Van der Sluice v Display Craft Pty ltd - [2002] NSWCA 204

No judgment structure available for this case.

CITATION: Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204

FILE NUMBER(S): CA 40594/01

HEARING DATE(S): 23 April 2002

JUDGMENT DATE:
9 July 2002

PARTIES :

Benjamin Van Der Sluice (Appellant)
Display Craft Pty Ltd (Respondent)

JUDGMENT OF: Meagher JA at 1; Heydon JA at 2; Foster AJA at 108

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : SC 20959/97

LOWER COURT
JUDICIAL OFFICER : Master Harrison

COUNSEL: Mr R J Burbidge QC/Mr H J Marshall (Appellant)
Mr J E Maconachie QC/Mr D Doak (Respondent)

SOLICITORS: Beilby Poulden Costello (Appellant)
P W Turk & Associates (Respondent)

CATCHWORDS: Tort - negligence - personal injury - employer's liability - independent contractor -fall from ladder in course of work - reasonable foreseeability - duty of care - breach - relevance of plaintiff's experience - Contract - implied term - contractual duty of care - Tort - breach of statutory duty - sufficiency of evidence to support claim of - D

CASES CITED:
Council of the Municipality of Waverley v Lodge [2001] NSWCA 439
Modbury Triangle Shopping Centre v Anzil (2000) 75 ALJR 164
Nagle v Rotnest Island Authority (1993) 177 CLR 423
O'Connor v Commissioner of Government Transport (1954) 100 CLR 225
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337
Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16
Sullivan v Moody (2001) 183 ALR 404
Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135
Wyong Shire Council v Shirt (1980) 146 CLR 40

DECISION: Appeal dismissed; appellant to pay respondent's costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40594/01
SC 20959/97

MEAGHER JA
HEYDON JA
FOSTER AJA

BENJAMIN VAN DER SLUICE v DISPLAY CRAFT PTY LTD

VAN DER SLUICE v DISPLAY CRAFT PTY LTD

Tort – negligence – personal injury – employer’s liability – independent contractor –fall from ladder in course of work – reasonable foreseeability – duty of care – breach – relevance of plaintiff’s experience
Contract – implied term – contractual duty of care
Tort – breach of statutory duty – sufficiency of evidence to support claim of

The plaintiff fell from a ladder upon which he was working installing Christmas decorations under contract for the defendant. He suffered head and other injuries and sued the defendant for damages in negligence for failing to ensure the plaintiff’s adequate safety and in contract for breach of a corresponding duty of care as an implied term of the contract. Master Harrison dismissed the claims.

The plaintiff appealed and sought leave to argue that the defendant was liable in damages for breach of statutory duty in tort under Construction Safety Regulations 1950 (NSW) Reg 73.

(Heydon JA, Meagher JA and Foster AJA agreeing), dismissing the appeal,

1. The defendant did not put the plaintiff in a position of working at such a height as to pose an obvious risk of falling. For persons experienced in that type of work the risk was not obvious. Apprehension of risk by a third party did not demonstrate an obvious risk to the plaintiff: [65].

O’Connor v Commissioner of Government Transport

Smith v The Broken Hill Proprietary Company Limited

2. Foreseeability was not an “undemanding” test where simple uncomplicated operations by an employee within the normal system of work are concerned. The position could not be different for independent contractors: [66].

Shirt v Wyong Shire Council

Wyong Shire Council v Shirt

Stevens v Brodribb Saw Milling Co Pty Ltd

Nagle v Rotnest Island Authority

Modbury Triangle Shopping Centre v Anzil

3. While it may be reasonably foreseeable that many men in the plaintiff’s position would fall off a ladder, the plaintiff was a skilled workman experienced in the type of repetitive work concerned. He had done this kind of work for years without mishap. The defendant was entitled to assume that the plaintiff would identify and eliminate relevant risks and could not reasonably foresee that the plaintiff would be harmed for failure to do so: [72].

Stevens v Brodribb Saw Milling Co Pty Ltd

(Heydon JA) on apprehension of dangerous circumstances:

The fact that the higher up a ladder one moves the more care one must take for one’s own safety was a simple fact affecting human existence in the physical world which adults in industrialised societies learn well before they become adults. It was as fundamental, elementary and clear as facts such as that broken glass needs to be handled with care: [74].

4. The contractual duty of care had the same content as the tortious duty of care and failed for the same reasons: [53].

5. Precise measurement of the height of the ladder was crucial to the claim for breach of statutory duty under Construction Safety Regulations 1950 (NSW) Reg 73 but was lacking. Had the issue been raised at trial, it was possible that evidence could have been called to deal with it. Leave to argue the ground was denied: [104].

O R D E R S

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

CA 40594/01
SC 20959/97

MEAGHER JA
HEYDON JA
FOSTER AJA
9 July 2002

BENJAMIN VAN DER SLUICE v DISPLAY CRAFT PTY LTD

Judgment

1 MEAGHER JA: I agree with Heydon JA.

2 HEYDON JA: This is an appeal by the plaintiff below against an order made by Master Harrison on 15 December 2000 that there be a verdict and judgment in favour of the defendant and an order that the plaintiff pay the defendant’s costs. The trial took nine days. The reasons for judgment adopted the sensible course of setting out the Master’s opinions on various questions which it was not necessary for her to decide, thereby reducing the risk of a new trial in the event of an appeal succeeding on liability. These questions included contributory negligence and damages.

3 The plaintiff’s Notice of Appeal attacked the Master’s reasoning which led to her conclusions on liability and her reasoning in relation to contributory negligence and damages. The plaintiff also sought leave to amend the Notice of Appeal by altering the mode of expression of the ground relating to contributory negligence, and by adding two new grounds. The application for leave to add one of those latter two grounds was opposed by the defendant. For its part, the defendant filed a Notice of Cross Appeal complaining about the Master’s provisional assessment in relation to contributory negligence, and about her damages assessments in relation to past and future economic loss and care. The defendant also filed a Notice of Contention.

The Master’s approach in outline

4 On 27 October 1996 the plaintiff, then aged 23, was injured when he fell off a ladder on which he was working.

5 It was common ground between the parties that the facts were simple: but each saw the simplicity in different ways. In fact the Master was faced with significant difficulties of fact finding, because the plaintiff could not remember precisely how he fell, no eye witness to the early part of his fall was called, and there was an exiguity of relevant circumstantial evidence.

6 The plaintiff had been engaged on 11 October 1996 pursuant to a document signed by him to install and dismantle Christmas decorations at various locations. It was a type of work which the plaintiff had carried out for the defendant in earlier years. On 27 October the plaintiff and a team of workers assisting him were installing decorations at the Imperial Arcade, a shopping centre in Pitt Street, Sydney. The job was to be completed that day. The plaintiff was using a ladder owned by the defendant which he had used in previous years and which he had used at that site. It was a twelve foot aluminium ladder with steps on one side and cross beams on the other.

7 The Master then said (at para [41]):

“An employee Joris Smink who was part of the plaintiff’s team, was placing Christmas garlands flush against the awning under the barge board on the Pitt Street entrance to the arcade (see Ex D). In previous years the garland was looped onto the awning. In the 1996 year the garland was placed flush against the awning. To perform this task more hooks were required to be inserted than had been required in previous years. The ladder had to be moved constantly. The ceiling hooks had to be placed on the stepped part of the roof so that the garland could be hung. Mr Smink had carried out this procedure on the lower part of the awning and on the stepped part of the awning. He felt uncomfortable carrying out this task at a higher level and chose not to continue as he thought it was dangerous.”

8 Mr Smink had been working outside the Imperial Arcade, and facing it. The Master then said (at paras [42]-[43]):

“The plaintiff decided to personally undertake the work that Mr Smink thought was dangerous. The plaintiff was obliged to carry out the work at height and place the hooks in the higher part of the awning. To carry out this task he climbed the ladder. He placed his feet on the next rung down from the top of the ladder to affix the hooks into the stepped part of the roof overhead. The plaintiff reached up full stretch with one arm and leant forward to clip the hook in. He does not remember whether it was his left or right arm (T29.35). He then had to affix the garland. After inserting a number of hooks the plaintiff would descend the ladder and move it along the ground in the direction in which he was working. He would then ascend the ladder in order to place the hooks into the awning. To reach full stretch he could use only one side of his body. He was using one hand to clip the hook in. He would use either his right or left hand to position the hooks depending how far along the stepped awning he could reach.

… Just prior to falling the plaintiff was standing on the second top step of the ladder. The top of the ladder connected with the bottom of his shin. He can remember reaching out but cannot recall whether or not he put the hook in the slotted part (T31). The plaintiff has no recollection of his fall or lying on the ground. His next recollection is being in hospital.”

9 In the fall the plaintiff suffered serious injuries, particularly to his head. He is now blind in one eye, suffered brain damage, has experienced a worsening in his pre-existing epileptic condition, and suffers from depression, anxiety and panic attacks.

10 The Master found (at para [28]):

“The language of the contract [of 11 October 1996] is clear. The plaintiff was engaged by the defendant as an independent contractor. As such there was an implied term of the contract that the defendant would take reasonable care not to injure the plaintiff.“

11 In addition to that contractual duty, the Master found that the defendant owed the plaintiff duties in tort on the basis that he was an independent contractor (at para [34]):

“the defendant, in tort, had a legal obligation to provide the plaintiff with a safe system of work. As previously stated, in contract the defendant had a duty to take reasonable care not to injure the plaintiff. These duties are not inconsistent.”

