Minogue v Rudd
[2013] NSWCA 345
•22 October 2013
Court of Appeal
New South Wales
Case Title: Minogue v Rudd Medium Neutral Citation: [2013] NSWCA 345 Hearing Date(s): 10 and 11 September 2013 Decision Date: 22 October 2013 Before: Macfarlan JA at [1]
Hoeben JA at [79]
Emmett JA at [80]Decision: (1)Appeals and cross-appeals dismissed.
(2)Direct that the parties lodge written submissions concerning costs in accordance with the following timetable:
(a) The appellant within three working days of the date of this judgment.
(b) The respondent within three working days thereafter.
(c) The cross-respondent within three working days thereafter.
(d) Any replies by the appellant and the first respondent within three working days thereafter.
(3)Direct that the question of what costs orders should be made be determined upon the basis of the written submissions of the parties, without the necessity for a further oral hearing.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - appellant carpenter injured when he fell through unfinished floor on building site - floor joists lacked one supporting strut - how and why appellant fell not established - causation of injuries by assumed negligence not established - whether builder negligent in not installing a temporary floor given that appellant was an experienced tradesperson Legislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946Cases Cited: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Condos v Clycut Pty Ltd [2009] NSWCA 200
Davis v Nolras Pty Ltd [2005] NSWCA 379
Ilvariy Pty Ltd t/as Craftsman Homes v Sijuk [2011] NSWCA 12
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Luxton v Vines [1952] HCA 19; 85 CLR 352 Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7
Shaw v Thomas [2010] NSWCA 169Category: Principal judgment Parties: Paul Timothy Minogue (Appellant)
David Jonathan Rudd t/as Rudd & Co Construction Pty Ltd (Respondent/Cross-Appellant/Second Cross-Respondent)
DMW Carpentry Services Pty Ltd (Cross-Respondent/Second Cross-Appellant)Representation - Counsel: Counsel:
B J Gross QC/R Harrington (Appellant)
G M Watson SC/D A Lloyd (Respondent/ Cross-Appellant/Second Cross-Respondent)
D Hooke SC/S Maybury (Cross-Respondent/Second Cross-Appellant)- Solicitors: Solicitors:
Carroll & O'Dea (Appellant)
Wotton Kearney Lawyers (Respondent/ Cross-Appellant/Second Cross-Respondent)
Edwards Michael Lawyers (Cross-Respondent/Second Cross-Appellant)File Number(s): CA 2012/149952 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: Adamson J - Date of Decision: 12 April 2012 - Citation: Minogue v Rudd [2012] NSWSC 305 - Court File Number(s): SC 2008/289464
JUDGMENT
MACFARLAN JA:
SUMMARY OF CASE AND CONCLUSIONS
At about 10.30 am on 12 February 2004 the appellant, then a young man from Ireland on a working holiday in Australia, was injured on a building site in suburban Sydney. He fell about 3 metres through wooden joists in an unfinished kitchen to the concrete floor of a laundry on the level below. He was severely injured and commenced the present proceedings claiming damages from the builder (Mr David Rudd), the owner's building supervisor (Mr John Tilden) and the sub-contractor which had engaged him to perform carpentry work on the site (DMW Carpentry Services Pty Ltd: "DMW"). The appellant alleged breaches of both common law duties of care and statutory duties.
By judgment of 12 April 2012 Adamson J, sitting in the Common Law Division of the Court, rejected each of the appellant's claims, gave judgment for the defendants and dismissed all cross-claims ([2012] NSWSC 305).
The appellant appealed only against the rejection of his claim against Mr Rudd. Mr Rudd in turn cross appealed against the dismissal of his cross-claim against DMW, in which he alleged that DMW breached a duty of care owed by it to the appellant as its employee, or deemed employee. Mr Rudd sought indemnity or contribution from DMW pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 and, by late amendment, sought the setting aside of the judgment entered in favour of DMW on the appellant's claim. DMW cross appealed against the dismissal of its cross-claim against Mr Rudd for indemnity under the same statute. It also filed a Notice of Contention alleging that the primary judge erred in holding that the appellant was its employee, rather than its independent contractor.
Argument on appeal was directed to the following issues:
(a)Did Mr Rudd breach a common law duty of care owed by him to the appellant by failing to ensure that a particular supporting strut (a "noggin") was attached to one of the joists?
(b)If so, was such breach causative of the appellant's injuries?
(c)Was Mr Rudd in breach of a common law duty of care owed by him to the appellant in not arranging for the installation in the kitchen area of a temporary floor to cover the joists or alternatively in not barricading the area to prevent entry?
(d)If so, was such breach causative of the appellant's injuries?
(e)Was the appellant DMW's employee or its sub-contractor?
(f)Was the appellant guilty of contributory negligence?
(g)What were the respective responsibilities, if any, of Mr Rudd and DMW for the appellant's injuries?
For the reasons given below, I have concluded that questions (b) and (c) should be answered in the negative and that it is unnecessary to answer the remaining questions.
The consequence of these conclusions is that the appellant has failed to establish that the primary judge erred in rejecting his claim against Mr Rudd. The appeals and cross-appeals should therefore be dismissed.
