Hetherington v Mirvac Pty Limited

[1999] NSWSC 443

Reported Decision: [1999] Aust Torts Reports 81-514

New South Wales

Supreme Court

CITATION:	HETHERINGTON V MIRVAC PTY LTD & ORS [1999] NSWSC 443
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	20982/86
HEARING DATE(S):	February 2;3;4;5 1999
JUDGMENT DATE:	12 May 1999
PARTIES :	Garry Colin Hetherington Mirvac Pty Ltd Taylor & Scott Boral RoofTiles Ltd Keddies
JUDGMENT OF:	Wood CJatCL

COUNSEL :	R.P. McLoughlin SC with P.A. Regattieri (P) C. Simpson (1d) M.L. Williams (2d) G. Curtin (3d) N. Perram (4d)
SOLICITORS:	P: Hunt & Hunt 1D: Minter Ellison 2D: Colin Biggers & Paisley 3D: Phillips Fox 4D: Mallesons
CATCHWORDS:	NEGLIGENCE - breach of statutory duty - whether duty rests on persons "actually carrying out building work" or also on head contractor.; NEGLIGENCE - duty of care - scope of duty - whether head contractor liable under general duty of care to subcontractors - whether head contractor under non-delegable duty to provide safe system of work.; NEGLIGENCE - occupier’s liability - principles to be applied.; BUILDING AND CONSTRUCTION - subcontractors - whether employee or subcontractor.; CONTRACT - implied terms.; LIMITATION OF ACTIONS - commencement of limitation period - application for extension refused - when time begins to run - whether solicitors failed to sue relevant party in time. ; LIMITATION OF ACTIONS - applicability of principle enunciated by Deane J in Hawkins v Clayton (1988) 164 CLR 539.
ACTS CITED:	Limitation Act 1969 (NSW) ss 14(1), 23, 55(1), 61, 63(1). Construction Safety Act 1912 (NSW) and Regulations rr 73(1), 73(2), 73(3), 73(16), 73(17), 74(1). Limitation Act 1969 (NSW) ss 14(1), 23, 55(1), 61, 63(1). Construction Safety Act 1912 (NSW) and Regulations rr 73(1), 73(2), 73(3), 73(16), 73(17), 74(1). Limitation Act 1969 (NSW) ss 14(1), 23, 55(1), 61, 63(1). Construction Safety Act 1912 (NSW) and Regulations rr 73(1), 73(2), 73(3), 73(16), 73(17), 74(1).
DECISION:	Verdict for the defendants in principal proceedings; Verdict for cross-defendants on each of the cross-claims

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 20982/86

[1999] NSWSC 443

WOOD CJ at CL

WEDNESDAY 12 MAY 1999

HETHERINGTON v MIRVAC PTY LTD & 3 ORS

The plaintiff, a tiler, was injured when he fell through fibro sheeting onto a concrete floor on a construction site on 10 November 1982. There was an elaborate system of contracting and sub-contracting at the site. The plaintiff was an employer, director and shareholder of a company (G & S) which contracted with Boral (the third defendant) to fix the roof tiling which Boral had contracted with Mirvac (the first defendant) to supply for the various buildings on site. The roof framework fibro sheeting was fixed by a company which had a subcontract for that work with another company, which was itself a contractor to Mirvac for the carpentry work on site. This led to his first solicitors, Taylor & Scott (the second defendants), allegedly failing to sue the persons who were believed to have been the carpenters who had physically fixed the roof framework, and fibro sheeting, or the owners of the business that did such work, within the limitation period. The plaintiff engaged another firm of solicitors (Keddies), who in turn allegedly failed to bring action against Taylor & Scott in time.

The plaintiff sued the head contractor, Mirvac, in negligence and breach of statutory duty. He sued the sub-contractor of the tiling work, Boral, in negligence, breach of statutory duty, and breach of implied terms of the tiling contract that the roof would be safe for the plaintiff to work on. He sued both sets of solicitors, Taylor & Scott and Keddies, for negligence, and for breach of an implied term of their retainer to exercise reasonable care and skill.

HELD (finding for the defendants):

Claim against Mirvac and Boral
Breach of statutory duty
(1) The statute imposes obligations on persons actually carrying out building work, whether personally or by servants or agents. It could not be said that either Mirvac or Boral was actually carrying out the work. And as an independent contractor, the plaintiff could not be characterised as a servant or an agent of either Mirvac or Boral. The statutory duty rested on the plaintiff’s company, G&S.
HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 applied; Davey v Skinner (1961) SR (NSW) 648, Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) SC (ACT) 1, considered.

Liability of Boral as an Employer
(2) The plaintiff argued that he was an employee of Boral, as his company was only created at Boral’s request that all its sub-contractors form proprietary companies. This claim must fail. The plaintiff was an employer of G & S, which was an independent contractor; he was not an employee of Boral. Circumstances pointing to this fact were: payments were made by Boral to the plaintiff’s company, G&S, without any taxation deductions; roof tilers were expected to provide their own plant, equipment and trucks and to arrange their own insurance; G&S paid for all labour and materials (except tiles); the plaintiff declared himself as G&S’s employee on tax returns; he was not supervised and his work called for an application of trade skills; and there was no suggestion that Boral set working hours, or paid superannuation, long service leave or sick leave.
Boral Roof Tiles Ltd v O’Brien (NSWCA, 2 December 1994, Unreported), Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, followed.

(3) While the degree of control that a person who engages another can exercise over the latter is important and sometimes decisive, other considerations may prevail.
Queensland Stations Pty Ltd v Federal Commission of Taxation (1945) 70 CLR 539; Stevens v Brodribb Sawmilling Co Pty Ltd (supra), considered.

Liability of Mirvac and Boral under a general duty of care
(4) The general rule is that a principal is not liable for the negligent conduct of his independent contractor. There are two exceptions: where the principal directly authorises the doing of the tortious act; and where the principal engages the independent contractor to perform a duty resting on him and the independent contractor fails to perform it.
Smith v Lewis (1945) 70 CLR 256; Dorset Yacht Co Ltd v Home Office [1970] AC 1004, Perl Exporting Ltd v Camden LBC (1984) 1 QB 342; Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; Kondis v State Transport Authority (1985) 154 CLR 672; Stevens v Brodribb Sawmilling Co Pty Ltd (supra), cited.

(5) Had Mirvac or Boral been directly involved in the co-ordination or supervision of the work, or had the work been carried out by subcontractors in close physical proximity, or had there been any suspicion that this roof possessed any special risk, then liability might have ensued. But here, the trades followed one another, the roofing layout was identical to that elsewhere used on the site, the roof tiler was in a position to apply its own expertise, and there was no reason to suppose that the various contractors were other than competent themselves to control their system of work without the supervision of Mirvac or Boral.
Boral Roof Tiles Ltd v O’Brien (No2) (NSWCA, 15 December 1994, unreported) applied; McArdle v Andmac Roofing Co (1967) 1 WLR 356, Le Cornu Furniture and Carpet Centre Pty Ltd v Hamill (1998) 70 SASR 414 distinguished; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Ltd v Harris (1977) 188 CLR 313, considered.

(6) The plaintiff was not in position of particular vulnerability, as was understood to be an indication of the presence of a non-delegable duty in Northern Sandblasting Pty Ltd v Harris (supra). Nor should either defendant reasonably have been required to lay down and supervise systems of work under which either the carpenters carrying out the roofing work, or the plaintiff, should carry out their work.

(7) Any obligation to provide a safe place or system of work, or suitable plant and equipment rested directly on the plaintiff’s employer, G&S.

(8) A degree of carelessness must be expected and catered for. However the plaintiff here was a skilled tiler, and knew of dangers of stepping onto unsupported fibro. The simple truth is that he made a misjudgment for which he should be regarded as solely responsible.

Liability of Mirvac as occupier
(9) The old rules defining the duty of an occupier have now been absorbed by the ordinary rules of negligence.
Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Burnie Port Authority (supra), Lipman v Clendinnen (1932) 46 CLR 550, Franklins Self Serve Pty Ltd v Bozinovska (NSWCA, 14 October 1998, unreported), Wyong Shire Council v Shirt (1980) 146 CLR 40, considered.

(10) The plaintiff cannot gain any additional benefit by stating his claim in terms of the duty owed by an occupier. Precisely the same considerations that operated in answer to his claim based on general common law duty of care, apply here.

Liability of Boral under implied term of contract
(11) Boral’s contract was with G&S, not the plaintiff. In any event, the conditions required for an implication of such terms were not present here.
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, considered.

Claim against Taylor & Scott
(12) A solicitor is liable for failing to commence proceedings prior to the expiry of the limitation period.
Macrae v Stevens (1996) Aust Torts Rep 81-405, considered.

(13) To establish negligence or breach of professional retainer sounding in damages, the plaintiff must show that he lost something of value (here, the right to claim damages from the carpenters, who were not joined as parties). If no case was available against them, then the plaintiff suffered no loss.
Nikolaou v Papasavas (1988) 166 CLR 394; Johnson v Perez (1988) 166 CLR 351; Kitchen v Royal Air Force Association (1958) 1 WLR 563; Phillips v Bisley (NSWCA, 18 March 1997), considered.

(14) The plaintiff has not shown he had a cause of action against the carpenters. Therefore nothing of value was lost through the pleaded negligence of Taylor & Scott. For these reasons, there will be a verdict for Taylor & Scott, irrespective of whether the Limitations defence was made good.

Claim against Keddies
(15) Having regard to the conclusion reached in relation to the claim against Taylor & Scott, this claim fails at the outset.
(16) .However the Court dealt with Taylor & Scott’s limitation defence, that the limitation period for suing the carpenters expired on 10 November 1988, and that any cause of action against Taylor & Scott commenced to run from that date, and expired on 10 November 1994.

(17) Sections 14 and 63(1) Limitation Act 1969 (NSW) operate so as to extinguish the cause of action once the initial time for commencing proceedings has expired. However, if a successful extension of time application is later brought, then the earlier extinguishment is “annulled” and treated as though it never happened.
Commonwealth of Australia v Mewett (1997) 191 CLR 471 (per Toohey & McHugh JJ); The Commonwealth v Dixon (1988) 13 NSWLR 601 (per Hope JA), applied.

(18) The principle enunciated by Deane in Hawkins v Clayton (1988) 164 CLR 539, relied on by Keddies and by the plaintiff to extend the time for the commencement of the action, was not adopted by a majority of the High Court. Moreover it would apply only to circumstances where it is the very tortious act complained of which effectively precluded the pursuance of the cause of action within the limitation period. The present case does not fall into this category.
Sampson v Zucker (NSWCA, 11 December 1996) applied, Registrar-General v Cleaver (1996) 41 NSWLR 713; Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; Crisp v Blake (1992) Aust Torts Rep 81-158, considered.

(19) The argument advanced for Keddies that the plaintiff did not suffer a loss, so as to start time running, until his application for extension of time to sue the carpenters failed, is not supported by the judgment of the High Court in Wardley sought to be relied on.
Wardley Australia Ltd v State of Western Australia (supra), considered.

(20) Once the cause of action against the carpenters was barred, the plaintiff suffered an immediate and quantifiable loss, the avoidance of which could only be achieved by a successful extension of time application.

(21) The fiduciary duty owed by Taylor & Scott to the plaintiff did not extend to preventing the solicitors from relying on the Limitation Act when sued.
Sheldon v RMM Outhwaite Ltd [1996] 1 AC 102, considered.

(22) There was not the requisite “dishonesty or moral turpitude” or the consciousness of wrongdoing that would bring this case within s 55(1) Limitation Act.
Hamilton v Kaljo (1989) 17 NSWLR 381, Seymour v Seymour (1996) 40 NSWLR 358, considered.

(23) This case is not one where the loss was contingent, as in Wardley, or one that was dependent on extrinsic circumstances.
Wardley (supra); Cirino v Registrar-General (1993) 6 BPR 97-452; Registrar-General v Cleaver (1996) 41 NSWLR 713; Christopoulos v Angelos (1996) 41 NSWLR 700, distinguished.

ORDERS

(1) Verdict for the defendants in principal proceedings
(2) Verdict for cross-defendants on each of the cross-claims

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 20982/86 NSWSC 443

WOOD CJ at CL

WEDNESDAY 12 MAY 1999

HETHERINGTON v MIRVAC PTY LTD 3 ORS

JUDGMENT

1   WOOD CJ at CL: These proceedings came before the Court by way of claims against the first and third defendants for damages for personal injury; and by way of claims against the second and fourth defendants for damages for professional negligence.

THE PARTIES

2 The plaintiff was injured in an accident on 10 November 1982, at the construction site for the Cotswold Retirement Village in Bobbin Head Road, North Turramurra. The head contractor/developer for the construction of this village, which comprised eighteen residential buildings (known as cluster buildings), a hostel, and associated works was the first defendant (“Mirvac”). 3 Mirvac subcontracted the carpentry work for the roof and ceiling framing, including the fibro cement eave lining, to White River Timber Company Pty Ltd (“White River Timber”). That company provided the timber, fibro and nails required for this work, and subcontracted the labour to an entity trading under the business name Collis Construction Company, of which the registered proprietor, from 1 August 1982, was Dorgor Constructions Pty Limited (Dorgor). From 1 September 1983, Maului Construction Pty Limited was registered as a co-proprietor of that business name. The beneficial owners/controllers of those companies were respectively Gordon Collis and Louis Manfredotti. These two persons, along with some apprentices, were the carpenters on site during the relevant period. 4 Mirvac subcontracted the supply and fitting of the roof tiling to the third defendant (“Boral”), the agreed successor to Clark Tile Limited (Clark Tile). Boral subcontracted the fitting aspect of this work to G & S Roofing Pty Limited (“G & S Roofing”), a company formed and beneficially owned by the plaintiff. G & S Roofing was allocated work by Boral on a regular basis. On this site, it moved from one cluster building to the next, when advised by the Mirvac site foreman that the next building was ready for roofing. Boral, the plaintiff said, supervised his work in the sense of ensuring that it met the specified quality requirements. Additionally, he said, it resolved any problems on site, concerning shortage of tiles or problems with the builder or other trades that might hold up the roof tiling. 5 Consequent upon his accident, the plaintiff in January 1985 instructed his solicitors John Vaughan & Company, to commence proceedings at common law for the recovery of damages. Subsequently he withdrew his instructions from that firm, and from about October 1985 retained the second defendants (Taylor & Scott) to act as his solicitors. A statement of claim was filed in the Supreme Court by Taylor & Scott, on 10 November 1986, naming as defendants Mirvac, Dogor (Sic) and Maului trading as Collis Construction Company, and Boral. 6 Dorgor and Maului were deregistered on and from 27 February 1992. Prior to that date, on 26 February 1987 the solicitors for those two companies advised Taylor & Scott by letter, that they were uninsured, and that the insurance policy for the business was issued in the name of Messrs Collis & Manfredotti. 7 On 23 April 1993, Taylor & Scott, on behalf of the plaintiff, filed an “amended statement of claim,” purporting to substitute Messrs Collis and Manfredotti for the two deregistered companies. An application was made by Notice of Motion, filed on 28 June 1993, for orders under the Limitation Act 1969, or alternatively under Part 20 Rule 4 of the Supreme Court Rules, so as to extend the limitation period, or to permit the joinder of those persons as defendants in place of their companies. 8 That application was dismissed by Master Malpass, on 16 November 1993, it being held that the case was not such as to warrant an extension of time under S 58(2) of the Limitation Act, or an amendment of the Statement of Claim so as to correct any mistake in the names of the parties joined as second defendants. 9 Consideration seems not to have been given, at any stage, to joining White River Timber as a party. No complaint has, however, been made in these proceedings concerning any such omission. 10 Thereafter, in about November 1993, the plaintiff retained the fourth defendants (Keddies) to act as his solicitors. They filed a “further amended statement of claim,” on 20 December 1994. By this document they joined Taylor & Scott as second defendants, in place of the parties formerly joined as second defendants, upon the basis of their alleged negligence in not joining Messrs Collis and Manfredotti as defendants, within the relevant limitation period. 11 Taylor & Scott filed a defence alleging that this new claim was itself statute barred. An application for extension of the limitation period was filed on 24 March 1995, but was, on its return on 3rd April 1995, stood over generally, after it was realised that the provisions of the Limitation Act 1969 for extension of the time to institute proceedings, were inapplicable to actions for professional negligence of the kind contemplated. 12 The plaintiff again changed solicitors to a fourth firm, which filed a “further further amended statement of claim”, in which Keddies was joined as a fourth defendant, alleging that it was negligent in this instance in not commencing proceedings against Taylor & Scott within time, and in not retaining Dorgor and Maului as parties. 13 During the course of the hearing, that began on Tuesday 2 February 1999, some sixteen years after the plaintiff’s accident, and some twelve years after the plaintiff first attempted to initiate proceedings in this Court, the current solicitors for the plaintiff, who were the fifth firm he had retained, sought and received leave to file a “third further amended statement of claim” amending the particulars of negligence against Taylor & Scott and Keddies. 14 To the precise nature and content, in a legal sense, of the relationships of those involved in the Cotswold project I shall return. Before turning to those issues, however, I observe that the history of this matter is disturbing, in so far as it has taken fourteen years from the time that the plaintiff first consulted a solicitor, for his case to come on for hearing; in so far as the plaintiff’s interests appear to have been prejudiced or delayed by inaction, and inconsistent advice by at least some of the lawyers who have acted for him; and in so far as his case has come into the hands of five firms of solicitors and at least eleven different Counsel, including two Queens Counsel. It provides a regrettable example of the manner in which personal injury litigation in this Court should not be conducted.

