Naumovski v Fudge
[2005] WADC 102
•31 MAY 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NAUMOVSKI -v- FUDGE [2005] WADC 102
CORAM: WAGER DCJ
HEARD: 29 & 30 MARCH 2005
DELIVERED : 31 MAY 2005
FILE NO/S: CIV 2986 of 2001
BETWEEN: IVAN NAUMOVSKI
Plaintiff
AND
JELICA FUDGE
Defendant
Catchwords:
Negligence - Personal injury - Plaintiff injured in fall from ladder at private residence - Whether breach of duty of care of occupier - whether plaintiff guilty of contributory negligence - Occupiers Liability Act 1985 WA, S 5(4)
Legislation:
Occupiers Liability Act 1985 WA, s 5(4)
Occupational Safety and Health Act 1984
Result:
Claim succeeds in part
Representation:
Counsel:
Plaintiff: Mr D M Bruns
Defendant: Mr M W Schikkard
Solicitors:
Plaintiff: Separovic & Associates
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Ingrilli v De Sales, unreported; FCt of SCt of WA; Library No 980596; 14 August 1998
Case(s) also cited:
Brodie v Singleton Shire Council (2001) 206 CLR 512
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Head v Pick [1998] QCA 17 27 February 1998
Hetherington v Mirvac Pty Ltd & Co (1999) A Tort Rep 81 514
Jones v Bartlett (2000) 205 CLR 166
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Paddison v Ultimate Image Pty Ltd t/as Hawkesbuy Plasterworks [2004] NSWCA 410
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Woods v MultiSport Holdings Pty Ltd (2002) 208 CLR 460
WAGER DCJ: The plaintiff claims damages for personal injuries suffered on 16 July 2000 when he fell in the course of cleaning the gutters on the second storey of the defendant's home at Unit 34/19 John Street Mount Lawley (the John Street residence).
Liability is the only issue to be determined. Liability is denied by the defendant.
The issues
By his statement of claim the plaintiff pleads the circumstances in which he sustained injuries and the defendant's liability as follows:
"6.The house on the premises is a two storey house with two roof areas, the top roof situated above the first floor and the lower roof situated above the ground floor of the house with gutters located around both roof areas.
7.The defendant knew and it was the fact that the plaintiff's expertise was in electrical and not roofing work. The plaintiff obtained a ladder and in order to access the top roof gutters positioned the ladder on top of the lower ground roof and rested the ladder against the first floor gutter/roof with the base of the ladder situated on top of the ground floor tiled roof. The plaintiff secured the ladder to the top floor gutter by use of a 'bungee strap' and holding on to the ladder with one hand was cleaning the gutter out with the other hand, when suddenly without warning the ladder gave way underneath the plaintiff resulting in the plaintiff falling to the ground below, and sustaining injuries.
8.On the material date the ladder gave way and fell as a result of a tile situated below the ladder breaking.
9.The injuries sustained by the plaintiff on the material date was caused by the negligence and/or breach of statutory duty of the defendant.
Particulars of Defendant's Negligence and Breach of Statutory Duty
9.1failing to warn the plaintiff about standing a ladder on tiles on the roof;
9.2failed to provide the plaintiff with an appropriately stable surface on the ground floor roof on which to stand or position a ladder;
9.3failed to provide scaffolding or a cherry‑picker, or to engage an expert;
9.4failed to assist the plaintiff or to provide other manual or mechanical assistance such as a non‑slip plank with cleats to enable the base of the ladder to be held in place while the plaintiff was on the ladder working;
9.5requested the plaintiff to carry out the work without taking into account the dangerous location of the first floor gutter, and that it was outside his field of expertise."
The defendant has pleaded that if the plaintiff was injured through negligence it was entirely his own. By the re‑amended defence the defendant pleads as follows:
"8.If the accident occurred as pleaded in paragraph 7 and 8 of the statement of claim (which is not admitted), the defendant denies that the accident was caused by its negligence and/breach of statutory duty and denies each and every particular of negligence and breach of statutory duty pleaded in paragraph 9 of the statement of claim as if the same were set out herein and traverse seriatim.
9.…
10.Further, if the accident occurred as pleaded in paragraph 7 and 8 of the statement of claim (which is not admitted) and if the defendant was negligent or in breach of that duty as alleged in paragraph 9 (all of which is denied), the defendant says that the plaintiff caused or contributed to his loss and damage.
