McKewin v Blocksidge

[2009] QSC 95

SUPREME COURT OF QUEENSLAND

CITATION:	McKewin v Blocksidge & Anor [2009] QSC 95
PARTIES:	KENNETH NEIL MCKEWIN (plaintiff) v MICHAEL BLOCKSIDGE (first defendant) ANRUD PTY LTD (ACN 102 807 885) (second defendant)
FILE NO/S:	4645/07
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING	Supreme Court at Brisbane
COURT:
DELIVERED ON:	6 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3-5 December 2008
JUDGE:	Fryberg J
ORDER:	Judgment for the second defendant
CATCHWORDS:	Torts – Negligence – Essentials of action for negligence – Duty of care – Causation – In general – Particular instances – Plaintiff failed to prove breach of duty of care by second defendant or its agent – Plaintiff failed to prove damage caused by second defendant or its agent
COUNSEL:	Plaintiff: M E Eliadis Defendant: M T O’Sullivan
SOLICITORS:	Plaintiff: Shine Lawyers Defendant: McInnes Wilson

1. FRYBERG J: On 23 September 2003 Mr McKewin, a self-employed painter, was injured in a fall. At the time he was working on an unfinished new house at Highfields, about 10 km north of Toowoomba, in performance of a contract with the owner of the house. The first defendant, against whom the action has been discontinued, was the head contractor. The second defendant (“Anrud”) was the guttering contractor. Mr McKewin claims that the guttering was incorrectly installed, that as a result it gave way and that this caused his fall. The parties have agreed on the quantum of damages payable to Mr McKewin in the event that Anrud is held liable to him.

2. The house was constructed with three gables, two of them set back from the edge of the roof. Its configuration can be seen in the following photograph of the front (west) of the house, taken on 6 October 2003. The ladder and trestle visible in the photograph are those to which further reference will be made below.

1. On the day of the accident Mr McKewin arrived on site at about 7:30 am. He was accompanied by his daughter Donna, aged 30, a nurse who was that day working for him as a labourer. He climbed onto the roof to paint the two recessed gables. It was early in the job and he had not yet brought the scaffold on site. He accessed the roof using the trestle, but it was not necessarily in the position shown in the photograph. At about 8:00 or 8:30 am, having painted the gables, he decided to descend from the roof. The fall occurred while he was descending. Subsequently an ambulance was called and he was transported in it to hospital.

   Versions of what happened

2. Precisely what happened was very much in dispute. It is to be determined from the testimony of three eye witnesses and from circumstantial evidence.

   Mr McKewin’s evidence

3. Mr McKewin described what he did when he decided to come down at about 8:30 am:

   “[M]y daughter must have been in eyesight. I said to Donna, can she get me the ladder out of the shed, a foot ladder, step ladder, which she would have brought around to me, placed it in the front of the house, then placed the pot and the brush together, paint brush inside the pot and lowered it down to Donna.”

   He said that Donna (his daughter) positioned the ladder “probably at the first window” and to the left of the trestle as one looks at the photograph. It was not parallel to the house as in the photograph, but was at an angle. The ground on which it stood was dry and compacted. Donna had earlier washed the other walls of the house. She had not washed the front wall because he had told her not to as she would get in the way of the bricklayer who was working there. He rolled onto his stomach and put his left leg over the gutter onto the top of the ladder. He then began to descend the ladder, facing the house, with Donna steadying the ladder to his left.

4. As can be seen in the photograph, the ladder had six rungs and a top plate. Mr McKewin said he initially put his left foot on the top plate and then descended. As he did so his left hand took hold of the rail at the top of the ladder. He descended until his shoulder or perhaps his eye level was about the height of the gutter and at that point placed his right hand on the gutter, exerting only a gentle pressure, for added security; he had placed his hand like that on gutters all his life. When he did so on this occasion the gutter “just let go”. The back of the gutter was fixed to the facing but the front went downwards and then sprung back in to its original position. He fell to his right, toward the house. The first impact was to his buttocks but he ended up flat on his back. He did not see what happened to the ladder. The carpenter came out to the scene from inside the house and the bricklayer came from around the left side of the house. The bricklayer said to the carpenter, “I think he fell off the roof.”

