Paddison v Ultimate Image Pty Ltd t/as Hawkesbury Plasterworks - [2004] NSWCA 410

No judgment structure available for this case.

CITATION: PADDISON v ULTIMATE IMAGE PTY LTD t/as HAWKESBURY PLASTERWORKS [2004] NSWCA 410

HEARING DATE(S): 25 August 2004

JUDGMENT DATE:
17 November 2004

JUDGMENT OF: Sheller JA at 1; Santow JA at 55; Levine J at 56

DECISION: Appeal dismissed with costs.

CATCHWORDS: PERSONAL INJURY - fall from ladder by appellant while performing work for the respondent - whether relationship of employer/employee or contractor/sub-contractor - whether respondent negligent in failing to provide safe system/place of work - whether risk obvious to appellant - whether respondent in breach of regulations 73 and 80, Construction Safety Act 1912 (NSW)

LEGISLATION CITED: Construction Safety Act 1912 (NSW)
Construction Safety Regulations 1950
Scaffolding and Lifts Act 1912

CASES CITED: HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422
Hetherington v Mirvac Pty Limited & Ors (1999) Aust Torts Reports 81-514
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Humberstone v Northern Timber Mills (1949) 79 CLR 389
O'Connor v Commissioner of Government Transport (1954) 100 CLR 225
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

PARTIES :
Howard Paddison - Appellant
Ultimate Image Pty Ltd t/as Hawkesbury Plasterworks - Respondent

FILE NUMBER(S): CA 41153/03

COUNSEL: B M J Toomey QC/F V Fletcher - Appellant
L J Ellison/J Patey - Respondent

SOLICITORS: Taylor & Scott - Appellant
Rankin & Nathan - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 6910/01

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

CA41153/03
DC 6910/01
SHELLER JA
SANTOW JA
LEVINE J

PADDISON v ULTIMATE IMAGE PTY LTD t/as HAWKESBURY PLASTERWORKS

On 6 September 1999, the appellant was injured while carrying out plasterwork at a house under construction at 40 Holt Street, Taren Point. The appellant alleged that while carrying out his duties as a plasterer at the building site he was required to climb down a ladder from the first floor to the ground floor and that, in the course of doing so, the ladder slipped causing him to fall to the floor and sustain injury.

The appellant commenced proceedings against the respondent and a company described as occupying the premises known as Telgrit Pty Limited t/as David Harris Master Builder (Telgrit). The claim against Telgrit was settled at the commencement of the trial. The appellant contended that the respondent was at the relevant time of the accident his employer, or alternatively, had contracted with him for the provision of services on terms that the respondent would exercise all due care and skill in the provision of a safe system of work and/or a safe place of work. The appellant alleged that his injuries were caused by the respondent’s negligence and/or the respondent’s breach of the Construction Safety Act 1912 (NSW) in particular regulations 73 and 80.

The trial Judge held that the appellant was not the respondent’s employee and that the respondent owed no duty of care to the appellant. Further, his Honour held that any obligation to comply with regulation 73 fell on the appellant himself because he was the one carrying out the work.

The appellant challenged the findings of the trial Judge on the grounds that the relationship between the appellant and the respondent was that of employer and employee. The appellant also submitted that even if the trial Judge was correct and the relationship was that of contractor and subcontractor, the respondent, in the circumstances, owed the appellant common law duties of care. Further, the appellant contended that the respondent breached its statutory and contractual obligations to the respondent and also, that the trial Judge erred in his assessment of contributory negligence and damages for future economic loss.

Held: per Sheller JA, Santow JA and Levine J agreeing:

1. The appellant’s remuneration was variable and depended on the number of hours he worked. It was not suggested that during any week, if there had been one, when the respondent had no work available, the appellant was entitled to any remuneration or that he was entitled to any of the benefits that ordinarily would go with a contract of service. Further, there was no evidence to suggest that the respondent was committed to engage the appellant in any job beyond that in hand or had any right to the exclusive service of the appellant. Therefore, at the time of the injury, the appellant was not working as the respondent’s employee.

Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 applied;

Hollis v Vabu Pty Ltd (2001) 207 CLR 21 applied;

Humberstone v Northern Timber Mills (1949) 79 CLR 389 applied;

Zuijs v Wirth Brothers Pty Ltd

2. No doubt it was correct to say that had the ladder been fixed at the top or the bottom the risk would have been avoided. But if there was a risk by it not being fixed, it must have been a risk obvious to the appellant. The appellant did not need to be told how to do his job as a plasterer and his job as a plasterer clearly necessitated the frequent use of ladders. The use of a ladder must be a simple uncomplicated operation for a plasterer of the appellant’s experience.

3. Ultimately the trial Judge came to the conclusion that the accident occurred because the appellant misjudged the way he descended the ladder, thereby causing it to slide because of the distribution of weight. This finding was open to his Honour and no ground was shown, upon the basis of which, it should have been interfered with. The assessment of the risk and the avoidance of any undue risk was for the judgment of the appellant.

4. The contention that the respondent breached regulations 73(2), 80(3), 80(4) and 80(20) was not developed in argument and did not seem to have been dealt with by the trial Judge. However, quite clearly, the appellant, as the person doing the plastering work on the site, and not the respondent, was responsible for complying with these safety regulations.

HC Buckman & Son Pty Ltd v Flanagan

5. It was unnecessary to deal with the appeal against the trial Judge’s findings in relation to contributory negligence and the assessment of damages. However, it should be noted, that his Honour’s assessment of damages in relation to economic loss seemed to involve, on its face, a miscalculation.

Legislation:

Construction Safety Act 1912 (NSW)
Construction Safety Regulations 1950
Scaffolding and Lifts Act 1912

Cases cited:

HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422
Hetherington v Mirvac Pty Limited & Ors (1999) Aust Torts Reports 81-514
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Humberstone v Northern Timber Mills (1949) 79 CLR 389
O’Connor v Commissioner of Government Transport (1954) 100 CLR 225
Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132
Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

ORDERS

Appeal dismissed with costs.

**********

CA 41153/03
DC 6910/01

SHELLER JA
SANTOW JA
LEVINE J
Wednesday, 17 November 2004

PADDISON v ULTIMATE IMAGE PTY LTD t/as HAWKESBURY PLASTERWORKS

Judgment

1 SHELLER JA:

Introduction

2 In his further amended statement of claim, the plaintiff alleged that Ultimate was at the relevant time his employer or, alternatively, had contracted with him for the provision of services for reward on terms that Ultimate would exercise all due care and skill in the provision of a safe system of work and/or a safe place of work. The plaintiff alleged that while carrying out his duties as a plasterer at the building site he was required to climb down a ladder from the first floor to the ground floor and that in the course of doing so “the ladder fell causing the plaintiff to fall to the floor thereby sustaining injury”. He alleged that his injuries were caused by Ultimate’s breach of the Construction Safety Act 1912 (NSW) and particularly parts of regulations 73 and 80 made thereunder. The plaintiff also relied upon negligence of which he provided many particulars.

