J-Corp Pty Ltd v Thompson - [2019] WASCA 173

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   J-CORP PTY LTD -v- THOMPSON [2019] WASCA 173
CORAM:   MURPHY JA
MITCHELL JA
VAUGHAN JA

HEARD:   4 OCTOBER 2019
DELIVERED          :   7 NOVEMBER 2019
FILE NO/S:   CACV 117 of 2018
BETWEEN:   J-CORP PTY LTD
Appellant
AND
ALEX PAUL THOMPSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
Citation: THOMPSON -v- J-CORP PTY LTD [2018] WADC 164
File Number             :   CIV 3080 of 2016

Catchwords:

Negligence - Occupiers' liability - Whether breach of duty of care owed by building contractor to subcontractors was established - Where roof carpenter injured when brick pier collapsed as he stepped off it - Where brickwork not constructed according to structural engineer's specification - Whether a reasonable person in the builder's position would have inspected the brickwork for adherence to structural specification before allowing roof carpenters to work on site - Need to assess breach of duty prospectively

Legislation:

Civil Liability Act 2002 (WA), s 5B
Occupiers' Liability Act 1985 (WA), s 5

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr G R Hancy
Respondent	:	Mr T Lampropoulos SC & Mr D M Bruns

Solicitors:

Appellant	:	Greenland Legal Pty Ltd
Respondent	:	Stephen Browne Lawyers

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Alinta Gas Networks Pty Ltd v James [2007] WASCA 155
Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
CGU Insurance Ltd v Coote [2018] WASCA 117
Davies v Tomkins [2009] WASCA 228
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Fitzpatrick v Job [2007] WASCA 63
Hanna-Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174
Jasmina Investments Pty Ltd v Vlahos [2009] WASCA 190
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Shire of Toodyay v Walton [2007] WASCA 76
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Taylor v Fisher [2018] WASCA 126
The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 CLR 40

JUDGMENT OF THE COURT:

Summary

The respondent (Mr Thompson) was a roof carpenter working for roofing subcontractors engaged by the appellant (J‑Corp) to assist in the construction of a house in Bullsbrook. Mr Thompson was injured when an isolated brick column, or pier, collapsed as he stepped off it. We shall refer to the collapsed pier as the pier in these reasons.
The pier had been built by bricklaying subcontractors engaged by J‑Corp, but had not been constructed according to structural engineering specifications. Drawings prepared by structural engineers engaged by J‑Corp required that a galvanised rod running through a cavity in the pier be 'cast' into the cavity. This meant that the cavity should be filled with mortar, cement or broken bricks and mortar. The cavity in the pier had not been filled when it collapsed. The unfilled pier was laterally too weak to support the application of even low intensity lateral loads such as those applied by the feet of roof carpenters.
Mr Thompson claimed damages from J‑Corp in negligence and for breach of its duty as occupier of the building site under the Occupiers' Liability Act 1985 (WA). The trial judge found these causes of action to be established and awarded damages. The trial judge found that J‑Corp breached its duty of care by failing to ensure that the pier cavity was filled with mortar, cement or bricks and mortar.
J‑Corp now appeals from the trial judge's decision on the ground that his Honour erred in finding that J‑Corp breached duties of care which it admittedly owed to Mr Thompson as builder and occupier. In essence, J‑Corp alleges that the trial judge erred by:
(1)Adopting a 'hindsight' approach which required J‑Corp to avoid the particular incident, rather than exercise reasonable care as a builder and occupier who was required to address a risk that was identified and articulated in general terms.
(2)Finding that J‑Corp ought to have known that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters, when that finding was not supported by the evidence.
In our view, both of these contentions are established.
However, by notice of contention, Mr Thompson says, in effect, that a breach of duty is established when the correct test is applied. In our view, Mr Thompson's notice of contention should be upheld. In all the circumstances, a reasonable person in J‑Corp's position would have inspected the brickwork to check that structural elements had been constructed in accordance with structural engineering specifications, and required the bricklayers to rectify any identified structural defects, before allowing roof carpenters to work on site. J‑Corp's failure to do so was a breach of that duty which caused Mr Thompson's injury.
Therefore, we would dismiss the appeal notwithstanding that the ground of appeal has been established in the above respects.