Particulars of contributory negligence
The plaintiff was negligent in that he:
a.failed to have any or any proper regard for his own safety;
b.failed to assess the tiles on the roof before cleaning the gutters;
c.failed to position the ladder in an appropriate position before climbing the ladder to clean the gutters;
d.failed to advise the defendant that the task could not be performed without scaffolding or a cherry‑picker;
e.agreed to clean the gutters when he was unqualified to do so;
f.failed to use an appropriate ladder;
g.failed to use a plank of timber which was modified with a cleat on the upper side, and non‑slip tread on the under side which could have been placed on the roof tiles to enable the feet of the plaintiff's ladder to be secured and/or failed to advise the defendant that the task could not be performed without using such a device; and
h.failed to secure the top of the plaintiff's ladder to prevent the ladder from falling."
The plaintiff's evidence
The plaintiff was born on 25 June 1962 and came to Australia from Yugoslavia in 1988. He qualified as an electrician in Yugoslavia, however, his knowledge of safety issues had come from studying books rather than from any formal education sessions.
On arrival in Australia he was required to complete examinations in order to obtain his qualifications as an electrician. He obtained a restricted licence in October 1988 and was granted a full electrician's licence in 1989. He obtained his contractor's licence two years later.
The books that he had studied in both Yugoslavia and Australia dealt with the safe use of ladders and he was aware of general safety requirements in relation to ladders. The plaintiff had learnt that the best practice was to secure a ladder both at the top and the bottom, or have a person standing at the bottom holding the feet of the ladder in order to ensure his safety. He believed that the bottom of the ladder needed to be placed on firm ground. If a ladder could not be placed on firm ground then his practice would be to put some tiles or bricks under the ladder to provide a firm base to ensure that there was no slippage. It was his assessment that if a surface could hold his weight then it would be safe to put a ladder there. He assessed that he could feel with his feet whether something was soft or hard enough to hold him, and he would make the same assessment in relation to putting a ladder on to the ground or in the sand.
The plaintiff was aware of the occupational safety and health publications, and the need to update information in relation to any new standards that were passed. Given that he had not studied formally for his qualification in Australia, he was not familiar with the manual used at TAFE as part of the electricians' apprenticeship course.
The plaintiff worked in the mining industry on a gold mine plant for a period of six to seven years. He used his skills as an electrician in the course of this employment.
In about July 1999 he started working for Cabletech. He performed domestic electrical jobs at the direction of his employer, Laurence Bensueson.
He was allocated approximately five jobs on an on‑call basis each day. Cabletech provided him with an electrician's van, power tools and ladders. The plaintiff provided all other tools such as screw drivers, pliers, small battery drills and cordless drills. The work undertaken by Cabletech did not include commercial work other than small jobs such as the installation of wiring in small commercial premises, nor did it include any external work on houses or work on house roofs.
The plaintiff was aware from his experience that if a height could not be reached by a ladder, then some other device could be used to reach the height such as a platform, scaffolding or a cherry‑picker. He had never received any training in relation to safety procedures relevant to the use of a ladder on a two storey building. He had never been required to carry out external work of this nature. He had not personally used ladders or scaffolding in the course of his employment with Cabletech or on mine sites, however, he had seen both ladders and scaffolding being used in the workplace.
Method employed to clean the gutters
The plaintiff had cleaned out the gutters for his cousin, Ms Fudge, at her previous address in Coolbinia prior to her move to Mount Lawley. When he cleaned the gutters of the single storey house in Coolbinia he had used an "ockie-strap", that is a rubber strap with hooks on either end, to attempt to secure the ladder at the top, and prevent it from moving and slipping on its side.
His practice was to climb the ladder up to the gutter, and at that point secure the ladder using the "ockie-strap" prior to climbing on to the roof. He secured the ladder by hooking one hook of the "ockie-strap" on to the gutter and then putting the cord around the cross bar of the ladder and finally placing the second hook up on the other side of the ladder on the gutter. In this way he stopped the ladder from moving sideways or sliding onto its side. The plaintiff did not use rope on these occasions because he considered that there was no place to tie a piece of rope to the gutter.
It was his view that the "ockie-strap" was an effective means of securing the top of the ladder. He had not been provided by his employer with any other method to secure a ladder.
Although the plaintiff knew from his training that a ladder should be properly secured, not only at the top but also at the bottom, he stated "I've been doing the same sort of thing that all other electricians are doing".
He recognised the danger of being on a ladder but considered that there was a degree of danger in any job, particularly electrical work.
