Riggall v Stagg
[1987] TASSC 93
•18 May 1987
Serial No B23/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Riggall v Stagg [1987] TASSC 93; B23/1987
PARTIES: RIGGALL
v
STAGG
FILE NO/S: 525/1981
DELIVERED ON: 18 May 1987
JUDGMENT OF: Underwood J
Judgment Number: B23/1987
Number of paragraphs: 24
Serial No B23/1987
List "B"
File No 525/1981
RIGGALL v STAGG
REASONS FOR JUDGMENT UNDERWOOD J
18 May 1987
This is an action for damages for personal injury.
On the 17 November 1987 the Master made an order, "by consent pursuant to paragraph 8 of the Certificate of Readiness, that only the question of liability be determined at trial". Counsel were agreed that I should construe this order to mean that the question of the liability of the defendants to pay damages and the question of any reduction of damages by reason of any responsibility on the part of the plaintiff for those damages, be tried before the assessment of damages.
The plaintiff was and is, a self–employed building contractor. In 1980 he entered into an agreement with the owner of a block of land at Bridport, to construct a holiday home in accordance with a plan drawn by an architect. It was a term of this agreement that the building owner would nominate the sub–contractors and the plaintiff would supervise and co–ordinate their work. It was also agreed that the plaintiff would supply his own labour and skill on a "do and charge" basis.
The block on which the house was to be built was long and narrow with a north easterly aspect. Its boundary with the road at the south western end, formed the highest point. From there it sloped with a fall of approximately one metre in six towards the sea. The house, which was a split level design to accommodate the fall of the land, was to be built across the block facing the north east.
To provide the floor for the lower level and part of the upper level, two rectangular slabs of concrete were to be poured. These slabs were designed to be positioned 2.7 metres apart. The lower slab measured 14.5 metres x 3 metres and the upper slab (ignoring a small area for a porch) measured 17 metres x 2.5 metres.
The plan provided for the construction of two bedrooms and a bathroom on the lower concrete slab. Above this area, was the upper floor. It extended back in a south westerly direction over the 2.7 metre space between the two slabs, to join with the upper level slab add form one level floor area. The space between the two slabs, and underneath the upper level was to be used for storage. The plan made no provision for concreting the floor of the storage area.
In accordance with the plan, the plaintiff with the assistance of others, commenced the construction of the upper concrete slab by excavating a number of pier holes. These measured approximately 2 ft 6 ins x 2 ft 6 ins x 2 ft 6 ins They were evenly spaced around the perimeter of the 17 metre x 2.5 metre rectangular area which would eventually become the upper concrete slab.
The holes, dug in the very sandy loose soil, were filled with concrete. On top of the concrete piers and surrounding the rectangular area, was constructed a reinforced concrete beam 16 ins wide and 4 ins deep. Due to the slope of the land, the 17 metre length of beam, which separated the slab from the storage area, was 4 ft below the level of the beam on the opposite side of the rectangle. To achieve a uniform height for the slab, a brick–layer, with the assistance of the plaintiff, built a double besser brick wall on top of the beam. This wall was 4 ft high along the 17 metre length of beam separating the slab from the storage area. The two adjoining walls diminished in height as they followed the rise of the ground to join with the beam on the opposite side of the rectangle thus, completely enclosing the rectangular area. I am satisfied that this wall was built in a good and workman–like manner.
The building owner then altered the design and directed the plaintiff to level the ground in the storage area and lay a concrete floor. This alteration required some excavation work in the storage area. It was decided that the excavated sandy soil would be deposited over the top of the 4 ft wall and inside the rectangular area. When this work was complete, the plaintiff intended to spread the excavated material evenly in the rectangular area to form a level surface with the top of the besser brick walls. The concrete slab would then be laid on top of this base.
To excavate the storage area the plaintiff engaged the services of the defendants to supply a back–hoe and operator. It was admitted that at all material times this operator was acting within the course and scope of his employment with the defendants.
The plaintiff was aware that if the excavated material was placed over the wall so that it rested against it, lateral pressure to the wall would build up thereby creating a danger of it collapsing into the excavated storage area. It was his intention to direct back–hoe operator to lift the sandy soil over the wall and drop it a short distance away from the wall inside the rectangular area. He then proposed to prop the wall before evenly spreading the material across the whole rectangular area and against the walls. Once constructed, the slab would provide the necessary stability to the 4 ft wall.
