Shoveller v Dak-Wal Constructions Pty Ltd (No 3)

[2021] NSWSC 352

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Shoveller v Dak-Wal Constructions Pty Ltd (No 3) [2021] NSWSC 352

Hearing dates:

7-11 September 2020

Date of orders:

8 April 2021

Decision date:

08 April 2021

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Judgment on the Statement of Claim for the plaintiff against the first defendant and the third to seventh defendants;

(2)   Judgment on the Statement of Claim for the second defendant against the plaintiff;

(3)   Judgment on the First Cross-Claim for the third to seventh defendants/cross-claimants against the first defendant/second cross-defendant;

(4)   Judgment on the First Cross-Claim for the first cross-defendant;

(5)   Judgment on the Second Cross-Claim for the second defendant/first cross-defendant against the cross-claimant/first defendant;

(6)   Judgment on the Second Cross-Claim for the third to seventh defendants/second to sixth cross-defendants;

(7)   The Third and Fourth Cross-Claims are dismissed;

(8)   The first defendant shall pay the costs of and incidental to the proceedings and each Cross-Claim incurred by the plaintiff, the second defendant and the third to seventh defendants;

(9)   Leave is granted to any party to apply for a different order as to costs; for the inclusion of any agreed order as to damages; and any other aspect relating to damages or the form of the orders to be entered. Such application shall be made within seven days of the date of this judgment, with each party affected by any such application filing any response thereto within a further seven days of the application. All or any such application or response shall be made by email directly to the Associate to Justice Rothman. The Court will, if there be a contest in relation to such a matter, list the matter for directions to deal with the processing of any such application. Such directions hearing shall be by audio visual link.

Catchwords:

NEGLIGENCE - Occupiers’ Liability – Duty of Care of builder/occupier for hazard created during building works and causing damage to invitee after handover to Owners – relative liability of Owners, builder and contractor.

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Law Reform (Miscellaneous provisions) Act 1946 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA

Baker v Gilbert [2003] NSWCA 113

Bell v Thompson (1934) 34 SR (NSW) 431

Blatch v Archer [1774] 1 Cowp 63; (1774) 98 ER 969

Council of the City of Greater Taree v Wells [2010] NSWCA 147

Hackshaw v Shaw (1984) 155 CLR 614

Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34

Ridis v Strata Plan 10308 [2005] NSWCA 246

RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Sutherland Shire Council v Safar [2017] NSWCA 203

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Wallace v Kam (2012) Aust Torts Reports 82–101; [2012] NSWCA 82

Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Texts Cited:

J Wigmore, A treatise on the Anglo-American system of evidence in trials at common law : including the statutes and judicial decisions of all jurisdictions of the United States and Canada (3rd ed, 1940, Little, Brown) Vol 2, s 285

Category:

Principal judgment

Parties:

Alfred Shoveller (Plaintiff)
Dak-Wal Constructions Pty Ltd (First Defendant)
Akota Construction Pty Ltd (Second Defendant)
Joanne Patricia Cunningham (Third Defendant)
Merran Rosemary Doyle (Fourth Defendant)
Susan Daintrey Virgona (Fifth Defendant)
Wilfred James Luscombe (Sixth Defendant)
Lucia Louise Luscombe (Seventh Defendant)

Representation:

Counsel:
K Andrews (Plaintiff)
D Priestley SC / T Berberian (First Defendant)
N Chen SC / D Stretton (Second Defendant)
B Hull (Third – Seventh Defendants)

Solicitors:
Law Advice Compensation Lawyers (Plaintiff)
Colin Biggers & Paisley (First Defendant)
Moray & Agnew (Second Defendant)
Holman Webb Lawyers (Third – Seventh Defendants)

File Number(s):

2018/277332

Judgment

1. HIS HONOUR: Alfred Shoveller fell from a concrete walkway leading to the front door of 4 Patricia Place, Killcare (hereinafter “the premises”). He was significantly injured. Mr Shoveller, the plaintiff in these proceedings, attended the premises with his daughter, Angeline, his granddaughter and grandson.

2. Mr Shoveller was attending the premises after the family were invited by the Owners (the third to seventh defendants in these proceedings) and attended the premises for the first time the afternoon before the fall. The fall and injury occurred on 18 June 2016.

Background

3. The house consists of a number of levels and a walkway proceeds down a few steps from the road level, then horizontally to the front door. To the right-hand side of the walkway (being to the north) is a garage and to the left-hand side of the walkway there is and was a drop to the lower level. The drop is approximately 2.5 m to 3.0 m. Along the left-hand side of the walkway, as one proceeds to the front door of the house, there was a metal balustrade or handrail.

4. Much of the circumstances surrounding the injury are uncontroversial; damages have been agreed; and the Court is required to determine liability only and, in so doing, determine which or who, if any, amongst the seven defendants is liable and, if more than one, their respective liabilities.

5. On 18 June 2016, the plaintiff was walking along the walkway and stopped immediately in front of the front door of the house. He did so for the purpose of attending to his shoes. At the time it seems that the plaintiff may have been carrying a television, which he had placed on the walkway prior to the fall. As he bent down, the plaintiff lost his balance and fell against the balustrade.

6. The balustrade failed. The plaintiff fell from the walkway to the concrete surface below. The section of balustrade which failed had previously been noted as being in need of repair and was repaired. This section of balustrade was found next to the plaintiff after the fall.

7. As a result of the fall, the plaintiff suffered a complete T8 paraplegia; left-sided fractures to the fourth, sixth and seventh ribs; unstable fractures of T8 and L1; stable fractures of the vertebrae at T9 and T11; pneumothorax (a collapsed lung); and related disabilities. The plaintiff underwent hospital treatment, including a T7-T9 laminectomy and decompression and associated treatment.

8. The plaintiff was born on 9 October 1942 and was almost 74 at the time of the fall. He lived independently and was substantially retired, although he assisted friends and family in general handyman type duties.

9. The proceedings are brought against the third, fourth, fifth, sixth and seventh defendants, each of whom was a part-Owner of the premises (hereinafter referred to as “the Owners”). They are also brought against the first defendant, Dak-Wal Constructions Pty Ltd (hereinafter “Dak-Wal”) and the second defendant, Akota Construction Pty Ltd (hereinafter “Akota”). Dak-Wal and Akota were, at various times, at the premises, carrying out building work. The times at which each was carrying out work is disputed.

10. Dak-Wal was retained by IAG Ltd t/as NRMA Insurance in about April 2015 to carry out repairs in relation to storm damage, a claim for which was made by the Owners. IAG had agreed to repair the damage.

11. The repair works were to be undertaken pursuant to a scope of works approved by IAG. Dak-Wal retained a local builder, Akota, to undertake part of the works. Akota also undertook work, not as a subcontractor to Dak-Wal, directly with the Owners in relation to other work to be performed.

12. The works undertaken by Dak-Wal and subcontracted to Akota were set out in a written quote dated 11 March 2016 and were said to be performed in accordance with the Dak-Wal Subcontractor Terms and Conditions. Initially, Dak-Wal retained responsibility for the installation and removal of the external perimeter scaffolding and the removal of the asbestos cladding.