Primary facts

The trial judge made the following findings of primary fact, which are not challenged by the ground of appeal or the notice of contention.
On 12 August 2014, Mr Thompson was working as a roof carpenter on a house being built by J‑Corp. He was not employed by J‑Corp.[1] Mr Thompson contracted his services to TJO Roofing, a contract roof carpentry business.[2] The proprietor of TJO Roofing received communication from J‑Corp saying that the brickwork was done and the roof carpenters were able to start work.[3] 12 August 2014 was the first day on this particular job.[4]
[1] Thompson v J-Corp Pty Ltd [2018] WADC 164 [1] (primary decision).
[2] Primary decision [22], [162] - [163].
[3] Primary decision [162], [164].
[4] Primary decision [166].
The house design was such that it included a porch area at the front of the house. The pier, with an unfilled cavity, had been constructed. A wooden beam traversed the span from the brickwork of the master bedroom to that pier. A second wooden beam traversed the span from the pier to the brickwork of the garage, so that it ran at a right angle to the other wooden beam.[5] The beams were nailed together at the top of the pier.[6] Trestles and planks organised in a scaffold arrangement had been used to place the beams onto the pier.[7]
[5] Primary decision [3].
[6] Primary decision [68].
[7] Primary decision [190].
The brickwork (including the pier) was constructed by a subcontractor (not an employee) engaged by J‑Corp. The contract between the bricklayer and J‑Corp enabled J‑Corp to inspect the subcontractor's work and obliged the subcontractor to execute the works in accordance with any directions of J‑Corp's supervisors. The relevant supervisors were employed by J‑Corp on wages.[8]
[8] Primary decision [242] - [246], trial ts 290.
Mr Thompson was 'marking up', a process which involved walking along the wall plates on the top of the brick walls and marking the wall plates to show where the roof rafters would later be fixed.[9]
[9] Primary decision [2].
In the process of marking up the roof, Mr Thompson walked across the beam which traversed the span from the master bedroom to the pier. He was in the process of stepping on to the beam which traversed the span from the pier to the garage. The pier collapsed as Mr Thompson took a step to walk off the pier. The manner in which Mr Thompson stepped off the pier was not exceptional or out of the ordinary.[10]
[10] Primary decision [66].
The trial judge accepted the following evidence given by Mr van der Meer, a consulting structural engineer:[11]
(1)The pier was an unfilled pier constructed of relatively light weight fast wall brick. Such a pier was very weak and not capable of withstanding relatively low horizontal forces. A relatively low horizontal force applied to the top of the pier would cause it to become laterally unstable. An unreinforced pier would give no warning of its failure.[12]
(2)Structural drawings for the pier required that a galvanised rod running up the cavity in the pier be cast into the cavity. This meant that the pier cavity should be filled with mortar, cement or broken bricks and mortar.[13] The pier was not constructed in accordance with the engineering design as the rod had not been cast into the pier.[14]
(3)The horizontal force required to topple a cracked hollow brick pier was 'approximately 22 kg and the failure would be sudden and without warning. The horizontal force required to topple a reinforced pier would be approximately 71 kg.'[15]
(4)The unfilled pier was laterally too weak to support the application of even low intensity lateral loads such as those applied by the feet of roof carpenters.[16] The pier toppled because of the horizontal forces applied by Mr Thompson as he stepped off the pier.[17]
(5)If the pier cavity had been filled, the horizontal forces applied by Mr Thompson as he attempted to move back to the main wall of the house would not have been sufficient to cause the pier to fail.[18]
(6)Generally tradespeople would not be able to predict the destabilising force required to topple a brick pier.[19]
[11] Primary decision [111].
[12] Primary decision [80].
[13] Primary decision [82] - [83], [232].
[14] Primary decision [86].
[15] Primary decision [92].
[16] Primary decision [95], [303] - [304].
[17] Primary decision [99].
[18] Primary decision [94].
[19] Primary decision [104].