THE PERFORMANCE OF WORK BY THE PLAINTIFF ON THE COTSWOLD SITE

15   The plaintiff, who was born on 4 October 1953, began work as a roof tiler in about 1974. Upon completing his apprenticeship he became a subcontractor to Clark Tile. After Boral took over that business, it required its subcontractors to form proprietary companies. It was at that stage that G & S Roofing was formed by the plaintiff. By the time that the Cotswold Village project got under way, the roof tiling work was physically performed by the plaintiff, and by a person Tom Lloyd, whom the plaintiff described as his “partner”. He was not, however, a shareholder or director of G & S Roofing. 16   No formal contract or correspondence capable of spelling out the contractual relationship between the parties, either generally or in relation to the present job, was tendered. It appears, however, that Boral had sufficient work to keep G & S Roofing fully occupied, either at the Cotswolds site or elsewhere. Progress payments were made by it to G & S Roofing, as and when the work allocated to it was completed. Such payments were made weekly, subject to satisfactory inspection by Boral inspectors. Work was allocated to G & S Roofing, by a Boral allocator Ron Thompson, or by a Boral sales representative, John Henderson. 17   The plaintiff said that after clearance, through the bank account of G & S Roofing, and payment of expenses , the monies received from Boral were divided equally between himself and his “partner”. I observe that this is not the position reflected in the tax returns, since the only income recorded in the plaintiff’s personal returns for 1982 and 1983, were his directors fees, in the order of $5,000 (1982), and $6,000 (1983), whereas in the company returns the Profit and Loss statements include an item “subcontractors” in the order of $16,000 (1982) and $35,000 (1983) and an item for “wages” equal to the directors fees mentioned. The plaintiff was unable to explain these records, save to state that he had left it to his accountant to prepare returns reflecting the true financial position of himself and the company. The profit and loss statements of G & S Roofing otherwise record expenses of the kind that might have been expected in relation to a company trading as a roof tiler. 18   While some obvious inferences might be drawn in relation to the accuracy of these income tax returns, it is not necessary for me to reach any conclusion concerning the plaintiff’s actual earnings before or after the accident ,having regard to the way that his damages claim was pursued,. The material is, however, relevant so far as it tends to show that G & R Roofing stood in a subcontractor relationship with Boral, and that it was a company of which the plaintiff was a shareholder and director, and from which he received as directors fees, or as a ‘subcontractor’, the benefit of one half of the progress payments made by Boral to it, (after payment of all expenses). 19   The legal nature of the relationship between Boral and the plaintiff is in issue, and will be considered later in these reasons for judgment. It is convenient to record, at this stage, however, that apart from allocating work, Clark Tile and Boral issued, at regular intervals, documents addressed to “All Roof Tilers” headed “Conditions of Work” which contained various instructions, of which that dated 20 February 1981, being the instruction most nearly contemporaneous with the Cotswold Village job, is typical. It stated:

“Tiler must -

- have Accident Insurance .

- Accept responsibility for workmanship.

- Accept responsibility for damage done by their people.

- Notify office immediately on completion of jobs.

- Weep-hole all top ridge.

- Nail second and then every third course, unless otherwise instructed

- Leave no broken or chipped tiles on roof.

- Use ridge-clips on first and last three (3) ridge on gable roofs.

- Cut nothing through roof.

- Sweep roof down and clean out gutters.

- Make roof watertight if you cannot ridge.

- Stringline first course to ensure straight and even courses.

- Keep ridge straight and even.

- Keep tiles straight and even.

- Keep bedding and pointing on gable ends straight, even and upright.

- Leave no holes in sarking.

- Minimum lap 76 mm.

- All pointing in Sydney sand only.

Each and every job will be thoroughly inspected before any payment is made.

We will guarantee to have cheques available for work completed in the correct fashion by Wednesday noon of each week.

We also guarantee to hold payment for work not complete, payment for such work will be held pending a further inspection.”

20   Boral also issued a schedule of “contract rates” for all work done, calculated upon a square metre basis. At the conclusion of the 1983 financial year, it forwarded to G & S Roofing a Schedule of the gross amounts paid to it as a “sub contractor” for the year. For each job Boral provided, and delivered on site, the tiles required for the work at hand. G & S Roofing was, however, expected to provide the necessary tools, equipment and subcontractors or labourers required to fix those tiles. There was no reimbursement for any of these expenses.

THE PLAINTIFF IS INJURED

21   The plaintiff commenced work on the Cotswolds site about 12 months before his accident. He had carried out the roof tiling on five other cluster buildings at this site before moving on to cluster building 7. Each building was similar in the sense that it was a two story building, with units on the bottom floor, and on the upper floor. Each unit had an external open verandah, and each building had three skillion roofs, pitched at the same angle as the main roof. The verandahs were accessible via sliding doors from the lounge room. 22   The main roof for each building was supported by timber beams and joists erected by Collis Construction Company. The main roof rafters, which were fixed with 600 mm. centres, ran down to the brick wall between the unit and the verandah. They terminated at a plate on the top of the wall. The skillion roof over the verandah to each unit was supported by dummy Canadian pine rafters, (whose dimensions were 124 x38mm), which were in turn supported by a cross beam running parallel to the outer wall of the unit. That beam was set into, and supported by, masonry columns at each end of the verandah. The dummy rafters began at the outer side of the plate previously mentioned, and ran out to a fascia board at the end of the eaves. 23   The supporting timber work including the dummy rafters for the skillion roof was also fixed by Collis Construction Company, as was the fibro eave sheeting that lay on top of those rafters. The purpose of the fibro sheeting was to provide a lining for the verandah roof, and eaves. 24   The dummy rafters, which also had 600mm centres, were offset in relation to the main roof rafters at the main roof/terrace interface. The ends of the abutting fibro sheets, whose dimensions were 2.4 metres x 1.2 metres, rested upon the dummy rafters. They were normally secured at their ends, and also down the line of the rafters by nails. By reason of their width, each fibro sheet spanned, and was supported at its ends, and in the middle, by three rafters. Once tiles were fitted, the fibro sheets were retained in place by the weight of the tiles. 25   The roof drawings, which the plaintiff said he did not see, clearly showed the offset of the dummy rafters. The need for an offset was, itself, attributable to the aesthetic requirement of locating the rafters at equidistant points between the masonry columns located at the ends of the verandahs. 26   The plaintiff acknowledged that he was aware, from the lines and marks that had been left on the fibro by the carpenters, that the rafters must have been offset on the other five Cotswold buildings on which he had carried out roof tiling. He had not seen the actual rafters, but had relied on those marks and nail lines for his footing, when working on those buildings. He also acknowledged an awareness of the obvious danger of stepping onto fibro cement sheeting, an inherently brittle material, other than at a point where it had direct support from underneath. 27   He said that on other jobs, both elsewhere and on this site, it had been his experience that the roof carpenters left their work in a condition where it was obvious through chalk or pencil marks placed upon the fibro sheets, or through a line of nails, where the roof rafters were to be found. He also said that it was normal practice for the ends of the fibro sheets to be cut clean at the point where the dummy rafters began, thereby exposing their position for view. 28   The plaintiff said that after being advised, by the Mirvac foreman, that cluster building 7 was ready for roofing, he commenced the work of setting out the roof. This work included placing sarking, and fixing the battens to which the tiles would themselves be later fixed. He climbed a ladder from the ground level that he rested against the fascia. As he looked down onto fibro sheeting he saw neither pencil or chalk marks, or any line of nails. He also saw that the sheeting extended past the wall of the unit, and up over the main roof rafters for a distance of about 600mm, thereby concealing from view the plate, and the position at which the dummy rafters commenced. 29   The plaintiff assumed from the absence of any indication to the contrary that, in this instance, the rafters, supporting the fibro, extended in a direct line from the main roof rafters. He placed his foot on the fibro accordingly. The rafters were in fact offset, and his foot went through the brittle fibro, causing him to fall through to the concrete floor of the verandah some 3 metres or so below, thereby sustaining the injuries that bring about these proceedings. 30   No evidence was called, save as mentioned below, to show who had actually carried out the work in fixing the fibro, or to show to what extent the fibro sheets had been nailed down. In view of the limited time that the plaintiff spent on the roof before falling his evidence was, perhaps understandably, somewhat imprecise in this regard. He was, however, adamant that the fibro had not been nailed up the rafters. It was his impression that the sheets had been nailed only at the top and at the bottom. 31   The only indication as to the possible identity of those who had carried out this aspect of the work lies first in the assertion, appearing in a statement from Mr. Collis forming part of an expert report (received into evidence in the case of Mirvac), to the effect that there were 4 persons on site (himself, Manfredotti, and two apprentices) and that he worked on each roof. Secondly, it lies in a conversation, (admitted only in respect of the claims against the second and fourth defendants), recounted by the plaintiff as occurring at the hospital when, according to him, Mr. Collis, in Mr. Manfredotti’s presence, said that he was “sorry, the boys should have taken more care when putting the fibro on the roof ... to get it ready for tiling …”. In cross examination the plaintiff gave a somewhat different version of this conversation to the effect that it was Mr. Manfredotti who spoke, saying “It’s my son’s fault, he didn’t mark the fibro or didn’t nail it down”, or something along these lines. 32   The plaintiff had not himself seen the carpentry and fibro fixing being carried out on this building, and accordingly was not in a position to know who had physically performed the work, or for that matter whether it had been handed over to Mirvac as complete. However, in the statement signed by Gordon Collis, that forms part of the expert report previously mentioned, that person said that it was the practice, after the roof framing work was completed by Collis Construction Company for any building, for him to inform the Mirvac foreman or leading hand, so that they could arrange for a Council inspection, preparatory to the roof tilers commencing their work. In the course of this inspection, he said that the Council Inspectors would check that “the collar ties, purlins etc were completed and in accordance with the plans”. Additionally, he said that they would check whether the fibro sheeting was “correctly secured”. 33   No evidence was called to show whether this did, or did not occur for cluster building 7. Nor was it shown whether any relevant documentation existed concerning the hand over of the roof to G & S Roofing. 34   As a result of his fall, the plaintiff sustained fractures of the left transverse process of the 2nd, 3rd and 4th lumbar vertebrae, a compression fracture of the body of the 6th thoracic vertebra, a suspected fracture of the left side of the 1st thoracic vertebra, and avulsion fractures of the spinous processes of the 5th and 6th cervical vertebrae. He was admitted to Hornsby District Hospital where he came under the care of Dr. Douglas, a consultant orthopaedic surgeon. He was treated in hospital with a surgical collar and bed rest before being discharged ten days later with a surgical corset. 35   He had some eight weeks off work before resuming his trade as a roof tiler. He was, however, left with neck pain, mid back pain, a weakness in his right arm and shoulder, winging of the right scapula, and headaches, which have continued to the present time. By reason of these sequelae, and in particular the weakness and pain in lifting, he gave up roof tiling in about 1988. 36   He has since worked in real estate, and in the sale of building and construction materials. Currently he holds a position as a business development manager with Tyco. He has tried on two occasions to return to roof tiling, the first time following resignation from his real estate job (1987) when he attempted a full time return to work; the second occasion being more recent (1997), when he tried to carry out some casual weekend work to supplement his normal salary. Each attempt to return to work was unsuccessful due to pain and weakness. 37   The plaintiff said that the pain in his neck and back continues, and that he suffers severe headaches particularly when driving a motor vehicle. Following the accident he had physiotherapy for some time. He treats the headache with panadeine. 38   The problem in his shoulder has been investigated by his treating doctors. Its presence has consistently been confirmed and reported, upon examination, as involving some weakness and wasting of the muscles in the right arm, particularly the deltoid, and winging of the right scapula. Electrical studies have shown denervation consistent with C5 radiculopathy, the suggested cause of which is traction neuropraxia. His headaches have been described by Dr. Hodgkinson as being cervical/discogenic in origin. 39   There is some minor conflict between the findings of the two medical practitioners who most recently assessed the plaintiff. Dr. Pullemer, who saw him in October 1998, found continuous restriction of cervical movement, some limitation of abduction of the right shoulder, some winging of the scapula, some wasting of the shoulder girdle muscles, some hypoaesthesia in the right thumb, and some restriction of low back movement. In his opinion the plaintiff was not fit to return to any work placing stress on his back or neck. He thought that the best advice for him was to avoid activities that aggravated his symptoms. In his view the plaintiff was likely to have ongoing problems with his neck, his thoracic and lumbar spine, and also with his right upper limb. Surgery was not however indicated. 40   Dr. Hodgkinson who also saw the plaintiff in October 1998, found only limited loss of function in relation to his neck, shoulder and arm. The general prognosis he thought “reasonably satisfactory”. He did not express any view about the plaintiff’s capacity to undertake heavy physical work, a field of activity that he had previously ruled out, (eg in September 1989). So far as he expressed any other view (eg in December 1992) about the plaintiff’s capacity to continue in employment, that was confined to the administrative and clerical work that he was then carrying out. His most recent report is accordingly of only limited value. 41   The remaining medical reports tendered were more than six years old and of little value, save so far as they all confirmed an ongoing history of tenderness in the thoracic, lumbar and cervical regions, winging of the scapula and weakening of the right arm. 42   I see no reason not to accept the evidence which the plaintiff gave of continuing pain in his mid back and neck; of regular headaches related to the neck injury; of weakness in the right arm and shoulder, and of mild winging of the scapula, all resulting from injuries sustained in the fall. His complaints are consistent with the report of Dr. Pullemer, which I accept in preference to the more general report of Dr. Hodgkinson. 43   The sequelae described by the plaintiff and by Dr. Pullemer, do not prevent him from continuing in the clerical and sales positions in which he has now been working for some years. I find that he is, however, unable to return to heavy physical labour whether on a full time or part time basis. 44   The extent to which the plaintiff’s enjoyment of life, and his current capacity to engage in leisure activities, has been curtailed, was left unexplored. I am accordingly unable to make any finding in this regard other than to note that he suffers from headaches on a regular basis, as well as pain in the areas mentioned, that occasion him difficulty when exercising or sitting too long. 45   Similarly, no evidence was tendered in proof of any medical, hospital or pharmaceutical expenses, or of any actual loss of earnings to date. Although the plaintiff said that he worked more slowly following his return to roof tiling, no attempt was made to quantify any loss in that regard. I cannot determine, upon the evidence tendered, whether his earnings in white collar employment since 1986, have or have not exceeded those that he would have received had he carried on as a roof tiler. 46   The only other evidence potentially capable of reflecting on any economic loss claim was a vocational assessment report, tendered in the defence case, which tends to show that employment as a roof tiler peaks in the age group 20 - 24 years and declines steadily thereafter, particularly after the age of 40 years; that there have been cyclical periods of growth and decline in employment within the construction industry since 1981; and that fluctuation in the average wage rates of roof tilers over the period reflects demand and supply for labour at that level of employment. This evidence is of limited value in any assessment of damages in this case, given the absence of any evidence of the plaintiff’s earnings beyond 1983, save for his evidence that he is currently earning $47,000 gross and has the use of a company vehicle. 47   Accepting these shortcomings in the evidence, the plaintiff does not pursue any claim for past or future out of pocket expenses. Nor does he pursue any claim for actual loss of past earnings, or for impairment of future earning capacity, save by way of a buffer for lost opportunity.

