Rawson Homes Pty. Ltd. v Donnelly - [2005] NSWCA 211

No judgment structure available for this case.

CITATION:
Rawson Homes Pty. Ltd. v. Donnelly & Anor. [2005] NSWCA 211

HEARING DATE(S):
7 June 2005

JUDGMENT DATE:

23 June 2005

JUDGMENT OF:
Hodgson JA at 1; Tobias JA at 61; McColl JA at 62

DECISION:
1. Appeal as against the plaintiff allowed. 2. Appeal as against CSR dismissed with costs. 3. Judgment below in favour of the plaintiff and in relation to the costs of the plaintiff set aside. 4. Matter remitted to the District Court for re-trial of the issue of liability for common law negligence only, costs of the first hearing to be in the discretion of the judge hearing the re-trial. 5. Plaintiff to pay the costs of Rawson Homes of the appeal as against the plaintiff, and to have a certificate under the Suitors' Fund Act if otherwise entitled.

CATCHWORDS:
APPEAL - Challenge to factual findings of primary judge - Whether glaringly improbable - Whether vitiated by error

CASES CITED:
Australian Air Express Pty. Ltd. v. Langford [2005] NSWCA 96
Bial v. Housing Commission of NSW [1976] 1 NSWLR 388
Boylan Nominees Pty. Ltd. v. Sweeney [2005] NSWCA 8
Hollis v. Vabu Pty. Ltd. (2001) 207 CLR 21
Jacob v. Utah Constructions & Engineering Pty. Ltd. (1966) 116 CLR 200
Laundess v. Laundess (1994) 20 MVR 156
McDonald v. Girkaid Pty. Ltd. [2004] Aust Tort Reports 81-768, [2004] NSWCA 297
Pack-Tainers Pty. Ltd. v. Moore [2005] NSWCA 43
Starks v. RSM Security Pty. Ltd. [2004] Aust Torts Reports 81-763 [2004] NSWCA 351
Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16
Todorovic v. Moussa [2005] NSWCA 100

PARTIES:
Rawson Homes Pty. Limited - appellant
Joshua Steven Donnelly - 1st respondent
CSR Limited - 2nd respondent

FILE NUMBER(S):
CA 40563/04

COUNSEL:
Mr. S. Campbell SC with P.L. Perry for appellant
Mr. R. McIlwaine SC with R.E. Quickenden
Mr. M. Cranitch SC with A. Casselden

SOLICITORS:
Moray & Agnew, Sydney for appellant
Tony Kemp Lawyers, Gosford for 1st appellant
Wotton & Kearney, Sydney for 2nd appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC282/01

LOWER COURT JUDICIAL OFFICER:
J.C. Gibson DCJ

CA 40563/04
DC 282/01

HODGSON JA
TOBIAS JA
McCOLL JA
Thursday 23 June 2005

RAWSON HOMES PTY. LIMITED V. DONNELLY & ANOR.

Judgment

1 HODGSON JA: On 18 June 2004, Gibson DCJ gave a decision in proceedings in which the first respondent (the plaintiff) had sued the appellant (Rawson Homes) for damages for personal injuries, and in which Rawson Homes had put on a cross-claim against the second respondent (CSR). The primary judge gave judgment for the plaintiff in the sum of $453,183.73, and for CSR on the cross-claim, and ordered Rawson Homes to pay the costs of the plaintiff and CSR.

2 Rawson Homes has appealed from those orders, although it has not challenged the quantum of damages.

CIRCUMSTANCES

3 In 1998, the plaintiff commenced working as a self-employed carpenter, generally working with another more experienced self-employed carpenter Murray Swane. During 1998 and 1999, the plaintiff did some carpentry work on homes being erected by Rawson Homes.

4 In 2000, Rawson Homes contracted to build a house at 17A Pomona Road, Empire Bay.

5 In June 2000, the plaintiff commenced working on the site. At that time, roof tilers were working on the roof, and part of the roof frame had been constructed incorrectly by the carpenters. At that time, it was the job of the plaintiff and Mr. Swane to correct the roof trusses.

