unguarded voids or open edges inside the premises.
In explaining her conclusion on the scope of Bristile's duty, the trial Judge said that Bristile had no control over the care and management of the premises, no control over the system of work employed by Dowthwaite to effect the installation and no control over the state of the workplace during the installation. Having regard to the evidence (detailed later in these reasons) the trial Judge can only be referring to direct control. She also referred to "practical problems" for Bristile in relation to changes in the condition of the premises between the date of its inspection and the dates of installation of the tiles.
As is clear from the trial Judge's reasons quoted above, she confined the duty to exercise reasonable care solely by reference to the scope of the system actually established and implemented by Bristile. As Bristile's system did not provide for inspection of the interior of premises unless access to the interior was necessary (in the sense of essential) for the installation of the tiles, there was, according to the trial Judge, no duty of care. The trial Judge's observations on control and practical problems cannot explain or justify the trial Judge's formulation of the duty. On the trial Judge's approach, any conduct outside the scope of Bristile's actual system is ipso facto outside the scope of any tortious duty of care. In effect, Bristile determined the scope of its duty of care. In my respectful opinion, the trial Judge erred in her approach to the determination of the extent or scope of the duty by failing to apply the test of reasonableness that governs its determination. The issue for this Court is whether the trial Judge arrived at the correct answer, notwithstanding the failure to apply the correct test. I start with the relevant legal principles.
Reasonable foreseeability of harm of the kind suffered is a necessary, although insufficient, condition for the existence of a duty of care. That requirement is satisfied if the risk of harm of the kind suffered is not far-fetched or fanciful but real: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317.
Reasonableness is the test for the imposition of a duty of care: Tame v New South Wales (2002) 211 CLR 317 at [35] per Gleeson CJ; at [109] per McHugh J; at [185] per Gummow and Kirby JJ; at [272] per Hayne J; and at [331] per Callinan J. There has been a return to the words of Lord Atkin in Donohue v Stevenson [1932] AC 562 at 580 that a duty is only owed to those:
" … so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
The practical content or extent of the duty is governed by the circumstances of each case: Jones v Bartlett (2000) 205 CLR 166 at [56] per Gleeson CJ; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [105] per Hayne J. In this case, the plaintiff suffered personal injury as a result of falling in the void, a risk that was created by Mr Saliba not Bristile. It is also relevant to have regard to the particular want of care alleged against Bristile by Dowthwaite and Mr Saliba. Dowthwaite claimed that Bristile was negligent because it:
(a)failed to properly inspect the premises to ensure it was safe to proceed with the installation work;
(b)failed to detect that the landing was unguarded and posed a danger to persons working on the premises;
(c)failed to warn Dowthwaite and its employees that the landing was unguarded;
(d)instructed Dowthwaite to commence the installation work when it knew or ought to have known that the premises were in a dangerous condition and hazardous to persons working on the premises.
Mr Saliba's allegations of breach are broadly similar. In substance, the case against Bristile is one of omission.
If there is a duty of care wide enough to encompass the particulars of breach, it is then necessary to determine whether Bristile's failure to eliminate or reduce the risk of harm showed a want of reasonable care (in accordance with Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J).

The first issue is whether harm of the kind suffered was reasonably foreseeable in the sense of it not being far‑fetched or fanciful but real. The trial Judge answered that question in the affirmative in the course of considering whether Mr Saliba was negligent. She found that it was reasonably foreseeable that tilers would access the lower storey roof by using the internal stairs of the premises. That finding is clearly in accord with the weight of the evidence and is not challenged.
The next question is whether reasonableness requires the duty to extend to the construction site as a whole, including the interior of the premises. Dowthwaite pleaded that Bristile owed a duty of care to ensure the premises were safe. Mr Saliba pleaded that Bristile's duty was to take reasonable care so as not to expose its subcontractors to unnecessary risk of injury. In its pleading, Bristile denied that it owed any duty of care. However, in its written submissions in the appeal, Bristile said it conceded at trial that it owed "a general common law duty of care to [Dowthwaite and its employees] within the work environment" which was "different to the higher duty owed by an employer to his employees". Thus, Bristile did not formulate the duty in the same restrictive way as the trial Judge. Its formulation is at a high level of generality so as to be of little assistance.
As previously noted, the extent of a duty is governed by the circumstances of each case. The nature and extent of Bristile's assumption of responsibility for directing Mr Saliba and Dowthwaite in relation to site safety is a significant factor in this case. The source of the role it assumed is to be found in the contractual obligations owed to Bristile by both Mr Saliba and Dowthwaite.
Bristile placed contractual liability for safety requirements and the provision of on‑site safety equipment (scaffolding, guardrails etc) on the builder with Bristile assuming both an advisory and supervisory role in relation to the builder's compliance with those requirements which are stated to be governed by the "Occupational Health, Safety and Welfare Act 1984" now called the Occupational Safety and Health Act 1984 ("Safety Act"). Bristile's contractual obligations to Mr Saliba were subcontracted to Dowthwaite. Under the subcontract between Bristile and Dowthwaite, Dowthwaite was also obliged to comply with the Safety Act. There was no contractual relationship between Mr Saliba and Dowthwaite.
The relationship between contractual and tortious duties of care was considered by the Full Court in Miller v Paua Nominees Pty Ltd [2004] WASCA 220 (the High Court granted special leave to appeal which it withdrew at the hearing of the appeal). Contractual and tortious duties are not necessarily coextensive even when a putative tortfeasor does not in fact stray beyond its contractual obligations. However, the role actually played by Bristile on safety in this case is consistent with the contractual arrangements.
The history also provides some context. Mr Cleggett was previously employed by Bristile as a tiler. Bristile decided to perform its supply and installation obligations through independent corporate contractors. Mr Cleggett incorporated Dowthwaite which eventually became a Bristile subcontractor. Bristile was Dowthwaite's sole client. Mr Cleggett gave evidence as to the nature and extent of Bristile's actual control and direction of Dowthwaite in relation to safety matters. If Mr Cleggett had a safety concern he would inform the relevant Bristile tile supervisor who would make an assessment of the matter. If the tile supervisor formed a view that there was a problem with safety, he would contact the relevant builder and inform him what had to be done. If the tile supervisor was of the view that the site was safe, Mr Cleggett would proceed with the work. Mr Cleggett's evidence was unchallenged.
Mr Stone and another Bristile tile supervisor, Mr J Rawlins, also gave evidence on the control question. As already noted, a Bristile tile supervisor addressed safety matters the responsibility of the builder at the two site inspections that preceded Bristile instructing a subcontractor to commence tile installation. Messrs Stone and Rawlins both confirmed Mr Cleggett's evidence concerning Bristile's assumption of responsibility to direct both the builder and the subcontractor on safety issues, including instructing the subcontractor to stop work until the builder had attended to a matter. Mr Rawlins described his approach as follows:
"All right. You gave evidence this morning that you might on job sites walk through half the houses that you might be working on?---Yes.
If you're at a building site, you're walking through the house for whatever reason and you notice a dangerous situation existing in that house, you would speak to the builder about it, wouldn't you?---Yes.
And you'd also speak to your tiler about it, as well, wouldn't you?---Yes.
You'd warn him about it because you wouldn't want him walking near it?---Yes.
That's just any construction?---Sorry?
Any type of construction?---Putting it bluntly, every single roof that goes on in Western Australia regardless of whether it's iron, tin, is a dangerous situation. You can't change that.
…
If outside access - if we are dealing with one of those jobs where external access to the roof is not possible in some situations, some parts of it, and your tilers have got to go through the inside of the house to get there and they've got to go upstairs and they come up the stairs and they are confronted with a void, an opening, that is unguarded, you'd speak to the builder about that, wouldn't you?---Yes, I would.
And you'd speak to the tilers about that?---Yes.
You would warn the tilers, 'Look, there's an unbarricaded void there. I've spoken to the builder about it, I've told him to fix it, don't go near it"?---Right.
You would do that, wouldn't you?---Yes, I would.
In fact, you'd go even further, wouldn't you, with an unprotected void that was in close proximity to the top of the stairs and you knew that your men were walking up there, you'd actually say to the tilers, 'Stop work until this is finished,' wouldn't you?‑‑‑Yes, yes.
While we are dealing with that, when they do stop work they don't get paid for any down-time or anything like that, do they?‑‑‑No."
The uncontradicted evidence is that Bristile assumed actual control of safety matters on site. Its control was indirect; it had a system of inspection and supervision and would instruct both the builder and subcontractor to address on site safety matters. In appropriate circumstances it would bring work on site to a halt pending action by the appropriate party. Its conduct was consistent with its contractual arrangements with Mr Saliba and Dowthwaite.
In these circumstances, there is no justification for narrowing Bristile's duty of care to particular parts of the worksite or particular parts of the premises on the worksite. I am satisfied that Bristile owed a duty to take reasonable care to avoid a foreseeable risk of injury to its tiling subcontractors (and their employees) in the course of their on site work.
There remains the question of breach. A failure to eliminate a risk that is reasonably foreseeable and preventable is not necessarily negligent; it is necessary to ask the further question whether the failure to eliminate the risk showed a want of reasonable care. That requires a consideration of the magnitude of the risk, the degree of probability of its occurrence and the exposure, difficulty and inconvenience of taking alleviating action and any other conflicting responsibility the defendant may have: Wyong Shire Council (supra) at 47 ‑ 48.
The answer to the breach question in this case is reasonably straightforward. The risk of harm was reasonably foreseeable. If regard is had to jobs where (as here) access to the roof can be obtained through the interior of the house, the likelihood of it occurring in that sample would be greater than the figure of 1‑5 per cent of all jobs. Having regard to the stage of construction of the premises at the time of the tile installation, there was also an appreciable risk of very significant injury as a result of unprotected edges and other sources of danger. I am persuaded that any practical difficulties could be overcome by inspecting the premises on the day installation is to commence, as happened in this case. The trial Judge did not explain why the alleged practical difficulties were not an impediment to Bristile on those limited occasions when internal access was essential. There is no proper evidential basis for concluding that any difficulty, cost or inconvenience was disproportionate to the risk. I am satisfied that Bristile breached its duty of care in failing to inspect the interior of the premises before confirming with Dowthwaite that work could commence. I would uphold ground 7.