HISTORY OF THE LITIGATION

48 In order to deal with the claims which the plaintiff has brought against Taylor & Scott and Keddies, it is necessary to supplement the history given so far of the litigation. Although no witness was called from the five firms of solicitors, or from the Counsel, who have had some responsibility for the case, extracts from the solicitors’ files were tendered, from which it is possible to reconstruct the sequence of events. 49 On 20 February 1984, David Carter of Counsel advised the plaintiff’s solicitors, then John Vaughan & Co, that Mirvac, as general contractor, owed a common law duty to all workmen on the site, as the supervisor of that site, to provide a safe system of work; that it also owed a statutory duty to those workmen under the Construction Safety Act 1912; and that he saw no advantage in pursuing a claim against Collis Construction Company, because they would probably join Mirvac, and because a breach of duty on its part would be “more possible to prove” than a claim of negligence against the carpenters; 50 In October 1985, Messrs Taylor & Scott took over conduct of the proceedings from John Vaughan & Co. The latter firm rendered their fees and disbursements in the sum of $1,718. 51 On 1 April 1986, Messrs Taylor & Scott briefed B. Solomon of Counsel to draft a statement of claim and to advise generally in the matter. Counsel delivered a draft statement of claim on 1st July 1986, accompanied by an advice explaining the basis on which Mirvac, Collis Construction Company, Boral Roof Tiles/Clark Roof Tiles, might be joined with appropriate advice as to the need to make business name or company searches, and other inquires, to confirm that the correct parties were joined. Counsel also advised, contrary to the opinion expressed by previous counsel, that “due to the confusing fact situation as to the relationship between the parties, the safest procedure is for all these defendants to be sued”. 52 On 10 November 1986, Taylor & Scott filed a Statement of Claim naming as defendants Mirvac, Dogor (sic) and Maului, and Boral, but not Messrs Collis and Manfredotti. 53 On 12 November 1986, Taylor & Scott wrote to Dorgor and Maului, enclosing a copy of the statement of claim, asking that it be handed to their insurer, and requesting details as to the name and address of that insurer. 54 On 26 February 1987, Dexter, Healy & Co, Solicitors, replied advising that they had been instructed by Manufacturer’s Mutual Insurance Limited which had “issued a public liability policy to Messrs. Collis and Manfredotti trading as Collis Construction Company”, and advising that the entity sued was not that insured by their client. The letter concluded “we are attempting to clarify the insurance situation and note that in the meantime you will advise us before taking any further steps in the matter….” 55 On 30 April 1987, John Sharpe of Counsel delivered an advice and a statement under Part 33 Rule 8A that had been settled after a conference with the plaintiff. In this advice Counsel recommended that an application be filed in the Compensation Court against Boral, claiming under S 6(3)(a) of the Workers Compensation Act. Counsel appropriately cautioned that the case raised a “fundamental question of law … as to the safety of people include (sic) subcontractors who attend on sites.” 56 On 1 June 1987, the Part 33 Rule 8A statement was filed, along with a notice to set the matter down for trial. 57 On 2 October 1987, a defence, along with cross claims against Mirvac and Boral, was filed by Dorgor (but not by Maului). The defence comprised a denial of all material allegations including the allegation that the defendant had been engaged in building work on the site. 58 At the state of Readiness hearing on 8 December 1987, the matter was stood over to the general list. 59 On 10 August 1988, Frisina & Associates filed a notice of intention to cease acting as solicitors for Dorgor. 60 At a pre-trial conference, held on 1 June 1988, the matter was struck out, for non appearance on behalf of the plaintiff, and an order was made for a new notice to set down for trial to be filed. 61 A new notice of set down was filed on 7 February 1989. 62 On 16 March 1989, an application for compensation was filed by Taylor & Scott on behalf of the plaintiff in the Compensation Court, seeking compensation from Boral as his employer, within the meaning of the Workers Compensation Act 1926, S 6(3)(a). 63 On 4 October 1989, this application was by consent struck out, upon the basis of advice from Mr. Penny of Counsel, that the “negligence aspect” of the common law proceedings seemed “reasonably strong”, and that the client “did not wish to take any risk in having any findings in the Compensation Court adversely affect his common law proceedings.” In his letter of advice, Counsel observed that the “major tort feasors in the common law proceedings would be the carpenter who constructed the roof … and also possibly the occupier, Mirvac”. 64 On 13 August 1990, an advice was given by Mr. Penny of Counsel to the effect that the “carpenter would seem to be at primary fault for the accident; but that in relation to Mirvac and Boral the claims were complicated and depended upon who “was carrying out the active building work on the site.” Counsel also noted that it appeared that the wrong second defendant had been joined, and suggested amendment of the statement of claim to add Messrs Collis and Manfredotti trading as Collis Construction Company. A recommendation was made to issue a subpoena for production of the relevant insurance policy and also to take steps so that the name of Dorgor was not struck from the register. There was no response to this advice. 65 On 21 January 1991, the solicitors for Boral wrote to Taylor & Scott advising of their instructions to apply to the Court for an order striking out the plaintiff’s claim for want of prosecution. 66 On 27 February 1992, Dorgor and Maului were deregistered. 67 On 29 September 1992, Taylor & Scott wrote to the plaintiff advising that the matter was to be included in the special sittings of the Court, to take place between 24 May 1993 and 4 June 1993, and inviting him to attend for a conference to discuss his case. 68 On 15 December 1992, a letter was sent by Taylor & Scott to the Australian Securities Commission, asking for its confirmation that the Commission would not oppose the reinstatement of Dorgor and Maului. 69 On 3 December 1992, Counsel appeared before a Registrar, at a directions hearing for the Special Sittings, in the course of which directions were given for the filing of an Amended Part 33 Rule 8A statement and for the supply of relevant back up material. 70 On 18 December 1992, the Australian Securities Commission wrote to Taylor & Scott advising of the procedure to be followed to secure reinstatement of the registration of Dorgor and Maului. 71 On 8 February 1993, Mr. Penny settled a reply to an outstanding request for particulars, and advised of several matters that required attention, including the collection of documents in support of the plaintiff’s claim for financial loss. He emphasised the importance of making immediate investigations in relation to the insurance position of Dorgor, the party to whom Counsel considered negligence prima facie attached. In this advice, Counsel expressed the view that it would be a lot harder to prove a case against Mirvac and Boral for “vicarious or supervisory type liability”. He made it clear that a great deal of work had to be done on the case very quickly. 72 On 23 April 1993, Taylor & Scott filed an amended Statement of Claim, without the leave of the Court or the consent of the originally named second defendants, purporting to substitute Messrs Collis and Manfredotti for the two deregistered companies. 73 On 29 April 1993, the schedule and other documents required for hearings in the Special Sittings were filed in Court, at a call over before the Registrar, and Counsel appearing sent a memo to Taylor & Scott suggesting that a Notice of Motion to extend the time for action against Messrs Collis and Manfredotti be filed, returnable before the List Judge at the next mention on 12 May. 74 At the call over that followed, the proceedings were struck out of the Special Sittings, as not being ready for trial. The matter was placed in the dormant list, and the newly named second defendants were given leave to file a defence relying upon the Limitation Act. 75 The Notice of Motion was filed on 28 June 1993, and struck out for non appearance of the parties upon its return date. 76 The Motion was eventually relisted before Master Malpass on 9 November 1993 and dismissed by him on 16 November 1993, with costs, (in the sum of $6,062). 77 The matter next came before Badgery-Parker J on 17 November 1993, when Counsel explained the potential conflict of interest faced by Taylor & Scott arising out of the plaintiff’s loss of ability to add Messrs Collis & Manfredotti, personally, as parties. His Honour made directions requiring Taylor & Scott to inform the plaintiff of the outcome of the Motion, and to outline the consequences, and his rights concerning that development, within seven days. It was indicated that the matter would be unable to take its place in the forthcoming Special Sittings. 78 On 24 November 1993, Keddies were instructed by the plaintiff to take over conduct of the proceedings from Taylor & Scott. The latter firm rendered a memorandum of their fees and disbursements in the sum of $16,325. 79 On 15 December 1993, the proceedings were stood over to the dormant list. The plaintiff was advised by Keddies that they were of the opinion that Taylor & Scott should be joined as defendants, and that, to that end, Counsel had been briefed to draft an amended Statement of Claim. 80 The draft amended Statement of Claim was settled in March 1994, and sent that month by Keddies to the Solicitors for Mirvac for endorsement of their consent. 81 On 5 April 1994, the Solicitors for Mirvac replied, advising of amendments they suggested should be made in relation to the proposed Statement of Claim. 82 On 13 September 1994, a conference was held with Queens Counsel and junior Counsel, which led to a further draft amended Statement of Claim being prepared, and circulated to Mirvac’s solicitors for their consent. 83 On 26 September 1994, Mr. T. Clarke of Counsel delivered an advice to the effect that the best prospect of establishing liability was again the carpenters and the co-ordinator of the work, that it was important to avoid discontinuing against any party already joined, and that it was necessary to qualify an expert. 84 On 19 October 1994, the amended Statement of Claim with the consent of Mirvac’s solicitors endorsed was received by Keddies. 85 On 11 November 1994, the proposed amended Statement of Claim was forwarded to Boral’s solicitors for their consent, the document being returned four days later duly endorsed with that consent. 86 On 9 December 1994, the amended Statement of Claim was forwarded to the solicitors for the formerly named Second Defendants, the document being returned with a consent endorsement ten days later. 87 On 12 December 1994, Keddies realised that the claim against Taylor & Scott might itself by now have become statute barred (i.e. upon the assumption that the time for action had commenced to run from the time that the claim against Messrs Collis & Manfredotti had become statute barred, namely 10 November 1988). 88 On 20 December 1994, the amended Statement of Claim was filed by Keddies. 89 In an inter office memorandum dated 24 February 1995, Mr. Baraket, a partner of Keddies, noted that “we had exceeded the six year limitation period to sue Taylor & Scott”. The memorandum further noted the client was “getting anxious”, and asked the addressee of the memorandum of “look after it, ring up the Law Cover solicitor and see if he can get it moving again, and ring the client and just sedate him.” Alternatively, it was suggested that an attempt be made to get the parties together to negotiate a settlement. 90 On 8 March 1995, Keddies rendered a memorandum of their and disbursements in the sum of $6,596.20 to the plaintiff. So far as the file shows the plaintiff was not informed, prior to this, of the new problem that had potentially arisen. 91 On 16 March 1995, Keddies wrote to the plaintiff advising that Law Cover had advised that it intended to rely on the Limitation Act in answer to the claim brought against Taylor & Scott. An explanation was given, that was only partially correct, along the lines that in order for the amended Statement of Claim joining Taylor & Scott, to have been filed, it needed the consent of the other parties. The letter advised that Mr. Barakat had been of the view that the cause of action had occurred on the date that Master Malpass had given his decision, so that the time for action would not expire until 11 November 1996, but that the matter had been discussed with Counsel. The letter concluded by noting that this area of law was not clear and a Notice of Motion and affidavits were being prepared in order to get a decision from the Supreme Court. 92 An affidavit was settled by K. Rewell of Counsel, who advised that a Notice of Motion should be filed, seeking an extension of time to sue Taylor & Scott. This Notice of Motion was filed and made returnable for 3 April 1995. 93 The Solicitors for Taylor & Scott, however, replied inviting discontinuance of the application, for the reason that an application for extension of time to sue could only be made in the case of personal injury claims. The strength of this advice was accepted, and on its return date the Motion was stood over generally. 94 On 18 April 1995, Mr. Hewitt of Counsel, who had now been briefed in relation to the matter, advised that both Keddies and he could not longer act for the Plaintiff because of the conflict arising out of Keddies’ possible negligence. It was his recommendation that Keddies refer the plaintiff to another firm of solicitors which practices “in the area of law which this case will involve”. 95 Thereafter the matter passed into the hands, temporarily, of Messrs Hunt & Hunt, who obtained leave to file the further amended Statement of Claim (costs of the amendment being ordered in favour of the defendants) and who, in August 1996, applied to have the matter restored to the list. 96 Eventually, after some years in the holding list, during which period the proceedings were from time to time called up, and upon the application of the parties, stood over, they finally came on for hearing, by which point the plaintiff had again changed his solicitors and Counsel. 97 Finally, by way of a narrative of the facts, I note that a memorandum dated 3 June 1993, and signed by Mr. Soden, the Chief Executive Officer and Principal Registrar of the Court at the time, was placed into evidence. It stated that a jury action (which this was not) commenced in the Common Law Division in January 1986, and set down for hearing in March or April 1986, would have come on for hearing during mid 1990, and no later than the end of 1990 “in the ordinary course of events”. The parties accepted, however, for the purpose of this trial, that a hearing date in 1991 could have been secured, in the ordinary course of events. In the event of any assessment being required of the value of any loss of opportunity to sue the carpenters, attributable to negligence on the part of Taylor & Scott, it was agreed that it should be made by reference to a notional trial date during 1991.

CLAIMS PURSUED BY PLAINTIFF

Claim against Mirvac

98   The plaintiff pursued his claim against Mirvac on the following basis:

negligence arising out of the alleged breach of a duty of care owed by it, as the developer/head contractor;

negligence arising out of the alleged breach of a duty of care owed by it as an occupier;

breach of a statutory duty arising under the Construction Safety Act 1912, and the Regulations made under that Act (in particular Regulations 73(1)(2)(3)(16) and (17) and Regulation 74(1)

Claim against Boral

99   The plaintiff pursued his claim against Boral on the following bases:

negligence the basis of the relevant duty of care not, however, being particularised;

breach of the same statutory duty asserted against Mirvac; and

breach of terms implied into the contract between the plaintiff and Boral for the roof tiling that the fixing of the fibro to the rafters would be carried out in a proper and workmanlike manner, that the roof would be safe for the plaintiff to work on, and that the fibro would be affixed to the rafters in accordance with usual industry practice.