12 The Master then rejected one way in which the plaintiff put his case in the Statement of Claim: that on 11 October 1996 the plaintiff had suffered a fit or seizure to the defendant’s knowledge, so that it was unsafe for the plaintiff to work at any height off the ground “unless he was properly secured from falling in the event of a fit or seizure”: Statement of Claim para 17. The event referred to was a blackout suffered by the plaintiff during a training session on 11 October 1996 while he was untangling and testing some Christmas lights. He was placed under observation in hospital for two hours. He returned to work the next day. On 14 October 1996 he told Michael Clarkson, an officer of the defendant, that it could not be determined whether he had been electrocuted and that he was undergoing some tests. The Master said (at para [38]):

“In these circumstances, it is my view the defendant has discharged its duty of care owed to the plaintiff when it became aware that the plaintiff may have suffered an electric shock. After the plaintiff became unconscious an ambulance was called and the plaintiff was taken to hospital. The plaintiff returned to work the next day and carried out his work in a normal manner. Three days after the accident the plaintiff told his employer he felt fine. The plaintiff also said that although it could not be determined whether he had been electrocuted, he was undergoing some tests. The day the plaintiff blacked out the defendant had the wiring checked by an electrician. Nothing untoward was found. The defendant was entitled to rely on the plaintiff’s assurance that he was fine and the observations made by Tim Clarkson [another officer of the defendant] that the plaintiff had continued to carry out his work properly after he had been hospitalised. It was up to the plaintiff to decide whether or not he was fit to climb the ladder. There is no breach of duty of care so this part of the plaintiff’s claim fails.”

13 So far as the events of 27 October 1996 are concerned, the Master said (at para [50]):

“on the balance of probabilities, the plaintiff did not suffer an epileptic fit which caused him to fall. The plaintiff fell because he was standing on the second top step of the ladder while reaching overhead and outwards at full stretch to put a hook in the slotted part of the awning. He overbalanced and fell from the ladder to the ground suffering serious injuries.”

14 The Master took into account a principle which she stated as follows (at para [52]):

“In the case of skilled independent contractors who encounter risks ordinarily incident to the work they are invited onto the premises to perform, reasonable men and women in the position of the defendant would not foresee or if they did foresee would not think it reasonably necessary to guard against the occurrence of those injuries which are ordinary incidents of the work. … .”

15 The Master then summarised the evidence of Tim Clarkson, who was about the plaintiff’s height and build, that after the accident he took over the plaintiff’s role, and found the ladder to be stable. After setting out parts of the evidence of two engineering experts, Dr Adams and Dr Olsen, the Master said (at paras [62]-[66]):

“I accept that the plaintiff was under time constraints and he was the one with the responsibility to ensure that the job was completed by the end of the day. However, the plaintiff had been told by Mr Smink that he (Smink) refused to go any higher on the ladder to carry out the work because it was too risky. The plaintiff nevertheless chose to ascend the ladder to the step nearest the top of the ladder and reach overhead to a full stretch outside the style [sic] area of the ladder. The plaintiff was experienced as he had been doing this type of work for a number of years. I infer that the plaintiff knew that this was dangerous and that he was taking a risk, but nevertheless elected to carry on with the job. As the plaintiff was the supervisor in charge of the job, he could have easily requested an employee to hold the ladder for him so that it was more stable. He chose not to give that direction.

Alternatively the plaintiff could have moved the ladder in the direction he was working on a more frequent basis thus minimising the area of his reach. Although it may have taken more time he would not be called upon to reach outside the centre of his mass and he would have been securely balanced. This is exactly the mode which Tim Clarkson adopted when he completed the job later that day.

It is my view that the accident was caused when the plaintiff elected to place himself in a precarious position at the top of the ladder and over reached. The plaintiff lost his balance and fell with very serious consequences The plaintiff did not take care of his own safety, and was the author of his own misfortune.

It is my view that a reasonable person in the defendant’s position would not have foreseen that there was a risk of injury to the plaintiff when he was installing the Christmas decorations on the awning by means of a ladder. The defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady. Accordingly, as the defendant did not breach the duty of care it owed to the plaintiff the plaintiff’s claim in negligence fails.

In relation to breach of contract, it is my view, for essentially the same reasons as above, that the defendant did not breach its contract with the plaintiff. The defendant took reasonable care not to injure the plaintiff. The plaintiff’s claim in contract also fails.”

What were the crucial findings of the Master?

16 To some extent there was controversy in the course of the appeal as to what precise findings the Master had made, what the significant aspects of her reasoning were, and what evidentiary support her reasoning had.

The competing theories of the parties

17 These submissions arose out of the Master’s attempts to find out how the accident happened and why the plaintiff fell. Among the potential causes were the following. The plaintiff’s foot could have slipped. He could have suffered an epileptic fit. He could have experienced sudden dizziness or light headedness leading to a loss of balance. The ladder could have been placed on the ground in an unstable fashion. The ladder could have been unstable because of moisture on the ground. The plaintiff could have performed some vigorous movement on the ladder causing a loss of balance. The plaintiff could have fallen by leaning sideways from the ladder until his centre of mass went beyond the side of the ladder.

18 The theory advanced by Dr Adams, an expert in ergonomics, on behalf of the plaintiff to explain the fall was that the ladder was unstable because of a combination of four factors: the plaintiff’s position on the second top rung, a lack of even support beneath the feet of the ladder, the fact that the ladder was not held or secured, and a “sideways reach and lean” by the plaintiff. Thus he said:

“the pavement, while being reasonably level, is not perfectly smooth and level. There is a strong probability that the four feet of the ladder may not have all been equally supported on that slightly uneven surface, thus allowing for some slight movement of the ladder as the person working on it moved.

Understandably, Mr Van-Der Sluice does not have a precise recollection of the location of the ladder in relation to the hooks that he was inserting and the garland that he was hanging. Noting that on the highest level beneath the awning the brackets to which the hooks were attached are spaced at approximately 600 mm (2 ft) centres, it is reasonable to infer that Mr Van-Der Sluice would have been attempting to attach as many as three hooks in a row from the one ladder location. If this had been the case then he would have been reaching to the side from the ladder on which he was standing and may inadvertently have moved so far as to take his centre of mass beyond the base of support of the ladder. If there was any movement whatsoever in the ladder which, it will be recalled, was not being held by his fellow worker, then Mr Van-Der Sluice could have been thrown off balance (as he was) and would have been unable to arrest the fall since there was absolutely nothing above or beside him which he could grab to arrest the fall.

As was noted in Section 2.1, Mr Van-Der Sluice was standing with his feet on the step immediately below the top of the ladder. It is universally recommended and is, in fact, advised in the form of a notice on most ladders on sale these days, that a person using a stepladder should not ascend above the second step from the top. It is a matter of simple physics that the higher a person goes on a ladder and/or the further they lean to the side while standing on a ladder the less stable the system (ladder plus person) becomes. Without more detailed information, which it is clearly impossible to obtain at this remove in time and with Mr Van Der-Sluice’s understandable inability to provide a clear and detailed recollection, I can only conclude that the combination of:

(i) His height on the ladder;

(ii) The somewhat uneven support beneath the ladder’s feet;

(iii) The fact that the ladder was not held or secured in any way; and

(iv) The movements possibly involving a sideways reach and lean;

was a combination which resulted in the instability of the system and Mr Van-Der Sluice’s fall.”

19 Dr Olsen, a consultant physician in occupational medicine, advanced different explanations on behalf of the defendant. He denied that the plaintiff was standing on the second step from the top, and said it would not have been possible for him to have stood on a step above the fourth step from the top: Blue 2/375N-R. He said there was no indication that the ladder was unstable: Blue 2/393U. On the (ultimately unsatisfactory) basis of a statement emanating from a person not called as a witness which was limited in its effect by reason of an order under s 136 of the Evidence Act 1995, he ruled out “leaning sideways from [the] ladder”, “leaning heavily from the ladder”, and performing “vigorous” or “violent” movements while standing on the ladder: Blue 2/393Q and 394E. He thought an epileptic fit was the possible cause, given that the plaintiff was an epileptic and had suffered a fit some days earlier: Blue 3/394L-N. However, the Master said there was no evidence of this, Kathryn Hancock did not judge the plaintiff to be “rigid or shaking or jerking”, she did not see any other indication of a fit and the Master found that there was no fit. Further, neither expert relied on moisture on the ground as a cause of instability, and the Master found that the ground was not wet by reason of rain water.

What was “a full stretch outside the style area of the ladder”?

20 What did the Master mean by her statement that the plaintiff “chose to ascend the ladder to the step nearest to the top of the ladder and reach overhead to a full stretch outside the style area of the ladder”? The Macquarie Dictionary defines “stile” as “a vertical member in a wainscot, panelled door, or other piece of framing”. The Oxford English Dictionary (2nd ed) defines “stile” as “Each of the vertical bars of a wainscot, sash, panelled door, or other wooden framing”. The words “stile” and “style” appear to be interchangeable. The dictionary quotes the following usage: “In a rectangular frame … the tenons are commonly made on the shorter pieces, or the rails, and the mortises on the longer, or the styles”. This ladder was not made of wood, but of aluminium. It appears that the usage of the word “stiles” in relation to ladders extends beyond wooden ladders. In Dr Olsen’s report, he referred to the “stiles” of a stepladder as being the vertical forms linked by the steps. Thus he said:

“Industrial stepladders may have a length measured along the stiles at 6.1m. The subject ladder was much less than this at approximately 3.7m. The distance between the stiles should not be less than 290mm and the measure of 300mm therefore would be in compliance. The distance between the stiles may vary although must vary uniformly along the length of the stiles. … The spread between stiles and back legs should be not less than 500mm and not greater than 660mm per metre length of stile, this would amount to 2.44m for a ladder with a stile of 7.4m. It would appear that the measurement taken of the spread between the stiles and the back legs may be incorrect as the photographs depicting the ladder do not appear to indicate a spread as great as 3m.”