5. Mr McKewin gave a different version of events in a statement dated 3 October 2003:

   “I had used a 2.1m step ladder to climb onto the roof to seal the gables, starting with the left hand side then moving to the right hand side to finish. The centre gable was sealed with the painter’s trestle and plank. Having finished the right hand side gable I was about to climb down when Donna came over to where I had the step ladder set up to steady it while I climbed down. I had both feet on the ladder as I climbed down. At this time the gutter bent over, causing me to fall in towards the wall of the building. I bumped into Donna as I fell and landed flat on my backside. The total distance that I fell was no more than 1 metre from where my feet were on the rung of the step ladder to the ground.”

   Neither side suggested that version was accurate. Indeed, neither side tendered the statement. However the above passage was quoted in a report by Dr F W Grigg which was tendered without objection.[1] Neither counsel gave Mr McKewin an opportunity to comment on it. I infer that it does not contain an accurate account of what occurred. Mr McKewin's failure to refer to it and explain it causes me to wonder about the reliability of his evidence.

   [1]            Exhibit 6.

   Donna McKewin’s evidence

6. Ms McKewin testified that the day of the accident was her first day at the site. After arriving at the building site at about 7:30 am she did some puttying work in the house and then washed down the back and sides of the house with a hose and brush combination. She did not wash down the front of the house (pictured above) because her father had told her not to, and the ground at the front was dry and firm. Shortly before 8:30 am she walked to the front of the house “to see if Dad needed anything”. At that time no one else was working at the front of the house. Mr McKewin asked her to fetch the stepladder. She did so and placed it in the same orientation as is shown in the photographs, but not necessarily the same distance from the wall. She reached up, took the paint pot and brush from her father and placed them near the bin shown in the photograph. She then levelled the ladder by tapping its foot, tested whether it was rocking (it was not) and took hold of the frame of the ladder with both hands to steady it. She did not look up but saw both of her father's feet in her field of vision on the fourth rung of the ladder (from the bottom). Then he fell to the ground toward the house, the ladder fell, striking the wall of the house near the bottom left corner of the proximate window, and she fell on top of the ladder. The trestle was not involved; it was still standing after the accident. Then the bricklayer came from the left side of the house and the carpenter from inside the house. Asked by the carpenter what happened, the bricklayer replied, “I don’t know.” She neither saw nor heard anything falling to the ground from the gutter and saw no metal strap on the ground after the accident.

7. In July 2004 Ms McKewin had typed a statement for the solicitors then acting for her father. A copy was tendered. In part it reads:

   “I was working at the front of the house near where the painter was
   working.
   The painter asked me to get the step ladder from the shed.
   I placed the step ladder next to the tressell [sic], I then opened the
   step ladder fully.
   The painter passed me his brush and paint pot.
   I then stood next to the ladder holding on to it to steady it.
   The painters feet were on the 4th run [sic] from the bottom.
   At that time the painter fell in towards the house.
   His fall pushed the ladder on to me and I hit the tressell and it landed
   on the painter.
   The painter fell directly onto his tail bone.
   At this time the brick layer who was working on the other side of the
   home came around and helped to lift the trellis off the painter.
   One of the carpenters came out of the house at this point and asked
   the brick layer what happened the brick layer replied I m not sure.”[2]

   [2]            Exhibit 9.

8. Ms McKewin admitted in cross-examination making the statement, but said that she could not remember the trestle falling. She agreed it was more likely to be correct than her current version of events. She also agreed that the statement made in an accident report to the Department of Workplace Health and Safety which she completed two days after the accident would be even more reliable. In that report she wrote this description of the incident:

   “Climbing down from the roof lost his balance he grabed [sic] the
   gutter & gutter gave way. Fell 2 metres landed on tail bone.”[3]

   She testified that she did not write this at the request of her father, but was unsure whether she initiated the report or it was requested by the Department.

   [3]            Exhibit 10.

   Mr Mead’s evidence

9. Mr Mead was working on the site as a bricklayer on the day of the accident. He testified that he was working near the entrance visible in the above photograph and had engaged Mr McKewin in conversation shortly before the accident. He gave this description in his evidence in chief:

   “What happened?-- Well, he yelled out to his daughter to put a trestle up so he could get down, and I think she took the paint pot and the brush off him. Not a hundred per cent sure of that. I think she did, and she went over near the corner and put it down, I think, as he was coming down. Anyway, he put his foot on the trestle there and it had been raining the day before. The ground was all saturated, and the trestle just dug in and went over as he put his weight on it. Then he just put a hand out to grab hold of the gutter and down he went and landed dead in the middle of the trestle. So he was flat on his back.”

