Head v Pick

[1998] QCA 17

IN THE COURT OF APPEAL	[1998] QCA 017
SUPREME COURT OF QUEENSLAND

Appeal No. 8817 of 1996

Brisbane

[Head v Pick]

BETWEEN:

PAUL FRANCIS HEAD

(Plaintiff) Appellant

AND:

LESLIE PICK

(Defendant) Respondent

Fitzgerald P
McPherson JA

Byrne J

Judgment delivered 27 February 1998

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS:	NEGLIGENCE - personal injuries - duty of care - appellant alleged that the respondent's negligence caused injuries sustained in fall.
Bus v Sydney County Council (1989) 167 CLR 78 at 90; Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 at 23, 42, 68 cited.
Counsel:	Mr S.S.W. Couper QC, with him Mr P.O. Land for the appellant Mr D.C. Andrews for the respondent
Solicitors:	Vincent Norrin Associates for the appellant Quinlan Miller & Treston for the respondent
Hearing date:	17 February 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8817 of 1996

Brisbane

Before Fitzgerald P

McPherson JA

Byrne J

[Head v Pick]

BETWEEN:

PAUL FRANCIS HEAD

(Plaintiff) Appellant

AND:

LESLIE PICK

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27 February 1998

The respondent asked the appellant to help him to install a television aerial on the roof of his

house at Moranbah. On the afternoon of 25 September 1991, the appellant was injured when, whilst

walking backwards and not looking where he was going, he fell from that roof. The central issue in this

appeal against the dismissal of the appellant's action for damages for negligence is whether the trial judge

erred in concluding that the appellant had failed to establish that the respondent's negligence caused the

injuries sustained in the fall.

By the statement of claim, the appellant contended that the incident was caused by three

omissions on the respondent's part, viz. failing to warn of a “lack of uniformity of the width of the roof”;

failing to provide a safety harness; and failing to supply edge marking on the roof.

The house was of a design and appearance “not uncommon” (as the trial judge expressed it)

in Moranbah. There were three bedrooms, a kitchen, a living-dining area and three other small rooms.

A verandah situated outside the living-dining area was contiguous with a covered carport. The house

was of a generally rectangular configuration. A hip roof was erected over the rooms, with a central

ridge running parallel to the longer sides of the house. The roof over the carport was a continuation of

the house roof. Because the carport did not extend all the way along the house, the roof over the

carport and the house had, his Honour found, a “broad L-shape with the stem of the L covering the

house and the foot of the L covering the carport”. The roof over the rooms and the verandah had a very

low pitch; the gradient was greater over the carport.

The respondent placed a ladder against the roof beside the verandah so that the top of the

ladder touched the roof near the place where the roof over the house joined the roof over the carport.

He got onto the roof. There he carried the aerial about, trying to find the best place for it. The aerial was

made from 1 inch boxing, was about 10 feet long, and weighed about 3 kg. At this stage, the appellant

was inside the house, operating the controls of the television. The two men communicated through

walkie-talkie sets. After a while, the appellant told the respondent that he was having no success and

did not understand the controls of the television. The respondent descended and there was a discussion

between the men. Afterwards, the appellant climbed up the ladder and got onto the roof. He walked

up to the ridge before crossing to the other side where the aerial had been left. He picked up the aerial

and walked back towards the ridge. There was not enough cable for him to proceed further, and to

that point he was not able to produce a satisfactory image on the television set. So the appellant climbed

down the ladder to extract more cable. He then went back onto the roof where he took hold of the aerial again and walked up to the ridge. Next he decided to cross the ridge and to walk down the other

side.

The appellant found that the cable attached to the aerial kept catching on screws that held the

roof in place. He thought it would be easier to carry the aerial while walking backwards, flicking the

cable free if it were to catch again. Holding the aerial upright, communicating with the respondent by

walkie-talkie, the appellant walked backwards, occasionally looking over his right shoulder. As he

approached the gutter, he heard from the appellant through the walkie-talkie that the television reception

was improving. By this time, over his right shoulder, he could see the roof as it stretched to the carport.

However, the appellant, it seems, did not also look over his left shoulder as he neared the gutter. When

he reached the edge of the roof, he stepped backwards and fell to the concrete 10 or 12 feet below,

fracturing bones in his heel.

The danger was obvious. The roof configuration was readily detectible from the ground. No

less importantly, as the judge found, the position in which the ladder had been placed:

“meant that when anyone went up that ladder or came down it and looked along the line of the roof, that person would see that the roof was of an L shape and that the roof over the carport extended much further than did the roof over the rest of the house.”

Some other facts germane to liability were common ground: that the respondent did not warn

the appellant “of the lack of uniformity of the width” of the roof; that no edge marking had been placed

on the roof; and that no safety harness was supplied. And there was no allegation in the statement of

claim or, if it matters, any suggestion in the evidence that the respondent knew, or ought reasonably to

have suspected, that the appellant might cross the roof by walking backwards or proceed in some other

fashion which inhibited his capacity to look where he was going. It was in these circumstances that it fell

to the judge to decide whether any of the pleaded omissions constituted a breach of the respondent's duty to exercise reasonable care for the appellant's safety and, if so, whether such a breach was a cause

of the fall.