Mr Saliba's liability (ground 1 of the cross‑appeal)

The trial Judge found that (1) Mr Saliba owed a duty of care at common law and under the Occupiers' Liability Act to keep the premises safe and prevent a foreseeable risk of injury; (2) it was reasonably foreseeable that tilers would access the lower storey roof by using the internal stairs; (3) Mr Saliba breached his duty of care to the plaintiff by allowing the Juliet balcony void to remain unprotected by a guardrail; (4) Mr Saliba had not discharged his duty of care by placing the planks and A‑frame scaffold at the top of the stairwell because it was, in the absence of an accompanying warning sign, an insufficient barrier.
The trial Judge rejected Mr Saliba's evidence that his purpose in placing the planks and A‑frame scaffold over the stairway was to prevent access to the second storey and his evidence that there was a warning sign at the foot of the stairs on the day in question that was removed by an unknown person.
Mr Saliba does not challenge the trial Judge's finding that he owed a duty of care to the plaintiff and that the injury of the type in question was reasonably foreseeable. His sole ground of appeal on liability is that the trial Judge erred in not finding that the combination of planks and scaffold was sufficient to discharge his duty.
There was also no challenge to the trial Judge's finding that the arrangement impeded (but did not prevent) access to the upper storey and by its mere presence warned of the possibility of the existence or danger of an unguarded void. I had concluded that the latter inference is not reasonably open. However, the outcome of this ground of appeal is in my view the same whether or not that inference is open.
In the written and oral submissions made on behalf of Mr Saliba reliance is placed on a number of matters which, having regard to the ground of appeal, can only relate to the degree of probability of the occurrence of the risk or other factors relevant to whether the failure to eliminate the risk showed a want of reasonable care. These matters include (a) that Mr Saliba did much of the work himself thereby reducing a number of contractors on site; (b) it was not necessary for tiling contractors to access the roof through the interior of the premises; (c) Mr Saliba had no knowledge that the plaintiff was proposing to access the roof in that way; (d) in the vast majority of cases tilers work from the exterior; (e) the plaintiff had to remove a plank or at the very least ease his way past one to get access to the upper storey; (f) the arrangement impeded access and was a warning of the possibility of dangers present including unprotected voids; (g) Mr Rawlins' evidence that he did not expect that tilers would remove planks and A‑frame scaffold and that of Mr Clarke (who had previously operated a tiling business) who said he would not do so; (h) the plaintiff could have waited for a ladder to arrive; (i) the plaintiff was Dowthwaite's leading hand and responsible for safety issues in Mr Cleggett's absence.
These factors do not individually or collectively reduce the degree of probability of the occurrence of the risk to a level that justifies a finding that an incomplete barrier to the upper storey is a reasonable response to the risk created by Mr Saliba in failing to install guard rails to unprotected edges in the upper storey where the potential for significant harm existed. I would dismiss ground 1.

