Ward v Butler T/as GUTTERSHIELD Australia - [2015] WADC 66

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WARD -v- BUTLER T/as GUTTERSHIELD AUSTRALIA [2015] WADC 66

CORAM: SWEENEY DCJ

HEARD: 24-28 FEBRUARY 2014

DELIVERED : 5 JUNE 2015

FILE NO/S: CIV BUN 31 of 2010

BETWEEN: ROBERT PRESTON WARD
Plaintiff
AND
TREVOR JOHN BUTLER T/as GUTTERSHIELD AUSTRALIA
Second defendant
MONGER HOUSE PTY LTD
Third party

Catchwords:

Personal injuries - Duty of care - Breach of duty of care - No contributory negligence - Claim for contribution against joint tortfeasor - Effect of settlement - Turns on its own facts

Legislation:

Nil

Result:

Judgment for the plaintiff on the issue of liability
Second defendant's third party notice dismissed

Representation:

Counsel:

Plaintiff:     Mr D R Clyne
Second defendant         :     In person
Third party                  :     Mr A P Hershowitz

Solicitors:

Plaintiff:     Michael J Joubert
Second defendant         :     Not applicable
Third party                  :     SRB Legal

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

James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53
J-Corp Pty Ltd v Pannell Kerr Foster (A Firm) [2007] WASC 122
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
McLean v Tedman [1984] HCA 60; (1984) 56 ALR 359
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79
Ward v Keet [No 4] [2010] WASC 268
Ward v Monger House Pty Ltd [2012] WADC 161

SWEENEY DCJ:

Introduction

In March 2005 Trevor Butler (the defendant) was contacted by Mark Butler (no relation) to fix the roof at Monger House in West Perth. Monger House consisted of the original cottage built in 1838, now heritage listed, and the 1923 two-storey extension which added boarding house facilities, including at least 40 single rooms, directly behind the cottage.
It accommodated mostly male boarders, who were elderly, or down on their luck for some reason. The accommodation was very basic and the boarders provided their own bedding. One assumes the board charged was correspondingly low. At the time of the trial before me some nine years later, Robert Ward (the plaintiff) and his two witnesses were all in prison for various reasons. Back in 2005 they were dealing with various issues in their lives. The plaintiff had no steady employment.
The owners of Monger House had apparently just purchased it with the idea of converting it into apartments. Amongst other things that needed to be attended to, the roof on the boarding house was still in its original state from 1923. As the defendant testified, the owners wanted it to continue as a working hostel during the period of the renovations. While the defendant and his crew set about replacing 1,400 old tin roof sheets, Mark Butler of Monger House was actively involved in stripping down the rooms one by one and re‑painting them.
Whether the desire to keep the boarding house running during renovations was for the sake of the current tenants, or for the sake of earning income during the renovations, is unknown to me. But one only needs to contemplate, for a moment, the logistical challenge of managing the renovations, while continuing to accommodate 40-odd tenants coming and going during the day and using the building facilities, to appreciate the risks involved.
On 17 May 2005, as the defendant and his crew were engaged in replacing tin sheets on the roof, the plaintiff was standing in the courtyard having a drink. A sheet of tin fell from the roof, into the courtyard. It lodged in the large clothes line below, but one of its edges also struck the plaintiff to the back of the neck, wounding him and causing immediate copious bleeding. An ambulance was called.
The scope of the trial before me nine years later in February 2014 was to determine the issue of liability only between the plaintiff and the defendant and the issue of liability between the defendant and Monger House Pty Ltd, the company which owned Monger House, which the defendant had served with a third party notice.
Paraphrasing from the pleadings, the plaintiff alleges the defendant was negligent in that he:
(a)Carried out roofing repairs to Monger House at a time and in a manner which created a potential danger to the plaintiff and others residing at or visiting Monger House;
(b)Failed to erect barricades to prevent access to the areas of the works;
(c)Failed to secure the roof sheets on the roof, or install suitable safety devices, or otherwise prevent the new or old roof sheets from falling from the roof;
(d)Failed to prevent the roof sheets from being thrown from the roof without first ensuring it was safe to do so; and
(e)Failed to warn the plaintiff and others of the danger from above created by the roofing repairs.
At trial, the plaintiff really pitched his case with particular emphasis on the matters alleged in (b) and (e).
The defendant raises five points in defence. Firstly, he submits that, by reason of a settlement agreement reached between the plaintiff and Monger House Pty Ltd in late April 2012, whereby the plaintiff agreed that he would not bring any other claim or proceeding against Monger House Pty Ltd or anyone else connected with the dispute, the plaintiff is now barred from proceeding against him.
Second, he asserts that the management of Monger House took all reasonable steps to warn the boarders of the risks by verbal warnings and written notices placed over all potential legal access points to the works and by locking the access doors, and that he maintained a physical presence in the only available access to the area where the plaintiff was injured. He says he relied upon the assurances of the management of Monger House that they would do as they had promised.
Third, he says he took all reasonable safety precautions to carry out the works so as to prevent the roof sheets escaping before being affixed to the roof.
Fourth, he asserts that the plaintiff was a trespasser unlawfully on the premises at Monger House at the time of the accident, having been previously evicted, and hence it was wholly unforeseeable that he would be struck by a roof sheet.
Finally, he asserts the plaintiff caused or contributed to his own injury by failing to heed the warnings he was given, ignoring barricading of the area, gaining access by some unlawful means while knowing works were being undertaken and remaining in the area knowing works were being undertaken there.
There is no pleading relying upon s 5N of the Civil Liability Act 2002 to the effect that there was no obligation to warn against an obvious risk, and the defendant's case was based upon an assertion that the boarders had been warned of the risks. Nevertheless I have incidentally considered issues of the obviousness of the risk when considering the issue of contributory negligence.
The defendant has also joined Monger House Pty Ltd to the action as a third party, essentially alleging that the management at Monger House failed to keep their end of the bargain to ensure the boarders would be kept away from the works. He seeks an indemnity or contribution from Monger House Pty Ltd pursuant to the Law Reform (Contributory Negligence and Tortfeasors Contribution Act 1947 (WA). In defence, Monger House Pty Ltd pleads that the plaintiff's original claim against it was dismissed by a consent order of this court and pleads that order as a bar to the defendant's claim against it for contribution. It otherwise took no active role in the trial.
The defendant was unrepresented at trial. Unfortunately he seemed to have proceeded on the incorrect assumptions (notwithstanding having received standard information from the court concerning the conduct of the trial) that the other parties, or the court itself, would have arranged for witnesses from Monger House Pty Ltd and the WorkSafe inspector who investigated the accident to testify at trial, and, further, that the WorkSafe inspector's opinions and findings and the interviews he conducted would all be evidence before the court.
The defendant was informed that the inspector's personal opinions (which were concerned with whether or not any prosecution should be laid) would not determine the issues before the court and that his report and witness interviews (which had been disclosed) would also not be before the court, apart from certain photographs which were to be tendered through the plaintiff and his witnesses. The defendant was aware he could use the plaintiff's statement to WorkSafe for the purposes of cross‑examination and did so. The defendant was also alerted to the possibility of requesting an adjournment if there were witnesses he wished to arrange, but made no application to adjourn the trial.
Consequently the evidence before the court was limited to the plaintiff and his two witnesses, both boarders at Monger House, and the defendant himself, who was not working on the roof at the time the sheet fell. No witness from the management of Monger House Pty Ltd testified and the defendant could only give limited evidence of his arrangement with them and his limited observations of their conduct. This court can only determine a case on the evidence put before it and quite a number of matters were put to the plaintiff and his witnesses in cross‑examination which were denied and were not then the subject of any evidence. The fact that a proposition is put does not constitute evidence of the proposition being put, unless the witness agrees with it.
I will deal firstly with the implications of the settlement agreement reached between the plaintiff and Monger House Pty Ltd and the subsequent dismissal of the claim against that company, before turning to the plaintiff's claim against the defendant.