   Mr Mead insisted it had rained heavily two days before the accident and there had been heavy showers on the day immediately before the accident, so heavy that it had been too wet to work.

   Grahame McKewin’s evidence

10. Grahame McKewin, the plaintiff’s son, photographed the foot of one of the legs of the ladder. It was twisted quite severely. He said that before the accident it was “pretty much brand new”.

    The state of the ground

11. I find that Mr Mead was wrong about the rain. The meteorological records tendered in evidence were not specific to Highfields; but they satisfy me that it had not rained in the manner described by Mr Mead. It emerged that Mr Mead lived some distance from Highfields. At his place it had not been raining all night - there had been only a few showers. He justified his assertion about the rain on the basis that the ground was very saturated. However the tenor of his evidence in chief was that it had been raining heavily which caused the ground to be saturated; not that the ground was saturated so it must have rained heavily.

12. In support of his contention that the ground was saturated, Mr Mead said that he had been unable to work the day before the accident because of rain. He had come to the site, observed the conditions and left. He had not seen the McKewins. Mr Mead made a statement for a solicitor in May 2004. In that statement he asserted that he had seen Mr McKewin on the site “the day before [the accident]”.[4] That is inconsistent with his oral evidence.

    [4]            Exhibit 16.

13. In the same statement he asserted that it had been raining heavily on the two days prior to the accident and that the ground was soft. He did not describe it as saturated. I am not prepared to find that the ground was saturated.

14. Mr McKewin and his daughter testified that the ground in the vicinity of the ladder was dry and hard. Each said that Ms McKewin had not washed the western wall. The reason which Mr McKewin gave for this - that it would impede Mr Mead's work - seems feeble. Another bricklayer was working near the northern wall and that did not impede its washing. Mr Mead may have been wrong about the rain and he may have been wrong about the degree of saturation, but I find it unlikely that he would have reconstructed or invented the fact that the ground was wet. As I have said, he made that claim in May 2004. I am unable to accept the McKewins’ evidence that the ground was dry and hard.

15. I should at this point acknowledge that there is a competing inference. It is possible to infer that Mr Mead was working not at the front (western) side of the house but around the corner on the northern side. If that were so, the ground where he was working might indeed have been wet, because that wall was washed down. That would also account for why he said in evidence that Ms McKewin was out of his sight around the corner of the house when Mr McKewin called out for the ladder.[5] For the reasons which I have given, it is not the inference which I prefer.

    [5] See para [22].

    Credibility

16. I did not find any of the three witnesses who gave direct evidence about the circumstances of the accident, Mr McKewin, Ms McKewin and Mr Mead, wholly reliable.

17. The McKewins’ evidence was inconsistent in some important respects with documents which they wrote some years ago. Their levels of recall generally seemed selective. Both claimed to have seen Mr Mead come to the scene of the accident (the front or western elevation) from the northern side of the house, although Mr McKewin did so in somewhat unresponsive terms:

    “Now, who else came to your assistance?-- There was a bricklayer
    there, too.
    Did you see where the bricklayer had come from?-- I'm sure he
    come from the left around the side of the house, from up in and
    around there.
    …
    Did you see him come from around the house?-- He came around
    from the side of the house, yes.”

    I find it unlikely that in the immediate aftermath of the accident, they would have noticed such a detail. Mr Mead was very definite in his evidence that he was at the front of the house at the time of the accident, and I think in that regard he was probably accurate. Mr McKewin agreed that he was working there that morning up until some five or 10 minutes before the accident – that was the basis for telling Donna not to wash that wall.

18. Mr McKewin testified that after the accident, the carpenter came out to the scene from inside the house and asked what had happened. He said that Mr Mead replied, “I think he fell off the roof.” Mr Mead denied saying that. Ms McKewin testified that he answered, “I don't know.” The latter answer was not put to Mr Mead. I find it difficult to accept that Mr McKewin, lying on the ground in pain, would have heard and remembered a conversation between the bricklayer and the carpenter; and it is almost as difficult to believe that Ms McKewin would have done so. Their general level of remembrance is inconsistent with both remembering this particular detail. I am not satisfied that any such conversation occurred.