Claims against Taylor & Scott and Keddies

The plaintiff brings his claim against Taylor & Scott for their alleged failure to institute proceedings against Messrs Collis and Manfredotti within the time fixed by the Limitation Act, and for their alleged failure to prosecute the proceedings expeditiously, upon the following bases:

breach of the duty of care they owed in tort as solicitors;

breach of an implied term of their retainer to exercise reasonable care and skill as his solicitors.

100 An additional particular of breach upon which the plaintiff seeks to rely depends upon the assumption that the purported filing of the amendment statement of claim on 23 April 1993, which named Messrs Collis and Manfredotti as defendants in the place of their corporations, constituted a discontinuance of the proceedings against those parties. Otherwise, so far as I can see no order was made striking out that portion of the original statement of claim; nor was a notice of discontinuance ever filed. 101 The plaintiff’s claim against Keddies is pursued upon the basis of similar duties arising in tort, and under an implied term of their retainer, in respect of their alleged failure to institute proceedings against Taylor and Scott within the time permitted by the Limitation Act. So far as the plaintiff’s claim against Taylor and Scott is concerned, he does not concede that the cause of action has been extinguished by effluxion of time. The claim against Keddies is brought against the contingency that this might be held to be the case, and that by their delay in commencing proceedings, he has been deprived of the opportunity of suing Taylor & Scott for professional negligence. 102 Similarly to the claim against Taylor & Scott, the plaintiff relies upon an additional particular of negligence, that assumes that the filing, by Keddies of the further amendment Statement of Claim on 20 December 1994, acted as a discontinuance or abandonment of the proceedings against the two corporate defendants, Dorgor and Maului. No attempt has ever been made by Taylor & Scott, or by Keddies, or by the plaintiff’s more recent Solicitors, to “resurrect” those companies, or to investigate whether by appropriate proceedings, they might be brought within the insurance policy taken out by Messrs. Collis and Manfredotti. 103 I shall deal with these claims in turn.

LIABILITY OF MIRVAC AND BORAL

104   The plaintiff’s claims against these defendants may be conveniently dealt with together.

Breach of Statutory Duty

105   As the facts earlier recited show, Mirvac was the building contractor on site. It sub-contracted the roof tiling work to Boral, and the carpentry work to White River Timber. Boral subcontracted the fixing of the roof tiles to G & S Roofing, of which the plaintiff was an employee, shareholder and director; and White River Timber subcontracted the carpentry work to Collis Construction Company. 106   Within that matrix of contractual relationships, I am of the view that the decision in HC Buckman and Son Pty Ltd v Flanagan (1974) 133 CLR 422 stands in the way of this aspect of the plaintiff’s claim. In that case it was held that the regulations under the Scaffolding and Lifts Act 1912 (NSW) imposed obligations on persons actually carrying out building work, whether personally or by servants or persons whose acts are in law their acts, but did not impose obligations on persons who had subcontracted work to independent contractors. 107   As in Buckman, it could not be said here that either Mirvac or Boral was actually carrying out the fixing of the roofing, either by itself or by its servants or agents. Mirvac had contracted the two components involved in that work (the erection of the timber framing and the supply and fixing of the tiles) to subcontractors. Boral had nothing to do with the erection of the roof framing, and while it supplied the tiles it had contracted their actual fixing to G & S Roofing. 108   The question to be asked, as was similarly asked in Buckman, is whether either of the defendants was carrying out the building work of roofing the units by an agent or agents. The interpretation placed on the regulation by Barwick CJ and by McTiernan and Stephen JJ in Buckman, would require that question to be answered in the negative. 109   Barwick CJ was unable to accept the argument that independent contractors were the agents of the building owner or head contractor. His Honour agreed with the majority in Davey v Skinner (1961) SR (NSW) 648, that the regulation there in question placed the obligation on the active person, that is the one who carried out the work in actual fact. “Building work” was so defined as to encompass each section of the work being done, so that the obligation to take the safety measures prescribed was imposed “on the person carrying out that particular piece of work”. It was not consistent with that conclusion, his Honour said, (at p 429):

“… to include independent contractors who are carrying out particular building work as “agents” of the building owner or contractor so as to impose on him the obligation which clearly will fall upon the independent contractors vis-a-vis the building work they are actually doing.”

110   His Honour was unable to accept the view, expressed by the majority in Davey v Skinner, that in some circumstances the expression ‘servants or agents’ could extend to independent contractors, but he did agree with their view that:

“… ‘the use of the familiar phrase ‘servants or agents’, from the subject matter of the Regulations, is intended to embrace those employed under a contract for services, that is, not merely servants properly so called, but also the agents, who, though not strictly servants, the person carrying out the building work employs to do for him what he has engaged to do’, that is to say, persons whose acts are in the law the acts of a principal. But this description does not include independent contractors.”

111   The reasons expressed by Barwick CJ, with which Stephen J agreed, and also by McTiernan J (at 433), wherein his Honour said that:

“the relationship between an independent contractor and the person with whom he contracts does not carry with it the legal consequence of the relationship of agency”;

lead to the conclusion that Mirvac was not under any statutory duty in respect of the roofing work.

112   The positon in relation to Boral is somewhat more complicated given the context in which it dealt with the plaintiff. Boral certainly was contractually responsible to Mirvac to provide the roof tiling, although not the roof supports and associated carpentry. G & S Roofing was the subcontractor to Boral to fix the roof tiles. In that sense its position was at all fours with that of the plaintiff respondent Flanagan in Buckman. There the head contractor Buckman had subcontracted to one Shaw, the fabrication and erection of the steelwork, and Shaw had subcontracted the erection of the steelwork to Flanagan. By parity of reasoning, the majority would have held that the statutory duty rested here in G & S roofing, and not in Boral. 113   The majority decision in Buckman has been consistently applied, e.g. Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) SC (ACT)1, and I am bound by its authority. Accordingly, so far as the plaintiff’s claim depends upon the alleged breach by Mirvac or Boral of regulations made under the Construction Safety Act, it fails in limine.

Liability of Boral as an Employer

114   The plaintiff submitted that he was an employee of Boral. In this regard, it was submitted that G & S Roofing was formed only because Boral requested it, and that its interpositioning did not alter the plaintiff’s status as an employee of the latter company. 115   A similar argument was considered in Boral Roof Tiles Limited v O’Brien, (Supreme Court of New South Wales, Court of Appeal, 2 December 1994 unreported) in relation to a truckdriver who was paid a wage by a family trust company to which Boral made payments for tiles delivered on its behalf. He had taken over a pre-existing arrangement between another driver and Clark Tiles (the predecessor to Boral) and in doing so had purchased that driver’s truck. Approval was needed and given for the purchase of the truck and for the take over of the existing “contract”. Payments were made according to the number of tiles delivered, and the distance travelled. The driver was required to maintain the truck in good order, and to submit it for inspection if required. The truck was painted in Boral colours with its slogan. Loading of the truck was carried out subject to inspection by Boral staff, and there were specific instructions as to the manner in which tiles were to be unloaded. 116   Payments were made by Boral without deduction for PAYE tax, but from the time of the introduction of the Prescribed Payment Tax System, (PPS )which applies to self employed persons in particular industries, Boral made PPS deductions from these payments. The plaintiff’s family trust company made deductions on account of PAYE tax in respect of payments made to him and his wife. It also made payments for running costs, insurance, repairs and parts in respect of the truck. The only work which the plaintiff did was in the carriage of Boral products. 117   It was noted that there was no suggestion that the interpositioning of a family trust company was a sham, designed to conceal a different transaction, as that concept was discussed in The Estate of William Vicars deceased (1944) 45 SR (NSW) 85. No argument along those lines was advanced in the present case, and I see no reason for reaching any different conclusion. 118 It was held, allowing the appeal, that the relationship between Boral and the plaintiff was not one of employer/employee, and that the degree of control reserved to, or exercised by Boral, was not decisive. In that regard it has become clear that while the degree of direction and control that a person who engages another can exercise over the latter is an important, and sometimes the decisive circumstance, other considerations may prevail. 119 This was recognised in Queensland Stations Pty Ltd v Federal Commission of Taxation (1945) 70 CLR 539, where Dixon J (as he then was) said, concerning the work relationship between a cattle drover and his client: 120 “There is, of course, nothing to prevent a drover and his client forming the relation of employee and employer: see, for example, Turnbull v Wieland (1916) 33 CLR 143. But whether they do so must depend on the facts. In considering the facts it is a mistake to treat as decisive a reservation of control over the manner in which the droving is performed and the cattle are handled. For instance, in the present case the circumstance that the drover agrees to carry out al lawful instructions cannot outweigh the countervailing considerations which are found in employment by him of servants of his own, the provision of horses, equipment, plant, rations, and a remuneration at a rate per head delivered. That a reservation of a right to direct or superintend the performance of a task cannot transform into a contract of service what in essence is an independent contract appears from Reedie v London and North Western Railway Co (1849) 4 Ex 244; 154 ER 1201; Steel v South Eastern Railway Company (1855) 16 CB 550; 139 ER 875; Hardaker v Idle District Council (1896) 1 QB 335 at 343 and 340.” 121 Similarly, in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, Mason J said, at 24:

“…the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v Federal Commissioner of Taxation; Zuijs’ Case ; Federal Commissioner of Taxation v Barrett (1973) 129 CLR at 401; Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 at 218. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”

122   Wilson and Dawson JJ said, at 35:

“The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment, but as to how he shall do it: Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd (1924) 1 KB 762. The modern approach is, however, to have regard to a variety of criteria.”

123   Their Honours added, at 36-37:

“In many, if not most cases it is still appropriate to apply the control test in the first instance because it remains the surest guide to whether a person is contracting independently or serving as an employee. That is not now a sufficient or even an appropriate test in its traditional form in all cases because in modern conditions a person may exercise personal skills so as to prevent control over the manner of doing his work and yet nevertheless be a servant: Montreal v Montreal Locomotive Works (1947) 1 DLR 161 at 169. This has led to the observation that it is the right to control rather than its actual exercise which is the important thing (Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 at 571) but in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another.”

124   The other indicia of the nature of the relationship that they identified as relevant were as follows:

“Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax.”

125   In the present case, there was no direct control over the performance of roof tiling by the plaintiff. He was obliged to complete the work to certain requirements, but that is no different from any contract for services whereunder the party requesting the services specifies a certain quality of finish. Of considerable significance in the present case are the circumstances that payments for work performed were made by Boral to G & S Roofing without any deduction on account of taxation; that roof tilers were expected to provide and maintain their own trucks, plant and equipment and to arrange their own insurance; that G & S Roofing paid for all labour and materials (other than tiles) used on Boral jobs; that the plaintiff in his income tax returns declared himself to be an employee of G & S Roofing; that payments were made by Boral according to the area of tiles fixed; that the work performed by the plaintiff called for an application of trade skills; and that he was not supervised on a daily or even an intermittent basis. Moreover, there was no suggestion that Boral set the hours of work, or made any payments towards superannuation, long service leave, or sick leave. 126   These considerations are decisive. I am unable to conclude that the plaintiff was an employee of Boral, and so far as his claim is based upon the proposition that Boral owed him a duty of care as his employer it must fail.

Liability of Mirvac and Boral under a general duty of care

127   It was next submitted that Mirvac and Boral owed a general common law duty of care to the plaintiff, in accordance with the principles discussed in Brodribb. Each was said to have been in breach of this duty in failing to warn the plaintiff of the dangers to which he was exposed; in failing to provide proper and safe equipment plant, tackle and appliances; in failing to provide a safe place of work; in permitting the plaintiff to carry out the job of roofing when it was not safe to do so; in permitting fibro to be positioned beyond the wall plate and to sit on dummy rafters that were offset from the column rafters; and in failing to warn the plaintiff that the fibro sheets were not nailed to the rafters or to ensure that those sheets were nailed to each rafter in a safe and proper method. 128   So far as these particulars relate to fault directly attributable to Mirvac, or to Boral they depend upon there having been a personal duty of care reposed in them to exercise reasonable care to protect the plaintiff from foreseeable risk of injury, which called upon them to ensure that his place of work was safe, to provide him with proper plant and equipment, and to ensure that the roofing contractors carried out their work in a particular way. So far as any unsafe condition was attributable to the act of an independent contractor, they depend upon the duty owed by the defendants being non delegable. 129   It was no part of the plaintiff’s case that either Mirvac or Boral was negligent in the engagement of a subcontractor who was either unqualified or incompetent. Nor was there any specific allegation that either had failed to exercise reasonable care in co-ordinating the activities of the sub-contractors. 130   It may be accepted that a risk of injury attaches in respect of any person who has to go on to a roof structure, erected by another, in order to carry out or complete building work in respect of that structure. Necessarily that follows from the circumstance that such a person is expected to work at a height, and upon a structure for the security and soundness of which he has to rely upon the other contractor. 131   It may also be accepted that it would have been foreseeable by each of Mirvac and Boral that a tiler, in the position of the plaintiff, would have had to go on to such a roof structure on this construction site and that a risk of injury would attach to such activity, if the roof structure was not sound, or if the areas upon which he could safely walk were not readily apparent or discoverable. 132   Is this enough to attract a general common law duty of care, on the part of Mirvac or Boral vis a vis the plaintiff, or liability on their part, if his injury was occasioned as the result of the negligence of a subcontractor to either of them? 133   It has long been a general rule that a principal is not liable for the negligent conduct of his independent contractor, or for the independent act of a third party: Smith v Lewis (1945) 70 CLR 256 at 261-2; Dorset Yacht Co Ltd v Home Office (1970) AC 1004; Perl Exporting Ltd v Camden LBC (1984) 1 QB 342; Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; and Kondis v State Transport Authority (1985) 154 CLR 672 at 691-2. 134 To that general rule there are two apparent exceptions: the first, when the principal directly authorises the doing of the act which amounts to the tort; the second, when the principal engages the independent contractor to perform a duty resting on him and the independent contractor fails to perform it. 135 Each of Mason, Wilson, Brennan and Dawson JJ in Brodribb rejected the notion that there is a further exception, under Australia law, to this general rule, based upon the circumstance that the activities in which the independent contractor was engaged were extra hazardous. 136   In Brodribb, the Court was concerned with an operation involving the felling, snigging, and removal by truck of felled timber to a sawmill operated by Brodribb. That company engaged three classes of independent contractors: tree fellers, sniggers and truckers. The logging operations were overseen by a bush boss employed by Brodribb. A trucker Stevens, was injured as the result of a casual act of negligence of a snigger while loading a log onto his truck. It was held by the whole Court that Brodribb owed a general common law duty of care to the trucker but (Deane J dissenting) it was not in breach of that duty. Mason J said, at 30-31:

“While individual fellers, sniggers and truckdrivers may have been responsible for their own safety with regard to carrying out their own functions, they had little choice but to rely on the care and skill of Brodribb in the arrangements which it made for the disposition of the work, and on the care and skill of the persons engaged by Brodribb in the execution of the work.

137   The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.” 138   In considering whether this duty was a personal, non delegable duty, his Honour observed: (32/33)

“In Kondis v State Transport Authority (1984) 154 CLR 672, I considered that the law sometimes imposes on people a duty higher than the usual common law duty to take reasonable care. This higher duty is a duty to ensure that reasonable care is taken and it is said to be non-delegable because a principal who engages another to perform work will be liable for the negligence of the person so engaged, notwithstanding that he exercised reasonable care in the selection of the contractor”.

