Rueda v Grant Constructions Pty Ltd & Anor

[2001] NSWCA 324

NEW SOUTH WALES COURT OF APPEAL

CITATION:    Rueda v Grant Constructions Pty Ltd & Anor [2001]  NSWCA 324

FILE NUMBER(S):
40255/00

HEARING DATE(S):           29 August 2001

JUDGMENT DATE:            18/09/2001

PARTIES:
Rafael Rueda (Appellant)
Grant Constructions Pty Limited (Respondent)
Alo Cranes Pty Limited (Cross Respondent)

JUDGMENT OF:      Meagher JA Beazley JA Brownie AJA   

LOWER COURT JURISDICTION:           District Court

LOWER COURT FILE NUMBER(S):       993/99

LOWER COURT JUDICIAL OFFICER:   Garling DCJ

COUNSEL:
J E Rowe (Appellant)
P Garling (Respondent/Cross-Appellant)
H Marshall (Cross-Respondent)

SOLICITORS:
Harpers Solicitors (Appellant)
Hunt & Hunt Lawyers (Respondent)
Nevill & Edwards Solicitors (Cross-Respondent)

CATCHWORDS:
No question of principle

LEGISLATION CITED:
Suitors Fund Act

DECISION:
Appeal and cross-appeal allowed
Set aside judgment of Garling DCJ
New trial ordered on limited basis

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40255/00

MEAGHER JA
BEAZLEY JA
BROWNIE AJA

18 SEPTEMBER 2001

RUEDA V GRANT CONSTRUCTIONS PTY LTD

JUDGMENT

1. BROWNIE AJA:  The appellant was the unsuccessful plaintiff in an action in the District Court for damages for personal injuries, sustained in an accident which occurred on 29 May 1996, at a building site at Warriewood.  The learned trial judge, Garling DCJ, found that the appellant had been seriously injured, as the result of the negligence of someone.  However, with undisguised regret, he concluded that the evidence did not enable him to find that either of the defendants who had been sued had been negligent.

2. There were two defendants:  the respondent (“Grant”), as first defendant, and Mario & Sons Pty Ltd (“Mario”) as second defendant.  Grant brought a cross-claim against Mario, and a second cross-claim against the appellant’s employer Alo Cranes Pty Ltd (“Alo”).  In the event, the action was dismissed as against both defendants, and both cross-claims were dismissed.  The appellant appeals, but only in respect of the finding that Grant was not negligent; and Grant cross-appeals, but only as against Alo.  Mario is not a party to the appeal.

3. The trial judge found that Grant both controlled, and was the occupier of, the building site.  There is no appeal from this finding.  The building work seems to have consisted of the construction of a factory-type building.  The precise function carried out by Grant is not established with any precision, but it entered into a sub-contract with Mario, evidenced by a letter from Grant to Mario dated 18 March 1996.  So far as is now relevant, that letter advised Mario that it was “the successful tenderer for the Structural Steel” on the project in question; and it described the works to be performed as including “Supply all holding down bolts”, and “Supply, fabrication and erection of all structural steel”.  The letter referred to, and incorporated into the sub-contract between Grant and Mario, the terms of some identified “Head Contract”.

4. Mario sub-contracted some of this work out to Alo.  There is no evidence as to the precise terms of that contract, but, presumably in compliance with its terms, Alo sent to the site a crane and a crane driver, and three other men:  the appellant, Mr Aloisi, and Mr Summerhayes.  The appellant and Mr Summerhayes were riggers.  The appellant described Mr Aloisi as his boss.

5. Using a crane, this team of men delivered, and placed into position at various locations around the site a number of columns and beams.  They then started to erect the columns.  Each column was to be erected upon a footing.  The footing formed an integral part of the concrete floor slab that had previously been laid.  There were four types of footings, but each type of footing seems to have contained four bolts, set into the concrete slab, and held fast in that position by some chemical reaction, the detail of which was not proved.  Before Alo arrived at the site, each bolt had a nut screwed onto it. 

