Houghton v Rural Building Company Pty Ltd - [2015] WADC 144

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HOUGHTON -v- RURAL BUILDING COMPANY PTY LTD [2015] WADC 144

CORAM: STEVENSON DCJ

HEARD: 23-26 NOVEMBER 2015

DELIVERED : 3 DECEMBER 2015

FILE NO/S: CIV 3949 of 2011

BETWEEN: CHRISTINE HOUGHTON
Plaintiff
AND
RURAL BUILDING COMPANY PTY LTD
Defendant

Catchwords:

Torts - Negligence - Duty of care - Plaintiff employee of independent contractor engaged by defendant - Personal injury - Whether common law duty of care - Liability under Occupiers' Liability Act 1985 (WA) - Whether breach of any relevant duty and private right of action under Occupational Safety and Health Act 1984 (WA) - Contributory negligence - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
Occupational Health and Safety (Manual Handling) Regulations 1988
Occupational Safety and Health Act 1984 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr R R Cywicki
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Corser & Corser
Defendant: Jackson McDonald

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

Browne v Dunn (1893) 6 R 67
Jones v Dunkel (1959) 101 CLR 298
Leighton Contractors Pty Ltd v Fox [2009] HCA 35
McCallion v U R Machinery Sales Pty Ltd [1999] VSC 543
Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona [2009] NSWCA 406
Smith v BHP Billiton Iron Ore Pty Ltd [2013] WASCA 111
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sungravure Pty Ltd v Meani 110 CLR 24

STEVENSON DCJ:

Introduction

On 13 December 2008 Ms Houghton, the plaintiff in this action, was injured as a result of an accident at work. At the time of the accident, Ms Houghton was employed as a professional cleaner by Tamari Professional Cleaning Services (Tamari).
Rural Building Company WA Pty Ltd (the defendant) builds and constructs residential homes and traded under the business name 'Residential Attitudes'.
Pursuant to a lump sum building contract dated 8 January 2007 between Mr Waymouth and Ms Mohi (the owners) and the defendant, the defendant built a new house (the premises) on Lot 127 Laurel Street, Mullaloo (the property).
By this action, the plaintiff claims damages against the defendant for injuries sustained as a result of the accident, which occurred when she fell off an A‑frame ladder whilst cleaning an external Colorbond feature wall on the premises.
It is agreed on the pleadings that, on or about 13 December 2008, the defendant engaged Tamari to clean the Colorbond feature wall on the balcony of the second floor of the premises.
To assist Tamari to complete this task, the defendant admits it left an aluminium A‑frame ladder on the property with the knowledge that it would be used by Tamari in the course of the works. This was the ladder the plaintiff was using when she sustained her injuries.
The plaintiff's action was commenced on the last day of the limitation period and it has taken another four years to come to trial. Even then, on the first day of trial, the plaintiff sought leave to plead a new injury for the first time - namely recurrent major depressive disorder. As a result, without going into the reasons for the lateness of this application, the trial proceeded on the issue of liability only.

