Graham v Remo Constructions P/L - [2005] NSWCA 225

CITATION:
GRAHAM v. REMO CONSTRUCTIONS P/L & ANOR [2005] NSWCA 225

HEARING DATE(S):
03/06/2005

JUDGMENT DATE:

6 July 2005

JUDGMENT OF:
Mason P at 1; Bryson JA at 2; Hislop J at 30

DECISION:
Appeal dismissed with costs.

CATCHWORDS:
NEGLIGENCE - employment (building site) - bricklayer in partly constructed residential building - worker exited from building by walking through opening for sliding door - worker claimed to have tripped on unstable metal cover placed over door runner (for glass door, not yet in place) - claim against employer (bricklayer subcontractor) and also against head contractor as occupier - DCJ did not accept worker's evidence of manner in which he tripped i.e. causation in instability in metal cover - unsuccessful challenge to findings - consideration of Betts v. Whittingslowe reasoning - decision on facts.

CASES CITED:
Fox v. Percy (2003) 77 ALJR 989
Betts v. Whittingslowe (1945) 71 CLR 637
Bennett v Minister for Community Welfare (1992) 176 CLR 408
TC by his tutor Sabatino v. State of New South Wales [2001] NSWCA 380

PARTIES:
Charles Graham – appellant
Remo Constructions Pty Ltd – 1st respondent
Richard Crookes Constructions Pty Ltd – 2nd respondent

FILE NUMBER(S):
CA 40401/04

COUNSEL:
H Kelly SC and Shoebridge – appellant
J Catsanos – 1st respondent
G Bateman – 2nd respondent

SOLICITORS:
Taylor & Scott – appellant
Hunt & Hunt – 1st respondent
Moray & Agnew – 2nd respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
11446 of 2001

LOWER COURT JUDICIAL OFFICER:
Sidis DCJ

CA 40401/04

MASON P
BRYSON JA
HISLOP J
WEDNESDAY 6 JULY 2005

GRAHAM v. REMO CONSTRUCTIONS P/L & ANOR

Judgment

1 MASON P: I agree with Bryson JA.

2 BRYSON JA: The appellant Mr Graham appeals against judgment for the defendants given by her Honour Judge Sidis in the District Court on 5 May 2004. Mr Graham sued the first respondent Remo Constructions, first defendant in the District Court, and the second respondent Richard Crookes Constructions, second defendant in the District Court, for damages for personal injuries which he suffered in a work accident on 1 December 2000. The work accident occurred at the building site at Liberty Grove, Concord West, New South Wales, where Mr Graham was employed by Remo Constructions as a bricklayer. Richard Crookes Constructions was the head contractor on the site and Remo Constructions was carrying out building work as a subcontractor, in the course of which Mr Graham was working on the 9th floor of a partly constructed residential building.

3 On 1 December 2000, a little after 9 am, when there was a break for smoko, Mr Graham left his worksite on the 9th floor, with the object of going to a canteen outside the building on the ground level. The hoist, referred to as the alimack, was not available, so he walked down the internal stairs and arrived at the foyer. There was no reason why he should not have used the stairs, or should not have been expected to…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] NSWCA 225
Decision Date: 6 July 2005

CaseChat Overview and Summary

Graham (the appellant) was a bricklayer employed by Remo Constructions Pty Ltd (the first respondent). He sustained injuries while working on a partly constructed residential building. The appellant claimed he tripped and fell while exiting the building through an opening intended for a sliding door. He alleged that he tripped on an unstable metal cover placed over the door runner, which was not yet fitted with a glass door. The appellant sued both his employer and the head contractor (the second respondent, though not named in the provided text) as the occupier of the site. The District Court judge did not accept the appellant's evidence regarding the manner in which he tripped, specifically finding that the instability of the metal cover was not the cause of his fall.

The primary legal issue before the Court of Appeal was whether the primary judge erred in finding that the appellant had failed to establish causation. This involved considering whether the appellant's account of the accident, as presented to the primary judge, was accepted and, if not, whether the primary judge's rejection of that evidence was justified. The appeal also implicitly involved a consideration of the principles of negligence, particularly concerning the duty of care owed by an employer to an employee and by an occupier to a lawful entrant, and the requirement to prove causation in such claims.

The Court of Appeal considered the primary judge's findings of fact, including the rejection of the appellant's evidence regarding the cause of his fall. The court noted that the primary judge had carefully considered the evidence and applied the relevant legal principles, including those discussed in cases such as *Betts v Whittingslowe*. The court found no error in the primary judge's factual findings or in the application of the law to those facts. The appeal was therefore dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	GRAHAM v. REMO CONSTRUCTIONS P/L & ANOR [2005] NSWCA 225
HEARING DATE(S):	03/06/2005
JUDGMENT DATE:	6 July 2005
JUDGMENT OF:	Mason P at 1; Bryson JA at 2; Hislop J at 30
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE - employment (building site) - bricklayer in partly constructed residential building - worker exited from building by walking through opening for sliding door - worker claimed to have tripped on unstable metal cover placed over door runner (for glass door, not yet in place) - claim against employer (bricklayer subcontractor) and also against head contractor as occupier - DCJ did not accept worker's evidence of manner in which he tripped i.e. causation in instability in metal cover - unsuccessful challenge to findings - consideration of Betts v. Whittingslowe reasoning - decision on facts.
CASES CITED:	Fox v. Percy (2003) 77 ALJR 989 Betts v. Whittingslowe (1945) 71 CLR 637 Bennett v Minister for Community Welfare (1992) 176 CLR 408 TC by his tutor Sabatino v. State of New South Wales [2001] NSWCA 380
PARTIES:	Charles Graham – appellant Remo Constructions Pty Ltd – 1st respondent Richard Crookes Constructions Pty Ltd – 2nd respondent
FILE NUMBER(S):	CA 40401/04
COUNSEL:	H Kelly SC and Shoebridge – appellant J Catsanos – 1st respondent G Bateman – 2nd respondent
SOLICITORS:	Taylor & Scott – appellant Hunt & Hunt – 1st respondent Moray & Agnew – 2nd respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	11446 of 2001
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