Marshall v Townsend
[2008] SADC 1
•15 January 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARSHALL & ANOR v TOWNSEND & ORS
[2008] SADC 1
Judgment of Her Honour Judge Shaw
15 January 2008
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - DUTY OF OCCUPIER
Plaintiff - employee of independent contractor attending at site to measure roof trusses - plaintiff fell from a ladder whilst exiting the roof area, carrying a sample truss.
Issues - occupier's liability - more than one contractor - breach of statutory duty - duty and standard of care - no contributory negligence
Damages agreed - judgement for the plaintiff against the fifth defendants - plaintiffs' claims against other defendants dismissed.
Occupational Health Safety and Welfare Act 1986; Wrongs Act 1936 (SA) s4(2), referred to.
LeCornu Furniture and Carpet Centre Pty Ltd v Hammill (1998) 70 SASR 414; Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 557; Vairy v Wyong Shire Council (2005) 221 ALR 711; Hackshaw v Shaw (1964) 155 CLR 614; Wyong Shire Council v Shirt (1980) 146 CLR 40 ; Brodie v Singlton Shire Council (2001) 206 CLR 572; Wheat v E. Lacon & Co Ltd [1966] AC 552; Monaghan v Wardrope & Carroll Ltd (1970) SASR 575; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Neindorf v Junkovic (2005) 222 ALR 631; 180 ALJR 341; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199; Kondis v State Transport Authority (1984) 154 CLR 672; Leichardt v Municipal Council of Montgomery [2007] HCA 6; Kondis v State Transport Authority (1984) 154 CLR 672; Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 ; Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Chappel v Hart (1998) 195 CLR 232; Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; Sungravure Pty Ltd v Meani (1964) 110 CLR 24; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563 ; Commissioner of Railways v Halley (1978) 20 ALR 409; Glavinas v Holdens Motor Company Limited [Unreported, Supreme Court of SA Bollen J, 25 October 1991]; Ragnelli v David Jones (Adelaide) Pty Ltd (2004) 90 SASR 232; Chicco v City of Woodville (1989) 150 LSJS 89; Reed v Peridis [2005] SASC 136, considered.
MARSHALL & ANOR v TOWNSEND & ORS
[2008] SADC 1Introduction
On 13 October 1998, the plaintiff (“Marshall”) was injured when he fell from a ladder at 82 Penola Road, Mt Gambier (“the site”), a residential premises owned by the first and second defendants (“the Townsends”). On that day, the Townsends were overseas.
The fifth defendants, Mr and Mrs Neale, (“Neale”) are partners in a stonemason business. In June 1998, the Townsends and Neale entered into a contract for the carrying out of the building work at the site,[1] which was in the nature of the construction of extensions to the existing residence and renovations of the house.[2]
[1] Exhibit P2
[2] The plan, Exhibit P15, depicts the intended extension and renovation. Also see photos, Exhibit P14
Neale was engaged as the principal builder.
Neale commenced the work on about 27 July 1998. Neale sub-contracted construction of the new roof over the extension to the fourth defendants. The fourth defendants, Mr and Mrs Telford, (“the Telfords”) are partners in a building business. Telford in turn, engaged Dahlsen’s, Marshall’s employer, to provide the trusses and timber necessary to construct the roof.
Pursuant to an arrangement between Telford and Jamie Walters, also an employee of Dahlsens, Marshall accompanied Walters to the site, in the course of his employment, in order to check the measurements for roof trusses.
Telford attended at the site to meet Walters and Marshall, who arrived before 9.30am. Walters and Marshall intended to check measurements for the roofing work by taking a smaller sample truss onto the roof. Neale was present at the site carrying out work pursuant to the contract. Walters and Marshall climbed onto the roof on a ladder provided by Telford (“the second ladder”). Telford was already on the roof. As Marshall commenced to descend from a different ladder (“the first ladder”) whilst carrying the roof truss, the first ladder moved under him causing him to fall and he suffered injuries. Damages have been agreed.
The Townsends are directors and shareholders of Timber Tech Engineering Pty Ltd (the third defendant), a company which specialises in turnkey construction projects.
The Townsends and the third defendant are said to have supplied certain labour and materials used in the building work at the site.
Marshall claims the defendants are in breach of a duty of care and breach of statutory duty.
The Issues
The following questions arise for determination. Firstly, who was the occupier of the building site at the time of the fall; secondly, whether the respective defendants owed a duty of care to Marshall; thirdly, what was the scope of any such duty of care owed by such defendants and fourthly, whether any such defendant breached its duty of care.
The important areas of dispute between the parties are the circumstances in which the first ladder came to be on the site, whether the nature and positioning of the first ladder breached a duty of care owed to Marshall and who was the occupier of the site at the time of Marshall’s fall.
The Plaintiff’s Case
The plaintiff alleged that all of the defendants owed a general duty of care and a duty of care as occupiers, pursuant to the Wrongs Act 1936 (SA) (now Part 4 of the Civil Liability Act 1936 (SA)).
The plaintiff claimed that all of the defendants were in occupation and/or had the necessary control either exclusively or in conjunction with each other, such that there was shared or a joint occupation.
The plaintiff claimed that the defendants breached their duty of care by failing to have a safe system of work in place, failing to ensure that the first ladder was of an appropriate type and/or properly secured, failing to warn the plaintiff of the condition of the ladder and its unsuitability for the task, failing to instruct people working at the site of the necessity to use appropriate and/or secured ladders, and/or to have in place an effective system of regular checking that these matters had been carried out.
The plaintiff further claimed that the defendants were in breach of their statutory duties under the Occupational Health Safety and Welfare Act 1986 (‘the Act’) and Regulations made thereunder, and those breaches gave rise to a civil cause of action. The plaintiff relied upon LeCornu Furniture and Carpet Centre Pty Ltd v Hammill[3] and Cox Constructions Pty Ltd v Dawes.[4]
[3] (1998) 70 SASR 414
[4] (1999) 73 SASR 557
The plaintiff alleged that he was never in a position to know of the intricacies of the relationships and dealings as between the various defendants.
The Contentions of the Respective Defendants
Each of the defendants denied that they were “occupiers” at the relevant time, and in any event, denied liability.
All the defendants have alleged that the fall occurred as a result of the negligence of Marshall.
The case for the first to third defendants is that they had given over occupation, possession and control to the fifth defendants and that there was no occupation by them, including no joint occupation or possession. The first and second defendants placed particular reliance upon their contract with the fifth defendants.
The fourth defendants contended that, as between Telford and Neale, Neale was liable for Marshall’s fall. On behalf of the Telfords, it was submitted firstly, that Telford was not an occupier of the premises for the purposes of the Wrongs Act 1936 (SA), and secondly, that s4(2) of the Act does not apply because even if Telford was a deemed employer, there was nothing over which he had control. Thirdly, Telford was not an occupier for the purposes of the Act and fourthly, there was no breach of any general duty of care.
The fifth defendants contended that the Townsends maintained some degree of occupancy of the premises pursuant to the building contract by engaging their own tradesmen. Further, at the time of the fall, the plaintiff was at the site pursuant to a contract between the fourth defendant and Marshall’s employer. It was this act which brought the plaintiff to the site and this act which required that a safe system of work be put in place. The fourth defendant had a special relationship with Dahlsens’ employees pursuant to his engagement of them in connection with the roofing work.