5.2 DISTANCE BETWEEN STILES

(a) the distance between the stiles varies uniformly along the length (i.e. tapered stepladder); or

(b) the stiles flare out at the bottom to increase stability.”

“With the ladder in the fully open position, the clear distance between the rear edge of the stiles and the front edge of the back legs shall be not less than 500 mm and not greater than 660 mm per metre length of stile.”

21 At para [40] the Master’s language did not correspond with the usages just indicated. She said:

“It was a 12’ aluminium ladder with steps on one side and two stiles holding it together on the other side. There were cross beams holding the stiles together.”

22 Dr Adams gave oral evidence in which he said a ladder was not a suitable platform for the plaintiff to carry out his task unless “the ladder was high enough for the worker to be able to reach comfortably directly in line with the channel encompassed by the two styles of the ladder”. He expressed the same idea in speaking of a worker who “was able to reach above or in front of himself, directly within the envelope encompassed by the two styles of the ladder”. The Master referred to this evidence in para [56]:

“[Dr Adams] gave evidence that had the plaintiff been able to reach above or in front of himself, directly within the envelope encompassed by the two styles and without any significant force being required, the ladder could be used.”

23 The Master’s adoption of this explanation for the plaintiff’s fall must rest on an assumption that the plaintiff reached not only overhead, but outside the stile area to a point where his centre of mass went beyond the base of support of the ladder. That was advanced by Dr Adams as a partial explanation for the fall, as has been seen. It is clear that there was no evidence that the ladder was held and secured, but the other key elements of his analysis are debatable. There are doubts about precisely which step the plaintiff was on; and even Dr Adams put “a sideways reach and lean movement” as only a possibility. There was no evidence that the support for the ladder was uneven. However, the Master appears to have accepted three of Dr Adams’ four elements, and to have held that the plaintiff was on the step nearest the top, the ladder was not stably secured, and there was a sideways reach and lean by the plaintiff so as to take his centre of mass beyond the base of support of the ladder.

Did the Master make any finding that the plaintiff’s method of work was to install three hooks at each positioning of the ladder?

24 Ground 3 of the Notice of Appeal, and the supporting written submission of the plaintiff, suggested that the Master had made a finding that the plaintiff’s method of work was to install three hooks at each positioning of the ladder – one to the left, one to the right, and one straight above him. If this finding had been made and if it had evidentiary support, it would tend to support the Master’s conclusion that the plaintiff fell when reaching “overhead and outwards at full stretch to put a hook in the slotted part of the awning” as she said in para [50], or reaching “overhead to a full stretch outside the style area of the ladder” as she said in para [62], or reaching “outside the centre of his mass” as she said in para [63], or “overreached” as she said in para [64]. This conclusion is also implicit in the Master’s statement in para [65]:

“The defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady.”

25 In its written submissions the defendant went to some lengths to demonstrate that the Master made no findings about the plaintiff habitually inserting three hooks at each positioning of the ladder, and that there was no evidence to support any such proposition. This was understandable since a key element of Dr Adams’ reasoning was that it was:

“reasonable to infer that [the plaintiff] would have been attempting to attach as many as three hooks in a row from the one ladder location. If this had been the case then he would have been reaching to the side from the ladder on which he was standing and may inadvertently have moved so far as to take his centre of mass beyond the base of support of the ladder.”

“it’s entirely possible that in the circumstances of the inconvenience of moving the ladder for every single hook, it’s entirely likely that anybody having made their way to the top of this ladder would do as much as they could even at the increased risk of seeking to do one which was two feet – bearing in mind that the appellant is not positioned on one point on the step on which he’s standing, he can of course move to the left and to the right to the width of the ladder, thus allowing him to move obviously from the right hand side of the ladder, it’s not especially imaginative to think that he was reaching out a little to the right and conversely a little to the left.”

26 The defendant adopted a different stance in oral argument, no doubt for some good tactical reason, and indicated that its stance in oral argument was its preferred position. However, so far as there was a debate between the parties on this issue, it illuminates the Master’s reasoning and the evidence relevant to it.

27 The defendant’s submissions that the Master made no finding that the plaintiff had a practice of inserting three hooks at each positioning of the ladder, and that there was no evidence about it, were as follows:

if

against

28 The written material indicated by the words “see below” is as follows. It was advanced in support of Ground 2 of the Notice of Contention, which is:

“The findings that the Appellant fell because he reached outwards at full stretch (para 50), that he reached overhead to a full stretch outside the style area of the ladder (para 62) and that he over-reached, lost his balance and fell (para 64) were wrong; the Appellant failed to prove the causal mechanism of his fall from the ladder.”

29 The written material in question is:

“The learned Master erred in finding that:

(a) the appellant fell because he reached outwards at full stretch (para 50);

(b) the appellant reached overhead to a full stretch outside the style area of the ladder (para 62);

(c) the appellant over-reached, lost his balance and fell (para 64).

There was no evidence to support such a finding or findings.

The relevant evidence is at T29 line 5 to T31 line 50; cross examination is at T65 line 43 to line 50.

There was no other evidence except for assumptions and speculation by Dr Adams in his report 1 September 1998 (dealt with in the judgment at para 55).

There was no evidence that the appellant, at the time of the accident, or at any other time, allowed or permitted his centre of mass to move beyond the base of support of the ladder.

There is no evidence that the ladder moved in any way; Ms Hancock did not see the appellant beginning to fall (T134 line 30). She could not recall taking notice of the ladder after he fell (T134 line 40). To the best of her recollection, she did not hear anything before the appellant fell (T134 line 2).

The learned Master rejected the case that the appellant’s fall was initiated by an epileptic fit (para 50 of the judgment).

There is no evidence of the cause of the appellant’s fall, other than his failure to make use of Smink to hold the ladder.

The appellant was engaged to achieve a result within the specification prescribed by the respondent He was competent to control the system of work without supervision or other action by the respondent once a suitable ladder was provided; the Master found that a sound and suitable ladder was provided (para 54). The evidence of Dr Olsen (Exhibit 14; paras 60 and 61) permitted that finding.

Stevens v Brodribb Saw Milling Co Pty Ltd

The Liability of Employers

30 The plaintiff’s reply in relation to this Notice of Contention material was:

Jones v Dunkel

Appellant fell

full stretch with one arm

descend after a number of hooks

either left or right hand to position hooks

Appellant was on second top step

Appellant recalls reaching out

Appellant trying to meet deadline

31 It is convenient to concentrate on these arguments, for the moment, solely in relation to the question of whether the plaintiff was stretching sideways or putting in more than one hook on each occasion the ladder was repositioned. This debate raises two issues. First, did the Master make any factual findings supportive of the proposition which the plaintiff relies on? Secondly, so far as she did not, was there any evidence to support that proposition?

32 The Master’s findings relied on by the plaintiff as findings from which the proposition contended for may be inferred are as follows. As to the finding numbered 1, in para [1] she said the plaintiff “fell off a ladder”. As to the findings numbered 56, 57 and 58, in para [42] she said:

“The plaintiff reached up fell stretch with one arm and leant forward to clip the hook in. He does not remember whether it was his left or right arm (T29.35). He then had to affix the garland. After inserting a number of hooks the plaintiff would descend the ladder and move it along the ground in the direction in which he was working. He would then ascend the ladder in order to place the hooks into the awning. To reach full stretch he could use only one side of his body. He was using one hand to clip the hook in. He would use either his right or left hand to position the hooks depending how far along the stepped awning he could reach.”

33 In my opinion there are only two parts of these statements which can be enlisted to support the proposition for which the plaintiff contends. The first is the statement in para [42] that after inserting “a number of hooks” the plaintiff would descend the ladder and move it, before ascending the ladder in order to place the “hooks into the awning”. The second is the statement in para [43] that the plaintiff “can remember reaching out.”

34 In these passages the Master was not making findings. She was purporting to do no more than summarise the plaintiff’s evidence. It is true both that the Master did not reject the plaintiff’s evidence in terms, and that the Master took the approach that where the plaintiff’s evidence “is not corroborated I examined his evidence very carefully”. The only actual findings she made were four in number – that the plaintiff reached “overhead and outwards at full stretch” (para [50]), that the plaintiff had been reaching “overhead to a full stretch outside the style area of the ladder” (para [62]), that the plaintiff “overreached” (para [64]) and that the defendant “would have expected that the experienced plaintiff would have known to … move the ladder more regularly (para [65]). The first three findings are findings challenged by the defendant. Curiously, the plaintiff does not rely on the fourth finding in support of the first three: yet that finding indicates that the Master must have thought that the plaintiff was putting up at least two hooks each time the plaintiff went up the ladder, since if he was only putting one up, there would be no point in moving the ladder more regularly. A similar assumption underlies the first sentence in paragraph [63].

35 The answer to the question whether the Master made a finding about any practice of the plaintiff’s of putting up three hooks at a time is that apart from what the Master said in paras [63] and [65] about moving the ladder more frequently or regularly, she made no findings to that effect and no findings capable of supporting conclusions to that effect. Further, what she said in para [65] is compatible with no more than two hooks being put up at each positioning of the ladder.

Was there evidence to support the proposition that the plaintiff put up three hooks at each positioning of the ladder?