6 On 26 June 2000, 17 sheets of Villaboard supplied by CSR were delivered to the site by M.E. Transport Pty. Limited (ME) and were left there on their edges against studs of one wall of the living room. These sheets were 6mm thick, 135mm wide (with the exception of one which was apparently 900mm wide) and between 2,400 and 3,600mm long. Their total weight was in excess of 500kgs.

7 On 5 July 2000, the plaintiff went to the site with Mr. Swane intending to do a frame straightening (involving checking the wall studs for straightness) and then to fix some eave sheets. He had a 2 metre long level which he used as a straight edge, and his practice was to go from one side of a wall to the other side, checking for studs that were bent or bowed.

8 In the living room there was a big stack of gyprock lying flat on the floor about 1 metre from the wall against which the Villaboard had been placed. At about 8.15am, the plaintiff came to work on that wall; and when he reached about the centre of the Villaboard, he fell backwards on to the floor with the Villaboard against his stomach; and he was severely injured.

9 Mr. Swane was nearby, but did not see the accident. He heard the plaintiff call out and went to his assistance. An ambulance was called, and the plaintiff was taken to hospital. The sheets were then placed in an upright position against the wall, and a timber prop wedged against them to prevent them from falling again.

10 The ambulance record, apparently prepared at the time, contained this entry:

PT states moving approx. 18 sheets of gyprock approx. 4.8m in length forward when all the sheets fell on the PT inially (sic) striking PT on ABDS and chest came to rest on PTS left lower leg.

11 Notes apparently made when the plaintiff arrived at the hospital included the following:

12 The principal of Rawson Homes, John Carolan, arrived at the site about one hour after the accident. There is the following entry in his diary for 5 July 2000, apparently made at about that time:

While attempting to check timber studs for straighteners for fall between living and dining rooms, Josh held pile of Villawood sheeting out from wall, when sheets reached a certain pivot the weight of the sheets pushed Josh backwards and pinned his body and leg underneath the sheets. He then yelled out to Murray for help, when Murray walked inside the house he saw Josh lying underneath the Villaboard in great pain. Murray then tried to lift the boards but could not, so Murray yelled for help from owners who arrived to help lift the sheets from Josh. Murray then placed a prop to the sheets to prevent from falling again. He then placed 2 bricks underneath Josh’s bad leg as this was the position Josh was in least amount of pain. An ambulance was called and arrived on site and stayed on site for approximately an hour to stabilise Josh before taking him to Gosford Hospital. I arrived on site approx. 9.10am and immediately tried to determine what happened. On looking at the Villaboard its position against the wall is no longer the same position it was in prior to the accident, it is now hard against the wall at the bottom but prior it was approx. 230mm from the outside of the bottom plate to the outside of the outer Villaboard sheet which is in my opinion sufficient for the storage of the board, the accident could have been avoided had Josh asked for help to hold or move the sheeting instead of trying to hold himself. In Murray’s opinion had Josh asked for help this accident may have been avoidable as Murray would have been in a good position to hold the weight of the sheets to prevent from falling, this was discussed between myself and Murray on site following the accident, we then held a level on the marks on the ground the following measurements were taken by Murray. 270mm in the middle of the sheets from outside of sheet to outside of frame and approx. 230mm at end of sheet. Met Vic Page from Workcover and discussed accident with him and told by Workcover to serve in a notification to what happened.

13 There was also in evidence a typed statement signed by Mr. Swane and dated 6 July, in the following terms:

We arrived at the job at approximately 7.00am. We had been there working for just over half an hour. I was fitting the fixed panel and sliding door panel in the front sliding door unit (outside). Josh had just begun to straighten the frames between the living and dining room, (the wall which the villa board sheets were leaning on). To do this he uses a long straight edge, and runs it along the frames to find the studs that have got bows in them. The last time I actually looked at Josh and saw what he was doing (immediately prior to the accident happening) he was standing in front of the sheets, holding the straight edge on the studs.