The fifth defendant submitted that at the time of Marshall’s fall, Telford was in occupation of the extension for the purpose of the visit by Dahlsens’ employees, including Marshall. Therefore, Telford owed a duty of care to Marshall. Telford breached that duty by failing to instruct Marshall to ascend and descend on the second ladder.
Credibility Findings
Marshall gave evidence and called Walters and an expert, Mr Waddell.
The defendants, Townsend, Telford and Neale each gave evidence in their own case.
I formed the opinion that Marshall was generally honest and forthright in his manner of giving evidence and that his evidence was generally reliable.
I formed the opinion that Walters was a careful witness, honest and generally reliable in relation to important factual issues in the case although I did not accept his evidence in relation to certain areas of dispute.
Telford gave evidence about his observations on the day of the fall. I formed the opinion that he was also an honest and reliable witness. In important respects, he supported the evidence of Marshall.
Where there was a conflict between Walters’ evidence and the evidence of Telford, I preferred the evidence of Telford.
Mr Waddell gave evidence of his expert opinion in relation to various safety and standards issues. I consider he was an honest and reliable witness. The weight to be given to his opinions is a separate matter.
Townsend gave evidence about the circumstances of his written and oral agreement with Neale. There was a conflict in relation to certain aspects of the oral agreement between Mr Townsend and Mr Neale. I formed the opinion that Mr Townsend was patently honest and endeavoring to assist the court.
Where there was a conflict between the evidence of Mr Neale and the evidence of Mr Townsend in relation to the written and oral agreement between them (which I will refer to later), I preferred the evidence of Mr Townsend.
In particular, I preferred the evidence of Mr Townsend as to any subsequent oral variation to the building contract[5] and the oral term of the contract as to the provision of labour.
[5] Exhibit P2
Neale, on the other hand, was a difficult witness. I formed the opinion that this was partly due to his personality and defensiveness during cross-examination. However, when his evidence is viewed in the light of the other evidence, I formed the opinion that in relation to important facts in issue, he was unreliable.
I turn to the important facts in issue and my findings.
Contract Between Townsends and Neale
The contract entered into between the Townsends and Neale for the carrying out of the building work was partly oral and partly in writing. There is a dispute as to the oral terms.
The written contract was a standard form document.[6] Neale completed the handwritten details before presenting it to the Townsends.
[6] Exhibit P2
The building contract set out the respective roles of the Townsends and the Neales in relation to the project.
Pursuant to the contract, Neale had authority to permit or refuse persons entry on to the site. The contract provided:
Possession of the site
The Owner authorises the Builder to:
9.1 let people enter the site and/or premises
9.2 refuse people entry
9.3 remove unauthorised people.
The owner and any people he authorises may visit the site but must not disrupt work.
This term of the contract, ensured that Neale had control of the site.[7]
[7] T762
The contract also provided that the work as defined in the building contract, was the responsibility of the owner from the date of practical completion.[8] In addition, possession was not permitted to the owner until final payment has been made to the builder.[9] Further, Neale agreed to take out and maintain public liability insurance of $5 million in respect of the building work at the site which insurance was required to be in place until practical completion.[10]
[8] Exhibit P2, cl.22
[9] Exhibit P2, cl.23
[10] Exhibit P2, cl. 14 Schedule item G.p18
The Building Contract[11] permitted the Townsends to supply materials provided that Neale considered them to be suitable.[12]
[11] Exhibit P2
[12] Exhibit P2 C/12
The Townsends in fact supplied certain materials for use in the building work as provided for in the Building Contract. In the main, these items were paid for by the third defendant.
The Evidence in Relation to Provision of Labour
There was a conflict between Townsend and Neale as to the oral agreement for the provision of labour. Townsend gave evidence that prior to the execution of the written contract in June 1998, and prior to Neale quoting for the job,[13] Neale enquired about whether Kym Jellesma, an employee of the third defendant, could be made available to work for him on the job.[14] Townsend said that it was agreed this would occur at no cost to Neale. Jellesma was to work under Neale’s supervision and direction.[15] Other labour would be made available to Neale also at no cost, to work under Neale’s direction at the time of the pouring of the concrete for the renovations.
[13] T395; 404-407
[14] T405.17
[15] T406, 415.20
On the other hand, Neale gave evidence that the conversation concerning the provision of labour occurred on 27 July 1998, namely his first day on the job.
Neale said that Townsend told him that he could provide two extra persons to help him, namely Jellesma and Gartner because he wanted the job cleaned up by Christmas[16]. Neale said that Mr Ferraro, a plumber engaged by the Townsends, also worked on the site, but he was not responsible for him. The Townsends retained their preferred electrician, Gabriel Electrical.[17] The Townsends paid for these tradesmen direct.
[16] T699.5-14
[17] Exhibit P12
The time sheets of Mr Jellesma and Mr Ferraro showed that they assisted Neale at the site whilst employees of the third defendant.[18] Neale agreed that Jellesma was under his supervision on the date of the fall.
[18] Exhibits P8 & P9
Findings in Relation to the Contract between Neale and Townsend
I prefer the evidence of Townsend where it conflicts with the evidence of Neale. I find that the contract between the Townsends and Neale was partly oral and partly in writing. I find that prior to the execution of the written contract, Neale requested Townsend to supply additional people. Townsend agreed.
Neale also suggested that Kym Jellesma be made available to work on the job.
Mr Townsend agreed to provide Jellesma’s services at no cost to Neale.
I find that Neale provided a quotation for the job knowing that the Townsends had given him an assurance that additional labour would be provided at no extra cost to Neale.
Conclusion in Relation to the Townsends and Occupancy
Although the Townsends were the registered proprietors of the site, possession of the site was given to Neale, pursuant to the building contract.
I find that the agreement for the supply by the Townsends of certain specialist tradesmen did not alter the contractual relationship between the Townsends and Neale.
Although employees of the first three defendants worked on the site, they were in fact at all times under the control of Neale and they were not at the site pursuant to any interests of the first three defendants.
I find that although there may have been discussions between Townsend and Neale over time, the first three defendants did not manage the works nor exercise any control over the site once the work commenced. I am of the view that irrespective of the nature of the arrangement between the Townsends and Neale as to the provision of additional labour on the site, it did not have the result that the first three defendants were in control of the site.
In my view, the Townsends did not maintain some occupancy of the premises and nor were they in joint occupancy of the premises.
The Subcontract between Neale and Telford
Neale contracted with Telford to supply materials and labour to frame the roof, to supply materials and labour for the construction of the main roof over the new extension, to supply materials and labour to construct a veranda to match the existing rear of the new extension, and to supply labour only for the second fixings to the extension. Telford provided a quote to Neale on 6 June 1998.[19]
[19] Exhibit P6
Prior to 13 October 1998, Telford engaged Dahlsen’s Building Centre, and its employee Jamie Walters, to design and manufacture the roof trusses for the subcontract works.[20] There were also telephone discussions between Mr Telford and Mr Neale.[21]
The Events of the 13th October 1998
[20] Dahlsen’s estimate prepared by Jamie Walters
[21] T552
I make the following factual findings.