36 The next question is whether there was evidence to support the plaintiff’s contention that three hooks were inserted on each occasion. The Master’s summary of the plaintiff’s evidence in para [43] as being to the effect that he “can remember reaching out” goes beyond his testimony. He did not say he reached out. His evidence was:

“I remember reaching and that’s all, I can’t remember if I got the hook in or if I didn’t get a hook in.”

“Q. In order to reach up to the top level for example that is the roof level, where did you have to stand?

A. I had to stand, the second top step where you have the total top step and there is a small rung underneath, I had to position myself there.

Q. Did you use the ladder to affix the hooks?

A. Yes.

Q. When you were fixing the hooks and standing in that position did you have to reach up?

A. Yes.

Q. How high?

A. I was at a stretch, full stretch.

Q. You are indicating sitting in the witness box lifting a hand up?

A. Yes.

Q. What did you do with the other hand?

A. I couldn’t reach the ceiling, I had to sort of lean to do it, you know.

Q. When you say lean which way did you lean?

A. To get to ultimate height you can only really use one side of your body. I was just using one hand to clip it in because you could clip it in with one hand, it didn’t need two hands to do it.

MASTER: Q. Which hand were you using, your left hand, can you remember?

A. To be perfectly honest I can’t exactly remember which hand it was.

CRANITCH: Q. Would you use the right or left depending where you had to position the screws?

A. Depending how far along I got.

Q. How many screws did you have to put up, do you remember?

A. No.

MASTER: Q. Were they hooks or screws?

A. Hooks.

CRANITCH: Q. On the lower part of the awning where the step appears on the photograph which you have marked did you have to stretch far?

A. No, no.”

“Q. Do you recall putting any hooks into the ceiling on that occasion?

A. No, I don’t recall that.

Q. What do you last recall?

A. I remember reaching and that’s all, I can’t remember if I got the hook in or if I didn’t get a hook in.”

“Q. You told us yesterday that you could recall reaching. You remember saying that yesterday?

A. Yes.

Q. Do you recall telling us yesterday that you remember that you had to lean in the sense that when you reached your body tilted to one side in some fashion?

A. Yes because when you raise one arm your body tilts.”

37 So far as the Master in para [42] referred to the placing by the plaintiff of a “number of hooks” at each place the ladder was moved to, nothing on T29 suggests that he placed more than one hook at each place the ladder rested. On that page the questioner referred to hooks (or “screws”, meaning hooks) on four occasions, but in a manner equally compatible with a general description of the totality of the operation. The plaintiff never gave specific evidence that at each place the ladder rested he inserted more than one hook. He was asked only one question which might have elicited such an answer, but it did not. The question, already quoted, related to his activities just before he fell:

“Q. Do you recall putting any hooks into the ceiling on that occasion?

A. No, I don’t recall that.”

38 Accordingly, there was no evidence given by the plaintiff to support the proposition that he inserted, on each occasion, a hook to the left, a hook to the right, and a hook above him. Nor was there any other evidence to support it. Nor was there any evidence that he inserted two hooks on each occasion. There was no evidence given by the plaintiff to support the conclusion that he fell in the act of reaching “outwards at full stretch”, or even overhead at full stretch – save from what could be inferred from his evidence about his ordinary practice. His evidence about his ordinary practice was not that he ever reached outwards and sideways. His evidence about his ordinary practice was that he reached upwards with one arm, thereby causing a tilt in his body. In those circumstances there is no significance in the fact that the plaintiff was not cross-examined on the relevant evidence, save to clarify the words “I had to sort of lean to do it, you know”. Nor is there any significance in the defendant’s failure to call Mr Smink, since the plaintiff’s evidence did not suggest any possible inferences which Mr Smink’s silence permitted the Master to draw more strongly. But despite the lack of direct evidence for the proposition that the plaintiff ever reached outwards, for reasons to be seen the Master’s view that this is what caused the fall is probably to be accepted.

Another factual question: means of stabilising the plaintiff

39 It was contended on behalf of the plaintiff that in the position from which he fell “he had no means of stabilising himself beyond pressing his lower shins against the top step of the ladder”. The defendant denied this. For the defendant it was submitted:

“the learned Master found that the claimant ‘could have easily requested an employee (Smink) to hold the ladder for him so that it was more stable’ (para 62). Further, she found that ‘if the ladder had been properly held, there was no reason why the work could not be safely done … the plaintiff should have taken the precaution of having someone hold the ladder’ (para 71); she also found he could have moved the ladder to minimise the need to reach (para 63).”

The defendant’s arguments on this point are correct.

A further factual question: the role of time pressures

40 It was submitted on behalf of the plaintiff that while working before he fell, he “was under time pressures”. The defendant submitted:

“no finding was made by the learned Master to the effect that time pressures were in any way relevant to, or causative of, the appellant’s fall; in fact, she found to the contrary. She accepted that the plaintiff was under time constraints (para 62) but ‘could have moved the ladder in the direction he was working on a more frequent basis thus minimising the area of his reach. Although it may have taken more time’ (inferentially, it was open to him to do so), ‘this is exactly the mode which Tim Clarkson adopted when he completed the job later that day’ (para 63).”

This contention of the defendant also appears to be sound. The job had to be finished that day, but there is no evidence of any pressure from the defendant on the plaintiff to complete particular operations within particular times. Counsel for the plaintiff submitted that it could be inferred that the plaintiff felt under pressure to work hastily because Dr Adams said: “it is reasonable to infer that [the plaintiff] would have been attempting to attach as many as three hooks in a row from the one ladder location”. This was not objected to, but it is of questionable admissibility and no weight. As indicated above, the Master made no finding to the effect of Dr Adams’ opinion, and there was no evidence to support it. Accordingly no inference of haste can be drawn from it.

The significance of Tim Clarkson’s evidence

41 Tim and Michael Clarkson were the principals of the defendant. The Master said in para [54]:

“Tim Clarkson and the plaintiff are about the same height and same build. Later on that day after the accident occurred, Tim Clarkson took over the plaintiff’s position. Tim Clarkson used the same ladder to complete affixing the garland. He described the ladder as a solid and very stable ladder. He said that although he cannot recollect which rung his feet were on, he was at a safe level. He raised his hands over his head. His arms were extended, his elbows were bent and his hands were about one foot above the top of his head (T344). Tim got down and moved the ladder and went up again until the hanging garland on the awning had been completed. He did not experience any sensation of the ladder being unstable. Nor did he find it necessary to request an employee hold the ladder to ensure his safety.”

42 The Master then said in para [63]:

“Alternatively the plaintiff could have moved the ladder in the direction he was working on a more frequent basis thus minimising the area of his reach. Although it may have taken more time he would not be called upon to reach outside the centre of his mass and he would have been securely balanced. This is exactly the mode which Tim Clarkson adopted when he completed the job later that day.”

43 In chief he said:

“Q. The completion of the external decorations, that is the area at which you saw this garland hanging down, you personally physically completed that work?

A. Yes, I did.

Q. How did you do it?

A. With the assistance, my recollection is a bit sketchy. It was the same casual help Ben had, I believe it is Yoris.

Q. Did you get the ladder that had been moved?

A. Yes I got the ladder and used the same equipment.

Q. Did you put it back in the area where [the] garland was hanging down?

A. Yes, in the same position.

Q. Did you get up the ladder?

A. Yes, to complete the job.

Q. When you got up on the ladder, there was nothing about the stability of the ladder?

A. No, it was very stable. It was a solid ladder, very stable.

Q. When you climbed the ladder, did you do so one foot at a time?

A. Yes. That is how I usually climb a ladder.

Q. Sorry, if some of these questions were not lucid. There is a purpose for that. Are you about the same height as Ben Van-der Sluice?

A. I might be a bit taller. I think we are very much the same build and whatever he is.

Q. You got the ladder to the position where the garland was hanging down, did you continue the installation?

A. Yes, I completed that whole work with the garland.

Q. When you got to the point where the work had stopped --

A. Yes.

Q. I think we can take it was the point Ben fell?

A. Yes.

Q. How high up the ladder did you go in order to reach the garland so you could continue the work?

A. The exact ladder, the rung that I was on I can’t recollect.”

44 The evidence continued:

“Q. Can you remember where, if at all, the top of the ladder came to you on your legs?

MASTER: Q. Or body?

MACONACHIE: Q. Or body when you undertook the work of hanging the garland?

A. Yes.”

45 The evidence continued:

“Q. Was it necessary for you to raise your hands above your head?

A. Yes.

Q. How far above your head, can you remember?

A. It was working at this type of height really.

Q. You demonstrate with your arms extended, but your elbows bent, with your hands about a foot above the top of your head?

A. Yes I’d say that would be about right.

Q. You do so with both of your hands extended in that fashion above your head, correct?

A. Correct, yes.

Q. Was it necessary to do it with two hands above your head?

A. Yes well, the hook was put in which was, sort of, one hand and the garland was put up, you know, holding it with two hands at the front to put it into the hole that was in that hook.

Q. Did you progressively insert hooks into the position that is, in the position required and attach the garland?

A. Yes, spaced evenly.

Q. At what centres were the hooks placed?

A. I cannot recall. I mean as a rule over 500 and 700 mms to make sure the garland is kept flush.

Q. How did you progress the work?

A. Work was progressed fine, I mean --

Q. Did you do so by staying in the one place or did you have to get down and move the ladder?

A. Yes, had to move the ladder. And that is with the assistance of the casual came in. He helped pass the garland up and we did one spot. And then, once we couldn’t reach the next fixing point, we then come down, move the ladder and went up again.

Q. That process continued until you hung the garland along the awning?

A. That’s correct.

Q. As you progressed the job, did you have any sensation of the instability of the ladder at all?

A. No.

MASTER: Q. Was anyone holding the ladder?