I was working on the sliding door when Josh started yelling and screaming at me, along the lines of "Muz, quick, help me, get the sheets off me". I ran in and saw him stuck underneath all the villaboard sheets. He was screaming at me to get them off him and yelling “I think I've broken my leg". So I ran over and started trying to lift the sheets off him. Josh was also trying to push them off, he was stuck underneath. There was about 15 sheets and as I started lifting them they started jamming up against the frame and I couldn't get them off him properly. I didnt want them to drop back down because he was in so much pain, so I screamed out to the two ladies that live in the garage on the site. They ran in to see me trying to lift the sheets and Josh stuck under them. They went around the other end of the sheets and started lifting them with me, and then we got all the sheets off and lent them back against the wall. Because we had leant the sheets hard against the wall they wouldn't stand there by themselves, so the ladies stood and held them while I ran back outside and got a length of timber to prop the sheets so they wouldn't come back down and fall on top of all of us. Then I could attend to Josh.

I then saw Josh's leg stuck up behind him and wedged into the gyprock. Josh was in a great deal of pain. We then moved his leg out realising that it was broken and there wasn't much we could do for him. So I propped his leg on some bricks because that seemed to be the most comfortable position for him. One of the ladies rang the ambulance and the other lady ran in and got some blankets to put around him as he was in a lot of shock and was getting really cold and shaking uncontrollably. Then I sat and talked with him, and kept the blankets around him waiting until the ambulance arrived. When the ambos arrived they stabilised Josh for what seemed about 45 minutes to an hour, before putting him in the ambulance and taking him to Gosford Hospital.

· The villaboard sheets were leaning against the wall that Josh was checking for straight. The wall would have had a bow in it from the weight of the sheets against it, so Josh has tried to take the weight of the sheets off the from by leaning them out towards him. The weight of the sheets has overwhelmed him and they have come back down upon him. This has caused him to fall backwards and his left leg has pinned up against the gyprock pile behind where he was standing. In my opinion, the accident could have been avoided had Josh asked me for help. I would have held the weight of the sheets and prevented them from falling to allow him to check the wall.

14 There is also in evidence a discharge summary signed by a medical officer at Gosford Hospital, stating as follows:

Joshua was lifting a heavy board at work when it became too difficult and he fell sustaining the above injury.

15 The same medical officer also signed a NSW Workers’ Compensation Medical Certificate dated 10 July 2000, stating the “cause of injury as stated to me by this worker” as being “While at work holding heavy load and fell”.

16 There was a Workcover investigation of the incident. There is in evidence a witness statement dated 4 October 2000 given by Mark Frasca, a director of ME who delivered the Villaboard. Relevantly, this statement sets out the following:

17 Mr. Ross Trethewy of Unisearch Limited, an occupational health and safety consultant, provided a report dated 22 October 2002 for Workcover. Among the opinions he expressed were the following:

23 The combined weight of the 17 sheets of Villaboard, approximately 500kg, and its position leaning unrestrained against a wall was high risk. The absence of a suitable lateral restraint created an unsafe system of work for contractors undertaking tasks in the area and an unsafe workplace for persons using the area for access.
…

25 It is not clear how the Villaboard came to topple onto Donnelly. It is likely that the external walls were completed on the dwelling and therefore wind was not a contributing factor. In addition, vibration is unlikely due to the concrete floor of the dwelling.

18 Rawson Homes was prosecuted by Workcover for a breach of s.16(1) of the Occupational Health & Safety Act 1983, which is as follows:

16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

19 An Agreed Statement of Facts was presented to the Court dealing with the charge. It included the following”

Occupational Health

Safety Act

20 There was other evidence at the hearing of that charge, including evidence given on 22 October 2002 from a manager at CSR. This included evidence that CSR recommended that Villaboard sheets be stored flat, that leaning 17 Villaboard sheets against a wall could be considered unsafe, that sheeting while it is left in such a position could be considered safe, that it was regarded as unsafe if people were working around Villaboard sheets stacked against a wall, and that CSR was aware of a practice whereby carriers would stack sheets against walls rather than horizontally as recommended.