Reasons for judgment

3 After examining the evidence at length, Judge Delaney held that the plaintiff was not Ultimate’s employee and that Ultimate owed no duty of care to him. Further, his Honour held that any obligation to comply with reg 73 “fell on the plaintiff himself because he was the one carrying out the work”; HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422.

4 The trial Judge said this about the accident:

“6. …[The plaintiff] said that on 6 September 1999 he was sent to perform plastering work at 40 Holt Street, Taren Point, a two-storey home. The plaintiff had been working on-site for a short time before he was injured. The work he was performing was detailed cornice work. On the day of the accident he had work to do on the first floor of the house. He said that Mr Kahunen [Ellis Kahunen described as the owner of Ultimate] would come down every few days and ‘looked around to see that everything was going all right and brought some more material, or just to check and make sure everything was right’. The plaintiff said that when he was on-site he had access to the first floor by a ladder, a photograph of which he identified. He said that the building had reached the stage that the frame was up and he was doing gyprocking work. No stairs had been inserted into the house, and there was a void for the stairs to go into. Mr Paddison said that the ladder was as in photograph 15 [a reference to a photograph in the report of the plaintiff’s expert, Barry A Tozer dated 7 January 2002].

7. The plaintiff arrived at the side at about 7 am and had been working on-site until about 2 o’clock in the afternoon. He said that he immediately went up to the first floor. He said the ladder was the only way you could get up to the first floor. The plaintiff said that the cement renderer did not know how to use the power box, so he asked the plaintiff to come down. He went onto the ladder, and as he got onto the ladder the ladder ‘slipped, and I just lost balance and went onto the concrete floor’.

‘Q. When you say it slipped, could you describe to us what you mean? A. Well, it moved sideways, and as it moved sideways I lost balance.

HIS HONOUR: Q. When you say ‘moved sideways’, was it to the left or the right, do you remember? A. Offhand, I think, I wouldn’t swear by it, but I think it went to the right, because when I got up I was on the right side of the ladder.’

The plaintiff said the ladder slid sideways. The plaintiff said that he did not check the ladder to see if it was tied. He was then asked by the court:

‘Q. Did you check to see whether it was footed? A. I never checked at the time, just hopped on it, everybody, I mean everybody was using the ladder.

Q. Were there other workers who appeared to be in some way or another connected with Mr Kahunen on-site? A. Not at that day, no.’

8. The plaintiff said that when he fell he had pain in his arms, right shoulder and left wrist. He telephoned his wife to arrange for her to take him to Bankstown Hospital where he was treated in the emergency department. He thereafter went to see Dr Kalnins, an orthopaedic surgeon. After the accident the plaintiff did not return to work for some time. Eventually he returned on light duties but with his son assisting him. Because of his disability he could not get a clearance to do his full pre-accident work. Eventually on 27 August 2001 he obtained his current employment as a driver with Ace Overalls (a drycleaning service).

9. When cross-examined the plaintiff agreed that he had been a plasterer or done plastering work for over thirty-five years in domestic and household construction and renovation and repair. He had worked on multi-storey buildings, he had worked for himself and in teams, and had been both a supervisor and had been supervised. He agreed that he had used all sorts of equipment from simple ladders to high scaffolding and pneumatic lifts. He was asked:

‘Q. Apart from being told where the job was, so far as the detail of the work how to do it, you didn’t need to be told by anyone how to do your job as a plasterer, did you? A. Not at all times, not at all times, no.

Q. And in respect of this job at Taren Point, having been told what the job was to do, you didn’t need to be told by Ellis how to do the work? A. I was at this particular job.

Q. You were told? A. On this particular job I was.

Q. What were you told? A. Well, I was told how to do it because the simple reason was this was the first time he actually did a job for this builder and he wanted to keep him.

Q. Yes, and you were told to do quality work and take care with detail, et cetera? A. Correct.

Q. So far as the physical minute to minute, hour by hour doing of the job, you didn’t need to be told how to do a good job, did you? A. No.

Q. Indeed, when Ellis came, he came only every two to three days? A. That’s correct.’

10. The plaintiff said that there had originally been some scaffolding on-site, but because it was no longer needed he arranged for it to be returned and collected by the hire people. He agreed that by 6 September the need for the scaffolding had passed. He said that there were other tradesmen on-site from time to time. He thought that he had been on the job for about three weeks and the job was nearly finished. He was asked:

‘Q. When you say you saw others use the ladder, by that do you mean – and sometimes we have to be excessively simple – you saw other tradesmen going up and down the ladder during the day as part of their work or getting to where they had to work? A. I did.

Q. You saw people carrying tools up and down? A. I did.

Q. You saw them passing tools up and down? A. I did.

Q. Passing materials up and down? A. Yep.

Q. Over the previous weeks had the ladder been located at the same spot it was when you had your fall? A. It was.

Q. You, yourself I think said in evidence that you had used this ladder many times? A. I have.’

He said that he had carried small pieces of material up and down the ladder.

11. The plaintiff agreed that ninety-five per cent of the time the only work available as a plasterer was on a sub-contract basis, and that is what he did. The plaintiff said that he had never had any difficulty obtaining from Ellis things that he needed for the purpose of carrying out his tasks. The plaintiff agreed that over the thirty-odd years of his working life he had used ladders, both wooden and metal A-frame extension. He was asked:

‘Q. You took no particular notice of this ladder, or there was nothing about it that attracted your attention until after you had your fall, that ‘s correct? A. That’s correct.

Q. Presumably you’ve used ladders when you’ve been able to use them yourself, and other times when you’ve had to have someone stand at the bottom to hold it for whatever reason? A. That’s correct.

Q. And without being discourteous, after thirty odd years of being a plasterer in domestic and other environments using ladders you consider yourself to have enough common sense and experience to look after yourself on a building site without someone looking over your shoulder, correct? A. That’s correct.’

12. The plaintiff knew that the building site was being conducted by Mr Harris, who was the director of the company, Telgrit. Mr Harris was apparently at the site most days. He would come around to make sure everything was being done to his satisfaction. He spoke to the plaintiff regularly. The plaintiff was later asked:

‘Q. Whenever you went up and down the ladder, except on the last occasion, you had no problems with going up and down the ladder? A. Nobody did, no.’