A. No.”

46 However, so far as there was precision in the evidence in chief in any other respect, it was undercut by the following evidence in cross-examination:

“Q. You described reaching up with both hands. My learned friend suggests like this you have reached up to get to the top part of the arc?

A. To be honest, I can’t exactly remember that. I remember I completed the job and that was it.

Q. It would be fair to say you cannot recall how far up you reached or where you were standing on the ladder, which rung you were standing on?

A. I did not realise what step I was on.”

47 The Master appears to have preferred the precision of the evidence in chief to the want of recollection in cross-examination. None of the conventional bases on which a finding of primary fact by a trier of fact who heard and saw a witness can be interfered with by this Court would appear to apply to invalidate the Master’s finding in para [54].

48 However, if the finding were to be set aside because of the answer in cross-examination, the position is as follows. It is a reasonable inference from the evidence of Tim Clarkson that he inserted one hook at each positioning of the ladder. There is no evidence that he moved his body mass outside the stile area. What is quite unclear is what rung he stood on. However, Dr Adams’ reasoning did not depend on whether a user of the ladder stood on the second top step or the fourth top step. If his arms were fully extended above his head and the plaintiff’s were too, and if the plaintiff is correct that he was on the second top step, Tim Clarkson must have been too. It is possible, however, that Tim Clarkson’s arms were only partly extended, as he said in chief: in that event either the plaintiff must have been mistaken about stretching up (if both were on the second step) or the plaintiff must have been mistaken about being on the second step. It was put to him in cross-examination that he was on the fourth step, but he denied it.

49 The problem with the Master’s use of Tim Clarkson’s conduct as a means of criticising what the plaintiff did is that Tim Clarkson’s evidence did not make it clear what he did. Though it is capable of being read as suggesting that Tim Clarkson placed only one hook for each positioning of the ladder, taken as a whole it is not clear where he was on the ladder or how far he reached over his head. A further difficulty is that it may not be safe to compare Tim Clarkson’s safe completion of the job with the plaintiff’s experience, because, following the accident which befell the plaintiff, Tim Clarkson would be likely to have been very careful in avoiding any unnecessary risk. In circumstances where there is not much evidence of what the plaintiff did and less of what Tim Clarkson did, the Master’s recourse to Tim Clarkson’s evidence is not a strong support for her reasoning.

50 There is, however, some negative support for the Master’s conclusions to be drawn from Tim Clarkson’s evidence. If (contrary to Dr Adams’ opinion, which was that it did not matter whether the plaintiff was on the second, third or fourth step) it was crucial to the plaintiff’s case that he was obliged to work on the second step and that this created an inherently dangerous position, that case is not supported by any admission extracted by counsel for the plaintiff, who bore the burden of proof, in cross-examination of Tim Clarkson: he was not asked any question about whether it was essential to work from the second step. And, whether Tim Clarkson was behaving excessively cautiously or not, he was not cross-examined to suggest that he was, and he did complete the work without experiencing instability or suffering a mishap. If Tim Clarkson did the work without mishap, without the ladder being held and without sideways leaning, and the plaintiff did the work without the ladder being held and with sideways leaning, the cause of the plaintiff’s mishap was likely to be the sideways leaning. Since by the end of the argument the defendant was contending (contrary to its written submissions) that the sideways leaning view was justifiable, and the plaintiff did not withdraw its written submissions that it was justifiable, it is difficult for this Court to conclude definitively that there was no sideways leaning. The plaintiff unquestionably fell, and sideways leaning appears to be the only available explanation for the fall. All others have been eliminated or lack evidentiary support. In particular, the Master excluded epilepsy and moisture on the ground, and did not find that the ground was uneven or that the ladder moved. There is no evidence of unevenness and no evidence that the ladder moved as a result of unevenness.

51 However, in view of these difficulties to do with the Master’s use of Tim Clarkson’s evidence, the safest course is to leave it out of account in evaluating the overall merits of the Master’s reasoning.

Ground 13: the contract ground

52 This ground was as follows:

“The learned Master having found (para [28]) that there was an implied term of the Appellant’s contract that the Respondent ‘would take reasonable care not to injure the plaintiff’ erred in rejecting (RAB 80) the Appellant’s claim (RAB 3,4) for breach of that contractual term, having regard to her factual findings.”

53 This was a ground added pursuant to leave, to which the defendant consented. It was the ground argued first in oral argument. Counsel for the plaintiff advanced the contract argument as a means of overcoming the risk of any reduction in damages payable to the plaintiff by reason of the plaintiff’s own contributory negligence. Counsel accepted that the contractual standard of care was the same as the tortious standard of care. Counsel for the defendant, who was highly critical of the way in which the contract argument was deployed in the appeal, nonetheless unsurprisingly agreed that if the defendant was not liable in tort, it was not liable in contract either. It follows that if the plaintiff fails in contending that the defendant was in breach of its duty of care imposed by the law of tort, he must equally fail in contract. It is therefore not necessary to go further into the details of the contract argument.

Ground 1: was the plaintiff an independent contractor?

54 This ground was:

“The learned Master erred in concluding (para 32) that the Claimant was an independent contractor.

(a) having regard to her findings of objective fact (paras 30, 31)

(b) in reaching that conclusion by relying upon the subjective belief of the parties (para 32)

(c) in reaching that conclusion by relying upon the parties’ belief as to the legal obligations, which legal obligations are consequences which follow from but do not define their relationship.”

55 Counsel for the defendant contended that the standard of care owed to the plaintiff was lower if he was an independent contractor than it was if he was an employee. The defendant accordingly supported the Master’s conclusion on this question. Counsel for the plaintiff also noted that in some respects the plaintiff’s position would be better if he were an independent contractor because of statutory caps on recovery by employees.

56 It is not necessary to consider the detailed arguments which the plaintiff advanced on this question, because it was not shown that a characterisation of the relationship as one of employment would have led to any different result before the Master, or would lead to any different result in this Court. If the Master’s reasoning in paras [62]-[66] of her reasons for judgment is sound, it would prevent the plaintiff recovering even if he had been an employee. And if the plaintiff’s attacks on that reasoning are sound, the plaintiff would recover even though he was an independent contractor.

Grounds 2 and 3: foreseeability

57 Ground 2 is:

“The learned Master erred in determining (para 65) that the Opponent (c)ould not have foreseen that there was a risk of injury to the Claimant involved in installation of decorations by means of a ladder

(a) generally, and

(b) having found

In the case before me, there was a risk arising from the nature of the work and there was some need for coordination by the defendant’ (para 34).

It may be accepted that a risk of injury attaches in respect of any person who had to go on to work at height in order to install Christmas decorations. It follows from the circumstances that such a person is expected to work at a height as (scil. ‘such that’) he had to use a ladder.’ (para 51) and

… a mobile scaffolding platform would have been a very cheap and practical response to the foreseeable risk.’ (para 69).”

58 Ground 3 is:

“The learned Master erred in holding (para 65) that it was not foreseeable that the Claimant, having the overall obligation of completing the hanging of Christmas decorations, and under pressure of time, might risk injury by reaching from the top of the ladder to each side to install three hooks, rather than relocating the ladder for the fixing of each hook.”

59 The plaintiff’s written submission in support of these grounds was brief:

“The finding (para 65) that the Respondent would not have foreseen risk of injury to the Appellant in the factual circumstances found is unsustainable. Even putting aside the obvious likelihood that the Appellant in circumstances of time pressure might reach from the top of the ladder to left and to right in order to save time, that which was directly contemplated by the Respondent involved the Appellant working at such a height as to pose an obvious risk that he might fall, as indeed he did. The learned Master has misunderstood the low threshold involved in foreseeability. Her findings of fact, quoted in ground 2, are at variance with her finding of an absence of foreseeability.”

The defendant’s arguments on grounds 2 and 3

60 The defendant argued:

O’Connor v Commissioner for Government Transport

Smith v The Broken Hill Proprietary Company Limited

That is plainly the way in which the learned Master used the expression criticised; that is made plain by the words in para 65 of her judgment:

‘The defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady.’

In any event, no relevant error is demonstrated because the learned Master decided the case against the appellant on the reasonableness and causation issues.”

61 In Smith’s case an employee was injured when he and another employee called Woods threw a wooden packing case weighing 100 pounds from a roof: a projection on the case caught in the employee’s glove and dragged him off the roof. At 343-4 Taylor J said:

“Upon the evidence the explanation of the mishap is to be found in the fact that, with full knowledge that there were nails protruding from the surface of the box, the appellant and Woods proceeded to launch the case into space after preliminaries that were quite unnecessary but which were calculated to give to the case considerable impetus and, at the same time, to introduce some degree of risk. I confess that I am unable to see that any such risk was involved in the task which they were asked to perform provided that it was performed, as it should have been, in a reasonably sensible and careful manner. There was not the slightest reason for employing the extraordinary procedure which was employed nor, it should be said, why the foreman should for a moment have contemplated that it would be employed. In effect it may, therefore, be concluded that the task assigned to the appellant and Woods did not involve any real risk of injury even if carried out with some reasonably foreseeable degree of inadvertence or thoughtlessness; the accident occurred because of the quite extraordinary and unnecessary method in which the two employees proceeded to carry out a perfectly simple task.”

62 In O’Connor v Commissioner of Government Transport (1954) 100 CLR 225 an experienced plumber employed by the defendant fell through an awning which was affected by dry rot. Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said at 229-30:

“This conclusion seems inevitable. The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.