On the 21 October 1980, the operator commenced work at the south eastern end of the wall. The uncontradicted evidence of the plaintiff was that before work began, he told the operator to place the excavated material on the other side of the wall as far back as he could reach because if it lay against the wall it might cause the wall to collapse. He also told the operator of his plans to later prop the wall and then spread the excavated material by hand.
The plaintiff assisted by working in the storage area below the wall with a shovel, clearing sand away from the edge of the beam. After the operator had excavated the storage area for a distance of approximately 6 or 7 ft along the wall, the plaintiff went around the end of the wall to ensure the material was being placed away from the wall. He saw that it was in fact being placed against the wall and he went back to the operator and told him that he was placing the sand too close to the wall and directed him to put it "out where I first asked you to".
Work had progressed for a further 6 or 7 ft when the plaintiff again went round the end of the wall and this time noted that the sand was now being placed so that none of it came into contact with the wall.
Satisfied that the operator had heeded his instructions, the plaintiff resumed work with the shovel in the storage area immediately below the wall. When the operator had almost completely excavated the whole of the storage area, the wall collapsed without warning. It, and a large quantity of sand, fell on the plaintiff causing him injury.
I accept the evidence of a consulting engineer that sand lying against the wall to a height of approximately half a metre over a distance of approximately 2 to 3 metres would create sufficient lateral pressure to put the wall at risk of collapse.
I find that the pressure of the sand against the wall did cause it to collapse. Counsel for the defendants did not suggest that any other finding was open on the evidence. However, he advanced the hypothesis that the sand may have fallen against the wall as a result of an unexpected collapse of the heaped material placed by the operator some distance from the wall as directed by the plaintiff. He submitted that this hypothesis was equally consistent with the hypothesis that the sand had been placed against the wall by the operator contrary to the plaintiff's directions.
The defendants, by their servant or agent, owed the plaintiff a duty of care not to expose him to a foreseeable risk of injury. As a result of the directions given him by the plaintiff, the defendants' operator knew or ought to have known that a failure to position the excavated material so that it would not put pressure on the wall, would expose the plaintiff, who was working below the wall, to a risk of injury.
Apart from the general proposition that, if built high enough, piles of loose sandy material will collapse, there was no evidence to suggest that such an event had occurred, causing the sand to unexpectedly fall against the wall. The defendants' operator was responsible for placing the excavated material over but away from the wall. The fact that this material did press against the wall with sufficient pressure to cause it to collapse leads to the inference, in the absence of other evidence, that a substantial quantity was placed against the wall by the defendants' servant or agent.
The defendants called no evidence. No explanation was tendered for the absence of evidence from the operator. He was the only person who could have told the court where the sand was dumped. It would have been natural for the defendants to call him to give evidence. See Payne v Parker [1976] 1 NSWLR 191; Earle v Castlemaine District Community Hospital [1974] VR. 722.
The unexplained failure of the defendants to call evidence from the operator leads to the inference that his evidence would not have assisted their case. See Jones v Dunkel (1959) 101 CLR 298. Although the operator was not a party to the proceedings the defendants chose either, not to call him to give evidence or, if he was unavailable as a witness, chose not to adduce evidence to explain his absence. In these circumstances it is appropriate to refer to the remarks of Rich J. in Insurance Commissioner v Joyce (1948) 77 CLR 39 at p49:–
"When circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box, a court is entitled to be bold."
In the absence of any evidence tending to establish that an unexpected collapse was responsible for pressure of sand against the wall and, in the unexplained absence of any evidence from the defendants' operator, the plaintiff's uncontradicted evidence establishes, on the balance of probabilities, that the operator was negligent in placing the sand against the wall in a position which he knew or ought to have known would have put the wall at risk of collapse.
The plaintiff's conduct contributed to the injuries he received. He worked under the wall, well aware of the dangers associated with the operation. Although he checked the back–hoe operator's work twice, both these occasions were at a very early stage of the work. The excavation continued along the wall for something in the order of 10 metres without the plaintiff making any further check to ensure the material was not being placed against the wall. Had he done so he would have become aware of the risk of the wall collapsing. The operator was working under his direction. His failure to make a further inspection in the circumstances constituted a failure to take reasonable care for his own safety. Having regard to the respective responsibilities of the plaintiff and the operator it is just and equitable that the plaintiff's damages be reduced by 20%.
There will be judgment for the plaintiff against the defendant for damages to be assessed and there will be judgment that such damages be reduced by 20%.
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