19. It seems that some years ago all three parties to litigation exchanged witness statements. I have the distinct impression that the evidence of the McKewins was tailored to conform to Mr Mead's statement where possible and to rebut it where desirable.

20. There were a number of internal and external inconsistencies in Mr Mead's evidence:

• He testified in evidence in chief that he did not think there was a ladder in the vicinity of the trestle at the time of the accident. However in cross- examination he said that it was quite possible that he saw the step ladder being erected as depicted in photograph number three in ex 1.

• He testified that he had seen Mr McKewin's daughter working on site on days prior to the accident. I accept Donna McKewin's evidence that the day of the accident was her first day on the site; it was not challenged in cross- examination.

• He testified that he thought the accident occurred about mid-morning and he did not think it possible that it occurred at about 8:30 am, prior to smoko. I accept the McKewins’ evidence that the accident occurred at about 8:00 or 8:30 am, before the time for smoko. 8:30 am was the time stated in the accident report filled out by Ms McKewin two days after the accident. No evidence was called from the ambulance service as to the time an ambulance was summoned.

• In cross-examination he claimed for the first time that, while he was not following Mr McKewin's daughter around to watch what she was doing, she was there painting. It was not suggested to her in cross-examination that she had done any painting. Possibly Mr Mead did see her with a paintbrush in her hand as he claimed, but I accept the McKewins’ evidence that she was not painting.

• He testified that he could not see Mr McKewin's daughter when the painter yelled out to her because she was around the corner of the house. However in the statement referred to above Mr Mead had said:

“[The painter] yelled to a woman who I knew to be his daughter to bring the ladder around to get him off the roof. She was standing near their work car on the site.”

When pressed in cross-examination, Mr Mead adhered to his testimony.

I have already referred to other inconsistencies in Mr Mead's evidence.[6]

[6]            Paragraphs [14] and [15].

Collectively these inconsistencies cause me to question his accuracy.

1. Mr Mead was also a witness given to reconstruct events. On one occasion he agreed that he had done so:

   “Which way was the trestle pointing?-- On the ground?
   No, before it fell?-- Before it fell, well, I wasn't a hundred per cent
   sure to start with. I thought it might be around the other way.
   You weren't sure what?-- I wasn't a hundred per cent sure to start
   with. I thought it might be around the other way but I remember the
   way it landed so it had to be -----
   You're reconstructing in order to work backwards to work out what it
   must have been?-- Well, it's been a fair amount of time.
   Yes, I understand. I understand that completely?-- I remember
   where the trestle was when it landed.
   Sure. And you saw the painter tangled up in the trestle on the
   ground?-- No, he wasn't actually tangled up in it. He was lucky it
   landed - the two legs landed each side of him.
   I see. You saw it in between them, the bits on the ground?-- Yes.
   And it's by working your way backwards that you work out which
   way the trestle must have been standing before it fell?-- Yes.
   So you are not able, I take it from that, to tell us which way it was
   standing in the sense of which way it was pointing-----?-- Not a
   hundred per cent sure.
   -----when he, you say, put his foot on it?-- Not a hundred per cent

   sure on that, no.”

   The gutter

2. The gutter in question had been installed a month or two before the accident and before the roof was installed. It comprised a prefabricated zincalume[7] fascia board attached to the rafters of the house to which the gutter was fixed by two clips. The first, called a spring clip, held the rear of the gutter against the front of the fascia board. The second, called an overstrap, hooked under the curled top of the front of the gutter at one end and clipped over the fascia ridge at the other:

   [7]            The gutter was described by Mr Grigg as “made from Colourbond, a painted Zincalume coated steel material” (ex 6).

   1        Rafter bracket

   2        Fascia

   3        Overstrap

   4        Gutter

   5        Leaf guard

6	Spring clip

1. The gutter itself was flexible and could be bent downward by relatively little pressure. The overstrap operated to keep the leading edge of the gutter attached to and a fixed distance from the fascia, thus giving it some rigidity. The rear end of the overstrap was designed to be bent under the rear of the fascia board, thus inhibiting its removal. The manufacturer's installation manual required overstraps to be installed at a maximum spacing of 1,200 mm. The proper operation of the overstrap can be seen from the sample of guttering tendered as an exhibit.[8]

   [8]            Exhibit 8.