Trial judge's approach

Duty

The trial judge noted J‑Corp's admission that, as the builder of the house under construction, it owed Mr Thompson a duty to exercise reasonable care when coordinating the activities of trades at the premises. That duty is properly expressed as a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury to those engaged in the activity it organised.[20]

Breach of duty

[20] Primary decision [284], [295].

The trial judge recognised that whether J‑Corp breached that duty was to be determined by reference to what a reasonable person in J‑Corp's position would have done. His Honour also stated that:[21]
[I]t is fundamental that the question of whether [J-Corp] breached [its] duty to exercise reasonable care is approached prospectively, not retrospectively with the benefit of hindsight and without regard to the fact that the relevant risk materialised. (citations omitted)
[21] Primary decision [286] - [287].
The trial judge recognised that this inquiry was to be made having regard to the considerations in s 5B(2) of the Civil Liability Act 2002 (WA).[22]
[22] Primary decision [289] - [291].
The trial judge noted Mr Thompson's main contentions as to breach in the following terms:[23]
The risk of harm alleged by Mr Thompson is the risk that a roof carpenter installing the roof would be injured as a result of the pier collapsing and suffer a not insignificant injury.
Mr Thompson says that the precaution [J-Corp] should have taken was to check the brickwork and ensure the cavity was filled.
[23] Primary decision [296] - [297].
In considering whether J-Corp knew or ought to have known of the risk of harm alleged by Mr Thompson, the trial judge found:
(1)The unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters and, as builder of the house, J‑Corp ought to have known this.[24]
(2)A reasonable person in J‑Corp's position should have foreseen that roof carpenters in the process of installing the roof to an isolated pier (including marking out the beams and wall plates) may at some stage walk or stand on an isolated brick pier and thereby apply horizontal forces sufficient to topple the pier.[25]
(3)It is reasonably foreseeable that in the process of performing the task of marking up the beams or wall plates to an isolated pier before the hip is installed, a roof carpenter may stand on and therefore step on and off the beams and/or pier and thereby apply horizontal forces sufficient to topple the pier.[26]
(4)The risk of a roof carpenter falling to the ground below if the pier collapsed whilst he was stepping on or off the pier in the process of marking up the beams or wall plates is clearly foreseeable, as is the risk of that fall resulting in injury.[27]
[24] Primary decision [303] - [304].
[25] Primary decision [305], [325].
[26] Primary decision [338].
[27] Primary decision [339].
The trial judge found that the risk of the pier collapsing if stepped on by a roof carpenter, and the consequent risk of significant injury, was high.[28] All that was required was to ensure that the pier cavity was filled with mortar, cement or bricks and mortar, as specified by the engineering drawing, at a cost of approximately $30.[29] J‑Corp's building supervisors could have checked that the pier was filled.[30] The trial judge inferred that the cost of checking to ensure the pier was filled (even if solely for the purpose of checking one isolated pier) was modest.[31] Taking those measures would not adversely affect the high social utility of house construction.[32]
[28] Primary decision [340] - [343].
[29] Primary decision [344].
[30] Primary decision [345].
[31] Primary decision [346].
[32] Primary decision [349] - [350].
The trial judge concluded, in effect, that a reasonable person in J‑Corp's position would have ensured that the pier cavity was filled with mortar or cement or bricks and mortar before the roof carpenters commenced their work.[33] A reasonable person would have checked that the cavity had been filled and the brickwork built according to specifications before the roof carpenters commenced their work.[34] An inspection to see if the brickwork complied with the engineering drawings before the roof carpenters were called upon to attend the site would have revealed that the cavity was unfilled.[35]
[33] Primary decision [352], [369].
[34] Primary decision [363].
[35] Primary decision [365].
The trial judge found that J‑Corp breached its duty by failing to ensure that the pier cavity was filled with mortar or cement or bricks and mortar.[36]

Causation

[36] Primary decision [353].