13. Akota was responsible for the balance of the approved scope of works. Akota, as stated, also separately agreed with the Owners to carry out other works not arising from the storm damage, including installation of new windows. This additional work was also the subject of a written quote. Akota apparently engaged subcontractors, including carpenters and painters, in addition to its own employees, to perform its various contracted works.

14. As stated, the handrail or balustrade was made of metal. Also as earlier stated, it had been noted as being in need of repair. It was in a broken and defective condition at a time prior to the commencement of any of the works, but not, it seems, immediately prior thereto.

15. A relative of the Owners (Mr Regan) performed temporary home handyman repairs to the handrail using metal fixings. This temporary repair work was performed in March 2016.

16. According to the first defendant, Dak-Wal, the handrail was not specified to be part of either the works contracted to Dak-Wal or the works contracted to Akota (either by way of subcontract or by way of the contract for the additional work). Akota takes the same view.

17. The Owners, on the other hand, allege that Akota, through an authorised officer or employee, Nathan Pavett, agreed to carry out a welding repair to the balustrade while he was on site. The agreement was oral; was never reduced to writing; and resulted from a conversation between Mr Pavett and Mr Luscombe, the sixth defendant, in October 2015. Further, no price for the repair work had been agreed.

18. The Owners believe that the agreement was repeated, and acknowledged or confirmed in two conversations between Ms Cunningham, the third defendant, and Mr Pavett in April and/or May 2016 and again in June 2016. The second occasion was about one week before the subject incident. Apparently, no price or quote was discussed and no timing was given for the performance of the work. Rather, Mr Pavett said he would do it at a time when Akota was working on site.

19. Akota denies that there was any separate, oral agreement to perform welding repair works to the handrail. In any event, the handrail was not welded before the fall. The building work commenced on site in about early May 2016. The removal of the asbestos cladding was finished by about 9 May 2016.

20. Akota workers and/or contractors attended the premises on 11 May and commenced work on site on or about 12 May 2016. On or by 8 June 2016, the scaffolding had been dismantled, stacked and was awaiting collection at the front of the premises.

21. After this time, Dak-Wal had no further direct involvement in the works other than the circumstance that one of its employees, Mr Squires, attended the premises to photograph aspects of the work on a couple of occasions, the last time before the accident, being 14 June 2016. These photographs were taken in order to supplement or document the progress that had been made in work on the premises in order to report to IAG. Akota performed subcontract work for Dak-Wal after 12 May 2016.

22. Importantly, one of the photographs, taken at 8:44:17am on 7 June, shows this section of the balustrade resting directly on the walkway, having been disconnected, in whole, at each end. The balustrade section was still upright and leaning or resting, but unfixed.

23. The Akota workers and subcontractors finished their various work by 10 June 2016. There was still to be completed painting work, which was completed on 17 June 2016.

24. I reiterate that damages have been agreed and the parties agree that the damages, if liability be determined, be in the sum of $3 million, plus costs, as agreed or assessed. There is no claim for contributory negligence. Initially, there were claims for contributory negligence, but such claims have been withdrawn.

Evidence

25. The plaintiff, Mr Shoveller, gave evidence and filed an Amended Evidentiary Statement dated 8 August 2019. He has no recollection of the accident and little of the events in the period immediately prior to it. The lack of memory is unsurprising, given the nature of the injuries.

26. As a consequence of his lack of memory and the agreement as to damages, his evidence is not especially relevant to the issue of liability. There were some matters of relevance.

27. Mr Shoveller remembers being invited to the house and remembers meeting Tony Bates on arrival in the afternoon of 17 June 2016. He had not been to the house prior to that occasion.

28. When he arrived at the premises, Mr Shoveller saw painters at work and he was informed that the premises had just been re-clad. As a result of work being performed on the premises when they arrived, Mr Shoveller, his daughter and grandchildren left at the premises the car in which they arrived and walked to the beach.

29. On 18 June 2016, Mr Shoveller had been in the downstairs area of the house trying to fix the television, because the television in the top unit was not working. Thereafter, all that Mr Shoveller can recall is that: he was with his grandson downstairs; he went up the stairs to put his shoes on; and he recalls nothing else until after the accident, or, more accurately, as he was “flying through the air”. After the recollection as to flying through the air, the next thing that is recalled is waking in hospital.

30. He was the subject of some cross-examination and admitted that he had, in the time prior to the accident, walked up and down the pathway or, as referred to in these reasons, walkway, adjacent to the balustrade at least once or twice. He could not remember whether he had done so more times than that.

31. Mr Shoveller does not recall noticing anything unusual about the handrail or how it was connected to the house. Nor does he recall whether he was carrying the television before the fall.

32. Michael Shoveller (hereinafter “Michael”), the plaintiff’s grandson, gave evidence and relied upon his Evidentiary Statement dated 1 September 2020. He had travelled to the Central Coast for a long weekend family get-together. He remembers staying one night before the plaintiff had his accident. By the time Michael arrived the plaintiff’s daughter, Angeline (Michael Shoveller’s aunt) and Angeline’s daughter, Francesca, were already at the premises. Michael Shoveller’s mother, Karen (now Karen Bates) and her partner Tony arrived about two hours later.

33. His recollection of events is, not unexpectedly, better than that of the plaintiff. The first night they had dinner together as a family and, on the next morning, Michael went to the beach with a number of the others, although the weather was wintry. Notwithstanding the wintry weather, it had not been raining on the day of the accident.

34. Michael and the others, or some of them, had lunch at the house and then went to a pub in the afternoon. Michael had one glass of wine; Michael does not recall the plaintiff having a drink as the plaintiff does not ordinarily drink alcohol.

35. The group spent about an hour at the hotel and then returned to the house. He and the plaintiff wanted to watch football, but the television was not working. They decided to go downstairs to the unit below to investigate what they could do to improve the reception.

36. While trying to improve the reception, the plaintiff offered to go upstairs to retrieve a second television screen. Michael remained downstairs. Within five minutes, Michael heard a loud bang.

37. He went outside the front door of the lower unit to investigate the noise and saw the plaintiff lying on the ground. He was confused about what had occurred but noticed that the railing from the entrance upstairs was lying on the ground next to the plaintiff.

38. He also noticed that the plaintiff did not have shoes on his feet. One of the shoes was on the ground near him and he later observed the other shoe upstairs, near the front door of the upper level unit, on the walkway.

39. The plaintiff was not moving when he was seen by Michael; who went upstairs to tell everyone what had happened; came back to the plaintiff; and, on his return, noticed that the plaintiff was making noises. There was no mobile telephone reception at the house and Michael’s mother, on Michael’s understanding, drove down the road to obtain reception to call an ambulance. The ambulance arrived a short time later.

40. It is unnecessary to deal with the evidence-in-chief of Karen Bates, who is the daughter of the plaintiff and the mother of Michael Shoveller. There was no cross-examination of Karen Bates or Michael Shoveller.

41. They were the only witnesses called by the plaintiff. The degree of cooperation between the parties was significant and the parties ought to be commended for that cooperation and agreement. It accords with the parties’ and their legal representatives’ obligations under s 56 of the Civil Procedure Act 2005 (NSW), but, even so, the parties and legal representatives are to be congratulated for the level of cooperation.