Witnesses

Christine Anne Houghton

Ms Houghton is presently aged 55 years, having been born on 4 December 1959. She was injured in the course of her employment with Tamari, nearly seven years ago, when she was aged 49.
Since finishing Year 10 at school, Ms Houghton has completed basic army training and worked in various roles including office clerk, nanny, babysitter, housekeeper and cleaner. She described the nature of her work as 'physical work, manual work'. She holds relevant certificates for the work she has done including a Certificate III and IV in Community Services and a Housing Industry of Australia safety awareness certificate.
In July 2006, Ms Houghton commenced employment as a professional cleaner with Tamari Professional Cleaning Services. According to her, there was no written contract of employment. In her evidence Ms Houghton referred to 'Mandy' as her employer and owner of Tamari.
Ms Houghton described her duties as:
Sweeping floors; cleaning out kitchen cupboards; cleaning off benchtops; cleaning laundries, cupboards and benchtops; removing glue; cleaning all wet areas; cleaning windows; removing paint from tiles; cleaning window tracks; and removing concrete from newly constructed houses.
Ms Houghton worked with up to six or seven other employees to conduct a 'normal clean' of a new house to ensure it was 'cleaned thoroughly, removing all rubbish, any debris, everything being brought up like it's actually brand new'.
She also did 're-cleans' which she described as work involved after the property had been inspected by the owners and the building company. Her job was to remove any further mess created by tradespersons and to 're-check that everything was clean and thorough so it could be handed over'. She did re‑cleans alone and usually on the way home.
In order to clean new houses, Ms Houghton was required to obtain a 'blue card' because the properties are classified as 'work sites'. She obtained her blue card and a certificate of completion after attending a Housing Industry Association course in Osbourne Park. The course lasted about 1 1/2 hours and consisted of 'basic safety' instructions.
Apart from this course, according to Ms Houghton, she did not receive any other formal training. She said she was taught by Mandy 'on site - being shown what to do and then for me to keep practising until I did it properly'.
Relevantly, Ms Houghton said that in the course of her employment she used two types of ladders for cleaning purposes.
According to Ms Houghton, Mandy provided her with either a three‑step ladder or an extension ladder which Mandy carried in her car for use by employees during cleaning jobs. She described the three-step ladder as a 'normal household three-step ladder' with steps about 40 cm wide and about 2 1/2 feet tall. The three-step ladder was used inside to reach kitchen cupboards and mirrors in bathrooms.
Ms Houghton said Mandy had one extension ladder that she took with her to jobs. It was transported on the roof rack of Mandy's car. She said she did not use the extension ladder initially because another employee performed this part of the work. When that employee left, she started using the extension ladder. This was about one year before the accident.
Ms Houghton described how the extension ladder would be taken off the roof rack when they arrived at a site. She said she would 'pick up the extension ladder, I would take it over to the wall, I would lean it up against the wall under the direction of Mandy. The first time she showed me how to do it, then I was left to do it myself and pull on the rope to extend the ladder up to where I had to clean'. She said the extension ladder extended to the second story - about 12 to 14 feet high.
Ms Houghton explained once the ladder was against the wall, she used to stand on the step to 'make sure it was secure' and, when possible, she used a harness which was secured by a rope clipped to the harness, before she went up the ladder with her tool belt. When using the extension ladder, Ms Houghton said she had 'a tool belt on with my squeegee on the side, a cloth for cleaning the frames, turpentine with baby oil in a container that we used to clean the frames, screwdriver and a scraper in case there was any paint chips, and a towel on (her) shoulder for wiping the windows'. The extension ladder was not attached to anything.
Ms Houghton did not mention any knowledge of using 'three point contact' as a result of her blue card training course or her on on-site training. Nor was she asked.
Ms Houghton said:
Mandy issued us with milk crates not long after I started and that was our crate to use for cleaning because the safety steps we had mentioned … she said were too expensive. So we kept using the milk crates … because there was only one three-step ladder …
In 2008, Ms Houghton was involved in cleaning approximately five to seven houses a week. Her evidence is not clear whether the number referred to both 'first cleans' and 're-cleans'. As to first cleans, she worked with up to seven other employees at a single time on the new homes. However, Ms Houghton said when she performed a re‑clean, she worked alone. The reason for this was because a lot of re‑cleans occurred on Saturdays and she would do them on her way home. She carried her cleaning materials in her vehicle for this purpose because 'Mandy would not be there with any of the other equipment'. She obtained entry to properties for the purpose of re-cleans using a master key (the locks were changed when the property was ready to be handed over to the new owners).
Ms Houghton said that on the Thursday before Saturday, 13 December 2008, she was asked by 'Mandy, my employer' if she wanted to do a re‑clean at Laurel Street, Mullaloo on Saturday and she agreed.
In examination-in-chief, Ms Houghton was asked what instructions she received for the job:
What were your specific instructions from Mandy? - Mandy said that there was a Colorbond feature to be cleaned and I would see it when I got there.
Yes? - And there was no other explanation about it.
So what - - - ? - And I did not ask because she said I would see it when I got there.
Did you understand what a Colorbond feature wall was at that time? - No, not exactly. I knew I had to look for Colorbond and that would be the feature.
So had – had you previously cleaned the property at Laurel Street? - No.
Ms Houghton described the cleaning materials she had with her on 13 December 2008 when she arrived at the property as follows:
I took with me my long-handled broom, my dust pan, my dust pan broom, a milk crate that we used to use to stand on that Mandy issued us with, my bottle of methylated spirits, a bottle of turpentine with baby oil in it, my cleaning rags, my tool belt, my squeegee, my towels, my screwdriver and my scraper.
Now you – you mentioned that material with reference to my, can you - - - ? - This was my kit that I had in my car at all times because if I had re‑cleans to do on the way home, or any re-cleans that I needed to do on Saturdays, I always had it with me because Mandy would not be there with any of the other equipment.
In her evidence, Ms Houghton explained what happened when she arrived at the property as follows:
Right. So can you - can you explain - or shall - shall I say, can you detail when you arrived at the Laurel Street property? - When I arrived at the Laurel Street property, I parked on the roadside because there was a car in the drive way so I knew there was somebody there. I got my gear out of the boot of the car. I walked towards the front of the house. To the left of the garage there was a door that was opened. I went inside and then I went up the internal stairs to my left and then when I reached the top, to the right of me there was a lady cleaning in the kitchen and I introduced myself as in, 'My name's Christine. I am here to do the re-clean', and she said that she was the owner and that Mark had left a note for me on the kitchen bench.
Can I stop you there. Mark, do you - did you know who she was referring to? - Yes, Mark the supervisor for Residential Attitudes. I don't know his last name, we only knew the supervisors by first names.
And his - his relationship to the defendant in these proceedings? - He is one of the supervisors.
All right? - Building supervisor.
So what was the extent of your discussion with the person who identified themselves as the owner? - She just mentioned to me - the owner mentioned to me that Mike had left a note on the kitchen bench for me. I put my crate down with my gear in it. I went over to the kitchen bench. It had been taped to the kitchen bench and explaining for me to please clean the Colorbond feature on the balcony upstairs.
Ms Houghton gave the following evidence in relation to the identification and use by her of the A-frame ladder at the time:
All right? - And then the owner pointed to a ladder that had been left leaning against the wall behind me. 'Mark left the ladder for you to use'.
Right. And - and can - can you describe the dimensions of the ladder? - It was an A-frame Bailey's ladder.
Mm hmm? - Silver, 1.8 metres high. It had - it was still folded up against the wall. I didn't unfold it until I took it upstairs.
…
- - - can you perhaps explain to his Honour how you proceeded to clean the Colorbond feature walls? - I took the A-frame ladder from downstairs upstairs and I placed it outside on the balcony which - outside the door that is on the right side. I - I did go down and get my crate with my brooms and things. I brought them back up. I opened up the ladder and I locked the arms down in the middle to make sure that it was sturdy and locked. I - I grabbed the ladder and wobbled it and jiggled it to make sure that it wasn't going to fall.
Can I stop you there and - and ask were you familiar with this - this type of ladder? - No. No. I - this is the first time I had used an A-frame ladder.
…
Okay. Before you assembled the ladder, as you've described, did you inspect the ladder? - Yes, I - I looked at the ladder. The ladder looked very new. It was still shiny. The legs were straight. There was nothing bent. There was nothing out of the ordinary about it.
All right? - And when I opened it up everything was still straight, even the arms that lock down to keep it open. They were straight, they weren't bent.
Ms Houghton's evidence in relation to how she performed the cleaning job at the relevant time was as follows:
All right. So once you - once you assembled the ladder, what did you do with it? - I placed the ladder parallel to the window door and I started on the Colorbond feature on the right side. I had my 12-inch brush in my hand. I went up the ladder to the step lower than the – there's a – there's a marking on a high step that is – you're not allowed to precede [sic] past because of safety. So I was actually under - on the step below that one.
All right? - And with my left hand I was holding on just to keep my balance - - -
Is that - so that his - - -? - - - - on the wall.
So that his Honour understands precisely your location? - I'm on the right side - I started from - the Colorbond feature that you can see in the picture on the right side.
Mm hmm? - I started at that feature. I was unable to reach to the top because of the height of the ladder.
Before you get there, just explain where the ladder was in proximity to the sliding - the sliding doors? - The ladder was approximately 12 inches out from the wall. It was parallel to the wall where the sliding doors are, and I started on the right side and worked my way across to the left, getting down the ladder, moving the ladder across, and sweeping the lower section of the Colorbond as I went because I could not - I was unable to reach the height of it all. It was impossible, I was too short, the ladder was too short.
Okay? - So I did what I could.
All right. So let's break it down? - Yeah.
So what - what were you using to - - -? - I was using my - - -
- - - brush the - the Colorbond? - I was using my 12-inch brush.
Okay. And in which hand were you holding the brush? - I was holding it in my right hand, balancing myself with my left, trying - because there was nothing to hold on to. There was only smooth Colorbond. There was no handles. There was nothing.
All right? - So I had to try and keep myself stable. I didn't want to fall.
Ms Houghton said she had never previously used an A-frame ladder in the course of her work and 'had no experience in cleaning Colorbond feature walls'. She described her task on this occasion by reference to the usual work involved in a re-clean as 'extra on top of what had been asked for by the building supervisor of Residential Attitudes'.
Ms Houghton said the accident occurred after she had cleaned the first two Colorbond feature walls while she was cleaning the third one on the left side. Ms Houghton said she was:
On the last part of the right hand side of that Colorbond feature when I was dusting with my 12-inch broom leaning, or trying to balance myself with my left hand, and then all of a sudden the ladder went out from under me.
Ms Houghton described what occurred after she fell as follows:
And I fell - fell to the concrete balcony on my left side, on my left shoulder, and my left arm was bent and all screwed up behind me, my leg was stinging and wet, so I assumed it was bleeding. It was hurting. And I was panicking, I didn't know how to get up. The owner was downstairs vacuuming. I called out as loud as I could three times for help. She couldn't hear me with the vacuum cleaner going. So then somehow - cos I used – couldn't use my left arm because it was trapped underneath and behind me, somehow I managed to get up. And then my left arm swung down beside me. I used my right hand to grab my left wrist to pull it up, to stabilise it. And I proceeded downstairs to where the owner was. She saw me holding my arm, asked me what happened, and she saw the blood going down - dripping down my leg so she grabbed a towel or cloth and wrapped it round my leg. And I asked her if she could please get my phone out of my bag so I could ring Mandy to say that I had fallen from the ladder, I couldn't finish the job. And so I did that and the owner offered to drive me to Joondalup hospital.
Okay. Thank - - -? - So she helped me to the car and into the car and we went to the hospital.
In cross-examination Ms Houghton said the only instruction given to her by Amanda Backrack (her employer) was 'to clean a Colorbond feature' and that she was told 'she would recognise it when she got there'. Her evidence was she was not told where it was in the house. She also said she was not told that it was high and did not ask because she 'didn't have any reason to ask her that'.
Ms Houghton said if the A-frame ladder had not been there, she would not have cleaned the Colorbond because she did not have any way of reaching it.
Ms Houghton denied she had an extension broom - her evidence was that she only had a 'normal long handled broom for sweeping out houses'. According to her, she had never used an extension broom. She did not accept the domestic ladder she had used was an 'A-frame'. Instead, she described it as a 'domestic three-step stepladder'. She considered it was a 'bit more flimsy' a ladder than the Bailey's A-frame ladder she used. Ms Houghton also said she used an Ikea plastic stool and that if she could not reach, then she used 'Mandy's stepladder'. She did not accept she often used the domestic stepladder but said she did use it 'from time to time'.
Ms Houghton accepted the Colorbond feature was about 4 m or more at the top from the balcony level. This meant she 'couldn't clean' it all because of its height.
Ms Houghton said when they 'went to jobs, we would do what we could, then it would be relayed back to Mandy and Mandy would relay it back to the supervisor'. Her intention on this occasion was to inform Mandy, after she had finished what she could do and gone home, that she had been unable to clean the top of the feature. She understood Mandy would then convey that to the building supervisor.
I infer, and find, that it was obvious to Ms Houghton she could not complete the job because the A–frame ladder was not of sufficient height. She did not say, and nor was she asked, if she considered using it in its extended configuration so she could complete the job. I also find that, even standing on the step below the yellow line, Ms Houghton would have been required to bend over and lean down in order to maintain a three-point contact. This would have significantly impaired her ability to reach up, perhaps to such an extent that she might have had real doubt as to whether it was worth starting the task.