21 At the hearing before the primary judge, the plaintiff gave evidence to the effect that he did not intentionally touch the Villaboard and did not believe he accidentally touched it.

22 Mr. Swane gave evidence, including confirmation of the statement he made the day after the accident and preparation of a diagram illustrating the angle of the Villaboard against the wall. Mr. Frasca gave evidence, substantially in accordance with his earlier statement. Mr. Carolan was available to give evidence, but did not do so.

23 A number of experts’ reports went into evidence, but there was no oral evidence from experts. The plaintiff tendered Mr. Thethewy’s report of 22 October 2002 and a further report of 14 April 2003; while Rawson Homes tendered reports of Dr. B.J. Hill of 3 April 2003 and 24 November 2003.

24 In his report of 3 April 2003, Dr. Hill said the following:

The situation of a board or stack of boards leaning against a vertical support is shown in the sketch attached to this report. The force that the boards exert on the wall depends upon the weight of the boards and the angle of lean. This force can be calculated by considering the moments of forces about the bottom edge as shown on the sketch.

F = W/(2Tan)

The correct engineering units of force are Newtons (N) but for ease of presenting this to the layperson the common term kilograms (kg) will be used.

Typically the sheets may have been stacked so that the bottom sheet was a minimum of 170 mm from the vertical wall. This results in an angle so that tan = 1350/170 (=7.9) for a 1350 mm wide sheet: The force required to tip a 40 kg sheet upright is then 2.5 kg for a single sheet. To tip the complete stack weighing 500 kg this force is 32 kg.

These forces decrease as the sheet moves closer to the vertical but increase if the force is applied lower down the sheet.

When the sheets are stacked against the wall, as long as the sheets are not vertical they are in a stable position. This statement is based on the engineering analysis and not on the fact that the sheets had been in place for about nine days prior to the accident without problems. This merely serves to confirm the analysis.

25 In his report of 14 April 2003, Mr. Trethewy said the following:

I concur with Hill that some form of horizontal force must have been applied to the stacked sheets to cause them to topple. However, the forces determined by Hill and the weight of each sheet is based on assumptions which are not provided as fact in any investigation of the accident scene by Inspector Page of the WorkCover Authority of NSW or Rawson Homes.

26 In his report dated 24 November 2003, Dr. Hill said this:

I am aware that the stack contained a mix of sheet lengths, but the total weight will still be well over 400 kg, and for the complete stack to fall if it is leaning against the wall, this is the load that has to be overcome by a horizontal force on the bottom or innermost sheet. It is inconceivable that sufficient force would be applied by someone brushing against the stack.

DECISION OF PRIMARY JUDGE

27 The primary judge accepted the plaintiff’s account that he did not intentionally touch the Villaboard and did not believe that he accidentally touched it, and held to the effect that the angle of lean of the board was so narrow as to be close to vertical. In considering the expert evidence she said this:

The plaintiff’s expert says that horizontal force would cause them to topple. The defendant's expert says 32 kilos of force would be necessary. I prefer the opinion of the plaintiff's expert on this issue because the defendant's expert makes no proper allowance for the fact that the careless storage of such heavy material was inherently unstable over a substantial period of time during which anyone could have moved them in some way and thus precipitated their collapse. As the plaintiff points out in his counsel's written submissions (p.16). The reasons for the ViIlaboard falling could be various and include inadvertent or negligent acts by other workers on the site, the angle of the lean altering over this period for this or other reasons or because of work at or near the wall against which they leaned for support. The plaintiff’s contact with them could well have been slight, but it may have been the straw that broke the camel's back.

…

The stacking of these seventeen Villaboard pieces against the wall without a wedge to keep them in place meant that the structure was inherently unsafe and liable to move. The Villaboard had been on a busy building site for nine days, not several days as claimed by the defendant, and could have been knocked or moved by other tradesmen using the narrow corridor.