The trial judge found that J‑Corp's breach of duty caused the injuries Mr Thompson sustained in the collapse of the pier, because the pier would not have collapsed if it had been filled.[37]

Contributory negligence

[37] Primary decision [373] - [377].

The trial judge rejected J‑Corp's claim that Mr Thompson was contributorily negligent.[38]

Occupier's liability

[38] Primary decision [379] - [395].

The trial judge also found that J‑Corp's failure to ensure that the pier cavity was filled with mortar, cement or broken bricks and mortar before the roof carpenters commenced their work was a breach of its duty under s 5(1) of the Occupiers' Liability Act. His Honour's reasons for doing so generally reflected his reasons for finding J‑Corp liable in negligence.[39]

Damages

[39] Primary decision [396] - [433].

The trial judge assessed damages resulting from the injuries Mr Thompson sustained as a result of the pier collapse in the amount of $356,120.[40]
[40] Primary decision [434] - [489].

The appeal to this court

J‑Corp appeals against the trial judge's decision on one ground, which is expressed as follows:[41]
[41] Paragraphs 1.2.2 and 1.3 were abandoned at the hearing of the appeal (appeal ts 94) and are not reproduced.
The trial Judge erred in finding that [J‑Corp] breached duties of care as builder and occupier:
1.1 He erred in law in finding that the relevant risk of harm was the risk of injury to a roof carpenter from standing or walking on an isolated pier and applying horizontal forces that were sufficient to topple the pier in that:
1.1.1 He formulated the risk of harm in broad terms in his finding that [J‑Corp's] duty was to use reasonable care when coordinating the activities of trades at the premises to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised;
1.1.2 The finding of a secondary and more specific risk was not required and was derived from the application of knowledge of the particular pier, [Mr Thompson] and the incident and hindsight reasoning;
1.2He erred in law and fact in making findings that were derived from hindsight reasoning and to the extent that each was a finding of fact it was not supported by the evidence:
1.2.1 There was a foreseeable risk and not insignificant risk, that [J‑Corp] knew or ought to have known, of injury to roof carpenters walking or standing on an isolated brick pier and applying horizontal force sufficient to topple the pier; and
1.2.3 In the exercise of reasonable care [J‑Corp] should have filled a cavity in the particular pier before roof carpenters embarked on their work;
In substance, the ground of appeal raises two issues.
First, it is submitted that the trial judge erred by, in substance, adopting a 'hindsight' approach which required J‑Corp to avoid the particular incident, rather than exercise reasonable care as a builder and occupier who was required to address a risk that was identified and articulated in general terms.[42]
[42] Appellant's Submissions, par 11 (White AB 8).
Secondly, it is submitted that the findings of fact referred to in par 1.2 were not supported by the evidence. As we understand the ground, it does not challenge the finding that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters. That finding was supported by the evidence of Mr van der Meer. Rather, this aspect of the ground challenges the finding that, as builder of the house, J‑Corp ought to have known this.[43] The ground also challenges the conclusion that it was reasonably foreseeable that a roof carpenter would walk or stand on the pier and apply horizontal forces sufficient to topple the pier.[44]
[43] See primary decision [304].
[44] See primary decision [305], [325].
There is a second aspect to the impugned factual findings mentioned in par 1.2 of J-Corp's ground of appeal, namely, that referred to in par 1.2.3. It is, however, not necessary to deal with this separately if J‑Corp is successful in challenging the findings in par 1.2.1. As will be seen, that is the position. For this reason the challenge to the finding in par 1.2.3 is not considered further in these reasons.
We note that some of J‑Corp's written and oral submissions sought to impugn factual findings which were not the subject of any ground of appeal. For example, it was suggested that the engineering specification that the galvanised rod be cast into the cavity did not apply to the pier, or that the term 'cast' may have had a different meaning.[45] However, the ground of appeal makes no challenge to these findings of primary fact. It is therefore unnecessary and inappropriate for this court to entertain them, particularly where the absence of grounds, particulars and a proper schedule of relevant evidence has the effect of depriving Mr Thompson of a proper opportunity of responding to a challenge to the trial judge's factual findings.[46]
[45] Appeal ts 105 - 109.
[46] See appeal ts 105.
Mr Thompson resists J‑Corp's submissions on both issues. He also relies on a notice of contention against the contingency that J‑Corp succeeds in its submission that the trial judge addressed the relevant risk too narrowly. In that event, Mr Thompson contends that the outcome would have been the same even if the trial judge had addressed a broader risk.