Ms Houghton said she and her husband do not have an A-frame ladder at home. I do not accept that she has never used an A-frame ladder before in either a domestic or working environment.
In cross-examination, Ms Houghton accepted she could not see anything wrong with the Bailey's A-frame ladder but said, when she opened her eyes after she had fallen, 'two legs of the ladder were bent'. It is no longer the plaintiff's case that the A-frame ladder was in some way damaged or defective before Ms Houghton used it. Rather, it is contended it was 'unsuitable' for the job.

Joy Leenn Mohi

Ms Mohi is a therapist assistant. In December 2008, she was the registered proprietor of the property. She identified the lump sum building contract dated 8 January 2007, which was entered into with the defendant for the construction of a new home on their property.
Ms Mohi said the building supervisor informed her in the week of the accident that they were close to handover. She said she was given permission to go into the premises once the cleaners had arrived, and that they would let her in so she could do some vacuuming. She said:
Once the cleaners arrived on Saturday morning I was to go over and introduce myself and let them know that I had permission to vacuum the stairs.
The plaintiff's counsel asked Ms Mohi if she was asked or required to pass on any information to the cleaners and her response was:
I assumed that the supervisor had passed that information on to them, but I introduced myself beforehand to the girls.
According to Ms Mohi, she had no personal knowledge as to what information had been given to the cleaners. On the evidence of Ms Mohi, initially on the Saturday morning of the accident, there were other cleaners present than just Ms Houghton.
Ms Mohi was asked directly 'was there any discussion between yourself and the supervisor as to the cleaning of the Colorbond?' She said she did not know anything about that.
Ms Mohi said the plaintiff came down the stairs at some point in time and was obviously injured. At the time, Ms Mohi said she was vacuuming the stairs. She told the plaintiff to wait there. She ran across the road to where she and Mr Waymouth were renting. On her return, she bandaged Ms Houghton's injured leg and took her to hospital.
Ms Mohi said the accident occurred on the top balcony on the right-hand side (whereas Ms Houghton said it happened on the left side).
In cross-examination, Ms Mohi said she did not recall who let her in to the property. Her evidence was 'I just spoke with the girls and I went across and got the vacuum cleaner'. She said four people were there at the time. She said they were talking in front of the car whilst she was across the road waiting for them to arrive. She said this was the same day the accident occurred, Saturday. She did not know what parts of the house they were cleaning and she was not told what they were cleaning. Ms Mohi said:
I just went across the road and got the vacuum cleaner once I introduced myself and was vacuuming the concrete stairs and that was all.
Ms Mohi was not re-examined.

Anthony Bruce Waymouth

Mr Waymouth is a State sales manager and was the registered proprietor of the property with Ms Mohi in December 2008.
Mr Waymouth became involved after the accident occurred when Ms Mohi returned to the adjacent house they were renting at the time. He was asked to bring the car over so 'she could take a woman to hospital'. This occurred about midmorning.
Mr Waymouth subsequently spoke to two investigators who he said were from WorkSafe. Mr Waymouth recalled seeing a silver A‑frame type ladder but could not recall anything further about it.
Mr Waymouth understood that at the time of the incident, the defendant was undertaking 'the final clean before handover'. His vague recollection was that handover occurred in the early stages of the week following the incident, on either Monday or Tuesday. Mr Waymouth identified two receipts from Rural Building dated 15 December 2008, both confirming receipt of 'final claim' payment for the house on the property.
In cross-examination, Mr Waymouth was taken to a document entitled 'Record of Practical Completion' which he signed on 9 December 2008. The document noted the date of inspection as 9 December 2008 and acceptance on the part of the owners of 'vacant possession of the site and dwelling completed in accordance with the terms and conditions of the contract', subject to certain exceptions.
In re-examination, Mr Waymouth said, notwithstanding the record of practical completion was 13 December 2008, that they did not occupy the property and did not have the keys to the premises.

Dr Milos Nedved

Dr Nedved holds a Master of Science in Engineering and a Doctorate in Safety Engineering awarded in 1970. The doctorate was obtained from the University of Prague on the topic of safety features related to hazardous chemical processes, including the human aspects.
Dr Nedved's professional experience includes aspects of occupational safety and health in several European and Asian countries and five years as an advisor for the United Nations. He worked 14 years in a full-time academic position at Edith Cowan University and now holds an adjunct position.
Dr Nedved is currently a director of Safety in Workplaces Australia. According to Dr Nedved, since 1983, he has provided his opinion on over 600 occupational health and safety cases in Western Australia. Since 2007, his focus has been on accident investigation and prevention, a subject which he has taught at postgraduate level.
There was no challenge to the professional qualification of Dr Nedved to give expert opinion evidence based on his experience and training.
However, prior to trial, the defendant objected to some parts of Dr Nedved's proposed expert report. These objections were heard and determined by another judge. As a result of that hearing, Dr Nedved amended his report and filed a redacted copy dated 5 November 2015. This version of the report was tendered at trial.
Notwithstanding the earlier hearing, counsel for the defendant objected to several portions of Dr Nedved's amended report. Counsel for the plaintiff, quite properly, conceded some of the objections in written submissions filed during the trial.
Counsel for the defendant, Mr Clyne, objected to Dr Nedved being allowed to detail his analysis of the mechanism which caused the plaintiff to fall off the ladder, if the response relied upon the content of his report. In broad terms, the objection was premised on the basis that Dr Nedved's opinions expressed in the report were based on matters for which there is no evidentiary basis. For example, par 2 contained a statement by Dr Nedved that 'your client was working under instruction of the building company Residential Attitudes …'. This contention is repeated in several separate parts of the report.
This is a controversial issue in the context of this case. The evidence at trial is uncontroverted: Ms Houghton is an employee of Tamari and performed her duties in accordance with instructions from her employer, namely Tamari.
On a fair reading of Dr Nedved's report, it is open to the construction that the defendant is the employer of the plaintiff, which is contrary to the evidence. To the extent Dr Nedved's report is premised on the basis that the plaintiff was 'working under instruction of Rural Building', the objection must be upheld.
Counsel for Ms Houghton attempted to meet the objection that Dr Nedved had erroneously stated in the report that the plaintiff 'was working under the instructions of [the defendants] building supervisor' by re-framing the plain meaning of the language used. Unfortunately, that would be to do violence to the language used.
This contention is contrary to the evidence and the factual circumstances that are not in controversy. The error is made a number of times in the report. It is either Freud doing his best for Ms Houghton, or possibly, a translation issue - bearing in mind that English is not the first language of Dr Nedved. I accept Dr Nedved was doing the best he could while giving expert evidence as an officer of the court and that he did not intend to mislead the court. No adverse finding is made against Dr Nedved (or the plaintiff's case).
On the basis there is no supporting evidence, objection was also taken to two statements to the effect that the plaintiff, by her position on the ladder, was 'quite unstable' and that 'she was stretching as high as she could' to this effect. That submission must also be upheld on the evidence. It does not preclude, as I find, that the plaintiff used the Bailey's A-frame stepladder for the purpose of reaching to the extent she could to clean the Colorbond feature with the brush she was holding.
In par 5.1.1 of Dr Nedved's report, he speculates that 'the centre of gravity of her body moved momentarily to the left beyond the ladder support base'. Again, there is no evidence that this in fact occurred, bearing in mind of course it is common ground that the plaintiff fell off the ladder while cleaning the Colorbond feature.
The objection to these expressions of fact, which are contrary to the evidence and the position of the parties, is upheld and the report is to be read subject to this ruling. Other inadmissible evidence was struck out of the report at trial. This included opinions going to the ultimate issue.
Dr Nedved was instructed by the plaintiff's lawyers
to carry out a professional accident investigation to establish the facts, what were the contributory factors leading to the accident and to formulate (his) opinion by what strategy the accident would have been prevented or minimised.
For this purpose Dr Nedved interviewed the plaintiff and, on his own evidence, also was provided with certain documents from WorkSafe WA in relation to the accident. It transpired he also received a draft witness statement by the plaintiff. But Dr Nedved maintained he did not rely on it, preferring instead to obtain the facts from the plaintiff himself. Needless to say, the document was not expressly identified in the report as required by r 3.3 of the Code of Conduct - Expert Witnesses. Mr Clyne made a forensic decision not to call for the production of the statement as he had already cross-examined Ms Houghton. However, it must be observed that, because of the reference to the receipt of 'documents' in the report (albeit without particularity), he presumably made this decision before the commencement of the trial.
Dr Nedved's evidence is that a fundamental safety requirement when using ladders is the 'three point contact' system. By this he means the person using the ladder must maintain three points of contact with it - meaning two feet and one hand or two hands and one foot. The latter is the case when the person is ascending or descending the ladder and one foot is momentarily disengaged with the steps, requiring the ladder to be held at the same time with both hands. The plain implication is that the person may decompensate or detract from the three‑point contact safety requirement if carrying something in either hand. This will have an implication insofar as safety is concerned, and a risk of falling.
Subject to the defendant's objection, Dr Nedved said he understood that the plaintiff tried 'to go as high as possible, standing just below the yellow line which was approximately 1.3 metres above the balcony level'. Based on a typical reach of about 25 cm above a person's height, Dr Nedved 'calculated that she was unable to reach a substantial proportion of the Colorbond feature' even in that unstable position.
Dr Nedved opined that the reason he considered the plaintiff was in an 'unstable position' was because she would have had to bend down. He is correct, in my view, if she was standing where she said she was (one step under the yellow caution line) and trying to adhere to the 'three point contact' system.
On the basis of the plaintiff's evidence that she was holding the brush in her right hand and using her left hand to balance herself 'because there was nothing to hold onto', Dr Nedved opined that she was in an 'unstable position' because she did not maintain a three-point position with the ladder.
Although the plaintiff did not say so herself, it follows from Dr Nedved's evidence, that 'it was impossible' for her to use her left hand to support herself against the ladder. This was because she would have been bending down and therefore unable to reach as high as she could standing on the step below the yellow line on the ladder. Dr Nedved opined, although, again the plaintiff did not say so herself expressly, that 'she tried to support herself against a wall but always – like, it was impossible to get any safe handholds against a smooth wall'. As Dr Nedved said, 'the most important criterion for ladder safety is a three point contact with the ladder all the time and not with some other support or structure'.
Dr Nedved expressed the opinion that the accident could have been avoided by the provision of an extension broom or duster which would have enabled the plaintiff to reach the Colorbond feature whilst standing safely on the balcony floor (rather than on the ladder). Alternatively, although not mentioned, I interpose that the three-point contact could have been maintained by the plaintiff using the ladder together with an extension broom or duster. This would have enabled her to complete the task, depending on the length of the extension broom or duster.
In addition, Dr Nedved said 'a more suitable ladder which would be higher which would permit the plaintiff to maintain a three point contact with the ladder all the time' could have been used. In his opinion, a step platform could have been used as referred to in the 'West Australian Code of Practice for the Prevention of Falls'.
In addition, according to Dr Nedved a work platform would have been cost effective. In his opinion, the cost would be between $300 to $3,000. According to Dr Nedved, a step platform typically used in industry may have a height from 1 1/2 to about 2 1/2 m.
In cross-examination, Dr Nedved accepted that such a step platform (which he maintained he had seen in an industrial setting) would not, in any event, have enabled the plaintiff to complete the job because, even using her handheld brush, the height would have been too great. Dr Nedved did not advocate the use of a trestle ladder, which is also referred to in the Code of Practice: Prevention of Falls at Workplaces. He said the difference between a trestle ladder and a stepladder is that a trestle ladder has rungs as opposed to steps.
In cross-examination, Dr Nedved maintained he had seen step platforms used in residential premises by painters, the last occasion being in his ex‑wife's house, but that these only permitted access to about 3 or 3 1/2 m. He said he had not been asked to find out the minimum and maximum height available for a step platform.