Apportionment ‑ grounds 5 and 6 of the appeal and ground 2 of the cross‑appeal

I have concluded that the plaintiff was not contributorily negligent. I have also concluded that Bristile was negligent. However, as the matter was argued, I will consider Dowthwaite's grounds of appeal on the assumption that the trial Judge's conclusions on contributory negligence and Bristile's liability are correct.
Dowthwaite contends that apportioning one third liability to the plaintiff was outside the range of a sound discretionary judgment (ground 4) and that the trial Judge misdirected herself as to the appropriate test (ground 5).
The Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) ("Contribution Act") provides that in any proceedings for contribution the amount of contribution recoverable shall be such as may be found by the Court to be just and equitable (s 7(2)). The trial Judge correctly stated the test to be applied in making an apportionment under the Act. The High Court said in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494:
"The making of an apportionment … involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage. … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
The assessment of what is just and equitable involves a discretionary judgment because of the generality of the standard: Norbis v Norbis (1986) 161 CLR 513. It being a discretionary judgment, the principles in House v The King (1936) 55 CLR 499 apply. An appellate court can only intervene if there is a material error of fact or law discernible in the trial Judge's reasons. Alternatively, error may be inferred if the result is manifestly inadequate or excessive and thus outside the range of a sound discretionary judgment.
In this case the trial Judge concluded that the culpability of the plaintiff, Dowthwaite and Saliba could not be described as "gross" negligence from which she concludes that the element of "relative culpability of each party responsible is less significant than the question of the degree of causation". She continued:
"There is also little to distinguish the roles of each of the parties in the causation of the accident. I consider that in these circumstances the only just and equitable apportionment of responsibility between the three parties is an equal one."
On the assumption that contrary to my view the plaintiff was contributorily negligent, I am satisfied that the apportionment of one third responsibility to the plaintiff was outside the range of a sound discretionary judgment whether the other contributories be Dowthwaite and Mr Saliba alone or Dowthwaite, Mr Saliba and Bristile.
I see no error in the trial Judge's conclusion that there was little to distinguish the roles of the plaintiff, Dowthwaite and Mr Saliba in the causation of the accident. Mr Saliba created the hazard. Dowthwaite was the plaintiff's employer, had not provided a safe system of work and instructed him to commence work without waiting for ladders and other tiling equipment to arrive. The plaintiff walked backwards without looking. However, in my view, his culpability was significantly less than the others. He was acting in accordance with his employer's instructions, there was no system to address risks of the type encountered and his conduct was instinctive and without hesitation. On the assumption he was contributorily negligent, I would (but for the view of the majority to which I will return) apportion his responsibility at 10 per cent.
Mr Saliba contended (in ground 2 of the cross‑appeal) that apportioning one‑third liability to Mr Saliba was also outside the range of a sound discretionary judgment. I am not persuaded that this is correct. He created the danger posed by the unprotected edges. He was aware the danger existed and that tilers would be in attendance on site on the day in question. He knew the planks and A‑frame scaffold did not prevent access because on the morning of the accident he took another builder upstairs with him and they accessed the upper storey by shifting one of the planks sideways. The builder pointed out to Mr Saliba that there were no barriers across the Juliet balcony. He did nothing about it. I place no significance on the fact that he is an owner builder, having regard to the extent of his involvement in the building industry. Dowthwaite's error was not to have a system that protected its employees from dangers negligently created by Mr Saliba. I see no justification for disturbing the trial Judge's conclusion that they should bear equal responsibility.
I turn now to the determination of what is just and equitable on the basis that the plaintiff bears no liability for contributory negligence and Bristle was negligent in failing to inspect the premises.
I see no justification for distinguishing Bristile's culpability and contribution to causation from that of Dowthwaite or Mr Saliba. Bristile had assumed an advisory, supervisory and directing role in relation to safety matters. Further, it had actual knowledge, by its agent Mr Stone, that the plaintiff had accessed the roof by the stairs yet conducted no inspection and gave no direction or warning. In the circumstances responsibility should be apportioned equally between Bristile, Dowthwaite and Mr Saliba.

Apportionment/calculation of Mr Saliba's contribution (appellant's grounds 11)

Dowthwaite's contribution claim totalled $1,311,983 ("the settlement figure") of which $1,150,000 ("the judgment sum") was in satisfaction of its liability to the plaintiff excluding legal costs and the value of its workers' compensation payments. At trial, Bristile claimed that the judgment sum was excessive but only because it failed to reflect any deduction for contributory negligence on the part of the plaintiff. The way the trial Judge put it was that Bristile submitted that although the amount of $1,150,000 was a reasonable settlement for the plaintiff's injuries, it did not and could not reflect any deduction for contributory negligence. I have concluded that there was no contributory negligence by the plaintiff. On that basis, the settlement figure of $1,150,000 was conceded by Bristile to be reasonable and there was no challenge to the balance of the amount to which contribution was sought. Accordingly, each of Dowthwaite, Mr Saliba and Bristile are liable to pay one‑third of $1,311,983, being $437,327.66. Mr Saliba has already been ordered to pay that sum.
As I have concluded that there was no contributory negligence on the part of the plaintiff, it is necessary to determine the appellant's remaining grounds of appeal. However, I propose to address them for the sake of completeness. They are as follows:
"8.The learned trial Judge erred in law in finding that the sum in relation to the damages to be assessed was limited to … the settlement sum which [Dowthwaite] actually paid the plaintiff, and failed to take into account:
(a)that settlement within an appropriate range is acceptable;
(b)the cost to be incurred if the matter did not settle;
(c)the principle that reasonable settlements by defendants with plaintiffs before trial should be encouraged.
9.The learned trial Judge erred in fact and in law in finding that the appellant's settlement with the plaintiff 'included anything other than a very small and nominal amount that could be attributed to the possibility of contributory negligence …' by reference to the plaintiff's schedule of damages when:
(a)the schedule made no allowance for general damages;
(b)the schedule made no allowance for the sum of approximately $90,000 paid by way of compensation for past medical expenses;
(c)there was a possibility of the amounts claimed by the plaintiff changing prior to assessment by a court;
10.The learned trial Judge erred in calculating the contribution to be made by [Mr Saliba] to [Dowthwaite] by using her conclusion that the Plaintiff was contributorily negligent to arrive at the conclusion that [Mr Saliba's] contribution should be calculated by reference to the sum actually paid out by the Plaintiff … but then again reducing [Mr Saliba's] contribution by reference to the Plaintiff's contributory negligence and ordering that he only pay one‑third of the amount paid when, on her conclusions, she should have ordered that he pay one half of that sum …;
11.Alternatively, if the Trial Judge was correct in her conclusion that the Appellant's settlement with the Plaintiff was not reasonable, the proper course for her to follow was to assess the amount of the Plaintiff's claim, and then apportion liability amongst the parties she found liable for the Plaintiff's loss, including the Plaintiff, and then order contribution accordingly."