42. That cooperation included a Schedule of Agreed Facts. Some of the facts were agreed between some of the parties but not others; some of the facts were agreed by all of the parties. The Schedule [1] is in the following terms:

    1. Exhibit D.

FACTS SHEET AGREED (A) OR DISPUTED (D)

FACT	P	D1	D2	D3
1	In mid-2015, a storm damaged the subject premises and an insurance claim was lodged by the homeowners with the NRMA. That claim did not concern the subject handrail	A	A	A	A
2	NRMA Appointed Dak-Wal to carry out the storm damage repairs	A	A	A	A
3	Dak-Wal was responsible for the erection and dismantling of the scaffolding and for the removal of the damaged asbestos cladding	A	A	A	A
4	Dak-Wal was the head contractor for the storm damage repair works	A	A	A
5	Dak-Wal sub-contracted the fixing of the new cladding to Akota	A	D	A	A
6	Akota agreed to do other works for the owners whilst doing their subcontract works for Dak-Wal	A	A	D	A
7	Part of the additional work that Akota agreed to do was the welding of the subject balustrade	D	D	D	A
8	Removal of the asbestos cladding was completed by 9 May 2016	A	A	A	A
9	Akota did its work on site between 12 May and 10 June 2016	A	D	A	A
10	The scaffolding was dismantled between 1 June and 7 June 2016	D	A	A	A
11	On 14 June 2016 Steven Squires attended the site and took photographs	D	A	A	A
12	At some stage between 22 May and 14 June 2016 the subject balustrade was disconnected from both its eastern connection to the house and its western connection to the post such that it was sitting on the walkway without any structural support	D	D	D	A
13	Defendants 3, 4, 5, 6 and 7 were all part owners of the said property	A	A	A	A
14	The Plaintiffs damages are agreed at $3,000,000	A	A	A	A
15	There is no allegation of contributory negligence	A	A	A	A

43. The only other evidence adduced by the plaintiff was a communication ultimately from Mr Regan, who had completed the repairs to the balustrade. By agreement that document was admitted. [2] Mr Regan was called by the Owners. The substance of the evidence, which is important in the scheme of the matters to be decided in these proceedings, is in the following terms:

    2. Exhibit E.

“- You said the existing handrail failed – brief description of what went wrong with it. It was old and starting to rust in the two places where it joined the house and joined the original handrail

- when was the temporary repairs to the existing handrail carried out – I don’t know exactly but well before the insurance repair work started – I’m guessing early 2016 – you can ask Murray Regan – he did the temporary repair work

- who proposed the temporary fix Murray Regan

- who carried out the temporary and at whose recommendation was the threefold fix carried out Murray Regan

- is it true that one of the husbands of the co-owners undertook a temporary repair to the handrail, is this correct? Murray Regan was Merran Doyle’s live in partner at the time (2016). They got married in Feb 2018 – so now husband of co-owner

- what work did he actually carry out? Was it the installation of the bracket or the white piece of material? It was the installation of brackets in 2 locations – short term temporary repair until more permanent fix (welding) could occur. I don’t know what you mean by white piece of material

- when did you instruct Akota to fix the handrail by welding two section of the handrail together? Verbally in April or May 2016 – it was not on the written variation list of the attached contract because Akota agreed to do it for free

- it appears that the bracket worked for a time, who removed the bracket or the white piece of material? The bracket would have worked perfectly well if it had not been disconnected by someone. We do not know who disconnected the bracket, however, it is very likely to have been either DakWal or a sub-contractor of DakWal or Akota. Possibly whomever removed the scaffold from around the house – perhaps whomever removed the scaffold thought it would be easier to move the scaffold pieces back towards truck if handrail was not in the way

- what was this material made of? Brackets were made of steel – please check with Murray Regan

- 22 May and 18 June - was it 2016? Yes both photos were 2016

- I note there were a few photos taken - please provide copies of other photos. Attached email from Guy Luscombe dated 31 May 2016 – has some photos. My brother, Tony Bates took some photos on 18 June 2016 – one hour before the accident – please ask him for his photos from that day

- when were you informed of the incident. If you are notified by email, please provide copy of the email I was informed of the accident on the evening 18 June 2016 by telephone. I can’t remember who called me – either my sister or my brother. I was not notified in writing

- at the date of taking the photos, had you already been informed of the incident – No the photo issued to you dated 18 June 2016 was taken approx. one hour BEFORE the accident

- who and at what time was the photograph taken on 18 June 2018 My brother Tony Bates. He was taking photos to show us all the great progress of the work by the builders and to show us how nice the house looked

- who took the photographs? Tony Bates – my brother”

44. The foregoing answers, as distinct from the questions, were provided by Mr Regan at the request of Ms Cunningham.

45. A significant number of photographs were tendered in the course of the proceedings, all of which are relevant, but many of which were tendered to identify better the timing at which particular work was performed.

46. In particular, an important aspect was the timing at which the scaffolding was dismantled and a number of photographs were tendered to show the dismantled scaffolding in various stages of construction or dismantling. Other evidence was adduced as to the timing at which the scaffolding was unloaded; dismantled; and collected.

47. It is clear from the photographs [3] that, as at 3 June 2016, the scaffolding was still in place, but dismantling had commenced. It is also clear that on or about 7 June 2016, the scaffolding was ready for collection. [4]

    3. Exhibt 2D-6.

    4. Exhibit 2D-1.

48. Exhibit 2D-4 is a bundle of worksheets for Dak-Wal that show all the scaffolding being loaded for the premises at another site on or about 30 May 2016 and a worksheet for the dismantling of the scaffold at that other site on 31 May 2016. A further worksheet of 7 June 2016 shows four hours of work in dismantling the scaffolding at the premises in the morning of 7 June 2016 and a further three hours in the afternoon of 7 June 2016.

49. On 8 June 2016, the worksheets show all of the scaffolding was due to be loaded at the premises at Killcare and delivered to another site. Further work, the last of it, from Dak-Wal’s perspective, seems to have been performed on 10 June 2016. [5]

    5. Exhibit 2D-4.

50. The first defendant called Steven Paul Squires, who had filed and serveda witness statement dated 1 November 2019. Mr Squires was cross-examined at some length and some of that evidence was and is crucial in the determination of the issues before the Court.

51. Mr Squires is a licensed builder with over 35 years’ experience in the residential and commercial building industry, who now specialises in insurance work and engages licensed subcontractors to carry out the work for Dak-Wal. He is a Major Loss Building Coordinator and his duties include project management; attending sites; coordinating work; supervision of work; engaging subcontractors; reviewing the scope of work; performing quality control and quality inspection of the works undertaken; liaising with other Dak-Wal employees and the client insurer.

52. Mr Squires sets out the scope of works, [6] which includes the removal and installation of screen; asbestos removal, disposal, air monitoring and certification; removal of all asbestos cladding to upstairs of building; the construction of scaffolding around the entire building; and other ancillary work.

    6. Exhibit CB1, p 116 (Statement of Steven Paul Squires dated 1 November 2019 at [9]).

53. A variation occurred in the work which included the removal of scaffolding clean up; the installation of poly skin to weatherproof existing windows and corners of the building; and the installation of new Weathertex Natural Selflok cladding with stainless steel fixings.

54. The work, including the variation, did not require work on the handrail. The witness statement [7] testified that Mr Squires recalled “observing that the subject handrail was in place” during each of his visits to the site. Mr Squires returned to the site on 21 June 2016 and had a conversation with one of the Owners, Mr Luscombe, about the handrail.

