Kschammer v R W Piper & Sons Pty Ltd - [2003] WASCA 298

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: KSCHAMMER -v- R W PIPER & SONS PTY LTD & ORS [2003] WASCA 298

CORAM: MALCOLM CJ
MURRAY J
PARKER J

HEARD: 19 & 23 SEPTEMBER 2003

DELIVERED : 3 DECEMBER 2003

FILE NO/S: FUL 121 of 2002

BETWEEN: DENNIS KSCHAMMER
Appellant (Plaintiff)
AND
R W PIPER & SONS PTY LTD
First Respondent (First Defendant)
ROBERT LINDSAY PIPER
Second Respondent (Second Defendant)
THE ANI CORPORATION LTD t/as STEELMARK SANDOVERS EAGLE AND GLOBE
Third Respondent (Third Defendant)

Catchwords:

Torts - Negligence - Damages - Special damages - Accident occurred at third respondent's warehouse - Caused by appellant coming into contact with live busbars running parallel to a travel beam - Duty of care owed to independent contractor - Appellant found not to be contributorily negligent - Appeal allowed and damages award varied

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7

Occupational Health, Safety and Welfare Act 1984

Occupiers Liability Act 1985 (WA)

Result:

Appeal allowed
Award of damages increased

Category: A

Representation:

Counsel:

Appellant (Plaintiff) : Mr B L Nugawela &
Mr N P Lindsay

First Respondent (First Defendant)         :        Mr I T Blatchford
Second Respondent (Second Defendant) :        Mr I T Blatchford
Third Respondent (Third Defendant)       :        Ms B A Mangan

Solicitors:

Appellant (Plaintiff)  :        Marks & Sands
First Respondent (First Defendant)         :        Greenland Brooksby
Second Respondent (Second Defendant) :        Greenland Brooksby
Third Respondent (Third Defendant)       :        Phillips Fox

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

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
ASCIC v Westel Co‑Op Ltd (1992) Aust Torts Rep 81 – 159
Astley v Austrust Ltd (1999) 197 CLR 1
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Rep 81 – 043
Boyd v Fremantle Steel Fabrication Co (WA) Pty Ltd, unreported; DCt of WA; 20 September 1996 (Library No 5082)
Boyd v Fremantle Steel Fabrication Co (WA) Pty Ltd, unreported; SCt of WA (Full Court); Library No 970272; 3 June 1997
Boyes v Collins [2000] WASCA 344
Bresatz v Przibilla (1962) 108 CLR 541
Bus v Sydney City Council (1989) 167 CLR 78
Butcher v Cutts Transport Pty Ltd, unreported; DCt of WA; 4 September 1997 (Lib No 970266)
Colonial Mutual Life Assurance Society Limited v Producers & Citizens Co‑operative Co of Australia Limited (1931) 46 CLR 41
De Sales v Ingrilli (2002) 193 ALR 130
De Sales v Ingrilli [2000] WASCA 374
Dykstra v Head (1989) Aust Torts Rep 80 – 280
Elia v O'Byrne (1990) Aust Torts Reports 81 – 050
Engel v Salyn [1993] 1 SCR 306
Foyster v Goynich [1984] WAR 80
Gardner Bros & Perrott (WA) Pty Ltd v Seat, unreported; SCt of WA (Full Court); 13 October 1988
Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617
Government Insurance Office (NSW) v Lazar, unreported; SCt of NSW (Court of Appeal); 18 June 1991
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Kars v Kars (1996) 187 CLR 354
Kondis v State Transport Authority (1984) 154 CLR 672
Lyszkowicz v Colin Earnshaw Homes [2002] WASCA 205
Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Manser v Spry (1994) 181 CLR 428
McLean v Tedman (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569
Nguyen v Nguyen (1990) 169 CLR 245
Paul v Rendell (1981) 34 ALR 569
Pennington v Norris (1956) 96 CLR 10
Phillips v Brown [2002] WASCA 148
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Purkess v Crittenden (1965) 114 CLR 164
Redding v Lee; Evans v Muller (1983) 151 CLR 117
Reynolds v Roche Bros Pty Ltd (1999) WASCA 141
Rosniak v Government Insurance Office (NSW) (1997) Aust Torts Rep 81 – 440
Selby v The Commonwealth (1946) 47 SR (NSW) 150
Sibley v Milutinovic (1990) Aust Tort Rep 81‑013
Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Struthers v Harris [1983] WAR 123
Sullivan v Moody [2001] 8 CA 59
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sydney City Council v Dell'Oro (1974) 132 CLR 97
Villasevil v Pickering [2001] WASCA 143
Watts v Rake (1960) 108 CLR 158
Wheat v E Lacon & Co Ltd [1966] AC 552
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Nil

MALCOLM CJ: This is an appeal from a judgment in the District Court on 2 August 2002 in an action in which the appellant, the plaintiff in that Court, was awarded damages against the first and second respondents, R W Piper & Sons Pty Ltd and Robert Lindsay Piper who were the first and second defendants in the action, in the sum of $148,081.80. The appellant was also awarded damages against the third respondent, The ANI Corporation Ltd, who was the third defendant in the action, in the sum of $79,736.34. For ease of reference, I will refer to the first respondent as "the Piper Company", the second respondent as "Mr Piper" and the third respondent as "ANI".
The damages suffered by the appellant were assessed by the learned Judge as follows:
"Summary
Past gratuitous services  $    4,596.00
Interest thereon  $      827.28
Past economic loss  $104,926.93
Interest thereon  $    5,558.35
Future economic loss  $142,502.75
Future medical expenses including travel allowance
$17,045.00
Past travel expenses  $    4,088.00
Special damages  $    9,445.15
Interest thereon  $    1,500.00
General damages  $ 60,000.00
Total$350,489.46"
Her Honour found that the appellant's contributory negligence required the damages awarded to be reduced by 35 per cent to $227,818.14. As between the three respondents, there was an apportionment of 65 per cent for the Piper Company and Mr Piper and 35 per cent for ANI. In the result, the judgment against the Piper Company and Mr Piper was $148,081.80 and $79,736.34 against ANI.

The Appellant's Claim

The appellant's claim was for damages for injuries he suffered on 17 December 1992 when he received an electric shock and was injured at ANI's premises ("the premises"), while he was waiting to perform work for the Piper Company. That company was contracted to erect steelwork for the purposes of construction of an extension to the premises. Mr Piper was a director of the Piper Company and was acting as its foreman at the premises at the time of the accident.
The appellant's case against the Piper Company was that it was liable to him in damages:
(a)as it was vicariously liable for the negligence of Mr Piper and/or his breach of statutory duties imposed upon him by the Occupational Health, Safety and Welfare Act 1984 ("the OHSW Act");
(b)by its negligence;
(c)by its breach of the statutory duties imposed on it by the OHSW Act; and/or
(d)by its breach of the statutory duties imposed on it by the Occupiers Liability Act 1985 (WA).
A claim based on an alleged contract of employment between the Piper Company and the appellant was abandoned. The appellant also claimed against ANI that it was liable in damages to the appellant for his injuries by reason of its negligence and/or by its breaches of the statutory duties imposed upon it by the Occupiers Liability Act. There were lengthy particulars of negligence and breaches of statutory duty alleged as against each of the defendants.