I start with the relevant legal principles. Section 7(1)(c) of the Contribution Act provides that where damage is suffered by any person as a result of the tort:
"(c)any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage … "
Section 7(2) provides:
"In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable; and the Court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity."
Thus, the Court's power to order contribution does not arise unless two conditions are satisfied. First, the claimant must be a tortfeasor liable in respect of the damage suffered by a person as a result of a tort. A claimant's cause of action for a contribution arises only once his liability is ascertained, including by way of judgment: Bitumen & Oil Refineries (Australia) Limited v Commissioner for Government Transport (1955) 92 CLR 200 at 210 and 212.
Second, the person from whom a contribution is recoverable must be a tortfeasor who is, or would if sued have been, liable in respect of the same damage. That condition focuses on the defendant's liability to the person who suffered the damage as a result of the tort. Thus, if there is a judgment dismissing the plaintiff's claim against that defendant, the second condition cannot be satisfied unless and until the judgment is set aside: James Hardie & Co Pty Ltd v Seltsan Pty Ltd (1998) 196 CLR 53.
Where the two conditions are established, the defendant in a contribution action can challenge the reasonableness of the amount paid by the claimant to the injured party. The Court in Bitumen said of the equivalent provisions in New South Wales legislation (at 212 ‑ 213):
"A decision that the liability imposed by the previous judgment is a liability which par. (c) of sub‑s. (1) contemplated does not necessarily mean that the tribunal which discharges the responsibility of fixing the amount of contribution under sub‑s. (2) of s. 5 cannot consider whether owing to the fault of the now plaintiff it stands at an excessive figure. No doubt the Court under sub‑s. (2) must accept the assessment as conclusive as to the existence and the amount of the liability of the plaintiff claiming contribution. The Court, however, is required to find what is just and equitable as an amount of contribution having regard to the extent of the responsibility for the damage of the tortfeasor against whom the claim is made. There does not seem to be any valid reason why that tortfeasor may not say to the tortfeasor making the claim, if he has improvidently agreed to pay too large an amount or by unreasonable or negligent conduct in litigation has incurred or submitted to an excessive verdict, that the excess is due to his fault and not to that of the tortfeasor resisting the claim. It would be a matter for the Court to consider under the heading of 'just and equitable'."
In this case, the parties accepted that the appellant's liability to the plaintiff had been ascertained and the second condition was satisfied because there was no relevant judgment between the plaintiff and Bristile. Further, both parties conducted the appeal on the basis that the Court's power to award contribution under s 7(2) of the Contribution Act was enlivened. In particular, the parties accepted that it was open to Bristile to contend that the settlement sum paid by Dowthwaite to the plaintiff was unreasonable because it failed to reflect any allowance for the plaintiff's contributory negligence. Neither party sought to rely on Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540 which may need to be revisited when an appropriate occasion arises.
Dowthwaite also accepted that it bore the onus of establishing that the settlement figure was reasonable. The Full Court of the Supreme Court of South Australia in Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552 (Saccardo (No 1)) was called upon to consider what a claimant for a contribution was required to prove where, as in this case, the claimant had consented to judgment in a specific sum in favour of the injured plaintiff. The Full Court, by majority held that in determining the basis for apportionment under the South Australian equivalent of the Contribution Act, the question was whether the consent judgment was objectively reasonable having regard to the state of knowledge of the claimant for contribution at the time of settlement but that there was no presumption that the quantum of settlement was reasonable. The Full Court cited with approval the judgment of Wells J in Bakker v Joppich (1980) 25 SASR 468 who rejected the assertion that the Judge in the contribution proceedings was required to himself or herself assess damages on the evidence as would be required in a personal injury action. Wells J rejected that proposition saying it was sufficient if the settlement was within the limits of reasonable tolerance, looked at as a settlement. As the trial Judge in Saccardo (No 1) had applied a presumption, the judgment was set aside and remitted to the Court at first instance.
As appears from Saccardo Constructions Pty Ltd v Gammon(No 2) (1994) 63 SASR 333 at 335, the High Court refused special leave to appeal from the decision in Saccardo (No 1) because the Full Court was correct that there was no presumption of law in favour of the reasonableness of the settlement. In the Court's reasons for refusing leave, however, the High Court disagreed with the view that a settlement is no evidence at all of the reasonableness of the amount agreed.
In Saccardo (No 2) King CJ identified from the authorities four propositions as to the law applicable where a defendant seeks to recover contribution towards its liability on a consent judgment to which the party against who he claims a contribution ("the third party) did not consent. They are:
1.The test as to whether the defendant can recover on the basis of the full amount of the consent judgment is the reasonableness of the settlement.
2.There is no presumption of law that the settlement was reasonable and the onus is on the defendant seeking contribution to prove in the proceedings against the third party, the reasonableness of the settlement.
3.The settlement is some evidence of its reasonableness and the defendant is not in all the circumstances required to call witnesses to establish that the amount paid was reasonable.
4.The circumstances in which the settlement was arrived at and any proper inferences therefrom may be evidence of the reasonableness of the same.
King CJ added that as the issue is the reasonableness of the settlement, it must be assessed in light of the facts which were known or ought to have been known by the defendant and his legal representatives at the time of settlement. That is consistent with the approach taken by the High Court in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603. In that case an insured claimed damages for negligence against his insurance broker for failing to make full disclosure to the insurer. The insured compromised his claim against the insurer for less than the full amount of the indemnity under the contract of insurance. The insured claimed from the broker the difference between what he would have been entitled to from the insurer if full disclosure had been made and the settlement sum. The question for the High Court was whether that was the correct measure, of damages in tort. The High Court held that to be the correct measure, as long as the settlement was reasonable when judged objectively by reference to the circumstances at the time, including the reasoning supporting the advice upon which the insured acted in accepting it.
In my respectful opinion, King CJ in Saccardo (No 2) correctly states the principles applicable to the determination of the appellant's claim.
In this case, the plaintiff was examined and cross‑examined on matters relating to the quantum of his loss and Dowthwaite tendered by consent a document entitled "Book of Other Quantum Documents". In addition, Dowthwaite prepared a schedule itemising its assessment of the quantum of the plaintiff's claim which totalled approximately $1.868 million. ("Dowthwaite's schedule"). It appears this was provided as an aide memoir to the trial Judge. The trial Judge also had before her a document entitled "The Plaintiff's Schedule of Damages" said to be dated June 2002 which she concluded was used by the plaintiff for the purposes of negotiating the settlement ("the Plaintiff's schedule"). The total of the claims in that schedule was around $1.5 million.