Not long before 13 October 1998, Neale had contacted Walters directly with a request that he “get a hurry up” with the manufacture of the trusses.[22]
[22] T287.28
Walters said that he attended the site with another Dahlsen’s employee, Dino Breslin, either a week before or a day before the accident.
Telford said he recalled a visit by Walters and Breslin but said it was after the accident. In relation to the conflict between Telford and Walters upon this issue, I prefer the evidence of Telford.
Walters was instructed by his supervisor at Dahlsens to contact Marshall to take Walters to the site. Marshall had not been to the site before 13 October 1998.
I find that on 12 October 1998, Telford and Walters arranged to meet the following day at the site between 9.00am and 9.30am, to check measurements for roof trusses.
It had not been agreed and Telford had no expectation that Walters would bring another person with him.
By 9.00am on 13 October 1998, Neale and Jellesma had erected scaffolding along the eastern wall in what was a former laundry (“the scaffolding”).
It was over 2 metres in height but did not have a guardrail.
Contrary to the evidence of Neale, I find that it had a metal drum on top of it in an upturned position.
I find that it was probably Telford’s second visit to the site, the first having occurred in relation to the preparation of the quote.[23]
[23] Exhibit P6
Telford attended at the site at about 9.00am. He saw Neale in the laundry where he was working on top of the scaffolding on the eastern wall.
Adjacent to the scaffolding with its treads parallel to the scaffolding, stood an A frame aluminium stepladder (“the first ladder”). It was unsecured. The top of it was out and down a distance from the scaffolding.
Telford said that he observed the first ladder at the time of speaking to Neale, but he took little notice of it. Kym Jellesma was standing in the laundry.
Neale on the other hand, said that although he erected scaffolding in the laundry area on 13 October 1998, he did not at any time get up onto the scaffold. He said it must have been on 14 October 1998 that Telford saw him on the scaffold. He said he never used an A frame ladder on the site and he did not see it until after Marshall’s fall.
I prefer the evidence of Marshall and Telford to that of Neale. I find that the first ladder was adjacent to the scaffolding and that Neale was on the scaffolding in the laundry when Telford arrived at the site.
Having informed Neale of the purpose of his visit, Telford erected the second ladder against the skillion roof of the old part of the house[24] (“the second ladder”). I prefer the evidence of Telford insofar as it may be inconsistent with the evidence of Walters, or indeed, Neale, in relation to the location of the second ladder. This was a 12 foot industrial strength aluminium ladder.
[24] At the place marked L2 on Exhibit P15D
Telford ascended by the second ladder to a flat skillion roof. This was covering the room adjacent and to the west of the area on Exhibit P15 marked “family”. He commenced to make a point of access into the existing roof for himself and Walters at a point above the rear doors to the existing house. It was necessary to check the angle of the truss because the new trusses had to be exactly the same as the pitch of the old roof.
Marshall and Walters arrived at the premises before 9.30am, in order to check the trusses on site before the trusses were manufactured.
Neale was aware of the presence of both Marshall and Walters at their arrival and before each of them climbed onto the roof.
Neale knew the reason for their presence and was aware it required them to climb onto the roof to check measurements of the truss.
Because Neale had the authority to exclude persons from the site, and he knew of their presence, I infer that Neale permitted Marshall’s presence on the site.
Walters and Marshall ascended the roof via the second ladder. Walters was carrying a sample truss. Telford did not see them prior to their arrival on the roof. Telford was not given a reason for Marshall’s presence although he had previously seen him at building sites as a sales representative. Marshall did not enter the roof space with Telford and Walters.
Marshall descended and reascended the second ladder to obtain something from his utility at the direction of Walters, not Telford.
While Marshall was on the roof, Marshall observed Neale on the scaffolding and saw Neale climb down the first ladder without any apparent difficulty.
I find that Neale was aware of the presence of Marshall and Walters on the site and their reason for being there and that it would be necessary for them to climb onto the roof to check the measurements of the truss. I find that in this knowledge, Neale descended via the first ladder. At about 9.30 am, Neale went to the shed for a break. He left the unguarded scaffolding and first ladder in position.
Walters told Marshall that the sample truss would have to go back to the plant.[25] Walters exited the roof space in front of Telford and passed the sample truss to Marshall. Telford turned to face the roof in order to close the opening that he had made.
[25] T215.34
Walters headed towards the second ladder when he noticed that Marshall was headed towards the scaffolding in the laundry.
Marshall decided to descend via the first ladder because his attention was drawn to it by Neale when Neale had descended via the first ladder about five to ten minutes before. Marshall carried the sample truss across the skillion roof and onto the scaffold. He placed the truss down on top of the scaffold and stepped onto the first ladder. Although Marshall’s precise movements are not clear, I find that the first ladder moved under him and he fell to the ground. Telford rushed to assist Marshall. He saw the aluminium A frame ladder, namely the first ladder that he had earlier seen in the laundry, underneath the scaffold.
Sometime after Marshall’s fall, the first ladder disappeared and has not been seen again.
Admission by Neale
Walters gave evidence that whilst Marshall was being assisted, he overheard Neale make certain statements. Walters said:
I remember after the initial concern about the fall, that he [Neale] became quite stressed and made mention regarding the ladder, that the ladder wasn’t safe, and Jimmy Lockwood wouldn’t be too happy about it.[26]
[26] T246-247
(Jimmy Lockwood was an employee with the Department of Labour and Industry).
Neale denied saying anything about being worried about the implications of Marshall’s fall. I find that the statements in question were made by Neale in the presence of Walters. I find that the statements show that Neale has not been frank about his knowledge of the presence of the first ladder. I find that sometime after the fall, the first ladder was removed from the site by Neale or at his direction.
Neale said he was in charge of the site at the time of the accident. Neale was required to report the accident. I find that he intentionally refrained from doing so because he knew that the Department of Labour and Industry and Mr Lockwood in particular, would take an adverse view of the accident because of Neale’s use of an A frame ladder on this site.
Walters gave evidence of a conversation with Telford on the following day. It is unnecessary to refer to that evidence in detail because in my view, it is not a proper basis for the drawing of an inference that Neale made an admission to Telford at that time.
Expert Evidence
Mr Waddell in his report[27] provided expert evidence and gave oral evidence in relation to safe work practices. He is a consulting engineer with relevant experience in ergonomics. He expressed the view based on engineering and ergonomic principles, that an A frame ladder should not be used to gain access to a scaffold and that the top tread of the ladder should not be stood on.
[27] Exhibit P5
An A frame ladder, as described in the evidence, did not have a safe hand and foothold or other kind of support, to reduce the risk of a fall. Further, such a ladder is inherently unstable.
His opinion was that the absence of a guardrail on the scaffold was likely to increase the risk of a fall.
Any movement to the A frame ladder from the scaffold or movement onto the ladder would not be supported by a hand support if there was any instability.
Indeed, Mr Neale acknowledged that it was unsafe to use a stepladder to access scaffolding.
It was submitted on behalf of the fourth defendants that it was inappropriate for Mr Waddell to rely on various Acts, Regulations and Standards as detailed in his report.
However, I accept that Mr Waddell’s opinions were arrived at by reference to the application of the sciences in which he had expertise, to particular facts.
I find that any differences between Marhsall’s evidence and the information provided to Mr Waddell upon which he formed the views expressed in his report, were immaterial to his views. Further, those differences did not adversely affect my view of Marshall’s credibility or reliability.