The Facts

The facts as found by the learned Judge relevant to the issue of liability were not in dispute. In 1989, the appellant and Mrs Kschammer commenced business in partnership trading as Bunbury Crane Hire ("the partnership"). The partnership owned a BHB 10‑tonne tractor crane ("the tractor crane") and provided its services and those of the appellant as its driver to businesses around Bunbury.
The premises occupied by ANI were at the corner of Craigie and Parffitt Street, Bunbury. At the time of the accident, the premises included a warehouse which was used to store steel produced by ANI. The warehouse was approximately 5 metres in height. Trucks were driven into the warehouse along a central driveway, which ran through it in an east‑west direction. Steel was collected from storage areas in the warehouse by an overhead gantry crane ("the crane") and loaded onto trucks which then left the warehouse and the premises.
The crane ran along rails attached to travel beams which were located near to the roof and close to the walls on the eastern and western sides of the warehouse. The crane's travel beams ran in a north-south direction and, consequently, were at right angles to the driveway.
415 volt 3‑phase power was supplied to the crane by means of three busbars (sometimes referred to as "buzz bars") which ran parallel and very close to the travel beam on the western side of the warehouse. The busbars were on the inside of the travel beam. The crane travelled by a central winch between the eastern and western sides of the warehouse. However, the supply of electricity to it came from one set of busbars on the western side. At the time of the accident, independent contractors maintained the crane every two to three months. The crane had two or three signs painted along its travel beam saying "danger live wires".
Evidence was given by a Mr Anderson, an electrical inspector for the then State Energy Commission, who explained how the busbars supplied electrical current to the crane. Each busbar was a U‑shaped bar and a "live" conductor sits inside the arc of the U‑shape. Collectors, which fit inside the arc, contact the conductor and slide up and down the busbar. They then come in contact with the crane, so that the electricity travels from the live conductor to the collector and then to the crane motor, which drives the crane backwards and forwards along the crane rails on the travel beams.
The outer arc of each U‑shaped busbar is insulated. The ends of each busbar are also insulated with end caps. The inside arc is not insulated, but the opening at the end of the U‑shape is so small that it can only accept something smaller than 12 mm. The learned Judge found that the chances of somebody receiving an electric shock from a busbar, if it was insulated and its end caps were on, were very slight. However, if a person forced his or her finger or an object they were holding into the opening, it was possible for them to receive an electric shock. Consequently, the only way to protect a person who was working close to the busbars from that risk was to isolate the power to the busbars. As will appear, this particular possibility was an extremely significant element in the case.
In late 1992, ANI contracted with Smith Constructions to extend the southern end of the warehouse. The contract included the fabrication of steel for the frame and the extension of the crane's eastern and western travel beams. The new crane and rails for the extension were not part of the contract. There was a separate contract with Smith Constructions for some of the works associated with the new crane and rails. It was found that this contract was not relevant to the issues in the case. At the time of the accident, the appellant was a subcontractor waiting to do work that was part of the work the subject of the contract between the Piper Company and Smith Constructions. The subcontract was between the Piper Company and Bunbury Crane Hire which was the trading name of a partnership between the appellant and his wife.
Mr Smith, ANI's Bunbury branch manager, gave evidence that ANI issued a purchase order to Smith Constructions for the contract. Under the contract, Smith Constructions were the site supervisors and in charge of all subcontractors. The learned Judge noted, however, that the purchase order was not produced in evidence and found that the major role of Smith Constructions was to construct the extension. On this aspect of the case, the learned Judge commented that:
"In doing so [Smith Constructions] may well have been site supervisors and in charge of the subcontractors. However the absence of any document evidencing this when it was said that one exists means that I am unwilling to conclude that these responsibilities were expressly stated as being part of the contract as opposed to being implied in the contract."
In pars [33] ‑ [36], the learned Judge made a number of preliminary findings as follows:
"33.There is no evidence that [ANI] considered any safety issues in granting this contract. Neither, once it was granted, did it discuss safety issues with Smith Constructions. Nor did it conduct safety inductions for any workers involved in the contract work.
34.Based on the evidence of Mr Smith I find that [ANI] knew that in order to perform work under the contract, Smith Constructions through its employees or agents would be required to work close to the busbars, travel beams and the crane, especially in the south‑western corner of the warehouse. This was in order to extend the warehouse and the travel beams.
35.It is also clear from Mr Smith's evidence that during the work involved in the extension [ANI] remained in control of the crane and its operation. Mr Smith gave evidence that it was [ANI's] 'lifeline', particularly between the hours of 8 a.m. and 9.30 a.m. which were [ANI's] busiest times of the day for loading trucks. During this period, the workers on the extension were expected to provide 'minimum disruption' to [ANI's] business. Mr Smith said that only he and Mr Croker, [ANI's] leading hand/foreman had authority to turn off the crane.
36.The [Piper Company] was sub‑contracted to Smith Constructions to fabricate and erect the steel for the extension. This sub‑contract included fabricating and erecting the extensions to the crane's travel beams. In turn [the Piper Company] contracted with the partnership [ie Bunbury Crane Hire] to provide crane services to assist in erecting the steel frames and the extensions to the travel beams. The partnership was provided with an order number and the arrangement was that it did work as required and sent periodical invoices to the [Piper Company] for that work."
Approximately one month prior to the accident, Mr Piper went to the premises and measured it so that the steel for the extension could be fabricated. At that time, Mr Piper went to the southern end of the travel beam and busbars on the western side of the warehouse. He noticed that the end caps of the busbars were intact. The learned trial Judge found that some time between then and the date of the accident, the cap was removed from or fell off the end of one busbar and the cap from another was partially dislodged. Consequently, the exposed, uninsulated ends of these busbars were "live" if the power to the crane was turned on.
There was evidence that between the date Mr Piper did his measurements and the date of the accident, Smith Constructions would have done some work in the vicinity of the busbars. Against that background, the learned Judge said:
" … it appears to be a likely scenario that the caps were moved during this work. However, it is not necessary for me to decide who moved them. It is sufficient to say that there was no evidence that the [appellant or any of the respondents] moved them or knew about their movement until the day of the accident."
The appellant operated a tractor crane at the premises on 12, 14 and 15 December 1992 pursuant to the partnership's contract with the Piper Company. As at 15 December 1992, the steel frame for the extension had been erected. The Piper Company still had work to do to secure it, as well as work to do on the southern end of the existing warehouse to prepare it to take the final members to connect the existing warehouse to the extension. This work included welding connecting plates to the end of the existing travel beams, so as to enable the new travel beams to be fitted for the extension to the crane. This work did not need the services of a crane. The tractor crane and the appellant were not required to commence their work until the work being done by the Piper Company was finished, and the Piper Company was ready to raise the final unit connecting the warehouse and the existing travel beams to the extension and the new travel beams. Mr Piper, who was also the working foreman for the Piper Company, told the appellant that he would not be required on 16 December 1992.
There was a dispute between the appellant and the Piper Company represented by Mr Piper whether the latter told the appellant to attend the premises on 17 December because there would be work for him and the tractor crane (which was the appellant's evidence), or whether he was told that he would probably be required on 17 December and that Mr Piper would telephone him when he was required (which was Mr Piper's evidence). Because of subsequent undisputed evidence, the learned Judge did not find it necessary to resolve this conflict.
On the morning of 17 December 1992, Mr Piper and two other Piper Company employees attended at the premises. There was still about a morning's work to do before the services of the tractor crane and the appellant would be required. Mr Piper allocated tasks to the Piper Company's workers and then commenced preparing the ends of the travel beams to take their extensions.
The learned Judge found that the first thing that Mr Piper did was to erect his aluminium ladder on the outside, at the western side of the southern wall of the existing warehouse. He removed the metal sheeting which comprised the southern wall of the warehouse, thus exposing the southern end of the western travel beam and busbars. He noticed that the cap was not on the end of the one of the busbars and the cap of another had been dislodged. As he intended to work on the end of the travel beam, in close proximity to what he then knew were "live" busbars, he got down from the ladder and searched for the missing cap. He could not find it.
Mr Piper said he asked ANI's warehouse employees if they had seen it. The learned Judge found that it was likely that he did ask them, as it would be logical to do so. Mr Piper said he also spoke to ANI's warehouse foreman. He could not name that person, but said he was still employed at the premises. He knew this as he was still a customer of ANI.
The uncontroverted evidence was that Mr Croker was the ANI foreman at that time. At the time of the trial, he was no longer employed by ANI, having left its employ a few years after the accident. Mr Croker said he did not speak to Mr Piper. Consequently, the learned Judge found that Mr Piper did not tell any person in authority on behalf of ANI that there was a problem with the end caps of the busbars.
Mr Piper could not find the missing cap. He said that he turned off the power to the crane and attempted, albeit unsuccessfully, to put the dislodged cap back in place. He then put his leather jacket over the end of the busbars to help protect himself from injury, if he accidentally touched the busbars while working near them. He also warned the Piper Company's two employees to keep away from the busbars. He then turned the power back on. What then happened was described by the learned trial Judge as follows:
"44.He then went back up the ladder and prepared the southern end of the western travel beam. I accept that, to [Mr Piper's] knowledge, the power to the crane was on at this time. His work included cleaning the end of the travel beam and tack welding a connecting plate to it. Once he had done that, he removed the leather jacket from the end of the busbars, got down the ladder and moved the ladder inside the warehouse. He positioned the ladder against the bottom flange of the western travel beam, close to the southern end of the beam. Consequently, the top of the ladder was close, certainly within an arm's length, to the ends of the exposed busbars. This did not concern [Mr Piper], as he did not intend to climb to the top of the ladder. What he did was to climb some way up the ladder and then he made his way with his welder, via steel storage units, the wall girt and the travel beam up to a position between [the] travel beam and the western wall of the warehouse. At this point, he was able to access the southern end of the travel beam from the opposite side of the beam to which the busbars were on. It is not clear whether one of his purposes for taking this route was to avoid having to climb over or around the 'live' busbars but it had this result.
45.He placed his right foot on a wall girt and his left foot on the travel beam. His body was facing south, out of the warehouse and towards the extension. He said his position was comfortable. He then started to weld the connecting plate onto the end of the travel beam. When he did so he had his welding helmet on and could not see anyone coming up the ladder which was to his left and slightly behind him.
46.Meanwhile on the morning of 17 December the [appellant] did a job at the Bunbury Speedway. He then drove the tractor crane to the premises and spoke to [Mr Piper], apparently on the ground. It is not clear at what stage during [Mr Piper's] above‑described activities that they spoke. Clearly it was some time prior to [Mr Piper] finishing the welding. [Mr Piper] told him that he was not required at that time and he would not be required for at least another couple of hours. This was because after [Mr Piper] had prepared the end of the western travel beam, he then had to repeat the same preparation on the eastern travel beam before he would require the tractor crane. There is a dispute as to when during the day the [appellant] was told he would be required but again, in the light of other evidence, I do not believe that I need to resolve that dispute.
47.The [appellant] told [Mr Piper] that he had nothing else to do and asked if he could wait. [Mr Piper] told him that he could but that he would not pay him for that time. I accept that [Mr Piper] would have placed that condition on the [appellant] waiting at the premises as the partnership usually charged clients for time from when the tractor crane left the depot to when it returned to the depot. Thus unless [Mr Piper] made this stipulation [the Piper Company] would have been charged for the time the [appellant] spent waiting at the premises. [Mr Piper] then resumed his preparation work inside the warehouse."

The learned Judge found that there was a common practice on the site for the workers to take turns buying drinks for each other. The appellant decided that it was his turn to buy the drinks. He went into the warehouse to a drink machine and purchased cans of soft drink for himself, the Piper Company's two employees and Mr Piper. To do this, he had to walk the entire length of the warehouse and back again. It was the respondents' case at trial that in doing this, the appellant did notice, or should have noticed, that the crane was operating. In this respect, the learned Judge said in par [48] of her reasons:
"I accept that the crane is noisy and to anyone who was in the least observant it has an obvious presence as it works around the warehouse picking up steel and loading it onto trucks. However there is no evidence that the [appellant] did actually notice the crane working and what evidence there is of what he said soon after the accident leads to the inference that he did not notice it operating."
It was found that he took the drinks outside to where he was waiting at the southern end of the warehouse. After a period of time, he decided that Mr Piper's drink was getting warm, because it was a hot day, and that he would take the drink up to Mr Piper. As her Honour found in pars [49] – [52]:
"49.This was his own free choice. He did not have to do this and it was not done whilst [the Piper Company] was paying him for his and the tractor crane's services.
50.He went inside the warehouse and climbed approximately 5 metres to the top of the ladder. I find, consistent with his evidence, that he was aware that the busbars were there and that they supplied electricity to the crane. To the extent that he thought about it at all, he thought that [Mr Piper] would not be working near the busbars and the crane unless the power to the crane was turned off. However, I find that his mind was not concentrating on the risks that he was placing himself under whether they were by climbing an unsecured ladder or placing himself near the crane and busbars. Rather he was thinking of delivering the drink to [Mr Piper]. He did not ask anybody whether the crane was off, he did not check its switch and neither did he stop, even momentarily, to make any observation of its condition.
51.When he got to the top of the ladder, he reached out with his left arm to hand the can to [Mr Piper] who was still between the wall and the travel beam. In order to do so his left arm had to go over the top of the busbars and the travel beam. At the same time [Mr Piper] finished his welding, lifted up his visor and saw the [appellant]. He put out his hand to take the drink. At that point the [appellant's] inner left arm, just above the elbow, touched the exposed end of the 'live' busbar and he received an electric shock from it.
52.The [appellant] was somehow released from the busbar and he climbed down the ladder. He was dazed and in shock. He was sweating profusely and had considerable pain in his chest and upper back. After a short time an ambulance was called and he was taken to Bunbury hospital. X-rays were taken and these revealed a fractured left scapula. It is accepted that this was caused by muscle contractions as the electricity went through his body, presumably from his left arm to his right hand which was holding the ladder, although there was no evidence that there was an exit wound. He remained in hospital for 2 days and then went home to convalesce. He remained at home for 2 weeks before returning to crane driving."
The learned Judge indicated that she would deal with the appellant's other alleged injuries under the heading of damages. The appellant was extremely lucky to survive as the power supply was some 800 times the lethal amperage.