As recorded by the trial Judge in her reasons, Dowthwaite claimed at trial that the settlement figure did reflect a deduction for contributory negligence and that its stand at trial (that there was no contributory negligence) did not indicate that that was its position at the time of settlement nor that the settlement figure did not reflect some deduction for the possibility that the plaintiff could have been found to have been contributorily negligent if the matter proceeded to trial. However, Dowthwaite did not adduce any evidence as to what was taken into account in determining the settlement figure. I turn now to the trial Judge's reasons. The trial Judge said:
"I am satisfied that the one third proportion that Saliba should pay should be calculated as one third of the settlement figure of $1,150,000 together with a one third proportion of the plaintiff's costs of $30,000 and the workers' compensation payments …
Presumably, the effect of Dowthwaite's submissions … is that Saliba's one third proportion should be calculated on a figure greater than the total of the settlement sum of $1,150,000 plus compensation costs. It is, however, difficult to see how such a figure could be calculated to arrive at a just and equitable outcome that was not somewhat arbitrary. For example, while it could be argued that the settlement sum is relatively modest if it was to be taken as 100 per cent assessment of the damages arising from the plaintiff's injuries, it is unlikely that a figure as high as $1,800,000 would have been awarded if the matter had gone to trial and assessed by the Court."
After discussing the nature and extent of the plaintiff's disabilities, the trial Judge said that it was unlikely that the plaintiff would be entitled to all the aids and appliances and the amounts for future gratuitous services that had been included in Dowthwaite's schedule. Further, she concluded there was a possibility that the plaintiff would secure some form of employment in the future. She continued (at [85]):
"I note that in the book of quantum documents the schedule prepared by the plaintiff in June 2002 and no doubt used for the purpose of negotiating a settlement has as a total figure the sum of just over $1,500,000. Given that this figure included amounts that are covered by the workers' compensation payments there is only a difference of just over $200,000 between that and the consent judgment sum. In these circumstances I do not consider that it is likely that the settlement figure agreed to by Dowthwaite does include anything other than a very small and nominal amount that could be attributed to the possibility of contributory negligence. I do not consider that it would be just and equitable for Saliba to be ordered to contribute the one third proportion that I find to be his liability based on any figures greater than the settlement figure of $1,150,000 together with a one third proportion of the $30,000 costs and the amounts paid as workers' compensation payments."
Grounds 9 and 10 are related and I propose to deal with them first. The trial Judge inferred that the settlement figure did not include anything other than a very small amount for the possibility of contributory negligence by reference to the total of the plaintiff's claim which she said was $1.5 million (including amounts covered by workers compensation) and the settlement figure of $1,311,984.
I accept Dowthwaite's contention that the trial Judge made a material error in the course of drawing this inference. The trial Judge overlooked the fact that the plaintiff's schedule did not include figures for general damages or for past medical expenses for which Dowthwaite nominated $275,000 and $76,542 respectively in its schedule. Counsel for Bristile contended that the correct figure for general damages was $160,000. It was accepted that past medical expenses of $76,000 were omitted. The addition of $160,000 and $76,000 to the plaintiff's schedule produces a total of $1.736 million. To that sum would be added $30,000 for costs. The error invalidates the trial Judge's analysis leading to the inference she drew about contributory negligence. I would uphold ground 9.
I now turn to ground 10. As clarified in its written submissions, Dowthwaite's proposition is that the trial Judge:
(a)used her conclusion that the settlement sum made inadequate allowance for contributory negligence as the basis for rejecting any assessment based on quantum claimed by either the plaintiff or asserted by Dowthwaite in its schedules;
(b)then assessed Mr Saliba's contribution to be one‑third of the settlement sum which was to effectively double count the allowance for contributory negligence.
I am not persuaded that the trial Judge double‑counted in the way suggested by Dowthwaite. She concluded that it was unlikely that a figure as high as $1.8 million would have been awarded for 100 per cent of the plaintiff's injuries (that is, without regard to contributory negligence). She said the allowances made in Dowthwaite's schedule for aids and appliances, future gratuitous services and future economic loss were unlikely to be awarded. Against that background, she used what she understood to be the Plaintiff's negotiation starting figure, being the plaintiff's June 2002 claim of $1.5 million to which I have already referred. Comparing that sum with the consent judgment sum of $1.15 million, she concludes it contains only a nominal amount for the possibility of contributory negligence. I have upheld Dowthwaite's claim that that conclusion is based on a material error of fact. However, if the trial Judge was correct and the settlement figure did not represent any material discount for contributory negligence, there is no double counting. I would not uphold ground 10. On the other hand, it should be noted that the effect of the trial Judge's approach involves an implicit conclusion that a reasonable settlement sum was around $874,000 ($1,311,984 less the plaintiff's one‑third share) of which Mr Saliba had to pay half.
As to grounds 10 and 11, I accept that the trial Judge erred in principle in her approach to the question of whether the settlement was reasonable. As already noted, reasonableness is to be assessed objectively having regard to the circumstances at the time of settlement, bearing in mind the risks, costs and vicissitudes of litigation. The trial Judge determined reasonableness by reference to the conduct and subjective considerations of the settlement parties, particularly Dowthwaite. In particular, the trial Judge determined the reasonableness of the settlement figure primarily by reference to whether Dowthwaite made any material deduction for the possibility that the plaintiff may be liable in contributory negligence. The trial Judge did not address the critical question of whether the settlement figure was within the limits of reasonable tolerance looked at as a settlement. The conduct of the parties can be a relevant and weighty consideration in answering the question but it is not inevitably determinative. Further, the trial Judge's apportionment of liability after trial is not determinative of whether a settlement sum reflects a reasonable discount for the possibility of contributory negligence. A significantly smaller figure than one‑third would have been within a reasonable range.
Moreover, having determined that Dowthwaite did not make a material deduction for contributory negligence the trial Judge did not go on to determine what a reasonable settlement sum would be. The effect of what she did was to automatically, and without analysis, reduce the settlement figure by the full extent of the plaintiff's responsibility as determined by her after trial. She did so notwithstanding her earlier observation that the settlement figure was relatively modest if it was taken as compensation for 100 per cent of the plaintiff's injuries. If a settlement figure is determined to be unreasonable, the proper course is for a trial Judge to assess the quantum of the plaintiff's claim and then apportion liability and order contribution accordingly: Saccardo (No 2) at 338. I would uphold grounds 8 and 11 (in addition to ground 9).
The parties disagreed as to whether this Court has the necessary material to determine whether the settlement figure was reasonable and if not, to make its own assessment. My preliminary view is that it may not. However, as I have concluded that the plaintiff was not contributorily negligent it is unnecessary for me to determine the question.