THE FACTUAL CIRCUMSTANCES
The building site was a home in suburban Sydney which was undergoing substantial renovations. The owner of the premises, Ms Millica Rigby, engaged Mr Tilden as her building supervisor and contracted with Mr Rudd for the works to be undertaken, with Mr Rudd to be paid a lump sum and reimbursed for amounts paid to sub-contractors. Mr Rudd sub-contracted the carpentry work on the site to RMC Constructions Services Pty Ltd ("RMC"), of which Mr Rob Mori was the principal.
Work progressed during the second half of 2003, with Mr Mori installing wooden joists on the ground floor, including in the proposed kitchen area.
Mr Rudd departed for a holiday in Canada on 6 February 2004. At that time the state of the site was relevantly as follows.
In the kitchen area, which was at the southern end of the house, timber floor joists, of dimensions 250 mm x 50 mm x 2,420 mm, had been installed and skew-nailed (that is, nailed at an angle) to 100 mm x 50 mm wall plates at each end. With one exception, there was between each two joists a timber noggin (250 mm x 50 mm x approximately 300 mm) skew-nailed at each of its ends to the joists in their central area. These acted as struts to prevent movement of the joists. The exception was the space between two joists near the middle of the room. One of these joists (the "displaced joist") was found after the appellant's accident unsecured at its northern end with its central part resting at an angle on top of an adjacent joist. There had recently been, but was no longer, a noggin on the eastern side of this joist. A noggin on the western side was removed before Mr Rudd's departure overseas. There was no floor covering the joists as its installation was awaiting a decision to be made about the location of air-conditioning ducts.
Below the kitchen area was the site of a proposed laundry which did not have a ceiling and could therefore be seen through the timber joists from the kitchen area above. Its floor was concrete with some building rubble on it. Entry could be gained to it by a doorway from the outside of the house. Intended stairs down to it from the ground floor had not been completed by the date of the appellant's accident. This left a void where they were to be, adjacent to the doorway on the ground floor for entry to the kitchen area.
After Mr Rudd's departure, Mr Tilden was instructed by Ms Rigby to engage a carpenter to construct an external decorative chimney, as this needed to be completed before timber shingles could be put on the roof. As RMC was unavailable to do the work by the time it was required, Mr Tilden engaged DMW, through its principal Mr Declan McWilliams. Mr McWilliams attended on the site on 11 February 2004 with the appellant who had been doing carpentry work for him for some six to seven weeks. They spent the first day constructing the framework for the external chimney and cutting blue board which was to cover it. There was scaffolding on the outside of the house which enabled them to gain access to the roof. According to Mr McWilliams, to get on to the scaffolding they used "a set of concrete stairs just inside the front entrance to the house. These ran up to the first floor and then you could walk across and get access out of a large window directly onto the scaffolding near the chimney". He said that on that day "there was some red and white tape hanging across from the stairway to the wall opposite, blocking off access to the kitchen area".
He said that the tape was still there when he attended the site the next morning with the appellant at about 7.00 am. At 9.00 am, he left to do other work and the appellant stayed on site "to move the blue board we needed from down near the window to upstairs to the first floor". By the time he returned, the appellant's accident had occurred.
On the morning of 12 February 2004 Mr Thomas Bielik was working in the garden of the house at its southern end. He saw Mr McWilliams and the appellant on site. He described the appellant as "a big bloke". He said that later:
"I was in the back garden and I heard the sound of falling timber but I couldn't tell where it was coming from. I walked into the building site to see where the sound had come from and when I got to the middle ground floor of the site I could see [the appellant] lying on the ground of the basement face down".
Emergency services were then called. The ambulance record in evidence notes the first call to the service as 10.37 am and includes the words "prolonged scene time → dangerous/difficult extrication". The police records state that "[p]olice rescue were ... summonsed to make [an] exit point due to the building works and wooden frames surrounding the victim". Why the extrication of the appellant was difficult was not revealed by the evidence. The only building frames "surrounding" the appellant were the joists in the kitchen area above.
A WorkCover NSW Inspector, Mr David Waterhouse, arrived at the site at about midday. He was joined by another Inspector, Mr Denis Macready, at about 1.00 pm. Mr Waterhouse recorded the following observations:
"3. At the eastern end of this room [the kitchen], two sheets of plywood and one sheet of structural flooring resting on the timber joists cover the floor. [The Inspectors' photographs show that these in fact covered only a limited part of the floor]. These sheets have the appearance of having been recently swept.
4. Approximately 3300mm from the eastern end of this room I observe[d] a joist that has been displaced from its original position. The southern end is still skew nailed to the wall plate below while the northern end has been moved approximately 1000mm in a westerly direction. This joist has been moved recently as there is no dust where the joist would have been. The northerly end of the joist has ridden up on top of the adjoining joist.
5. The solid strutting blocks on either side of the displaced joist are not evident. The skew nails that would have held the strutting on the east of the displaced joist, which would have been approximately 400mm long, are evident and still straight. The skew nails on the west of the displaced joist are evident but appear to have been hammered flat against the joist. This piece of strutting would have been approximately 300mm long.