13. The plaintiff said that he had done ladder jobs for the defendant before this one, his knee was painful but had not collapsed of recent times. The plaintiff said that the ladder slipped and he lost balance. He said he was on the way down the ladder. He said the only thing he was not sure about was how he landed. He maintained that he had always said that the ladder slipped and that he was on his way down, although he could not recall how far down the ladder he was. He said he had both feet on the ladder. He was asked:

‘Q. Are you saying that the ladder started to move and that you then lost your balance and fell off the ladder? A. That’s correct.

Q. You didn’t ride it to the ground? A. No.

Q. To the best of your recollection your hands were empty at the time this happened? A. They certainly were.’

The plaintiff said that his hands were on the ladder as well as his feet at the time the ladder commenced to slide. He said he did not have any trouble as he started to move down the ladder, although he was completely on it. He recalled that he was closer to the top of the ladder than the bottom. The plaintiff said:

‘Q. In that instant before you started moving down, the ladder wasn’t moving at that stage, was it? A. I can’t recall. All I know is the ladder moved and I fell.

Q. And you were just somewhere on the ladder when it moved? A. That’s correct.

Q. It is indeed possible that you might have been coming down the ladder, I don’t say by much, you might already have started your pathway down, or your climbing down, before the ladder started to move? A. It could have.

Q. You just don’t know? A. All I can remember is the ladder moving and me falling off it. That’s all I really remember. What position I was on the ladder, I couldn’t swear by it.

Q. Can I just ask you to say before you got onto the ladder you stood at the top of the landing? A. That’s correct.’

The plaintiff said the ladder was as shown in photograph 12 [ a reference to another photograph in Mr Tozer’s report of 7 January 2002]. The plaintiff said that there was nothing in the void where the ladder could have been tied off.

14. The plaintiff denied that he was on the ledge and that he misjudged where he was and fell over the edge with the ladder falling down with him. He said this was not correct. The plaintiff said that Mr Kahunen used the ladder and he never saw Mr Kahunen have difficulty going up and down the ladder. There was a difference between the plaintiff and the defendant as to the manner in which the plaintiff fell.”

5 Judge Delaney said that there were no contemporaneous records which were unequivocal as to the manner in which the plaintiff’s accident occurred. Ultimate called Mr Peter D’Amico, who gave a different account of the fall. The trial Judge preferred the plaintiff’s account to that of Mr D’Amico. The plaintiff said to various experts and medical practitioners that the ladder slipped. His Honour was prepared to accept that more likely than not this occurred and was the cause of his injury.

6 Next his Honour referred to the expert report of 7 January 2002 from Mr Tozer, an expert in building. The trial Judge said:

“17. …The report was partly based on incorrect information. However the report contained photographs of the ladder and the premises. The ladder was aluminium with a rubber foot at the end of each leg of the ladder. This feature was to prevent the ladder slipping. The ladder was not tied at the top, and no workman steadied the ladder before workers went up or down. It appears that the practice was to not tie off the ladder and to not have it held. The plaintiff worked alone. Economic considerations seem to have been the explanation for this.

18. Mr Tozer said that the likely cause of the accident was the position of the ladder at the time the plaintiff commenced to descend. He said that the ladder was defective and unsafe for use. He was not cross examined on this opinion nor was contrary evidence adduced. He said that if the ladder could not be securely fixed at the top then at least it should be securely fixed at the bottom or someone should be stationed at the base of the ladder to prevent slipping. He said the ladder was damaged and because of the defect did not comply with relevant regulations. However there is no evidence the condition of the ladder made it unsafe for use. Ladders have to be serviceable not new.

19. Although Mr Tozer said the defendant was negligent by providing a ladder which was defective, there was no evidence the defendant provided the ladder and in fact no one knew the way in which the ladder came to be on-site. The plaintiff was an experienced employee or subcontractor plasterer. The defect in the ladder was obvious. The lack of any tying off of the ladder was obvious and it was obvious that no one was holding the base of the ladder when he commenced to descend. ...

20. The plaintiff told Mr Tozer ‘as he attempted to descend the ladder it fell over causing Mr Paddison to fall to the floor below’. While Mr Tozer said it was foreseeable that a ladder with defects placed in a position and manner shown in the photographs was almost certain to fall over when a person mounted it from the first floor level, the plaintiff’s evidence did not support the opinion offered by Mr Tozer.”

7 Later in para 23 of the reasons for judgment, Judge Delaney said:

“23. …The question is why the ladder slid. Mr Tozer sought to give the answer to this. He said the photographs indicated that the ladder would appear to have been a single aluminium ladder four metres in length which had been inclined at a correct angle, but not fixed. He said the photographs showed that the ladder was fitted with rubber strips at both ends of the stiles, and that the photographs also show that there was some damage to the treads. As well, the inside faces of the stiles were not parallel. The problems with this evidence is that it was never suggested that the defendant provided the ladder. The ladder was on-site, the defendant knew it was on-site, as did the plaintiff, and both had used it. Others had used it without difficulty.”

8 It is not clear whether the trial Judge took account of the further opinion of Mr Tozer set out in a letter of 19 February 2002 which was in evidence. In that letter Mr Tozer referred to his report of 7 January 2002 and continued:

“You have advised in your recent letter that the ladder did not fall over when Mr Paddison climbed onto it. It is said to have moved sideways and he fell off it.

It would appear that, contrary to the assumption that I had made, the sideways movement of the ladder was arrested by the timber framing at the corner of the landing. However, from a review of the photographs, it would appear that the ladder had moved sideways a distance of at least 300mm before reaching the vertical timber at the corner. That degree of unexpected lateral movement of the ladder would have been sufficient for a person climbing onto a rung near the top to lose their balance and fall from the ladder.

I maintain my opinion that this ladder was defective and that the sideways movement which occurred when Mr Paddison climbed onto it was a result of these defects. Movement of the ladder could have been controlled and perhaps eliminated if the ladder had been fixed at its top point of support.

I trust that this supplementary report will be of assistance in the resolution of this matter. I am available to clarify any matter raised in the report or give evidence on request.”

9 Mr Tozer was not required to attend court and was not cross-examined. In his evidence the plaintiff, looking apparently at the same photograph (No 12) said that the timber, namely “the uprights and the ones going across vertical, and horizontal” were not there at the time of the accident. According to Mr Tozer the photographs were taken three weeks after the accident.

10 The trial Judge said of the medical reports tendered:

“21. Dr Benanzio obtained a history that the plaintiff was working as a subcontractor, was on a ladder which slipped, and he fell about three metres. The CRS [CRS Australia] recorded that the plaintiff was working as a subcontract plasterer. In a report of 12 April 2001 Dr Kalnins merely recorded the accident in the following way: ‘Mr Paddison came under my care following a fall from a ladder while at work on 6 September 1999.’ The employer’s report of injury, exhibit B, records:

‘Q. How did the injury occur and what was the worker doing at the time (eg. Slip while walking down stairs)? A. Slipped while coming down ladder.’