Conclusion

For the reasons I have given, I would uphold Dowthwaite's appeal, uphold ground 3 but otherwise dismiss the cross‑appeal and order that

Dowthwaite, Bristile and Mr Saliba each be liable to contribute one‑third to the settlement figure.

However, Pullin JA and Murray AJA differ from me on some issues and differ from each other on others. By a majority, the Court has concluded that:
(i)the plaintiff was contributorily negligent (Pullin JA and Murray AJA);
(ii)Bristile was negligent (McLure JA, Murray AJA);
(iii)save for ground 3, Mr Saliba's cross‑appeal be dismissed (McLure JA and Murray AJA);
(iv)the trial Judge erred in her approach to the question whether the settlement was reasonable (upholding grounds 10 and 11 of the appeal) (McLure JA, Pullin JA). I stated a preliminary view that this Court does not have the necessary materials to make its own assessment of whether the settlement figure was reasonable. I agree with Pullin JA that it does not and the matter should be remitted to the trial Judge.
The remaining matter concerns apportionment. I concluded that liability should be apportioned equally between Dowthwaite, Mr Saliba and Bristile. Pullin JA concluded that liability should be apportioned equally between the plaintiff, Dowthwaite and Mr Saliba. Murray AJA concluded that liability should be apportioned equally between the plaintiff, Dowthwaite, Mr Saliba and Bristile. The majority have concluded that the plaintiff's liability should be equal to the tortfeasors. As the view of the majority must prevail, I agree with Murray JA's apportionment.
PULLIN JA: The issues on this appeal are whether the learned trial Judge was correct to find that the injured man, Nigel Barley, was guilty of contributory negligence, whether Bristile breached a duty of care to Mr Barley or Dowthwaite and should have been ordered to contribute to the damages payable to Mr Barley, whether Mr Saliba was guilty of negligence causing injury to Mr Barley and whether the allocation of one‑third responsibility to Mr Saliba and Dowthwaite was within the range of a sound discretionary judgment.

Bristile

Bristile admitted at the trial that it owed a duty of care to Mr Barley and to Dowthwaite in certain circumstances, but the content of the duty of care is an issue on this appeal. The trial Judge found that Bristile had established a system which imposed on Bristile a duty to subcontractors to inspect premises to ensure that the premises were safe for the tiling contractors and their employees, but that this duty did not extend to inspecting the interior of premises to ensure that there were no hazards such as unguarded voids that might cause injury to subcontractors. Her Honour concluded that "whatever the extent of the duty of care was in relation to the exterior of the premises it did not extend to an inspection of the interior in the circumstances of this case". Her Honour said:
"72 Bristile had no control over the care and management of the premises although its system involved a liaison between the builder and sub-contractors in relation to ongoing safety issues which could include safety issues inside the premises if access was required. After Bristile has been contacted by a builder and advised that the premises are ready for the installation of tiling the supervisor calls out to check whether the appropriate scaffolding has been installed. There may be a number of days between that inspection and the installation of the tiles during which there could be changes in the condition of the premises. It is difficult to see how Bristile could sustain an ongoing duty of care in relation to a broad range of safety issues in the premises when the inspection could have been some days prior to the arrival of the tilers. The responsibility for maintaining a safe environment in the premises is an ongoing responsibility of the occupier, Saliba.
73Once Dowthwaite is advised to attend at the premises responsibility for ensuring that the tilers are not exposed to hazards in the work place is also the responsibility of Dowthwaite as employer. It is the employer that has the opportunity of ascertaining the condition of the premises prior to and during the installation of the tiles and the employer who has the opportunity to instruct the tilers as to the system of work to be employed. If safety issues arise either during or before the installation of the tiles the usual practice is to contact Bristile to speak to the builder unless the builder happened to be present at the premises to allow for direct communication. As part of the general system in place Bristile would then contact the builder to rectify any hazards that had been identified. As with the advisory role this system of liaison does not translate into a duty to inspect and warn sub-contractors in relation to safety issues inside the premises. The role played by Bristile is analogous to the role of entrepreneur described by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47 – 48:
'The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent in themselves to control their systems of work without supervision by the entrepreneur … Once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur.'
74There is no issue in this case that the plaintiff was anything other than an employee of an independent contractor, namely Dowthwaite. …"