6. The distance from the top of the joists to the concrete floor below is approximately 2930mm.
7. The wall on the north side of this room has had the existing tiles and render removed except for an area approximately 1000mm wide and 1500mm high which is located in the center of the room and 1000mm above the floor.
8. In the northwest corner of the room is a short handled, square mouth shovel colored cream and a long handled broom yellow in color.
9. In the southwestern corner of this area I observed an electrical extension cord, blue in colour. This cord is looped over the floor joists and extends down into the basement area to a temporary sub-board located approximately 1200mm above the floor. The switch is on and the cord energized.
On inspection of the floor below I observed the following:
10. Below the room with the displaced joist is a room measuring 2420 mm north to south x 4600mm east to west. This I was informed will be the laundry.
11. To the west of the laundry is a room measuring 6100mm x 4300mm which I was informed will be a recreational area.
12. The concrete floor of the laundry is covered with mortar rubble.
13. Against the north wall of the laundry, approximately 1400mm from the west wall is a piece of hardwood timber measuring approximately 400mm long x 250mm wide x 50mm thick".
Due to his injuries, the appellant was not able to recall and give evidence of the details of the accident itself. He did however say in a witness statement:
"16. I don't remember the exact mechanics of what happened, however, I remembered the existence of uncovered joists in the house. I also remember that there was no bridging often referred to as noggins between the joists at one end of the room, this is often done when the joists are intended to be removed to allow access for a staircase".
THE EXPERT EVIDENCE
The appellant tendered reports of two experts in structural safety, Dr Kevan Heathcote and Mr David Dubos. Mr Rudd tendered a report of Mr Hugh Cowling, a specialist consulting engineer.
In his report, Dr Heathcote noted that Australian Standard 1684 required nogging only where the span of the joists exceeded 3 metres, which was not the case here, but that the Standard said:
"A temporary batten across the tops of blocked joists, additional blocking or the like, may be necessary to ensure joists do not twist or roll over during construction (prior to fixing of flooring)".
Dr Heathcote's report also included the following observations and conclusions:
"11 The joists were skew nailed to the top plate at both ends, except for the northern end of the joist immediately to the east of the double joist at the top of the stairs.
...
25 It is my opinion that, in addition to fixing the joists to the bottom plate at each end, it would be considered good practice to fasten the floor sheeting to the joists immediately after placing the joists, thus stabilising them. Alternatively if the floor were to be left uncovered for a period of time then either
a) workers should be warned that the floor may be unstable
b) temporary sheeting or battens be nailed to the tops of joists to stop them moving or rotating OR
c) the area be roped off to prevent access until the flooring was installed.
26 I can see no reason why the joist in question was not skew nailed to the bottom plate at the northern end. [Dr Heathcote was mistaken about this. This end (as well as the other) of the joist had in fact been nailed]. Had it been done so [sic] then at the worst it would have twisted but it would have been unlikely to move and open up a gap such that Mr Minogue would have fallen through.
...
33 It is clear to me that the cause of the accident was due to the failure of the flooring tradesmen to fasten the joist closest to the stairway to its northern end support, thus allowing sideways movements of that joist as Mr Minogue walked on it.
34 It appears that there was a delay between constructing the floor framing and fixing the floor sheeting. In this event it was the responsibility of the floor framer to temporarily stabilise the joists or to partition off the area to prevent access. Neither of these was done".
In his report, Mr Dubos relevantly concluded as follows:
"145 By December 2003, the joist and noggins had been installed in the intended kitchen area by Mr Rob Mori of RMC Construction Services Pty Ltd. Mr Mori of RMC was subcontracted to carry out carpentry on the site. At least one of the joists had been left loose so that its southern end was skew nailed to the adjacent wall plate but its northern end was not skew-nailed to the adjacent wall plate. [This was an incorrect factual assumption]. Because the northern end of this joist was not skew-nailed, the joists could move laterally (i.e., to the east or west) if trodden upon, creating the risk that any worker who trod upon the joist, would fall and suffer injury. The Plaintiff whilst walking on the joists in the intended kitchen area, stepped onto [the] joist, the northern end of which was unsecured and un-nailed - it was not bilaterally braced with noggins, kept securely in position by skew-nails. As a result, the northern end of the joist moved about 1 metre westward under the Plaintiff's foot, causing him to lose his balance and fall, striking his head on a joist and then falling a distance of some 2.93 metres between the joists to the concrete floor of the laundry one floor below".
In his report of 22 February 2012 Mr Cowling referred to the appellant's case as being that he stood on a joist which had not been fixed at one end and that as a result the end of the joist moved about 1 metre westwards under his foot, causing him to lose his balance and fall. Mr Cowling described this contention as fundamentally unsound because "the joist's movement upwards and sideways defies reasonable logic and gravity". He concluded that the joist must have been intentionally moved at some stage.
Mr Cowling said that the joist would have been about 34 kilograms in weight and that it was secured in three places: to the wall plates at its southern and northern ends, and to the noggin on its east side. He did not consider that the joist could have rotated towards the west because the southern end of the joist was found to be in an upright position, still skew-nailed to the southern end wall plate. Further, he said that the photographs taken by the WorkCover Inspectors did not reveal any lateral rotation of the joist because it appeared in those photographs "with its western edge standing upright upon and against the edge of the adjoining joist". He also referred to a statement in Mr Waterhouse's report that the skew-nails that would have held the noggin on the eastern side of the displaced joist were "evident and still straight" and that those on the western side of the displaced joist were evident "but appear to have been hammered flat against the joist". (There was a noggin on the western side at some earlier stage but it was common ground that it was removed before Mr Rudd's departure overseas).