2. Mr Andrew Rudkin, a director of Anrud, was the person who installed the guttering. He had only a vague memory of this particular job. He became aware of an allegation that the gutter was not installed in accordance with the manufacturer's recommendation around October 2006. He described the method of installation which he used. Working from trestle-supported planks, he would fix the fascia to the rafters; place spring clips on the fascia at intervals of about a metre using a length of wood to measure the spacing; connect the gutter to the fascia using the spring clips; and install the overstraps about halfway between each pair of spring clips. There was never any shortage of overstraps. It was very unlikely that one would be missed.

3. No witness gave direct evidence of the condition of the gutter at the time of Mr McKewin’s fall. However on 6 October 2003, about a fortnight after the fall, Grahame McKewin inspected and took some photographs of it. He observed that the outer edge of the gutter had a pronounced outward bend, with crimping on the inside of the curled section at the top of the front of the gutter. His photograph of that section (below) shows this. In that area the overstraps nearest to the crimping were 2,030 mm apart. All of the straps which he saw were attached to the gutter; there was none lying loose in it or lying on the roof and he saw none lying on the ground. Grahame McKewin paid no particular attention to the manner of attachment of the two straps shown in his photograph:

1. There was no direct evidence of how much downward force would be needed to cause a gutter to behave in the manner described by Mr McKewin, but Anrud did not contend that what Mr McKewin described was impossible. There was also no direct evidence that had the overstraps been installed in accordance with the manufacturer’s specification, Mr McKewin could have rested his hand on the gutter in safety. However that is probably a conclusion which can be drawn as a matter of commonsense; and Mr McKewin gave evidence that he had been doing it all his life.

2. On 1 July 2005 Mr Noel Gillott took a camera to the accident site and made a series of photographs of the gutter. Mr Gillott was a licensed plumber and drainer and a member of the council of the Master Plumbers Association of Queensland. Unfortunately, he was not there to inspect the premises or to write a report, and he made no notes of what he saw. His job was simply to take photographs. He testified that two of the overstraps which he photographed were not attached to the fascia and it is apparent that the straps to which he referred were those numbered 2 and 5 in ex 7. He was unable to say if the fascia end of those straps had been bent to form an inverted U shape, to fit over the ridge of the fascia.

3. The next inspection of the gutter seems to have taken place in December 2005. It was arranged by a loss adjuster, presumably acting on behalf of the insurer of one of the defendants. It was carried out by Mr Daniel Berigan, the managing director of the company which installed the roof. Mr Berigan had previously worked as a sales representative for the gutter manufacturer. During his inspection Mr Berigan removed the roof sheeting in the area of the crimping, which was, of course, where there should have been an overstrap. He found evidence of scratches on the top of the ridge of the fascia and matching scratches on the abutting rear gutter wall. The scratching was about the width of an overstrap and its presence suggested that there had once been an overstrap in that location. The scratches could in Mr Berigan's opinion have been caused by putting a strap into position, but those on the top of the ridge at least were unlikely to have been caused by the sudden or forcible removal of the strap. He agreed that there were other ways in which guttering can become scratched. He did not check to see whether there were any scratches in the vicinity of the overstraps which were there, a step which might have indicated whether the scratching on the gutter occurred during placement or in the course of a forcible removal, because he was not asked to do that by the loss adjuster. Mr Berigan put a new strap in position while he had the roof open. He said that he was asked to look at other overstraps, but neither party asked him whether he complied with that request and if so, what he observed. I infer that he did so and that he found at least two of the remaining five straps on the section of guttering where Mr McKewin fell were loose because not securely attached to the fascia.[9]

   [9]            Dr Grigg's diagram in ex 7 identifies the locations of the five remaining straps. If one makes allowance for an extra strap between the loose straps numbered 2 and 5 on the diagram, these straps are at intervals of not more than 1,200 mm; but there is a gap of about 1,720 mm between the last of them and the corner of the building.