139   Kondis was, however, distinguished by his Honour upon the basis that there was “not the requisite relationship between the parties such as would be required to impute liability to Brodribb for the casual act of negligence” found on the part of the snigger. The difference lay in the circumstance that in Kondis ‘the crane driver assumed the control or supervision of the labourer who was injured, control or supervision which was ordinarily exercised by the employer’; whereas here the snigger “had not in any sense assumed control or supervision” of the injured driver. Moreover, Brodribb “did not exercise control of, or retain a right to control or supervise, the loading operation” in which the plaintiff was injured. 140   Wilson and Dawson JJ, (at 43 to 44), noted the existence of exceptions or qualifications to the general rule laid down in Quarman v Burnett (1840) 6 M & W 499 (151 ER 509) that a person is not liable for the acts or omissions of another, unless that other is his servant acting in the course of his employment, and hence is not liable for the acts or omissions of a competent independent contractor employed by him. 141 Although their Honours assumed that Brodribb owed to the injured worker a duty of care, “arising from the general supervisory functions” it exercised in its licence area, that duty they suggested might be qualified in the sense that:

“…it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees.”

142   They defined the duty in the following terms: (at 45/46)

“Any such duty was, in effect, a duty to exercise care in the co-ordination of the activities of the various contractors”.

143   Brennan J, at 47/48, described the duty arising in the circumstances outlined, as follows:

“An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk ( Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 479) and his duty is more limited than the duty owed by an employer to an employee. 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 themselves to control their system of work without supervision by the entrepreneur . The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But 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. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”

144   In deciding that there was no negligence by Brodribb, his Honour said, inter alia, at 48/49:

“Apart from its responsibility in the organising of the loading of logs, did Brodribb have any relevant continuing responsibility in the conduct of the loading operations? I think not. If the persons working in the vicinity of the loading ramps had been employees, Brodribb would have remained under a continuing duty to prescribe and enforce a safe system for dealing with the problem of logs jammed on or near the ramp (see Kondis v State Transport Authority ) but Brodribb was not under such a duty to persons who were not employees.”

145   His Honour otherwise agreed with Mason J, that no special category of non-delegable duty of care arose from the circumstances of that case. 146   The decision in Boral Roof Tiles Limited v O’Brien (No2) (Supreme Court of New South Wales Court of Appeal, 15 December 1994 unreported) has some relevance. The plaintiff, for the reasons earlier noted (paras 116-119 above) was there treated as an employee, not of Boral but of Lasmine Pty Ltd, the company which had contracted with Boral to deliver tiles to building sites. He was injured while manually unloading tiles from a truck, at one such site. Boral had required that its tiles be unloaded manually, and Lasmine had contracted with it on that basis. 147   Sheller JA, with whom Handley and Powell JJA agreed, distinguished Brodribb upon the basis that, the plaintiff subcontractor in that case was “working in close physical proximity with other subcontractors, in an area under the control of the sawmiller and in a manner organised by” it. In the present case, Lasmine was under contract to provide Boral with a carrying service, and as employer of the plaintiff, it owed to him the complex of duties that arise in relationships of employment. His Honour said:

“Those duties would not ordinarily shift from the employer to a third party which had engaged the employer to provide a service. If the employer agrees to provide that service and uses its employees to perform it , it is for the employer to ensure that performance does not involve any breach of the duties it owes its employees.”

148   His Honour recognised that:

“In circumstances such as were proved in Stevens v Brodribb Sawmilling Co Pty Ltd the third party contracting with the employer may also owe duties to persons carrying out work for the third party regardless of whether they are independent contractors or the employees of independent contractors.”

149   The present was however not such a case, since as his Honour observed:

“The system of work adopted was that of Lasmine. It had contracted to unload the tiles by hand. If a party contracts to perform a service in a particular way I can see no basis upon which the party, with which it contracts, can be held responsible in negligence for injury done to the employees of the first party in performing that service, absent some undisclosed and unexpected hazard. In my opinion there is nothing n Stevens v Brodribb Sawmilling Co Pty Ltd which detracts from this general proposition.” (p6)

150   The decision in O’Brien is of relevance in so far as it emphasises the need for a supervisory element, on the part of the entity contracting out the work, to attract liability for an unsafe condition, whether it be a system or place of work, brought about by an independent contractor. 151   McArdle v Andmac Roofing Company (1967) 1 WLR 356 is also of relevance. There a plaintiff was employed to carry out work on a construction site by Andmac, one of two subcontractors to the principal contractor (Pontin). The subcontractors were working together, under the control of Pontin’s engineer. The principal contractor was held to have been negligent when the plaintiff fell down an opening in the roof that had been made by the other subcontractor (Newton), and left unguarded and unfenced when the employees of that subcontractor had knocked off work. The liability of the principal contractor arose because it had been directly concerned with the work in hand, and having employed contractors without parting with the overriding responsibility, it had failed to make express provision with the subcontractors as to who was to ensure that safety precautions were taken for men working together in close proximity in circumstances of obvious danger. 152 Sellers LJ at 361, noted that co-ordination, where there are multiple trades and varying activities on the one site, seemed essential for safety, and said that the responsibility for it will normally fall on the main contractor, who can allocate work and responsibility between the subcontractors. As his Lordship observed at 363:

“In a practical sense (the principal contractor) was conducting and organising the operations … Under the conditions which changed as the work progressed there arose a continuing duty on all the defendants to take reasonable care that those who might be expected to be in the vicinity of the danger, (none more obviously so than the plaintiff) were not confronted with unnecessary risks.”

153   The nature of the work arrangements was also important for Davies LJ, who said, at 365:

“As I see it, there was here a common law duty on Pontin, who were employing two firms of subcontractors on a task which inevitably involved that they should work in close proximity to each other and in close proximity to this dangerous hole in the roof, to take steps, or to see that Andmac and Newton took steps - reasonable steps in each case - to prevent the workmen from coming to harm.”

154   It was similarly important for Edmund Davis LJ, who at 369 said:

“Never losing sight of the fact that Newton were independent contractors and not the servants or agents of Pontin, the roof work that the former were engaged to perform was such as could well involve danger to others who, to the knowledge of Pontin, would be working in close proximity to the joiners - danger, that is, unless proper safety precautions were taken. Had Newton’s men been in the direct employment of Pontin there could be no doubt as to the liability of the latter. Having regard to all the circumstances does the fact that Newton were independent contractors relieve Pontin of all responsibility? In my judgment, it does not.”

155   I turn next, to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, where Mason CJ and Deane, Dawson, Toohey & Gaudron JJ said, in relation to the non delegable duty of care that may, in appropriate circumstances, attach to a principal who engages an independent contractor (at 550-551):

“It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and ‘more stringent’ kind, namely a ‘duty to ensure that reasonable care is taken’. ( Kondis v State Transport Authority (1984) 154 CLR 672 at 686) Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken.”

…

“In Kondis (1984) 154 CLR at 679-687 in a judgement with which Deane J and Dawson J agreed, Mason J identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably) occupier and invitee. In most, though conceivably not all, of such categories of case, the common ‘element in the relationship between the parties which generates (the) special responsibility or duty to see that care is taken’ is that ‘ the person on whom (the duty) is imposed has undertaken the care , supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised’. (at 687) It will be convenient to refer to that common element as ‘the central element of control’. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person. (The Commonwealth v Introvigne (1982) 150 CLR 258 at 271, per Mason J).

156   Brennan J, who dissented on the facts, described the relevant principal as follows, (at 578-579:

“… when an act done by an independent contractor and authorised by the employer creates or increases the risk of injury to a third party, the employer who authorises the act brings himself into such a relationship with the third party that he is bound to take reasonable care to prevent the occurrence of that injury ( Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 479) The duty is personal and, if it is not performed, the employer is responsible. In practice, the act which gives rise to a duty in the employer to take reasonable care will be one which, in the natural course of things, involves the risk of injurious consequences to a third party. In that sense, the act will be naturally ‘dangerous’.”

and

“… the work done by an independent contractor on an employer’s premises will impose on the employer a duty to take reasonable care to avoid its injurious consequences on a neighbour’s premises only if the work naturally involves a risk of those consequences. Where injurious consequences flow from the negligent manner in which an independent contractor does an authorised act and not from the nature of the act which was authorised, the employer is not liable."

157   In Northern Sandblasting Pty Ltd v Harris (1977) 188 CLR 313 the High Court returned to the difficult question whether the circumstances of a given case are such as to give rise to a duty that is discharged by the selection of a competent independent contractor to undertake a particular task, and the circumstances which give rise to a duty that can be discharged only by the non-negligent performance of that task. 158 The extent of the difficulty involved in the application of the principles outlined above to any particular case is indicated by the fact that, in this case, the High Court divided by four Justices, (Brennan CJ, Toohey, Gaudron and McHugh JJ) to three Justices, (Dawson, Gummow and Kirby JJ) in finding the defendant landlord liable, for a breach of the duty of care it owed to a child who was electrocuted as the result of deficiencies in the electrical system of the house, which her parents had leased. The problem arose by reason of the negligence of an electrical contractor who had been engaged, at an earlier date by the landlord, to carry out repairs to an electric stove. The existence of a duty to take reasonable care for the plaintiff was conceded, the issue being confined to the question whether the landlord was in breach of it. 159 The majority came to their decision on that issue, by different routes. They were not of the same mind as to whether the case was one where the landlord owed a non delegable duty of care which had not been discharged by the engagement of the contractor. In fact, only Toohey and McHugh JJ so held; Brennan CJ, Dawson, Gaudron, Gummow and Kirby JJ all being of the view that the duty of care, owed in relation to the repair of the stove, had been discharged by the engagement of a qualified contractor, whose competence the landlord had no reason to doubt. 160 Toohey J founded his conclusion on this aspect of the case, on the ground of the combination of the “central element of control”, in the landlord, and of a “special dependence or vulnerability” on the part of the child (at 353). McHugh J rested his decision on the simple circumstance that, in undertaking to have the stove repaired, the landlord owed the members of the household a personal non delegable duty of care of which the contractor’s negligence had caused it to be in breach. 161 Brennan CJ said, (at 331-332):

“The question whether a defendant who employs an independent contractor to perform a given task is liable as for a breach of the defendant’s own duty in the event of negligence on the part of the independent contractor in performing the task is not answered by pointing to the independent contractor’s negligence (see The Commonwealth v Introvigne (1982) 150 CLR 258 at 279). The independent contractor’s negligence is material only in showing the non discharge of any duty that may have been imposed on the defendant. The basic question is whether any and what personal duty was imposed upon the defendant in the circumstances of the case. Apart from well-established relationships that give rise to non-delegable duties ( Kondis v State Transport Authority (1984) 154 CLR 672 at 685-687) it is not easy to distinguish between the circumstances which give rise to a duty that is discharged by the selection of a competent independent contractor to undertake a particular task and the circumstances which give rise to a duty that can be discharged only by the non-negligent performance of the task.”

162   After a reference to the definition given in Kondis of the material relationships which would give rise to a special non-delegable duty, his Honour said (at 332/3):

“In cases where this special duty is imposed on a person in relation to a particular task that person is under a duty not only to use reasonable care, but to ensure that reasonable care is used by any independent contractor whom he employs to perform that task. ( Hughes v Percival (1883) 8 APP Cas 443 at 446). Moreover, if the task which an independent contractor is employed to perform carries an inherent risk of damage to the person or property of another and the risk eventuates and causes such damage, the employer may be liable even though the independent contractor exercised reasonable care in doing what he was employed to do, because the employer authorised the running of the risk and the employer may be in breach of his own duty for failing to take the necessary steps to avoid the risk which he authorised. In Burnie Port Authority v General Jones Pty Ltd , (1994) 179 CLR 520 at 580 following Stephen J, in Stoneman v Lions (1975) 133 CLR 550 at 564, noted that the employer of an independent contractor would be personally liable:
“if the risk of damage arises from the way in which the work will necessarily be done or from the way in which the employer expects that it will be done (as in Black v Christchurch Finance Co (1894) AC 48 or McInnes v Wardle (1931) 45 CLR 548) for in each of those situations the incurring of the risk is authorised by the employer. But the employer is not liable merely because it is foreseeable that the independent contractor might, on his own initiative, adopt a careless way of doing the work. If liability were imposed on an employer in that situation, the employer would become a virtual guarantor of the independent contractor’s carefulness’.
Cases of special relationships aside, the duty of care that arises when a task to be performed does not carry an inherent risk of damage to the person or property of another may be discharged by the engaging of a competent independent contractor to perform it. Whether a task does or does not carry an inherent risk of damage to another’s person or property is a question of fact to be determined in the light of common experience.”