Mr Cowling considered it a reasonable inference that the piece of timber found below in the laundry was the noggin that had been affixed to the eastern side of the displaced joist but noted that it was not lying haphazardly on the laundry floor, but rather had been stood against the wall.
In support of his view that the displaced joist must have been deliberately rested on the adjoining joist, he opined that if care had not been exercised in its placement there, it would have simply fallen back to the level of the other joists. He added:
"In my opinion a possible reason for deliberately interfering with the joist may have been to create an opening sufficiently wide and without the nogging present through which the cut sheets or other materials could be passed down via the basement to the base of the chimney thereby bypassing the scaffold".
In his subsequent report, Mr Cowling noted that the reports of Dr Heathcote and Mr Dubos proceeded upon the incorrect assumption that the displaced joist was not secured at its northern end prior to its displacement.
Following a conference with each other, the experts produced a Joint Report which included the following:
"2.5 Was it acceptable practice, in the context of the construction industry, to leave the relevant joist without a noggin support for at least several weeks, assuming the reason this was done was that the location of an air conditioning duct had not been finalised and there was a suggestion the joist may need to be moved? If so why, if not why not and what ought have been done instead and at what monetary cost?
A. It was acceptable to leave the nogging [not] in place if adequate means were used to prevent persons from entering the floor. Otherwise it was not acceptable. The nogging was not required by the standard but should have been left in place.
...
2.8 Whichever is the answer to 2.5, was it also acceptable practice in the context of the construction industry to leave the state of the flooring generally as it is shown in the WorkCover photos for a period of several weeks? If so why, if not why not and what ought to have been done instead and at approximately what monetary cost?
A. It was a safety hazard, but it would have been acceptable if the area was adequately boarded off. Cost about $500.
The alternative was to put the nogging in and if other trades required access then temporary floor covering to form an access way with barricade or complete covering to stairway was needed. Cost would have been nominal unless new material was required in which case around $1000 to $1500.
2.9 Is there sufficient information known to determine how the relevant joist is likely (on the balance of probabilities) to have come to be resting on top of the adjacent joist at the time the Plaintiff was found, following his accident? If so, how is that likely to have occurred?
A. No. It is possible that Declan McWilliams may have moved the joist afterwards, so as to have 'jumped down' as stated in his WorkCover Statement answer to Q30. HC KH
No. It is possible that the joist may have ended up in this location during the course of the fall. It is more likely that someone moved it afterwards. DD".
The references in the answer to question 2.9 to "HC", "KH" and "DD" are to Mr Cowling, Dr Heathcote and Mr Dubos respectively.
The possibility referred to in the answer to question 2.9 related to Mr McWilliams' movements after he had been informed of the accident and arrived at the site. Mr McWilliams subsequently stated that he did not take the action that the experts hypothesised.
The experts added that they could see "no logical reason why [the appellant] would have had any need to walk across the said joist".
Evidence given by the experts in a concurrent evidence session included the following.
Mr Dubos said that he could not completely rule out the possibility that the displaced joist bounced up onto the adjoining joist in the course of the appellant's accident but he could not describe the forces that would have been at work to cause this to happen. Both Dr Heathcote and Mr Cowling expressed the view that this did not happen. After reference to the possibilities that the joist was moved before the accident or was moved afterwards, the experts indicated that they could not, without speculation, say "how the fall happened, what its cause was and what its mechanics were".
Dr Heathcote said, without contradiction, that it was most unlikely, particularly as the appellant was a large man, that he fell through the limited space of 400 - 450 mm present between the joists before movement of the displaced joist.
Dr Heathcote was of the view that the displaced joist moved by rotating horizontally when the appellant stepped on it, still remaining on the northern wall plate. He thought that it might have been lifted, after the accident, to rest on the adjoining joist to preclude it falling on the appellant who was lying below being treated by ambulance officers.
Mr Cowling, who typed the Joint Report, indicated that the answer to question 2.8 should have said "barricaded off", rather than "boarded off". He then repeated the views expressed in the answer to question 2.8.
Mr Dubos described the type of barricade contemplated by the answer to question 2.8 as "timber nailed at either end or a yellow type of barricade that you might see on a roadway, a smaller version of that, which has safety, yellow safety colours on it". He said that a temporary floor covering would be "far superior" to a barricade if the kitchen construction was not to be advanced during the five weeks Mr Rudd was to be away.
Mr Heathcote agreed with both of those views, adding that "[i]f you have a tape across there it's possibly adequate. If it was my job I'd put a physical boarding across there to stop people going through". He however agreed with the proposition that what he was referring to was that "in the event that people not experienced on building sites such as kids and teenagers and other people might be coming on the site, you'd expect there to be a physical type of obstruction to people in the area". Neither of the other experts expressed disagreement with this view.