Pleadings

The particulars of negligence alleged against each of the Piper Company, Mr Piper and ANI were:
"(a)Failing to take any or any reasonable precautions for the safety of the plaintiff;
(b)Exposing the plaintiff to risk, danger or injury which was known or ought to have been known;
(c)Failing to properly supervise and/or instruct the plaintiff;
(d)Failing to observe that the plaintiff was in a position of peril in the circumstances;
(e)Failing to isolate or arrange to isolate the power to the overhead electric gantry crane;
(f)Failing to barricade the area in which the Second Defendant worked;
(g)Erecting and/or allowing to remain in position the ladder which extended from the ground to the vicinity o the busbars given that the ladder was made of aluminium;
(h)Erecting and/or allowing to remain in position the ladder which extended from the ground to the vicinity of the busbars when it was known or ought to have been known that the power to the overhead gantry crane would at all material times not to be isolated;
(i)Failing to give the plaintiff any warning or effective warning that the power of the overhead gantry crane had not been isolated;
(j)Removing and/or failing to arrange for insulation caps to be placed on the busbars when it was known or ought to have been known the power to the overhead gantry crane would at all material times not be isolated; and
(k)The plaintiff will further rely on the doctrine of Res Ipsa Loquitur."
In addition, two further particulars of negligence were alleged as against ANI, namely:
"(a)Failing to attend to the request of the [Piper Company] by its servants and/or agents to isolate the power to the overhead electric gantry crane;
(b)Continuing to use the overhead electric gantry crane when it knew or ought to have known that work was being undertaken in the vicinity of the busbars."
The appellant claimed that the Piper Company was vicariously liable to the appellant for the negligence and/or breach of statutory duty of Mr Piper as its servant. The negligence alleged was the failure of Mr Piper to take reasonable care to avoid adversely "effecting" [sic affecting] the health and safety of any other person, including the appellant, through any act or omission or work as required by s 20(1)(b) of the OHSW Act. The particulars of this claim repeated the particulars of negligence already pleaded.
The appellant also alleged that the Piper Company had the management and control of the workplace within the meaning of s 22(1)(b) of the OHSW Act and that the Piper Company was in breach of its statutory duty because it failed:
"(a)to take such steps as were practicable to ensure that the workplace was such that persons who were at the workplace, including the appellant, were not exposed to hazards as required by s 22(1)(a) of the Act;
(b)to provide a safe place for the appellant to work; and
(c)to provide or maintain a safe and proper system of work, or to instruct the appellant to follow that system … "
In addition, further particulars were pleaded which repeated the particulars of negligence to which I have already referred. The appellant also repeated the particulars of negligence, as further particulars of breach of statutory duty and also alleged that the Piper Company had breached s 19(a), (b) and (c) of the OHSW Act.
The appellant also relied upon the Piper Company's breach of statutory duty as an occupier of the premises as a failure to exercise reasonable care in the supervision of the independent contractors as required by s 6(1)(a) of the Occupiers Liability Act. This plea again repeated the particulars of negligence to which I have already referred.
The appellant also alleged that ANI was in breach of its statutory duty under the OHSW Act, as the person having the management and control of the premises, by its failure to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace, including the appellant, were not exposed to hazards as required by s 22(1)(a) of the OHSW Act. The particulars of negligence were also repeated in reference to this claim. In addition, the appellant relied upon breach of statutory duty by ANI as occupier of the subject premises, in that it failed to exercise reasonable care in the selection and supervision of independent contractors as required by s 6(1)(a) of the Occupiers Liability Act. Once again, the appellant repeated the particulars of negligence alleged against the Piper Company in relation to this aspect of the claim.
In its defence, the Piper Company pleaded that the appellant was not at the material time contracted to operate the crane, as its services were not required on the day of the accident. The Piper Company denied that it was negligent or in breach of any statutory duty as pleaded. It also pleaded that:
"(1)the appellant had been told by Mr Piper on the day prior to the accident that his services were not required on the following day;
(2)the appellant was not on the premises in the capacity either of a worker or sub‑contractor on the day of the accident;
(3)the appellant told Mr Piper that he would remain on the premises because he wanted to 'hang around';
(4)the Piper Co was carrying out work for the fourth defendant originally named in the action, B & T Nominees Pty Ltd (which was no longer a party at the time of trial)."

The Piper Company and Mr Piper's Liability for Negligence

The learned Judge concluded at par [59] of her reasons that it had not been established that the Piper Company was the occupier of the premises. As a result, the liability of the Piper Company and Mr Piper in negligence alone fell to be considered. The appellant was not an employee of the Piper Company, but an independent contractor. The Piper Company was the appellant's principal. Consequently, any liability of the Piper Company to the appellant was to be determined in accordance with the well‑known principles expounded in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31 per Mason J; and at 47 per Brennan J; and see Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 479.
As the learned trial Judge said at par [61], having referred to Stevens v Brodribb (supra):
"Although in that case the existence of a duty of care owed by the principal to the independent contractor was determined on the basis of proximity, a criterion which has now been abandoned by the majority of the High Court (see Sullivan v Moody [2001] 8 CA 59 at [48]), the above principles are still applicable. This is also despite the fact that [the Piper Company] was not the principal in relation to the whole of the work related to the extension of the warehouse. It was, nonetheless, the principal in the relationship between it and the [appellant]."
In Sullivan v Moody [2001] 8 CA 59 at [48]; [2001] 207 CLR 562 at 578, Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said:
"As Professor Fleming said [Fleming, The Law of Torts, 9th ed, (1998) at 151], 'no one has ever succeeded in capturing in any precise formula' a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence. The formula is not 'proximity'. Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality [eg Jaensch v Coffey (1984) 155 CLR esp at 584‑585 per Deane J; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 52 per Deane J], it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established [Hawkins v Clayton (1988) 164 CLR 539 at 555-556 per Brennan J; Hill v Van Erp (1997) 188 CLR 159 at 210 per McHugh J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 96‑97 [270]-[274] per Hayne J]. It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited."
Their Honours went on to say at 579 – 580 at [50]:
"Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care."
In my opinion, nothing said in Sullivan v Moody (supra) appears to have had the effect that the law as stated in Stevens v Brodribb (supra) and the passage cited from Sutherland Shire Council v Heyman (supra) is required to be modified in any way.
In this context, the learned trial Judge said at [62] – [65]:
"62.Applying those principles I find that there was a risk of injury to the [appellant] arising from the nature of [the Piper Company's] work and there was a need for him to be given directions as to when and where he was to go on the worksite and there was a need for [the Piper Company] through, its director and foreman, [Mr Piper], to co-ordinate the various activities on the work site for which it was responsible, that is the erection of steel and the extensions to the crane's travel beams. Thus, [the Piper Company], through [Mr Piper], had an obligation to take reasonable precautions for the safety of the [appellant] including prescribing a safe system of work. The fact that the [appellant] was not an employee, or that [the Piper Company] did not retain a right to control him in the manner in which he carried out his tractor crane driving, does not affect the existence of an obligation to prescribe a safe system generally to organise activities relating to the erection of steel for the extension and the travel beams.
63.Neither is it fatal to the existence of the duty to say that the [appellant] was not at the time of the accident actually performing work for [the Piper Company]. He was, with [the Piper Company's] knowledge and acquiescence, at [the Piper Company's] work site for the purposes of later performing work under a contract between the partnership and [the Piper Company]. In those circumstances he is for these purposes in no different position than an independent contractor actually performing work.
64.A safe system of work in these circumstances includes a safe system and co-ordination of all work under the control of [the Piper Company] so as to impose a duty on it to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. In other words a duty on it to take reasonable steps to avoid a foreseeable risk of injury to the [appellant].
65.I find that it was foreseeable that failure to have a safe system of work and to co-ordinate the work of all employees and agents involved in [the Piper Company's] work at the premises would expose the [appellant] to a risk of injury. In particular failure to have a safe system of work near the crane and busbars would expose the [appellant] to risk of injury."
The learned Judge rejected a plea by the Piper Company that it was not foreseeable that the appellant would climb the ladder to give Mr Piper a drink. Her Honour found that it was clearly foreseeable that a person, including the appellant, would climb the ladder to speak to or observe Mr Piper for any number of reasons. As her Honour put it:
"For example, specifically in relation to the [appellant], it was foreseeable that he would climb the ladder to tell the [Mr Piper] that he had decided to leave the premises, or to ask him for a more certain time of commencement. I also find that it was foreseeable that, based on prior practice and goodwill, the [appellant] would climb the ladder to offer him a drink. Once the [appellant] or anybody was at the top of the ladder there was a clearly foreseeable risk that they would be injured by touching the 'live' busbars. Indeed, this risk was foreseen by the [Mr Piper] because first, he put the jacket over the ends of the busbars to protect himself from injury even when he was well aware of the presence of the 'live' busbars and secondly because he says that he warned the [Piper Company's] two employees not to climb the ladder so as to avoid the risk posed by the condition of the business [sic premises?]."
Her Honour then at [67] posed the question:
"What then would a reasonable principal do by way of response to the risk so as to avoid unnecessary risks of injury and to minimize other risks of injury?"
This question was to be answered having regard to the magnitude of the risk, the degree of probability of it occurring, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the respondents may have had: Wyong Shire Council v Shirt (1980) 146 CLR 40, at 48 per Mason J and at 52 per Wilson J.
In pars [68] – [70] of her reasons, the learned trial Judge said:
"68. The magnitude of the risk was great in that the amount of electricity supplied to the busbars was enough to seriously injure a person even if they only momentarily touched them as the plaintiff did. The degree of probability of an accident occurring was more than slight. The expense, difficulty and inconvenience of taking alleviating action was insignificant when compared to the risk. I find that the reasonable person in the second defendant's position would have done at least one of a number of things, any one of which would have prevented the injury to the plaintiff or significantly reduced the risk of such injury.
69.Whilst the ladder was leaning on the southern end of the western travel beam a reasonable person would have had a system of work whereby ;
1.all persons for whom the person was responsible who were on site but not actually involved in the relevant work would have been directed not go into the work area;
2.persons were warned by signs and/or bunting to stay away from the work area;
3.persons were prevented by barricades or a person standing at the bottom of the ladder from using the ladder; and/or
4.the power to the crane was turned off and/or tagged.
70.I have assumed the presence of the aluminium ladder as although the erection of the ladder is particularised as being negligent there was no evidence led as to alternative means by which the second defendant could have done his work. Therefore I am unwilling to find that the use of the ladder was negligent."
The Piper Company contended at the trial that it had a conflicting responsibility not to adopt the fourth option mentioned by her Honour because it was expected to cause "minimum disruption" to ANI's work. The learned Judge rejected this contention because it begged the question why the Piper Company did not take any of the other options, so as to discharge its duty to all of the persons on site to whom it owed a duty. Further, it did not explain why it did not do the preparation on the eastern travel beam in the busy morning period, as the risk from the busbars did not exist on that side. If this had been done, it could have exercised option 4 after ANI's busy period had ended. In addition, there was not only the risk from the busbars to consider, but also the risk from the ladder or from something else falling from above during the course of the work. It was common ground that neither the Piper Company nor Mr Piper directed the appellant not to go into the work area.
As to option 2, the Piper Company and Mr Piper relied upon the signage on the crane to the effect that there were live wires in its vicinity. As to this, the learned trial Judge concluded that:
"In the normal working situation in the warehouse these signs may well be regarded as satisfying a duty of care to people in the warehouse as there is no direct access to the travel beams and busbars. However in these peculiar circumstances where [Mr Piper], being the person in charge of the work on behalf of [the Piper Company], was working in the vicinity of the crane and busbars, he was aware that there was an additional risk due to the exposed ends of the busbars and there was a ladder providing easy, unrestricted access to the area of the danger I find that the signs were not sufficient to discharge the first and second defendants duty of care to the [appellant]."