The plaintiff had physically walked on roof tiles prior to 16 July 2000. He was aware that there was a 10 centimetre overlap where one tile covers the other and considered that it was safe to stand on the overlap portion of the tiles. He described the roof tiles as having curved and flat sections. He walked on the flat part of the tile that was of double thickness when walking on a roof. He would check if there were any visibly cracked tiles and avoid placing his weight on a cracked tile.
On 16 July 2000 the plaintiff climbed up on to the first storey of the defendant's home and pulled the ladder up behind him. He placed the feet of the ladder on tiles that he understood were not cracked, in a position where he believed the tiles were of double thickness, and on part of the flat section of the roof tile. He then climbed up the ladder to the second storey. He secured the top of the ladder to the gutter using the "ockie-strap" in the same manner that he had employed on prior occasions. He was in the process of cleaning the second storey gutter when the ladder fell through the tiles on which the base of the ladder stood and he fell on to the driveway area.
The plaintiff suffered a cominuted fracture of the right distal radius and ulna styloid fracture and a fracture of the left wrist and radial head.
The agreement between the plaintiff and the defendant
The plaintiff describes the conversation in which the defendant requested him to clean the gutters as follows:
"And was there any discussion about how you would do that?‑‑‑Yes, because she has ‑ before she has a single‑storey house that was in Coolbinia and now she got a two‑storey house in Mount Lawley. I just ask her, 'How you think I can do this' and it wasn't any problem to do the – to clean the gutters on the first floor, but I ask her 'How you think I can do the top floor? (indistinct) something to clean these gutters on the top,' and she says, 'But you've got a ladder. You can do that.' … .
…
And if your cousin, instead of saying, 'Yes, you can clean the second floor gutters by using the ladder' if she'd said instead, 'Oh, no, don't go up there, don't use the ladder, that's dangerous' would you have still gone up there? ‑‑‑ No. I didn't want to go up there. I mean I didn't want to go up there by myself. She just asked me. She says, 'Oh yeah, you can use the ladder. You can do that. You're a big boy.' That sort of thing. 'You can do that'. I said, 'Okay I can try'. I mean if she didn't – I says 'How you want me to do that? It's really high.' She says, 'Oh, yeah, you can use the ladder. It's not a problem'. That's all what I get that time with me.
All right, so my question is if she hadn't said that, if she had said 'No, don't go up there with the ladder,' would you have gone up there with the ladder? ‑‑‑ No."
In cross‑examination the plaintiff confirmed that the conversation with the defendant was as follows:
"She did not stand outside the house and look up at the roof and discuss how the job was going to be done? ‑‑‑ No, before I start, soon when I come, I said, look, I'm just off now, I haven't got any call outs so what do you want to me to do and she said, 'That has to be done, this, this, this and that'. I said 'Okay I can do it bit by bit. Maybe Laurence can give me a call straight away so I can maybe just replace the battery and go, then I have to go for a call‑out.' So, soon as time going I say, 'I can do this, I can do that'. When we come to the point for the gutters I said 'How you want me to go over there to clean it?' She says 'You can do that'.
…
I said 'It's pretty difficult. I mean, its second storey'.
But it involved danger? ‑‑‑ Yes, I said, 'How you think we can do that, it's on the second floor?'.
If you thought the job might involve danger, as we said, it might involve danger and all jobs you do can be dangerous, but this one you had difficulty in understanding how you were going to do the job, you could have said to your cousin, 'No, I can't do the job, it's too dangerous. I can't get a ladder up there safely'? ‑‑‑ Yes, I could say that, but I didn't want to make any arguments between us, I mean, she asked me and I feel like I ‑ ‑ ‑
…
Are you saying that your cousin insisted that you do the job? ‑‑‑ She did not force me, 'You must do that job and if you don't do that, it's happen this and that,' but she doesn't have to ask me three times for something that has to be done. If she had a better choice I believe she use some different way.
The question of danger or otherwise in relation to the roof was not discussed. You didn't raise any issues and she didn't say to you, 'You're a bit (sic) boy, get up there, you've got a ladder'? ‑‑‑ Yes, I said, 'How you want me to go up there, I mean, this is a job for the birds,' I try to maybe that way to avoid probably that job, I said, 'It's too high, it's a job for,' and she said, 'No, you can do that, come one' (sic), and I said, this is it, I mean, I didn't want to get in any argue with her."
