Trio Insulations P/L v Metal Deck Roofing P/L & Ors; Metal Deck Roofing P/L v Benward P/L & Ors

NEW SOUTH WALES COURT OF APPEAL

CITATION: Trio Insulations P/L v Metal Deck Roofing P/L & OrsMetal Deck Roofing P/L v Benward P/L & Ors [2002] NSWCA 294

FILE NUMBER(S):
41046 of 2001
41060 of 2001

HEARING DATE(S): 28/08/02, 29/08/02

JUDGMENT DATE: 29/08/2002

PARTIES:
Trio Insulations Pty Limited v Metal Deck Roofing Pty Limited & Benward Pty Limited & Tupoli Pty Limited, Tundine Pty Limited, Buxone Pty Limited, Medalia Pty Limited, Pearl Printing Pty Limited & Highlight Printing Pty Limited (together trading as Booth Printing)
Metal Deck Roofing Pty Limited v Benward Pty Limited, Tupoli Pty Limited, Tundine Pty Limited, Buxone Pty Limited, Medalia Pty Limited, Pearl Printing Pty Limited and Highlight Printing Pty Limited (together trading as Booth Printing) & Trio Insulations Pty Limited

JUDGMENT OF: Meagher JA Giles JA Young CJ in Eq

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 50079 of 2000

LOWER COURT JUDICIAL OFFICER: Palmer J

COUNSEL:
Trio: Mr C J Stevens QC & Mr B McManus
Metal Deck: Mr D F Rofe QC & Mr B Hull
Benward: Mr Finch SC & Mr P Braham

SOLICITORS:
Trio: Colin Biggers & Paisley
Metal Deck: Malcolm Johns & Company
Benward: Moray & Agnew

CATCHWORDS:
Roof in the course of being repaired after hail damage collapsed - whether Metal Deck Roofing who stacked sheets of building material were responsible - method of calculating loss of goodwill as a result of business interruption - apportionment - whether factual findings as to placement of load which caused roof to collapse should have resulted in a different apportionment - appeal dismissed with costs.

LEGISLATION CITED:

DECISION:
CA 40160/01: Appeal dismissed with costs.
CA 40146/01: Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41046 of 2001
CA 41060 of 2001
MEAGHER JA
GILES JA
YOUNG CJ IN Eq
Thursday, 29 August 2002

TRIO INSULATION PTY LIMITED v METAL DECK ROOFING PTY LIMITED & 2 Ors
METAL DECK ROOFING PTY LIMITED v BENWARD PTY LIMITED, TUPOLI PTY LIMITED, TUNDINE PTY LIMITED, BUXONE PTY LIMITED, MEDALIA PTY LIMITED, PEARL PRINTING PTY LIMITED, HIGHLIGHT PRINT & 1 Ors