163   By reason of the different approaches taken in this decision, it is difficult to draw any clear conclusion from it as to the application of the underlying principle to the present facts. The decision is however of assistance in so far as Dawson J (at 345), Toohey J (at 353), Gaudron J (at 361) and Kirby J (at 401), gave support to the view that the relationships which give rise to a special non-delegable duty of care are marked by the central feature of control on the part of the defendant, or special dependence or vulnerability on the part of the plaintiff. 164   Finally I refer to the decision of the Full Court of the Supreme Court of South Australia in Le Cornu Furniture and Carpet Centre Pty Ltd v Hamill (1998) 70 SASR 414, where an employee of a contractor engaged by the owner of premises to carry out certain construction work, was seriously injured when he fell through a fragile asbestos roof. Although it was sufficient for the decision to find, in the context of the Occupational Health, Safety and Welfare (Commercial Safety Regulations 1987) (S.A) that the owner, as an “occupier”, owed a statutory duty to the worker, Matheson and Prior JJ also held that it owed a non-delegable common law duty of care that had not been discharged. 165 Matheson J made reference to the passages in Brodribb (per Mason J at 30-33 and per Brennan J at 47-48,), in Burnie Port Authority (per the majority at 550-551), and in Northern Sandblasting (per Brennan J at 331-333), (as well as the passages in the judgments of Gaudron J at 362-3 and McHugh J at 369 in the last mentioned decision) in holding that, having regard to the “concatenation of circumstances” there present, a non delegable duty of care was owed by the building owner. They included the circumstances that an employee of the building’s owner had previously suffered a fatal injury when falling through the roof; that the contractor was not qualified by experience or otherwise in working on fragile roofs; that no inquiry had been made as to whether it had any such expertise; that there were no crawl boards or safety equipment on the roof, and that employees of the building owner were on the premises at the time of the accident. The elements of control by the owner and the special vulnerability of the plaintiff to the risk of falling were present. 166   In agreeing with this conclusion, Prior J added the circumstance that the building owner was, as the occupier, subject to specific statutory obligations to take all reasonable precautions to ensure the health and safety of any person working in or about the premises. 167   The facts in that case were a good deal stronger than those in the present case, particularly having regard to the existence of actual knowledge that the roof was dangerous, the absence of expertise on the part of the contractor, and the existence of a statutory duty on the part of the principal to exercise reasonable care. 168   Had Mirvac or Boral in the present case been directly involved in the co-ordination, supervision or direction of the work undertaken by the various sub-contractors, or had the work been carried out by them in close physical proximity, such as to require co-ordination or supervision by either of those defendants, then McArdle and Brodribb would have been more in point. Equally might that have been the case had there been any reason for suspicion that this particular roof possessed any special feature or risk, for example because the supporting structure was of a different design to that used on the other buildings on which the plaintiff had worked. 169   However, in a situation where the trades followed one another, where the roofing layout was identical to that elsewhere used on the site, and where the roof tiler was in a position to assess the job, and to apply its own expertise in the way that it or he went about the necessary work, then it seems to me that the present case falls on the other side of the line. There is no reason to suppose that the various subcontractors were other than competent themselves to control their system of work without supervision by or direction from Mirvac or Boral, or that there was here any risk of confusion over the respective areas of responsibility of any party. 170   In summary, when considering the position of the plaintiff vis a vis Mirvac and Boral, I remain unpersuaded that he was in a position of particular vulnerability, or that in the circumstances of the case either defendant should reasonably have been required to lay down a system for the performance by the carpenters of their roofing work, or to supervise the carpenters’ compliance with any such system, or to inspect their work before requesting commencement of the roof tiling so as to ensure that the fibro was so fixed or marked as to flag the areas on which it was safe for a roof tiler to work; or to provide plant and equipment to the plaintiff; or to lay down a system under which he would carry out his work. 171   There was no evidence to suggest that there had been any practice of direction, or supervision by Mirvac or Boral; nor was there any evidence to suggest that on this occasion, either party had actual or implied knowledge of any aspect of the roof framework that might cause it to be unsafe for a tiler, beyond the obvious risk of stepping onto fibro at any point where it was not supported. 172   As I have observed, Boral had no control whatsoever over the roof carpentry, nor did it have any contractual responsibility for the integrity or finish of that work. No question arose as to the reasonableness of the head contractor engaging specialist contractors to provide the carpentry and roof tiling, or as to the reasonableness of those contractors engaging qualified tradesmen as subcontractors to provide the labour needed for that work. 173   Mirvac clearly had an interest in ensuring the structural soundness and compliance of the roof with the relevant building code and contractual requirements. That is a different matter, however, from assuming a responsibility to ensure that the timberwork was completed and handed over to the tiler in a state where the fibro was so fixed or marked up as to show the line of the supporting rafters. 174   Neither Mirvac or Boral was in a position, it seems to me, to lay down the system of work that the independent subcontractors (Collis Construction Company and G & S Roofing) should follow. Moreover, neither was in a position where they might have been expected to provide equipment or plant for the plaintiff. Any obligation concerning the provision of a safe place of work, a safe system of work, or suitable plant and equipment rested directly and appropriately upon his employer, G & S Roofing. 175   While it may be accepted, consonant with the principles established particularly in master-servant cases, that a degree of carelessness or inattention must be expected and catered for (McLean v Tedman (1984) 155 CLR 306 at 312; Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36; Wyong Shire Council v Shirt (1980) 146 CLR 40; Ferraloro v Preston Timber Pty Ltd (1982) 16 ALJR 872 at 873; Nagle v Rottnest Island Authority (1993) 177 CLR 423 and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 445 (Brennan J), 454 (Toohey and Gummow JJ), 460-1 (McHugh J) and at 478 (Kirby J), the present case is in a very different situation. 176 The plaintiff here was a skilled tiler, and he knew of the dangers of stepping onto unsupported fibro. Walking on rafters was an everyday occurrence for him, and it was part of the skill and experience that he brought to his trade that he cope with that situation. It would be somewhat pointless, if not dangerous, to expect that he should take direction from the principal contractor or from other contractors or trades as to what he could or could not do, in this regard or as to the system of work he should follow. 177 It borders on the unreal for the plaintiff to argue, as he did, that an exercise of reasonable care, in this case, required that he be warned that the roof on which he was injured was constructed in the same manner as the preceding fifteen roofs on which he had worked, on the site. 178 As each of these roofs had offset verandah rafters, and as the buildings were of the same overall design, there was simply no reason for him to assume that the roof of this building was any different. On the contrary, it was more probable than not that the configuration was identical. 179 Moreover, the location of two out of every three rafters should have been apparent to him from above, since he must have known that the ends or joins of each fibro sheet were directly supported on rafters. From their positions, the location of the intervening rafter, midway between the joins, should have also been apparent to him had he looked, as should the fact of offset. Upon this basis the plaintiff did not need a nail line, or chalk marks, to identify the location of the first and third rafters, or to estimate the position of the intervening rafters. 180 Other means of locating these rafters, and of ensuring his own safety, were available. For example, by tapping the fibro, the location of an underlying rafter could be ascertained. From beneath the fascia, or from the verandah floor, the rafters could be seen, and if necessary the fascia or the fibro could have been marked up by him. A rule or tape could have been extended along the fascia from the brick columns, and marked up with the known distance between the rafters which was measurable from below. Other means of safely working on the roof using scaffolding, a safety net slung under the verandah, or a sling and harness were possible. Finally, as a last resort, it was open to the plaintiff to check the position of the rafters with the carpenters with whom he was in daily contact. 181 The simple truth in this case is that the plaintiff made a misjudgment, and took a calculated risk, for which in my view he should be regarded as solely responsible, in assuming that the verandah rafters were in line with the main roof rafters. If he had been in any doubt about the situation, then he should have double checked and taken the necessary precautions. 182 Neither Mirvac nor Boral could have directed him as to the way that he was to go about his work, nor was he bound to accept their advice, or even to assume an entitlement to receive it. The relevant expertise was his, and it is by no means evident that either Mirvac or Boral would have been in any better position than him to identify the existence of any unusual or unexpected risk in relation to the roof, particularly in the absence of any prior accident of this kind. 183 The case is one in which it can properly be said that a reasonable person in the position of Mirvac or Boral would not have regarded it as reasonably necessary to guard against the plaintiff acting in the manner that he did, where he was an experienced tradesman whose work required him to walk on roofs on a daily basis, and where it must have been known by him that he could only stand on the fibro where it was supported by an underlying rafter. 184 Together, these circumstances seem to be a complete answer to his claim against Mirvac and Boral.

Liability of Mirvac and Boral as an Occupier

185   Although pleaded and argued as a separate basis for liability, the plaintiff’s claim under this heading needs to be considered in the light of the principles already discussed, since the old inflexible rules defining the duty an occupier of land owed to invitees, licensees and trespassers have now been absorbed by the ordinary rules of negligence: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 484-488, and Burnie Port Authority at 548. 186 No case dependent upon Boral being an occupier was pleaded or argued, and I am in any event unpersuaded that, in the circumstances of this case, its contractual engagement and implied permission to enter onto the site to deliver tiles, and to inspect tiling work upon completion so as to determine compliance with its quality standards and to measure the areas tiled, would qualify it as an occupier. 187 So far as this head of liability is concerned, it is the condition of the roof framework as left by Collis Construction Company that is in issue, as is the question whether in discharging any duty of care resting upon it as an occupier, Mirvac was responsible for any unsafe aspect of the roof. 188 As I have already observed, the various categories of entrant, and the several duties of care, traditionally adopted in the field of occupiers liability (see e.g. Lipman v Clendinnen (1932) 46 CLR 550 at 554-5) have been subsumed in the general principles of the law of negligence. In accordance with the decision in Australian Safeway Stores (particularly at 488) approving the statement of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-3, the question in this regard is whether, in all the relevant circumstances, including the fact of Mirvac’s occupation of the site, and the manner of the plaintiff’s entry, it owed a duty of care under the ordinary principles of negligence. 189 The touchstone of the existence of that duty again turns upon the proximity of relationship, and the reasonable foreseeability of a real risk of injury to the entrant, or the class of persons of which the entrant is a member. The measure of the discharge of that duty, being one to take reasonable steps to avoid foreseeable risk of injury to such an entrant, is what a reasonable person would do in the circumstances by way of response to the risk: Romeo. 190   This requires reference to what might be a proportional response to the risk, taking into account its magnitude, the likelihood of an accident, happening, the possible serious consequence if it does occur, the inconvenience, difficulty or expense involved in meeting it, and the likelihood that the precaution would have materially reduced the risk: Franklins Self Serve Pty Ltd v Bozinovska Supreme Court of New South Wales Court of Appeal, 14 October 1998 unreported. 191   The observations of Kirby J in Australian Safeway Stores as to the scope of the duty (at 478), and as to what is required by way of the response of a reasonable man to secure its discharge (at 479-481) are instructive in this regard. It is only within the framework of the considerations collected by Mason J, in Wyong Shire Council v Shirt, and discussed by Kirby J in the passages identified, that a determination can be made as to the risks a defendant should guard against, and those which it can safely ignore. It is not the case that any foreseeable risk, no matter how remote, must in every case be guarded against. Precautions need only be taken when that course is required by the standard of reasonableness. 192   I am not persuaded, in the circumstances, that the plaintiff can gain any additional benefit by stating his claim in terms of the duty owed by an occupier. Precisely the same considerations that operated in answer to his claim based upon the general common law duty of care, seem to me to apply to this asserted head of liability. It would be anomalous to fix Mirvac with liability in negligence, upon the basis of its occupation of the construction site, where no such liability attached in relation to its position as head contractor.

Liability of Boral under contract

193   Reliance was placed upon terms said to have been implied into an agreement between Boral and the plaintiff that the fixing of the rafters would be carried out in a proper and workmanlike manner; that the roof would be safe for the plaintiff to work upon; and that the fibro would be affixed so as not to be positioned beyond the plate to which the rafters were joined, that it would not be fixed to offset dummy rafters, and that it would be nailed to each rafter. 194   The short answer to this claim is that Boral did not enter into any contract with the Plaintiff. Its contract was with G & S Roofing. In any event, I am not persuaded that the five conditions required for an implication of such terms into the contract, in accordance with the decision in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347 were here present. In particular it does not seem to me reasonable or equitable, or obvious, that such terms would be implied into a contract where Boral had no responsibility for or control over the carpenters who had subcontracted with another party for erection of the roof framework, or where it engaged, as an independent contractor, a qualified roof tiler to fix the tiles it supplied, and to whom it was entitled to look for the supply of labour and any necessary plant or equipment. 195 It follows, in my judgment, that Mirvac and Boral are each entitled to a verdict in their favour. In case I am found to be in error, in this regard, I shall briefly record my findings as to the losses sustained by the plaintiff as a direct result of his accident, which would, upon proof of breach of a statutory or general duty of care, have been recoverable from them.

Plaintiff’s Losses arising out of the Accident

196   There was only limited dispute in relation to the relevant heads of damages.

General Damages

197   The plaintiff submitted that the range of general damages was in the order of $50,000 to $70,000. Mirvac placed the range in the order of $55,000 to $70,000. Boral submitted that it was in the order of $60,000. Having regard to the serious nature of the plaintiff’s injuries outlined above, and their continuing effects upon him, I would assess those damages in the sum of $65,000, of which I would apportion 50% to the past and 50% to the future.

Interest on general damages

198   Upon the basis of a calculation extended over sixteen years and six months at 2% per annum, on one half of those damages, the interest would be:

16.5 x 32,500 x 2/100 = $10,725 .

Buffer for Impaired Earning Capacity

199 The plaintiff’s claim was confined to a buffer referable to the lost opportunity he has had in the past, and will continue to have in the future, to supplement his earnings with casual roof tiling work over weekends or holidays. I accept that his capacity to engage in such work has been substantially destroyed. He has attempted it, without success, and there is a sound medical basis for the difficulty he described. 200 The plaintiff argued for a buffer in the sum of $25,000 for the past, and $40,000 to $50,000 for the future. Mirvac suggested a range for the entire period of $35,000 to $50,000 whereas Boral submitted that any award along those lines should be confined to a cushion of $20,000. 201 In calculating this loss, I find that it is proper to have regard to the evidence previously mentioned which suggested that few tilers continue to work in this trade for the long term, that the plaintiff has been and may confidently expect to remain in alternative full time employment of the kind in which he has been since the accident, and that the attractions for undertaking this kind of heavy work would not have been great while he was bringing up children, or as he became older. 202 Nevertheless, he has sustained a demonstrable impairment of his ability to exercise his trade and hence of his earning capacity, for which a modest award is appropriate, and which I would apportion, for interest calculation purposes, as to 66.66% to the past. Although an argument to the contrary was advanced during the trial, it is my understanding that the parties accept that the plaintiff would not at the present time be able to establish an entitlement to an award for partial incapacity under S 11(1) Workers Compensation Act, although he may have been able to do so in the past (in reliance on S 6(3A) or s 6(3)(a) of the Act). 203 The extent to which he would have exercised this additional capacity to work is problematic, as is its calculation in particular in relation to the determination of any offset for a past entitlement to workers compensation, in accordance with the decision in Tipper v Williams (No.2) New South Wales Court of Appeal 17 May 1994). 204   However, the difficulty in such an assessment does not mean that it should go uncompensated: Russell v J. Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533 and Blaseotto v Wilson (New South Wales Court of Appeal 17 May 1978). 205   In the circumstances outlined, it would be inappropriate to attempt any precise mathematical calculation. Doing the best I can, and allowing for all the factors mentioned, I would come to an assessment of $40,000 by way of a buffer (both for the past and the future) in this regard.

Adjustment for Contributory Negligence?

206   There would still remain a need for a deduction on account of contributory negligence, if the plaintiff’s claim was held to succeed against either Mirvac or Boral, on the basis of a tortious duty, but not if it was held to succeed on the statutory count or under the contractual count: Astley v Austrust Limited (1999) HCA 6 (ie unless a similar result could be achieved in relation to the contracted count via the process of reasoning adverted to by Hope JA in Harper v Ashtons Circus Pty Ltd (1972) 2 NSWLR 395.