It was contended that if Marshall had not reached for the sample truss, it was unlikely that Marshall would have fallen. However, there was no apparent warning or restriction on the manner in which the first ladder was able to be used. Further, the positioning of the first ladder next to the scaffolding and the use of it by Neale, might create the impression that it was to be used in the manner subsequently attempted by Marshall.
If an A frame ladder was to be used to access scaffolding, at the very least, it was possible for measures to be taken to reduce its inherent instability and the risk of a fall. For example, if the A frame ladder had been lashed to the scaffold, this would have reduced the tendency of the ladder to rock if the surface was uneven. In addition, the A frame ladder could have been positioned so that it was side on to the scaffolding. Neither of these relatively simple measures which may have reduced the risk of a fall, were adopted in the present case.
Responsibility for the First Ladder
I find that the first ladder and the adjacent scaffolding was the responsibility of Neale. It was likely that the first ladder had been placed in that location either by Neale or under his supervision or direction on the morning of 13 October 1998.
The first ladder was available to access the scaffolding in the laundry and Neale was in occupation of the scaffolding on the morning of the accident.
I am of the view that the placement of the first ladder in that location at that time created a risk of danger.
I find that in all the circumstances, the first ladder was inherently unstable and its juxtaposition to the scaffolding was dangerous per se.
In relation to Mr Waddells’ evidence, I accept that the Australian Standards are not legally binding and a breach of a particular standard at any given time is not of itself of particular significance.[28]
[28] Chicco v City of Woodville (1989) 150 LSJS 89 and Reed v Peridis [2005] SASC 136
However, in this case, in my view, the nature and location of the first ladder, positioned as it was for accessing and egressing scaffolding at a building site, presented a high risk of danger, if used for that purpose. In the present case, the first ladder did become unstable as Marshall began to descend, causing Marshall to fall and injure himself.
There were a number of measures available to Neale to reduce the risk of a fall from the first ladder.
I find that the first ladder was unsafe for access to or egress from the scaffolding.
I find that Neale’s conduct, namely placing the first ladder next to the scaffolding and descending the first ladder from the scaffolding, contributed to Marshall’s decision to exit the roof using the first ladder. Indeed, Marshall’s attention was drawn to the first ladder by Neale’s conduct. Neale was known to be an experienced builder. He descended without any difficulty. Because this ladder provided a shorter route back to Marshall’s vehicle, and the conduct of Neale created the impression that the first ladder was safe, Marshall decided to descend using the first ladder.
The conduct of Neale in using the first ladder created an impression that it was safe to use the ladder in connection with the activities at the site.
Neale ought to have known that the use of the first ladder in the circumstances was dangerous and contrary to safe work practices.
I find that the removal of the first ladder very soon after the fall, and Neale’s statements after the fall in the presence of Walters, support the finding that Neale knew of his responsibility for the positioning of the first ladder. I find that Neale ought to have known that the first ladder was unsafe at the time of Marshall’s fall.
The Law
Whether a duty of care is imposed upon any or all of the defendants is not limited to a consideration of whether a particular defendant is an “occupier” within the strict meaning of that word. The crucial issue is whether any one or more of the defendants owed a duty of care to the plaintiff arising from the whole of the circumstances as they existed on the date of the accident and preceding that date.
Occupiers owe a duty of care to entrants to take reasonable care to avoid foreseeable risks of injury arising out of the condition of the premises.
The duty of care at the time of the accident was imposed by section 17C of the Wrongs Act 1936 (SA). Whether an occupier is liable to Marshall or others visiting the site, is to be determined in accordance with the principles of negligence, subject to the Wrongs Act 1936 (SA)
In Hackshaw v Shaw,[29] Deane J stated:
Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to her or him.
[29] (1964) 155 CLR 614, 662
In Wyong Shire Council v Shirt[30], Mason J stated, in relation to the issue of reasonable foreseeability:
In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the plaintiff’s position.
[30] (1980) 146 CLR 40 at 47
The scope of the duty of care is restricted where there is an obligation to take reasonable care for one’s own safety and where the risk is obvious.[31] The defendants would not be liable for the usual or common perils incidental to the site. The duty will be discharged by the exercise of reasonable care.
[31] Brodie v Singlton Shire Council (2001) 206 CLR 572
Occupiers Liability –the Wrongs Act 1936 (SA)
Whether a person is an occupier is governed by Part 1B of the Wrongs Act 1936 (SA), particularly s.17B of the Act. ‘Occupier of premises’ is defined in s17B of the Wrongs Act 1936 (SA) as a person in occupation or control of premises. It is possible for more than one person to be the occupier of the same premises at the same time and for such occupiers to be under a duty of care to entrants.[32] Building contractors may share occupation of the site with the owner.[33]
[32] Wheat v E. Lacon & Co Ltd [1966] AC 552
[33] Monaghan v Wardrope & Carroll Ltd (1970) SASR 575.
Section 17C(2) of the Wrongs Act 1936 (SA) sets out the indicia which a court must take into account in determining the standard of care to be exercised by an occupier. Section 17C of the Act provides:
(1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account—
(a) the nature and extent of the premises; and
(b)the nature and extent of the danger arising from the state or condition of the premises; and
(c)the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d)the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)the extent (if at all) to which the occupier was aware, or ought to have been aware, of—
(i) the danger; and
(ii) the entry of persons onto the premises; and
(f)the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)any other matter that the court thinks relevant.
(3)The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.
(4)Subject to any Act or law to the contrary, an occupier's duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract.
(5)Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subs, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care.
(6) An occupier owes no duty of care to a trespasser unless—
(a)the presence of trespassers on the premises, and their consequent exposure to danger, were reasonably foreseeable; and
(b)the nature or extent of the danger was such that measures which were not in fact taken should have been taken for their protection.
In the present case, there is no need to distinguish between the principles applicable at common law and the statutory provisions.[34]
[34] Ragnelli v David Jones (Adelaide) Pty Ltd (2004) 90 SASR 232
In Wyong Shire Council v Shirt,[35] Mason J observed in relation to the issue of foreseeability:
A risk of injury which is quite unlikely to occur ..... may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being foreseeable we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
[35] Supra at p662
Findings in Relation to Neale’s Responsibility
At the time of Marshall’s fall, Neale was the principal contractor.
On 13 October 1998, he was at the site and engaged in performing the work which he contracted with the Townsends to perform.
Neale retained control of the site and of the works including coordination of trades and suppliers whose work or materials had not formed part of his quotation.
Neale had the contractual right to control entry onto and around the premises and he was obliged to co-ordinate sub-contractors. Neale could permit or exclude visitors pursuant to this contract with the Townsends. He had a duty of care to those visiting the site.[36]
[36] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, pp 30, 45, 53
I have found that although the Townsends provided labour pursuant to their agreement with Neale, this did not have the effect that the first three defendants exercised management or control of the site. I find that the Townsends were not occupiers for the purposes of the Wrongs Act 1936 (SA).
I find that based on the terms of the contract and the events of 13 October 2003, none of the first three defendants was in joint possession or otherwise exercised any control over the site at the time the plaintiff fell. I will refer to this finding in more detail later.
Neale had contracted the roofing work to Telford.
On the day of the plaintiff’s fall, Telford attended at the site in relation to preparatory work. On that date, Neale was working in the laundry area.