Judgment

MEAGHER JA: The Court is now in a position to give judgment and I would ask Young CJ in Eq to give judgment in the first case, 41060 of 2001.
YOUNG CJ IN EQ: This is an appeal from Palmer J who was sitting in the Commercial List of the Equity Division. The appeal concerns a judgment by his Honour that damages exceeding $5,000,000 should be paid jointly by the appellant, Metal Roofing Pty Limited (“Metal Roofing”) and the second respondent, Trio Installations Pty Limited (“Trio”), to the first respondent, a group of companies to which I will refer by one of their trading names “Booth”.
The basal facts are that on 14 April 1999 Booth was carrying on its business, inter alia, from premises at Marrickville. On that day there was a severe hailstorm in the area and the roof of Booth’s premises was badly damaged. Booth was advised to have the roof replaced.
Booth accepted a quotation from Metal Roofing to replace the roof. Metal Roofing entered into a sub-contract with Trio for Trio to remove some asbestos from the old roof.
On Friday 11 June 1999 the roof collapsed. Palmer J held that this occurred by the negligence of both Metal Roofing and Trio in placing too much building material on the roof. There is no appeal from this finding of liability though in a separate appeal heard together with this appeal Trio challenged the 50/50 apportionment of blame.
Palmer J found a verdict for Booth for $5,433,024.98. This sum was made up as follows:-
(i) Lost profits/lost value of business $3,412,000
(ii) Additional expenses $580,859
(iii) Agreed other damages $632,772.87
(iv) Interest $806,933.11.
It is common ground on the appeal that an amount of $24,831 was included twice so that if the appeal is to be dismissed the proper verdict figure is $5,402,085.90 which takes into account the amount included twice plus the relevant adjustment for the figure for interest.
Metal Roofing’s appeal challenges the quantum of the figures which I have noted as (i), (ii) and (iv) above.
At the trial apart from issues of liability the principal contest was between the approach urged by the person put forward as an expert accountant by Booth, Mr Robert Neilson of Clarence Street, Sydney, and the person put forward as an expert accountant by Metal Roofing, Mr Claude Arthur Jugmans of Howarth (NSW) Pty Limited.
It is not necessary in this case to consider whether these gentlemen were actually giving expert evidence or whether they were merely assisting the advocates by putting on paper the reasons why the facts and figures in the evidence should be interpreted favourably to the person who retained them.
Mr Neilson approached the problem by assessing the loss in value of the Booth business as a result of the collapse of the roof. He did that by calculating the future maintainable earnings of the business but for the accident from past years’ figures.
He then assessed the future maintainable earnings in the light of the accident. He did this by taking the difference between the actual and budgeted sales for the 2001 year after allowing $1,000,000 or approximately twenty-five per cent discount for vicissitudes. He then said that it was appropriate to capitalise this figure at nineteen, twenty-two or twenty-five per cent.
Using the twenty-two per cent figure which Palmer J considered appropriate this produced the result that the value of the business on the former basis, that is, if there had not been a roof collapse, was $4,391.855 and on the latter basis, that is, with the collapsed roof, $979,455, a difference of $3,412,000, which is the figure in (i) above.
On the other hand, Mr Jugmans looked at the extra costs incurred in extra sub-contracting and in extra advertising ($79,493) in the closed period during which the Marrickville premises were shut down, Tuesday 15 June to 31 August 1999. He allowed the extra sub-contracting and one-third of the advertising ($24,831) and said that the loss was $509,831. He said that there was no other damage.
Mr Jugmans appears to have taken the view that in a volatile industry such as the printing industry whilst the business might have lost customers it would have gained replacement customers so that even proved loss of existing customers was a matter of no moment.
At the trial the parties appeared to take the position that the argument was one of principle between the two methods of approach and that if Mr Neilson’s approach was held to be correct there was no quarrel with the figures he employed in his calculations.
Palmer J unreservedly found that Mr Neilson’s approach was the correct one. He found that the assumptions in Mr Neilson’s report were established by the evidence. He dismissed Mr Jugmans’ approach as unrealistic and thus found the verdict he did.
On the appeal Mr D F Rofe, QC and Mr Hull appeared for Metal Roofing. Mr S G Finch SC and Mr Braham appeared for Booth and Mr C J Stevens QC and Mr McManus appeared for Trio.
Mr Stevens contented himself with saying that he adopted Mr Rofe’s submissions so that there was really only a two-way contest.
The principal issues raised by Metal Roofing on this appeal can be summarised as follows:-
Whether:-
a)his Honour erred in accepting Booth’s expert that Booth had suffered a permanent loss in value of its business.
(b) Mr Neilson’s figures were correct.
(c) His Honour failed to grasp the significance of old customers being replaced by new ones.
(d) His Honour failed to allow for vicissitudes.
(e) His Honour wrongly adopted a twenty-two per cent capitalisation rate.
(f) His Honour double counted when awarding Booth $506,336 and $74,493 in excess of Mr Neilson’s figure.
(g) His Honour awarded too much interest.
I will in a short while deal with each of these matters briefly. Before I do so, however, I should note Mr Finch SC’s submission that Metal Roofing’s written and oral submissions in many respects disavow any reliance on Mr Jugmans’ approach or what was put to Palmer J.