CLAIM AGAINST TAYLOR & SCOTT

207   It is clear beyond question that a solicitor is liable for failing to commence proceedings for a client prior to the expiry of any relevant limitation period: Macrae v Stevens (1996) Aust Torts Rep 81-405 at 63, 689. 208 Upon the basis of the information provided by the plaintiff, and upon the basis of that which was available when instructions were first taken, it was entirely reasonable for Taylor & Scott to assume that the proprietor shown upon a search of the business name Collis Construction Company, was the appropriate party to sue, ie if the carpenter was to be joined. That search was made and the proprietors were joined, (even if one was not registered as a proprietor until after the accident). To that point, Taylor & Scott had acted in pursuance of the instructions they had received, and in accordance with the advice that was given by the second Counsel whom they had briefed. No breach of their retainer or of their general duty of care could be made out, upon that basis. 209 The plaintiff’s claim must rest upon the fact that the solicitors were later advised, before expiry of the limitation period, that Dorgor and Maului were uninsured, but that Messrs. Collis and Manfredotti held insurance in respect of the business. This, it was submitted, should have placed them on notice of the possibility, which should have been in investigated that Messrs Collis and Manfredotti were in fact the proprietors of the business and the persons who should be joined; or alternatively, or additionally should have alerted them to the need to inquire whether the insurance policy could be extended to the corporate defendants. There was, however, complete inaction on this account, and no instructions were sought, or advice given to the plaintiff about it. 210 It does not necessarily follow from that inaction that liability could be proved on the part of the solicitors. To establish negligence, or a breach of their professional retainer, sounding in damages, the plaintiff must show that something of value (here a right to claim damages from Messrs. Collis and Manfredotti), was lost by him: Nikolaou v Papasavas (1988) 166 CLR 394); Johnson v Perez (1988) 166 CLR 351). If no case was available against them, then the plaintiff suffered no loss: Kitchen v Royal Air Force Association (1958) 1 WLR 563 at 574-5 per Lord Evershed MR and Phillips v Bisley (Court of Appeal New South Wales 18 March 1997. 211   In showing that he lost something of value the plaintiff bears the onus of proof. The evidence, however, remains obscure as to the precise role of Messrs. Collis and Manfredotti. 212   At most what was shown was that Collis Construction Company, of which Dorgor was the registered proprietor, at the time of the accident, had the contract for the roof framing. It is not clear whether Mr. Collis or Mr. Manfredotti personally carried out any work on cluster building 7 and, upon that basis, was directly responsible for the condition of the roof when it was handed over to the plaintiff; or whether either acted as supervisor of the apprentices or of any other men working on that building and, upon that basis, was responsible for its condition on handover; or whether either was in some other way liable to suit either directly or vicariously. 213   I add, in this regard, that vicarious liability would not attach to Mr. Collis as a director or shareholder of Dorgor; nor would it attract to Mr. Collis as a bare employee of that company, or of Mr. Manfredotti (if that was also his status), if either was a co-worker on site. The position in relation to Mr. Manfredotti is, in fact, even less clear than that of Mr. Collis, since “his company” (Maului) was not registered as a proprietor of Collis Construction Company until well after the accident. 214   Upon what basis each was named as the insured, in respect of the public liability policy referred to in the letter from Dexter, Healey & Company, and when that policy of insurance was first issued, remain utterly obscure, in the absence of the tender of the policy or of any relevant further investigation having been carried out in relation to it, either by Taylor & Scott or by any of the plaintiff’s subsequent legal advisers. Equally it remains obscure, assuming that the policy had been in force at the time of the accident, and assuming that Messrs Manfredotti and Collis had been partners before the formation of Collis Construction Company, whether rectification would have been possible to bring Dorgor and/or Maului within its coverage. Additionally, there was no evidence whether or not Messrs Collis and Manfredotti had any assets, or whether access could be secured to the insurance policy, the terms of which and currency of which were not proved. 215   These remain formidable hurdles for the plaintiff to overcome in establishing that Taylor & Scott were negligent in not joining Messrs Manfredotti and Collis as defendants, even making full allowance for the conversations he has variously attributed to them, and upon which he would seek to rely as admissions, and similarly making full allowance for what might have been discovered had proper inquiry been made at the time. 216   There remains a further hurdle in that I am not persuaded, on the evidence, that the roof framing was left in a state that would give rise to a claim of negligence against the carpenters (using that term generically). 217   There was no clear evidence of any general industry practice as to the marking up of roofs by carpenters so as to assist roof tilers, as distinct from doing so for their own assistance, or as a necessary consequence of the nailing down of the fibro sheets. Again the plaintiff bore the onus in this regard. 218   For similar reasons to those mentioned in relation to the claims against Mirvac and Boral, I am not persuaded that an exercise of reasonable care on the part of the carpenters, called for them to mark up the position of the rafters. Again they were entitled to take into account the expertise of the roof tiler, his assumed knowledge of the need to avoid walking on fibro where it was not directly supported, and his ability and responsibility to determine for himself where the rafters were located, if he was in any doubt about that. 219   The case is accordingly one where upon my assessment, the plaintiff has not shown that he had a cause of action against Messrs Collis and Manfredotti personally, or a case which could reasonably have been formulated against them. 220   It would not be enough for him to succeed in an action against Taylor & Scott to argue, using the words of Lord Evershed MR in Kitchen (at 251):

“Though I had no claim in law, still, I had a nuisance value which I could have so utilised as to extract something from the other side, and they would have had to pay something to me in order to persuade me to go away.”

221   The position would have been otherwise had the plaintiff been able to show sufficient prospects of maintaining a claim, for the Court to say that it is likely that he would have received a valuable offer of settlement, even if worth considerably less than 100% of his actual loss. In Phillips, Mason P said, in relation to the distinction between this kind of case and the one where the plaintiff’s claim is more of a “derisory or nuisance value”:

“Difficult and elusive though the distinction may be, the court trying the issue of the lawyer’s negligence must proceed on the evidence before it. This involves considering the factors mentioned in the passage quoted from Nikolaou , including “the evidence that would or should have been available to the plaintiff at that time” ( emphasis added ). It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer’s negligence have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff’s prospects of success in the lost action”.

222   As I have observed, a great deal of speculation would be required, which I am not prepared to undertake, as to what might have been discovered had further inquires been made concerning the carpenters and the insurance policy. Additionally, even if it could be shown by those further inquiries, that Messrs Manfredotti and Collis might have been in a position where they personally owed a duty of care, and that there was a reasonable prospect of attracting a valuable offer of settlement or of effecting recovery under a judgment either from them or from the insurer, I remain unpersuaded, for the reasons previously advanced, that it would have been reasonably open to the plaintiff to make the cause of action good. 223   Upon that basis I am not persuaded that anything of value was lost through the pleaded negligence of Taylor & Scott. In those circumstances it is unnecessary to venture into the areas of some complexity that were addressed in relation to the assessment of damages concerning, for example, the date at which the value of the lost chance should be assessed; the manner in which interest should be calculated on the sum assessed; the extent to which there should be an adjustment to any claim for economic loss, on account of any entitlement to workers’ compensation that the plaintiff had at the time at which the assessment should be made; the appropriate discount for the contingencies of litigation referrable both to the prospects of success (Johnson v Perez; Dolman v Penrose (1983 SASR 481) Scott v Echegary (1991) ATR 81-120) and the prospects of recovery upon a judgment (Murphy v Miller (NSW Court of Appeal 16 October 1998); and the allowance to be made for the additional net costs involved in a notional trial referable to the joinder of the carpenters (Nyman v Valmas New South Wales Court of Appeal 26 June 1997). 224 For these reasons there will be a verdict for Taylor & Scott, irrespective of whether or not the defence based upon the Limitation Act was made good. It is convenient to consider that defence in the context of the claim against Keddies, against the contingency that this matter might be taken on appeal, so that the Court of Appeal may at least have some expression of the view which I reach at first instance, upon this vexing question.

CLAIM AGAINST KEDDIES

225   Having regard to the conclusion reached in relation to the plaintiff’s claim against Taylor and Scott, this claim fails in limine. I am not satisfied that the plaintiff suffered any loss through the failure of Taylor and Scott to sue Messrs Collins & Manfredotti before expiry of the limitation period. 226   If I am incorrect in that conclusion, then I would observe that there would need to be a further discount and adjustment in any assessment of damages against Keddies, referable to the additional contingencies and costs involved in litigating a claim against Taylor & Scott, and referable to the different date for any notional trial of those proceedings. An assessment of damages made in respect of a claim against Keddies would not necessarily be the same as an assessment of damages in respect of a claim against Taylor & Scott, or against the carpenters. 227   Again, I consider it unnecessary to engage in any exercise of assessing the damages that would be recoverable in respect of this claim. It is hypothetical and it would depend upon factual findings that would be inconsistent with my own findings. 228   I will, however, deal with the argument of Taylor & Scott that the limitation period, so far as they are concerned, ran out on 10 November 1994. This was upon the assumption that they had until 10 November 1988 to join Messrs Collis and Manfredotti as parties, and that any cause of action against them commenced to run from the date that this claim became statute barred. In support of that proposition they relied upon Doundoulakis v Antony Sdrinis & Co (1988) ATR 80-199 (Supreme Court of Victoria). 229 In that case a firm of solicitors was sued for negligence, and for breach of contract, for failing to commence proceedings in time against the plaintiff’s employer in respect of a work related injury. The issue which arose was whether the plaintiff’s cause of action against the solicitors was complete, so that time began to run, when his claim against the employer became statute barred, or whether that occurred (as the appellant contended) only when the employer filed a defence relying upon the Limitation act. 230 The Court of Appeal (Ormiston J, with whom McGarvie and Marks JJ agreed) held (affirming the decision of Lush J appealed from) that the period for bringing the proceedings against the solicitors commenced on the expiration of the period for bringing proceedings against the employer. Ormiston J, said that:

“It is well accepted that: ‘a cause of action in negligence is complete when the damage caused by the breach of duty is sustained. It is at that time that, in the ordinary case, the cause of action (accrues) for the purposes of a provision such as (sec. 5) of the Limitations of Actions Act : per Deane J in Hawkins v Clayton (1988).

231   In dismissing the argument that damage was not sustained until the defendant pleaded the defence, Ormiston J noted that the appellant’s argument depended on “drawing the familiar distinction between barring the remedy and barring the right, which derives from the Court’s insistence that the right can only be lost if the statute is pleaded”. His Honour observed, (at 67964):

“No doubt the consequence is that a defendant cannot ordinarily call in aid the Limitation of Actions Act unless he pleads it, but it does not follow that the plaintiff’s rights and remedies are unaffected by the passing of the limitation period. The appellant sought to draw from the mere unenforceability of his rights against the employer that -

a) his right to damages subsisted in an unimpaired form until the defence was relied upon and

b) consequently, that no damage was suffered until a defence relying on the Act had been delivered or served.
Such a conclusion was apparently reached by Miles J in Vulic v Bilinski & Ors (1983) 2 NSWLR 472 at pp 484-485, although in terms which suggest that the point was not the subject of extensive argument”.

232   In relation to this submission, his Honour said (at 67965):

Merely because the statute bars the remedy and not the right must not obscure the fact that each is valuable. As Isaacs J said, in comparing a section extinguishing a right with the ‘ordinary statute of limitations’:
‘The latter finds a person in possession of a right and a remedy. In some cases it abolishes the right, in others it simply bars the remedy. But in both cases it takes from the person something he already has independently of the statute’: The Crown v McNeil & Anor (1922) 31 CLR 76 at 100.
The consequences, for each side, of time running under a statute of limitations were succinctly stated by Windeyer J in Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 489:
‘When time has run against a purely personal action the result, for a plaintiff, is that his remedy is barred but his cause of action is not extinguished: for a defendant, it is that he has, if he chooses to assert it, an immunity which Lord Esher called ‘his existing right to the benefit of the Statute of Limitations’ ( Hewitt v Barr (1891) QB 98 at 99)’.
It is the barring of the remedy which is critical in a case such as the present, corresponding as it does to the immunity which the defendant then acquires, albeit it is an immunity he may not choose to assert. Howsoever one characterises this conditional immunity and this conditional barring of the plaintiff’s remedy, the plaintiff is left with a remedy very different in quality from that which he had before the limitation period expired. In the context of the perennial argument as to procedural and substantive rights the following observation has been made and later followed in the High Court:
“A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time”.
Per Williams J, in Maxwell v Murphy (1957) 96 CLR 261 at 278, a passage cited with approval by Gibbs J (whose judgment was concurred in on this issue by Menzies, Windeyer and Walsh JJ) in Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228 at 241.
Consequently, upon the expiration of the limitation period on 4 August 1978, the plaintiff was deprived of his remedy against his employer, subject only to the defendant pleading the statute, and to the presently irrelevant power to obtain an extension of that limitation period. That conditionally barred remedy was then substantially less valuable than it previously had been.”

233   His Honour dismissed the further submission that no relevant loss or damage was suffered until the defence was delivered: (67966)

“As I have already observed, the appellant had suffered measurable damage the moment the limitation period had expired, in that his remedy had been substantially impaired.

…

There is no dispute that the right of action was not completely extinguished until either the defence was delivered or judgment in reliance upon that defence was entered for the defendant employer. Nevertheless, damage in the relevant sense does not necessarily require loss of a right, only that the right and the related remedy should have been impaired to some measurable or significant degree.”

and later :

“The argument appeared to equate the incurring of actual financial loss with the suffering of damage, but it is more than apparent on the authorities that loss of a chance may fairly be calculated once damage is suffered, although the particular financial consequences may not have been worked out in full and may depend upon future events. Although there are difficulties, the courts have held consistently, other than in Vulic v Bilinsky , that it is practicable to assess damages in these cases, and that the ordinary rules as to contingencies will apply in respect of future loss: see Kitchen v Royal Air Force Association (1958) 1 WLR 563 at 574 and Nickolaou v Papasavas, Phillips & Co (1987) Aust Torts Reports 80-900. In the present case, there would be little difficulty in assessing the likelihood of the defendant employer relying on the Statute of Limitations, as in fact it did. If one remembers that it is not essential to show loss of the right of action but only significant impairment of that right, in order to establish that damage has been suffered, then it is not hard to see that the defendant’s acts in failing to commence the action within the three year period resulted in significant harm to the plaintiff the moment that period had expired.”

234   The Limitation Act 1969 (NSW) relevantly provides:

S14 (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims:

(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed;

(b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty;

(c) …

(d) …

235   This provision which operates to bar the remedy, subject to the postponement provisions contained in Part 3, must be understood in the context of s 63 of the Act, which provides for extinction of the right or title to the cause of action upon “expiration of (the) limitation period fixed by or under (the) Act”. The Section is in the following terms:

S 63(1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against his successors, extinguished.”

236 The operation of SS 14 and 63(1) were considered in The Commonwealth of Australia v Mewett (1997) 191 CLR 471. Dawson J, there held the view (at 508-510) that, while S14 operated to bar the remedy (a cause of action in tort) it was not to be taken to have been “extinguished” until an application for extension of time had been brought and dismissed. Toohey J (at 516-517) and McHugh J (at 532-533) each took a different view, namely that once the initial time for commencing proceedings had expired, the cause of action was extinguished, but that if, at a later time, a successful application for extension was brought, then the earlier extinguishment of the right was “annulled” and it was to be treated as though it had never been extinguished. They noted that Hope JA had come to the same conclusion in The Commonwealth v Dixon (1988) 13 NSWLR 601 at 610, and it is one that gives, in my view, proper effect to S 63(1). 237 Gaudron J, in Mewett did not determine the precise status of the cause of action in the interim period, other than to say that the action is “not finally statute barred merely because the initial limitation period” has expired; “rather the action is thereafter maintainable if the limitation period is extended and the action commenced within the extended period.” The judgments of the remaining members of the Court, Brennan CJ and Kirby and Gummow JJ, do not throw any further light on this issue. In these circumstances, I take the view that I should follow the approach taken by Hope JA and by Toohey and McHugh JJ. 238 Even if the cause of action could be regarded as being subject to conditional re-enlivenment, as Gaudron J appears to have considered, it would seem more appropriate, once the application for extension is dismissed, to regard the moment of extinguishment as the expiry of the original time for action, rather than the date of dismissal. This is more in accord with S 63(1) and with S 61, which provides:

“Where, after the expiration of a limitation period to which this Division applies, the limitation period is extended by order under this Division, the prior expiration of the limitation period has no effect for the purposes of this Act.”