Mark Ryan

The defendant adduced evidence from Mr Ryan. Mr Ryan is a builder and presently operates his own business. Between about July 2007 and March 2010, he was employed by the defendant as a supervisor. He was the defendant's supervisor for the premises constructed at 127 Laurel Street, Mullaloo.
Mr Ryan said he engaged Tamari, at the end of the job, to undertake the final clean. Due to the passage of time he did not have a precise recollection of all material matters, which is understandable. He did recall that he spoke to Mandy (he did not know her last name) whom he dealt with because 'she ran Tamari'. He maintained he recalled there were about four or five cleaners present at the time and involved in the job. He said that he would
go through what needs to be done with this particular situation. We were out on the balcony and the painters, some overspray went on the Colorbond above a window and we were discussing how to clean it …
Mr Ryan's evidence in relation to the specific cleaning task involving the Colorbond and undertaken by the plaintiff on behalf of Tamari was (ts 98):
And what did you say you wanted done? - We - they said 'we can't reach it'. I said 'I have a ladder, would you like to borrow the ladder?' They said 'yes, that'd be great. Thank you.' So I got the ladder off the car, took it out the back, put it on the balcony and said 'I'll leave that there for you and I'll pick it up in the morning'.
And what sort of a ladder was it? - It's an A-frame ladder, which can be used as an A-frame, and it's a fold-out ladder also.
So it can be used as a straight ladder as well? - Yeah, that's right. So you can get three metres if you fold it out and approximately 1.5 as an A‑frame.
And what else did you have to do with the organising - well, the arranging for the cleaning to occur? - Nothing else, really. I mean, I knew these girls quite well. We got on - they done all our jobs - went on site, just had a bit of a chat, then I say make - you know, 'just clean' - you didn't even really have to tell them what to do because they know. But this particular situation I did request that specifically because they - it would be unreasonable for them to look there to clean it.
Mr Ryan said he knew the plaintiff at the time. In cross‑examination, he said he ensured the premises were clean and orderly and that there were no hazards that would affect the final clean by Tamari.
Mr Ryan said the defendant's 'Safety Induction Handbook for on‑site employees, subcontractors and visitors' was on-site in a cylinder. He did not personally check that subcontractors who attended on‑site were appropriately qualified to undertake the work they performed. However, he was certain someone in the defendant's office would ensure that subcontractors, e.g. a scaffolder, was properly licenced to undertake the activity before being engaged.
Surprisingly, Mr Ryan said that in his role as the defendant's supervisor he did not 'get to see the building contract'. I infer he would have seen the relevant building plans and specifications.
Mr Ryan had no knowledge of the defendant's 'housing cleaning specification agreement form'. The document was referred to in evidence but not tendered. The specification does not purport to prescribe the way in which Tamari would undertake cleaning activities on behalf of the defendant. It merely 'requested (Tamari) to comply with the above guidelines' which, in general terms, are concerned with ensuring that no damage is caused to the premises and that any existing damage identified is brought to the attention of the site supervisor for rectification. The specification does not contain any express reference to cleaning Colorbond.
In cross-examination, Mr Ryan accepted that his request to clean the Colorbond feature wall was unusual. His evidence was (ts 102):
And would you accept that it was unusual for a cleaner to be requested to clean Colorbond feature walls? - Yeah, it's a bit unusual but we have had them clean gutters before and - and things like that. If it - the cleaners - if something's dirty we ask the cleaners to clean it.
Sure. But you'd accept it's not a usual part of their duty? - Absolutely.
Mr Ryan was cross-examined about his involvement in the cleaning by Tamari of the subject premises at the relevant time. He did not accept it was a 're-clean', maintaining it was a 'final clean'. He did not accept that a final clean is necessarily carried out before the property is handed over to the owners. He said 'there are many different stages of cleaning'. He was unsure whether the property had been handed over to the owners by 13 December 2008.
Mr Ryan confirmed that the Colorbond walls had been splashed with paint and accepted it would require 'some degree of work' to remove the paint. Mr Ryan did not know whether this work was undertaken in the morning or the afternoon. He said (ts 104):
Yes. And you indicated that - that you provided - well, you asked Mandy to carry out this cleaning work the day before the 13th? - Well, I don't know whether they cleaned it in the morning or that afternoon. I left them the ladder that day but I'm not sure when they actually used it, but I got the phone call the next day saying all that had happened, but I don't know whether they used it that day or early the next morning.