Retrospective assessment of breach of duty

It is common ground in this appeal that the question of breach of duty is to be determined prospectively and without the benefit of hindsight knowledge as to the circumstances of the injury which occurred. The trial judge expressly referred to the need to adopt such an approach.[47]
[47] Primary decision [287], [364], [369], [405].

The question at common law is whether a reasonable person would have foreseen the risk and, if so, what the reasonable person would have done by way of response to the risk. As Mason J noted in Wyong Shire Council v Shirt:[48]
The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
[48] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 - 48.
In undertaking this exercise, the court must look forward to identify what a reasonable person in the defendant's position would have done, not backward to identify what would have avoided the risk to the plaintiff.[49]
[49] New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57].
In Vairy v Wyong Shire Council,[50] Hayne J observed that it is only by looking forward from a time before the accident that due account can be taken of the matters to which Mason J referred. As Hayne J observed:[51]
If, instead of looking forward, the so called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was - diffuse in the sense that its occurrence was improbable or … diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.
[50] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [127].
[51] Vairy [128].
The above passage was cited with approval by Gummow J (Heydon J agreeing) in Roads and Traffic Authority of NSW v Dederer.[52] In that case Gummow J also recognised that it is only through correct identification of the risk that one can assess what a reasonable response to that risk would be.[53]
[52] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [67]. Hayne J's judgment was also cited with approval in Fahy [58]. The passages in Vairy and/or Fahy have been further cited with approval in decisions of this court in Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [87] (which was in turn cited with approval in Taylor v Fisher [2018] WASCA 126 [58]); Davies v Tomkins [2009] WASCA 228 [72]; Jasmina Investments Pty Ltd v Vlahos [2009] WASCA 190 [14]; The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173 [83]; Hanna-Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174 [41]; Alinta Gas Networks Pty Ltd v James [2007] WASCA 155 [39]; Fitzpatrick v Job [2007] WASCA 63 [203]; Shire of Toodyay v Walton [2007] WASCA 76 [29], [96].
[53] Dederer [59].
The same prospective approach is adopted in cases to which s 5B of the Civil Liability Act applies.[54]
[54] Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [31]; CGU Insurance Ltd v Coote [2018] WASCA 117 [78]; Apostolic Church Australia Ltd v Dixon [2018] WASCA 146 [61].
In our view, the trial judge's analysis was too narrowly focussed on the circumstances of the particular accident involving Mr Thompson stepping off the pier. The trial judge's reasons addressed the risk of a roof carpenter being injured as a result of the collapse of the particular pier that did collapse.[55] What was assessed was the probability and foreseeability of injury if a carpenter stepped off that particular pier. The remedial action which was identified was inspecting and filling that particular pier, and the costs of taking those steps. The focus was entirely on the risks and remedial action presented by the particular pier which collapsed as Mr Thompson stepped off it. However, the pier in question was just one part of the overall brickwork that had been carried out on site. Prior to the collapse of the pier and the resulting injury to Mr Thompson, a builder and occupier in J‑Corp's position would have had no reason to focus its attention on the risk of harm associated with the particular pier, as opposed to the structural stability of the brickwork near or on top of which a reasonable builder could reasonably have expected roof carpenters to work. In our respectful view, by focussing too narrowly on the particular circumstances in which Mr Thompson came to be injured, the trial judge has failed to address the question of what a reasonable builder and occupier in J‑Corp's position would have done from the proper perspective.
[55] Primary decision [296].
Therefore, in our view, J‑Corp's first submission, summarised at [28] above, should be accepted.

Ought J-Corp to have known of the extent of the pier's weakness?