6. When Alo started to erect a column, it first removed the nuts from the four bolts, and then lowered the column onto the footing, so that the base of the column fitted over the four bolts.  Steps were then taken to ensure that the column stood at the correct height above the concrete slab.  If need be, packing was placed under the base of the column to ensure that the correct height was attained.

7. When all concerned were satisfied about this question, the nuts were then screwed back onto the bolts and tightened by some mechanical process.  At this stage, each column should have been able to stand vertically, without further support.  In fact however, in respect of a series of columns, the bolts pulled out of the concrete slab, as the nuts were tightened.  When this happened, Alo took each column in question from the footing, and laid the column down on the concrete slab, nearby.  This happened on a number of occasions, perhaps five or six. 

8. In time, Alo put into position a column located on the south-eastern corner of the site.  On this occasion, nothing unusual was noticed about the bolts, as the nuts were tightened.  A second column was erected nearby.  Alo then commenced to install a tie, that is a beam placed horizontally, connecting the two columns together.  As the crane held this tie in position, preparatory to it being fastened to the columns, the appellant placed a ladder against the column in the south-eastern corner of the site, and started to climb the ladder.  As he did so, the column tilted, and then the ladder fell over.  In the resulting fall, the plaintiff was injured.  His Honour found that the accident happened without any negligence on the plaintiff’s part.  He also found that the appellant was “an extremely experienced rigger”, who thought that the column was safe. 

9. It is clear that the column tilted and fell, because the bolts connecting the concrete slab to the base of the column failed.  Two of them were found to be bent.

10. At trial, the only witness who gave oral evidence was the appellant.  The trial judge accepted his evidence, but was left unsatisfied as to why it was that the bolts holding the column to the concrete slab had failed.  In part, this was a product of the paucity of the evidence - presumably the result of some tactical battle - and a concentration upon the particulars of negligence, asserted in the statement of claim.  As sometimes happens, everyone focused on the particulars that had been given, and in this case on the particulars given as to why the bolts had failed.

11. His Honour found, correctly, that the evidence did not enable him to make a finding as to why the bolts had failed, and this led to his giving judgment for both defendants.  On appeal, the appellant focused upon a single question, which, so far as I can tell, was not given prominence during the trial:  on the evidence, there had been a series of bolt failures, and the attention of Grant had been drawn to this fact.  That is, as Grant knew, there was a tendency of the bolts to fail, so that, the appellant said, Grant as the occupier of the site and the person in charge of the operations on the site owed a duty to all the various workers who were on the site, to take reasonable care to protect them from the risk of injury should further bolts fail, but Grant did nothing to avoid or minimise that risk.

12. Grant responded by pointing to what evidence there was as to the web of contracts relating to building work on the site, and by submitting that it could not be said that it had the power to direct Alo to stop work, or to give instructions to Mario, or to anyone else, so as to stop Alo from working on the site; and it pointed to the possibility that if it had assumed this power, it might have been guilty of wrongfully interfering with the contractual relationship between Mario and Alo. 

13. Theoretically, this is correct, but the evidence established that, after the accident, Grant did just that:  it effectively stopped work on the site, so far as concerned the erection of columns, until the problem had been sorted out.  As the appellant described it, there was an order given “by the builder to Tony Aloisi”, to the effect that Alo take down all of the columns that had been erected prior to the accident happening.  That order seems to have been complied with.  In any event, Alo took all its men off the site, apparently until the problem had been resolved.

14. I conclude that, as the evidence stands, the appropriate inference is that Grant did have a contractual right to control what happened on the site.  It follows that it was negligent in not exercising that right, before the appellant was injured.

15. I propose that each of the appeal and the cross-appeal be allowed with costs, that the judgment for the respondent against the appellant and the judgment for the cross-respondent against the cross-appellant be set aside, and that there be a new trial limited to the assessment of damages and to the issues between the cross-appellant and the cross-respondent.  Each of the respondent and the cross-respondent, if qualified, should have a certificate under the Suitors Fund Act.  The costs of the first trial should be in the discretion of the judge who presides over the new trial.

16. MEAGHER:  I agree.

17. BEAZLEY JA:  I agree with Brownie AJA.

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LAST UPDATED:           25/09/2001