In cross-examination, Mr Ryan maintained he could not remember accurately with whom he had discussed the cleaning work with. He confirmed the cleaners would have had a master key at the time.
As to the Bailey A-frame ladder, Mr Ryan said his memory was that it was a 1.5‑metre ladder, not the 1.8‑metre version, and that it had a '120 kg capacity and it will open up to 3 metres'. He 'guessed' that the ladder had six steps. His evidence was that he indicated to Mandy 'I have a ladder that you can use if you like' and Mandy said 'That'd be great, thank you'. For this reason, Mr Ryan said he left the ladder at the premises. He said 'They were happy that I had a ladder to give them'.
Importantly, Mr Ryan said he did not give any other details or instructions as to how they were to use the ladder. His evidence was:
I would have thought that's common sense.
By reference to a plan, Mr Ryan accepted the Colorbond above the sliding doors to be cleaned would have been to a height in excess of about 4 m. Mr Ryan was cross-examined about the dimension and any discussion with Tamari with respect to the task as follows (ts 107):
Right. Okay. So, presumably, if you didn't put a tape on it you wouldn't have advised Mandy as to the dimensions of the Colorbond as well? - No. And that's unreasonable to do that; I'm not going to stand with a cleaner and say 'It's about 3 and a half metres high, Mandy.' Mandy would've just laughed at me and say 'I don't care how high it is'. Why would she care? She's cleaning it.
It is necessary to set out the cross-examination of Mr Ryan as to the contention that the defendant ought to have directed Tamari, and thereby the plaintiff, on how to undertake the cleaning task and that the use of the ladder was inappropriate and unsafe. Mr Ryan's evidence was (ts 107 ‑ 109):
And you didn't inquire as to what equipment the cleaners would need to bring in order to carry out the job? - What, cleaning gear?
Yes? - No, I don't tell them what to bring.
So, it wasn't your role, as you saw it, to tell them what specific cleaning equipment they should bring? - No.
But you nevertheless left the A-frame ladder in the expectation that they would use the ladder to access the feature wall? - Yes.
And you expected, therefore, that the cleaners or the cleaner, whoever would use the ladder, would use it as a work platform? - It's not a platform.
Well, let me - - -? - It's a ladder.
- - - but you knew that they would stand on the ladder? - Of course.
Yes? - That's what you do.
Yes. In order to clean the Colorbond and remove the paint? - You're stating the obvious, but yes.
So, given the height of the feature wall and the height of the ladder you would've known that without the facility of a long-handled brush or a long‑handled scraper for the paint that the top of the A-frame would not be reached by the cleaner? - No, well, I knew the ladder could do the job; because you can fold the ladder out. You can get the ladder to three metres. If that apex is four, any normal person over 1.5 in height can reach it comfortably.
Right. And did you advise Mandy as to the facilities of the ladder? - No. Everyone knows how to use a ladder.
But you said to me in response to a question that this ladder was not a work platform? - Yeah. No, it's not a platform. A platform is something you can walk on.
So you would definitely have considered the ladder to be an inadequate work platform? - No. I consider the ladder to be - what did - adequate to do the job.
So, Mr Ryan, as an experienced site supervisor you would know that an A‑frame ladder is an inherently unsafe place from which to work? - No, it's not unsafe at all.
Right. But would you agree that a ladder should only be used as a work base if other alternatives, such as scaffolding or elevated work platforms at not reasonably available - - -? - No, no. No, that ladder was appropriate for that job.
No, no, I want you to respond to my question, if you could? - Sorry, ask the question again.
Well, if you had scaffolding available or, alternatively, a work platform would you not use that before you would select a ladder? - No, not in that situation.
Would you not accept the proposition that work done from an A-frame ladder should be restricted to light duties only? - No.
In cross-examination, Mr Ryan was pressed by plaintiff's counsel that the use of the ladder for the task was unsafe by reference to an analogy involving plasterers (ts 109):
Well, let me ask you this question. You would have had plasterers who would have come on site in order to carry out plastering work? - Yes.
Would you think it was adequate to provide them with an A-frame ladder? - That's just being ridiculous.
All right. Why is that being ridiculous? - Well, the plasterer has to get barrow loads of mud up there. He has to have free hands, he has to get mud, trowels, screeding materials, loads of tools. I mean, it's common sense. That's a ridiculous comparison.
All right. But will you not accept that a latter should only be used for work that is being conducted over short periods of time? - No.
Mr Ryan was cross-examined about the importance of 'three points of contact' and his evidence was as follows (ts 110):
… Do you, firstly, accept that when you're using a ladder, A-Frame or otherwise, that in order to use it safely you've got to have three points of contact with the ladder. You know the three points of contact are either two feet and one hand? - Yeah. Well, that - that's fine, yeah.
You understand that? - Yeah. It makes sense.
And you've always understood it? - Well, it's common sense. I'm not saying it's something that I've learnt but it's common sense; two feet and one hand on the ladder.
And therefore you accept, do you not, that by leaving the ladder for the cleaner to use in this case you understood that the cleaner would carry out their work using only one hand? - Well, that's not something that I thought about.
You didn't turn your mind to that? - No.
Importantly, Mr Ryan did not accept in cross-examination that there were limitations imposed on the cleaner using the ladder to carry out the work in question. Mr Ryan, when asked whether he carried out a risk assessment as to the use of the ladder by a cleaner, responded:
Not specifically but it was a safe, cleaning working environment. It was a brand new ladder – capable ladder so all the signs are there that it's a safe work environment … and a safe ladder … and capable people using it.
As to the risk of a cleaner falling from the ladder, Mr Ryan said:
It's always a risk. Anyone that hops on a ladder, there's always a risk and there's signs on the ladder saying 'don't stand on the top rung'. There are risks involved.
When pressed, Mr Ryan said 'my train of thought is anyone knows how to use a ladder. I thought I was being helpful leaving the ladder'.
Mr Ryan was not re-examined.