There is no need to get into an argument. Whether it's your relative or a friend or next‑door neighbour, if you think something's going to be dangerous you can just say no? ‑‑‑ I know but if the same question – ask me, neighbour or Laurence or an employer, I wouldn't do that but this is ‑ ‑ ‑
Yes but accepting that it's your relative it's no different. You know from your own experience tiles are brittle, you're working at heights? ‑‑‑ There is a difference, big difference. It's a different – what you're going to do for her or for someone else."
The plaintiff confirmed that he could not ask his employer to supply an assistant to hold the ladder for him because at the time he was assisting a relative. It was his view that if there was no‑one to assist him, then he had to proceed alone because a job, be it for an employer or for a relative, had to be done. He agreed that his cousin did not force him to carry out the task but stated that she did not have to ask him three times for the job to be done. It was the plaintiff's view that if she had a better choice in relation to the gutters then she would use another way.
The defendant's evidence
The defendant had asked her cousin to help her with home maintenance on previous occasions. She knew that his qualification was as an electrician and that he was not qualified in the roofing trades. The defendant did not have a technical background.
The defendant contacted the plaintiff prior to 16 July 2000 and asked him to assist with maintenance that included fixing the door bell and the toilet door. After this maintenance had been carried out, she then asked him to clean the gutters of the roof of her house. She recalls the conversation taking place inside of the house and said that he agreed to clean the gutters. Her evidence in relation to the conversation is as follows:
"Mrs Fudge, you said that you couldn't recall the particular conversation after you asked about the gutters. Is it possible that your cousin said something to the effect of 'I need to be a bird to get up there,' and you said, 'You can just use the ladder?' is that possible? ‑‑‑ It's possible he made a comment but I just can't recall the exact – what he said. I mean he makes quips but I can't – he had – I knew he had the long ladder but I just can't recall the exact wording – what he said'.
The defendant had asked the plaintiff to help her with home maintenance before and she did not consider the safety implications. She would not have wanted him to have hurt or endangered himself.
The defendant remained inside while the plaintiff cleaned the gutters and ran outside when she heard some commotion to find the plaintiff on the ground. She assisted him by taking him to Royal Perth Hospital.
Evidence of the experts Mr Apgar and Mr Young
Mr William Jack Apgar is a forensic engineer. His formal qualifications are a Master of Science in Civil Engineering and a Bachelor of Science in Mathematics. He has also studied multi‑discipline engineering for three years. Mr Apgar is a chartered professional engineer in Australia; a registered professional engineer in the State of Texas, USA; a Fellow of the Institution of Engineers Australia, and a Member of the College of Mechanical Engineers and the Institution of Engineers Australia. He has investigated numerous work place accidents including numerous ladder accidents. He has had practical experience in the use of ladders on roofs as a carpenter's apprentice while a student at university. His academic and practical experience make him qualified to address issues relevant to his discipline and his expertise was not challenged by the defendant. Mr Apgar concluded that working with a ladder supported on tiles is unsafe. He stated:
"A roof tile is a brittle material; they do break. I've had them break while I've walked on them. I've seen other trades people break tiles walking on them. It is defined as a brittle material and, at least with a foot, if you stepped on the right place and distribute you weight, they're unlikely to break, but with a ladder you have virtually a point load and there's a good chance that the concentrated load will cause a tile to break. Now, under the tile you only have battens and they are spaced apart, basically the width of the spacing of the tile, and if a tile breaks while you're standing on it, it generally redistributes the load because your foot is a relatively large object, so it will transfer the load to other tiles or to the batten, but with a ladder there's a good chance that if the tile breaks it will go through that tile, break the tile below it and then go between the battens so that the ladder is upset".
It was Mr Apgar's view that generally the workplace rules will state that a worker on a brittle roof will require a platform. A simple plank with high friction material on its lower surface and a cleat on the upper surface would be an appropriate platform.
Mr Apgar considered the use of a platform to be more appropriate than using scaffolding or a cherry‑picker. He stated that cherry‑pickers have a limited reach and the lighter units can overbalance. Larger cherry‑pickers are cumbersome and costly, however the larger unit could be used. He was of the view that scaffolding was not generally applicable because portable scaffolding with wheels does not have an overhang, and an overhang would be required because of the roof configuration. In order to use portable scaffolding support points would have to be prepared.
Mr Apgar considered that the skilled trades people who would work on roofs and therefore have knowledge of the relevant safety requirements were roof carpenters, tilers, roof plumbers and antenna installers. He did not include electricians on his list. He did not consider that a ladder needed to be secured from both the bottom and the top, however, on a sloping surface it was reasonable to secure the bottom of the ladder.