The second aspect of J-Corp's ground seeks to impugn the following central finding as being unsupported by the evidence:[56]
I find as a fact that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters. As the builder of the house [J-Corp] ought to have known this. (emphasis added)
[56] Primary decision [304].
The finding that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters was supported by the structural engineering evidence of Mr van der Meer. That conclusion was properly reached. However, in our view there was no proper basis in the evidence for finding that J‑Corp ought to have known this.
The conclusion that the unfilled pier was too weak to support the lateral loads applied by a person stepping off the pier was reached by a structural engineer after analysing the circumstances from the perspective of a structural engineer. J‑Corp did not conduct a structural engineering business. Mr van der Meer's evidence was that he would not expect a person who was not an engineer to be able to predict how much force would be required to topple the pier. The following passage of cross-examination of Mr van der Meer illustrates that point:[57]
Now, for the purposes of this case, you have made a number of calculations and you've provided a number of drawings that - - -?---Yes.
- - - indicate what your calculations were?---Yes.
Now, that's not something that you would ever expect a person other than yourself, like an engineer, to do, prior to embarking upon a building job, would you?---No.
And you've said - why I ask that is, on this page, at paragraph 8, you've said:
In my experience, tradesmen will not be able to predict the destabilisation force required to topple such a brick pier.
?---Yes.
So you would not expect the ordinary person on the site, like either the ordinary tradesman like Mr Thompson or anybody of that nature who wasn't an engineer like you, with your experience, to be able to predict how much force was required to topple the pier?---I agree with that.
[57] Trial ts 132.
Neither the trial judge nor the parties identified any evidence which supported the conclusion that J‑Corp ought to have known that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters. The evidence did not indicate that J‑Corp, or a reasonable builder in its position, would have reached that conclusion without the application of specialised engineering knowledge.
The trial judge's finding as to what J‑Corp ought to have known is also difficult to reconcile with his Honour's finding as to what a tradesperson would have appreciated. The trial judge accepted Mr van der Meer's evidence that generally tradespeople would not be able to predict the destabilising force required to topple a brick pier.[58] In finding that Mr Thompson was not contributorily negligent, the trial judge found that Mr Thompson could not be expected to know the structural stability of a filled or unfilled pier.[59] If a person in Mr Thompson's position could not be expected to know the structural stability of a pier, how is that knowledge to be attributed to a person in the position of a builder and occupier who also has no specialised engineering knowledge?
[58] Primary decision [104], [111].
[59] Primary decision [393], [395].
Counsel for Mr Thompson refers to the trial judge's finding that J‑Corp was the builder of the house and knew the engineering plan required the rod to be cast into the cavity.[60] He submits, in effect, that a builder in J‑Corp's position would appreciate that a failure to follow structural specifications may result in the pier being structurally unstable. So much may be accepted. However, the trial judge's finding went beyond a conclusion that a reasonable builder in J‑Corp's position would appreciate that a failure to following structural engineering specifications is likely to compromise structural stability. The finding was that J‑Corp ought to have known of matters concerning the load bearing capacity of the pier which required the application of specialised engineering knowledge to appreciate. In our view, that finding was unsupported by the evidence.
[60] Primary decision [354].
In our view, similar problems arise with the trial judge's finding that it was reasonably foreseeable that a carpenter stepping off the pier would apply horizontal forces sufficient to topple the pier.[61] That finding attributes specialised engineering knowledge to the hypothetical reasonable builder or occupier in J‑Corp's position.
[61] See primary decision [305].
For these reasons, J‑Corp's second submission, summarised at [29] above, should also be accepted.