    7. Exhibit CB1, p 118 (Statement of Steven Paul Squires dated 1 November 2019 at [24]).

55. That conversation does not accord with the uncontested evidence otherwise before the Court as to the circumstances of the fall. Mr Luscombe was not present at the premises when the fall occurred. Nor does the description by Mr Luscombe, as recounted by Mr Squires, accord with the state of the handrail that is otherwise uncontested.

56. On 21 June 2016, Mr Squires secured the handrail in place by the use of screws, timber offcuts and brackets. Photographs were taken of the secured handrail.

57. Mr Squires also described the failed section of the handrail as being: steel; approximately 900 mm high; supported by vertical steel bars approximately 125 mm apart; and there is a three meter drop, approximately, from the highest point of the ramp to the ground below. The whole of the railing, including the failed section, was 6 to 8 m in length; joined the second storey of the house at one end and is free standing at the end closest to the road. The handrail, according to Mr Squires, was not required to be removed or modified by Dak-Wal to complete the works.

58. The scope of works, annexed to Mr Squires’ witness statement, discloses that the contract to Dak-Wal included the removal of the asbestos cladding and the replacement of the upper-level cladding. The replacement of the upper-level quote cladding was subcontracted to Akota.

59. Further, the quote from Akota initially provided for the removal and replacement of the cladding, and included labour costs for a carpenter to install “sarking, cladding, architraves and moulding”. [8] It should be noted that there are architraves, other than those surrounding the doorframe.

    8. Exhibit CB1, p 128 (Statement of Steven Paul Squires dated 1 November 2019 at “SPS5”).

60. A later quotation excluded, from the work to be performed by Akota, work that was to be done by Dak-Wal, which was the setting up of the scaffold around the entire building to allow access to all elevations; and the removal of all asbestos cladding (the old cladding) to the upstairs of the building.

61. The old cladding that needed to be removed following storm damage, and the new cladding that replaced it, was fitted behind the architrave of the front door, particularly on the left-hand or northern upright section of the architrave. The balustrade was affixed, after the repairs by Mr Regan, by screws to the architrave on the left-hand side into the wall, or supports thereto, behind it.

62. The question, said to be relevant to liability, arose as to whether it was necessary to remove the section of balustrade that adjoined the doorjamb/architrave in order to remove the old cladding and Mr Squires gave evidence that it was unnecessary. In particular, Mr Squires’ evidence was that the cladding slid behind the architrave without the need to remove the architrave or the screws affixing the balustrade.

63. The process of sliding the cladding that was behind the architrave was a process that applied to both the removal of the cladding and replacing it with the new cladding. [9] Mr Squires attested to the fact that the workers removing and replacing the cladding did not need to interfere with the architrave or doorframe. Mr Squires, part of whose task was to ensure that the work was at a standard that was approved, says he would have noticed if the cladding had interfered with the doorframe or architrave.

    9. Tcpt, 8 September 2020 p 45.

64. In fact, Mr Squires says he noticed that it was “always still attached to the doorframe”. [10] It should be remarked, at this point, that the entire western wall of the house was re-clad and the doorway at the end of the walkway at the upper level is in the western wall.

    10. Tcpt, 8 September 2020, p 45(27-29).

65. The scaffolding had been erected around the west, north and eastern elevations of the premises and had two levels from which work would have occurred and did occur. The upper level of the scaffolding “ended very close to the railing”. [11]

    11. Tcpt, 8 September 2020, p 39(35-44).

66. A photograph showing the higher work platform of the scaffolding and its relationship with the top of the balustrade section in issue in these proceedings is before the Court. There are a number of such photographs, but the most convenient source is a photograph taken on 22 May 2016. [12]

    12. IMG_0399J PG, 22 May 2016 at 6:57 AM found as part of Exhibit 3D-3 and in the Court Book, Exhibit CB-1, p 234.

67. Mr Squires accepted that this photograph showed that the original asbestos cladding on the garage wall behind the railing had been removed as at 22 May 2016. He also accepted that the photograph showed that the cladding under the window on the western side of the house was in the process of being installed. As already stated, that new cladding was to cover the entire western wall and fit in behind the white door architrave or doorframe. Mr Squires reiterated that no involvement with the door architrave was necessary for the installation. [13]

    13. Tcpt, 8 September 2020, p 43(25)-45(29).

68. Mr Squires was then cross-examined about photographs taken on 7 June 2016 at about 13:15 hours. In particular, Mr Squires was shown a photograph that was tendered and admitted without objection and marked Exhibit 2D-1.

69. That photograph shows that, as at 7 June 2016, as earlier stated in these reasons, the scaffolding was dismantled and awaiting collection at the front of the premises. However, the photograph, near its left edge, also shows the balustrade, including the section leading to the front door.

70. That section of the photograph in Exhibit 2D-1 was the subject of enlargement. The witness was asked about that enlargement. Mr Squires recognised the enlargement of that section of the photograph as an enlargement of Exhibit 2D-1 [14] and was examined about it.

    14. Tcpt, 8 September 2020, p 64(30-32).

71. The following questions are crucial in the case that is put before the Court. The exchange, in the cross-examination of Mr Squires by Mr Chen of Counsel, representing the second defendant, was in the following terms:

“Q.    You can see, can’t you, in the photograph that I’ve just placed before you, that the very section of railing that’s supposed to be present, connected to the house, is entirely missing, is it not?

A.    It is.

Q.    The walkway itself runs close to the garage, approximately horizontal or level, and then slopes down towards the house, does it not?

A.    It does, yes.

Q.    On the right hand side of the photograph that I showed you, the blow up photograph, you can see what is or what appears to be - I’m going to describe it as “Hatching,” do you see that?

A.    Yes, I do.

Q.    That is the section of railing, is it not, Mr Squires, placed up against that section of railing close to the garage?

A.    Yes, I believe so.

Q.    It’s the case, isn’t it, that after taking this photograph here, on 7 June, you then proceeded to walk down this very walkway, did you not, into the house?

A.    I did.

Q.    You, can I suggest, walked by an open section of railing?

A.    It appears that way, yes.

Q.    The only people who may have been in this area before you, undertaking any form of work, so far as you’re concerned, would be the scaffolders, isn’t that right?

A.    Yes.

Q.    They’re the only people that would be getting up off the scaffold onto the walkway, isn’t that so, at this time?

A.    I believe so.

Q.    The only people who would have reason, if, say, they were seeking to move equipment from the lower level onto the walkway, to remove it, isn’t that right?

A.    It appears that way, yeah.

Q.    You can’t think of anybody else, can you?

A.    No.

Q.    You see, Mr Squires, it was seriously remiss of you, can I suggest, for you to walk by this and leave it in that condition, isn’t that so?

A.    It would appear that way, yes.

Q.    It would be contrary to what you think is proper and accepted practice by somebody in your position to leave an opening of that kind in that condition, isn’t that so?

A.    Yes.

Q.    You did not give anybody a direction to put it back, did you?

A.    No, I did not.

Q.    Did you place it back in position, Mr Squires?

A.    Not on this day I did not.

Q.    Did you do it on another day?

A.    I did.

Q.    What day was that?

A.    21 June, I believe, or July. I can’t remember the months.

Q.    You do know, don’t you, that on 14 June you were back at the site?

A.    Yes.

Q.    And you do know that that section of railing had been placed in position as shown in the photograph I took you to earlier, isn’t that right?