Factual findings

There is a clear conflict on the evidence of the plaintiff, Ms Mohi and Mr Ryan as to the precise circumstances which resulted in the plaintiff performing the cleaning task when she was injured.
An obvious factual controversy arises out of the plaintiff's evidence that she attended the premises and, on arrival, was informed by Ms Mohi that Mr Ryan had left a note for her on the kitchen bench 'asking her to clean the Colorbond feature on the balcony upstairs' and that 'Mark left the ladder for you to use'.
Ms Mohi's evidence was, in contradistinction, that there was no discussion between her and the plaintiff as to the cleaning of the Colorbond.
The potential significance of the plaintiff's evidence in this regard is that, if accepted, it would arguably involve the defendant to some degree in the performance of the cleaning task, as opposed to a mere request to Tamari for the work to be undertaken in accordance with the contractual relationship between the defendant and Tamari.
In addition, it may have had a degree of relevance to the plaintiff's primary contention on the pleadings, that the ladder provided by the defendant, was unsafe or defective. This contention was ultimately abandoned by the plaintiff at trial, consistent with her own evidence that the ladder was fit for purpose. No evidence was adduced that the ladder was in any way unsafe or defective, even following a WorkSafe inspection by two officers after the accident. If this had been a cause of the plaintiff's accident, then it is unlikely there would have been any need for a trial.
Apart from this evidentiary anomaly concerning the circumstances as they existed at the time, the case is also notable for the absence of evidence. This may, in part, be explained by the length of time (almost seven years) which has elapsed since the plaintiff's accident.
Given the thrust of the plaintiff's case is that the defendant involved itself in the performance of the cleaning task, over and above merely providing the A‑frame ladder, it is surprising that neither party sought to adduce evidence from Ms Amanda Backrack (Mandy), the owner of Tamari - the person whom Mr Ryan asked to undertake the cleaning task.
In the circumstances, as mentioned to counsel, a Jones v Dunkel (1959) 101 CLR 298 inference might be open. However, in this case, it is not clear as to which party the inference might be drawn against. In any event, the factual controversy I have referred to arising out of the evidence, and in particular, the written note, is not critical to the resolution of the plaintiff's claim, for the reasons which will follow. In my view, on balance, Jones v Dunkel has no application, insofar as any resolution of the evidentiary issues is concerned in the circumstances of this case.
As to the issue of the note left by Mr Ryan and referred to in the plaintiff's evidence, Mr Ryan himself did not give evidence of any such note or action on his part. Nor was it put to him in cross-examination by the plaintiff's counsel that he had written, and left, a note of instruction as alleged by the plaintiff: Browne v Dunn (1893) 6 R 67 (HL).
In assessing the evidence on this issue, it must also be borne in mind, that Ms Mohi may now have an incomplete recollection of events at the relevant time. It is the case that she was on the premises and responded to the plaintiff's plea for help after she was injured by taking her to hospital. This was corroborated by Mr Waymouth.
In those circumstances, it is likely that the final clean was conducted on or about the Thursday before 13 December 2008; and that is when Mr Ryan was present on the premises and spoke to Mandy Backrack. If the request to clean the Colorbond feature was not conveyed to Tamari at this time, then it may have been the subject of a telephone conversation between the two resulting in Ms Backrack contacting the plaintiff and asking her whether she would perform the task on Saturday, 13 December 2008. There is, of course, a degree of speculation and uncertainty about making such findings, given the discrepancies on the evidence of the witnesses and there being no evidence from Ms Backrack or the WorkSafe investigators.
I accept the witnesses did their best to recall events as they happened, and gave evidence honestly to the best of their ability, given the passage of time. On this basis, I make the following findings of fact:
1.At all material times the defendant carried on the business of building and constructing new residential homes under the trading name 'Residential Attitudes'.
2.At the relevant time, Kemwin Pty Ltd, as trustee for the M Backrack Family Trust, carried on business as professional cleaners trading as 'Tamari Professional Cleaning Services'.
3.On or about 13 December 2008, Tamari was owned and operated by Ms Mandy Backrack. Tamari had several employees, including the plaintiff, who performed cleaning services. These services included 'final cleans' and 're-cleans' on, or near completion, of new homes by the defendant.
4Handover by the defendant to the owners of the premises constructed by the defendant on the property at 127 Laurel Street, Mullaloo, occurred in the week following Saturday, 13 December 2008.
5.In the week before 13 December 2008, Mr Ryan, the defendant's building supervisor, requested Ms Mandy Backrack of Tamari to undertake a 'final clean' of the premises. At this time, or shortly after, Mr Ryan also asked Tamari to clean the Colorbond feature walls on the second story of the premises because of some paint splashback.
6.Tamari, consistent with its contractual relationship with the defendant, agreed to perform the cleaning task on the Colorbond feature wall in the course of and as part of its normal cleaning services provided to the defendant.
7.There was no direction by Mr Ryan on behalf of the defendant as to how Tamari should undertake the cleaning task. There was no inquiry by Mr Ryan on behalf of the defendant to Tamari as to what equipment or means would be used to complete the work. The defendant relied upon its engagement of Tamari as a professional cleaning provider to undertake the requested cleaning of the Colorbond feature walls using its own employees, material and equipment.
8.To assist Tamari to undertake the work, Mr Ryan, on behalf of the defendant, offered to leave a Bailey A‑frame 1.5‑m aluminium ladder at the premises. The provision of this ladder was the only involvement of the defendant in the work undertaken by Tamari.
9.At the relevant time, Tamari owned and used an extension ladder and a three‑step domestic ladder. These ladders were transported by Ms Backrack to job sites using her vehicle and were used by Tamari's employees as required. In addition, employees had their own 'milk crate' for use which they retained to access places in high spots.
10.For a period of about 12 months prior to the accident, the plaintiff was permitted by Tamari to use the extension ladder. Before this, she was not allowed by Tamari to use the extension ladder. The plaintiff was instructed on how to use this ladder by her employer and, on occasions where appropriate, she also used a harness to secure her safety while on the ladder.
11.Ms Backrack requested the plaintiff to perform the cleaning task on the Colorbond feature wall at the premises and the plaintiff agreed to do so on Saturday, 13 December 2008. On this occasion, the plaintiff was working alone, as she usually did for re-cleans. Because she was alone, she did not have access to Tamari's extension ladder. For this reason, to facilitate completion of the cleaning task, Mr Ryan on behalf of the defendant had left the Bailey A-frame 1.5‑m ladder at the premises for Tamari to use to undertake the works. He knew it would be used for this purpose by Tamari.
12.On arrival at the premises, the plaintiff located the defendant's A‑frame ladder and utilised it on the balcony in an A-frame configuration to undertake the work.
13.The plaintiff, in using the ladder as an A-frame ladder, immediately realised she would be unable to complete the task because the top of the Colorbond feature wall was about 4 m, or slightly more, from the level of the balcony. Having realised she would not be able to complete the task and, consistent with previous experience, she decided to inform her employer that, because of the height, she could not reach the top of the Colorbond. The plaintiff therefore, at all material times, appreciated she could not complete the task and, on her own evidence, did not attempt to do so. She reached up to a level she considered safe by standing on the rung of the ladder below the yellow line and used a 12‑inch brush.
14.Prior to her accident, the plaintiff, managed to partly clean two of the three Colorbond feature walls on the balcony.
15.Unfortunately, the plaintiff lost her balance whilst standing on the ladder. She fell onto the balcony and suffered serious personal injuries. Because the trial is concerned with liability only, the nature of the injuries she sustained is not material. The precise mechanics of what caused the plaintiff to fall from the ladder is unknown, but plainly the plaintiff lost her balance causing the ladder to move and her to fall onto the balcony.
16I infer that the plaintiff, at the time she fell, did not have three contact points on the ladder. If I am wrong then, accepting her evidence that she only stood on the rung immediately below the yellow caution line, she would have had minimal reach above her head because of the need to bend down to hold the ladder with her other hand.
17.The ladder was a 1.5‑m Bailey A-frame aluminium ladder. The ladder is one which can be used safely as an A-frame ladder or as an extension ladder when folded out to its full length. It is a common household item used for domestic chores. There is no evidence but I infer that the plaintiff did not consider using the A‑frame ladder in its extended configuration. This would have enabled her to reach the top of the Colorbond feature. She is not to be criticised in this regard because the work was being undertaken on a balcony of the home and she was already working at height from ground level.
18.The ladder itself was a new ladder. The ladder was fit for the purpose of its proposed use including, in particular, the task at hand, in either configuration. It was not defective. It was not itself unsafe.
19.The ladder was damaged as a result of the plaintiff's fall but, as mentioned, there is no evidence it was damaged prior to the accident. In this regard, the plaintiff on her own evidence checked the ladder before she used it to ensure it was safe and suitable for purpose. Plainly, the plaintiff thought it was because she used it to undertake the work.
20.Although the plaintiff obtained a 'blue ticket' to enable her to work on worksites, it is not known whether the course included any safety training as to the use of ladders. I find Tamari was safety conscious in this regard. This is based on the evidence of the plaintiff that she was only allowed to use Tamari's extension ladder (with a harness sometimes) after a former employee left. I find Tamari did not allow all its employees to use the extension ladder for safety reasons.
21.On falling off the ladder and being injured, the plaintiff called out. Unfortunately, she was unable to attract attention to herself because Ms Mohi was using a vacuum cleaner. She went downstairs and got the attention of Ms Mohi who then assisted her. Ms Mohi contacted Mr Waymouth to bring their vehicle over from the place they were renting opposite so she could take the plaintiff to hospital. Ms Mohi took the plaintiff to hospital where she was treated for her injuries.
22.On the evidence in this case, the A-frame ladder was in its extended configuration a suitable ladder for use for the cleaning task. It was also fit for purpose in its A-frame configuration but only to the extent that the height of the employee permitted reach upwards comfortably using the three‑contact method. An extension broom or scraper would have enabled the plaintiff to extend her reach from the ladder or the balcony depending on the length and size of the equipment. I also find that the plaintiff used liquids and other cleaning materials to undertake the cleaning task which would have limited her reach. I do not make a specific finding, due to the limited evidence before me, as to whether it was practicable for the plaintiff to have performed the cleaning task from the balcony with extendable equipment.
23.In my view, the risk of falling from the A-frame ladder (in either configuration) was an obvious risk which, as a matter of common sense, required care to be taken. The plaintiff, on her own evidence, realised the risk because she did not attempt to clean higher than she could safely reach. I am not persuaded that the defendant knew, or ought reasonably to have known, that the plaintiff would use the ladder in the way she did, that is not extended.
24.The only involvement of the defendant in the performance of the cleaning task being undertaken by the plaintiff as an employee of Tamari was to make the A-frame Bailey aluminium ladder available. There was no direction by the defendant that this ladder was to be used to undertake the works. There was no direction as to how the work should be undertaken or what equipment should be used. This is entirely consistent with Tamari undertaking the work as an independent contractor. There was no involvement by Mr Ryan (or the defendant) in the task undertaken that can be described as giving rise to an employer and employee relationship with the plaintiff. The defendant did not involve itself in the manner of execution of the cleaning work and there was no other inter-relationship with third parties that was required to be managed or which impacted on Tamari undertaking the work. Tamari had full and unfettered access to the worksite and was contractually obliged to undertake the work with its employees in such manner as it thought appropriate, using its own expertise and skill.