28 As regards evidence tending against the plaintiff’s account, the primary judge noted that Mr. Swane in evidence could not recall the angle of the Villaboard precisely, said that she did not regard the statement to ambulance officers of assistance (the plaintiff being seriously ill and under medication, and the statement itself being ambiguous), and also relied on the failure to call Mr. Carolan. She also relied on the plea of guilty to the charge under the Occupational Health & Safety Act.

29 The primary judge found that Rawson Homes owed a duty of care to the plaintiff because of its control over the site and the vulnerability of the plaintiff; and she found a breach, because Rawson Homes permitted the Villaboard to be stacked unsafely. She also found that this was causative of the plaintiff’s injury.

30 On the question of contributory negligence, the primary judge said this:

The defendant submits that the plaintiff’s contributory negligence would become a very significant matter if the court were to hold that the plaintiff took hold of the Villaboard and used horizontal force to remove them from the timber frame wall. That is not the finding that I have made. Indeed, the concept of the plaintiff grasping seventeen pieces of Villaboard and attempting to move them simultaneously is clearly absurd, as is the proposed "safer" alternative of Mr Swane holding them while the plaintiff measured the wall. The fact that the seventeen Villaboard slabs were in clear view is irrelevant because the danger caused by their weight, size and number was a matter which was hidden from the plaintiff as it was from all the other workers at the site. Although the defendant asserts there was "well established team work available for just such a situation as confronted the plaintiff' it was the evidence of Mr Swayne (sic) that on the one occasion he had struck this situation before he had removed the Villaboard by himself. The very number of the Villaboards, which Mr Frasca said was significant, meant that the total 500kg weight was too dangerous to move other than in the way Mr Frasca and his workmate moved it, namely a few sheets at a time.

31 The primary judge also found a breach of Regulation 73(5) of the Construction Safety Regulations (1950), which is as follows:

32 On the cross-claim, the primary judge held that, once the Villaboard had been delivered to the site, it was the sole responsibility of Rawson Homes as controller of the site to ensure it was stored appropriately. There was no need for CSR to take steps to ensure the Villaboards were stored horizontally.

GROUNDS OF APPEAL

33 Rawson Homes relies on the following grounds of appeal:

As against the First Respondent:

As against the Second Respondent:

34 I will consider in turn the following issues: questions of fact (grounds 3, 4, 5, 6 and 7); duty of care (ground 1); Regulation 73(5) (ground 2); and the cross-claim (ground 8).

QUESTIONS OF FACT

Submissions

35 Mr. S. Campbell SC submitted that the finding that the accident occurred as alleged by the plaintiff was glaringly improbable, having regard to the contemporaneous documents and expert evidence.

36 He submitted that Rawson Homes’ contention that there was a substantial lean to the boards was supported by Mr. Carolan’s diary, Mr. Swane’s statement and evidence, Mr. Frasca’s statement and evidence, and the circumstance that the boards had stood for nine days, there being no suggestion of anything that could have altered the lean of the boards. Rawson Homes’ contention that the plaintiff had deliberately drawn the Villaboard away from the wall was supported by the ambulance record, the hospital notes, the doctor’s notes and by expert evidence to the effect that substantial force would be required to bring leaning Villaboards of that weight away from the wall.

37 Mr. Campbell also submitted that the primary judge’s decision on the facts was vitiated by significant errors. First, the primary judge said that what was in truth Rawson Homes’ case, namely that the plaintiff had drawn all the Villaboards away from the wall, was not put by Rawson Homes and was absurd. Next, the primary judge did not deal appropriately with the expert evidence: if and in so far as there was any conflict, the judge did not identify this conflict or indicate why she preferred one expert over the other. Next, Mr. Campbell submitted the primary judge made an error in drawing a Jones v. Dunkel inference from the non-calling of Mr. Carolan, in circumstances where it could not be expected that he could add anything to what was in his diary. Finally, there was error in reliance on the plea of guilty, where the statutory provision imposes a much higher standard than a common law duty of care.