239 This provision contemplates that S 63(1) is of continuing effect unless an order to extend the limitation period is made. 240 Keddies and the Plaintiff placed reliance upon the principle enunciated by Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 588-591, to extend the time for commencement of the action. That case was concerned with an action brought by a plaintiff, as executor of the will of a deceased testatrix, against the defendant solicitors for their failure to take reasonable steps to locate the executor, so as to put him in a position to commence administering her estate. The damage suffered was the deterioration of certain property which, it was alleged, might reasonably have been expected to have maintained its value, had the executor been able to commence administering the estate in due time. 241 Deane J, categorised the duty of care as one owed to the testatrix, and following her death, to the estate. It was, upon that basis, a duty the breach of which could only be complained of by the executor after he had obtained a grant of probate and had entered upon the administration of the estate. 242 In discussing the application of the Limitation Act to such a case his Honour said, at 589-590:

“It is inevitable that a Statute of Limitations will, on occasion, lead to injustice in the special circumstances of particular cases. Such injustice, when it occurs, is an unavoidable cost of the benefits involved in ensuring that plaintiffs act promptly and that defendants are not subjected to the litigation of stale claims. The present case falls, in an anomalous category where the applicability of a limitation provision such as s 14(1) would invariably involve prima facie hardship and injustice and where any compensating public benefit, apart from protecting the courts from being required to determine issues of distant fact, is absent. If a wrongful action or breach of duty by one person not only causes unlawful injury to another but, while its effect remains, effectively precludes that other from bringing proceedings to recover the damage to which he is entitled, that other person is doubly injured. There can be no acceptable or even sensible justification of a law which provides that to sustain the second injury will preclude recovery of damages for the first. It would, e.g. be a travesty of justice and common sense if the law provided that a cause of action lay for damages for false imprisonment but then went on to provide that that cause of action would be lost if the false imprisonment continued for six years after the cause of action first accrued. Likewise, it would be a travesty of justice and common sense if the law imposed a duty upon a solicitor to take positive steps to inform a third person of the contents of a document of which the solicitor was alone aware and then provided that any cause of action against the solicitor for damage caused by a negligent failure to perform that duty would be lost if the negligence continued for six years. It is arguable that the notion of unconscionable reliance upon the provisions of a Statute of Limitations which provides the foundation of the long-established equitable jurisdiction to grant relief in a case of concealment of a cause of action until after the limitation period has expired (cf s 55(1) of the Limitation Act) should, by analogy, be extended to cover cases such as these where the wrongful act at the one time inflicts the injury and, while its effect remains, precludes the bringing of an action for damages. It seems to me, however, that the preferable approach is to recognise that it could not have been the legislative intent that the effect of provisions such as s 14(1) of the Limitation Act should be that a cause of action for a wrongful act should be barred by lapse of time during a period in which the wrongful act itself effectively precluded the bringing of the proceedings. On that approach, the reference in s 14(1) of the Act to the cause of action first accruing should be construed as excluding any period during which the wrongful act itself effectively precluded the institution of proceedings.”

243   It can be seen that it was the tortious act complained of, ie the failure to take reasonable steps to find the executor, which was the event that made it impossible for the cause of action to be pursued during the limitation period. It was in those circumstances, that Deane J, held that the cause of action was not statute barred. As Gleeson CJ observed in Sampson v Zucker (Court of Appeal New South Wales 11 December 1996), the principal enunciated by Deane J, was not applied by the other members of the High Court. 244   In Sampson the plaintiff brought proceedings against his former solicitor for negligent advice in relation to the settlement of a claim for damages arising out of a motor vehicle accident. It was acknowledged that the alleged negligent conduct upon which the cause of action was based occurred on or before the date the original proceedings were settled. It was also acknowledged that the alleged cause of action was complete and had accrued by that date. 245   Without deciding whether the principle enunciated by Deane J in Hawkins was correct, Gleeson CJ (with whose judgment Cole JA and Simos AJA agreed) held it to have no application since the tortious act for which the respondent solicitors were sued did not effectively preclude the plaintiff from doing anything. 246   Of immediate relevance to the present case, is the observation of Gleeson CJ at 8:

“It should be mentioned in conclusion that the appellant does not present an argument based upon the proposition that the cause of action in the present case only accrued when the appellant became aware of the alleged negligence of the respondent. Deane J’s judgment in Hawkins v Clayton is certainly not authority for any such proposition; on the contrary, at least by implication it rejects such a proposition. If such a proposition were true it would have been quite unnecessary for his Honour to formulate and rely upon the principle which I have already mentioned.”

247   In Registrar General v Cleaver (1996) 41 NSWLR 713 at 719, Clarke JA similarly said that:

“A majority of the High Court has rejected the notion that a cause of action is not complete until a plaintiff discovers, or could on reasonable inquiry have discovered that it had sustained a loss.”

248   I would regard this as a persuasive answer to the argument advanced, in the present case, that the cause of action was not complete, and that the time for action did not commence to run until the plaintiff discovered, or could on reasonable inquiry have discovered, the alleged negligence of Taylor and Scott. The decision in Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 does not provide any support for that proposition, (see Deane J at 540) nor does the detailed review of the English and Australian authorities undertaken by Mathews J in Crisp v Blake (1992) ATR 81-158. Her Honour there accepted that the “discoverability of damage” test was unlikely to be regarded as an acceptable criterion for determining the accrual of a cause of action, although upon its facts she reached the conclusion that the case properly fell within a qualification to the long line of authorities discussed. That decision went on appeal, but by consent her judgment declining to strike out the statement of claim as statute barred was set aside. 249 Counsel for Keddies however, sought to rely upon Wardley and in particular upon the approval by Mason CJ, Dawson, Gaudron and McHugh JJ, of the comments of Gaudron J in Hawkins (601/602) in support of the proposition that the plaintiff did not suffer a loss, so as to start time running, until his application under the Limitation Act for an extension of the limitation period failed. To that point, it was submitted, any loss was contingent, and akin to that under consideration in Wardley. 250   What their Honours said, in this regard (at 532/3) needs to be examined. It was in the following terms:

“The conclusion which we have reached with respect to the time when the plaintiff first suffers loss in respect of contingent loss or liability accords with the comment of Gaudron J in Hawkins v Clayton : (77)
“If the interest infringed is an interest in recouping moneys advanced it may be appropriate to fix the time of accrual of the cause of action when recoupment becomes impossible rather than at the time when the antecedent right to recoup should have come into existence, for the actual loss is sustained only when recoupment becomes impossible.” (emphasis added)
Gaudron J went on to point out (78):
It would be too simplistic to restrict analysis of economic loss merely to a consideration of reduced value or increased liability.”
The conclusion which we have reached is reinforced by the general considerations to which we referred earlier. It is unjust and unreasonable to expect the plaintiff to commence proceedings before the contingency is fulfilled. If an action is commenced before that date, it will fail if the events so transpire that it becomes clear that no loss is, or will be, incurred. Moreover, the plaintiff will run the risk that damages will be estimated on a contingency basis, in which event the compensation awarded may not fully compensate the plaintiff for the loss ultimately suffered.”

251   This passage clearly does not support a proposition in the much broader terms for which Keddies contended. 252   A submission was also advanced that in so far as the plaintiff or Taylor & Scott sought to rely upon Doundoulakis, the correctness of that decision had been thrown into question by Wardley. It was argued, in this regard, that in their joint judgment Mason CJ, Dawson, Gaudron and McHugh JJ had distinguished at least some of the English decisions upon which reliance had been placed in Doundoulakis, and had said if they were not distinguishable, then they were wrong. (at 529 to 532). 253   These submissions need to be understood in the light of the very different factual situation which arose in Wardley. There the plaintiff’s action was based upon misleading or deceptive representations that led the respondent State to enter into an indemnity in favour of a bank against a facility granted by that bank to Rothwells Limited. By the indemnity the respondent undertook to hold the bank indemnified against any net loss which might arise if Rothwells did not satisfy in full its liability under the facility. 254   In the joint judgment the liability was said to be “contingent and executory”, their Honours observing (at 524-525):

“The indemnity was not one of a kind which generates an immediate non-contingent liability to pay upon execution of the instrument. It was neither a promise to meet a liability of the promisee to make a payment nor a promise to pay a debt owing by a third party to the promisee (47). In our view, the indemnity, on its true construction, was one which created a liability on the part of the respondent to the Bank to make payment if and when the Bank’s relevant “net loss” was ascertained and quantified (48), subject to the making of a demand for payment by the Bank. The liability was, therefore, in conformity with the opinion of the Full Court, contingent and executory. The likelihood, perhaps the virtual certainty, that there would be a loss, in the light of Rothwell’s actual financial position as it stood when the indemnity was executed, did not transform the liability into an actual or present liability at that time.”

255   The English decisions which were examined were essentially those based on Forster v Outred & Company (1982) 1 WLR 86, which had been accepted and applied by the Full Court of the Federal Court in Jobbins v Capel Court Corporation Ltd (1985) 25 FCR 226. Forster was explicable, their Honours said, by reference to the immediate effect of the execution of the mortgage that had been given, following negligent advice from a solicitor, on the value of the plaintiff’s equity of redemption. 256   That and the other decisions noted (in particular D W Moore & Co v Ferrier (1988) 1 WLR 267 and Islander Trucking Ltd v Hogg Robinson Ltd (1990) 1 All ER 826) it was said, “turned on the plaintiff sustaining measurable loss at an earlier time (ie on entry into the agreement) quite apart from the contingent loss which threatened at a later date”. 257 What their Honours said in relation to this needs to be noted, in the light of the submission which went to the basis underlying Doundoulakis:

“If, contrary to the view which we have just expressed, the English decisions properly understood support the proposition that where, as a result of the defendant’s negligent misrepresentation, the plaintiff enters into a contract which exposes him or her to a contingent loss or liability, the plaintiff first suffers loss or damage on entry into the contract, we do not agree with them. In our opinion, in such a case, the plaintiff sustains no actual damage until the contingency is fulfilled and the loss becomes actual ; until that happens the loss is prospective and may never be incurred.” (at 532)

258   Wardley and the kind of case mentioned in this passage, are very different from the present case. They were matters where, at the time of the negligent act, and at the time of expiry of the initial time for action, any loss was contingent or prospective. It might never be incurred. 259 In the present proceedings, once the cause of action against the carpenters was barred by expiry of time, the plaintiff suffered an immediate and quantifiable loss. The only possible respect in which any loss could be avoided was if a successful application could be later brought under the Limitation Act, to extend the period of time for action. I do not agree that this converted the loss into a contingent or prospective loss of the kind contemplated in Wardley; nor do I agree, for the reasons previously given, that Mewett stands as authority for the proposition that the loss remained prospective or contingent until an application for extension of the limitation period was brought and dismissed. 260 The next submission advanced by Keddies, although not by the plaintiff, rested upon the notion that there was an equitable duty which Taylor & Scott owed to the plaintiff, by reason of the fiduciary relationship in which they stood, which meant that it was unconscionable for them to plead the Limitation Act in answer to any claim for negligence. This was said to be a species of equitable fraud, not dependent on moral turpitude, and hence different from the concealed fraud for which provision is made in S 55 of the Limitation Act. 261 While it may be accepted that a solicitor owes a fiduciary duty to a client, Breen v Williams (1996) 70 ALJR 772, at 782 and 790; Boyce v Mouat (1983) 3 WLR 1021 at 1028, it does not follow that fiduciary duties and obligations attach to all aspects of the relationship, or to acts done in implementation of obligations arising from the contractual or tortious relationship of solicitor and client: Macedone v Collins (1996) 7 BTR 15,127 per Cole JA at 15,132. 262 No unequivocal authority was cited in support of the proposition that the existence of a fiduciary relationship prevents a solicitor from relying on a Limitation Act when sued. The differences in judicial opinion in the United Kingdom concerning the question whether, by reference to the equitable doctrine of concealed fraud, or the statute prior to the 1980 Act, a subsequent deliberate or fraudulent concealment of the cause of action could override the statutory time limit, or cause time to begin running again, were noted in Sheldon v RMM Outhwaite Ltd (1996) 1 AC 102, and particularly by Lord Browne-Wilkinson at 145. It is not possible to detect any consistent or clear line of authority in this regard. Such support as does exist for the barring of a plaintiff from relying on a limitation period seems to depend upon active concealment by the defendant: Ignorance of the wrong or of a breach of contract alone would seem not to be sufficient: Meagher, Gummow & Lehane Equity Doctrine and Remedies 3rd Ed para 3418. 263   I am not persuaded that Keddies or the plaintiff can derive from Sheldon or from the decisions there examined, a broad principle along the lines suggested. Further, so far as any of these decisions depend on deliberate or fraudulent concealment, I am not persuaded that the evidence in the present case would support such a finding. 264 As a related argument it was submitted that Taylor & Scott owed an equitable duty to exercise reasonable care, to which the same principle of concealed fraud applied. I confess to some difficulty in understanding this submission. By analogy the Limitation Act would apply to such a claim, since it is identical to the claim in tort and contract: Meagher, Gummow and Lehane, at para 3415, and see S 23 Limitation Act. Nothing said in Macedone would justify any different conclusion. 265   Further, so far as the argument rests upon the doctrine of unconscionability in equity, no circumstance has been identified that would here qualify as such, other than the asserted failure of Taylor & Scott to advise the plaintiff of his entitlement to sue them, after the initial time for action had expired. In the circumstances outlined, where an application to extend time was brought and the plaintiff was advised of its dismissal, and of the consequences, and where he had time to sue Taylor & Scott, I cannot see any basis upon which the doctrine of unconscionability could attach. 266   The final submission advanced on behalf of Keddies, was that Taylor & Scott owed a continuing duty, after expiry of the initial time for action, to advise the plaintiff of his rights, and of his entitlement to sue them. This it was submitted, was a continuing duty, the breach of which continued until the time that they ceased to act for him, so that a fresh cause of action accrued each day that there was a non disclosure. Even assuming that such a duty did exist, no such breach has been pleaded. Such a cause of action would be very different from the claim brought, which is confined to the asserted negligence of Taylor & Scott in failing to sue the carpenters. No amendment was sought to amend the Statement of Claim which was filed by Keddies themselves, and I am not prepared to allow the proceedings to be further expanded to accommodate this further submission. 267   In summary the present is not a case of the kind contemplated by Deane J in Hawkins. Nothing that Taylor & Scott did prevented the plaintiff from bringing an action against them. They were dilatory in considering whether or not to join the carpenters, but once the Master dismissed the application in November 1993, the plaintiff had another year to bring an action against them. He was aware of his entitlement to do so, and he had instructed Keddies accordingly. 268   In those circumstances I am unpersuaded that the principle enunciated by Deane J can apply. Nor am I persuaded that there was the form of “dishonesty or moral turpitude” of which McLelland CJ in Eq spoke in Hamilton v Kaljo (1989) 17 NSWLR 381, or the consciousness of wrongdoing of which Mahoney ACJ spoke in Seymour v Seymour (1996) 40 NSWLR 358 that would bring this case within S 55(1) of the Limitation Act. 269 Moreover, the case is not one where, as at the expiration of the time to bring action against the carpenters, the loss was contingent or prospective, as was the case in Wardley, or one that was dependent on some extrinsic circumstances, for example an action taken by a third party, as was the case in Cirino v Registrar General (1993) 6 BPR 97452, Registrar General v Cleaver (1996) 41 NSWLR 713, and Christopoulos v Angelos (1996) 41 NSWLR 700. At that point, assuming that the plaintiff previously had a chance of bringing successful proceedings against Taylor & Scott, the action was barred and the damage was actual. The present case is distinguishable from these decisions. 270 Finally, I am not persuaded that the plaintiff could maintain the action pleaded against Taylor & Scott, after expiration of the limitation period by reference to equitable principles. 271 For these reasons I am of the view that Taylor & Scott are entitled to rely on S 14 of the Limitation Act, as an answer to the claim brought by the plaintiff against them, and that neither Keddies nor the plaintiff can avoid that consequence by reference to the matters discussed. 272 For completeness, I observe that the plaintiff did assert negligence against Keddies in filing an amended Statement of Claim in which Dorgor and Maului were effectively dropped from the proceedings. Although no substantive argument was developed by the plaintiff in relation to this submission, there is no evidence that a cause of action against these companies would have had any value. There are two reasons for that. 273 First, having regard to the conclusions earlier expressed, I do not believe that there ever was a good cause of action against the carpenters. Secondly, even if there was a good cause of action, by the time Keddies were retained, those companies had been removed from the Register. No evidence has been called to show that they could be reinstated, or if they were reinstated, that access could be gained to the insurance policy, or to any other source of funds, from which a judgment might have been satisfied, or from which an offer of settlement might have been made. 274 There will be a verdict for the defendants in the principal proceedings, and for the cross defendants on each of the cross claims. I will hear further argument as to costs.

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Last Modified: 05/31/1999