All of those proceedings were defended and it was those contribution proceedings which came before the District Court for trial in July and August 2004. The trial Judge held that the duty of care owed by Bristile did not extend to the interior of the premises. Her Honour therefore dismissed the third party proceedings brought against Bristile by Saliba and Dowthwaite. In relation to the contribution proceedings brought by Dowthwaite against Saliba, her Honour had regard to contributory negligence which she found on the part of the plaintiff Barley. She concluded that each of Barley, Saliba and Dowthwaite should be regarded as being equally responsible. She therefore reduced the total sum at issue, the judgment sum, the costs agreed for Barley and the workers' compensation payments made to him, a total of $1,311,984, by a third, the sum of $437,328, representing the contributory negligence of Barley. Her Honour then apportioned the balance equally as between Saliba and Dowthwaite, and she ordered Saliba to pay the sum of $437,328 by way of contribution to Dowthwaite.
To my mind, the issues raised in the appeal and cross‑appeal may be formulated as follows:
(1)Was Barley contributorily negligent? Dowthwaite, in the grounds of appeal 2 ‑ 4, raised various matters in support of the proposition that the trial Judge erred in so finding. The question is one of fact, and it is not said that the trial Judge erred in relation to the legal framework within which she considered this issue.
(2)If, however, this Court does not conclude that her Honour erred in that regard, Dowthwaite, by the appeal grounds 5 and 6, asserts that to apportion liability as to one‑third to Barley, was outside the supportable exercise of sound discretionary judgment. Again, although there is reference to the Judge erring in law, I think it is abundantly clear that this is simply a complaint about the conclusion of her Honour that a one‑third apportionment against the plaintiff Barley was appropriate.
(3)Did Bristile owe a duty of care, relevantly to Barley which extended into the interior of the building? This question is raised by both Dowthwaite, in ground of appeal 7, and Saliba, in the ground of cross‑appeal 3.
(4)If so, then Saliba, by the ground of cross‑appeal 4 (but strangely, I think, not Dowthwaite) makes the assertion that Bristile should have been found to be in breach of its duty and so it should have been drawn back into the apportionment.
(5)By the ground of cross‑appeal 1, Saliba asserts that he was not in breach of his duty of care to Barley, and again, although presented as an error of law, this is, in my view, merely a ground raising a question of fact.
(6)If Saliba was properly found to be negligent, was the contribution ordered against him appropriate? The grounds of appeal 8 ‑ 11 raise various factual aspects of this issue, and in so doing challenge the conclusion of the trial Judge as to the reasonableness of the settlement achieved between Barley and Dowthwaite and the process of calculation of the contribution. In ground 2 of the cross‑appeal, although it speaks confusingly of Saliba's contributory negligence, there is a complaint that the apportionment of one‑third liability against Saliba was substantially above what could be justified in the exercise of a sound discretionary judgment.
I turn first then to the question of contributory negligence, as it was put by the parties in argument, and think it is important to commence with a reference to the statutory scheme which provides the legal framework within which the trial Judge was to deal with the question of contribution to the judgment obtained by consent against Dowthwaite.
The Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 7(1)(c), provides that where damage (injury or loss) is suffered by a person as the result of a tort:
" … any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise …"
Dowthwaite was in that position. It was a tortfeasor liable under the consent judgment in favour of Barley in respect of the damage or injury which he suffered. It did not matter that the judgment against Dowthwaite was by consent. Its liability to Barley was thereafter res judicata. This is the classic mode of operation of the section: Brambles Construction Pty Ltd v Helmers (1966) 114 CLR 213 per Windeyer J at 221.
Dowthwaite was in a position to pursue a claim to recover a contribution from Saliba, and Dowthwaite and Saliba could pursue a claim for contribution from Bristile because Saliba and Bristile might, in the proceedings before the trial Judge, be established to be tortfeasors who were, or would if sued, have been liable to Barley in respect of the damage suffered by him. They would have been joint tortfeasors. In this case, as we have seen, the trial Judge found Saliba to have been negligent, but did not find Bristile guilty of that tort.
The next important provision is s 7(2) of the Act, which provides:
"In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable; …"
The question then, in relation to any defendant of contribution proceedings, will be what contribution is just and equitable for that defendant to make to the judgment which represents the liability of the plaintiff in the contribution proceedings, in this case Dowthwaite.
In a case such as this, therefore, the threshold question will be whether the defendant in the contribution proceedings is a person liable to make a contribution because that person is or would if sued have been liable in respect of the injury or damage suffered by the plaintiff, along with the defendant who is the plaintiff in the contribution proceedings. If so, the question posed in respect of each tortfeasor who is a defendant in the contribution proceedings is the extent to which they should be required to make a contribution which is just and equitable.
That is the point at which the question of the original plaintiff's contributory negligence may become relevant even in a case such as this where the liability of the tortfeasor who claims the contribution is fixed by a judgment which may have, but apparently did not, involve any reduction on the ground of the plaintiff's contributory negligence. That negligence can still be considered, as it was in this case, because it may be established that the tortfeasor claiming contribution has been improvident or unreasonable in consenting to a judgment for a figure which was too high, if regard is had to the plaintiff's contributory negligence.
But I should emphasise that in that regard there will generally be no requirement for the court in the contribution proceedings to consider the appropriateness of the quantum of the judgment entered in the principal litigation considered as an exercise of assessing damages for the injury sustained by the plaintiff. Such a challenge may be mounted by a defendant in contribution proceedings to assist in determining what contribution is just and equitable, but that was not done here.
The general process to which I have referred is that described in Bitumen & Oil Refineries (Australia) Limited v Commissioner for Government Transport (1955) 92 CLR 200, at 212 ‑ 213, where the High Court, speaking of the provisions in the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) and s 5(2), equivalent to our s 7(1)(c) and s 7(2), said:
"A decision that the liability imposed by the previous judgment is a liability which par (c) of sub‑s. (1) contemplated does not necessarily mean that the tribunal which discharges the responsibility of fixing the amount of contribution under sub‑s. (2) of s. 5 cannot consider whether owing to the fault of the now plaintiff it stands at an excessive figure. No doubt the Court under sub-s. (2) must accept the assessment as conclusive as to the existence and the amount of the liability of the plaintiff claiming contribution. The Court, however, is required to find what is just and equitable as an amount of contribution having regard to the extent of the responsibility for the damage of the tortfeasor against whom the claim is made. There does not seem to be any valid reason why that tortfeasor may not say to the tortfeasor making the claim, if he has improvidently agreed to pay too large an amount or by unreasonable or negligent conduct in litigation has incurred or submitted to an excessive verdict, that the excess is due to his fault and not to that of the tortfeasor resisting the claim. It would be a matter for the Court to consider under the heading of 'just and equitable'."
In this appeal, by grounds 2 ‑ 4, the appellant argues that the trial Judge erred by finding contributory negligence on the part of Barley. With respect, I do not think that her Honour erred in making that finding. The basis for her conclusion is summed up in [59] of her Honour's judgment: [2004] WADC 247, where she said:
"The plaintiff had been a leading hand for Dowthwaite and was an experienced tiler. He was aware that it was not common for tilers to access the inside of premises and was also aware that Bristile had not carried out any internal safety inspection as the practice was for them to inspect the exterior and the state of the exterior scaffolding. The presence of the planks and A-frame in the staircase void while not a complete barrier did make access difficult. This should have alerted the plaintiff to the fact that workers or other persons were not gaining easy access to the upper storey and to the possibility that there may be some dangers present such as unprotected voids. The plaintiff acknowledged in his evidence that Juliet balconies were common place in two storey homes. He should have been aware that there may be other unprotected edges in the second storey as he had accessed the portico roof by means of the unprotected balconies off the bedrooms. In those circumstances to attempt to move the A-frame scaffolding by pulling it backwards without checking that it was safe to do so was negligent. Such a deliberate act in those circumstances could not be characterised as mere inadvertence or inattention."
The evidence has been discussed in sufficient detail by McLure and Pullin JJA. To my mind, it was not relevant to the question of contributory negligence that, as referred to in ground 3, there were, in any event, dangers inherent in the tiler's work even if access to the roof was gained by ladders or other external arrangements such as scaffolding. The question was whether Barley's conduct in assisting to remove the planks and A‑frame so as to permit access internally up the stairs involved a negligent failure to take reasonable care for his own safety. Mr Barley acknowledged that he might encounter an unprotected void, and the simple fact was that he pulled the A‑frame scaffolding backwards without checking that it was safe to do so. This was not an act of mere inattention or inadvertence borne of the repetitious performance of a task which was part of the system of work and which could ordinarily be performed in safety. To my mind, on the facts, the case is clearly distinguishable from that of Czatryko v Edith Cowan University (2005) 79 ALJR 839, to which case McLure JA refers.