I find that Neale had already provided implicit permission for Walters to come and go from the site. Neale was in control of the scaffolding and of the first ladder.
I find that at common law and pursuant to the provisions of the Wrongs Act 1936 (SA), Neale as the principal contractor, had control of the site, including the extension and was in the position of an occupier. He had an obligation to take reasonable care to avoid a foreseeable risk of injury to those persons who might enter the site in connection with the performance of the renovations.[37] That is, he owed a duty of care for the safety of persons entering the premises including subcontractors such as Marshall.
Criteria in Section 17C of the Wrongs Act 1936 (SA) in relation to Neale
[37] Hackshaw v Shaw (1984) 155 CLR 614, 662; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 484; Wyong Shire Council v Shirt (1980) 146 CLR 40, 47
It is necessary to have regard to the provisions of section 17C(2) of the Wrongs Act 1936 (SA) in order to determine the standard of care to be exercised.
In relation to the nature and extent of the premises, it was a private home, but the renovation project involved attendances by different people.
In relation to the nature and extent of the danger arising from the state or condition of the premises, I find that the first ladder was unsafe and was positioned in such a way that its use gave rise to the risk of a fall two meters onto concrete whereby serious injury could result.
In relation to the circumstances in which Marshall suffered his injuries, he was a member of the class of persons likely to come upon the site in the course of the renovations. His presence was permitted by Neale. The first ladder was positioned in a manner which indicated it was available to be used for egress. This was confirmed by Neale descending the first ladder.
I have regard the plaintiff’s age, namely 42 years. I find that the plaintiff was not specifically equipped to recognise the danger.
I find that Neale was using the first ladder and that he was aware, or at the very least, ought to have been aware of the danger presented by the first ladder. Further, Neale was aware of the entry of Walters and Marshall on the site.
I find that Neale owed a duty to Marshall to take reasonable care to protect Marshall from harm during his attendance at the site.
I find that Neale placed a dangerous ladder (by reason of its type and proximity) in a position such that an entrant to the site might be led to believe that the ladder was intended for use to access the scaffolding and use it for access and egress from the roof via the scaffolding, and in doing so, fall and cause themselves injury. This is indeed what happened. Reasonable, practical and economic measures could have been taken to reduce or eliminate the risk. The first ladder could have been placed vertically to the scaffold and/or the ladder could have been secured, so as to prevent it from becoming dislodged, falling or slipping. Had these measures been implemented, the accident would not have occurred.
In the circumstances of this case, bearing in mind the presence of a known risk of danger in relation to the use of the first ladder for egress from the scaffolding in the laundry area, Neale was under a duty to warn Marshall of the potential source of harm.
I find that Neale did not take any measures to eliminate, reduce or warn against the danger presented by the first ladder.
I am satisfied on the balance of probabilities, that if proper measures had been taken to secure the first ladder or otherwise to eliminate its instability at that location on the site, Marshall’s fall would have been prevented.
Having regard to the criteria set out in s17C of the Wrongs Act 1936 (SA), I find that the fifth defendant was in breach of his duty of care to the plaintiff.
Conclusion in Relation to Neale
Neale, as the occupier of the premises had a duty to take reasonable care for the safety of persons entering the premises, including subcontractors.
Neale had a duty to consider safety issues arising form the presence of subcontractors at the site.
Neale had engaged Telford to undertake the roofing work.
It was reasonably foreseeable that Telford and any other persons engaged by him, would attend at the site at any time, for the purposes of carrying out the roofing work and access and egress the roof.
Neale was under a duty to ensure that any ladder providing access to the roof, for which he was responsible, was safe.
The first ladder provided such access. I have found that the first ladder was unsafe for that purpose.
I accept that Neale was not under a duty to supervise the manner in which subcontractors engaged by Telford performed their tasks pursuant to the subcontract. However, in the present case, Marshall’s injuries were caused by “the state of the premises”,[38] in that a ladder which was used by Neale to access scaffolding in the laundry, also provided a means of accessing the roof. It was reasonably foreseeable that any contractor, or employee of a contractor, who observed the first ladder in that location and, in addition, who saw the ladder being used for that purpose by Neale, might deduce that it was safe for the purpose for which it was being used. I find that the risk of injury to an invitee or to an employee of a subcontractor attending at the site and falling from the unstable and unsafe first ladder was real and foreseeable. It was not far-fetched or fanciful. It is clear that Neale could have taken measures to prevent the first ladder from becoming unstable or otherwise unsafe for the purposes of accessing the roof.
[38] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd[2001] SASC 199 at [37]
Accordingly, I find that Neale breached his duty of care to Marshall.
In the event, I do not need to consider whether the plaintiff could succeed in the alternative claim against Neale brought pursuant to section 23 of the Act.
Finding in relation to Telford’s responsibility
I turn to a consideration of whether Telford owed a duty of care to Marshall and whether Telford was an occupier at common law or pursuant to the Wrongs Act 1936 (SA).
When Telford accessed the site on the date of Marshall’s fall, he provided a safe ladder, which was used by both Marshall and Walters. He had expected only Walters to attend, who was known to him as an experienced truss designer/manufacturer. Walters often visited worksites and entered roof spaces for the purpose of checking truss angles. Telford also knew Marshall from his earlier attendances at other jobs. He was regarded as very reliable.
Telford was engaged only in preparatory work. Telford was at the site in order to allow access to the roof.
I find that it was not reasonably foreseeable to Telford that any employee of Dahlsen’s would ascend onto the roof other than by using the second ladder which he had placed in position for that purpose. Once Marshall had arrived on the roof, there was no reason for Telford to expect that Marshall would exit the roof down the first ladder. I find that there was nothing that Telford did that created any risk to either Walters or Marshall. I find that the only risk was that which was created by the actions of Neale.
It was Neale who was responsible for the presence of the first ladder, a ladder unsuitable for access and egress to this site.
I bear in mind Neale’s submissions as to the “special” relationship between Telford and Marshall and that it was Telford who was responsible for Walters and Marshall attending at the site on that day carrying a sample truss.
However, Neal was also present at the site on the morning of Marshall’s fall for the purpose of performing his contract with the Townsends.
Most importantly, he created the danger presented by the first ladder – he erected the scaffold, placed the first ladder against it and used the first ladder on that very morning.
I find that it was not reasonably foreseeable to Telford that an experienced builder like Neale who was engaged in his work on site at the same time as Telford climbed onto the roof, would place an unsafe ladder at the site and use it in the course of performing his work. I find that it was reasonable for Telford to not take particular notice of the first ladder in those circumstances.
I find that there was no duty in the circumstances of this case, for Telford to provide a safe system of work at this site other than the provision of the safe second ladder for the Dahlsens employees to access or exit the skillion roof near the point of entry. Control of the site was not assumed by Telford. It was not relinquished by Neale.
I find that on the morning of 13 October 1998, Neale was the occupier and remained in total control of the site.