A.    Yes.”

72. The reference in the last question to the photograph to which the witness had earlier been taken was a reference to CB-1, p 235. The enlarged section of Exhibit 2D-1 was tendered and marked Exhibit 2D-2.

73. The “hatched” section to which the questions refer is at the right edge of the photograph, viewed in landscape. At the left edge of the photograph, again viewed in landscape, the missing section of the balustrade is obvious.

74. Mr Squires’ evidence also establishes that on 14 June 2016, Mr Squires was at the site and took further photographs. One of the photographs was taken standing on the walkway in the general vicinity of the section of railing that failed.

75. Mr Squires was asked whether he was the person that placed the failed section of railing back and placed a ligature attaching the failed section of railing or balustrade for the purpose of holding it upright. Each of those propositions was denied by Mr Squires.

76. The Court cannot hold and does not accept that Mr Squires replaced the failed section of walkway and attached it with a ligature. I bear in mind that the Court is concerned only to determine that question on the balance of probabilities, but there is no evidence that would establish, or render more probable, the placement of the failed section by Mr Squires prior to the accident. Even if I were to disbelieve Mr Squires’ denial evidence in this regard, there is no evidence that the railing was re-located and attached with a ligature by Mr Squires.

77. Nevertheless, as Mr Squires himself conceded, he had seen and taken photographs of the railing or balustrade with the section missing. He walked past the balustrade with the section missing and he gave no directions for its replacement in a manner that would have obviated this accident.

78. There were others, including painters, working on the site between 7 June 2016 and 14 June 2016. But they were not using the scaffolding or working in the area adjacent to the upper level door.

79. However, one of the issues before the Court is whether, on the balance of probabilities, it was the scaffolders who removed that section of the balustrade to ease the loading and unloading of material from the higher scaffold level and to allow access to that level more conveniently; or whether it was those persons performing the cladding work. As to the latter, there is an issue as to whether, if it were the workers on the cladding, it was those workers removing the cladding or those installing it.

80. There was further cross-examination in relation to the possibility or probability that those workers, performing the cladding, would have needed to remove the plate fixing the railing or balustrade to the doorframe. Mr Squires rejected that possibility as not taking account sufficiently the nature of the asbestos cladding that was removed and the brittleness of asbestos material and, in particular, cladding.

81. Mr Squires was of the view that the plate, about which there was a series of questions, remained fixed to the house. The cladding, he said, was removed from around the bracket; not the bracket removed from the cladding.

82. The handrail, and the bracket that affixes the handrail to the house, is affixed through the cladding; the bracket is not fixed to the cladding itself. On the basis of that evidence and the absence of any other evidence to the contrary, I am asked to determine, on the balance of probabilities, that those performing the cladding did not remove the plate affixing the railing or balustrade to the house.

83. The balustrade was fixed by the plate into hardwood, which is structural. Cladding is not structural; it is a protective coating that is affixed to other structural items. To the extent it is necessary, I note that I considered Mr Squires to be a witness of truth, whose recollection was generally reliable and who, when the recollection was unreliable, admitted same. In the examination, Mr Squires stated that he did not notice a gap in the railing on 7 June 2016.

84. As to the removal of the plate attaching the railing to the house, the evidence of Mr Squires was essentially corroborated by the evidence of Antony James Jacobs, who was one of the supervisors of the workers removing the asbestos cladding and whose Affidavit, dated 12 August 2020, is to that effect. The asbestos cladding, which was not hollow, was removed in sheets and it was, according to Mr Jacobs, unnecessary to remove the screws to the plate to remove the cladding. Further, the screws to the plate were not removed.

85. The fixing of the failed section of the handrail on the earlier occasion was explained in the evidence of Mr Regan and the section was solid, even though the repairs were temporary and effected with square brackets, rather than by welding.

86. Mr Jacobs had worked for Dak-Wal earlier in his career and, in that period, worked as a plasterer. He left Dak-Wal to work in asbestos removal and returned to Dak-Wal as the demolition supervisor, asbestos supervisor and as a tradesperson. His duties were to set up the site; remove the asbestos safely; and ensure the well-being of the workers around him. He holds appropriate licences for the removal of asbestos and has been involved in asbestos demolition for approximately 20 years.

72. Mr Jacobs recalls working at the premises and described it as a difficult site because of the changing levels and its awkward position on the side of a mountain. His Affidavit describes the walkway and the metal railing. He remembers the top of the horizontal metal railing being connected to the front doorframe.

73. Mr Jacobs then describes the system of work for the removal of asbestos which was as follows: the insertion of nail-puller into the cladding so as to jiggle, carefully, the cladding out from its position in order to remove it. He inspected the connection of the railing to the doorframe and, in his words, “gently pulled out the asbestos from behind the doorframe”. [15]

    15. CB1, p 238 (Affidavit of Anthony James Jacobs dated 12 August 2020 at [12](b)).

74. The care with which asbestos must be removed or handled was described by Mr Jacobs. The effect of lack of care would be that, on his evidence, the asbestos will turn to powder. Asbestos, in powder or microscopic particles, is notoriously dangerous. The labourer, Mr Don Hatten was on the scaffold assisting Mr Jacobs and once the asbestos was removed, Mr Jacobs cleaned the area with a vacuum and the labourer transferred the asbestos to the truck.

75. Mr Jacobs attests to the fact that he did not touch or loosen any screws or any connection of the railing to the doorframe. Rather, Mr Jacobs worked around the doorframe to remove the asbestos cladding from behind it, which is the usual system. According to Mr Jacobs, there was no reason to remove or alter the handrail or to interfere with it in any way.

76. Mr Jacobs referred to his usual practice of assessing safety hazards after the work had concluded and recalled checking around the doorframe and the handrail and noting that there was nothing unusual about the handrail, which appeared to be in place. Further, Mr Jacobs, who is, on his testimony, trained in occupational health and safety, would have rectified any loose connection of the handrail, or at least told someone about it, as this would pose a serious risk.

77. The difficulty with that statement as to occupational health and safety is that, at the time that the asbestos cladding was removed, looseness in the failed section of the railing would not have posed a significant danger and would not, necessarily, have been obvious. The upper level work platform of the scaffolding abutted the railing in the section that had failed. It would have been impossible for a person to fall, even if there were no railing in place, given the presence of the scaffolding.

78. There is a further difficulty with the testimony of Mr Jacobs relating to the manner in which the asbestos was removed from behind the architrave. The difficulty in that evidence became obvious from the testimony of the expert witnesses in conclave because the manner in which the two fixing plates secured the railing to the house doorframe/architrave. This will be explained later in these reasons.

79. Nevertheless, Mr Jacobs is adamant that he did not disconnect the handrail from the doorframe or in any way disconnect it from the connection point to the house.

80. In cross-examination Mr Jacobs explained that the asbestos board was removed in a full sheet and that the sheets were 6 to 10 mm thick. The sheets were not hollow. Mr Jacobs also accepted that the railing had an end plate, which was attached to the cladding by a screw. Nevertheless, Mr Jacobs did not accept that there was a need to remove the screws to remove the cladding.