In any event, the signs referred to the danger of "live wires". This would not have alerted any reasonable person unacquainted with the design and function of the busbars to the need to stay away from them and, in particular, the capped ends of the busbars when the power was turned on. For these reasons, the conclusion of the learned Judge on this point was unassailable.
It was not disputed at the trial by the Piper Company or Mr Piper that the appellant was not prevented by barricades or a person standing at the bottom of the ladder from climbing the ladder. Nor was it disputed that the power to the crane was not turned off and/or tagged. The Piper Company admitted in its defence that it was vicariously liable for the acts and omissions of Mr Piper. The learned Judge concluded that this was a sufficient basis upon which to find the Piper Company liable to the appellant in negligence because its agent, Mr Piper, who represented the Piper Company, was at the relevant premises and did the wrongful acts and made the wrongful omissions. He was also a director of the Piper Company, so that it could be argued he was standing in its place and assuming to act in its capacity and not in an independent capacity when he did the wrongful acts and made the wrongful omissions: Colonial Mutual Life Assurance Society Limited v Producers & Citizens Co‑operative Co of Australia Limited (1931) 46 CLR 41 at 48 per Dixon J. The learned Judge went on to conclude that either of these two bases was sufficient for holding the Piper Company liable, which meant it was unnecessary for her Honour to go beyond the admission by the Piper Company that it was vicariously liable for the acts and omissions of Mr Piper.

Cross-Appeal by the Piper Company and Mr Piper

The Piper Company and Mr Piper cross‑appealed against the judgment on two grounds which were supported by numerous particulars. Ground 1 was that her Honour erred in law in finding the Piper Company and Mr Piper owed a duty of care to the appellant. The reason for this was said to be that:
"On the basis of her own findings and on the basis of the evidence, her Honour ought to have found that the appellant (plaintiff) had failed to establish a duty of care to the appellant (plaintiff) by the first and second respondents."
It is apparent from the reasons I have already stated that ground 1 of the cross‑appeal must fail. Ground 2 of the cross‑appeal contends that:
"Her Honour erred in law in finding that it was reasonably foreseeable that a person, including the [appellant], would climb the ladder to speak [sic to] or observer [Mr Piper] for any number of reasons. On the basis of her own findings and on the basis of the evidence, her Honour ought to have found that it was not reasonably foreseeable by a reasonable man in the poson [sic position] of [the Piper Company and Mr Piper] that the appellant … or a class of persons to [sic of] which the appellant … was a member would climb the ladder and be injured."
In the light of the reasons already stated in relation to the question of reasonable foreseeability, ground 2 of the cross‑appeal and the cross‑appeal itself by the Piper Company and Mr Piper must fail.

ANI's Liability for Negligence and/or Under the Occupiers Liability Act

The appellant's claims based on both negligence and breach of duty against ANI were held by the learned Judge to be a claim limited to a breach of the statutory duty under s 4 of the Occupiers Liability Act 1985 (WA) which relevantly provides that:
"(1) Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining 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 ¾
(a) to that person; or
…
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 of premises is by law responsible.
(2)Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent."
Her Honour rightly concluded that ANI was the occupier of the relevant premises, so that the statutory duty of care applied as between ANI and the appellant. Hence, there were not separate causes of action by the appellant against ANI in negligence and breach of the Occupiers Liability Act. ANI operated its business from the premises and it continued to operate that business while work was being carried out extending the premises. By s 5(1) of the Act, ANI owed to persons entering on the premises, in respect of dangers which were due to the state of the premises, or anything on the premises and for which ANI was responsible, a duty to take such care as, in all the circumstances of the case was reasonable, to see that a person would not suffer injury or damage by reason of any such danger.
Section 5(4) of the Occupiers Liability Act provides that:
"(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.
…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to ¾
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)       the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)       the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
In this context, the learned Judge said at [94]‑[95]:
"94. It is unnecessary for me to repeat in detail the observations I have made when considering the liability of the [Piper Company and Mr Piper]. These observations cover most of the matters in subsection (4) and my previous comments in relation to them also apply to the liability of [ANI].
95.However one issue is relevant to a consideration of [ANI's] liability that was not relevant to the liability of the other [respondents]. That is, the [ANI] says that it did not know and ought not to have known of the defects in the busbars and therefore it ought not to be held to have breached its duty of care to the [appellant] in respect to injury which was caused by that defect. I note that in defining the care an occupier is required to show to persons entering the premises, s 5(1) does not speak of dangers that an occupier knows of, but rather refers to 'dangers which are due to the state of the premises' and 'for which the occupier is by law responsible.' It appears to me that the [ANI] cannot avoid liability merely by pointing out that it did not know or ought not to have known of the defects in the busbars. I must be satisfied that it is not in law responsible for the danger."
ANI pleaded that it engaged Smith Constructions as an independent contractor to construct the extension to the warehouse, having exercised reasonable care in the selection and supervision of Smith Constructions; that it was reasonable for Smith Constructions to do the extension, and hence it was not liable for any negligence of Smith Constructions. This plea was based upon s 6 of the Occupiers Liability Act which provides that:
"(1) An occupier is not liable under this Act where the damage is due to the negligence of an independent contractor engaged by the occupier if ¾
(a)the occupier exercised reasonable care in the selection and supervision of the independent contractor; and
(b)it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken."
It is convenient at this point to deal with ground 11 of ANI's cross‑appeal which contends that the learned Judge erred in law in stating that the defence afforded to ANI as occupier by s 6 of the Occupiers Liability Act relied on proof that it was the independent contractor that was negligent. The ground is misconceived. The circumstances predicated in the opening words required that "the damage is due to the negligence of an independent contractor engaged by the occupier". The present case is one in which it was contended that ANI was liable as an occupier. Smith Constructions was an independent contractor employed by ANI. In the result, ANI could only exclude liability if it established that "the damage was due to" the negligence of Smith Constructions which was the fourth defendant in the action.
The starting point in relation to s 6 is that, at common law, an occupier of premises owed a non-delegable duty of care to persons lawfully on the premises: Kondis v State Transport Authority (1984) 154 CLR 672 at 686, per Mason J. The effect of s 6 of the Act is that while the occupier has a non‑delegable duty, it is not liable for the negligence of an independent contractor engaged by the occupier where there has been no direct breach of duty by the occupier.
In this context, the learned Judge said at [99] and following:
"99.I agree that the [appellant] has not proven that [ANI] knew of the defects in the busbars. There is no evidence of a reliable nature to prove that any person in authority on behalf of [ANI] knew of the defects. However, I do not believe that finding exonerates [ANI] from direct liability.
100.I also accept that the mere presence of the crane and live busbars was not in itself a breach of the duty owed to the [appellant]. Many workplaces are dangerous in places. There was a clear warning by signs on the crane, that there was a danger and in the course of the normal business of [ANI] there was no reason for someone in the [appellant's] position to access the busbars.
101.However, [ANI], as occupier of the premises, had a duty to take such care as in all the circumstances of the case it is reasonable to see that the [appellant] will not suffer injury or damage by reason of any such danger posed by the busbars.
102.As a matter of commonsense, [ANI] must have known that at some stage of the building work required to extend the warehouse persons would be required to work on or near the southern end of the western travel beam and therefore near to the busbars. It also knew that even without any particular defect the busbars were capable of giving an electric shock and therefore dangerous. Otherwise, why have the signs to that effect on the travel beam? [ANI] was on notice that at some point workers would have to erect some kind of ladder or scaffold near the busbars so as to gain access to this area of the warehouse. It knew through its branch manager, Mr Smith, that on the day of the accident [the Piper Company's] employees and agents were on site to do work on the extension which could have included such work near the busbars.
103.I also find that, despite contracting with Smith Constructions to do the extension, [ANI] retained control over the crane. This is based on the uncontroverted evidence that throughout the contract [ANI] continued to operate normally from the warehouse and used the crane for its business. Mr Smith specifically said that the crane was the lifeline of that business and if anybody wanted to turn the crane off only he and the foreman could give permission.
104.As [ANI] retained ultimate control over the [premises] and crane it had not in fact purported to discharge its duty of care to persons entering the warehouse with respect to the condition and use of the crane and busbars merely by contracting with Smith Constructions.
105.It is not sufficient to say that because it was probably an employee or agent of Smith Constructions who knocked one end cap off and dislodged another from the busbars, it was negligent not [ANI]. The question must be asked whether, irrespective of any breach of duty by Smith Constructions, [ANI] also substantially contributed to the accident by breaching its duty by not having safe systems in place to detect defects in the condition of the crane and to prevent people from working on or about the crane at any time whilst the power was turned on? If so such a breach would be quite a separate breach of a duty of care from that of Smith Constructions.
106.Apart from vague evidence that maintenance was carried out on the crane every 2-3 months there is no evidence that [ANI] had any system for regular inspections of the crane and busbars. I find that it did not. I note in this respect that the evidence is that the defect with the ends of the busbars could be clearly seen from the floor of the warehouse.
107.Further, although I am willing to accept Smith Constructions was responsible for co-ordinating the construction work for the extension, [ANI] retained responsibility for co-ordinating that construction work with its own work. [ANI] had a duty to prescribe the respective areas of responsibility for the crane between itself, Smith Constructions and [the Piper company and Mr Piper] because confusion about that area involved a risk of serious injury: Stevens v Brodribb Sawmilling Co Pty Ltd (supra), at 47. Despite knowing that work would have to be done around the busbars and that it controlled that item of plant [ANI] had no system of work to ensure that such work was carried out safely. [ANI] in the discharge of its duty should have ensured that appropriate arrangements were made at a time suitable for all for work to be carried out near the crane and busbars when the power to the crane was turned off. Rather all it did was to let it be known that it wanted minimal disruption to its work as a consequence of the extension work.
108.Workers at the premises, for the purposes of the extension, including the [appellant] were not given a safety induction to the premises and there was no system for locking out and tagging the crane when work was to be done in proximity to it and the busbars. Such an induction need not have been elaborate. Basic instructions to all workers that the crane and busbars were dangerous and that nobody was to go near them unless the power was turned off and the switch tagged in accordance with the posted procedure may well have been sufficient.
109.These steps would not have been expensive, time‑consuming or grossly inconvenient when compared to the gravity and likelihood of the probable injury as a consequence of workers being in proximity to the crane and busbars. In my opinion, the failure to do this or alternatively to discharge its duty by engaging a contractor to perform these tasks constituted a breach of [ANI's] duty to the [appellant].
110.However, even if I am wrong and the injury was caused by the negligence of Smith Constructions and not that of [ANI] I am not satisfied that, in accordance with section 6 of the Occupiers Liability Act 1985 that [ANI] exercised reasonable care in the selection and supervision of the independent contractor so as to absolve it of statutory liability. The evidence of Mr Smith was that there was no inquiry prior to entering into the contract relationships of Smith Constructions' or [the Piper company's] safety records or procedures. Then after contracting with Smith Constructions it did not give its employees or agents any induction into the safety procedures for the crane and busbars, co-ordinate the work to be done on the plant with its use of the crane and busbars or engage Smith Constructions to perform that co-ordination. I am satisfied that reasonable care was not exercised by [ANI] in the selection and supervision of Smith Constructions as far as safety issues connected with the crane and busbars were concerned.
111.Therefore I find that [ANI] have breached their duty of care to the [appellant] and are liable in damages for the injury that has been caused by their breach.
112.Consequently I do not find it necessary to separately consider the alleged breach of statutory duty said to be imposed by the Act."
So far as ANI as the principal occupier at the material times was concerned, there was no evidence of any system of regular inspection to ensure that the caps on the busbars were correctly in place at material times. No instructions were given by ANI to Smith Constructions to carry out such inspections. At all material times, however, Mr Piper and, consequently, the Piper Company were aware that one busbar cap was missing and another had been dislodged.
As I have already concluded, the appellant was entitled to consider that Mr Piper would not have been working in the area in which he was unless the power had been cut off to that area. In my opinion, in the circumstances as I have described them, her Honour's finding that the appellant and ANI were culpable to the same degree, "namely 35 per cent", was outside the bounds of a sound discretionary judgment: cfPennington v Norris (1956) 96 CLR 10.
In my opinion, Mr Piper and the Piper company were guilty of negligence in failing to notify ANI about, and to require that ANI replace the missing busbar cap and the damaged busbar cap. There was some inconclusive evidence that Mr Piper had drawn the attention of ANI to the position in relation to the busbars caps, but ANI, however, failed by its servants and agents to take any steps to rectify the position. Mr Piper does not appear to have pressed the matter.
As already indicated, the appellant was led into a sense of false security by his reasonable assumption that Mr Piper would not have been working where he was and doing what he was doing in that position, if he was exposing himself to a risk of injury by contact with the live ends of the busbars.
It follows that I agree with the learned trial Judge that ANI was in breach of its statutory duty of care to the appellant under the Occupiers Liability Act and was liable in damages to the appellant for the injury caused by that breach. In my opinion, for the reasons already stated, the warning signs "Danger Live Wires" were irrelevant. If ANI had in place a proper system of inspection of the busbars to ensure that the caps were properly in place, the accident would not have happened. ANI was the occupier and its liability was to be determined under the Occupiers Liability Act rather than at common law.
Ground 11 of ANI's cross‑appeal contended that the learned Judge erred in law in stating that the defence afforded by s 6 of the Occupiers Liability Act relied upon proof that it was the independent contractor that was negligent. While the statement of claim filed on 17 August 1994 originally named Smith Constructions as fourth defendant, being the independent contractor engaged by ANI, the statement of claim was amended on 28 August 2001 by deleting all the allegations against Smith Constructions and deleting it as a party. Hence, by the time of trial, there was no pleaded allegation by the appellant that Smith Constructions was liable. Nonetheless, ANI pleaded in paragraph 3 of its defence as amended on 30 November 1995 that it denied the allegations of negligence against it and also denied liability under the Occupiers Liability Act as follows:
"The Third Defendant denies paragraph 8, 26, 27, 28, 29, 30 and 31 of the Statement of Claim including the particulars of negligence and/or breach of Statutory Duty as if each allegation were separately traversed and says further that it engaged the [Smith Constructions] as an independent contractor to perform the steel constructions at the premises and that pursuant to section 6 of the Occupiers Liability Act 1985 (WA) it is not liable for the negligence of the [Smith Constructions] as it exercised reasonable care in the selection and supervision of the [Smith Constructions] and it was reasonable in all of the circumstances for the [Smith Constructions] to perform the steel constructions at the premises."