Consideration of Section 17C of the Wrongs Act in Relation to Telford
If, contrary to my finding, Telford was in joint occupation of the extension so as to give rise to a duty of care to Marshall, it is necessary to have regard to the provisions of s17C of the Wrongs Act 1936 (SA).[39]
[39] As it was then. Identical provisions continue as ss19-22 Civil Liability Act 1936
I note that an occupier is not ordinarily required to supervise the manner of work of an independent contractor in order to ensure the safety of the contractor’s employees.[40]
[40] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement [2001] SASC 199 at [37] – [38]
Even if there was a duty of care upon Telford at large, I find that the scope of any duty was restricted to that over which Telford had some control. I find that the events which occurred were beyond Telford’s control. He was not aware of Marshall’s presence until he arrived on the roof. Marshall had ascended using the ladder provided by Telford for that purpose.
I have considered the nature and extent of the premises. I find that Neale was responsible for ensuring that the premises were properly supervised. Further, Neale was authorised to control the movement of people onto and around the site.
I have considered the nature and extent of the danger arising from the state or condition of the premises. I find that Telford had no right or obligation to direct what should be done at the site. Telford was a subcontractor who intended to be on the site for only a short time and only for a specified purpose. He had not commenced the subcontract works beyond the preparatory work.
I find that in all the circumstances, it is not appropriate to impose a standard of care upon him that would require him to perform some kind of supervision and control of all the scaffolding and ladders at the site for which he was not responsible, in particular, where the contracted builder was known to be on site.
I have considered the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger.[41]
[41] s17C(2)(c)
Marshall arrived at the site with Walters. Both gained access to the roof. Marshall became exposed to danger by Neale’s actions in providing for descent from the scaffolding via the first ladder and himself choosing to use that means of descent in Marshall’s presence.
I have taken into account the age of the plaintiff at the time of the accident and his ability to appreciate the danger.[42]
[42] s17C(2)(d)
I have also considered the extent to which the occupier was aware or ought to have been aware of the danger and the entry of persons onto premises.[43]
[43] s17C(2)(e)
I have found that Neale was the occupier. Neale was using the first ladder. I find that although Telford knew of the existence of the first ladder, he was making a point of access into the roof when Marshall commenced his descent using the first ladder. I find that Telford ought not to have anticipated or reasonably foreseen that Marshall might exit by a different ladder. I find that there was nothing that required Telford to do anything by way of warning or direction.
I have also considered the measures, if any taken to eliminate, reduce or warn against the danger.[44]
[44] s17C(2)(f)
I find it was reasonable and practicable for Telford, as a subcontractor, expecting to meet an independent contractor well familiar with the risks presented by rooves and ladders, to erect a safe ladder (the second ladder) for the independent contractor to use. It was erected at a location which provided a safe means of access and egress to the skillion roof near the point of access that Telford made.
I find that it was not reasonable or practicable for Telford to take any further measures given that the principal contractor, Neale was on site and in control of the specific area where the first ladder was situated.
In relation to a consideration of any other matters,[45] I bear in mind that Marshall was the employee of an apparently competent independent contractor.
[45] s17C(2)(h)
Even if there was a duty owed by Telford and the events were within the scope of that duty, I conclude that Telford would not be in breach of that duty.[46]
[46] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47
Neale created or permitted the risk presented by the “first ladder” and the scaffolding to exist. When Telford saw the first ladder and scaffolding, it was being used by Neale. Telford did not see Neale leave the scaffolding.
Furthermore, Neale’s conduct was the causal element in Marshall’s decision to use the “first ladder”. Marshall had already successfully used the safe ladder supplied by Telford and gave evidence that he would have not gone down the “first ladder” if he had not seen Mr Neale use it.
In contrast, Telford created no risk to the plaintiff. He supplied and erected a safe ladder thereby providing a safe means of access to and egress from the skillion roof near the point of access
Telford did not depart from the standard of care required of him, by failing to tell Marshall to go down the same ladder he used to come up onto the roof, or failing to tell Neale that Neale’s method of work, scaffold and ladder was unsafe.
Even if, contrary to my finding, the actions or inaction of Telford created a risk, his culpability was nominal when compared to the risk created by Neale. Therefore, I would have taken the view that the Court ought to exercise its power pursuant to s26 of the Wrongs Act 1936 (SA) to exclude Telford from any liability to make contribution.
Conclusion in Relation to the Townsends
I have found that Neale was the occupier of the site including the extension.
In my view, pursuant to clause 9 of the building contract, the Townsends had a restricted right of access to the building site, namely on condition that they did not disrupt the building work.
Even if some residual duty of care applied to the Townsends in relation to the work site, this duty was discharged by engaging Neale, an independent contractor, who was a reputable, highly regarded general builder and supervisor to carry out the renovation work, on the terms evidenced by Exhibit P2.[47]
[47] T393.25; 394
The injury to Marshall occurred at a time when Neale was the occupier of the site performing the work to which the Building Contract specifically related. Neale had engaged Telford who sourced roof trusses from Marshall’s employer.
Any direct dealings between the Townsends and contractors on the project had no connection with Marshall’s presence on the site on 13 October 1998.
In my view, the building work was not carried out as a joint or concurrent project with the first three defendants. I do not accept that the Townsends acted as project managers.
The third defendant was in the position of a labour hire organisation. The third defendant’s employees, Jellesma and Gartner were under the supervision, direction and control of Neale.
I find that in any event, there was no negligent act or omission of any employee of any of the first three defendants, that contributed to Marshall’s injuries. There was no evidence of control at the time of Marshall’s fall, by any of the first three defendants.
In the circumstances of this case, no duty of care was owed to Marshall by any of the first three defendants. A reasonable person in the position of the first three defendants would not have foreseen that their conduct involved a risk of injury to Marshall, or to a class of persons including Marshall.
In any event, even if the first three defendants or any one of them, owed the plaintiff a duty of care, having regard to the criteria set out in s17C of the Wrongs Act 1936 (SA), I find that there has been no breach of any duty by any of the first three defendants.
Breach of Statutory Duty
Contentions of the Parties
The plaintiff submitted that the defendants owed a non-delegable statutory duty of care to Marshall and were in breach of that duty.
The plaintiff submitted that the duties of the defendants pursuant to the Act and more particularly, the Regulations under the Act are more onerous than their duties at common law. It was submitted that as a matter of statutory construction, the Act and Regulations give rise to a non-delegable duty of care to ensure that reasonable care is taken.
The plaintiff submitted that this statutory duty is not limited to particular relationships or types of ultra hazardous activities that the common law requires to establish such a duty: Kondis v State Transport Authority[48]. Rather, it was simply a matter of statutory construction and the application of the decision in Cox Constructions Pty Ltd v Dawes[49]. The plaintiff relied upon the decision in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd,[50] where section 4(2), 19(1) and 23 of the Act were discussed.
[48] (1984) 154 CLR 672
[49] (1999) 73 SASR 557,570
[50] [2001] SASC 199 [paras 48-57]
The defendants argued that if a duty was owed, it had been discharged by engaging competent and qualified independent contractors. The first three defendants engaged Neale. Telford contended that he had engaged Dahlsens as an independent contractor in a field in which Dahlsens had expert knowledge.
The defendants each submitted that even if a non-delegable statutory duty of care existed, which was denied, there was no breach.