THE JUDGMENT AT FIRST INSTANCE
The primary judge's findings included the following:
"53 I do not accept that Mr Rudd was on notice of any instability in the subject joist or joists. Although he would have been aware, had he inspected it, that there was a single joist which did not have a noggin on one side, I am not prepared to infer from this that the joist was unstable, or that Mr Rudd ought to have been aware that it was. The evidence is that joists at that height and of those dimensions do not require noggins. I find, accordingly, that the subject joist was not unstable by reason of any lack of noggin on one side, or otherwise.
...
56 The plaintiff's injuries were not such as to permit an inference to be drawn as to the cause or mechanics of the fall. Nor does the joist which is on an angle assist in solving these questions. It is unlikely that it moved during the fall since its position on top of the contiguous joist is inconsistent with a downward force and its undamaged regular appearance is inconsistent with any involvement in the fall. Although it may be implicated in that its position opened up a greater gap than there would have been had it been located parallel to the contiguous joists, it is a matter of speculation whether the plaintiff fell through that gap, although he might have done, having regard to where he landed.
...
63 I consider it to be a matter of speculation as to why the plaintiff fell. He may have slipped, tripped, fainted or simply missed his footing. I do not consider the hypothesis that he lost his balance on a loose joist to be more probable than other possibilities. I do not consider that the evidence as to the cause or mechanics of the fall to rise above the level of conjecture: see the cases cited in Condos v Clycut Pty Limited [2009] NSWCA 200 at [68], per McColl JA (Campbell and Macfarlan JJA agreeing)."
Having found that cordon tape and a plywood barricade were in place to prevent or at least deter people entering the kitchen area whilst Mr Rudd was away, her Honour concluded:
"100 I reject the first defendant's submission that the risk that anyone would enter the kitchen area while he was away was either insignificant or not foreseeable. Although Mr Rudd considered that the kitchen area could not be completed while he was away and that the only work to be done on the site was the construction of the external decorative chimney, he must have been aware that Mrs Rigby was anxious for the property to be completed and had previously suggested that she would like to bring persons into the kitchen area to measure up the kitchen so that they could provide quotations and, perhaps, prepare cupboards or other fit-out offsite. Although Mr Rudd had substantial control over the site, he knew that, from time to time, Mrs Rigby and Mr Tilden exercised their authority to bring people onto the site.
101 For these reasons I consider that the first defendant owed a duty of care to persons who came onto the site, including the plaintiff.
...
107 I find that the putting up of hazard tape and a plywood barricade was sufficient to discharge any duty of care that Mr Rudd, the first defendant, owed the plaintiff to warn him of dangers in the kitchen area. I do not consider that a reasonable person in the first defendant's position would have either barricaded the door entrance and the window or covered the kitchen floor with plywood. The premises were a construction site and their fencing and signage around the perimeter made this clear. The plaintiff was a qualified carpenter who was not engaged to do any work associated with the construction of the kitchen area. In my view hazard tape and plywood was sufficient warning to such a person to keep out of the area."
In light of these conclusions, judgment was entered in favour of Mr Rudd on the appellant's claim against him.
The primary judge's rejection of the appellant's claim against Mr Tilden is not challenged on appeal. Its basis need not therefore be described.
So far as the appellant's claim against DMW was concerned, her Honour concluded that the appellant was an employee of DMW but, even if he was not, the duty owed to him by DMW was akin to that which would have been owed had he been an employee (Judgment [143]).
After a detailed examination of the evidence, her Honour concluded that the appellant was not in the kitchen area for any reason associated with his employment, aside from the fact that but for his employment he would not have been on the site at all. This led her Honour to conclude:
"192 ... Because the first defendant [Mr Rudd] had caused hazard tape and plywood to be installed across the kitchen entrance, the third defendant [DMW] did not, in my view, need to do any more as part of ensuring a safe system of work, in circumstances where, as I have found, the plaintiff [the appellant] had no need to go into the kitchen area. Whether the third defendant expressly prohibited him from going into the kitchen area is not to the point, since in my view, the sign was adequate to indicate that entry was forbidden."
The appellant's claim against DMW was also rejected.
Due to her inability to determine the manner in which the appellant's accident occurred, her Honour was unable to make an assessment of the extent to which, if at all, the appellant contributed to his own injuries, although she did conclude that a reasonable person in the appellant's position would not have gone into the kitchen area.
In light of the appellant's lack of success against all defendants, her Honour found it unnecessary to determine the cross-claims between the defendants.
I turn now to the resolution of the appeal.
DID THE ABSENCE OF THE NOGGIN CONSTITUTE A BREACH OF DUTY?
Apart from his contention that a temporary floor should have been installed or the kitchen barricaded, the appellant's case on appeal concerning breach was confined to an allegation that leaving the kitchen area without a noggin on the western side of the displaced joist was negligent. The appellant did not, for example, contend that any deficiency in the nailing of the northern end of the joist constituted negligence or that the joists were generally unstable. As I am of the view that the appellant's accident, and therefore his injuries, were not shown to be causally related to the absence of this noggin, I do not propose to deal with the issue of whether Mr Rudd was in breach of duty in not ensuring that such a noggin was in place. To do so would require a detailed but unnecessary examination of factual issues concerning Mr Rudd's knowledge and the state of any cordoning off or barricading of the kitchen area.