In my opinion, under s 6(1) of the Occupiers Liability Act, a plea and proof that the damages claimed against it were "due to the negligence of an independent contractor engaged by it" as the foundation for the defence. This it failed to do. As a consequence, the cross‑appeal necessarily fails.
In my opinion, however, ANI's cross‑appeal against the finding that it was liable to the appellant in damages for negligence at common law must succeed. Notwithstanding that success, the appellant's claim against ANI under the Occupiers Liability Act must succeed, so that, in the end, ANI remains liable to the appellant on that basis. I have reached this conclusion primarily on the basis that ANI, as occupier, failed in its duty to have in place or implement a system of inspection of the busbars to ensure that the caps on the ends of the busbars were properly in place and were in good condition. This duty and its breach were of particular significance in a context in which ANI's crane was required to operate at times when the construction work on the extensions to the premises, including the extensions in the vicinity of the busbars in question, was in question.
In my opinion, there is no substance in ground 1 of ANI's cross‑appeal for the reasons which I have already stated in relation to ANI's liability under the Occupiers Liability Act. While ANI had a non‑delegable duty, it was not liable for the negligence of the Piper Company or Mr Piper. Likewise, there was no substance in grounds 2, 11 and 12 of ANI's crossappeal.
ANI had an independent liability to the appellant arising from its duty of care under the Occupiers Liability Act, having regard to its insistence upon the power being on at the material time, to take reasonable care to alert persons lawfully on the premises from being exposed to the danger presented by the busbars when the power was on. The failure to put in place a system of inspection of the busbars, particularly in circumstances where it knew that work was being undertaken in the vicinity of the busbars, was a clear breach of its duty of care under the Act. As I have already indicated, the warning signs about "live wires" were inadequate. In my view, ANI should have ensured that a system was in place to warn persons in the vicinity of the busbars when they were capped of the danger from them. In this respect, there was also a failure to ensure that the Piper Company and Mr Piper had in place sufficient safety precautions to enable work to be done in the period when the power was switched on during the busy morning period when ANI's crane was in operation.
Ground 3 of the cross‑appeal contended that:
"The learned trial Judge erred in law in stating that once the rules of the common law were applied to determine whether [ANI] was an occupier upon whom a duty of care to the Appellant was incumbent the rules of the common law for the purposes of determining the content of the duty of care were irrelevant."
In my opinion, this ground of appeal was misconceived. The question whether a person or company is an "occupier" of premises is one determined in accordance with the common law: Wheat v E Lacon & Co Ltd [1966] AC 552. Once that question is answered in the affirmative, the statutory regime under the Occupiers Liability Act applies to determine the content and extent of the duty of care. The Occupiers Liability Act referred to the duty of care in terms which were substantially equivalent to the position at common law. For these reasons, ground 3 of the cross‑appeal fails.
Ground 4 of the grounds of cross‑appeal was that:
"The learned trial Judge fell into error by failing to define the premises for the purposes of identifying the occupier of, or party who had or should have had control of, the crane at the material time.
4.1The relevant 'premises' were the crane and busbars.
4.2The [Piper Company or Mr Piper] or Smith Construction should have assumed control of the crane and bus bars by requesting the [ANI] to disconnect the power before the relevant work by the [Piper Company or Mr Piper] and [the] Appellant commenced."
It was common ground between the parties that the crane was both occupied and controlled by the servants or agents of ANI at the material time. ANI contended, however, that the relevant premises were the crane and the busbars. So much may be accepted, in the sense that the part of the premises in which Mr Piper was working was adjacent to the track on which the crane operated by ANI was working. Mr Piper was not in control of the crane. The dilemma faced by the Piper Company and Mr Piper was said to be that to complete the contracted work they were undertaking, access was needed to the relevant area at the material time. As previously noted, however, they could have worked on the opposite side of the building when the crane was not operating. This placed an onus on the Piper Company and Mr Piper to take proper precautions. In my opinion, the evidence also clearly showed that at the material time, ANI was in control of the crane and also had required that the power be switched at the time Mr Piper was working in the vicinity of the busbars.
ANI's liability rested in part on its position as the primary occupier of the premises and its capacity to direct when and where access to the premises was to be permitted to enable the contracted work to be undertaken. There was an acknowledged danger to which persons in the vicinity of the busbars were exposed. The caps were capable of being knocked off. One had been partly displaced and the other was missing. ANI, as the primary occupier of the premises, clearly had a duty of care to inspect the premises to ensure that they were safe for the contractors and subcontractors working at the premises. As the learned Judge found, ANI retained control over the premises and the crane. At all material times, it continued to operate the crane. It was the "lifeline" of the business. For the reasons stated by the learned Judge, it must be accepted that ANI owed all of the persons on the premises a duty to take reasonable care, both in relation to the condition of the premises and in relation to the operation of the crane. I agree in this context with the reasons of her Honour in pars [99] – [112] which have already been set out in full. For these reasons, ground 4 of the cross‑appeal by ANI fails.
Ground 5 of the grounds of ANI's cross‑appeal was that:
"The learned trial Judge erred in fact in finding (by inference) that [ANI] breached its duty to the Appellant by failing to have a safe system in place to detect defects in the condition of the crane.
5.1The learned trial Judge did not define the safe system which ought to have been in place to detect defects in the condition of the crane.
5.2There was no evidence that this suggested failure to have a safe system in place to detect defects in the condition of the crane caused or contributed to the accident in any way."
In my opinion, this ground was irrelevant because the complaint was related to the defective condition of the busbars rather than any defect in the crane as such. In any event, as already seen, the learned Judge rightly held that ANI failed to put in place any system of regular inspection of the busbars. ANI admitted that it did not carry out any safety checks of the busbars at any time. Since the incident involving the appellant, a system of safety checks had been implemented.
Ground 6 of the cross‑appeal was that:
"The learned trial Judge erred in fact in finding [ANI] breached its duty to the Appellant by failing to prevent people from working on or about the crane at any time whilst the power was turned on and that this failure substantially contributed to the accident.
6.1The uncontroverted evidence was that [ANI] directed the [Piper Company and Mr Piper] and Smith Construction to request it to turn off the power when people would be working on or about the crane.
6.2The 'system' for preventing people from working on or about the crane at any time whilst the power was turned on was a complete ban."
There was uncontradicted evidence by Mr Croker and Mr Smith on behalf of ANI that it retained ultimate control of the "lifeline" of its business, namely, the crane. No‑one was permitted to switch off the power without its permission and there were "no circumstances" in which power to the crane would be turned off between 8.00 am and 9.30 am.
There was no evidence that ANI took any steps to enforce the ban. The crane was operating at the material times. Mr Piper must have been in the view of the person operating the crane when he was working in the vicinity of the busbars. ANI contended that it had handed responsibility for co‑ordination of the work to Smith Constructions, but no evidence was adduced concerning any specific arrangements made with Smith Constructions beyond a general comment by Mr Smith, an employee of ANI, that co‑ordination was the responsibility of Smith Constructions. In these circumstances, it was clearly open to her Honour to find, as she did, that the evidence did not indicate any delegation of responsibility from ANI to Smith Constructions. Her Honour also found ANI's breach of duty in negligence rendered it liable to the appellant to the extent of a contribution of 22.75 per cent on the basis that as between the Piper Company and Mr Piper, on the one hand, and ANI on the other, liability was apportioned on the basis of 65 per cent and 35 per cent respectively. As between the appellant on the one hand and the respondents on the other, the appellant's contribution was assessed at 35 per cent and the respondent's contribution was 65 per cent. In my opinion, it has not been demonstrated that the apportionment between the respective respondents should be altered in any way, although ANI's liability arises under the Occupiers Liability Act rather than in negligence at common law.
Ground 7 of the cross‑appeal was that the learned Judge erred in fact in finding that ANI breached its duty to prescribe the respective areas of responsibility for the crane between itself, Smith Constructions, the Piper Company and Mr Piper. In support of this ground, ANI relied upon the particulars in paragraphs 6.1 and 6.2 of ground 6. In my opinion, this was no answer to the finding of negligence against ANI because of the failure to put in place a system for inspecting the busbars and, in particular, the caps, for the reasons already mentioned. For these reasons, ground 7 of the cross‑appeal fails.
Grounds 8, 9 and 10 of the cross‑appeal contended that the learned Judge erred in fact in finding that all that ANI did was to let it be known that it wanted minimal disruption to its work, as a consequence of the extension work. It was accepted by ANI in its submissions on the appeal that ANI retained responsibility for co‑ordinating the construction work with its own work. It contended, however, that it had an expectation that other than when Mr Smith of ANI or Mr Coker were requested to turn the power off, it would be left on during the extension works. ANI had this expectation because the time of day at which the accident occurred was ANI's busiest time and ANI had asked the contractors to work around the times that it was busy. Mr Piper's evidence was that he had been informed by Smith Constructions that there was to be minimum disruption. Mr Piper was able to comply with the instruction because 99 per cent of his work was external. The day of the accident was the first occasion in which Mr Piper did work inside the existing warehouse.
It was contended on behalf of ANI that it was Smith Constructions, not ANI, which had the duty to give a safety induction in relation to the warehouse to the various contractors and introduce a system of locking out and tagging the crane when work was to be done in proximity to it and the busbars. In my opinion, none of these grounds provides an answer to the finding that ANI's negligence contributed to the appellant's loss and damage by failing to put in place any system of inspection of the busbars and, in particular, the busbar caps, or instructing Smith Constructions to do so. For the reasons previously stated, the warning signs about "live wires" were inadequate.
I have already dealt with ground 11 of ANI's cross‑appeal. Ground 12 contended simply that the learned trial Judge erred in apportioning any liability to ANI. It is convenient to deal with this contention in the context of ANI's notice of contribution against the Piper Company and Mr Piper.