The Law
In certain circumstances, breach of a statutory duty may give rise to a civil remedy. [51]
[51] Fleming 9th Edn p 13
The question of whether a civil cause of action arises from any breach of the Act is not clear-cut.[52]
[52] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement [2001] SASC 199 at [46]
The general principles are discussed in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd[53]. It is sufficient for my purposes to quote from the judgment of His Honour the Chief Justice at paras 40 and 41:
40.In some cases courts have treated a duty of care as personal or non‑delegable, meaning that the duty of care is not discharged by employing a qualified and competent independent contractor to perform the task as a result of which, or in the course of which, the duty of care arises. In such a case the breach of the duty of care by the act or omission of the independent contractor will be a breach of the duty owed by the person who retained the independent contractor. The matter is most simply expressed by saying that in such cases the relevant duty is a duty to ensure that reasonable care is taken.
41.Such a duty has been imposed on employers in relation to the duty to provide a safe system of work, a safe place of work and adequate plant and equipment: see Kondis v State Transport Authority (1984) 154 CLR 672 at 680 Mason J. Such a duty has also been imposed on occasions on an occupier of premises: see Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 and Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313.
[53] [2001] SASC 199
His Honour the Chief Justice explained the kinds of circumstances and the nature of the relationships where such a duty might be imposed. His Honour referred for example to, where the employer of the contractor requires the contractor to undertake tasks which carried an inherent risk or danger to others. A further example was where the nature of the relationship between the employer and the contractor imposed a particular responsibility for the safety of the contractor or he was otherwise unusually vulnerable.
The Legislation
The Act provides the following definition:[54]
[54] Section 4(1)
Occupier in relation to a place means a person who has the management or control of the place.
Section 4(2) of the Act provides:
(2)For the purposes of this Act, where a person (the contractor) is engaged to perform work for another person (the principal) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, will be taken to be employed by the principal but the principal’s duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.
An employer or self-employed person shall take reasonable care
(a) to protect his or her own health and safety at work; and
(b)to avoid aversely affecting the health or safety of any other person (not being an employee employed or engaged by the employer or the self-employed person) through an act or omission at work.
Section 19(1) of the Act provides:
19.(1)An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular –
(a) shall provide and maintain so far as is reasonably practicable –
(i)a safe working environment;
(ii)safe systems at work;
(iii)plant and substances in a safe condition; and
(b) shall provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and
(c) shall provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.
Section 22 of the Act provides:
22. An employer or a self-employed person shall take reasonable care –
(a) to protect his or her own health and safety at work; and
(b)to avoid adversely affecting the health or safety of any other person (not being an employee employed or engaged by the employer or the self-employed person) though an act or omission at work.
Section 23 of the Act provides:
Duties of occupiers
The occupier of a workplace must ensure so far as is reasonably practicable-
(a) that the workplace is maintained in a safe condition; and
(b) that the means of access to and egress from the e workplace and safe.
Occupational Health and Safety Regulations
The plaintiff contended that the defendants were in breach of certain regulations under the Act. The plaintiff relied upon Division 2.1 relating to requirements for safe access and egress in relation to the workplace.[55]
[55] Plaintiff’s written submission para 4.4.2
Telford and Breach of Statutory Duty
The plaintiff contended that in the circumstances of Marshall’s fall, Telford breached a non-delegable statutory duty to the plaintiff.
I am not necessarily convinced that a civil remedy is available for a breach of statutory duty in this case.
Assuming that a civil remedy is available, I turn to a consideration of each of the plaintiff’s contentions.
Firstly, the plaintiff contended that Telford breached his duties under the Act as a deemed employer, namely under section 4(2) of the Act.
In my view, Dahlsens as the contractor, was engaged by Telford, to perform work in the course of a trade or business carried on by Telford as the principal.
Therefore, Dahlsens and any person employed by that company to carry out its work, will be taken to be employed by Telford.
However, section 4(2) of the Act expressly limits the principal’s duties in relation to a contractor “to extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor”.
In my view, Telford did not have the kind of control over the Dahlsen’s employees, that an employer would have. Dahlsens had been contracted by Telford to undertake a task which, in my view, did not carry with it an inherent and high risk of danger to others. Telford did not undertake a particular responsibility for Dahlsen’s employees.
Telford had no prior knowledge that Marshall would be on the site. Telford was unaware of Marshall’s presence until he had ascended the roof using the ladder provided by Telford.
Walters and Marshall attended at the site on the day of Marshall’s fall to check measurements in relation to the proposed construction of trusses off-site. This was not an activity in respect of which Telford could be expected to give any directions. Nor did Telford’s contract with Dahlsens contemplate that Telford would give any direction to Dahlsens employees in relation to the manner in which they should undertake their work. Walters was known to be experienced in his field. Walters did not expect to receive any directions from Telford.
Further, after Walters and Telford attended at the site, Telford did not give either Walters or Marshall any directions in relation to the performance of their work.
The area where Marshall fell was under the control of Neale at all relevant times. Telford certainly had no authority to direct or control Neale as to how he fulfilled his contractual obligations.
Having regard to the definition of deemed employer in section 4 of the Act, and the relationship between Telford and Marshall, I find that Telford could not be regarded as a deemed employer of Marshall in the circumstances of this case.
Therefore, he could not be liable pursuant to section 19 of the Act.
Even if he was liable under section 19 of the Act as a deemed employer, I find that Telford provided a safe work environment. Telford provided the first ladder which was a safe ladder, and enabled safe access and egress to and from the roof for the Dahlsen’s employees.
The circumstances as I have found them to exist at the time, did not impose any additional or wider duty upon Telford in relation to Neale’s activities and the presence of the first ladder. It was reasonable for Telford to assume that Marhsall would exit by the second ladder.
Therefore, in my view, even if Telford was an employer for the purposes of section 19(1) of the Act, he did not breach that duty.
Next, the plaintiff contended that Telford was liable pursuant to section 22 of the Act. In my view, section 22 of the Act does not apply to Telford because the workplace was not under his management or control. Further, in my view, there was no omission or failure on Telford’s part that adversely affected Marshall.
Next, the plaintiff contended that Telford was liable pursuant to section 23 of the Act. “Occupier” is defined in section 4 of the Act to refer to a person who has “management and control of the place”.
In Complete Scaffold,[56] Doyle CJ held that control meant actual control.
[56] supra at [56]
In my view, Telford had no contractual capacity to control or direct Marshall as to how he carried out his duties.
In any event, the requirement is that the occupier provide a safe work place “so far as is reasonably practicable”.
In my view, Telford provided a safe ladder. Neale, not Telford, had actual control of the area where the fall occurred.
The plaintiff, in his pleadings, alleges that there is a breach of the Regulations under the Act in relation to the scaffolding and the first ladder.
Telford was not responsible for either the first ladder or the scaffolding. Therefore, any breach of those Regulations is not relevant to a consideration of Telford’s liability.
In any event, I find that Telford was not a deemed employer for the purposes of Regulation 1.2.1 under the Act.
In relation to the remaining regulations under the Act relied upon by the plaintiff, having regard to my findings, I am of the view that they have no application to Telford.
Accordingly, if a breach of the Act or of the regulations under the Act, gave rise to a civil duty of care, I find that Telford was not in breach of a duty of care. Marshall’s fall was not contributed to by the manner in which Telford undertook the performance of his subcontract with Neale. Therefore, the plaintiff’s claim against the fourth defendants, whether based upon breach of a duty of care or breach of a statutory duty, is dismissed.