WERE THE APPELLANT'S INJURIES CAUSALLY RELATED TO THE ABSENCE OF THE NOGGIN?
To answer this question, consideration needs to be given to the possible mechanics of the appellant's accident.
As noted earlier, Mr Heathcote considered that the spaces between the joists when in position (that is, without displacement of the subject joist) were too small for a large man like the appellant to fall through. Neither of the other experts expressed a different view.
As a result, it is likely that the appellant fell through an enlarged space between the subject joist and its neighbour, which was pre-existing or made by him stumbling. This gives rise to a number of questions.
The first is whether the displacement of the northern end of the joist by about one metre to the position where the joist was later found, resting in part on the adjacent joist, could have occurred in the course of the incident, whatever that may have been, that led to the appellant's fall? Mr Dubos could not rule out completely that this may have been the case but was unable to describe the forces at work which might have led to that happening (see [33] above). Mr Cowling and Dr Heathcote thought otherwise (see [33] above). Their view accords with commonsense because it is not possible to understand how the appellant accidentally knocking or tripping over the subject joist, being 34 kilograms in weight, could have caused its northern end to jump up one metre and land with its central part resting on an adjacent joist. Consistently with this view, the primary judge held that it is unlikely that this displacement of the joist occurred during the accident (Judgment [56] quoted in [39] above).
The next question is whether some lesser displacement of the subject joist may have occurred in the course of the appellant's accident, with the remainder of the displacement occurring subsequently as a result of someone lifting it and resting it on the adjoining joist. Dr Heathcote suggested that this lesser displacement might have occurred as a result of the subject joist rotating whilst still resting on the wall plates. This theory seems to have involved the notion that, because the joists were much narrower than they were high, a tripping over or knocking of the joist by the appellant may have caused the top of the joist to fall over to the west (where there was no noggin to prevent it doing so). Mr Dubos did not refer to this theory and Mr Cowling rejected it as inconsistent with the fact that the southern end of the joist was still found to be skew-nailed in an upright position to the southern wall plate (see [24] above). In the absence of the joist having any quite extraordinary flexibility, which was not in fact suggested to exist, the notion that the joist may have rotated as described by Dr Heathcote defies commonsense. On the appeal, counsel for the appellant was not able to give any sensible description of the means by which that may have occurred. It may be that Dr Heathcote's evidence is to be explained by him forgetting that the southern end of the joist remained fixed. In any event, there is an overriding difficulty with the theory as it is not easy to see how, even if it is correct, the gaps between the joists would have been enlarged to a sufficient extent to permit the appellant to fall through.
Another possibility is that, regardless of whether there was rotation to any significant degree, the northern end of the subject joist moved laterally to the west along the wall plate. Relevant to this possibility is a dust-free area on the northern wall plate, corresponding to the area upon which the subject joist would have rested before its displacement, that was observed by the WorkCover inspectors. It is clearly visible in their photographs, particularly the photograph numbered 14. Whilst the area does appear to be wider than the joist, that difference is very small, indicating that the joist did not slide to any significant extent along the plate to create an opening large enough for the appellant to fall through. The result is that the only significant movement of the northern end of the joist can have been by lifting, as the possibility of it jumping up during the incident leading to the appellant's fall has been discounted already.
As the probabilities suggest that the subject joist was lifted out of its position, the next question is whether that occurred before or after the appellant's accident. The evidence left the answer to this question in the realms of speculation.
The appellant suggested in argument that the joist may have been lifted after the accident by one of the emergency workers to ensure that it did not fall on the appellant whilst he was still being treated below, or possibly even to facilitate his extrication from the laundry. The former seems unlikely as the lifting of the 34 kilogram joist from its resting place on the northern wall plate to a position resting on an adjoining joist would seem, whilst the stricken appellant was immediately below, to have been fraught with difficulty and danger. If the joist was not moved before the appellant's accident, it was still resting on the northern wall plate, so that leaving it untouched, or at least nudging it to ensure that it was fully on that plate, would seem to have been the far safer alternative.
The appellant's other suggestion, concerning his extrication, suffers from the difficulty that there was a doorway from the laundry to the outside and there is no mention in the ambulance or police reports of extrication of the appellant by hauling him up, presumably by ropes, through the ceiling of the laundry, or of any attempt to do so.
The overriding difficult with both suggestions is however that even if one is well-founded, the means by which there might have come to be an enlarged gap between the joists at the time of the accident is left unexplained.
That leaves the possibility that the subject joist was placed to rest on its neighbour prior to the appellant's accident. This possibility cannot be ruled out. Although Mr McWilliams said that he would have noticed if it had occurred before he left the site at about 9.00 am on 12 February 2004, he may have been mistaken. There was evidence that tradespeople had recently been removing render from a wall in the kitchen area and it is conceivable that they moved the joist to enable containers of waste to be lowered to the laundry level. As well, the possibility that the appellant, for some unexplained reason, moved the joist prior to his accident cannot be entirely discounted.