The parties' pleadings

The plaintiff's statement of claim (as it existed at trial) pleaded that on or about 13 December 2008, the defendant engaged the plaintiff's employer, Kemwin Pty Ltd, to clean a new house constructed by the defendant at 127 Laurel Street, Mullaloo. This allegation is proved, on the parties' own evidence, at trial, although the defendant's defence purported to limit the terms of the engagement to 'clean a Colorbond feature on the balcony of the second floor of the property'. No relevant issue arises on the pleadings. It is common ground that the defendant engaged Tamari to clean the Colorbond feature walls on the balcony of the second floor of the premises.
Although there is some ambiguity on the pleadings, counsel for the defendant confirmed that the defendant accepts (consistent with the evidence) that it provided an A-frame aluminium ladder 'for the plaintiff in her capacity as an employee of Kemwin Pty Ltd to use to perform the cleaning duties' referred to.
The plaintiff pleads that the defendant owed, in the circumstances, a duty to take reasonable care to avoid foreseeable injury to her. Paragraph 9 of the statement of claim pleads that the defendant failed to take any or any reasonable care to avoid foreseeable injury to the plaintiff. Eight particulars of negligence are relied upon, some of which were abandoned at trial.
The plaintiff abandoned her claim to the extent that it was premised on the contention that the defendant's A-frame ladder was defective or in an unsafe condition.
The plaintiff's other particulars of negligence include an allegation that 'the defendant caused and permitted the plaintiff to engage in a dangerous activity at a dangerous height, where the defendant knew or ought to have known that the activity was dangerous'. It must be immediately observed, the plaintiff was not employed by the defendant and therefore was not engaged by the defendant to undertake the cleaning activity.
I am not persuaded that the work undertaken by the plaintiff, as an employee of Tamari, was inherently dangerous in the manner alleged. There is of course a degree of risk for anybody using a ladder. This risk can be minimised by using three points of contact. There was nothing to prevent the plaintiff from adopting this procedure. Any lack of knowledge or failure on her part to do so cannot, in my view, be sheeted home to the defendant in a manner that results in legal liability in the circumstances of this case. That proposition would undermine the legal status and protections that the law affords to the employer/employee relationship, which is the legal relationship between the plaintiff and Tamari.
The plaintiff also contends the ladder provided by the defendant was 'unsuitable to be used for the purpose of cleaning the Colorbond feature'. With respect, this is contrary to the evidence of the plaintiff's own expert, Dr Nedved, and also the defendant's witness, Mr Ryan. I accept that in the A-frame configuration the plaintiff was unable to reach the top of the Colorbond feature. She appreciated this herself at the time and therefore worked within this constraint. Working within this constraint, as the plaintiff did, did not involve any issue of unsuitability of the ladder itself. To the extent the work practice adopted by the plaintiff created a hazard or was unsafe, that was a matter for her in performing the task. It is assumed she has been properly trained and instructed by her employer.
he plaintiff also contends the defendant failed to warn her that the ladder was unsuitable for the cleaning task. On the evidence there was no attempt by the defendant to inform or instruct Tamari (and therefore the plaintiff) as to how Tamari should perform the cleaning task. The plaintiff contends the defendant should have given a positive direction to the effect that it was not safe to use its ladder for the intended purpose. In this case, there was no such direction. Nor, as a matter of law, can it be said that the defendant was obliged to give such a direction in the relevant circumstances. The true position is that the defendant relied upon the contractor (Tamari) to perform the task in the manner it deemed appropriate as a professional cleaner. In any event, the ladder was not unsuitable for the cleaning task.
The plaintiff also contends the defendant failed to devise and implement a safe method for her to clean the Colorbond feature that eliminated or 'alternatively reasonably reduced the risks associated with the use of the ladder, such as by providing an extension broom or duster capable of being used … while … standing on the balcony and without her needing to use the ladder to enable her to reach the Colorbond feature to perform the cleaning task'.
Apart from some evidence that it was necessary for the plaintiff to use a scraper, there is no evidence as to the existence or suitability of such an extension broom or duster capable of being used to perform the work. In any event, the equipment used by the employees of Tamari for the purpose of the task is a matter for Tamari and not the defendant. No liability can attach to the defendant in this regard.
Finally, the plaintiff alleges the defendant 'failed to provide any supervision or assistance to her when she was performing her cleaning duties on the ladder'. This is the antithesis of the legal contractual relationship that existed between the defendant and Tamari. The defendant did not do anything, in my view, that imposed a legal obligation on it to supervise or assist the plaintiff to perform the task which it had contracted Tamari to undertake. This is not a case where the work being undertaken by the plaintiff was in some way inextricably bound up with other activities happening on the property such that the defendant was under an obligation to ameliorate a risk to the plaintiff from such activities: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.

Duty of care

In a nutshell, the plaintiff says that, because the defendant allowed Tamari to use its ladder to perform the works, a duty of care arose in relation to the manner in which the work was undertaken by Tamari and, more particularly, Tamari's employee - the plaintiff. With respect, in my view, no duty of care can arise by the mere provision of a ladder in these circumstances. Even if a duty of care did exist, in my view, the plaintiff has failed to establish any relevant breach of that duty.
The legal principles to be applied in the resolution of this case are, in my opinion, not controversial.
A useful summary of the legal context which applies to this case is found in Leighton Contractors Pty Ltd v Fox [2009] HCA 35 [21]:
It is common in the construction industry for the principal contractor to arrange for the works to be carried out by subcontractors rather than by employing its own labour force. Among the advantages that accrue to the principal contractor in adopting this model for its undertaking is that it does not incur the obligations that the law imposes on employers. An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.
This, of course, is not a case where the plaintiff is an employee of the defendant and has been injured as a result of the negligent conduct of an independent contractor. Instead, the plaintiff seeks to make the defendant vicariously liable for an assumed breach of the 'personal, non‑delegable or, duty of care' owed to her by her employer, Tamari.
In the same paragraph in Leighton Contractors v Fox, the High Court endorsed previous observations of the court that:
Whatever the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the concept of distinguishing between independent contractors and employees is one too deeply rooted to be pulled out.
The High Court held in Leighton Contractors v Fox that the duty of a principal (the defendant) to its independent contractor (Tamari) is as follows [20]:
The duty of principals to independent contractors. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd:
'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 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'.
The plaintiff in this case does not contend there was a failure by the defendant 'to take reasonable care in the employment of independent contractors competent to control their own systems of work'. Nor does the plaintiff contend there was a failure by the defendant to retain 'a supervisory power' in relation to the work. I reject the plaintiff's contention that provision of the A‑frame ladder imposed a positive obligation on the defendant to assume a supervisory role with respect to how Tamari performed the cleaning task.
In oral submissions, the plaintiff's counsel sought to rely on the final category left open by the High Court for a principal's liability to an independent contractor, namely, 'leaving undefined their contractor's respective areas of responsibility'.
With respect, the instruction by the defendant's supervisor to Tamari was unequivocal. There was no ambiguity as a result of, or caused by, the defendant's provision of the A‑frame ladder. Plainly, in order to perform the cleaning task, Tamari was required to use a ladder. How Tamari went about completion of the works was entirely a matter for it and something which the defendant was reasonably entitled to leave to Tamari, it being the professional cleaner and having accepted responsibility for undertaking the work. In my view, the defendant did not seek to enter into the question of how Tamari completed the cleaning task.
For these reasons, in my view, the law does not, and never has, imposed a duty of care on the defendant in the circumstances of this case. The plaintiff's accident did not arise as a result of any failure by the defendant to take reasonable care to engage a competent independent contractor, there was no obligation on the defendant to retain any supervisory power and it did not leave undefined any area of responsibility of Tamari. Accordingly, the court must apply the long‑standing concept of the different type of legal duty which attaches to the independent contractor and employee relationship.
This legal conclusion was applied by the High Court in Leighton Contractors v Fox, even after a relevant statutory obligation was taken into account. As the High Court said [48]:
… The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken …
In this case, the plaintiff was employed by Tamari to undertake a particular cleaning task. There was no inter‑trade coordination necessary by the defendant and the accident had nothing to do with involvement of different trades or interactions between them onsite. This case is distinguishable from Stevens v Brodribb Sawmilling Co Pty Ltd, as it was not necessary for the defendant to retain and exercise any supervisory role over Tamari: also see Smith v BHP Billiton Iron Ore Pty Ltd [2013] WASCA 111.
In Pacific Steel Constructions Pty Limited v Barahona;Jigsaw Property Group Pty Limited v Barahona [2009] NSWCA 406, in the context of the issues in that case it was held [92]:
There is no question in the present case of Jigsaw owing a duty of care to Mr Barahona because of a need for direction and co-ordination of activities on the site. Mr Barahona was to undertake the discrete task of raising the first floor beam to floor level. So far as the evidence showed this was in no way related to other activities being conducted on the site. This was a task for which Pacific as his employer and Mr Barahona himself were fully competent – it was not suggested to the contrary. According to the above principles, what circumstances, then, may have made it necessary for Jigsaw to retain and exercise a supervisory power over the system of work followed by Mr Barahona in performing the work?
I do not accept the plaintiff's contention 'that the defendant in instructing or encouraging the plaintiff to use an A‑frame ladder in the cleaning process of the Colorbond feature wall maintained a supervisory role in the system of work that led to the plaintiff's injury'. This is rejected as a threshold proposition for the reasons already mentioned. It is also rejected because the unchallenged testimony at trial is that the A‑frame ladder, in its extended configuration, was an appropriate ladder to be used for the cleaning task.
It is common ground that the relevant provisions of the Civil Liability Act 2002 (WA) apply, including s 5B, s 5C, s 5K and div 6 (assumption of risk when the risk is obvious) for the purpose of determining whether any relevant duty of care is owed and, if so, the scope of the duty and whether it was breached.
To the extent the plaintiff alleges the defendant owed her a duty of care by reason of its provision of the ladder, the use of it and the risk of falling off it was, in my view, an 'obvious risk' as that term is defined under the Act. As such, the Act does not impose a duty of care on the defendant to warn the plaintiff of the obvious risk posed to anyone using the ladder for the purpose intended on this occasion.