81. Mr Jacobs explained that he pried the asbestos cladding, using a flat bar and jiggled the board up and down, causing the asbestos cladding to crack around where the screws or bolts were. He then used a flat-head screwdriver or very thin chisel to pry away the remainder of the asbestos.

82. The last mentioned evidence in cross-examination as to the method of removing the asbestos board, given that the screws from the fixing plate were attached to the architrave and the bearer behind the cladding and pierced the cladding, was the first occasion on which that version of the removal was given.

83. Further, that evidence is and would have been highly relevant to the issues in the proceedings. Further again, the detail of that evidence is inconsistent with Mr Jacobs’ evidence-in-chief, albeit in matters of detail.

84. The evidence-in-chief of Mr Jacobs was that the asbestos cladding was removed from behind the architraves in a whole sheet. There was no reference to needing to crack or split the asbestos cladding and then to remove, at a later time, that which remained on the other side of or around the screws.

85. I gained the impression that this evidence was a reconstruction based upon what could have happened, rather than that which Mr Jacobs recalled. Perhaps it was a recollection of some aspects of the removal together with other different aspects.

86. Mr Jacobs’ Affidavit was sworn on 12 August 2020; the evidence in cross-examination was given on 8 September 2020. The events occurred in 2016.

Conclave

102. Three experts were qualified and gave evidence in the proceeding. Prior to the evidence, there was a conclave of the experts and a report issued dated 26 June 2020, which answered a number of very specific and detailed questions.

103. Mr Bailey, a mechanical and biomedical engineer, but not a builder, building consultant or architect prepared a report which was commissioned by the Owners, dated 26 March 2020. His report was later in time than the report of Dr Cooke of 1 April 2019 and of Mr Hickey of 29 January 2020 who were qualified by the plaintiff and the second defendant respectively.

104. Mr Hickey, whose report was prepared on behalf of Unisearch, a business section of University of New South Wales, is a builder with over 48 years’ experience in the construction industry. His resume is before the Court.

105. Dr Cooke is a consultant architect and, as has been stated, was qualified by the plaintiff and, somewhat ironically, also gave his opinion on behalf of Unisearch. I do not summarise each of the individual reports. The experts were, in large measure, in agreement and most of the crucial questions, if not all, are answered in the report of the conclave, which does need to be summarised.

106. Some of the questions and answers are relevant and extremely important, but uncontroversial. The experts give the dimensions of the railings and each baluster. They also give the dimensions of the posts at either end of each section of the railing or balustrade, but, most relevantly, that post which was adjacent to the doorframe.

107. The experts expressed the opinion that the section of the railing that failed was a section that was added after the railing was initially constructed. This was the result of an alteration in the building itself.

108. Initially, it seems, where the failed balustrade was placed, there were stairs to the lower level of the premises. At some point in time those stairs were removed and the section of balustrade that ultimately failed was erected between the end of the pre-existing balustrade and the house to cover the area previously utilised for the stairs.

109. The manufacture of the balustrade seems to have been all done at the same time and the experts expressed the view, with which I agree, that the new section of the balustrade, that which ultimately failed, was initially a balustrade used on the stairs that were removed.

110. Thus, the impugned section of the balustrade is manufactured in the same way: with the same posts; the same dimensions; and the same material. The failed section of the balustrade looks, feels and is consistent with the remainder of the balustrade, but was inserted in place at a later time than the remainder of the balustrade on the walkway.

111. The remainder of the balustrade was placed at the time that the walkway was poured. The walkway is concrete. The experts described the balustrade by reference to the diagram at p 6 of the report of Mr Bailey. That diagram is reproduced below:

112. The experts also referred to a sketch drawn by Mr Hickey of Connection 2 (numbered in accordance with the diagram in Mr Bailey’s report, above), which is Figure 1 in the Conclave Report, and is reproduced below:

113. The note to the inclusion of Figure 1, the drawing immediately above, is an important aspect of the issue with which the Court must deal. Messrs Hickey and Bailey noted as follows:

“…the edge bracket shown in red in the diagram has a gap horizontally to the top rail. It is believed, based on Mr Regan’s statement, that there was no gap and the railing was tight against the edge bracket, ‘held’ by two screws to the southern side.” [16]

16. CB2, p 314 (Joint Concalve Report of Dr Cooke, Mr Hickey and Mr Bailey, 26 June 2020 at 5 [43]-[47]).

114. All of the experts agreed that the bracket “was tight on the north side of the rail and two screws were inserted on the southern side of the railing to secure it from moving laterally.” [17] Messrs Bailey and Hickey agreed that there was approximately a 10 mm gap from the end of the upper railing to the architrave. Dr Cooke does not disagree with that measurement but could not confirm it.

     17. CB2, p 315 (Joint Conclave Report of Dr Cooke, Mr Hickey and Mr Bailey, 26 June 2020 at 6 [1]-[4]).

115. The experts also agreed as to the state of the fixing of the railing prior to the commencement of work. This agreed opinion was drawn from photographs provided to the experts. Connection 1 was agreed to be a form of plate connected to the cladding and/or the sill behind it and likely done with screws. There was no certainty in the expressed opinion as to the method of fixing Connection 1. Connection 2 was agreed by the experts to be effected by the balustrade being inserted into the slot of the wooden block at the architrave as shown in Figure 1, above.

116. Connection 3, numbered in accordance with the Bailey report, showed a break in the weld as did Connection 4. However, the experts agreed that Connection 5 showed mending plates were installed either side of the post in the baluster immediately to the east. Those mending plates were 100 x 50 mm plates with M6 boltholes.

117. These are shown in Figures 10 and 11 on pp 17 and 18 of the Bailey report. [18] The experts also referred to a bend in the inner mending plate which they considered may be consistent with the plates having been tightened as described by Mr Regan. Connection 5 is the connection that was the result of Mr Regan performing his repairs.

     18. CB2, p 598-599.

118. As to Connection 6, the experts point to the fact that there were no photographs to show mudguard washers as described by Mr Regan. Nevertheless, if two mudguard washers or 75 mm plates had been fitted, as described by Mr Regan, with a central bolt which Mr Regan tightened firmly, then this had the potential to hold the baluster in line with the post, noting that the single bolt plates could only provide such alignment by friction and provided that one or other of the connections at the eastern end of the balustrade remained intact. The experts agreed that if the connections at the eastern end were not intact, then the two plates at mid-height would act as a hinge and the balustrade would act like a gate.

119. Most importantly the experts agreed that the fixing of the plate to the wall at the bottom connection (Connection 1), beneath the front doorstep, was done by some form of plate which was fixed to the cladding and/or the sill behind it by screws. This is most likely, but cannot be an opinion expressed with certainty.

120. The experts agreed that the screws used to fix the lower railing to the house were fixed through the cladding to the bearer behind it. Further, if screws were used, as the experts agreed was likely, it was likely that the screws were removed to allow the removal of the asbestos cladding in that location. As will be seen, I do not accept this occurred.

121. From the photographs that were shown to the experts, the experts agreed that between 22 May 2016 and 14 June 2016 the fixing plates and other connections utilised by Mr Regan were no longer in place.