The Townsends
I am not satisfied that any of the first three defendants exercised management or control of the site or the extension, such that they were occupiers for the purposes of sections 4, 22 and 23 of the Act.
I am not satisfied that any employee of the third defendant was responsible for the presence or location of the first ladder at the time of Marshall’s fall.
I am of the view that there was no negligent act by any employee of the third defendant that caused or contributed to Marshall’s fall.
I find that the third defendants were not a deemed employer of Marshall by operation of the Act, because none of the defendants had the requisite control.
The plaintiff’s claim against the first three defendants whether based upon breach of duty of care or breach of statutory duty, is dismissed.
Contribution Claim of fifth Defendant
It follows that the contribution claim by the fifth defendants against other defendants is dismissed.
Causation
Having determined that Neale breached his duty of care to the plaintiff, it is necessary to consider whether the plaintiff has proved that his injuries were caused by Neale’s breach of his duty of care.
Submissions on Behalf of the Fifth Defendants
Neale alleged that Marshall’s injuries were caused solely by his own negligence and that his claim should fail
In his pleadings, Neale alleged that Marshall’s negligence included that he accessed the renovations without authorisation, that he failed to ensure that the means of access to and egress from the roof of the renovations were safe, that he fell off the ladder through lack of care and that he attempted to descend a ladder while carrying a roof truss.
It was submitted that Marshall was perfectly capable of making his own assessment of the situation.
Further, it was submitted that Marshall failed to make a proper independent assessment of the safety of descending via the first ladder. There was no requirement that he exit via the first ladder.
It was also submitted that the means by which Marshall, Walters and Telford ascended and Walters and Telford descended (whatever the position of the first ladder), was clearly a preferable and much safer option.
Neale submitted that to step down from the skillion roof onto a scaffold carrying a sample truss was quite unnecessary and fraught with obvious danger. Marshall chose to do what was known to him to be dangerous and without any consideration for his own safety. [57]
[57] See Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; Van Ver Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Marshall had been on building sites before. Marshall must have and did understand the potential danger of standing on the top rung of an A frame ladder.
In the alternative, the fifth defendants alleged that if Neale was negligent, which was denied, then Marshall was guilty of contributory negligence and that Marshall’s entitlements to damages should be adjusted accordingly. The fifth defendants relied upon the same particulars pleaded in relation to causation.
The Law
In relation to the issue of causation, I have regard to the statements of principle in Medlin v State Government Insurance Commission,[58] where Deane, Dawson, Toohey and Gaudron JJ stated:
…for the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience.
[58] (1995) 182 CLR 1 at 6
It is necessary to prove that the breach of duty by the defendant at least materially contributed to the damage occurring.[59]
[59] Sutherland shire Council v Heyman (1985) 157 CLR 424 at 487
In Chappel v Hart,[60] McHugh J stated:
If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contribute to that injury occurring.
[60] (1998) 195 CLR 232 at 244 [27]
Even where a plaintiff is shown to have well known of the danger involved in doing that which caused the injury, the occupier does not necessarily escape liability. I refer to Thompson v Woolworths (Q’land) Pty Limited,[61] where Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ stated:
13. When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. To take a commonplace example, in ordinary circumstances a motorist in a city street, approaching a pedestrian crossing, will reasonably assume that the pedestrians assembled on the footpath will observe the lights which control the crossing. Most people drive as though it may be expected that other road users will be reasonably careful. At the same time, it is often judged reasonable to expect a motorist to allow for the possibility that some other road users will be inattentive or even negligent.
…
15.The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.
[61] [2005] HCA 19
Contributory Negligence
A person will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury.[62]
[62] Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310
I have regard to S 27A(3) of the Wrongs Act 1936 (SA) which provides:
Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage...
I also have regard to the principles in Pennington v Norris[63] and Podrebersek v Australian Iron & Steel Pty Ltd[64] in my consideration of Marshall’s conduct.
[63] (1956) 96 CLR 10
[64] (1985) 59 ALR 529
In applying the standard of care to contributory negligence on the part of an employee, the courts have taken into account a variety of factors that have a tendency to excuse the employee for inattention to his personal safety. As Windeyer J said in Sungravure v Meani,[65] it is for the tribunal of fact to consider whether:
…inattention bred of familiarity and repetition, the urgency of the task, the man’s preoccupation with the matter in hand, and other prevailing conditions…caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man.
[65] (supra) at 37
The circumstances and conditions in which the plaintiff had to do his work have to be taken into account: Bankstown Foundry[66]. An unsafe system of work increases the risk of injury to an employee through inadvertence: Commissioner of Railways (Queensland) v Ruprecht[67]. In determining whether an employee has breached the standard of care, relevant matters to consider include the nature and extent of the risk of injury, the effective cause of the omission to take precautions, the nature of the precautions and the worker’s knowledge or understanding of what is required of him by his employee: Commissioner of Railways v Halley[68].
[66] (supra) at 10
[67] (1979) 142 CLR 563 per Mason J at 572
[68] (1978) 20 ALR 409 at 415
Conclusion in Relation to Causation
I find that Marshall’s decision to use the first ladder was based on his observation of Neale, an experienced builder, using the ladder and without apparent difficulty.
Neale used the first ladder in the presence of Marshall and thereby implied that it was safe to use.
In addition, Neale created the danger by placing the first ladder in an appropriate place for egress from the roof. Marshall thought that the ladder was safe for him to use and there was nothing to indicate to the contrary. This was not a case where Marshall had been told to follow a certain path to egress from the roof and simply chose to ignore that advice. Marshall was not warned against using the first ladder.
I find that the actions of Neale in walking down the first ladder was a direct cause of the plaintiff’s decision to descend using the first ladder. In Medlin v State Government Insurance Commission[69], Their Honours said:
Indeed in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.
[69] (1995) 182 CLR 1, p 2.
In the present case, the plaintiff did not appreciate the danger that he faced. I find that the risk to the plaintiff did not arise from the plaintiff’s “independent and unnecessary conduct”[70] in attempting to descend from the scaffolding with the sample truss, but from the method of egress from the scaffolding provided by Neale and Neale’s use of the first ladder for that purpose. There was nothing to indicate to Marshall that there was any danger facing him as he commenced to descend via the first ladder. There is no evidence that he was in a particular hurry or was otherwise placing himself in danger.
[70] Thompson v Woolworths (Queensland)Pty Ltd [2005] HCA 19, [9].
I have had regard to each of the particulars relied on by the fifth defendants.
I am satisfied that Neale’s conduct was a substantial cause of the accident. I find that the plaintiff’s injuries were materially caused by the breach of duty of Neale.
I am not satisfied that Neale has established that Marshall was guilty of contributory negligence. “Inadvertence at a knowingly risky step was not in the circumstances contributory negligence”.[71]
[71] Glavinas v Holdens Motor Company Limited [Unreported, Supreme Court of SA Bollen J, 25 October 1991]
The plaintiff’s claim in negligence against the fifth defendants is made out. The fifth defendants are liable in damages for the plaintiff’s injuries suffered as a result of the fall.
Development Act 1993
In view of my findings, it is unnecessary to consider the application of the provisions of the DevelopmentAct 1993.
Orders
There will be judgment for the plaintiff against the fifth defendants. The plaintiff’s claim against all other defendants is dismissed. I will hear the parties in relation to any further orders and costs.
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