38 Mr. R. McIlwaine SC for the plaintiff submitted that the primary judge was entitled to accept the evidence of the plaintiff, and that the matters relied on by Mr. Campbell were not strong enough to preclude such acceptance.

39 Mr. McIlwaine also submitted that there was no error in relation to Jones v. Dunkel and the reference to the plea; and that in so far as there was any error in the other matters, such error did not vitiate the judge’s conclusion.

Decision

40 In my opinion, the primary judge’s conclusion cannot be said to be glaringly improbable.

41 The primary judge was entitled to give substantial weight to the evidence of the plaintiff, denying deliberate pulling out of the boards and asserting a belief that there had been no inadvertent touching of the boards. The conclusion was supported by the evidence of the plaintiff’s expert, to the effect that if the boards had been sufficiently close to the vertical, their fall could have been caused by brushing or bumping. The plaintiff’s expert did not spell out exactly how this could have happened, and how it could have occurred without force being directly applied to the innermost board, as contended by Dr. Hill. However, the plaintiff’s expert was not challenged on this opinion by objection to evidence or cross-examination, and it is conceivable that if the boards were sufficiently close to vertical their fall could have been precipitated by a bump, giving rise to some kind of rebound, possibly coupled with an adhesion or suction effect by outer boards on inner boards.

42 Further, the evidence relied on by Rawson Homes in relation to the angle of the boards and the handling of the boards was not conclusive. As regards the former, Mr. Frasca’s evidence was only as to practice, and it was conceivable that something might have happened during the nine days the boards were there to alter the angle at which they were leaning. The measurements taken by Mr. Carolan were not supported by any evidence from him, and Mr. Swane did not support his bald assertion about measurements contained in his statement by any oral evidence clarifying exactly what was observed and what was done, so as to support the view that the marks against which measurements were made could be taken as a reliable indication of the previous position of the bottom of the boards.

43 The notes taken by ambulance officers were taken at a time when the plaintiff was in severe pain and under medication, and may have been influenced by contributions from Mr. Swane. The hospital and medical officer’s notes could be consistent with the view that the handling and lifting being referred to was that which occurred after the boards began to fall and the plaintiff was struggling to hold them up.

44 Turning to the question of errors, I do not think the primary judge was in error in applying Jones v. Dunkel: the diary entry could be considered a self-serving document, and in my opinion carries much less weight in the absence of its maker being called to give evidence, as he could have been. In my opinion also, the plea of guilty could be relied on. Although the standard required by the relevant statutory provision is higher than the common law standard, the plea does amount to an informal admission of the elements of the offence, and indeed of the particulars of the offence as set out in the Statement of Agreed Facts. Particularly is this so when no attempt was made to give any explanation of the plea of guilty.

45 However, in my opinion the other two matters relied on by Mr. Campbell do indicate significant errors.

46 If there was a difference between the opinion of the experts which was of significance, the primary judge should have identified the difference and given reasons for preference of one expert over the other. However, had this been the only error I am inclined to the view that it would not have been sufficient of itself to vitiate the judgment.

47 In my opinion the other error is more serious and in fact fatal. The scenario of the plaintiff moving all seventeen boards back from the wall, with a view to holding them vertically, so that their weight was taken off the wall and would thereby not give a false reading as to the straightness of the studs, was a scenario relied on by Rawson Homes, and cannot be said to be absurd. If one took the measurements referred to in Mr. Carolan’s diary as indicating the actual lean of the villaboard, and applied the resulting figures to the formula given by Dr. Hill, a force in the order of 20kgs would have been sufficient to move all seventeen boards from the wall, and of course as the boards approached a vertical position the force required to continue to move them towards that position would become progressively less. This calculation is based on the assumption that the total thickness of all the boards is about 102mm (17 x 6mm), and thus that the bottom of the lowest board was of the order of 128mm from the wall. The application of a force of 20kgs is something not unusual on a building site, and the adoption of this procedure, although it could be managed, does carry a significant risk because the application of the initial 20kgs would result in some momentum which could well carry the boards beyond the upright position where they could be easily maintained in equilibrium. This scenario is in my opinion strongly supported by the objective evidence on which Mr. Campbell relied; and although, as I have indicated above, that evidence is not conclusive, it does make the scenario extremely plausible.