But the party was provided with trestles and plank and nothing was wanting in tools or equipment. The deceased was experienced in his work. It was obvious that a question must exist whether the awning would bear his weight. The party sent down was as ‘expert’ or competent to judge of that simple subject as anybody that could reasonably be sent. Doubtless Blyton, who told the deceased to go, thought that he would work on the roof, but it was left to the deceased and the rest of the party to do the job as they thought fit. Blyton was only the leading plumber and when he sent the deceased as the next man he was not directing him how he must perform the work. It simply meant that it was what he himself would do, and without further thought he spoke accordingly. In such a simple matter who else should be left to judge? Does the reasonable care demanded of the employer require him to cause a scientific or other elaborate examination to be made of the strength of the structure lest the working plumber may decide to trust himself to it rather than work from a plank or trestles? If, as the jury may be taken to have found, the dry rot was the cause of the awning failing under the deceased’s weight, the presence of the dry rot was as easily ascertained by the deceased as by anybody however skilled. The standard of care for an employee’s safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable. The case is not one of a defect in premises provided by the employer as the place where the employee is to do his work. The awning was the very thing to be worked at. There were the means at hand of doing the work required without mounting the structure. It was an ordinary question for a plumber to decide for himself how he would do the work. Obviously any experienced plumber would see that there must be a question whether a structure like the awning supported not by posts but by brackets was strong enough to bear his weight as he dismantled it. It was not made for that purpose and neither the deceased nor any of his companions can be supposed to have thought that it had been specially tested to see if it was strong enough. It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”

63 Of these two cases, Glass, McHugh and Douglas, The Liability of Employees in Damages for Personal Injury (2nd ed 1979) pp 45-6 said that they laid down:

“an important principle in limitation of the employer’s liability. …

An area is marked out within which the employer’s duty to provide a safe system of work is inoperative. It would appear that the immunity of the employer will be limited to isolated operations of no complexity outside the normal system or simple uncomplicated operations within it. It is not likely that the principle will undergo much further elucidation as scope for its operation is essentially a matter of degree depending upon the nature of the industrial activity. The only unifying principle available is the power of the court to hold that on the evidence in the particular case it would be beyond all reason to find an employer in breach of duty for failure to take certain specified steps. The impossibility of further definition is due not only to the inutility of classifying industrial tasks, but also the fact that what can reasonably be expected of industry by way of safety precautions is a developing concept.”

Conclusion in relation to the plaintiff’s submissions

64 In evaluating the plaintiff’s submission set out above, it is necessary, as the submission contemplates, to put aside “the obvious likelihood that [he] in circumstances of time pressure might reach from the top of the ladder to left and to right in order to save time”. That must be done for the reasons set out above. There was no evidence or finding that time pressure was affecting the precise way the plaintiff was operating. That leaves three points in the plaintiff’s submissions.

65 The first is that the defendant put the plaintiff in a position of working at such a height as to pose an obvious risk of falling. In my opinion the risk was, for persons experienced in that type of work, far from obvious. It does not follow from the fact that Mr Smink thought it dangerous to ascend the ladder that there was an obvious risk for the plaintiff in doing so.

66 The plaintiff’s second point was that there is a low threshold involved in foreseeability and that the Master misunderstood this. The defendant referred to Wyong Shire Council v Shirt (1980) 146 CLR 40; Nagle v Rotnest Island Authority (1993) 177 CLR 423; Modbury Triangle Shopping Centre v Anzil (2000) 75 ALJR 164. It is true that Glass JA in the Court of Appeal in Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641 famously described foreseeability as an “undemanding” test. In many areas it may be, at least as the law stands now. But it has a different and more demanding operation where simple uncomplicated operations by an employee within the normal system of work are concerned, for the reasons explained in Smith’s case, O’Connor’s case and Glass JA’s book. The position cannot be different for independent contractors: Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 at 31. The authorities relied on by the plaintiff deal with areas distinct from the question whether a system of work in which an experienced plaintiff is operating is safe.

67 The third point made by the plaintiff is that the findings of fact referred to in Ground 2 contradict the Master’s conclusion that there was no foreseeability.

68 The first of the allegedly contradictory findings of fact was, in para [34], expressed thus:

“there was a risk arising from the nature of the work and there was some need for co-ordination by the defendant in relation to the delivery of the decorations.”

Stevens v Brodribb Saw Milling Co Pty Ltd

Brodribb

69 The second passage on which the plaintiff relies as contradicting the finding on foreseeability is at para [51]:

“It may be accepted that a risk of injury attaches in respect of any person who had to go on to work at height in order to install Christmas decorations. It follows from the circumstances that such a person is expected to work at a height [such that] he had to use a ladder.”

“So far as these particulars relate to fault directly attributable to the defendant they depend upon there having been a personal duty of care reposed in it to exercise reasonable care to protect the plaintiff from foreseeable risk of injury, which called on it to ensure that they took adequate precautions for the plaintiff’s safety while he carried out his visual display work. It may be accepted that a risk of injury attaches in respect of any person who had to go on to work at height in order to install Christmas decorations. It follows from the circumstances that such a person is expected to work at a height [such that] he had to use a ladder. For the security and soundness of the ladder he had to rely upon the defendant.”

70 The third allegedly contradictory passage relied upon by the plaintiff is from para [69]:

“It is my view that a mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk.”

71 In oral argument counsel for the plaintiff put the plaintiff’s case in the following forceful way:

“if a man is standing half way up a ladder then of course he has the benefit of hand holds, mainly the rest of the ladder. If he is standing at the top of a ladder which is leaning against a wall then he presumably may get some hand holds on the wall or some part of the structure but when he’s got a ladder that’s standing out in the open like a pyramid and he’s perched at the top of it and he has no point of stability beyond such as may be obtained by resting his shins against the top of the ladder we would say that it is plainly reasonably foreseeable that he’s at risk of falling off and seriously damaging himself.”

72 The answer to this argument is that while it may be reasonably foreseeable that many men in that position would fall off, the plaintiff was a skilled workman experienced in this type of repetitive work. In 1993 the plaintiff had set up a freelance decorating business, and most of the work it did was for the defendant. From 1993 to 1996 the plaintiff had done freelance work for the defendant on an extensive basis – as he said in chief, it was “a fairly long association”. The September-February period each year was very busy, but not the rest of the year. The plaintiff had worked at the Imperial Arcade for the defendant two years before the accident. In September-October 1996 the officers of the defendant went to some trouble to secure the plaintiff’s services. Not only had the plaintiff done work of this kind before for years without mishap, he had done it on that earlier occasion at the Imperial Arcade, and he did it on this occasion without mishap until he fell. The defendant could not reasonably foresee that he would fall, because the defendant was entitled to assume that he would identify any risk of falling and take measures to prevent that risk from arising if he did. For the defendant it was not reasonably foreseeable that the plaintiff would come to harm because of the skill it had detected in him during their earlier association – which skill the defendant had gone to considerable lengths to acquire on this occasion - and because of his experience, and hence his capacity to perceive any possible risks and his capacity to devise methods of negating them by not leaning too far to the right or left, moving the ladder appropriately, and having it held by Mr Smink or someone else if necessary.

73 Notwithstanding the risks as described in the argument of counsel for the plaintiff, the Master did find that any risk could have been acceptably obviated by asking another person to hold the ladder (which the plaintiff did not do) or moving it more frequently. Counsel for the plaintiff challenged the conclusion that the plaintiff did not give that direction, but it was a reasonable inference from the fact that no-one was in fact holding the ladder. Counsel for the plaintiff did not challenge the balance of the Master’s reasoning on this point.

74 A primary difficulty in the plaintiff’s position goes beyond the fact that he ought to have perceived the dangers in working very high on the ladder because of his experience in that type of work and on the very site of his injury, and beyond the fact that it would have been reasonable for the defendant to assume that he, as a skilled and experienced contractor in that line of work, would have perceived and guarded against those dangers. The fact that the higher up a ladder one moves the more care one must take for one’s own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult’s capacity. Mr Smink felt that for him it was risky to climb the ladder. The plaintiff did not. But Mr Smink was a backpacker from Holland working in Australia, not a skilled and experienced specialist. In view of the interposition of the judgment of the workmen between the task which the defendant had engaged them for and any risk of injury, the risk of injury was not reasonably foreseeable.

75 Grounds 2 and 3 fail.

Grounds 4 and 5: breach of duty of care

76 Ground 4 is:

“The learned Master erred in defining the scope of the duty owed by the Opponent to the Claimant (para 65) in terms only of the hypothetical expectations of the Opponent as to the Claimant’s conduct

(a) generally, and

(b) without adverting to her findings that

· ‘the plaintiff was under time constraints and (had) the responsibility to ensure that the job was completed by the end of the day’ (para 62)

· ‘the plaintiff was working to a height 4.8 metres from the ground’ (para 53)

· ‘the plaintiff fell because he was standing on the second top step of the ladder while reaching overhead and outwards at full stretch to put a hook in the slotted part of the awning. He overbalanced.’ (para 50)”

“The learned Master erred in that, having found (paras 34 and 51) the Opponent owed the Claimant a duty to take reasonable care for his safety she did not define the scope of that duty (see para 52), and held (para 65) without reasons or without adequate reasons that the Opponent did not breach that duty of care.”

77 The plaintiff submitted:

“The learned Master appears to have accepted that much the same duty existed between the parties whether the relationship was one of employee or independent contractor – paragraphs 33 and 34. She found that the Respondent had a legal obligation to provide the Appellant with a safe system of work. Insofar as the Master dealt with content of that duty, she found

‘a personal duty of care reposed in it to exercise reasonable care to protect the plaintiff from foreseeable risk of injury, which called on it to ensure that they took adequate precautions for the plaintiff’s safety while he carried out his … work’ (para 51).