Contribution between the Piper company, Mr Piper and ANI

ANI issued a notice of contribution against the Piper company and Mr Piper seeking a full indemnity or alternatively contribution from the Piper company and Mr Piper pursuant to the provisions of s 7 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA). In pars 119 and 120 of the reasons for judgment, the learned trial Judge said:
"119.Dealing first with the issue of indemnity, for the reasons expressed above, I am of the opinion that this is not a case where [ANI], is vicariously liable for the negligence of its independent contractor [the Piper company], but rather I have found it personally liable for its own breach of duty. Consequently, it is not appropriate that [ANI] be indemnified by [the Piper company and Mr Piper]; Voley v Inglewood Shire Council and Anor (1963) 110 CLR 74.
120.As for contribution, the contribution between [the Piper company, Mr Piper and ANI] shall be such as I find to be just and equitable. In my opinion [the Piper Company and Mr Piper] should share the greater burden of damages as it was [Mr Piper, the Piper Company's director], who knew of the specific defects in the busbars and knowing this [Mr Piper] placed a ladder within easy reach of the busbars and left it unattended without any warning of the special risk. Whereas [ANI] was only aware of the general risk posed by the busbars to workers and failed to take reasonable care to protect [the appellant] from that risk. Thus the apportionment as between [the Piper Company, Mr Piper and ANI] shall be 65 per cent for [the Piper Company and Mr Piper] and 35 per cent for [ANI] of the amount for which [the appellant] is to have judgment."
This was the basis for the conclusion that the Piper Company and Mr Piper were liable in damages to the appellant for loss and damage sustained by him as a consequence of the accident. The appellant's damages were reduced by 35 per cent to account for his contributory negligence. As between the respondents, there was an apportionment of 65 per cent for Mr Piper and the Piper Company and 35 per cent for ANI of the amount for which the appellant was entitled to judgment.
In my opinion, it has not been demonstrated that there is any acceptable reason for disturbing the allocation of liability to the respective respondents.

Grounds 1 and 2: Contributory Negligence

It was against this background that it was contended in ground 1 of the grounds of appeal that:
"The learned trial Judge erred in fact and in law in finding that [the appellant] was contributorily negligent to the degree of 35 per cent or that [the appellant] was contributorily negligent to any degree at all."
This ground was supported by a number of particulars as follows:
"(a)The learned trial Judge erred in fact in finding that there were 2 to 3 signs on the travel beam saying "Danger Live Wires". There was no evidence to support this finding of fact or that any signs with this specific warning were present at the time of the accident.
(b)The learned trial Judge failed to give any or sufficient weight to the expert evidence of Mr Robert Anderson and Mr Gregory Baker who were of the opinion that it was reasonable in the circumstances for the [appellant] to assume that the power had been isolated and climb the ladder.
(c)The learned trial Judge erred in law in failing to consider and compare the relative culpability of each of the defendants and the [appellant] as is required in accordance with Pennington v Norris (1956) 96 CLR 10. The learned trial Judge also failed to consider the relative acts of the parties in causing the damage: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529.
(d)The learned trial Judge erred in law in failing to subject the whole conduct of the [appellant] and the First Second and Third [respondents] to comparative examination.
(e)The learned trial Judge erred in fact in concluding that because the [appellant] was not an employee or agent performing his usual occupational duties and that he did not have to go up the ladder to do any work, or at all (at Reasons [114]), these considerations precluded her from considering whether or not the [appellant's] actions were due to inattention bred of familiarity and repetition and, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions. Consequently the learned trial Judge should have determined whether or not any of these considerations caused some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man" even though it occurred outside a master‑servant relationship: Bus v Sydney County Council (1989) 167 CLR 78.
(f)After finding that the [appellant's] mind was concentrating on climbing the ladder and delivering the drink to the [Mr Piper] (at Reasons [50]0, her Honour should have concluded that any inadvertence or inattention of the [appellant] was due in whole or in part to his preoccupation of the matter at hand or other prevailing conditions.
(g)Her Honour erred in fact and law in finding, considering all the circumstances, that the [appellant] and [ANI] were culpable to the same degree (35%)."
Ground 2 was as follows:
"2.The learned trial judge erred in fact and law in finding that the conduct of the [appellant] was incompatible with the conduct of a reasonable man in the circumstances. Alternatively, the learned trial judge erred in law and fact in finding that the risk of injury was clearly foreseeable to a reasonable person in the [appellant's] position and that the [appellant's] conduct fell short of what should be expected from him.
PARTICULARS
(a)The learned trial Judge erred in fact and law in finding that the [appellant] was aware that the busbars were there and that they supplied electricity to the crane (at Reasons [50], [114]). There was no evidence to support this finding. The [appellant] gave uncontradicted evidence that he did not know what a busbar was or that it supplied electricity to the Gantry Crane on the [ANI's] premises, prior to the accident.
(b)After concluding that the [appellant] did not notice the crane working at the time of the accident, her Honour erred in fact and law in her conclusion that the [appellant's] assumption that any electricity risk had been removed was not reasonable because it was not based on any observation as to whether or not the crane was working.
(c)The learned trial judge failed to give any or any sufficient weight to the fact that Mr Smith (who gave evidence on behalf of [ANI]) said that [ANI] would not have turned the power off in the circumstances in the event that they were asked to do so.
(d)After finding that it was common practice for the workers to take turn in buying drinks for each other (at Reasons [50]) and also finding that it was foreseeable that, based on prior practice and goodwill, the [appellant] would climb the ladder to offer [Mr Piper] a drink (at Reasons [66]), the learned trial judge erred in fact and law in concluding that the [appellant] did not have to go up the ladder to do any work or at all (at Reasons [114]). Her Honour also erred in concluding that a reasonable and prudent contractor would not have made the decision to go into the warehouse and up the ladder at all (at Reasons [116])."