Mr Apgar considered that the base of the ladder needed to be on a level surface with adequate friction. A sloping ladder exerts a horizontal force at its base which tends to cause the base to move outwards. He considered that the use of an "ockie-strap" to secure the top of a ladder was not an adequate response, and observed that in the present case, it was clearly inadequate to prevent the ladder from falling.
Mr Peter John Young, a qualified electrician licensed in Western Australia with 29 years experience in his trade was called on behalf of the defendant. Mr Young has experience as an electrical inspector for the Office of Energy from 1995 until 2000, and had held the position of electrical technical officer for the Electrical Contractors Association Western Australia from 2000 to 2001. He currently lectures to apprentice electricians. His expertise as an electrician was not challenged by the plaintiff.
Mr Young stated that publications in relation to electrical standards are available on the Department of Consumer Employment Protection website, and that the onus is on the electrical worker to access information relating to the current electrical standards as part of a professional duty of care.
Mr Young considered that the appropriate way to access the second storey roof at the John Street residence would have been either to use scaffolding or a cherry‑picker. He did not consider Mr Apgar's recommendation that a platform with a high degree of friction would be appropriate unless tiles were removed and the platform was secured on to the roof joists.
It was his view supported by the Office of Energy & Safety's Code of Practice that a ladder would only be secure if it was tied at the bottom and the top and someone stood at the base of it and it was on a secure footing. If the foot of the ladder had not gone through the tiled roof at the John Street premises, then it was his opinion that there was a likelihood that it would slip because it was not on a horizontal base.
Despite the second storey roof being set back from the first storey roof, Mr Young considered the use of a cherry‑picker to be the most appropriate method of gaining access to the roof.
Mr Young had no knowledge of the plaintiff's training as an electrical worker and confirmed that his comments about the contents of a training manual related to first year apprentice electricians.
Conclusions
I accept the evidence of all of the witnesses. The evidence is basically uncontradicted and the plaintiff and defendant both gave truthful evidence of their recollections of what occurred.
The defendant invited the plaintiff to the John Street residence to carry out maintenance as a favour for her. The defendant owed him a duty of care as the occupier of the John Street premises at both common law and under the Occupiers Liability Act.
Section 5(4) of the Occupiers Liability Act states:
"… In determining whether an occupier of premises has discharged his duty of care, consideration shall be given to –
…
(c)the nature of the premises;
…
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
… "
I find as follows:
The nature of the premises
The John Street residence is a two storey domestic unit. It is the sloping ground floor roof and the clay tile surface that presented a danger in relation to the stability and safety of the ladder.
The age of the person entering the premises
At the age of 38 years the plaintiff had lengthy experience as a qualified electrician, had worked on mine sites and had carried out home maintenance on prior occasions. The plaintiff has practical experience and has the intelligence and skill to obtain qualifications to work as an electrician both in Yugoslavia and in Australia.
The ability of the person entering the premises to appreciate the danger
The plaintiff had a real concern about the possible danger involved in cleaning the second storey gutters, yet he proceeded. I will address his response to his concerns under the heading of contributory negligence. I find that he did raise his concern in relation to the cleaning of the gutters in a joking manner with the defendant. She understood him to be making quips, and did not consider the issues he raised seriously. She referred to him having a ladder as a means of accessing the gutters but did not consider the safeguards needed in relation to his use of the ladder.
The plaintiff did not feel forced to carry out the task, but did feel a very strong obligation to proceed regardless of his concerns for his own safety in light of his family relationship with the defendant. He felt that the obligation to proceed was greater than it would be towards his employer or neighbour.
The plaintiff had knowledge of procedures relevant to ladders from his experience as an electrician, from working on mine sites, from his study of books and from his knowledge of the Australian standards. The plaintiff knew that the ladder needed to be on a firm base, and needed to be secured at the top. He understood that a second person holding the ladder would prevent the ladder from slipping prior to the ladder being secured.
The plaintiff knew that his employer would not provide a second person for the task of cleaning out the gutters for his relative therefore he chose to perform the task on his own. He knew from his experience of walking on roofs that roof tiles were brittle, but he understood that a flat section of tile at a point of double thickness would provide a firm base.