The learned Master went on

The learned Master found

‘a reasonable person in the defendant’s position would not have foreseen that there was a risk of injury to the plaintiff … the defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady. Accordingly as the defendant did not breach the duty of care it owed to the plaintiff the plaintiff’s claim in negligence fails’ (para 65).

It is submitted that the learned Master has conflated questions of foreseeability and breach of duty. Her finding of absence of foreseeability is the subject of grounds 2 and 3. As to breach of duty of care, it is submitted that a proper analysis of the issues involved would have identified an obligation on the part of the Respondent to take reasonable care to avoid harm to the Appellant from dangers of which it was aware or ought to have been aware. The scope of that duty would include the provision of a safe base from which to carry out work.

Had the learned Master correctly identified the relevant duty, it is submitted that the factual findings she made demonstrate that a breach of that duty, causally connected with the Appellant’s injuries, had been established.

The factual findings made by the learned Master include

· There was a risk arising from the nature of the work and there was some need for co-ordination by the defendant (para 34).

· The relevant ladder was a 12 foot aluminium ladder with steps on one side which belonged to the defendant (para 40).

· To perform the task hooks were required to be inserted (para 41).

· To carry out the work the plaintiff placed his feet on the next rung down from the top, reaching up full stretch with one arm and leaning forward (42).

· After inserting a number of hooks the plaintiff would descend the ladder and move it (42).

· To reach full stretch he could only use one side of his body, using one hand to clip the hook in (42).

· The plaintiff fell because he was standing on the second top step of the ladder while reaching overhead and outwards at full stretch to put a hook in… He overbalanced and fell (50).

· The plaintiff had been working to a height of 4.8m from the ground (53).

· The plaintiff was working under some considerable time pressure (58, 62).

· [The] plaintiff had been provided with an unskilled inexperienced work team (58).

· [The] plaintiff had the responsibility to ensure the job was completed by the end of the day (62).

· The plaintiff, in a precarious position, overreached (64).

· A mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk (69).

· No conduct on the part of the plaintiff makes him at all responsible for the damage in the sense that he departed from the standard of care of the reasonable man (70).

· The plaintiff was trying to meet the deadline (71).”

78 So far as these submissions overlap with those advanced in relation to Grounds 2 and 3 (foreseeability), they fail for the same reasons.

79 So far as the submissions contend that there was no proper analysis of the issues involved in relation to breach of a duty of care, they rest on what Kirby J said in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [115]. He said:

Nagle

1. Is a duty of care established? (The duty of care issue.)

2. If so, what is the measure or scope of that duty in the circumstances? (The scope of duty issue.)

3. Has it been proved that the defendant is in breach of the duty so defined? (The breach issue.)

4. If so, was the breach the cause of the plaintiff’s damage? (The causation issue.)

5. (Where relevant.) Were the defaults alleged on the part of the public authority within the area of the authority’s legitimate discretion on questions of policy and allocation of resources so that there was no duty of care owed to the plaintiff? Or was any suggested breach a matter left by law to the authority whose decision the courts would respect and uphold against the plaintiff’s complaints? (The policy/operations issue.)

6. (Where relevant.) Has contributory negligence on the part of the plaintiff been proved and, if so, with what consequence? (The contributory negligence issue.)”

80 He also said at [117]:

Pyrenees Shire Council v Day

Caparo Plc v Dickman

1. Whether it was reasonably foreseeable to the alleged wrongdoer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position;

2. Whether there exists between the alleged wrong-doer and such person a relationship characterized by the law as one of ‘proximity’ or ‘neighbourhood’; and

3. Whether it is fair, just and reasonable that the law should impose a duty of a given scope on the alleged wrong-doer for the benefit of such person.”

81 There are two difficulties about relying upon Kirby J’s reasoning. First, it is not supported by a majority of the High Court: Sullivan v Moody (2001) 183 ALR 404 at [49]. The second is that, in particular, the process of locating a duty stated by Kirby J does not appear to be shared by the rest of the High Court. They saw it as a necessary but not sufficient condition for the existence of a duty. Here the Master found that it was not reasonably foreseeable to the defendant that its conduct would be likely to cause harm to the particular plaintiff in view of his experience and skill. The plaintiff’s attack upon that proposition has already been rejected.

82 Though the plaintiff criticises the Master for failing adequately to define the duty resting on the defendant, his own formulation is that the defendant had a duty to take reasonable care to avoid harm to the plaintiff from dangers of which it was aware or ought to have been aware. The plaintiff also submitted that the scope of the duty included the provision of a safe base from which to carry out work. The base – the ladder – was in itself safe. If there were any unsafeness, it proceeded only from the way in which the plaintiff used the ladder. The defendant was entitled to rely on the plaintiff, with his skill and experience, to use the ladder in a manner so as not to cause him injury.

83 The supposed factual findings relied on by the plaintiff are to some extent not supported by the evidence: see the analysis above of the question of how far it can be said that the plaintiff’s behaviour was governed by time pressure. Some of the factual findings are irrelevant: the lack of skill or experience on the part of the plaintiff’s team had nothing to do with the accident. The proposition that a mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk begs the question of whether it was necessary for the defendant to embark on that response. It is a fallacious reading of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 to conclude that it holds that if the risk of injury is reasonably foreseeable and removal of that risk by simple and cheap measures is possible but not undertaken, there is a breach of duty. Mason J left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures: Council of the Municipality of Waverley v Lodge [2001] NSWCA 439 at [29]. The second last finding is not a finding, but a statement of the plaintiff’s submission below. The surviving findings do not support the conclusion that the defendant was in breach of duty.

84 The preferred position of both the plaintiff and the defendant during the oral argument of the appeal was that, despite the want of evidence for the proposition, the Master’s view that the plaintiff had reached outside the stile area of the ladder and that this was the cause of the fall, was a sound explanation of it. If so, that was a voluntary choice made by the plaintiff, and the fall did not result from any flaw in either the equipment or the system of work being operated. The contest between the parties at the trial did not turn on the precise height the plaintiff was at, but on whether Dr Adams was right that the system was flawed and that the plaintiff should have been supplied with a cherry picker, or a mobile scaffolding unit, or trestles, planks and steel railings, or a different type of ladder. Dr Olsen’s competing view was that the ladder actually supplied was satisfactory if used properly. If it had been used properly, the cause of the fall was unexplained, with a consequential impact on the case of the plaintiff, who bore the onus. If the cause of the fall stemmed from the plaintiff moving his body mass outside the stile area, the ladder had not been used properly by the plaintiff, who was thus the author of his own misfortune. In para [61] the Master in effect found that to lean sideways was to fail to take a rudimentary safety precaution, which the defendant could reasonably assume would have been taken. No error has been demonstrated in that view.

85 The plaintiff relied on Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135. That case is distinguishable. It is not clear whether the experience of the plaintiff there matched that of the plaintiff here. The plaintiff there was an electrician working all over the premises, though he fell from the ceiling; the plaintiff here was experienced at doing the single and repetitive thing he was doing when he fell. There was pressure there, but not here, for work to be done “at great speed”, “in a hurry and for extended hours”. The circumstances there called for a co-ordination of activity between trades, but not here. That case involved the plaintiff working continuously on a narrow beam, not moving up and down a ladder repetitively, as the present plaintiff had often done before. And that case involved the plaintiff moving about surfaces he was entitled to expect to be safe but which were not, whereas this case involved working on an inherently stable and sound ladder in a manner which might involve danger, depending on the user’s perception, depending on the extent to which the user judged that particular safety measures were not necessary, and depending on the extent to which the user employed proper safety measures.

86 Grounds 4 and 5 fail.

Ground 6: contributory negligence

87 This ground was amended pursuant to leave to which the defendant consented. There is no need to deal with this ground in view of the fact that the plaintiff’s arguments that a tort, other than the tort of breach of statutory duty which is yet to be considered, was committed against him, have failed.

Ground 12: breach of statutory duty

88 This ground was:

“The Appellant’s accident having occurred in circumstances in which Regulation 73 of the Construction Safety Regulations 1950 (NSW) applied, and the factual circumstances not in issue demonstrating a breach of the obligation cast upon the Respondent by that Regulation a verdict without deduction for contributory negligence ought to be entered for the Appellant.”

89 Regulation 73 provides:

“Any person who directly or by his servants or agents carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work and for this purpose without limiting the generality of the foregoing, he shall subject to Regulation 74 -

…

(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m … .”

90 Regulation 74(1) provides:

“Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold the person in charge of the construction work shall provide:

(a) a safety line or safety harness and safety line complying with the requirements of AS 1891 for the use of that person; or

(b) a safety net complying with the requirements of BS 3913 while the work is being carried out.”

91 The defendant opposed leave being granted to the plaintiff to rely on this ground. It submitted that if the issue had been raised at the trial, its case would have been conducted differently in that the new ground could possibly have been met by calling evidence, and for that reason leave should be refused.

92 The plaintiff’s argument was that whatever the relationship between the parties, the defendant was in breach of its statutory duty under Regulation 73. He submitted:

that the Plaintiff’s feet would have been approximately 2.7m above the pavement

Iskra v Adar Electronics Pty Ltd

Vabu

All the facts necessary for determination of the question were adduced and proved at trial and no new fact is sought to be or needs to be raised.’