On the appeal the principal argument by Metal Roofing was that Booth was entitled not merely to its increased expenses for a three month period, but for loss of profits for a period of up to two years. It was put that, on this approach, Booth’s damages were merely $1,837,222.
I agree with Mr Finch’s submission that this line of argument virtually abandoned Mr Jugmans’ approach as unrealistic and thus confirmed the view taken of Mr Jugmans by the trial judge.
I will now briefly consider the matters (a) to (g) listed earlier.
(a) The word “permanent” which crept into the papers is unfortunate. The judgment was that there was a loss of value of the business. The capitalisation rate adopted meant that Booth was being compensated for 4.5 years lost profits. Whilst I appreciate that we are not really comprising exactly like figures, in practice, this was only incrementally greater than the two years fixed on by Metal Roofing in its revised case.
We were very attentive as first Mr Rofe QC and then Mr Finch SC took us through the relevant pages of transcript and the exhibits. The exhibits, of course, included the reports of the experts and the annexures thereto.
There is no need to review this material by chapter and verse. It is clear from the material that there was ample justification for Palmer J to reach the view that he did that he should adopt the approach suggested by Mr Neilson, indeed, before us Mr Jugmans’ approach was virtually cast aside.
(b) There was no real dispute about these figures at the trial. As I have said, the battleground was the method of approach, however, counsel took us through the relevant figures. Whilst there is some apparent contradiction with some records and the accountants kept updating the figures upon which they relied the basis was firmly established for Mr Neilson’s figures and the judge was correct in accepting them.
Indeed, in respect of some of the figures challenged on the appeal even if one rejected the figure employed by Mr Neilson the figure one would have to adopt instead would be only fractionally different so that the end result of the calculation would be little changed.
(c) The argument that lost customers are just replaced by new customers is just a fallacy. A business does not have to lose customers in order to gain new ones, at least unless special circumstances apply. The present business suffered a loss of customers whether or not it attained new customers.
(d) His Honour did in fact allow for vicissitudes. The allowance was not obvious at first sight as it occurred in Mr Neilson’s adoption of a $1,000,000 discount in making his calculations of profit as I have detailed earlier.
(e) There was a challenge to the capitalisation rate adopted by Palmer J of twenty-three per cent. This was one of the possible rates suggested by Mr Neilson, indeed, the middle rate suggested. The only submission made was that his Honour should have adopted twenty-five per cent. Had he done so the total loss would have been reduced. This seems to be the only reason for the submission. Palmer J was entitled to find the rate he did.
(f) This argument concerned me for a while, however, I was convinced by Mr Finch SC’s submission that the $3,412,000 was compensation for lost customers and the $580,859, less $24,831, was for the damage suffered by extra expense incurred in order to retain other customers who might otherwise have left the business. No submission was put to us that within that $580,859 was any factor also within the $3,412,000.
It is true that Mr Neilson did not include this figure in his report and that it was raised at the trial late in the day, however, it was the subject of the submissions on both sides before the trial judge and was properly allowable.
(g) The submission as to interest before Palmer J was that no interest should be allowed on the figure for loss of business as the loss would only be suffered by Booth when in the future it sold its business. This argument was rejected by Palmer J and not repeated before us.
It was put to us that the amount of damages included both a past and future component; just as in a personal injury case interest should only be allowed on the former, so should the result be in a commercial case.
The counter argument by Mr Finch was that it was quite artificial to split the award into past and future components. The method advocated by Mr Neilson and adopted by the judge was to find one figure as to the loss in value. Booth sought and obtained interest not from the date of the accident but from the commencement of the proceedings. In my view this submission is correct.
It follows that the appeal must be dismissed with costs and the order below confirmed with a slight adjustment to which I referred earlier.
MEAGHER JA: I agree.
GILES JA: I agree, and would only add as to interest something which is probably no more than restating what Young CJ in Eq has said in a slightly different way.
If the damages had been the figure produced by a calculation of a lost income stream for a period of time there might have been something to be said for the appellant’s argument. But they were not. The damages were for the loss in value of the business, a means of compensation adopted by the judge because there could not sensibly be the calculation of a lost income stream for a period of time.
Having chosen that means of arriving at the compensation to which the respondents were entitled, that compensation was in principle the respondents’ entitlement in full at an earlier time, that is, at a time when they were damaged or perhaps some time thereafter prior to the trial. There could therefore be interest on the full amount from the appropriate earlier time.
That in assessing a loss in value of the business there was reference to future maintainable earnings was neither here nor there, and did not mean some apportionment of the damages into past and future components.
MEAGHER JA: The order of the Court therefore is the order proposed by Young CJ in Eq.