At the trial, counsel for the appellant tendered a schedule of some 150 items of special damages supported by a large number of invoices, receipts, bank statements and similar documents. The respondents objected to the tender. Although the trial Judge gave the parties time to try and agree these items, unfortunately there was no agreement in respect of any of them.
In the result, her Honour accepted the document as a schedule of particulars of amounts claimed and held that the supporting documents were admissible pursuant to s 79C of the Evidence Act 1906 (WA).
The learned Judge said in par [370]:
"In the absence of agreement between the parties it is necessary for me to examine each of the claims for out-of-pocket expenses. However for a number of the items in the treatment schedule there appears next to them a reference to the amount of an "HBF refund" and the supporting documentation includes some documents showing indeed that the Hospital Benefits Fund, the plaintiff's private medical insurer has paid these amounts. There is no evidence before me that the plaintiff has any obligation to repay HBF. I did not receive any submissions from the plaintiff or the defendants in relation to whether the plaintiff is entitled to claim damages in respect of these fees for which reimbursement has been received from HBF. I have referred to the text Luntz, H Assessment of Damages for Personal Injury and Death, 4th ed 2002 at par 8.2.4 and the case of Sibley v Milutinovic (1990) A Tort Rep 81-013 wherein it was held that damages were not allowed for medical expenses paid by a private medical insurer in the absence of evidence that the expenses were repayable. In that case Miles CJ said:
'There was no evidence before me of the contractual basis or any other basis from which this alleged contingent liability derives. In particular, I am not convinced that any liability arises unless the Court awards the plaintiff the out-of-pocket expenses claimed and which it is alleged will be refundable. There is circularity in the argument that, because the plaintiff would be under a liability to refund the out-of-pocket expenses in the event of being awarded those expenses as part of his claim for damages, then it follows that the contingent liability creates a present right to recover those expenses as part of the damages. As I see it, no liability to refund arises unless and until the plaintiff recovers the out-of-pocket expenses, and accordingly the Court should not award those expenses merely in order to create that liability.'
I adopt the reasoning of Miles CJ and decline to make an award where HBF has already paid the item or part of it. I will allow the balance of the item where part only has been paid by HBF."
The learned Judge disallowed the expenses incurred by the appellant in reliance on Sibley v Milutinovic (1990) Aust Tort Rep 81‑013, a decision which appears to be inconsistent with a number of other decisions including National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569; and Redding v Lee; Evans v Muller (1983) 151 CLR 117; Manser v Spry (1994) 181 CLR 428; Kars v Kars (1996) 187 CLR 354 at 363, 369; and see Luntz, H Assessment of Damages for Personal Injury and Death, 4^th Ed 2002 at [8.1.3] – [8.2.1] and [8.2.4]. The policy of the common law is that a tortfeasor should indemnify a plaintiff for the loss, rather than enjoy a windfall gain by shifting the burden of compensation to others: cfNguyen v Nguyen (1990) 169 CLR 245 at 257 per Deane J, and at 262 – 263 per Dawson, Toohey and McHugh JJ; and Lyszkowicz v Colin Earnshaw Homes [2002] WASCA 205 at [38] – [39] per Murray J, with whom Parker J agreed. As a matter of fact, HBF requires or will seek recovery of benefits it has paid. The respondents based no argument at the trial on Sibley v Milutinovic (supra).
At the hearing of the appeal, counsel for the appellant relied on an affidavit of Nicholas Philip Lindsay, a solicitor of the firm representing the appellant, sworn 5 September 2003. The affidavit stated that her Honour rejected the appellant's claim for special damages at par [370] insofar as it related to items 2, 3, 63, 64, 69, 73, 76 and 81 to 84 of the schedule. Items 2 and 3 of the appellant's schedule relate to his stay in Bunbury Regional Hospital on 17 and 18 December 1992 after the appellant's accident on 17 December 1992. For this, her Honour awarded some $130.20 being for the conveyance of the appellant by ambulance from the premises to the hospital.
Items 63, 64 and 69 relate to spinal cord stimulator trials conducted in May 1997 by one Dr John Salmon. Items 73, 76 and 81 to 84 relate to the implantation of a permanent cervical dual electrode stimulator system in June 1997. The total cost of these items amounted to $33,812.00. A claim was made to the appellant's insurer, HBF Insurance ("HBF") who paid an amount of $33,712.00, the difference being the appellant's insurance excess which was the amount awarded by her Honour.
On 7 August 2002 counsel for the appellant wrote to HBF seeking instructions on whether HBF would seek to recover the items of treatment totalling $33,712.00. By letter dated 12 August 2002 HBF advised that the payment would need to be refunded. Each of these letters were annexed to the affidavit.
Her Honour held at par [371] of her reasons that the amount of $33,712.00 would not be included in the damages payable to the appellant for special treatment as HBF had paid this sum. In my opinion, her Honour erred in making this decision. In the National Insurance Company of New Zealand Ltd v Espagne (supra) at 573 Dixon CJ (with whom McTiernan, Fullagar, Menzies and Windeyer JJ agreed), said:
"If a fund is raised by subscription for the benefit of a badly injured neighbour obviously this cannot operate in relief of the liability of a man who negligently caused the injury. So in a contract of accident insurance; where in the absence of special stipulation the insurer will not succeed by subrogation or otherwise to the insured's right of recourse against others in the case of injury by their negligence. But for the reason given it does not follow that the negligent parties can treat the insurance as operating in relief of their liability. It was effected by the money of the plaintiff for his own benefit in the event of an accident, a benefit both independent of and cumulative upon whatever right of redress against others might arise out of the circumstances of the accident."
In my opinion, the appellant is entitled to succeed on this ground and the relevant expenses claimed but disallowed by the learned Judge, totalling $33,712.00, should now be allowed.

Grounds 7.1 and 7.2

Grounds 7.1 and 7.2 were as follows:
"7.1The learned trial judges allowance of only $7,000.00 for the treatment of the Plaintiff's sexual dysfunction (at Reason [363]) was against the evidence and/or was a wholly erroneous estimate of the Plaintiff's loss.
7.2Having found that the accident 'has caused' the Plaintiff's chronic pain in the intra‑scapular and thoracic regions (Reasons [376]), and given the Plaintiff's uncontradicted evidence that the nerve stimulator gave him significant relief from pain (that ism that it was working), the learned trial judge erred in only allowing the sum of $5,000.00 in this respect."
Ground 7.1 was abandoned.
As to ground 7.2, it was contended by the appellant that, the learned Judge having found that the accident "has caused" the appellant's chronic pain in the intra‑scapular and thoracic regions, and the uncontradicted evidence of the appellant that the nerve stimulator gave him significant relief from pain, the learned Judge erred in only awarding the sum of $5000 damages in this respect.
It was submitted that the amount allowed should include $7340 for maintaining the stimulator. First, the uncontroverted evidence of the appellant and Dr Salmon was that the final spinal implant stimulator did ease the appellant's pain levels. Secondly, the fact that Dr Salmon expressed the opinion that the appellant's "overall condition" had deteriorated because of "ongoing psychological distress" did not necessarily mean that the implant stimulator was "simply not working".
Thirdly, there was no evidence given on behalf of the respondents that the appellant should have the implant surgically removed. Fourthly, the learned trial Judge did allow some special damages incurred and paid in respect of the stimulator on the basis that "the cost is causally related to the respondent's tortious acts". There was no evidence that the stimulator did not work because it had been so negligently implanted that the acts of the medical advisor had broken the chain of causation: cfMahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522.
On the same basis, I consider that the future costs of maintaining the implant stimulator (absent any evidence that it would need to be removed), had been caused by the respondents' tortious acts. I accept the contention that, but for the accident, the appellant would have suffered the "chronic pain" that his Honour found he has suffered and will continue to suffer, which provides the reason for which the stimulator was implanted. For the reasons I would uphold ground 7.2.

Ground 8 – Exaggeration of Symptoms

Ground 8 contended that:
"Her Honour's conclusion that the [appellant] consciously exaggerated his symptoms because of unspecified variances of the history given to unspecified doctors over the course of a decade, amounted to a failure to give adequate reasons which would support that finding."
Counsel for the appellant made it clear that this ground was pursued if, and only if, grounds 1, 2, 3 and 4 were all dismissed. Those grounds have been upheld for the reasons which I have already stated. Consequently, it is unnecessary to give further consideration to ground 8.

Conclusion

It follows that the appeal should be allowed and the damages awarded varied as follows:
Past economic loss to the date of judgment
(after discount of 5 per cent)   $134,333.65
Future economic loss
(after discount of 10 per cent)   $513,010.00
Loss of good will   $38,000.00
Special damages   $33,712.00
Damages for maintaining the nerve stimulator      $12,340.00
Total   $731,395.65
MURRAY J: I have had the advantage of reading in draft the judgment of Malcolm CJ, with which I agree. I too would allow the appeal and dismiss the cross‑appeals. I would vary the award of damages as proposed by his Honour and give judgment for the appellant against the respondents for the resulting damages, apportioned as to 65 per cent against the first and second respondents and 35 per cent against the third respondent.
PARKER J: For the reasons given by the Chief Justice, with which I respectfully agree, it is my view that the appeal should be allowed and the cross-appeals dismissed. I also agree with the variations to the award of damages that have been identified by the Chief Justice in his reasons and that judgment should be entered for the appellant against the respondents accordingly. As between the respondents I would agree that liability in respect of the damages awarded should be apportioned as to 65 per cent to be paid by the first and second respondents with the remaining 35 per cent to be paid by the third respondent.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: KSCHAMMER -v- R W PIPER & SONS PTY LTD & ORS [2003] WASCA 298 (S)

CORAM: MALCOLM CJ

HEARD: 19 & 23 SEPTEMBER 2003

DELIVERED : 3 DECEMBER 2003

SUPPLEMENTARY
DECISION :14 MAY 2004

FILE NO/S: FUL 121 of 2002

BETWEEN: DENNIS KSCHAMMER
Appellant (Plaintiff)
AND
R W PIPER & SONS PTY LTD
First Respondent (First Defendant)
ROBERT LINDSAY PIPER
Second Respondent (Second Defendant)
THE ANI CORPORATION LTD t/as STEELMARK SANDOVERS EAGLE AND GLOBE
Third Respondent (Third Defendant)

Catchwords:

Judgment and orders - Question of terms of judgment referred to single Judge of the Full Court following appeal and grant of liberty to apply - Credits in respect of payments on account of part payments of judgment sum

Legislation:

Common Law Practice Act 1867 (Q)

High Court Rules1952 (Cth), O 43 r 3
Judiciary Act 1903 (Cth)
Rules of the Supreme Court 1971 (WA), O24A r 10(4), O 42 r 2

Supreme Court Act 1935

Result:

Appellant entitled to judgment in the action and on the appeal in accordance with these reasons

Category: A

Representation:

Counsel:

Appellant (Plaintiff) : Mr B L Nugawela &
Mr N P Lindsay

First Respondent (First Defendant)         :        Mr I T Blatchford
Second Respondent (Second Defendant) :        Mr I T Blatchford
Third Respondent (Third Defendant)       :        Ms B A Mangan

Solicitors:

Appellant (Plaintiff)  :        Marks & Sands
First Respondent (First Defendant)         :        Greenland Brooksby
Second Respondent (Second Defendant) :        Greenland Brooksby
Third Respondent (Third Defendant)       :        Phillips Fox

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

Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306

Case(s) also cited:

BHP Steel Ltd v Kahn (No 2) [2001] NSWCA 269
Borthwick v Steamship Co Ltd (No 2) (1905) 2 KB 516
De Sales v Ingrilli (No 2) [2003] HCA 16; (2002) 212 CLR 338
Jorgensen v Olive [1985] 2 Qd R 168
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590