Vabu

“1. Plaintiff fell off a ladder. …

49. Plaintiff used Defendant’s 12’ aluminium ladder. …

55. Plaintiff climbed ladder to next rung from the top to affix hooks into roof. …

67. Plaintiff had been working to a height of 4.8 m from the ground. …

69. Plaintiff had responsibility to ensure job [completed] by the end of the day. …”

93 The defendant relied on the following chronology of events.

94 On 1 September 1998 Dr Adams signed his first report. He said that if the plaintiff was on the second step of “the 3m stepladder”, his feet would have been 2.7 metres above the ground.

95 On 14 May 1999 Dr Olsen provided his first report. He assumed that the ladder height in working position was 3.34 metres, that there were eleven steps, and that the spacing between each step was 300 millimetres. He drew a plan, Figure 1, with a man of the plaintiff’s height, 1.83 metres. He said:

“Given that firstly it would be necessary to have clear headspace under the awning, it would not be possible for the plaintiff to be standing on a step above the fourth step from the top. This is clearly seen in Figure 1. Alternatively given that the plaintiff recollects clearly reaching above height it would also not be possible for him to stand above the fourth step from the top even if the ladder was placed outside of the alignment of the awning, so that head height was not restricted by the awning.

I formed the view that the ladder supplied was suitable in the circumstances and that the description given by Dr Adams does not add up to the physical circumstances and therefore it would appear that Dr Adams has been provided with inaccurate data.”

96 On 6 August 1999 Dr Adams provided a further report, commenting on Dr Olsen’s. In it he said:

“I acknowledge that there was a minor error in my report in respect of the height at which Mr Van-Der Sluice was standing on the ladder. It is obvious that if he was attaching hooks and decorations at a height of about 4m and was reaching overhead to do so, then his feet would not have been at a height of more than about 2m above the pavement rather than the 2.7m which I had mistakenly assumed in my original report.”

97 On 21 December 1999 Dr Olsen provided another report commenting on Dr Adams’ second report. He said:

“I do not agree with the conclusions made by Dr Adams. I repeat that it would not be possible to stand on a 12 ft ladder with the shin resting against the top platform.”

98 Dr Adams gave oral evidence on 13 June 2000. In chief he said:

“Q. At that time did you carry out any measurements of the height of the various levels of the ceiling of the Imperial Arcade at the point where the accident was said to have occurred?

A. Yes, I made some measurements but I have since discovered my measurement may have been in error.

Q. What measurement was that?

A. I had measured the height at which the decorations were being attached as up to approximately four metres. I have since measured again, although, of course, the arch formation has been demolished but, measuring to the underside of the concrete ceiling within the arcade and outside which and above which the arch was installed, I obtained a measurement of 4.8 metres. I suspect in my measurements I lost one metre, the reason being it is impossible to measure with a steel tape vertically to the ground. I simply lost a metre.

Q. Your subsequent measurements, even though the front of the arcade has since been demolished, it is 4.8 metres to the concrete slab inside the arcade?

A. That is right.”

99 The defendant submitted that because Dr Adams referred to 1.8 metres in his oral evidence as raising a “need for proper protection”, it must have been in the minds of the plaintiff’s advisers that a statutory count could have been pursued. The plaintiff’s solicitor has filed an affidavit negating this submission and that evidence should be accepted. But the crucial question is not whether the plaintiff’s advisers thought of Regulation 73(3) and rejected it, but whether it can be said that reliance on it could possibly have been met by evidence at the trial. The defendant submitted:

“Had the statutory count now sought to be relied on been the subject of an application to amend, and had it been permitted, it is clear that the respondent/defendant could, should and would have done many things that might have led to a very different corpus of evidence relevant to the statutory count, such as:

(a) investigated with some care the history of the now altered façade of the Imperial Arcade;

(b) engaged engineers and architects to investigate the issue of height;

who completed the work using the equipment and the system that the plaintiff employed

(d) considered calling other evidence (for example, Matthew Shaw – Black Book 339L).”

100 The plaintiff submitted:

“It is true that there was a difference of views on the accuracy of assumed or calculated assumptions. The [defendant’s] expert [Dr Olsen] opined (Blue Book 375/O) that

it would not be possible for the plaintiff to be standing on a step above the fourth step from the top.’

greater

Dr Olsen was instructed that the ladder was 3.34m, (Black Book 374/U) and [he] has used that figure in [his] scale diagram. Dr Olsen’s scale diagram (Black Book 384) depicts the [plaintiff] standing (4 x 300mm) below a height datum of 3.34m, ie, 2.14 above the ground.

Evidence on the Subject

roughly 12 foot

Dr Adams in his initial report assumed the ladder to be 3m long. In the absence of the ladder he calculated this from his measured height to the ceiling the [plaintiff’s] height, and the [plaintiff’s] stated position on the ladder. As the [plaintiff] was on the second step he calculated that the [plaintiff] was standing 2.7m above the ground.

unduly conservative

Dr Adams observed in cross-examination

I did not regard the questions of height as being as crucial as the system of work using a ladder for a task that involved stretching and reaching. Once you are above 1.8 metres there is the need for proper protection and the probability of significant injury if a fall does occur. Once the height is above 1.8 metres, although I would certainly prefer to have been accurate, I did not regard it as the crucial determinative of the probability of injury, or the actual nature of the injury

He also stated (Black Book 266/Q) that the original inference that the ladder was

no more than 3m

was a calculation from a height of the ceiling, the height of the [plaintiff] and the [plaintiff’s] statement that he was working from the step below the apex of the ladder (Black Book 267/E). It was the remeasurement of the ceiling height, he said, which rendered the 2.7m assessment of height unduly conservative.

‘Had I measured the height correctly initially I would have assumed a higher ladder than three metres

fairly definite

Of the [appellant’s] other witnesses, only Mr Timothy Clarkson gave evidence relating to the ladder (Black Book 2/338/B). His description of the ladder as a double-sided ladder does not match that described by the [plaintiff] and assumed by Drs Adams and Olsen. He was unable to recall the height to which he ascended to complete the work, but he too found it necessary to raise his arms above his head (Black Book 340/M-B). Cross-examination established that he had said to the police the ladder was an A frame 12’ ladder (Black Book 347/D).

Neither Dr Olsen nor Mr Smink was called.”

101 So far as Dr Olsen is concerned, the correct position is that counsel who appeared for the plaintiff at the trial did not require him for cross-examination.

102 Even though Dr Olsen placed the plaintiff at 2.14 metres above the ground, there is considerable force in the defendant’s arguments. To them might be added the fact that counsel for the defendant at the trial put to the plaintiff in cross-examination only one question suggesting he was on the fourth step, not the second. Counsel for the defendant assured this Court, and there is of course no reason to doubt, that he cross-examined in that way on instructions. Because of the difficulty of meeting a statutory count based on Regulation 73(3), it is very likely that counsel for the defendant would have cross-examined at much more length if the 1.8 metre question had been relevant. The fact that counsel for the defendant did not cross-examine the plaintiff about the length of the ladder also favours the defendant’s contention, not the plaintiff’s contention.

103 Further, if the 1.8 metre figure had been crucial, it may be presumed that a greater attempt to isolate the precise ladder might have been made.

104 So far as there was agreement that the plaintiff was more than 1.8 metres above the ground, it was an agreement arrived at without any specific attention to the issue or any appreciation of its potentially decisive significance. For the case run at the trial, the precise height did not matter. For the statutory count case, it is crucial.

105 For these reasons leave to rely on Ground 12 should be refused. Accordingly, it is not necessary to consider particular issues which arose in relation to Regulation 73(3) during oral argument.

Damages grounds

106 In the circumstances it is not necessary to deal with these grounds.

Orders

107 The following orders are proposed.

1. The appeal is dismissed.

108 FOSTER AJA: I agree with Heydon JA.

**********

Citations

Van der Sluice v Display Craft Pty ltd [2002] NSWCA 204

Most Recent Citation

Cases Citing This Decision

120

Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16

Kirk and Anor v Industrial Relations Commission of NSW and Anor [2009] HCATrans 237

Cases Cited

15

Statutory Material Cited

0

O'Connor v Commissioner for Government Transport [1954] HCA 11

Connor v Commissioner of Police [2023] QDC 235

Vairy v Wyong Shire Council [2005] HCA 62

Actions

Download as PDF Download as Word Document

CITATION:	Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
FILE NUMBER(S):	CA 40594/01
HEARING DATE(S):	23 April 2002
JUDGMENT DATE:	9 July 2002
PARTIES :	Benjamin Van Der Sluice (Appellant) Display Craft Pty Ltd (Respondent)
JUDGMENT OF:	Meagher JA at 1; Heydon JA at 2; Foster AJA at 108

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 20959/97
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL:	Mr R J Burbidge QC/Mr H J Marshall (Appellant) Mr J E Maconachie QC/Mr D Doak (Respondent)
SOLICITORS:	Beilby Poulden Costello (Appellant) P W Turk & Associates (Respondent)
CATCHWORDS:	Tort - negligence - personal injury - employer's liability - independent contractor -fall from ladder in course of work - reasonable foreseeability - duty of care - breach - relevance of plaintiff's experience - Contract - implied term - contractual duty of care - Tort - breach of statutory duty - sufficiency of evidence to support claim of - D
CASES CITED:	Council of the Municipality of Waverley v Lodge [2001] NSWCA 439 Modbury Triangle Shopping Centre v Anzil (2000) 75 ALJR 164 Nagle v Rotnest Island Authority (1993) 177 CLR 423 O'Connor v Commissioner of Government Transport (1954) 100 CLR 225 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337 Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 Sullivan v Moody (2001) 183 ALR 404 Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135 Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	Appeal dismissed; appellant to pay respondent's costs