This document recorded that the plaintiff was receiving $1,200 a week. …”

11 Judge Delaney went on to find that the relationship between the plaintiff and Ultimate was that of contractor and sub-contractor notwithstanding the fact that the plaintiff worked only for Ultimate. The trial Judge concluded, there being a relationship of independent contractor and entrepreneur which had lasted only a few months before the accident, that it could not be said that Ultimate owed a duty to the plaintiff by virtue of their relationship. His Honour found that in the context of a contractual obligation Ultimate, was required to provide a safe place of work and equipment. Ultimate fulfilled this obligation and therefore there was no breach of contract.

12 This brought Judge Delaney to the claim for breach of statutory duty. His Honour said:

“25. … The plaintiff contends that the defendant contravened regulation 73 of the Construction Safety Regulations. Regulation 73 provides:

‘Any person who directly or by his servants arranges and carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work.’

[The regulation quoted is 80(3) upon which the plaintiff also relied].

The measures the plaintiff alleged that the defendant should have taken in this case were to provide suitable and safe scaffolding, a safe means of access, and the provision of fencing or other means of securing the safety of a person working at a place from which he would be liable to fall a distance of more than 1.8 metres. The plaintiff claimed that the defendant had breached regulation 73 by failing to take adequate measures to minimise accident risk and to prevent injury. It was not contested by counsel for the defendant that a breach of regulation 73 did not give rise to a cause of action.

HC Buckman & Son Pty Limited v Flanagan

Buckman

‘It will generally be found in the case of an employee and it will often be found in the case of a sub-contractor that, though performance of the acts necessary to performance of some statutory duties may properly be delegated to them, the performance of other acts and the compliance with other statutory duties will remain the direct obligation of the employer or the head contractor, as the case may be. Whether in any particular case this is so will depend upon the circumstances.’

27. In this case the head contractor is no longer a party to these proceedings. In my opinion the direct obligation in relation to the statutory duties could not be said to have devolved upon the defendant. Jacobs J [earlier had said at 446]:

‘A subcontractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty.’

28. There is authority that where the head contractor has the task of coordinating the work of various trades to be carried out by subcontractors then the basis of supervision and coordination can alter the relationship between the head contractor and a subcontractor to reserve to the head contractor an obligation to comply with the regulations.

29. In my opinion, on the facts of this case, there was no such reservation, as there was no obligation on the defendant to do anything other than send the plaintiff to perform the work. In my opinion the duties under regulation 73 were wholly delegated to the plaintiff because there was no further work that still had to be done by the defendant, who was not involved in coordinating and supervising activities on the site.

Law Reform Miscellaneous Provisions Act

Statute Law Amendment Act

Civil Liability

Law Reform (Miscellaneous Provisions) Act

13 Later in his judgment, the trial Judge gave these reasons:

Was the plaintiff a contractor or an employee?

31. The evidence on this point was that during the relationship the plaintiff an experienced gyprock fixer, only worked for the defendant and had done so for some years. He worked five days each week, and some Saturdays. He worked about 40 hours a week. He provided the defendant with invoices for his hours of work. The hourly rates would differ depending on the circumstances. The defendant would provide all materials on-site but the plaintiff would provide his own tools and any scaffolding up to 2.4 m. The plaintiff arranged his own workers compensation insurance. The defendant would deduct taxation under the prescribed payments scheme rather than the pay as you earn system. The defendant would decide the work allocation and direct the plaintiff to the various work sites.

32. While the matter is not completely free from doubt I conclude on this evidence that more likely than not the plaintiff was an independent contractor. The defendant owed to the plaintiff the same or a similar duty to take reasonable care as would a direct employer, and to take reasonable care to provide a safe system of work.”

14 His Honour then posed the question of whether there was a breach of duty but regarded the case as distinguishable from Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132. In that case the plaintiff, a stockman, was working as an independent contractor and not as an employee of Rockdale, when he was injured at Rockdale’s feed lot while doing mustering and related work. Judge Delaney quoted extensively from that decision and the also decision of Wood CJ at CL in Hetherington v Mirvac Pty Limited & Ors (1999) Aust Torts Reports 81-514. In the second case, the plaintiff was a skilled roof tiler who, while commencing work for the setting out of a roof, fell through fibro eave sheeting intended as a lining for part of the roof. The plaintiff knew of the dangers of stepping on to unsupported fibro. Walking on rafters was an everyday occurrence for him. It was part of the skill and experience that he brought to his trade that he coped with that situation. He brought a claim to recover damages from the head contractor and developer of the retirement village which he was taking part in building. The head contractor had sub-contracted the fibro cement lining work to another company. At 66,014 para [181] Wood CJ at CL remarked that the simple truth was that the plaintiff made a misjudgment and took a calculated risk for which, in the Chief Judge’s view, he should be regarded as solely responsible.

15 Judge Delaney continued:

“35. It is true that the manager of the defendant company was regularly on-site. He would come to the site for various periods each day. It is therefore reasonable to assume that he knew, or ought to have known of the condition of the ladder. The manager cannot give evidence as he has suffered a stroke.

What is the scope of the duty of the defendant to the plaintiff’s

an experienced employee or subcontractor if duty of care is established?

36. It was submitted by the defendant that the defendant had not breached its duty. The plaintiff on the other hand submitted that the defendant should have instructed the plaintiff about the proper use of the ladder. It was submitted that the plaintiff should have been told not to use a defective ladder and that the ladder should have been replaced as it was defective. In my opinion the defendant was not required to take such a step to discharge the duty to take reasonable care. The plaintiff was an experienced and skilled worker involved in the building trade. He had daily experience with ladders over more than 25 years.

37. It also depends on how the ladder fell. What caused the accident? The plaintiff said that as he stepped onto the ladder and was holding it with both arms and had both legs on the rungs it moved to one side. It was not suggested that the ladder collapsed and the photographs do not support this contention. Indeed it appears that the only explanation advanced by the plaintiff is that the ladder moved because it was not tied. I consider that this accident occurred because the plaintiff misjudged the way he descended the ladder, thereby causing it to slide because of the distribution of his weight.

38. Mr Tozer suggests that good practice required that the ladder be fixed. However it seems to me this ignores the practice and procedure of the building industry. It may be that it is expensive and inappropriate to have an additional worker alongside the plaintiff to steady the ladder when the plaintiff is an experienced workman and is used to ladders and has been so experienced for many years. It is not clear what instruction should have been given to the plaintiff that would have avoided the injury suffered by him.