4. I draw that inference because when the gutter was next inspected, in February 2008 by Dr F Grigg, an engineer specialising in accident investigation, that was their condition. There is no reason to think that anything happened which could have brought about that state of affairs between the two inspections. Dr Grigg found three new straps firmly in place in the vicinity; I infer these were installed by Mr Berigan. The roof sheeting was not removed on the occasion of Dr Grigg’s inspection and he was not able to comment on the existence or otherwise of any scratching or on the reason for the looseness of the straps.

5. The plaintiff called evidence from Mr B McDougall, a consulting forensic engineer. Mr McDougall thought it likely that, accepting Mr McKewin’s version of events, the overstraps were not in place at the time. For the gutter to have performed in the manner described, either the overstraps had not been correctly installed or they had been loosened by a previous overload incident. Mr McDougall was inclined to discount the relevance of the scratches observed by Mr Berrigan because when found they were not exhibiting signs of rust, but because he did not know the depth of the scratches he was unwilling to express a concluded opinion.

6. The relevant Australian Standard was put into evidence and Mr McDougall referred to it. It required brackets (overstraps) to be not more than 1,200 mm apart. It identified the guttering as non-trafficable. It imposed no requirement for the guttering to support a concentrated load (such as a person placing his hand on it to gain support or steady himself); gutters were obliged to support only a uniformly distributed load 1.5 times that imposed when filled with water. Mr McDougall agreed that the vertical force which would be imposed on the gutter by a person falling from a ladder would be enough to bend the guttering down and pop off an overstrap. The overstrap could be flung some distance. Overstraps a metre on either side of one which was popped would be expected to be loosened. Mr McDougall also thought that if the gutter deflected in the manner described by Mr McKewin and returned to its original shape after the fall, crimping of its edge might be expected.

   The safety of Mr McKewin's manner of accessing the roof

7. The method by which Mr McKewin got onto the roof, climbing from a trestle the top of which was below the gutter height, was unsafe. So was the method by which he got down from the roof (climbing onto a ladder at the top of which was below gutter height). Mr McDougall testified that the recommended mode of access was by an extension ladder projecting at least a metre above the roof line. That recommendation had been made by the Work and Roofs Advisory Service in the early 1990s, a recommendation replaced by the Workplace Health and Safety Regulations in the late 1990s. Descending to a ladder would be difficult without putting some force on the front edge of the gutter, probably more horizontal force than vertical force. The prospect of losing one's balance was enhanced. This was a common mechanism by which people fell from ladders.

   How the accident happened

8. The highest rung of the trestle was over 800 mm below the gutter. It would have been very difficult for Mr McKewin to get down using it. It is common ground that he asked his daughter to bring the ladder for his descent. I am satisfied that she did so, and that he used the ladder. Had she carried a trestle as Mr Mead claimed, there would have been two trestles at the scene immediately after the accident. No one suggests that. I also accept her evidence that the trestle was too heavy for her to carry; I note that Mr Mead said that after the accident he helped her to lift it off Mr McKewin.

9. It follows that I reject Mr Mead’s evidence that he saw Mr McKewin fall from the trestle. I am satisfied that this evidence was the result of reconstruction, based on what he saw immediately afterwards. He saw Mr McKewin lying between (or possibly under) the legs of the trestle and assumed that he had fallen from it. He was unable in evidence to describe which way the trestle was facing immediately before the accident; evidently he did not have a mental image of it at that stage. Moreover in the statement which he had made in May 2004, he said that Ms McKewin placed the trestle, folded, against the guttering underneath her father. It is evident from the photographs that this would have been impossible.

10. Descending by the ladder was still a difficult and dangerous manoeuvre; the top plate was some 550 mm below the gutter. I find that while his feet were still at or near the top plate, Mr McKewin (to use his daughter's words in the workplace accident report[10]) “lost his balance, he grabbed the gutter & gutter gave way. Fell two metres … .” I disbelieve Ms McKewin’s evidence that his feet were on the fourth rung from the bottom. I also disbelieve her evidence that the trestle was not involved in the accident. I find that (to use her words in her July 2004 statement), “His fall pushed the step ladder on to me and I hit the trestle and it landed on the painter.”[11] It is unnecessary to determine whether the trestle was physically on top of Mr McKewin or whether he was lying between its legs. Mr Mead and Ms McKewin together lifted it clear of Mr McKewin.