48 Thus, although the primary judge would have been entitled to accept the plaintiff’s account that he did not intentionally or accidentally touch the Villaboard, it was necessary for her to address correctly the relevant question. However, her judgment reveals that she accepted the plaintiff’s account having already concluded that the plausible scenario actually relied upon by Rawson Homes had not been suggested by it, and was in any event absurd, which it was not. In my opinion, that error vitiated her Honour’s acceptance of the plaintiff’s account of the accident which underpinned her finding that Rawson Homes had breached its duty of care.

49 The question whether the plaintiff’s evidence should nevertheless be accepted in the face of the material relied on by Rawson Homes is not one that can be resolved by this Court. Accordingly, subject to what I say below, there would have to be a new trial. This new trial, however, would be as to liability only.

50 The possible qualification is that the plaintiff did have a fall-back case, to the effect that even if Rawson Homes’ scenario was accepted, there was still a breach of duty. This case would have some support from the plea of guilty, and is a case that this Court could possibly determine. The problem however is that this case would involve the likelihood of a finding of contributory negligence by the plaintiff; and that would mean that, even if negligence is found in the plaintiff’s favour, the plaintiff would recover less than 100% of his damages; whereas if the matter goes back for re-trial, the plaintiff could get 100% damages if his scenario is accepted.

DUTY OF CARE

51 Mr. Campbell submitted that the primary judge overstated the duty of care, and that in this case Rawson Homes had no greater duty than as stated by Brennan J in Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16 at 47; and cf. Pack-Tainers Pty. Ltd. v. Moore [2005] NSWCA 43 at [47], Todorovic v. Moussa [2005] NSWCA 100.

52 In my opinion, it is plain that Rawson Homes did have a duty of care to the plaintiff as it was the head contractor with occupation and control of the site. In the absence of final determination of the facts, in my opinion it is not appropriate to enter into the details as to the scope of that duty and its application to those facts.

REGULATION 73(5)

Submissions

53 Mr. Campbell submitted that the opening words of Regulation 73 could not be relied on, independently of the various sub-regulations: Jacob v. Utah Constructions & Engineering Pty. Ltd. (1966) 116 CLR 200, McDonald v. Girkaid Pty. Ltd. [2004] Aust Tort Reports 81-768, [2004] NSWCA 297 at [177]. The Villaboard in this case was not in a passageway; and even if it could be said that a passageway was created by the way material was stacked, this passageway was defined by the building material and not obstructed by it.

54 Mr. McIlwaine indicated that there was no reliance on the opening words of Regulation 73, independently of sub-regulation (5). He submitted that there was plainly a passageway created by the stacking of material, and the Villaboard did amount to building material in the passageway. Accordingly, there was a breach of the regulation which caused the accident.

Decision

55 In my opinion, there was no breach of this regulation. In so far as there was a passageway, it was a passageway between the gyprock lying horizontally on the floor and the Villaboard leaning against the stud wall. There were no building materials in that passageway. In my opinion, it would be artificial to suggest that there was a passageway between the gyprock and the wall, and that the Villaboard was located in that passageway. In so far as there was a passageway, it was a passageway created by both the gyprock and the Villaboard.

CROSS-CLAIM

Submissions

56 Mr. Campbell submitted that CSR, as manufacturer and supplier, had a duty to take reasonable care to minimise the risk that its product would cause injury: see Laundess v. Laundess (1994) 20 MVR 156 at 161-2. In this case, CSR knew that the material should be stacked horizontally, but that there was practice of stacking it vertically; and accordingly it should have taken steps to ensure that it was stacked horizontally, which it did not do.