McLean v Tedman

Decision on Liability

40. In my opinion, the plaintiff was a subcontractor. The defendant did not coordinate any aspect of the work and therefore I find that there was no duty of care owed by the defendant to the plaintiff in their relationship of contractor and subcontractor. Even if there had been such a duty I find that there was no breach of statutory duty. There was in my opinion no breach of the contractual terms into which they entered. In those circumstances there would be a verdict for the defendant. If others were of a different view and it was necessary to consider the question of contributory negligence pleaded, I am of the opinion that contributory negligence has been established as the risk was clearly foreseeable to the plaintiff, and the plaintiff’s damages should be reduced by 25% for contributory negligence considering the relative culpability of the parties. I now turn to damages. In the event others are of a different view to me on the question of liability.”

16 Judge Delaney assessed damages under several heads. One head, economic loss, is relevant to this appeal. His Honour said:

“45. The parties agreed arithmetically that the plaintiff had lost income to the date of trial in the sum of $110,000 depending upon whether it was found that the plaintiff had any other capacity for work than that which he was presently performing at a rate of $424 per week and if the base figure was correct. In my opinion his current wage reflects his current earning capacity. However he has not taken expenses as a subcontractor into account in determining earnings before the accident. I consider that his average net earnings before this accident were $600 on average. Therefore his loss is $150 per week. I consider that the sum of $150 per week should be allowed to the plaintiff to age 65 on the 5% tables less 20% for vicissitudes to account for the fact that the had a pre-existing leg problem which had already affected his ability to be able to work as a plasterer before this accident.”

Grounds of appeal

17 The notice of appeal contained thirty-two grounds, a prolix document of no assistance to the Court in preparing for the appeal which was rightly abandoned in favour of the following grounds relied upon in the written submissions:

1. The relationship between the appellant and the respondent was that of employer/employee rather than contractor/ subcontractor.

2. Even if the relationship was that of contractor/ subcontractor, the respondent in the circumstances owed the appellant common law duties of care.

3. The respondent breached its common law duties of care to the appellant whether they arose out of an employer/employee relationship or a contractor/subcontractor relationship.

4. Whatever the relationship between the appellant and the respondent, the respondent owed the appellant the duties prescribed by regulations 73(2) and 80(3), 80(4) and 80(20) of the Construction Safety Regulations.

5. The respondent breached its statutory duties to the appellant.

6. The respondent breached its contractual obligations to the appellant.

7. The appellant also submits that his Honour’s finding that the plaintiff was guilty of contributory negligence to the extent of 25% was too high and that his Honour erred in the assessment of damages for future economic loss.

“Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74:

…

(2) provide and maintain safe means of access to every place at which any person has to work at any time,”

Regulation 80(3) is quoted in para 25 of Judge Delaney’s reasons for judgment (above) incorrectly described as regulation 73.

“(4) Ladders shall be placed so that:

(a) each side rail or stile has a level and firm footing and the top rest for each side rail or stile is level, reasonably rigid and of adequate strength to support the maximum applied load, and

(b) the side rails or stiles are not supported by boxes, loose bricks, or other loose packing.”

“(20) No ladder or step ladder shall be used which has:

(a) a missing or a weakened, broken or otherwise defective rung or tread or a broken or defective stile, or

(b) any rung or tread which depends for its support solely on nails, spikes, or other similar fixing.”

Discussion

Ground 1

18 In assessing the evidence which supported the plaintiff’s submission that his relationship with Ultimate was that of employee and employer, Mr Toomey QC, who appeared for the plaintiff on the appeal, complained that the trial Judge made no reference to the fact that Ultimate, in preparing the “Employer’s Report of Injury” under the heading “Worker’s employment particulars”, answered the question “Is worker a direct employee”, “Yes”. Judge Delaney also found that the plaintiff arranged his own workers compensation insurance (see para 31 of the reasons for judgment quoted above) when, it was submitted, the evidence was to the contrary. The trial Judge acknowledged, when concluding on the evidence, that it was more likely than not that the plaintiff was an independent contractor, that the matter was not completely free from doubt. That being so, Mr Toomey submitted that the two pieces of evidence either not taken into account or misunderstood should reverse the conclusion to one that the plaintiff was the employee of Ultimate.

19 In Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, Brodribb was the owner of a large hardware sawmill and conducted extensive logging operations for which purpose it was Brodribb’s practice to engage persons whose functions fell within three categories, namely, felling, snigging and truck driving, and to allocate them to specified parts of its logging areas known as compartments. It was the function of a feller to fell trees and of a snigger to push or pull logs to a loading ramp constructed by him by means of a tractor or bulldozer and to load them on to trucks for delivery to the sawmill by the truck driver. The loading operations were overseen by a “bush boss” who was an employee of Brodribb (see generally p 21-22). During the course of such logging operations, the plaintiff, Stevens, sustained injuries while engaged by Brodribb as a truck driver. The injury was caused by the negligent act of one Gray who was loading logs on to the plaintiff’s truck. A question for the court was whether the plaintiff or Gray were employees of Brodribb. Both men provided and maintained their own equipment, set their own hours of work and received fortnightly payments from Brodribb determined by the volume of timber they had been involved in delivering to its sawmill. Brodribb did not deduct income tax instalments from the payments. Although they were available each working day, fellers, sniggers and truck drivers were not guaranteed work and were free to seek other work if bad weather or other circumstances prevented them working for Brodribb. Some truck drivers carried on business in partnership with their wives, although this was not the case with the plaintiff or Gray. At 25-26 Mason J, (as his Honour then was) said:

Humberstone v Northern Timber Mills

‘The essence of a contract of service is the supply of the work and skill of a man. But the emphasis in the case of the present contract is upon mechanical traction. This was to be done by his own property in his own possession and control. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents.’ “

20 Another factor Mason J referred to was that both men regarded their relationship as one of independent contract which enabled them to delegate.

21 At 36-37 Wilson and Dawson JJ , after referring to the control test as the surest guide to whether a person was contracting independently or serving as an employee, said:

“The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.

Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance. That is best illustrated by turning to the circumstances of this case and in particular to those circumstances which were suggested as indicating that Gray was the servant of Brodribb.”

22 Their Honours concluded that both men were employed by Brodribb as independent contractors and not as servants. Brennan J was in general agreement with the reasons prepared by Mason J. Deane J also agreed that the preferable view was that both men were independent contractors and not employees.