The appellant testified. He did not say that he was unaware of the absence of “uniformity” of

the roof line as he walked about the roof. As the roof configuration was, as the judge said, “plain to

see”, that is not surprising. However, despite the obviousness of the L-shape of the roof, it is contended

that the exercise of reasonable care required the respondent to tell the appellant before he got onto the

roof something like this: “When you are walking about the roof carrying the antennae, as you come to

this side (where the carport is located), take particular care because the carport roof may mislead you.”

The judge held that a reasonable householder in the position of the respondent would not have warned

of the “lack of uniformity” of the roof, for the reason that it was obvious.

The configuration of the roof, and therefore the danger, were obvious to any reasonable person

and, as the case was presented at the trial, the respondent had no particular reason to anticipate that

the danger might have been overlooked by the appellant as he walked about the roof carrying the aerial.

In these circumstances, in forming a view about what was reasonably required of the respondent in the

interests of the appellant's safety, it was open to the judge to conclude that a warning of the kind

suggested was not called for. Generally speaking, the reasonable person ordinarily takes some account

of the possibility that others may come to harm through their own inadvertence or negligence: Romeo

v Conservation Commission of the Northern Territory [1998] HCA 5, at 23 per Toohey &

Gummow JJ, 42 per Kirby J 68 per Hayne J; Bus v Sydney County Council (1989) 167 CLR 78 at

90. But the reasonable person does not always take precautions to guard against the occurrence of

every conceivable risk of harm to others. And the judge was not in error in concluding that a warning

of the kind suggested was a precaution that was not reasonably required. Such a warning could not have been expected to add significance to the respondent's appreciation of the all too apparent risk that he

could fall off the roof and seriously injure himself if he did not look where he was walking.

That conclusion has a dual significance. It shows both that the omission to give the suggested

warning was not a breach of the duty of care owed to the appellant and that the appellant failed to

establish that its absence contributed to his fall. The appellant in his evidence did not claim, nor did the

evidence otherwise warrant a conclusion, that the warning would probably have prevented the fall. To

the contrary, because the appellant must have recognized the danger for himself, the warning, had it

been given, was much more likely to have been received as superfluous paternalism serving no purpose.

In dealing with the contention that a safety harness ought to have been provided, the judge

mentioned that the pitch of the roof was gentle, that there were no overhanging branches or hazards that

might have made the appellant's footing on the roof insecure, that it was daylight, and, most importantly,

that the edges of the roof were plain to be seen. No evidence suggested that safety harnesses were

ordinarily or even sometimes used in similar circumstances. The judge was therefore not in error in

concluding that it was not a breach of the relevant duty of care not to have provided a safety harness.

The risk of a mishap of a kind which eventuated was not such that a reasonable householder,

appropriately careful of the appellant's safety, would have taken such a precaution.

The third suggested breach of duty was disposed of by the judge's conclusion that the roof line

was “plain to see”. This meant that the suggested precaution could not have been expected to conduce

to the appellant's safety. Therefore, it was not reasonably required. It is also apparent from the

circumstances surrounding the fall that it was most unlikely that the adoption of the suggested precaution

would have prevented the fall. Here again, the appellant failed to establish that the absence of the

suggested precaution either constituted a breach of the duty of care or caused the fall.

On the hearing of the appeal, leave was sought to amend the statement of claim to develop a

new case that the respondent had negligently “failed to provide the plaintiff with an assistant” on the roof

to warn him that he was approaching the edge too closely. If the amendment is allowed, consequential

leave is sought to amend the notice of appeal to complain of the judge's omission to discuss the

allegation and to find the case established on the strength of it. The contention is, in essence, that the

respondent ought reasonably to have appreciated that the appellant might walk backwards or in some

other way deny himself the opportunity to perceive the limits of the roofline as he approached the

guttering, and that the existence of that possibility meant that the respondent, acting reasonably, ought

to have arranged for someone else to be on the roof as the appellant walked about.

By the appellant's solicitor's letter dated 3 September 1996, the respondent's solicitors were

informed that it was proposed to amend the statement of claim by making the additional allegation. The

trial, which commenced on 13 September 1996, concluded without any such application having been

made. The matter, however, was touched upon in the course of evidence from Mr Robinson, who had

driven past the house while the appellant was on the roof and who returned moments later to find him

lying on the ground. Mr Robinson was asked in his evidence in chief whether he would have lent “a

hand” if the respondent had asked him to assist in the installation of the aerial, to which he replied in the

affirmative. No objection was taken to the question; the matter was not taken up in cross-examination.

This single question was the only arguable indication before all the evidence was in that the appellant

proposed agitating the point foreshadowed by the letter but which had not been placed in issue through

a change to the pleadings.

During his closing address at the trial, the appellant's counsel, or so we have been informed, contended that Mr Robinson might have been enlisted as a lookout on the roof. This prompted a submission by counsel for the respondent that the case should be confined to that pleaded. After that,

no application was made to amend the statement of claim. No mention is made of the matter in the

reasons for judgment, no doubt because the judge did not regard the issue as having been litigated.

Moreover, there seems no reason to doubt that, as Mr Andrews told us, the case for the respondent

at the trial might well have been conducted differently had the appellant been allowed to amend to raise

the new case. In these circumstances, the application to this Court to amend the statement of claim

should be refused. If the allegation that the respondent had negligently “failed to provide the plaintiff with

an assistant” had formed part of the case pleaded and litigated, it would, in our opinion, have failed for

the same reason as the other particulars of alleged negligence.

The appeal must be dismissed with costs to be taxed.