I will now ask Young CJ in Eq to give the first judgment in the second matter, 41046 of 2001.
YOUNG CJ IN EQ: This appeal was heard together with the appeal in Metal Roofing Pty Limited v Benward Pty Limited in which the Court gave judgment a short while ago.
As we said in the earlier appeal, Palmer J held that the appellant and the first respondent, Metal Roofing, were equally and jointly liable for the damages caused to the premises of the Booth Printing group of companies when a roof collapsed at the Booth’s Marrickville premises on Friday 11 June 1999.
It is not necessary to go fully into the facts. The basal facts are that on 14 April 1999 the Booth Printing group was carrying on its business, inter alia, from premises at Marrickville. On that day there was a severe hailstorm in the area and the roof of those premises was badly damaged. Booth accepted a quotation from Metal Roofing to replace the roof. Metal Roofing entered into a sub-contact with Trio to remove some asbestos from the old roof.
It would seem that Trio’s men started work in earnest on the site at about 6.30 am on Friday 11 June. About two hours after they had started work the roof collapsed. The exact circumstances as to why the roof collapsed were not precisely dealt with in the judgment, but Palmer J made it quite clear that the collapse was the combined effect of sheets of Colorbond roofing material which had been stacked on the roof by Metal Roofing and some sheets of asbestos placed on the roof by Trio together with the weight of the men on the roof. His Honour held that it was an accident for which both the appellant and the first respondent were equally liable and damages should be apportioned 50/50.
The appellant seeks to set aside that apportionment and to substitute an apportionment of 20/80 in its favour or to have a new trial on the issue.
At the start it was freely acknowledged by Mr Stevens QC, who appeared with Mr McManus for Trio, that a very heavy burden lies on an appellant who seeks to overturn a judge’s finding on apportionment and what the High Court said in Podrebersek v Australian Iron & Steel Pty Ltd(1985) 59 ALJR 492, 494 was acknowledged. However, Mr Stevens put that there were proper grounds in the instant case for this Court interfering with the apportionment, principally that:-
(a) Palmer J made egregious errors of fact
(b) Palmer J did not give adequate reasons for his decision
(c) Palmer J failed to give appropriate significance to the fact that it was Metal Roofing that had been granted the WorkCover permit to remove the asbestos and was generally in charge of the project.
I will deal with these grounds seriatim:- (a) The appellant accepted that the weight of its men on the roof and the weight of at least two asbestos sheets put on the relevant part of the roof operated to make it follow in law that it bore some responsibility for the collapse of the roof.
Palmer J obviously thought that the appellant’s involvement was greater. He said, summarising paras 31 and 32 of his judgment, that the collapse can reasonably be attributed to the combined loads of the stack of asbestos sheets, the packs of Colorbond material and the weight of the men on the relevant section of the roof and that that conclusion accords both with the evidence and commonsense for the reasons which his Honour gave in paras 33 to 35 of his reasons.
The appellant’s written submission lists a series of points which were numbered (a) to (j) as relevant to apportionment. The enquiry is to see whether these were such erroneous findings of fact that the apportionment should be set aside. On examination, none of the matters appear to involve great error of fact, indeed, many were common ground and some of the others are merely assertions that his Honour did not make sufficient findings of fact on specific matters.
However, in oral argument Mr Stevens QC made three principal challenges to Palmer J’s findings. These challenges relate to paras 34, 36 and 37 of the reasons.
First, there was challenge to the finding that the two sheets of asbestos coupled with the weight of the Colorbond and the weight of the men was the straw that broke the camel’s back and that the Colorbond material alone did not cause the south-east section to collapse.
Secondly, the finding that both the first and second defendants were professedly experts in roof replacement was challenged.
Thirdly, there was challenge to the finding that Mr Fenwick for the first defendant actually realised the danger and ordered the second defendant’s workmen to cease stacking.
I must confess I do not really understand the first of these challenges as it was part of the argument for the appellant that it conceded it was partly liable for the collapse on the basis that its actions were the straw that broke the camel’s back. However, Mr Stevens QC took us through the evidence, particularly the various plans drawn by people on both sides, in an endeavour to show that really the Colorbond material was the principal reason for the collapse. However, on looking at all the evidence there is no reason why his Honour could not have come to the finding he did. It was fully within the evidence for him to come to that view.
As to the second matter, it is really of little moment whether Trio was an expert in roof replacement or not. I will deal with this matter more fully later, but there is no doubt at all on its own evidence that Trio was an experienced demolition contractor and had men who were very experienced in demolition work working on the project.
As to the third matter, Mr Stevens says that there were no directions or instructions given. Assuming for the moment that this was technically correct, on which I express no view, his Honour correctly held that the appellant did have warning of the problem. It was clear from Mr Brown, who was a workman employed by Trio, that he had some warning even though it would appear that he did not pass that particular warning on to his supervisor, Mr Afualo.