The use of the "ockie-strap" to secure the top of the ladder to the gutter was a system he had successfully used on previous occasions. I am satisfied that he understood the danger of climbing the ladder without support at the bottom in order to secure the top of the ladder, and that he understood the danger of using a ladder at height. I am not satisfied that he knew or appreciated the dangers inherent in placing a ladder on a tiled sloped roof. He applied his knowledge of walking on tiled roofs and his knowledge of using a ladder on a flat surface, and reached an erroneous conclusion that the ladder would be secure.
The plaintiff had never previously placed a ladder on a roof, nor had he seen it done. His ability to appreciate the danger did not extend to the knowledge of the effect of the base of the ladder on the tiles nor the effect of the roof angle on the ladder.
Given that the plaintiff had carried out work using a ladder before but had never used a ladder on a sloping tiled roof, I accept that the risks specifically related to placing the ladder on a sloped tiled surface were not obvious to him, nor, given his experience and qualifications, were they likely to be anticipated by him.
The defendant's duty of care
The defendant knew that the plaintiff was not qualified in relation to any roofing trades, and knew that the plaintiff had never assisted her in relation to maintenance work at her two storey residence. The defendant could not assume that the plaintiff would identify and eliminate the risks. In the present case the risks were beyond the normal risks associated with the use of ladders on flat surfaces. Frequent use and experience of using ladders on a flat surface did not fully equip the plaintiff to appreciate what was required when using a ladder on a tiled sloping roof.
It is regrettable that the defendant did not take the words spoken by the plaintiff seriously rather than assuming that whatever he said was a quip. If she had understood that he had serious concerns then she may well have suggested an alternative such as consulting an expert in the field, or obtaining equipment or assistance to allow the plaintiff to carry out the task safely. Alternative supports such as a plank with cleats placed on a flat roof surface once tiles had been removed, or the use of a cherry‑picker were both practical and feasible options. I find that either of these methods were reasonable in the circumstances.
If the plaintiff was given an opportunity to reconsider the use of the ladder alone prior to venturing on to the ground floor roof then I am satisfied that he would have taken an opportunity to reconsider his position. A warning by the defendant would not have been interpreted by him as paternalism given his own concerns about his safety.
The defendant owed the plaintiff a duty of care as occupier of the premises to take reasonable care to prevent foreseeable risk of harm.
The real issue is the standard of care required from the defendant. Regardless of her specific knowledge of ladders on roofs, she knew the plaintiff's employment history and she was aware that the maintenance he had carried out for her on prior occasions did not extend to work on ladders on the ground floor roof. The standard of care included the duty to provide adequate safety on the ground floor roof. Enquiries with those qualified in roofing trades would have resulted in recommendations to use either a platform or a cherry‑picker. Either option would have been practical and reasonable. Either option would have addressed the defendant's obligation to guard against foreseeable risk.
I find that the defendant was negligent and in breach of her statutory duty to the plaintiff.
Contributory negligence
The plaintiff was aware of the dangers related to using ladders at a height. He knew he did not have a second person available, or a means of securing the base while he attempted to secure the top of the ladder.
The plaintiff proceeded because of feelings of loyalty towards his cousin rather than properly considering his own safety. He should have raised his concerns with the defendant more clearly by stating his specific safety concerns and he should have ensured that she provided him with a safe system to clean the gutters.
The plaintiff relied on his knowledge of maintenance and housing matters generally. He did not have sufficient expertise in roofing issues. He was concerned about the time being taken in carrying out the maintenance because he was on call and was concerned that his employer may call at any time for him to attend at a paid job. He did not take the time to speak to the defendant to ensure that a safe system was adopted in relation to the placement of the ladder. He was alone climbing at height and had no experience of ladder placement on a roof.
These factors should have alerted the plaintiff to refuse to undertake the task without assistance or safeguards.
It was submitted by the plaintiff's counsel that the plaintiff's failure to refuse to do the work may suggest a one third deduction, an amount considered appropriate in Ingrilli v De Sales, unreported; FCt of SCt of WA; Library No 980596; 14 August 1998. I do not agree. The deceased in Ingrilli v De Sales had virtually no experience in diving and undertook a commercial task that should have been carried out by a commercial diver. The deceased's almost total lack of experience as a diver cannot be compared with the plaintiff's experience with ladders generally which should have alerted him to the need to make further enquiries or employ other safeguards.
I find that the plaintiff did not take as much care for his safety as he should have and that this contributed to his loss and damage. I consider the plaintiff's omissions played an equal role in the accident.
I find that there should be judgment in favour of the plaintiff against the defendant with damages to be assessed on the basis that the defendant is liable to the extent of one half.
12
2