Skelton v Vortech Installations Pty Ltd

[2001] WADC 243

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   SKELTON -v- VORTECH INSTALLATIONS PTY LTD & ANOR [2001] WADC 243

CORAM:   COMMISSIONER REYNOLDS

HEARD:   9 OCTOBER 2001

DELIVERED          :   12 OCTOBER 2001

FILE NO/S:   CIV 2209 of 1999

BETWEEN:   CRAIG JOHN SKELTON

Plaintiff

AND

VORTECH INSTALLATIONS PTY LTD
First Defendant

ROCCA ENTERPRISES PTY LTD
Second Defendant

RED RIVER INVESTMENTS PTY LTD
Third Party

Catchwords:

Practice and procedure - Specific discovery - Worker injured falling off a ladder on a building site - Window frame not secure - Whether the provision by builder of all documentation with all of its subcontractors and the owner's contractors oppressive - Whether the documentation sought is relevant - Turns on own facts

Legislation:

Rules of the Supreme Court 1971

Result:

Application for specific discovery refused

Representation:

Counsel:

Plaintiff:     Mr M E Herron

First Defendant             :     Mr M A McAuliffe

Second Defendant         :     Ms C P Crawford

Third Party                   :     Ms C P Crawford

Solicitors:

Plaintiff:     Dwyer Durack

First Defendant             :     McAuliffe Williams & Partners

Second Defendant         :     Downings Legal

Third Party                   :     Downings Legal

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

COMMISSIONER REYNOLDS: 

Introduction

1. By writ of summons filed 9 June 1999 and statement of claim filed 7 July 1999, the plaintiff commenced an action against the first defendant and the second defendant alleging negligence, breach of statutory duty and/or breach of contract against the first and second defendant and claiming damages, interest and costs for personal injury sustained by the plaintiff on or about 24 March 1997 ("the material date").

2. The plaintiff claims in his statement of claim that on the material date he attended work as an employee of the first defendant at a building site at the corner of The Crescent and Bond Street, Midland ("the building site") for the purpose of installing a roof cowl on the roof of the building at the building site.  At all material times the first defendant carried on the business of air‑conditioning installation.  The second defendant was the builder contracted by the owner of the building site to construct a building pursuant to certain drawings and specifications on the building site for the sum of $415,690.  The first defendant was engaged to perform work at the building site by Scott Mechanical Services Pty Ltd.  The plaintiff alleges in his statement of claim that after completing the installation of the roof cowl he climbed through an unglazed window frame and placed both feet on a stepladder to descend from the roof.  While descending from the roof he held onto part of the window frame to steady himself and the section of the window frame that he had hold of came away from the window frame causing him to fall from the ladder to concrete steps about four to five metres below ("the accident").

3. The first defendant has pleaded inter alia that the third party carried on the business of supply and installation of shop fronts, windows and doors and that it owed the plaintiff a general duty of care and/or a statutory duty to ensure that the third party by its officers, servants and agents would take all reasonable care for the plaintiff's safety whilst he carried out his employment duties at the building site.  All of this has been denied by the third party.  It should be noted that it is not expressly alleged in the pleadings by the first defendant against the third party that the third party actually installed the window frame in question although it is clear from the particulars of negligence of the third party alleged by the first defendant that the first defendant is proceeding on the basis that the third party did supply and install the window frame in question.  A question has now arisen as to whether the third party only supplied the window frame in question and that it contracted some other party to actually install it in the building at the building site.  I will return to this question later.

The application

1. The second defendant provided a list of discoverable documents on an informal basis on 27 October 2000.  A total of 14 documents were discovered including a copy quotation from the third party to inter alia supply and install windows, copies of various facsimiles between the second defendant and the third party and an original construction schedule dated 6 January 1997. The first defendant now seeks an order pursuant to O 26 r 6 of the Rules of the Supreme Court 1971 that the second defendant do make and serve on the first defendant an affidavit stating whether the following documents or the documents or class or classes of documents described are or have at any time been in its possession, custody or power and if not then in its possession, custody or power when it parted with them and what has become of them.  The documentation sought by the first defendant is described as follows:

   "1.All invoices and correspondence passing between the Second Defendant and the owner in respect of the construction at the site on or about the material date;

   2.All invoices and correspondence passing between the Second Defendant and other contractors engaged on the site, including in particular contractors who worked on the roof, electrical installations or any other installations that required access to the roof;

   3.All records in the possession, custody or power of the Second Defendant and/or its building supervisor, including a site diary, that detail the progression of the construction and all communications with the various contractors and subcontractors on the site;

   4.All correspondence and communications with the Third Party concerning the supply of windows and their glazing including documents in respect of the alleged unglazed window frame and missing pane of glass;

   5.All estimator's drawings and calculations relative to such windows;

   6.All correspondences, communications, diary records, notes, memoranda of any nature touching upon the Second Defendant's interaction with any contractors or subcontractors on site and specifically with reference to contractors or subcontractors who may have been retained by the owner or tenant of the building in accordance with the terms of the Contract for Medium Works."