23 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 was concerned not with injury to a worker but vicarious liability. At 41 reference was made to the passage in Stevens v Brodribb Sawmilling at 29 where Mason J had said that

Zuijs v Wirth

Brothers Pty Ltd

24 In the present case, the plaintiff relied upon the following matters to demonstrate that the relationship was one of employee and employer. Ultimate represented in the injury report that the plaintiff was its direct employee. The plaintiff worked for Ultimate and no one else. The plaintiff’s hours were usually forty hours a week (the normal eight hours a day) plus a lot of Saturdays. The plaintiff was paid a variable hourly rate for the hours worked. Ultimate supplied the plasterboard sheets, bags of plaster, nails, screws, setting angles, setting tape, cornices and cornice cement, that is to say whatever had to be put into the house. The plaintiff supplied a couple of trestles and a plank and hand tools, hammer, nail bag and setting tools. Ultimate deducted tax under the prescribed payment system (PPS) from the gross amount due to the plaintiff and paid him the net amount on a weekly basis. Ultimate would tell the appellant how it wanted a job done. Ultimate assigned work to the plaintiff, sometimes interrupting one job to send him to another job. The plaintiff denied running a business. Sometimes he worked for wages and other times under the PPS. Everybody the plaintiff worked for took tax out and covered him for workers compensation.

25 With regard to the job at Taren Point, Mr Kahunen visited the site almost every two days, certainly every three days, bringing materials and checking on the work. He told the plaintiff how to do the job, to do quality work and take care with detail. The plaintiff did not need to be told how to do a good job so far as the physical minute to minute, hour by hour doing of the job was concerned. Ultimate let the plaintiff do his job as an experienced plasterer but picked on things, checked the work and required the work to be re-done if it was not to its satisfaction.

26 The plaintiff’s income tax returns for the relevant period show that Ultimate, without deduction for PAYE tax, was making deductions pursuant to the PPS, a system which applied to self-employed persons in particular industries. That favoured the view that the plaintiff was self-employed and not an employee of Ultimate. The plaintiff had started working for Ultimate in about February 1999. It seemed from time to time that the plaintiff’s son came and worked with him, though it is not clear how the son was paid for his work, that is to say, whether by Ultimate or by the plaintiff. The method of remuneration was that each week the plaintiff gave Ultimate an invoice of how many hours he worked on a particular job and was paid for those hours. The rate varied. He worked from Monday to Friday from 7 until 3.30 but sometimes worked back to get a job finished. He never took any holidays or leave. He could not afford to take a rest.

27 It is helpful to refer to the judgment of Latham CJ in Humberstone v Northern Timber Mills at 396 where his Honour described what might be regarded as the traditional distinction between an employee and an independent contractor. He said:

Performing Right Society, Ltd v Mitchell & Booker (Palais de Danse) Ltd

Queensland Stations Pty Ltd v Federal Commissioner of Taxation

28 I note that in the present case the plaintiff found that the requirements of Ultimate kept him fully occupied with all the work which he wished to do and payment was made to him based on the hours that he worked.

29 By contrast, in Zuijs v Wirth Brothers Pty Ltd at 569 Dixon CJ and Williams, Webb and Taylor JJ said of a conclusion that a contract between an acrobat and circus proprietors was an independent contract and not a contract of service:

“What foundation does the evidence afford for such a conclusion? Here is a man engaged indefinitely at so much a week, by the proprietors of a circus that goes from place to place, to give with a companion an acrobatic act at every performance and to appear in the grand parade. That is in effect all you know that matters. What is there in it that points to an independent contract? A weekly hiring for an indefinite period to do a defined task on the premises of the other party as an integral portion of a spectacle under his general management and control would appear to present elements characteristic of a contract of service.”

30 The plaintiff was not engaged in such a way. He was not engaged indefinitely but for particular jobs. He was not paid a weekly hiring for an indefinite period to do a defined task. His remuneration was variable and depended on the number of hours he worked. No one suggested that during any week, if there had been one, when Ultimate had no work available, the plaintiff was entitled to any remuneration or that he was entitled to any of the benefits that ordinarily would go with a contract of service, for example, paid sick leave or holiday pay. Further, there was nothing here to suggest that Ultimate was committed to engage the plaintiff in any job beyond that in hand or had any right to the exclusive services of the plaintiff; compare Stevens v Brodribb Sawmilling at 36-37 per Wilson and Dawson JJ.

31 In my opinion, at the time of his injury the plaintiff was not working as Ultimate’s employee.

Grounds 2 and 3

32 In Stevens v Brodribb Sawmilling at 30 Mason J turned to consider whether Brodribb was under a general common law duty of care to Stevens. At 31, his Honour said:

“If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”

33 At 45, Wilson and Dawson JJ said that they were prepared to assume that Brodribb was under a duty of care towards Stevens:

“although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees.”

34 At 47-48 Brennan J said:

Sutherland Shire Council v Heyman

It is obvious that the plaintiff in the present case was competent to ensure that the ladder was safe and used safely without supervision by Ultimate.

35 In evidence, the plaintiff agreed that after thirty odd years of being a plasterer in domestic and other environments, using ladders, he would consider himself to have enough common sense and experience to look after himself on a building site without looking over his shoulder. He had taken no particular notice of this ladder. There was nothing about it that attracted his attention until after he had had his fall. As the trial Judge said over thirty odd years of his working life he had used both wooden and metal A-frame and extension ladders. He had worked on multi-storey buildings. He had worked for himself and in teams and had been both a supervisor and had been supervised. He used all sorts of equipment from simple ladders to high scaffolding and pneumatic lifts. He did not need to be told by anyone how to do his job as a plasterer. He had seen other tradesman going up and down the ladder during the day as part of their work or as a means of getting to where they had to work.

36 In Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 this Court considered a plaintiff’s appeal from the decision of a Master dismissing his claim. The plaintiff, who was employed to install and dismantle Christmas decorations, was working at the Imperial Arcade on a 12 foot aluminium ladder. He was standing on the second top step of the ladder which he had climbed. While reaching up full stretch with one arm and leaning forward to clip a hook for hanging garlands, the plaintiff fell. In the course of his judgment, Heydon JA (as his Honour then was) with whom Meagher JA and Foster AJA agreed, observed at (56) that it was not necessary to consider the detailed arguments which the plaintiff advanced in attacking the Master’s conclusion that he was an independent contractor and not an employee, because “it was not shown that a characterisation of the relationship as one of employment would have led to any different result before the Master or would lead to any different result in this Court”. Under the heading “Foreseeability”, Heydon JA referred to the judgment of Taylor J in Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337 at 343-4 and the judgment of five members of the Court in O’Connor v Commissioner of Government Transport (1954) 100 CLR 225 at 229-230. In the second case, an experienced plumber employed by the defendant fell through an awning which was affected by dry rot. Dixon CJ, Webb, Fullagar , Kitto and Taylor JJ said at 229-30:

“This conclusion seems inevitable. The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.