The upshot of these considerations is that, as the primary judge found, the evidence did not enable the means by which the appellant's accident occurred, or its causes, to be determined. Whilst it was not essential for the appellant's success that the precise cause of his accident be demonstrated, he nevertheless needed to demonstrate that his accident, and therefore his injuries, resulted from Mr Rudd's assumed negligence in leaving one noggin missing (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [50] - [54]). I turn then to consider whether that was the case.
If, contrary to the prevailing view of the experts, there was room for the appellant to fall through a space between the undisplaced joist and its neighbours, and he did so, that could not be regarded as causally related to the assumed act of negligence in leaving one noggin absent. The noggin would have played no role in the accident if it occurred in that fashion as that thesis assumes that the subject joist did not move.
If the accident occurred as a result of the appellant knocking or tripping over the subject joist, and causing it to rotate or slide, the absent noggin would have been causally relevant but, for reasons I have given, those are not realistic possibilities.
If the subject joist was moved to rest on the adjoining joist prior to the appellant's accident and the appellant fell through the enlarged gap thereby created, the absent noggin would not have had any causal relevance. In any event, the displaced joist would have been obvious, as it is in the WorkCover's inspectors' photographs, and have been an aspect of the building site with which the builder would have been entitled to assume that an experienced tradesperson would readily be able to cope.
If the subject joist was moved to rest on its neighbour after the appellant's accident, the absent noggin would have been causally relevant if an enlarged gap was created by the joist rotating or sliding to the west. However, as I have said, the evidence indicated that these were not realistic possibilities.
The result is that the evidence does not reveal any likely cause of the appellant's accident, much less a realistic one with which the absent noggin had any causal relation. At best for the appellant, the evidence gives rise to "conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture" (Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 304 - 5 citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; see also Luxton v Vines [1952] HCA 19; 85 CLR 352 at 359 - 360 and Condos v Clycut Pty Ltd [2009] NSWCA 200 at [68]). In my view, there is no reasonable basis in the facts proved "for a definite conclusion affirmatively drawn" for a finding which would establish the appellant's claim (Jones v Dunkel at 305). This accords with the primary judge's conclusion at Judgment [63] (see [39] above).
WAS THE BUILDER NEGLIGENT IN NOT INSTALLING A TEMPORARY KITCHEN FLOOR OR BARRICADING THE AREA TO PREVENT ENTRY AND WAS THE APPELLANT'S ACCIDENT CAUSALLY RELATED TO ANY SUCH BREACH?
Reliance was placed on the experts' answer to question 2.8 stated in their Report (see [28] above) in support of the appellant's case against Mr Rudd that Mr Rudd was negligent in leaving the kitchen area during his absence overseas without either a temporary floor or barricades to prevent entry. It was contended that the sense of that answer was that whilst a temporary floor was unnecessary if no access could be had to the kitchen area, a temporary floor was essential if people might be entering the area during Mr Rudd's absence.
In light of his explanation given in the experts' concurrent evidence session (see [38] above), it is however in my view clear that what Dr Heathcote had in mind in joining in that answer was that a temporary floor was necessary if children or other non-tradespeople were anticipated to come into the kitchen area. He did not say that the temporary floor was necessary to guard against injury to tradespeople such as carpenters.
Neither Mr Cowling nor Mr Dubos said anything inconsistent with that view, which appears to me to accord with commonsense. As I noted earlier, tradespeople, especially those involved in building construction, can be expected to be able to safely traverse incomplete building sites. Unsurprisingly, the appellant said in evidence that as a qualified tradesperson he was used to walking in partially constructed sites. All that was needed so far as he was concerned was notice that the works were incomplete. He undoubtedly had that.
These views accord with the conclusions of the primary judge who held that a warning to the plaintiff of the incompleteness of the building work was sufficient to discharge Mr Rudd's duty to him (see Judgment [107] quoted in [40] above).
In Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7 at 30 Brennan and Dawson JJ observed:
"[W]here an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind".
The position is a fortiori where there is no defect as such and the building works are simply incomplete in an obvious fashion.
The position may be different if the building site contains some less than obvious deficiency which may cause potential instability under foot (see Davis v Nolras Pty Ltd [2005] NSWCA 379 at [30], [40] - [41], [65] - [66]; Ilvariy Pty Ltd t/as Craftsman Homes v Sijuk [2011] NSWCA 12 at [21]). The appellant alleged that the absence of the subject noggin was here such a deficiency but as I have concluded earlier, the view is not open on the evidence in this case that the absent noggin was causative of the appellant's accident.
For these reasons, Mr Rudd did not breach the duty of care he owed to the appellant by not installing a temporary floor in the kitchen area. This conclusion says nothing as to whether Mr Rudd might have breached a duty of care owed to some other person, such as a child, if he or she were injured in the kitchen area. For example, if there was no adequate barrier to entry to that area and a child entered and fell, Mr Rudd may have been held in breach of his duty to that child. This would be consistent with the views of the experts, particularly those of Dr Heathcote. The issue of breach of duty must be considered in the context of the particular plaintiff, bearing in mind what the defendant knew or should have known about the plaintiff or the class of persons of which the plaintiff forms part (see Shaw v Thomas [2010] NSWCA 169 at [40]).