Occupiers' Liability Act 1985 (WA)

The plaintiff's contends the defendant was an occupier of the premises within the meaning of s 2 of the Occupiers' Liability Act 1985 (WA). Section 2 defines the 'occupier of premises' to mean the 'person occupying or having control of land or other premises'. I accept that the defendant was an 'occupier' for the purpose of the Act on the basis contended for by the plaintiff, namely that the contract price was not paid in full by the owners until it was receipted as such by the defendant on 15 December 2008. Accordingly, the defendant was in actual possession and control of the premises on 13 December 2008. This is further evidenced by the defendant authorising Tamari (including the plaintiff) and the owners to enter the premises.
On this basis of alleged liability, the plaintiff's responsive written submission dated 20 November 2015 (even at this late stage) contended that the A‑frame ladder was 'defective or alternatively an inherently unsuitable and dangerous work platform from which to perform cleaning duties'. As mentioned, the plaintiff abandoned this position at trial.
Section 5(1) of the Act imposes a statutory duty of care on an occupier as follows:
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
In my view, there was no relevant 'danger' due to the state of the premises. The ladder itself does not constitute a danger for the purposes of the Act. It is a benign object. Like any object, it might be used to create a danger but the presence of the ladder itself and the permission granted by the defendant to Tamari to use it does not, as a matter of law, make the ladder a relevant danger for the Act.
Again, the plaintiff contends in her written responsive submissions that 'the defendant's instructions to the plaintiff to use the A‑frame ladder imposed upon the defendant a duty to properly instruct or supervise the plaintiff as to its use'. It must be understood that the defendant did not instruct the plaintiff to use the A‑frame ladder. It merely permitted Tamari to use the ladder for the cleaning task if it wished. Even accepting the plaintiff's contention in this regard, no relevant danger for the purpose of the Act arises. Again, any actual danger can only arise from the way in which the ladder is used.
For these reasons, in my view, the plaintiff has not established that the defendant owed any relevant duty of care to the plaintiff arising out of the defendant being an 'occupier' for the purpose of the Act.

Occupational, Safety and Health Act 1984 (WA)

The plaintiff calls in aid the Occupational, Safety and Health Act 1984 (WA) (the OSH Act) to contend that the statutory duties imposed by that Act on employers and persons who have control of work places gives rise to a private cause of action and thereby a duty of care. At the outset, it must be noted the plaintiff accepts that no legal authority supports this proposition. If the plaintiff was successful in this case, it would be a novel application and a first (which of course can never in itself be a complete response if the issue is raised).
Section 19 of the OSH Act imposes a statutory duty on employers, so far as is practicable, to provide and maintain a working environment in which the employees of the employer are not exposed to hazards and relevantly to provide such information, instruction, and training to and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards: s 19(1)(b).

Section 20(1)(a) of the OSH Act imposes a duty on an employee to take reasonable care to ensure his or her own safety and health at work.
In particular, the plaintiff relies on the duties imposed on persons who have control of work places. In this regard, s 22(1) provides as follows:
A person that has, to any extent, control of —
(a)a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or
(b)the means of access to and egress from a workplace,
shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.
It must be noted that this statutory duty is concerned with exposure to 'hazards' in the workplace. There is an obvious overlap with the duty of an 'occupier' under the Occupiers' Liability Act 1985.
In oral submissions, the plaintiff's counsel contended that her use of the ladder invoked the operation of s 22(1)(b) on the basis that it was a means of access to and egress from a workplace. With respect, in my view, this submission must be rejected. The ladder itself does not, on its own, constitute a 'hazard'. No relevant duty for the purpose of this case could arise by operation of this provision.
The plaintiff also seeks to invoke s 23D(2) of the OSH Act on the basis that the defendant 'has the capacity to exercise control' over the plaintiff as an employee of its contractor, Tamari. This section, in such a case, imposes the 'employer's duties' under s 19 on the defendant for the benefit of the plaintiff. However, I am not persuaded that the defendant had the necessary 'capacity to exercise control' over the plaintiff which is a pre‑condition to the operation of the section.
Assuming there was a relevant statutory duty imposed on the defendant under the OSH Act, the issue then arises as to whether it gives rise to a right of a private cause of action by way of damages. Relevantly, in Leighton Contractors v Fox, the High Court said [49]:
The obligation imposed on Leighton under the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal's conclusion that a common law duty existed. While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer, 'whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden'.
The plaintiff is unable to refer the court to any authority for the contention that the OHS Act creates a private right of action as a matter of statutory interpretation (even accepting that there was a relevant hazard or failure to instruct or supervise as alleged).
I was referred to McCallion v U R Machinery Sales Pty Ltd [1999] VSC 543, where Harper J held that a breach of the Occupational Health and Safety (Manual Handling) Regulations 1988 imposed a duty on the plaintiff's employer to take safety measures which also gave rise to a private right to damages. This case is distinguishable on a number of grounds including that the duty was expressly imposed on the plaintiff's employer under the statute, as opposed to vicariously. It also precedes recent tort law reform in Australia, which was an opportunity for the legislature to remove any doubt if had wanted too.
It is a matter of statutory construction as to whether a statute creates a private right of action. But if the statute provides only for a penalty for breach, as here, the starting point is to assume that it was not intended for private individuals to sue for a breach of the statute. This does not mean that evidence of a breach of statutory duty cannot itself be relevant evidence of a breach of a common law duty of care.
I am not persuaded that a private right of action can be discerned as a matter of statutory interpretation from the provisions of the OHS Act. This submission by the plaintiff cannot be sustained.
In summary, there is in any event, nothing dangerous and nothing done or omitted to be done on the premises which was of itself dangerous or which created a hazard relevantly for the purpose of the legislation to which the alleged private right of action can attach (if it existed).

Contributory negligence

The defendant pleaded in the alternative that, if it is liable to the plaintiff as alleged, then the plaintiff was contributorily negligent. The plaintiff's alleged negligence was particularised as a failure to exercise reasonable care for her own safety when climbing the ladder (this assumes she fell off while she was ascending the ladder). Section 5K of the Civil Liability Act2002 has effect and the standard of care required is that of a reasonable person in the position of the plaintiff. As to the proper approach see Sungravure Pty Ltd v Meani 110 CLR 24, 37 (Windeyer J).
As no relevant duty of care has been established, there is no requirement to make an assessment of the plaintiff's alleged contributory negligence. The only inference is that the plaintiff fell off the ladder while working 'at height'. Provisionally, all that can be said is that, if an apportionment had been necessary, it would have been at the high end given the obvious nature of the risk.

Conclusion

There was no obligation on the defendant to supervise or instruct the plaintiff how to undertake the cleaning task in the course of her employment with Tamari Professional Cleaning Services.
Accordingly, there was no breach of any relevant duty of care owed by the defendant to the plaintiff which was a cause of her unfortunate accident and resultant personal injury.
For these reasons, the plaintiff's claim must be dismissed.