122. It is abundantly clear that the experts agreed that the fixing plates and method of fixing the failed balustrade utilised by Mr Regan had been deliberately removed. I accept that opinion.

123. Further the experts agreed that it was convenient and/or necessary to remove the fixings from the plate attaching the lower rail to the house to remove the asbestos cladding. It was not necessary, according to the experts, to interfere with the railing to erect or remove the scaffolding.

124. Somewhat trite was the opinion of the experts expressed, again agreed, that if the railing were to have been removed, the relevant party ought to have ensured that the railing was made good so that it was structurally safe.

125. The experts expressed the opinion as to the responsibility for safety on site, to which the Court pays little or no regard, given that that question and the foreseeability of risk is a matter for the Court.

126. It is clear from the Conclave Report that, were it not for the removal of the work performed by Mr Regan, the balustrade would have withstood the forces occasioned by the plaintiff’s fall and the injuries would not have occurred.

127. Further, if this has not already been obvious, the experts agreed [19] that the most probable cause of the connection being lost was that the plate fixings were removed to enable the asbestos cladding to be removed. The removal of the fixing plate required the use of tools and was required to be a deliberate act.

     19. Question and answer 42 of the Conclave Report.

128. Further, according to the Conclave Report, the distortion or bending of the corner bracket, which also occurred, may have been occasioned by being knocked by heavy equipment, such as a heavy piece of scaffold. Otherwise the bracket would have to have been bent by the use of tools or using the railing as a lever.

129. The experts also agreed that, once the impugned section of railing had its structural integrity compromised, it was unsafe to allow pedestrian access to the walkway. Such a proposition is trite and, ultimately, a matter for the Court.

130. The cross-examination of the conclave was important. Mr Hickey was asked whether it was possible to remove cladding without removing the screws, by way of snapping the asbestos board, which was the version of the removal given by Mr Jacobs in cross-examination. The response from Mr Hickey was that it depended on whether there had been compression between the fixing plate, the asbestos and the timber. If there were to have been compression, then it would not have been possible to remove the asbestos without removing the screws.

131. In that remark, Mr Hickey was referring to compression being caused by the plate being screwed, with force, to ensure no gap between the plate and the architrave; the architrave and the asbestos board; and the asbestos board and the timber bearer behind it. The only connection relevantly utilising a plate was Connection 1, the lower railing connection to the house.

132. Because the experts were not aware of the precise nature of the fixing plate; whether screws were used; and if screws were used, how many were used or how long they were and with what force they were screwed into the timber, Mr Hickey answered that he could not say definitively whether or not it was possible to remove the asbestos board by snapping it. Dr Cooke agreed.

133. However, Dr Cooke noted that the snapping of the board would not be in the course of good practice, because there was a risk of fragments of asbestos being left behind. Subject to the issue of compression, it may have been physically possible to remove the asbestos by snapping the board.

134. Mr Bailey also agreed with Mr Hickey. Mr Bailey explained that if there were pressure between the plate, in whatever form the plate took, the cladding and the bearer, the circumstance would be consistent with fixing a railing to carry a load.

135. In other words if there were not compression and the fixing plate were not screwed, with force, tightly to the architrave, cladding and timber bearer, the screws would then be sitting “somewhat in space”. Mr Bailey referred to another part of the property where a drainpipe was shown to be suspended by a rope after the cladding had been removed, which, in his view, suggested that the practice had been to remove the screws when it rendered the removal of the cladding less convenient.

136. As to the statement by Mr Hickey that they were uncertain as to whether screws were utilised, Mr Bailey noted that he observed two holes at a location where the endplate was under the northern side of the step. These holes were consistent with the former presence of screws. I accept this description and that screws were used to fix Connection 1 to the house through a fixing or end plate.

137. Further, Mr Bailey explained that asbestos boarding can carry a large load in compression but cannot be placed under a tensile load. It is common knowledge, which Mr Bailey repeated, that asbestos board can be cut by scoring and snapping.

138. Indeed, after the dangerous nature of asbestos was more readily accepted and work methods altered to accommodate it, scoring and snapping was the only safe method by which asbestos board was cut. The prior practice, to which Mr Squires referred, of sawing or drilling asbestos board has ceased and not been utilised for many decades.

139. Importantly, the experts correctly noted that they were unaware whether, as a matter of certainty, the fixings were removed in the process of removing the asbestos cladding, which is the reason they express their answer as “between convenient and necessary” in the Conclave Report.

Submissions

Plaintiff’s Submissions

140. On the balance of probabilities, the plaintiff submits, that the plaintiff would not have fallen had the balustrade been properly secured. Frankly, this is trite and is certainly the evidence of the experts.

141. That the plaintiff would not have fallen had the balustrade been properly affixed is not the issue that is controversial in the proceedings. That which is controversial is the issue of causation in relation to each of the defendants and, in that regard, is dependent, on the submission of the plaintiff, on whether or not one or more of the defendants removed the balustrade or was responsible for its removal and/or ought to have affixed the balustrade permanently in such a way as to prevent a person who placed any pressure upon the railing from falling.

142. There is no doubt that one or more of the defendants removed the balustrade section and did not secure its refixing. The issue is which defendant, if any, is responsible for its insecurity or weakness.

143. The plaintiff submits that the Owners of the property either jointly or individually were aware of the fact that the balustrade was not properly affixed and sought to have it repaired. This was done by Mr Regan and the plaintiff submits that the owners are responsible for inviting the plaintiff to the premises in circumstances where the premises were not safe.

144. Against that proposition, the experts agreed that the repairs performed to the impugned section of the balustrade or railing by Mr Regan was such that the fall would not have occurred. The Owners had repaired the defect of which they were aware prior to the work being performed.

145. The plaintiff submits that a reasonable inspection by the Owners would have established, immediately, prior to the fall and/or prior to the invitation being issued or implemented, that the balustrade was not properly attached. The Owners were aware that the property was being rented and were aware that there were persons staying at the premises on the subject weekend. For that reason, the plaintiff submits that the Owners are liable as occupiers.

146. Further to the foregoing, the plaintiff submits that the first defendant is also liable in negligence as a consequence of its responsibility as principal contractor and its function in erecting and dismantling the scaffolding and removing the asbestos cladding. The plaintiff submits that Mr Squires ought to have been aware, having walked past the gap that the failed balustrade had created on 7 June 2016, of the risks associated with persons walking along the walkway in the absence of a section of the railing.

316. The foregoing was set in the context of a criminal trial and applies even more strongly in the case of civil proceedings. Nevertheless, there must be evidence from which the Court is entitled to draw an inference or which implicates the particular party that is criticised for not calling evidence. The inference arises from the principles stated in Jones v Dunkel. [67] Of course Weissenteiner, as stated, was a proceeding for a criminal prosecution for murder and the comments on its applicability and the limitations on its principles do not apply readily to civil proceedings. [68]

     67. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

     68. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3.

317. As to the liability of Akota and its contribution to the liability of others, there is no evidence that rises above mere conjecture that Akota removed the fixing screws in Connection 2. Since Akota did not need to deal and was not contracted to deal with Connection 1, there can be no possible basis upon which it can be said Connection 1 was the subject of interference by Akota. Moreover, while Akota was dealing with work that may have involved Connections 1 and 2, it was performing that work as a subcontractor to Dak-Wal, which remained ultimately responsible for the work and was, during that time, the occupier of the premises.