2. An affidavit of Denise Gwyneth Craig, ("Ms Craig) solicitor, sworn on 20 July 2001 has been filed in support of the application by the first defendant seeking specific discovery.  In par 19 of the affidavit Ms Craig has stated as follows:

   "The documents and/or class of documents identified in the application for specific discovery are relevant to these proceedings as the Second Defendant and Third Party, respectively, contend that it was not aware of how the First Defendant and/or other contractors were gaining access to the roof of the building on the construction site and has alleged that there was an alternative method of accessing the building, rather than through the side window of the building.  Both the Second Defendant and Third Party have also denied liability in respect of leaving the window unglazed and in a condition which may pose a risk to subcontractors accessing the building."

3. Counsel for the first defendant has argued that the documentation sought to be discovered relates to the accident and is therefore relevant.  He has also argued that such documentation would go to show the relationships and also the second defendant's understanding of its liabilities within the relationships between the second defendant as the builder on the building site and each and all of the various contractors who came on site including subcontractors of the second defendant and contractors engaged directly by the owner.  It was further argued that such documentation may well provide information to identify certain paths of investigation that the first defendant should pursue to support its case.  Counsel for the second defendant has argued that the documentation sought to be discovered is too broad and that it would be oppressive for the second defendant to be required to provide it and/or that the documentation sought does not relate to the issues in dispute as between the parties.

The issues and comment

1. The pleadings are a little light on details in relation to the accident.  As I understand it the particular building in this case was of a concrete panel construction rather than a brick construction.  The particular window frame in question was installed so that its bottom side was about three metres above the floor level of the building.  The plaintiff accessed the roof from inside the building by climbing some stairs, positioning the base of a ladder on a landing below the window frame in question and then climbing up the ladder and through the unglazed window to the roof.  After completing the installation of a roof cowling he then climbed down through the unglazed window frame and then fell to the floor as I have previously described.

2. I am not sure where the top of the window frame was relative to the roof and whether or not the top of the ladder protruded through the open space of the unglazed window and was positioned against part of the roof or whether it was positioned against the wall just under the window frame or wherever.  No doubt that will be the subject of detailed evidence at the trial.  The window frame in question was a commercial box frame.  It was fitted with snap and detachable sills which are removed when the glazing is installed.  The sills are normally fitted in such a way that they can be removed without a lot of force.  It seems that prior to the material date the window frame in question was installed and then left in situ unglazed and with the sills still in place and not secured in any better way than the way they were normally fitted.  The accident occurred sometime after the window frame had been installed.  It seems that when the plaintiff attempted to steady himself as he was descending from the roof he held onto the sills which in turn came away from the window frame and he then fell to the floor below.

3. The key issues between the first defendant and the second defendant arising from the pleadings and in no particular order of priority are:

   1.What duties, if any the second defendant owed to the first defendant and the plaintiff?

   2.Whether or not the second defendant required and/or permitted the plaintiff to get to and from the roof through the window frame?

   3.Whether or not the second defendant should have prevented or at least attempted to have prevented the plaintiff from accessing the roof through the window frame?

   4.Whether or not the second defendant knew or ought to have known that part of the unglazed window frame was not stable if force was applied to it?

   5.Whether or not it was reasonably foreseeable that a tradesperson and in particular a tradesperson required to install a cowling on the roof would access the roof from inside the building and the unglazed window frame?

   6.Whether or not the second defendant should have ensured in some way that it was safe to access the roof through the window frame?

   7.Whether or not the second defendant should have known that a person such as the plaintiff may not know that a window frame in the same state as the window frame in question on the material date was not entirely secure?

   8.Whether or not the second defendant knew or should have known that an employee of the first defendant, in this case the plaintiff, may access the roof to install a roof cowling?

   9.Whether or not the second defendant should have warned the first defendant and the plaintiff that part of the window frame was not secure and that the window frame should not be used to access the roof?

   10.Whether or not there was an alternative and safer means of accessing the roof eg, by ladder leaning against the outside of the building?

   11.Whether or not the second defendant should have ensured that the plaintiff accessed the roof by some alternative and safer means?

The determination of the application for specific discovery

1. With respect to the statement by Ms Craig in par 19 of her affidavit, whether prior to the material date any contractors other than the first defendant by the plaintiff accessed the roof and if so whether or not the second defendant was aware of how they did so are not issues which arise or at least clearly arise on the pleadings.  In relation to allegations of it being reasonably foreseeable that someone would access the roof through the window frame and that the second defendant should have known that the plaintiff would do so it is not pleaded that any other tradesperson accessed the roof through the window frame in question before the material date.  It is also not mentioned in the affidavit material filed in support of the application.

2. In my opinion the description of the documents sought to be discovered by the first defendant in the pars numbered 1, 2, 3 and 6 are far too broad.  No doubt a multiple number of tradespersons in addition to the tradesperson or tradespersons who was or were contracted to supply and/or install the windows, including the window frame in question, worked on and/or supplied building materials to the building site.  Invoices, communications, notes and memoranda between the second defendant and such other tradespersons are not relevant to the various issues raised on the pleadings as between the first defendant and the second defendant.  Further and in any event in my opinion it would be oppressive to require the second defendant to discover all of the documents sought in such numbered paragraphs.