37 Heydon JA referred to Glass, McHugh and Douglas, The Liability of Employees in Damages for Personal Injury (2nd ed 1979) at 45-6 where it is said that these two cases laid down an important principle in limitation of the employer’s liability.

“An area is marked out within which the employer’s duty to provide a safe system of work is inoperative. It would appear that the immunity of the employer will be limited to isolated operations of no complexity outside the normal system or simple uncomplicated operations within it. It is not likely that the principle will undergo much further elucidation as scope for its operation is essentially a matter of degree depending upon the nature of the industrial activity. The only unifying principle available is the power of the court to hold that on the evidence in the particular case it would be beyond all reason to find an employer in breach of duty for failure to take certain specified steps. The impossibility of further definition is due not only to the inutility of classifying industrial tasks, but also the fact that what can reasonably be expected of industry by way of safety precautions is a developing concept.”

38 Heydon JA continued under the heading “Conclusion in relation to the plaintiff’s submissions”:

“64 In evaluating the plaintiff’s submission set out above, it is necessary, as the submission contemplates, to put aside ‘the obvious likelihood that [he] in circumstances of time pressure might reach from the top of the ladder to left and to right in order to save time’. That must be done for the reasons set out above. There was no evidence or finding that time pressure was affecting the precise way the plaintiff was operating. That leaves three points in the plaintiff’s submissions.

for persons experienced in that type of work

for the plaintiff

Wyong Shire Council v Shirt

Nagle v Rotnest Island Authority

Modbury Triangle Shopping Centre v Anzil

Shirt v Wyong Shire Council

Smith’s

O’Connor’s

Stevens v Brodribb Sawmilling Co Pty Ltd

67 The third point made by the plaintiff is that the findings of fact referred to in Ground 2 contradict the Master’s conclusion that there was no foreseeability.

68 The first of the allegedly contradictory findings of fact was, in para [34], expressed thus:

‘there was a risk arising from the nature of the work and there was some need for co-ordination by the defendant in relation to the delivery of the decorations.’

Stevens v Brodribb Sawmilling Co Pty Ltd

Brodribb

69 The second passage on which the plaintiff relies as contradicting the finding on foreseeability is at para [51]:

‘It may be accepted that a risk of injury attaches in respect of any person who had to go on to work at height in order to install Christmas decorations. It follows from the circumstances that such a person is expected to work at a height [such that] he had to use a ladder.’

‘So far as these particulars relate to fault directly attributable to the defendant they depend upon there having been a personal duty of care reposed in it to exercise reasonable care to protect the plaintiff from foreseeable risk of injury, which called on it to ensure that they took adequate precautions for the plaintiff’s safety while he carried out his visual display work. It may be accepted that a risk of injury attaches in respect of any person who had to go on to work at height in order to install Christmas decorations. It follows from the circumstances that such a person is expected to work at a height [such that] he had to use a ladder. For the security and soundness of the ladder he had to rely upon the defendant.’

70 The third allegedly contradictory passage relied upon by the plaintiff is from para [69]:

‘It is my view that a mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk.’

71 In oral argument counsel for the plaintiff put the plaintiff’s case in the following forceful way:

‘if a man is standing half way up a ladder then of course he has the benefit of hand holds, mainly the rest of the ladder. If he is standing at the top of a ladder which is leaning against a wall then he presumably may get some hand holds on the wall or some part of the structure but when he’s got a ladder that’s standing out in the open like a pyramid and he’s perched at the top of it and he has no point of stability beyond such as may be obtained by resting his shins against the top of the ladder we would say that it is plainly reasonably foreseeable that he’s at risk of falling off and seriously damaging himself.’

39 A little further on in his judgment, Heydon JA said:

“74 A primary difficulty in the plaintiff’s position goes beyond the fact that he ought to have perceived the dangers in working very high on the ladder because of his experience in that type of work and on the very site of his injury, and beyond the fact that it would have been reasonable for the defendant to assume that he, as a skilled and experienced contractor in that line of work, would have perceived and guarded against those dangers. The fact that the higher up a ladder one moves the more care one must take for one’s own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult’s capacity.”

40 At 83 Heydon JA said:

Wyong Shire Council v Shirt

Council of the Municipality of Waverley v Lodge

41 With due respect, Mr Tozer’s expert report in its original or amended form gives little assistance in understanding the mechanism which resulted in the plaintiff’s fall. No doubt, Mr Tozer, by reference to one of the photographs (16) justified his statements that there was some damage to some of the treads (particularly the bottom two treads) and, in his words “more significantly”, that the inside faces of the stiles were not parallel and the stiles were not straight from top to bottom. He estimated from one of the photographs “that the lateral deformation of the stiles from the straight line joining the top and bottom point of the stiles was about 25 mm (approximately the width of the flange of the stile section).” He said that when the ladder was placed with its feet on level ground the centre line at the top of the ladder would have been offset at least 50 mm from the vertical at the base. In his report of 7 January 2002, he expressed the opinion that it was foreseeable that a ladder with the defects he described placed in the position and manner shown in the photographs, “was almost certain to fall over when a person mounted it from the first floor level”. The known experience of use of this ladder before the plaintiff fell and the absence of any evidence that anybody else had fallen from the ladder belies this conclusion. No doubt it is correct to say that had the ladder been fixed at the top or the bottom the risk would have been avoided. But if there was a risk by its not being fixed, it must have been a risk obvious to the plaintiff. The plaintiff did not need to be told how to do his job as a plasterer and his job as a plasterer clearly necessitated the frequent use of ladders. It is not known who provided the ladder. It was not provided by the plaintiff and there was no evidence it was provided by Ultimate. The use of a ladder must be a simple uncomplicated operation for a plasterer of the plaintiff’s experience.

42 Judge Delaney observed:

“It appears that the practice was not to tie off the ladder and not to have it held. The plaintiff worked alone. Economic considerations seemed to have been the explanation for this.”

43 Furthermore, his Honour said: “However there is no evidence the condition of the ladder made it unsafe for use. Ladders have to be serviceable not new.”

44 To the extent that there was evidence it was Mr Tozer’s. However the defects described by reference to the photographs and measurements based on the photographs did not persuade the trial Judge. Nor am I persuaded. Judge Delaney said:

“The plaintiff was an experienced employee or sub-contractor plasterer. The defect in the ladder was obvious. The lack of any tying off of the ladder was obvious and it was obvious that no one was holding the base of the ladder when he commenced to descend.”

45 Ultimately his Honour came to the conclusion that the accident occurred because the plaintiff misjudged the way he descended the ladder, thereby causing it to slide because of the distribution of his weight. This finding was open to his Honour and to my mind no ground is shown upon the basis of which we should interfere with it. To adapt the words of Heydon JA already quoted, the assessment of the risk and the avoidance of any undue risk was for the judgment of the plaintiff. It would be beyond all reason to assign responsibility to Ultimate to ensure the ladder was tied or that it was not used.