MALCOLM CJ: These reasons relate to matters raised by way of liberty to apply to a single Judge of the Full Court following the delivery of the judgment of the Full Court on 3 December 2003 in Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298 by which the Full Court, constituted by myself, Murray and Parker JJ, allowed the appeal from a judgment in the District Court for damages against the first respondent ("the Piper Company"), the second respondent ("Mr Piper") and the third respondent ("ANI"). The damages as assessed by the learned trial Judge in the District Court amounted to $350,489.46 made up as follows:
Past gratuitous services                   $    4,596.00
Interest thereon  $      827.28
Past economic loss  $104,926.93
Interest thereon  $    5,558.35
Future economic loss  $142,502.75
Future medical expenses including travel allowance
$17,045.00
Past travel expenses  $    4,088.00
Special damages  $    9,445.15
Interest thereon  $    1,500.00
General damages  $ 60,000.00
Total$350,489.46
Her Honour reduced the damages by 35 per cent on account of the appellant's contributory negligence to $227,818.14. As between the three respondents, there was an apportionment of 65 per cent for the Piper Company and Mr Piper and 35 per cent for ANI. In the result, the judgment against the Piper Company and Mr Piper was for $148,081.80 and $79,736.34 against ANI.
On 3 December 2003, the Full Court ordered that the appeal be allowed; the judgment of the District Court dated 2 August 2002 be varied in accordance with the judgment of this Court; there be liberty to apply in respect of the final judgment sum, including an allowance for interest; the cross‑appeals be dismissed; and that there be liberty to apply to a single Judge of the Full Court, namely myself, on the question of the costs of the trial and of the appeal.
At the time that the reasons of the Full Court were published, it was clarified that the date of judgment referred to in par [177] of the reasons was the date of the judgment in the District Court, namely, 2 August 2002. It was also directed that the liberty to apply could be exercised by correspondence, subject to any party seeking to be heard at a formal sitting of the Court.
By a letter dated 6 January 2004, it was submitted by the solicitors for the appellant that the final amount of the judgment should be varied and entered for the appellant in the sum of $967,237.49 inclusive of interest. The details are set out as follows:

Past Economic Loss

At the trial, the appellant claimed $385.30 net of tax per week until 1 June 2000 when his business was sold. Thereafter he claimed $1345 net of tax per week until the age of 65. The past economic loss allowed on the appeal was calculated at $209,896.34. As the result of an error, this amount was reduced to $134,333.65 on account of income tax. The correct amount which should have been allowed was the $209,896.34. This has required an amendment to pars [176] and [177] of the reasons.

Future Economic Loss

The amount awarded by the trial Judge for future economic loss should be substituted by the sum of $513,010.

Loss of Goodwill

An additional amount of $38,000 should be awarded for loss of goodwill.

Past Special Damages

An additional amount of $33,712 should be awarded for past special damages in respect of recovery from HBF.

Future Special Damages

An additional amount of $7340 should be awarded for the nerve stimulator.

Gratuitous Services

The learned trial Judge at [337] awarded the appellant $980 for gratuitous services plus interest on that sum as claimed of $411. A further sum of $4649 plus interest of $1255 was awarded under this head at [352]. Thus the learned Judge intended to award $7295 inclusive of interest. In the end result, however, at [379] her Honour only awarded $5423.28 inclusive of interest. This resulted in an arithmetical error of $1871.72 exclusive of interest. In my opinion, this additional amount should be added pursuant to the slip rule to make a total of $7295, together with interest on the sum of $1871.72 which counsel for the appellant should calculate.

Summary

It follows that the award of damages as at the date of judgment on 2 August 2002 should be varied as follows:
Past economic loss to the date of judgment
on 2 August 2002 (after discount of 5 per cent)               $209,896.34
Future economic loss (after discount of 10 per cent)        $513,010.00
Loss of good will  $ 38,000.00
Past special damages  $   9445.15
interest$   1500.00
$33,712.00$ 44,657.15
Future special medical expenses        $17,045.00
(including travel)  $   7340.00          $ 24,385.00
Gratuitous Services  $   4596.00          $     7295.00
Past gratuitous services  $     827.28
And interest thereon  $   1871.72
Past travel expenses  $     4088.00
General damages  $ 60,000.00
$901,331.49
It has been conceded on behalf of the appellant that, to avoid any dispute on the question whether the appellant is entitled to any interest on the special damages recouped from the Hospital Benefit Fund in the sum of $33,712, the appellant does not seek interest on that amount, so that interest should be calculated on the balance of the judgment sum, namely, $867,619.49.
On that basis, gross interest on the judgment sum to 10 February 2004 at 6 per cent for 1.5 years has been calculated at $78,085.75. In accordance with the 65 per cent/35 per cent apportionment of liability, the first and second respondents are liable to pay interest in the sum of $50,755; and the third respondent $27,330 calculated and including 10 February 2004. These amounts require adjustment on account of the partial payments of damages made by the first and second respondent, namely $50,581.70 paid on 20 March 2003 and $486,168.02 paid on 20 January 2004. It follows that there should be a credit to the first and second respondent for these payments as at 11 February 2004 in the sum of $4465. It also follows that the net interest payable by the first and second respondents up to 10 February 2004 is $46,290. The total damage payable by the first and second respondents, namely, 65 per cent of $901,331.49 plus the net interest of $46,290 is $632,155.46 as at 10 February 2004. The judgment should be dated 10 February 2004.
Since 10 February 2004, interest payable by the first and second respondents has continued to accrue at the rate of 6 per cent per annum or $56.67 per week.
The third respondent has also made payments on account of the damages awarded, namely, $8170.92 on 19 March 2003; $5447.28 on 8 April 2003 and $13,618.20 on 10 May 2003, a total of $27,236.40. The appellant's counsel has proposed that the third respondent be credited as having paid that sum on 20 March 2003 for the purpose of the calculation of interest. The credit in that respect is $1498. It follows that the net interest payable by the third respondent up to 10 February 2004 is $25,832.

The total damage payable by the third respondent is 35 per cent of $901,331.49 plus $25,832 equals $341,298.02 as at 10 February 2004. From that date, interest on the amount of the judgment is payable at the rate of 6 per cent or $325.57 per week.
The final amount of the judgment as at 10 February 2004 is $973,453.49.

Costs of the Action

It was contended on behalf of the appellant that the respondents should pay the appellant's costs of the action, on a party and party basis up until 5 December 2001 and thereafter from 6 December 2001 on an indemnity basis. This contention was based on the appellant's notice of offer to compromise to the respondents dated 3 December 2001, by which the appellant offered to compromise his claim on the basis that all or any of the then defendants should pay the appellant $600,000 general damages and the amount of his special damages, together with his costs of the action up to and including the date of acceptance of the offer to be taxed if not agreed.
By O24A r 10(4) of the Rules of the Supreme Court 1971 where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff is entitled to an order against the defendant for his costs in respect of the claim from the date on which the order was made, to be taxed on an indemnity basis, in addition to his costs incurred before that date, taxed on a party and party basis. It follows that the appellant is entitled to such an order in the present case.
As a result of the appellant's offer under O 24A of the Rules of the Supreme Court 1971 dated 3 December 2001, receipt of which was acknowledged by the first and second respondents by the solicitors for the first and second respondents on 5 December 2001 and by the solicitors for the third respondent on 6 December 2001, there should be an order that the first and second respondents pay 65 per cent of the appellant's costs of the action on a party and party basis up to 5 December 2001 and thereafter on and from 6 December 2001 on an indemnity basis.
It was submitted on behalf of the first and second respondents that the appellant's proposal was inconsistent with O 42 r 2 of the Rules of the Supreme Court 1971 which provides in subpara (1) that a judgment or order takes effect from the day of its date. Subpara (2) provides that the judgment shall be dated as of the day it is pronounced, unless the Court orders that it be dated "as of some earlier or later day, in which case it shall be dated as of that other day".
The judgment of an appellate court by which the judgment below is varied takes effect from the date on which the judgment is pronounced, unless the Court exercises its discretion under rule 42(2). The judgment on an appeal is not for all purposes the judgment of the Court below and takes effect on its own pronouncement unless the Court exercises its discretion to ante date it: Nicol v Allyacht Spars Pty Ltd (No 2)(1988) 165 CLR 306 at 311 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ. In that case, the High Court allowed an appeal from the Full Court of the Supreme Court of Queensland which had dismissed an appeal by the appellant against the dismissal of his claim for damages in that Court. The High Court allowed the appeal and gave judgment for the appellant for damages "together with interest". The appellant was given liberty to apply on the subject of interest. O 43 r 3 of the High Court Rules contained a rule in similar terms to O 42 r 2 of the Rules of the Supreme Court applicable in this Court. The High Court concluded that, while s 73 of the Judiciary Act 1903 (Cth) did not make the High Court order equivalent to a judgment of the Supreme Court taking effect from 3 April 1986 when that Court's judgment was pronounced, so as to entitle the appellant to interest under s 73(1) of the Common Law Practice Act 1867 (Q) from that date, the power of the High Court to "give such judgment as ought to have been given in the first instance" authorised the High Court to order interest pursuant to s 72 of the Common Law Practice Act from 3 April 1986 to 6 November 1987, the latter being the date of judgment by the High Court.
In my opinion, when an appeal against an award of damages is allowed, it is clearly open to the Full Court to give a judgment which will put the appellant in the same position as he would have been in had the additional damages awarded on appeal been awarded at first instance. Consequently, it would be appropriate to include in the award interest on any additional damages awarded on appeal calculated from the date of the judgment in the District Court, namely, 2 August 2002.
Section 142(1) of the Supreme Court Act 1935 (WA) provides that every judgment debt shall carry interest at a percentage rate as the Treasurer from time to time determines by a notice published in the Government Gazette. The current rate is 6 per cent fixed by a notice published in the Government Gazette dated 12 September 1997, p5159.
Consequently, I direct that the judgment below be varied by the inclusion of an order for payment of interest on the additional amounts of damages awarded by the Full Court at the rate of 6 per cent per annum from 2 August 2002. The effect of the decision in Nicol v Allyacht Spars (supra) is that the appellant who succeeds on appeal ought to be put in the same position that he would have been in had the damages been included in the original award both in terms of quantum and the interest thereon.

Costs of the Appeal and Cross-Appeals

The appellant seeks an order for the costs of the appeal from 3 August 2002 (the day after the trial) until 10 December 2003 on an indemnity basis, as a consequence of the O24A offer, together with a certificate for two counsel for the first day of the hearing of the appeal on 19 September 2003. In my opinion, the appellant is clearly entitled to that order.

Orders on the Appeal

It follows that the appellant is entitled to the following orders:
1.The appeal be allowed.
2.The judgment of the District Court dated 2 August 2002 be varied so that:
2.1the first and second respondents (defendants) pay the appellant (plaintiff) damages in the sum of $632,155.46 inclusive of interest payable up to 10 February 2004;
2.2the third respondent (defendant) pay the appellant (plaintiff) damages in the sum of $341,298.02 inclusive of interest payable up to 10 February 2004;
2.3the respondents (defendants) pay the appellant's costs of the action to be taxed on a party and party basis up to and including 5 December 2001 and thereafter on an indemnity basis;
3.1the respondents' (defendants') cross‑appeals be dismissed;
3.2the respondents (defendants) pay the appellant's (plaintiff's) costs of the appeal and cross‑appeals to be taxed on an indemnity basis;
3.3there be a certificate for two counsel in respect of the first day of the hearing of this appeal before the Full Court.