It is true that Palmer J did not deal precisely with the evidence of Mr Afualo, however, if one reads the whole of the judgment it is relatively clear that his Honour accepted some part of Mr Afualo’s evidence, but not all of it.
As to the complaint that his Honour made no finding against the expert evidence given by Professor Irvine. That gentleman’s views were based on assumptions from Mr Afualo’s evidence and it really was not necessary for his Honour to deal with them in order to come to the view that he reached.
Accordingly, in my view there is not error or, even if there were error, that degree of error which would be necessary in order to re-examine Palmer J’s apportionment.
(b) Mr Stevens says that his Honour’s reasons were quite inadequate. He says that his Honour should have dealt with all the major submissions made as to the proper apportionment and his Honour clearly did not do so.
It is true that Palmer J did not deal with every contention that was put up and in particular he did not expressly say whether he accepted the evidence given by Mr Afualo or not, but it is not necessary in every fact-finding exercise to go into such detail.
What reasons are necessary depends on the nature of each case. In particular it must be realised that giving precise reasons for a decision on apportionment is very difficult to do. The factors that have to be taken into consideration as reflected by what the High Court said in the Podrebersek Case show this to be so and, indeed, when one reads judgments dealing with apportionment it is rare to find a whole host of detailed reasons because the apportionment depends on so many factors. Sometimes, again, it is almost impossible to reconcile disparate pieces of evidence and it is not an error for a trial judge to fail to resolve those matters if he or she can decide the dispute without doing so.
As to this ground Mr Hull, who appeared for the first respondent, said that if one reads them fairly Palmer J’s reasons were clear. He was not prepared to find a precise location for any of the sheeting other than to say that there was Colorbond sheeting and thirteen to twenty-two asbestos sheets in the south-east corner. He accepted the commonsense approach of Mr Holden, the engineer who was called as an expert on behalf of the Booth Printing group, rather than the detailed theories of the Professors Ansourian and Irvine which were based upon suppositions as to the precise location of the loads on the roof which were not fully established by the evidence which satisfied his Honour.
Looking at all these matters in my view the reasons given by the learned judge were sufficient and there is nothing in this ground.
(c) The third matter deals with the alleged superior position that Metal Roofing had as opposed to Trio in the carrying out of the work generally. It is true that Metal Roofing held the licence to remove the asbestos and it is also true that it assumed the principal’s role in the project. However, as Mr Hull pointed out in his submissions, there were other factors which weakened the force of this matter such as the fact that Trio was an experienced demolition contractor with experienced men that had some warning of the danger and were well in a position to look after themselves.
It is also quite clear that his Honour was aware of this particular factor because when one looks at the discussion between counsel and the learned judge on the fourth day of the trial as to how it was going there is no doubt at all that he had this particular point to the forefront of his mind.
Mr Stevens says that the judge was in error in saying more than once that Trio was an expert in roof replacement. He says that they were merely demolition sub-contractors performing their work under the direction of Metal Roofing.
These matters were put to the judge in the written submissions that are in the blue appeal book. The precise matters which appear to be at the focus of Mr Stevens’ submissions were that on the day in question it was anticipated that a forklift would be operating and that Trio’s men would put the asbestos sheets which they had removed from the roof directly on to the forklift and they would then be carried safely down to the ground. However, the forklift broke down while being moved from the street outside Booth Printing’s premises into the yard and it would take an hour or so for a replacement to arrive.
The decision was made by Metal Roofing not to use the scissor lift which possibly could have been used but for the work to continue with the sheets being stored on the roof until they could be brought down. Mr Stevens emphasised that it was Metal Roofing’s decision to continue with the work on a strip and stack basis and that meant that there would be storage of asbestos sheets on the roof until the forklift came back into service.
We were taken carefully through the evidence by Mr Stevens, but it did not seem to me that the evidence which he took us to went so far as to establish that Trio was merely acting under the direction of Metal Roofing and there was other evidence that was relevant to the point as well. For instance, Mr Holden gave evidence that even if the demolition sub-contractor was working under the express direction of Metal Roofing the demolition contractor would still be expected not just to accept directions but to form its own opinion as to what could be done with safety and that in the industry that would be expected to happen.
Indeed, whether or not one would properly describe Trio as a roofing replacement expert it was an experienced demolition contractor. Mr Afualo, Trio’s supervisor, gave evidence that he had fifteen years experience as such and was a very experienced demolisher. Trio should see or ought to have seen from the warning Mr Brown had been given and from what it could see on the ground that there was a problem with weight on the roof if men continued to work on the roof, continued to walk around, added asbestos sheets to the pile and this was the straw that broke the camel’s back.