318. The work performed by Akota directly for the Owners was not work that was performed in the vicinity of, or in relation to, the relevant part of the cladding, the architrave and/or the connections to the balustrade. The Court has already dealt with the lack of any obligation or contract in relation to a more permanent repair of the balustrade by agreement between the Owners and Akota.

319. The submissions of Dak-Wal also rely upon the Owners’ failure because they were aware of the risks associated with the balustrade and the balustrades’ state of disrepair. The difficulty with that submission is that the evidence discloses knowledge possessed by the Owners of the disrepair of the balustrade, but the Owners took steps to avoid the foreseeable risk of harm associated therewith. They commissioned Mr Regan who repaired the balustrade. The repairs were temporary and the Owners sought to effect permanent repair, but Mr Regan’s temporary repairs avoided the risk of harm associated with the disrepair. That is the expert opinion and it is an opinion that the Court accepts.

320. The Court is unable to identify with certainty the worker or workers who removed the fixing screws to Connection 1; and Connections 5 and 6. It is in a position to determine, on the balance of probabilities, that at least the fixing screws to Connection 2 were removed prior to the removal of the asbestos cladding and therefore by a worker or workers for whom Dak-Wal bears responsibility. It is also, as a matter of timing and a process of elimination, able to determine, on the balance of probabilities, that the scaffolders removed the section of the balustrade and eventually “fixed” it with the ligature, prior to its failure.

321. Even if the Court were unable to come to that conclusion, on the balance of probabilities, it is clear that as at 7 June 2016, Dak-Wal ought to have been aware of the hazard on the premises, being the absence and/or disrepair and/or insecurity of the balustrade, in respect to which it was reasonably foreseeable that a person entering the property, even after the handover that was affected about a week later, may have been injured.

322. As already stated, the risk of harm associated with that circumstance was foreseeable to Dak-Wal and the risk was not insignificant. It would have been extremely easy for Dak-Wal to have taken precautions that were reasonable and would have obviated or avoided the risk of harm. The steps it took on or about 21 June 2016, using material that was otherwise on-site, was one of the methods by which the risk of harm could have been avoided. Further, relevantly, Dak-Wal was responsible for the work of the scaffolders.

323. The Owners’ negligence arises from its failure to take reasonable steps to avoid the risk of harm associated with the balustrade. I accept that the Owners, as at 18 June 2016, the date of the injury, were, in fact, unaware of the state of the balustrade.

324. Nevertheless, given that the Owners were inviting persons onto the site, they ought to have been aware of the risk of harm associated with the weakness in the balustrade. A simple inspection of the premises to ensure that the work had been performed reasonably and adequately and there were no foreseeable risks of harm, associated with the alteration to the premises arising from the completion of the works, would have alerted them to the issue and avoided the risk of harm that manifested in the injury to the plaintiff.

325. The Court is required to determine the relative contribution of each of the Owners, as a group, and Dak-Wal. The issue of apportionment depends on the appropriate share in the responsibility for the damage. It assumes that, but for the negligence of Dak-Wal and but for the negligence of the Owners, the damage would not have occurred. The Court has already dealt with that aspect. In determining the appropriate share in the responsibility for the damage, the Court must compare the culpability of each of the tortfeasors.

326. The culpability of the tortfeasors amounts to the respective degree of departure from standards of care and the relative importance of the acts of the parties and the departure from that standard in causing the damage. The test is not dissimilar to that utilised for the purpose of contributory negligence. [69]

     69. Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; [1985] HCA 34 at [10].

327. The Owners’ failure to inspect and take reasonable steps for the avoidance of risk of harm to persons they invited onto the premises occurred over a short period. It occurred in circumstances where the Owners had previously commissioned repairs to the balustrade that were sufficient to avoid the risk of harm. While the Court has considered that the failure to inspect was a failure to take reasonable steps to avoid the risk of harm, the Owners had no reason to suspect that the repairs they had undertaken did not remain effective.

328. On the other hand, Dak-Wal, whether or not it was its workers who removed the connections or workers for whose work they take responsibility, photographed the defective railing; took further photographs from the area where the railing was missing; and was grossly negligent in not taking steps to avoid the risk of harm of the foreseeable injury of which it was either aware or ought to have been aware.

329. So much was conceded by Mr Squires. Mr Squires, a senior employee of Dak-Wal, conceded that it was “seriously remiss” for him to have seen the absent balustrade; walked by it; and to have left it in that condition. Further, he accepted that such conduct would be “contrary to what [Mr Squires thought] is proper and accepted practice by somebody in [Mr Squires’] position to leave an opening of that kind in that condition”. [70]

     70. Transcript, 8 September 2020, p 65: l 26-33.

330. Notwithstanding the negligence of the Owners, applying the principles associated with the apportionment of liability it seems that workers for whom Dak-Wal was responsible were the persons who created the risk of injury by removing the railing and/or removing the connections that secured the railing and failed to avoid the risk of harm by reinstating the railing or, at the very least, informing the Owners of the creation of that risk during their occupancy. These actions were directly causative of the harm and were breaches of Dak-Wal’s duty of care.

331. In determining the relative blameworthiness of each of the parties I have found to be negligent and bearing in mind that which is just and equitable,[71] I consider that Dak-Wal should be 100% liable for the damages.

     71. Law Reform (Miscellaneous provisions) Act 1946 (NSW), s 5(2); and Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509 at 1513, [20]; Council of the City of Greater Taree v Wells [2010] NSWCA 147 (Basten JA).

332. As a consequence of the foregoing, the Court makes the following orders:

1. Judgment on the Statement of Claim for the plaintiff against the first defendant and the third to seventh defendants;

2. Judgment on the Statement of Claim for the second defendant against the plaintiff;

3. Judgment on the First Cross-Claim for the third to seventh defendants/cross-claimants against the first defendant/second cross-defendant;

4. Judgment on the First Cross-Claim for the first cross-defendant;

5. Judgment on the Second Cross-Claim for the second defendant/first cross-defendant against the cross-claimant/first defendant;

6. Judgment on the Second Cross-Claim for the third to seventh defendants/second to sixth cross-defendants;

7. The Third and Fourth Cross-Claims are dismissed;

8. The first defendant shall pay the costs of and incidental to the proceedings and each Cross-Claim incurred by the plaintiff, the second defendant and the third to seventh defendants;

9. Leave is granted to any party to apply for a different order as to costs; for the inclusion of any agreed order as to damages; and any other aspect relating to damages or the form of the orders to be entered. Such application shall be made within seven days of the date of this judgment, with each party affected by any such application filing any response thereto within a further seven days of the application. All or any such application or response shall be made by email directly to the Associate to Justice Rothman. The Court will, if there be a contest in relation to such a matter, list the matter for directions to deal with the processing of any such application. Such directions hearing shall be by audio visual link.

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Endnotes

Amendments

08 April 2021 - inserted images and corrected paragraph numbering

20 April 2021 - Case title amended from (No 2) to (No 3) as Justice Rothman issued two ex tempore judgments prior to the substantive judgment.

11 May 2021 - - Orders [1], [3] and [4] - subsequently varied in Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509;

- Orders [8] and [9] - subsequently vacated in Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509.

Decision last updated: 11 May 2021