In light of my conclusion that there was no breach of duty in not installing a temporary floor, the question of causation does not arise although I note that, whilst the cause of the plaintiff's accident cannot be determined, all of the possibilities mooted involve him falling through the uncovered joists in the kitchen area. As a result, it is difficult to see how the accident would have occurred if a temporary floor had been installed, with the result that the absence of that floor should probably be regarded as a cause, in the sense described in s 5D of the Civil Liability Act 2002, of the appellant's injuries. The possibility raised in argument that the appellant might, for some unknown reason, have pulled up part of the temporary floor and then fallen through the gap created is in my view too speculative to warrant consideration.
Similar considerations require rejection of the appellant's contention that the absence of barricading of the kitchen area (which I assume for present purposes to have been the case) constituted a breach of duty by Mr Rudd. For reasons I have given, the expert evidence relevant to this issue should be understood as directed to the provision of barricades to prevent the entry of non-tradespersons such as children or property owners. There was not in my view any breach of duty to a carpenter working on the site in, as I have assumed, not barricading the area.
For someone such as the appellant, the risk of falling whilst traversing the joists in the kitchen area was an obvious one which he could have been expected to handle. No question arises of a need for a warning to the appellant of the existence of the unfloored area as it was obvious to him; he plainly did not turn a corner and encounter it unexpectedly: he had traversed a significant part of it before he fell. Furthermore, no question of a less than obvious danger resulting from the absence of the subject noggin arises when considering the present question because, for reasons I have given, the appellant has not demonstrated that the absent noggin had any causative relevance to his accident.
OTHER ISSUES
There were a number of factual issues argued on appeal, such as whether a plywood barrier, warning signs and tape were placed across the kitchen entrance, which do not arise in light of the conclusions I have expressed. Likewise the issues of contributory negligence and those concerned with the cross-appeals and DMW's Notice of Contention do not arise. I have not dealt with these issues as to have done so would have imposed an unnecessary burden on the Court, delaying its dealing with issues actually arising in other appeals.
ORDERS
As they requested, the parties should be given the opportunity to make submissions as to costs. I accordingly propose the following orders:
(1)Appeals and cross-appeals dismissed.
(2)Direct that the parties lodge written submissions concerning costs in accordance with the following timetable:
(a)The appellant within three working days of the date of this judgment.
(b)The respondent within three working days thereafter.
(c)The cross-respondent within three working days thereafter.
(d)Any replies by the appellant and the first respondent within three working days thereafter.
(3)Direct that the question of what costs orders should be made be determined upon the basis of the written submissions of the parties, without the necessity for a further oral hearing.
HOEBEN JA: I agree with Macfarlan JA.
EMMETT JA: This appeal arises out of an injury suffered by a young Irishman on a working holiday in Australia. The appellant, Mr Paul Minogue, was working on a building site in suburban Sydney. He fell approximately three metres through the joists of an unfinished kitchen floor to the concrete floor of a laundry underneath the kitchen. As a result of his fall, he was severely injured.
Mr Minogue commenced proceedings for recovery of damages from the respondent, Mr David Rudd, who was the builder, Mr John Tilden, who was the building supervisor retained by the owner, and DMW Carpentry Services Pty Limited (DMW), a subcontractor, which had engaged Mr Minogue to perform carpentry work. A judge sitting in the common law division of the Court rejected Mr Minogue's claims and gave judgment for the defendants. Mr Minogue now appeals from the rejection of his claim against Mr Rudd.
The primary judge also dismissed cross-claims between the defendants. Mr Rudd cross-appeals from the dismissal of his cross-claim against DMW. DMW in turn cross-appeals from the dismissal of its cross-claim against Mr Rudd. Both cross-appeals were for indemnity or contribution under the Law Reform (Miscellaneous Provisions) Act1946.
I have had the advantage of reading in draft form the proposed reasons of Macfarlan JA, in which his Honour formulated the issues raised in the appeal and cross-appeals. The first three issues were as follows:
·Whether Mr Rudd breached a common law duty of care owed by him to Mr Minogue by failing to ensure that a particular supporting strut was attached to one of the joists.
·If so, whether that breach was causative of Mr Minogue's injuries.
·Whether Mr Rudd was in breach of a common law duty of care owed by him to Mr Minogue in not arranging for the installation in the kitchen area of a temporary floor to cover the joists or in not barricading the area to prevent entry.
I agree with Macfarlan JA, for the reasons given by his Honour, that the second and third questions should be answered in the negative. In particular, I agree with Macfarlan JA that the evidence did not establish how Mr Minogue's accident occurred or its cause, there being no reasonable basis in the facts proved for a definite conclusion to be drawn upon which to base the findings necessary to establish Mr Minogue's claim. I also agree with Macfarlan JA that Mr Rudd did not breach the duty of care that he owed to Mr Minogue by not installing a temporary floor in the kitchen area or by failing to barricade the kitchen area. As his Honour says, the question of whether Mr Rudd may have been in breach of a duty of care owed to other persons does not arise.
Accordingly, it is unnecessary to deal with the other questions. I agree with his Honour that the consequence is that Mr Minogue has failed to establish that the primary judge erred in rejecting his claim against Mr Rudd. I agree with the orders proposed by Macfarlan JA for the reasons given by his Honour.
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