Notice of contention

It is then necessary for this court to address Mr Thompson's notice of contention and consider whether a breach of duty by J‑Corp was established.
It is accepted by all parties that J‑Corp owed a duty to Mr Thompson to take reasonable care when coordinating the activities of trades at the premises to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised. That was a duty of a kind identified by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd.[62] J‑Corp's duty is to be distinguished from the more stringent non‑delegable duty owed by an employer to its employees to ensure that reasonable care is taken for their safety.[63]
[62] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 47 - 48.
[63] Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 [21].
The activity being organised by J‑Corp was the construction of a house. It organised for the work to be undertaken by different trade contractors - relevantly for present purposes bricklayers and roof carpenters - who did not control each other's activities and who did not have any right to direct each other as to how work was to be performed. The roof carpenters were called onto site after the brickwork was complete. Breach of duty must be assessed by considering the steps which a reasonable builder and occupier in J‑Corp's position would have taken to co-ordinate the work of the two trades to avoid unnecessary risks of injury, or minimise the risk of injury, to the roof carpenters.
In this case, a reasonable builder and occupier would contemplate the risk that roof carpenters standing on or near elevated brickwork in the course of their work on site may be seriously injured in the event of a failure of the brickwork due to structural defects.
That risk would be contemplated in circumstances where a reasonable builder and occupier in J‑Corp's position would appreciate that carpenters sometimes step on elevated brickwork, including isolated brick piers, in the course of constructing roofing. Evidence summarised by the trial judge supports that conclusion,[64] as J‑Corp's counsel properly accepted.[65]
[64] Primary decision [306] - [323].
[65] Appeal ts 58.
A reasonable builder and occupier would also be aware that a fall due to the failure of elevated brickwork on which a roof carpenter is stepping in carrying out his or her work is likely to result in serious injury to the roof carpenter.
The risk is also to be contemplated in circumstances where the builder/occupier has engaged consulting structural engineers to specify the construction of structural aspects of the brickwork. That structural engineering advice is contained in the engineering drawings.[66] A builder/occupier could not be expected to calculate the precise consequences of a failure to follow structural specifications for the brickwork, as to do so would require the application of structural engineering expertise. However, a builder/occupier would appreciate that a failure to follow engineer's structural specifications is likely to compromise the structural strength of the brickwork and create risks as to its stability.
[66] Green AB 107 - 108.
In these circumstances, before having the roof carpenters come to work on site, a reasonable builder and occupier in J‑Corp's position would inspect the brickwork to check that structural elements had been constructed in accordance with structural engineering specifications. Having done so, it would require the bricklayers to rectify any identified structural defects in the brickwork before having the carpenters work on site. It would do that because the reasonable builder and occupier would appreciate that departures from structural engineering specifications for the brickwork would carry risks of structural failure and consequent injury to carpenters.
In terms of the considerations referred to in s 5B of the Civil Liability Act:
(1)There was a reasonably foreseeable and not insignificant risk that roof carpenters may be seriously injured by the structural failure of brickwork which they are standing on or near if the brickwork is not constructed to structural specifications.[67] The higher the brickwork, the greater the risk of injury to those working on or near it in the event of a structural failure of the brickwork.
(2)The probability that harm would occur if elevated brickwork failed because it was not constructed to structural specifications was relatively high, or at least not insignificant, and serious injury would be likely to result from the structural failure of such brickwork by or on which a roof carpenter was standing.[68]
(3)The burden of inspecting the brickwork and requiring the bricklayers to rectify structural defects was not great. It can be inferred that J‑Corp was contractually obligated to construct the house according to structural specifications in any event. J‑Corp had the contractual right, noted at [10] above, to inspect the bricklayer's work and require defects to be rectified.[69] J‑Corp employed supervisors.[70] Mr Tarry, a building supervisor called as a witness by J‑Corp, gave evidence that part of a supervisor's role was to inspect the work of a bricklayer after it was completed, including to see that piers had been completed in accordance with the drawings.[71]
(4) The social utility of residential house construction would be advanced rather than impeded by checking to see that the house was constructed in accordance with structural specifications.[72]