3. In my opinion it needs to be borne in mind that if some tradesperson other than the plaintiff successfully accessed the roof in a particular way then that does not necessarily mean that such particular way was safe.  It also does not necessarily mean that any duty of care owed by the second defendant (the builder) to such other tradesperson was satisfied by the second defendant.

4. Counsel for the first defendant has mentioned that one of the issues that will arise from the evidence of experts when this case goes to trial is a distinction between the liabilities of a builder for its own subcontractors on the building site on the one hand and the liabilities of a builder for the contractors on the building site engaged directly by the owner on the other hand.

5. There are a number of comments I wish to make in relation to this.  Experts can give evidence on practices in the building industry but such evidence is not and should not be regarded as a statement of the law which of course is for the court to decide.

6. I have already mentioned that the first defendant was contracted to do the air‑conditioning work including the installation of the roof cowling by Scott Mechanical Services Pty Ltd and not by the second defendant as one of its subcontractors.  I take it that the first defendant wants discovery of such a wide range of documents which concern the second defendant and all of its subcontractors and all other contractors who worked on the building site because it wants to explore whether the second defendant conducted itself in such a way that evidenced an attitude that it was not liable or at least had a reduced liability towards contractors not engaged by it to do work on the building.  In this case such contractors included the first defendant and the plaintiff.

7. The first defendant has not put any evidence before me to suggest that this might have been the case.  Further, in relation to invoices in particular, I do not think that they would be of any use in this regard.  The decision on whether or not the second defendant was negligent and/or breached any statutory duty towards the first defendant and the plaintiff will not be reached by making a comparison between the second defendant's conduct by way of act or omission towards its own subcontractors on the one hand and its conduct by way of act or omission towards other contractors on the other.  Nor will it be reached by taking into account how the second defendant conducted itself towards tradespersons other than the first defendant and the plaintiff and whether or not the second defendant failed to satisfy any duty of care owed by it to any tradesperson other than the first defendant and the plaintiff.  It will be reached by considering all of the evidence and findings on the issues as between the first defendant and the second defendant that I have previously set out herein.

8. In relation to the documents sought by the first defendant in pars numbered 3, 4 and 5 the solicitors for the second defendant by letter dated 19 July 2001 advised the solicitors for the first defendant as follows:

   "2.We have been instructed by the second defendant that at the relevant time, the building did not keep a site diary.  Work schedules which detail the progression of the work have previously been discovered.

   3.All correspondence and communications with the third party concerning the supply of windows, the estimator's drawings and calculations relating to the windows which are in the possession of either the second defendant or the third party have previously been discovered."

9. There is no evidence before me from which it would be open to conclude that a builder would probably keep a site diary when supervising the construction of a building of the size and value of the building in this particular case or that the second defendant actually did so in this particular case.

10. In my opinion the documents that should be discovered by the second defendant are the documents relating to the work done by the plaintiff on the building site on the material date, the supply and installation of the windows, including the window frame in question and any work diary or work schedule in which such supply and work is mentioned.

Conclusions

1. To date the second defendant has only provided informal discovery.  Clearly the first defendant is not satisfied with that.  I am of the opinion that the second defendant should now give discovery on oath and that when doing so it should have regard to these reasons.  Otherwise I am of the opinion that the first defendant's application for specific discovery should be dismissed.  I am also of the opinion that the second defendant's costs on the first defendant's application for specific discovery should be paid by the first defendant.

2. At the hearing of the application counsel for the first defendant made an oral application that the third party be required to provide specific discovery in relation to the supply and installation of windows including the window frame in question.  This application was made because in response to a specific question asked by the solicitors for the first defendant by letter dated 2 October 2001 namely "who installed the aluminium window frame on the material date and precisely when?" the solicitors for the third party responded on 4 October 2001 with the advice that they were instructed that the window frames were only supplied by the third party, that the third party in turn subcontracted a Mr Smith (deceased) of Taurus Windows and Doors to install the window frames and that the glazing was performed by another company known as General Glass Pty Ltd.

3. Counsel for the first defendant has argued that the discovery sought from the third party is necessary at this late stage to enable the first defendant to consider whether it should join another or an additional third party.

4. I have already mentioned that the first defendant has not expressly alleged in its pleadings against the third party that the third party installed the window frame in question prior to the material date.  I note that it has done so in its amended statement of claim against the second defendant.

1. The oral application for discovery on oath by the third party made on behalf of the first defendant at the hearing of its application in relation to specific discovery by the second defendant was made without any prior request for it and with little or no notice of the application being given to the solicitors or counsel for the third party.  In the circumstances I am not prepared to make an order against the third party that it provide discovery on oath or make any order for costs against the third party in relation to discovery.  However, given that the trial is scheduled to commence in only about a month and also given that the first defendant must therefore quickly resolve its position in relation to the third party and possibly join another or an additional third party I think that the third party should provide discovery on oath no later than 4.30 pm next Friday, 19 October 2001.  If it does not do so then the first defendant can request that the matter be re‑listed before me as a matter of urgency for such an order to be made together with an order for costs.