    [10]           Exhibit 10.

    [11]           Exhibit 9.

11. There is no evidence that the ladder was in any way affected by the wetness of the ground. The evidence does not permit a finding about how the ladder became damaged, but the damage probably occurred in the course of the accident.

12. When Mr McKewin grabbed the gutter he imposed a concentrated vertical load on its leading edge. The load was dynamic; he had already lost his balance and begun to fall. Its magnitude was a function of his whole body weight. The gutter was neither designed nor constructed to support such a load, and there was no reason why it should have been. It unfolded under his weight, he lost his grip and he fell to the ground.

13. I am not satisfied that Anrud installed the overstraps too far apart. They should have been not more than 1,200 mm apart. I accept Mr Rudkin’s evidence that he used a piece of timber to ensure that the spring clips were placed within the design distance and that he placed the straps between the spring clips. I am not satisfied that an overstrap was missing at or near the point where Mr McKewin grabbed the edge of the gutter. That inference cannot be drawn from the absence of the strap after the accident. It could easily have been thrown some distance away and overlooked. The scratching observed by Mr Berigan is consistent with a strap having been in place at some earlier time.

14. The looseness of all of the remaining overstraps[12] is more difficult to explain. There is no reason to find that an incident of sufficient magnitude to affect the full length of the gutter occurred during the placement of the roof. That leaves two possibilities: either the straps were loosened in the accident or they were not properly installed in the first place. I have difficulty in understanding how so many straps over such a distance would have been loosened in the accident. Anrud made no attempt to lead experimental evidence to demonstrate how this could have happened. By the time of the trial its business was manufacturing truck bodies, but Mr Rudkin had the necessary expertise and I have no doubt that an experiment could have been arranged. There was no explanation for this omission.

    [12] See para [30].

15. To understand the installation process it is necessary to refer to the condition of the overstrap as supplied by the manufacturer. It is not supplied in the form depicted in the diagram above.[13] Its form can be seen from the unused sample tendered in evidence.[14] The profile of that exhibit[15] and a plan view of the fascia end of it is the following:

    [13] Para [24].

    [14]           Exhibit 23.

    [15]           The overstraps in the exhibit differed slightly from those used on the gutter at the accident site, but not in any material respect.

[43]	When the clip is installed, two further bends are supposed to be made in it, at the two slots shown in the plan view. First the end is bent downward at the right-hand slot, thus forming an inverted U shape to clip over the ridge of the fascia. That bend could be made before attempting to attach the clip or after it was attached. After the clip is attached, a further bend is made at the second slot to shape the end under the fascia ridge. The metal is soft enough to enable bends to be made by hand. Mr Berigan demonstrated the process using ex 8.
[44]	Mr Rudkin described his usual installation process: he said he would “go along and put the overstraps in between the spring clips”. Asked if he did any testing he said, “As I would do on each job, I would give it a rough - just a quick pull on to make sure it was safe.” He did not suggest that he did any more than place the straps into position by hand. There is no reason to suppose that he did other than follow his usual practice on this job. I infer that he made the first bend in the straps; had he not done so, his quick pull would have revealed the deficiency. The existence of the parallel scratch marks supports that inference. Whether he made the second bend I am unable to determine.
[45]	It was suggested on behalf of the plaintiff that one could infer neither bend had been made from an examination of Mr Gillett's photographs.[16] I reject that submission. The photographs do not show the point at which the first bend would be, if it existed.
[46]	The state of the evidence is unsatisfactory, but I must decide the case on the evidence as it is. I am not satisfied that Mr Rudkin installed the straps incorrectly. Mr McKewin has not proved his case.
Negligence
[47]	In the end, it does not matter whether the overstraps were installed correctly or not. The load which Mr McKewin placed on the gutter was of a nature and magnitude for which it was not designed. Even a perfectly installed gutter would not have saved Mr McKewin. He has proved neither breach of duty nor causation.
[48]	It is unnecessary to embark on an analysis of any duty that Anrud and Mr Rudkin might have owed Mr McKewin.
Order
[49]	There should be judgment for the second defendant. I shall hear the parties on costs.

[16]           Exhibits 19, 20 and 21.