I put to one side for the moment the question next raised by Dowthwaite of the extent of Barley's contribution by negligence to the damage he suffered. In other words, I put to one side the question of the extent to which the amount of the judgment, costs and workers' compensation payments should be reduced on the ground that they include an amount to which it would not be just and equitable to require the defendants in the contribution proceedings to contribute.
I turn to the question whether the trial Judge erred in not holding that Bristile was a tortfeasor liable to make a contribution. In my opinion, her Honour did fall into error in that regard. The evidence has again been extensively discussed by McLure and Pullin JJA. I need not repeat the exercise. The matters which are significant to my mind are firstly that the contractual arrangements in standard form between Bristile and Saliba involved Bristile in safety matters concerned with the work site. Bristile's supervisor, in this case a Mr Stone, would inspect the site and ensure that it was safe for the delivery of the tiles and subsequently for the work to commence. On the day of the accident, because ladders and other equipment to provide access to the roof upon which the tilers were to work had not been provided by Dowthwaite, Barley and the other employee, Brentnall, commenced work without those things. Barley got on to the roof in question, and Brentnall also went up there, by going through the house. Brentnall interfered with the rough barrier that had been installed by Saliba to discourage use of the stairs.
Mr Stone arrived. He walked through the house on the ground floor and, seeing Barley on the roof without any means to get there externally, he confirmed with Barley that he had got there from the interior of the house. He told Barley not to do that, the Judge found, because to carry tiles and other things through the house might damage the interior. But Stone did not inspect the interior, in the areas likely to be used by Barley or at all, to determine whether it was safe to use it to gain access to the roof. In the circumstance that Stone knew that the men were using the interior of the premises to gain access to the roof in connection with their work as tilers it was, in my view, clearly within the scope of Bristile's duty of care to inspect the premises for safety. I respectfully agree with McLure JA. Bristile could not limit the duty of care which it otherwise assumed towards its contractors and their employees by ignoring reasonably foreseeable activity which might involve danger or risk of injury on the ground that, in the circumstances of the particular job, it judged that it was not necessary in carrying out the work for that danger to be encountered.
The next question then is, upon the basis that it fell within the scope of the duty of care owed by Bristile to inspect and do what it could reasonably to ensure the safety of the inside of the house for the class of workers of which Mr Barley was a member, was the duty of care breached? In my opinion, the evidence abundantly demonstrates that it was. The process of inspection was basic to the discharge of Bristile's duty of care. Had it undertaken a reasonable inspection there is no doubt, upon the evidence, that the dangers of the stairs and the unguarded void which caused the injury to Barley ought reasonably to have been apparent.
If it was not possible for Mr Stone to have those dangers remedied so that the interior of the house could be used to give safe access to the roof where the men were to work, then at least it would have been reasonable that Barley should have been warned, on safety grounds, not to use the Juliet balcony for the performance of the work. The evidence was that Barley disobeyed such an instruction issued on the ground that the house might be damaged internally, but there is nothing to suggest that he would not have obeyed an instruction on safety grounds, hence establishing the causal relevance of such a warning. Again, I put to one side the question of the extent of the contribution which would be proper or, putting it in the language of the section, just and equitable.
I turn to the position of Saliba and would unhesitatingly hold, in agreement with both McLure and Pullin JJA, that Saliba was rightly found to have been negligent. His breach of his duty of care was substantial. The Juliet balcony had, apparently, at one time been guarded, as it ought to have been, but of course, on the day in question that was no longer the position. Reliance was placed on the barrier at the staircase, involving the A‑frame and planks, to which the other members of the Court have referred. It was obviously meant to be an impediment to the use of the stairs, but it could readily be removed and that was precisely what the workers were in the process of doing when Barley was injured.
Saliba may not have known that the tilers would use this means of access, but he obviously (and rightly) anticipated that workers would use the staircase because he blocked it off, albeit ineffectively. It does not bear on the question of Saliba's negligence that Barley and his co‑worker might have proceeded by other means in relative safety. The question at this point is what reasonably should Saliba have done to alleviate the risk of a fall through the unguarded void. The answer is that he should have had a barrier which was effective. Saliba was not only negligent, but that negligence made a very direct and substantial contribution to the harm suffered by Barley.
That brings me then to the grounds of appeal which relate to the degree of the contribution to be attributed to the respective parties and to Barley. I start with the observation that, like their Honours McLure and Pullin JJA, I can see little to distinguish the contribution to Barley's damage made by Dowthwaite and Saliba. I have described what I consider to be the essential elements of Saliba's negligence. Dowthwaite, on the other hand, created a system of work which required Barley to go to the premises and commence work without providing him with the ladders and equipment necessary for him to carry out the work in relative safety. Dowthwaite was bound to anticipate that Barley would attempt to get on with the work in the best way he could, and it was not sufficient to have a system which relied upon the tilers to make their own assessment and, in effect, to be responsible for their own working conditions.
Similarly, it seems to me that Bristile, having been drawn into that situation in the way to which I have previously referred in these reasons, failed, at a basic level, to discharge its duty. All three of the breaches of duty respectively by Saliba, Dowthwaite and Bristile, seem to me to have made equally direct and important contributions to the harm suffered by Barley. Like McLure JA, I would not distinguish between them, but would apportion their responsibility equally.
As I read the relevant grounds of appeal, grounds 8 ‑ 11, and the appellant's argument in support of them, it is not contended that the trial Judge should have held that the amount of the settlement between Barley and Dowthwaite was excessive or unreasonable from the point of view of Barley's entitlement to damages, having regard to the injuries he suffered. There is therefore no need, in my view, to apply the apportionment considered appropriate on appeal to a sum other than the settlement figure, or to remit the matter to the trial Judge to assess reasonable damages anew.
It remains then to consider the contribution made by Mr Barley's negligence so as to determine that part of the judgment sum, workers' compensation payments and costs, to which Saliba and Bristile should be required to contribute. Again, it seems to me that Barley's negligence made a substantial contribution to the harm he suffered. It is evident, of course, that he only fell because he was endeavouring, in the absence of proper equipment supplied by Dowthwaite, to the knowledge of Bristile, to get on with the job in a way which brought him into contact with a danger created or permitted to remain by Saliba.
But to my mind, Barley's contribution was substantial because he simply paid no attention to what danger was behind him as he endeavoured to assist Brentnall to remove the barricade. He was heedless of his own safety in that way, despite his experience and the fact that he was aware that dangers of the kind which caused him to fall were quite likely to be encountered in the interior of a house which was in the process of being constructed. To my mind, his contribution to the harm he suffered was no less than that of each of Dowthwaite, the plaintiff in the contribution proceedings, and the two defendants in those proceedings, Saliba and Bristile.

I would take the view that it is necessary for this Court, in the light of the conclusions to which I have come as to the respective contributions of the parties, to set aside the judgment of the trial Judge and to give effect to those conclusions as they bear upon the factual judgment of what orders in the contribution proceedings it was just and equitable to make. In my respectful opinion, the task for this Court is that restated by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1, at [22], when, relying upon the earlier decision in Warren v Coombes (1979) 142 CLR 531, at 551, his Honour said:
" … where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'."
It follows that while upholding the decision of her Honour the trial Judge as to Barley's negligence and the equal contribution it made with others who were responsible, to the harm he suffered, I would allow the appeal and cross‑appeal to the extent necessary to require an equal contribution from Bristile, and therefore to set aside the judgment in its favour. Having done so, I would then enter the judgment as to contribution which, in my opinion, ought to have been made at first instance. I would hear the parties as to the orders to be made and as to costs, but essentially I would reduce the sum of $1,311,984 by a quarter, the sum of $327,996, for the contributory negligence of Barley and I would order each of Bristile and Saliba to contribute that sum to Dowthwaite, holding each party in the contribution proceedings to be equally responsible, with Barley, for the harm he suffered.