57 Alternatively, he submitted, CSR was liable for ME’s negligence in stacking the material vertically: Starks v. RSM Security Pty. Ltd. [2004] Aust Torts Reports 81-763, [2004] NSWCA 351 at [25]. In so far as Boylan Nominees Pty. Ltd. v. Sweeney [2005] NSWCA 8 at [81]-[84] suggested the contrary, it was incorrect: see Bial v. Housing Commission of NSW [1976] 1 NSWLR 388 at 394; Hollis v. Vabu Pty. Ltd. (2001) 207 CLR 21 at [42], and Australian Air Express Pty. Ltd. v. Langford [2005] NSWCA 96.

Decision

58 In my opinion, it is not possible to conclude that the danger of stacking this material vertically, if stacked at an appropriate angle, was such that CSR was under a duty to the plaintiff to take steps to ensure it was stacked horizontally.

59 As regards the alternative basis, there was no pleading alleging negligence in ME for which CSR could be liable. The submission made below that CSR does not escape liability by trusting delivery to an agent did not amount to a submission that CSR was liable for the agent’s or representative’s negligence. This is a matter that could have been affected by evidence as to the relationship between CSR and ME, if it had been raised; so it is not open to Rawson Homes to rely on this submission now.

ORDERS

60 Accordingly in my opinion the following orders should be made:

61 TOBIAS JA: I agree with Hodgson JA

62 McCOLL JA: I agree with Hodgson JA.

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Citations

Rawson Homes Pty. Ltd. v Donnelly [2005] NSWCA 211

Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

0

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

Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8

McDonald v Girkaid Pty Ltd [2004] NSWCA 297

CITATION:	Rawson Homes Pty. Ltd. v. Donnelly & Anor. [2005] NSWCA 211
HEARING DATE(S):	7 June 2005
JUDGMENT DATE:	23 June 2005
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 61; McColl JA at 62
DECISION:	1. Appeal as against the plaintiff allowed. 2. Appeal as against CSR dismissed with costs. 3. Judgment below in favour of the plaintiff and in relation to the costs of the plaintiff set aside. 4. Matter remitted to the District Court for re-trial of the issue of liability for common law negligence only, costs of the first hearing to be in the discretion of the judge hearing the re-trial. 5. Plaintiff to pay the costs of Rawson Homes of the appeal as against the plaintiff, and to have a certificate under the Suitors' Fund Act if otherwise entitled.

CATCHWORDS:	APPEAL - Challenge to factual findings of primary judge - Whether glaringly improbable - Whether vitiated by error
CASES CITED:	Australian Air Express Pty. Ltd. v. Langford [2005] NSWCA 96 Bial v. Housing Commission of NSW [1976] 1 NSWLR 388 Boylan Nominees Pty. Ltd. v. Sweeney [2005] NSWCA 8 Hollis v. Vabu Pty. Ltd. (2001) 207 CLR 21 Jacob v. Utah Constructions & Engineering Pty. Ltd. (1966) 116 CLR 200 Laundess v. Laundess (1994) 20 MVR 156 McDonald v. Girkaid Pty. Ltd. [2004] Aust Tort Reports 81-768, [2004] NSWCA 297 Pack-Tainers Pty. Ltd. v. Moore [2005] NSWCA 43 Starks v. RSM Security Pty. Ltd. [2004] Aust Torts Reports 81-763 [2004] NSWCA 351 Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16 Todorovic v. Moussa [2005] NSWCA 100
PARTIES:	Rawson Homes Pty. Limited - appellant Joshua Steven Donnelly - 1st respondent CSR Limited - 2nd respondent
FILE NUMBER(S):	CA 40563/04
COUNSEL:	Mr. S. Campbell SC with P.L. Perry for appellant Mr. R. McIlwaine SC with R.E. Quickenden Mr. M. Cranitch SC with A. Casselden
SOLICITORS:	Moray & Agnew, Sydney for appellant Tony Kemp Lawyers, Gosford for 1st appellant Wotton & Kearney, Sydney for 2nd appellant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC282/01
LOWER COURT JUDICIAL OFFICER:	J.C. Gibson DCJ