It is easy enough to say that here was a situation where Metal Roofing had set up some sort of trap, it was there ready to be sprung and Trio just happened to be the person who came upon that scenario, sprung the trap and because of some negligence of its own becomes liable for millions of dollars worth of damage. However, to my mind that is too facile a way of looking at the matter. When one looks at the whole of the evidence, as Mr Hull submitted, Mr Brown and Mr Afualo were experienced operators, they should have made their own determination of what was safe, especially after the warning of danger.
It seems to me that there is nothing in this third point either. Accordingly, the appellant’s case does not get to the standard that is needed to upset a calculation of apportionment in this particular type of case and in my view the appeal should be dismissed with costs.
MEAGHER JA: I agree.
GILES JA: There were, I think, two core elements in the appellant’s submissions. They both went to the so-called causal potency of the acts or omissions of Metal Deck and Trio material to the collapse of the roof. They must be seen against the finding of Palmer J that the collapse should be attributed to the combined loads of the Colorbond material, the asbestos sheets and the men on the roof.
The first element was that in the loading from the asbestos sheets the Colorbond, and the men the greatest load was from the Colorbond. It was said that the Colorbond where it was placed - and I should say that I consider that his Honour found that it was placed where Mr Afualo said it was placed - provided the majority of the load, and that the asbestos sheets contributed only some additional six per cent and Trio’s men something small as well. It was said that the load from the Colorbond itself took the roof to the verge of collapse and thus, as I understand the reasoning in the argument, that the causal potency of the small additional loading which might be thought attributable to Trio was minimal compared to the causal potency of Metal Deck’s placement of the Colorbond on the roof.
The second element was that Metal Deck had the function of directing how work should proceed and, as it was said, in fact did direct that the work should proceed by stacking the asbestos sheets where they were stacked on the roof rather than the work ceasing for a time or the asbestos sheets being stacked elsewhere. On investigation of the evidence I think it very doubtful that there was such a direction. Rather there was a kind of joint proceeding regardless of the signs of danger which were there to be observed. There was, nonetheless, the ability of Metal Deck to direct. That, it should be said, was fully taken into account by Palmer J.
These core elements in the appellant’s submissions, however, lose their force when the basis for Palmer J’s decision is appreciated. What his Honour said was this:-
“Both the First and Second Defendants were professedly experts in roof replacement. Both should have realised that continuing to stack asbestos in the south-east section while there was a delay in removing the material due to the breakdown of the forklift truck would add considerable and increasing weight to a section of roof already bearing an unusually heavy load by reason of Colorbond material having been placed there. Both should have realised that removal of asbestos from the saw-tooth section of the roof should have been suspended until the new forklift was obtained, so that the risk of collapse would not be increased.
Mr Fenwick of the First Defendant actually realised the danger and ordered the Second Defendant’s workmen to cease stacking.
Mr Brown, the Second Defendant’s officer responsible for the job, had been warned by an employee of the Plaintiffs on 10 June, a day before the work was due to commence, that the roof was sagging and making creaking sounds when the Colorbond material was deposited there by a crane on the previous day. The Second Defendant should have realised the danger of collapse without the necessity of a warning. As soon as the breakdown of the forklift became evident all work on the removal of asbestos sheeting from the roof should have ceased. This was ultimately the responsibility of both the First and the Second Defendant.
It is not to the point to say that the Second Defendant was the First Defendant’s sub-contractor. The Second Defendant was expert in its own area of activity, i.e. roof demolition. It had its own direct responsibility to the Plaintiffs not to carry out the work dangerously and negligently. As Mr Brown said in cross examination, he would have thought that Mr Afualo ought to have known, from his own experience in the industry, not to stack more asbestos sheets in the south-east section. He would have expected Mr Afualo himself to have made a decision not to do any more stacking in that section.
In my view the First and the Second Defendants are equally at fault in allowing work to proceed in conditions which they ought to have known were highly dangerous. Liability should be apportioned equally between them.”
The evidence fully supported what his Honour said in these paragraphs. Given the means of knowledge and knowledge of both Metal Deck and Trio of the risk of collapse, both were negligent. The fact that the Colorbond may have had the roof on the verge of collapse was not an excuse for Trio, but a significant reason why it was negligent. Metal Deck’s right to direct did not absolve Trio in the then circumstances from making its own decision about continuation of work or how work should continue.
I therefore do not think that these core elements urged upon us provide any reason for departing from the apportionment at which Palmer J arrived, nor was there anything in what I regard as the lesser matters which were put to us in the course of Mr Stevens’ submissions.
I otherwise agree with what Young CJ in Eq has said and with the order his Honour proposes.
MEAGHER JA: The order of the Court therefore is the appeal is dismissed with costs.

******

LAST UPDATED: 04/09/2002

[2002] NSWCA 294

29 August 2002

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