[67] Section 5B(1)(a) and (b) of the Civil Liability Act.
[68] Section 5B(2)(a) and (b) of the Civil Liability Act.
[69] Section 5B(2)(c) of the Civil Liability Act.
[70] Trial ts 290.
[71] Trial ts 257.
[72] Section 5(2)(d) of the Civil Liability Act.
In all the circumstances, a reasonable person in J‑Corp's position would have inspected the brickwork to check that structural elements had been constructed in accordance with structural engineering specifications, and required the bricklayers to rectify any identified structural defects, before having the roof carpenters come to work on site.[73]
[73] Section 5(1)(c) of the Civil Liability Act.
J‑Corp breached its duty to Mr Thompson by failing to inspect the brickwork to check that structural elements had been constructed in accordance with structural engineering specifications before having the roof carpenters come to work on site.
That breach of duty by J‑Corp caused Mr Thompson's injuries. If an inspection had been undertaken, the unfilled pier would have been readily identified as having been constructed contrary to the structural specifications in the engineering drawings. A reasonable builder and occupier in J‑Corp's position would have required the bricklayers to remedy the defect by filling the pier before the roof carpenters came to work on the site. This is not to overlook J-Corp's challenge to the factual finding, as made in par 1.2.3 of its ground of appeal, that in the exercise of reasonable care J-Corp should have filled the cavity in the pier before roof carpenters commenced work. That finding was made by the trial judge in determining whether there had been a breach of duty. In the present scenario, the breach is the failure to inspect not the failure to fill. In stating that, having inspected, a reasonable builder and occupier in J‑Corp's position would have brought about rectification of the defect by requiring the cavity to be filled, a causal inference is being drawn as to what would have occurred on the balance of probabilities in the hypothetical circumstance that J-Corp had acted with reasonable care by performing an inspection.
There is no challenge to the trial judge's finding that the pier would not have failed if it had been filled.
J‑Corp counters that the connection between the structural specification for the pier and the accident was merely coincidental. It submits that the pier was not designed as a work platform, and that the purpose of the galvanised rod was to hold down the roof rather than to stabilise the pier. It was merely coincidental that, if a specification designed for a different purpose had been complied with, it would have created more lateral strength for the particular pier that would have made it less likely to topple when force was applied to it.[74]
[74] Appeal ts 60, 62, 70, 110.
We do not accept the above submission as precluding a finding that J‑Corp breached its duty to Mr Thompson. The trial judge found that the pier was not designed as a work platform, or to have lateral forces applied to a top edge by a workman using it as a work platform.[75] The trial judge also found that one of the pier's purposes was to support and bear the weight of roof timbers, and that the upper end of the galvanised rod was to be secured to the roof timbers.[76] There was no challenge to these findings in the appeal. However, the trial judge did not find that was the only purpose of the pier. Contrary to J‑Corp's submissions,[77] there was evidence that casting the galvanised rod into the cavity of the pier was designed to increase the lateral stability of the pier during construction. Mr van der Meer gave evidence that:[78]
Reinforcement rods built into brick piers are designed to:
i. Increase the lateral stability of the pier during construction.
ii. Provide a tie down restraint for the roof.
iii. Improve the bending strength of the pier and better enable the pier to resist lateral loads such as those loads applied by say a hammock attached to the pier.
(emphasis added)
[75] Primary decision [323].
[76] Primary decision [10] - [11].
[77] Appellant's Submissions, par 26.5 (White AB 13).
[78] Green AB 20.
Moreover, a reasonable builder and occupier in J‑Corp's position (without specialised engineering knowledge) would not have tried to second-guess why structural engineers had specified design requirements. It would rather have checked that the bricklaying subcontractors had constructed structural elements of the brickwork according to the structural engineer's structural specifications, and required that departures from that specification be rectified.

Mr Thompson's statement of claim relevantly pleaded that J‑Corp was negligent and in breach of the Occupiers' Liability Act, in that it:[79]
Failed to inspect to see that the brickwork on the premises was constructed safely and/or in accordance with the plans before calling on TJO Roofing to commence work on the premises.
[79] Paragraph 9.3 of the Statement of Claim (See Blue AB 76, trial ts 302, 305 - 306 and appeal ts 37, 111 - 112).
For the above reasons, in our view, Mr Thompson has established that particular of negligence and his notice of contention in this appeal. While the ground of appeal is established, the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell
7 NOVEMBER 2019