Ground 4

46 The trial Judge referred to the plaintiff’s contention that there was a contravention of regulation 80(3) [incorrectly described as 73] of the Construction Safety Regulations 1950. As already indicated the plaintiff also relied on other regulations.

47 According to the trial Judge, the plaintiff alleged that Ultimate should have taken measures to provide suitable and safe scaffolding, a safe means of access, and the provision of fencing or other means of securing the safety of a person working at a place from which he would be liable to fall a distance of more than 1.8 metres. Ultimate did not suggest that a breach of regulation 80(3) would not give rise to a cause of action. Ultimate relied upon HC Buckman & Son Pty Ltd v Flanagan to the effect that as the plaintiff was an independent contractor any obligation to comply with regulation 80(3) fell on him because he was the one carrying out the work.

48 Judge Delaney quoted from the judgment of Jacobs J in Buckman, a case concerned with a regulation, similar to regulation 73, requiring that any person who directly, or by his servants or agents, carried out any building work should take all measures that appeared necessary or advisable to minimise accident risk and prevent injury to persons engaged in such building work and, in particular, provide suitable and safe scaffolding. A building contractor, Buckman, had contracted with Shaw to supply and erect structural steel necessary for the building project. Shaw had sub-contracted with the plaintiff, Flanagan, to erect the structural steel. In the course of construction, Buckman misplaced in the concrete pad the bolts by which the foot of a stanchion was to be secured in the concrete footing. The error was not apparent until the stanchion had been placed upon the concrete pad and the nuts had been tightened on the bolts. It was Buckman’s task to correct the mistake which had been made in the placement of the bolts. An employee of Shaw cut the bolts to enable the base of the stanchion to be re-sited without any authority from Shaw. As a result, the stanchion was less stable than it had been when bolted to the concrete pad. Flanagan had guyed the stanchion in a way which was insufficient to maintain it in an upright position. After the stanchion had been bolted, Flanagan became aware of the error in the placement of the bolts and left the scene. When he returned the bolts had been cut but he did not become aware of that fact. In order to proceed with the erection of a steel girder he began to ascend a ladder which had been placed against the stanchion before he had gone away. After he had taken some steps up the ladder, the stanchion began to sway with the result that Flanagan fell to the ground and suffered injury. He sued Buckman and Shaw individually, amongst other things, for breaches of various obligations said to be imposed by the Scaffolding and Lifts Act 1912 and the regulations made thereunder.

49 At 427 Barwick CJ said:

“that the Act and regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts.”

50 McTiernan J agreed and said at 433:

“Flanagan was an independent contractor, and the relationship between an independent contractor and the person with whom he contracts does not carry with it the legal consequences of the relationship of agency. It therefore does not here shift to Buckman or Shaw the liability imposed on Flanagan as the person carrying out the building work, since he was not carrying out such work as agent of either appellant in the strict sense.”

51 Stephen J agreed with the reasons for judgment of the Chief Justice. Mason and Jacobs JJ dissented. Jacobs J said that he agreed with Mason J in his conclusion that the obligations under regulation 73 are imposed both on the head contractor and on any sub-contractor who carries out the part of the work in the course of which a breach of the regulation occurs.

52 The argument that Ultimate breached regulation 73(2), in failing to provide and maintain safe means of access to the place where the plaintiff had to work, regulation 80(3), because the means of access from the first floor to the ground floor was unsafe in that the ladder had a defective stile and was not secured, regulation 80(4), because the means of access from the first floor to the ground floor were unsafe in that the ladder was not securely fixed and a person was not stationed at the base of the ladder to prevent slipping and regulation 80(20), because the ladder had a defective stile, was not developed in argument and does not seem to have been dealt with by the trial Judge. However, in my opinion, quite clearly, the plaintiff, as the person doing the plastering work on the site, and not Ultimate, was responsible for complying with these safety regulations.

53 Since the plaintiff’s appeal against the decision in favour of Ultimate fails it is unnecessary to deal with the appeal against the deduction suggested by the trial Judge for contributory negligence. Likewise it is unnecessary to deal with the trial Judge’s assessment of economic loss. As to this I should say, however, that his Honour’s award seems to involve, on its face, a miscalculation.

Orders

54 In my opinion the appeal should be dismissed with costs.

55 SANTOW JA: I agree with Sheller JA.

56 LEVINE J: I agree with Sheller JA.

**********

Last Modified: 11/18/2004

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Citations

Paddison v Ultimate Image Pty Ltd t/as Hawkesbury Plasterworks [2004] NSWCA 410

Most Recent Citation

B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue (No 2) (RD) [2006] NSWADTAP 32

Cases Citing This Decision

6

Australian Air Express Pty Ltd v Langford [2005] NSWCA 96

Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43

Volodin and Secretary, Attorney-General's Department [2021] AATA 1434

Cases Cited

18

Statutory Material Cited

3

Re F; Ex parte F [1986] HCA 41

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1

Hollis v Vabu Pty Ltd [2001] HCA 44

CITATION:	PADDISON v ULTIMATE IMAGE PTY LTD t/as HAWKESBURY PLASTERWORKS [2004] NSWCA 410
HEARING DATE(S):	25 August 2004
JUDGMENT DATE:	17 November 2004
JUDGMENT OF:	Sheller JA at 1; Santow JA at 55; Levine J at 56
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	PERSONAL INJURY - fall from ladder by appellant while performing work for the respondent - whether relationship of employer/employee or contractor/sub-contractor - whether respondent negligent in failing to provide safe system/place of work - whether risk obvious to appellant - whether respondent in breach of regulations 73 and 80, Construction Safety Act 1912 (NSW)
LEGISLATION CITED:	Construction Safety Act 1912 (NSW) Construction Safety Regulations 1950 Scaffolding and Lifts Act 1912
CASES CITED:	HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 Hetherington v Mirvac Pty Limited & Ors (1999) Aust Torts Reports 81-514 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Humberstone v Northern Timber Mills (1949) 79 CLR 389 O'Connor v Commissioner of Government Transport (1954) 100 CLR 225 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561
PARTIES :	Howard Paddison - Appellant Ultimate Image Pty Ltd t/as Hawkesbury Plasterworks - Respondent
FILE NUMBER(S):	CA 41153/03
COUNSEL:	B M J Toomey QC/F V Fletcher - Appellant L J Ellison/J Patey - Respondent
SOLICITORS:	Taylor & Scott - Appellant Rankin & Nathan - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	6910/01
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