The settlement between the plaintiff and Monger House Pty Ltd

It is necessary to have some regard to the background of the legal proceedings in order to objectively construe the effect of the agreement reached between the plaintiff and Monger House Pty Ltd.
The plaintiff commenced proceedings in December 2010 against both Monger House Pty Ltd and the defendant. Both duly entered an appearance. The defendant failed, however, to file his defence and, on 8 April 2011, the plaintiff entered default judgment against him for an unliquidated sum. Eventually a trial date was set for July 2012, for a determination of all of the issues as against Monger House Pty Ltd, and for an assessment of damages only as against the defendant.
Prior to that trial, in late April 2012, the plaintiff and Monger House Pty Ltd reached a settlement agreement. It is apparent that the defendant played no part in that agreement and was unaware of it.
The terms of the settlement were contained in an undated 'Settlement Agreement and Release' as follows (Monger House Pty Ltd is defined as the Defendant):
WHEREAS
1.The Plaintiff issued a District Court action bearing number 31 of 2010 out of the Bunbury District Court ('the action');
2.The Defendant defended the action and denied liability for the Plaintiff's claim being made pursuant to the action ('the dispute');
3.The parties have agreed to settle the dispute and the action on a without prejudice and without admission of liability basis on the terms and conditions contained in this agreement.
OPERATIVE PART
1.The Defendant shall pay the Plaintiff the sum of $60,000 inclusive of $10,000 costs ('the settlement sum') in full and final settlement of the action and the dispute;
2.The Plaintiff accepts the settlement sum in full and final settlement of the action and the dispute;
3.The parties agree that this agreement can be pleaded as a bar to any further action which may be instituted or pursued for and on behalf of the Plaintiff or the Defendant in relation to the action and the dispute;
4.The settlement agreement is binding on all parties notwithstanding that it is only signed by and on behalf of the Plaintiff;
5.Upon payment of the settlement sum the Plaintiff:
5.1releases and forever discharges the Defendant from and against any liability in respect of the action and dispute;
5.2will not bring any other claim or proceeding against the Defendant or anyone else that is in any way connected with the action or the dispute.
6.The agreement is governed by the laws of Western Australia.
On 7 May 2012 the court made consent orders dismissing the plaintiff's claim against Monger House Pty Ltd. Thereafter, the matter was to proceed against the defendant only, and only for an assessment of damages.
In July 2012, the court wrote to the defendant regarding the impending trial. That letter effectively prompted an ultimately successful application to set aside the default judgment entered against the defendant: Ward v Monger House Pty Ltd [2012] WADC 161.
The defendant submits that the plaintiff is now barred from pursuing these proceedings against him by virtue of the settlement reached with Monger House Pty Ltd.
I reject that submission.
The starting point is the doctrine of privity of contract, to the effect that only parties to a contract are bound by its obligations and can benefit from its terms: see Cheshire & Fifoot Law of Contract (10th Aust ed 2012 Nexis Lexis Butterworths) at [7.1].
Monger House Pty Ltd was a named party to the contract and agreed to pay $60,000 to the plaintiff. The defendant, by contrast, was not named as a party to the agreement and gave no consideration for any benefit under the contract. Accordingly, he takes no benefit from its terms.
Further, the agreement does not contain any clause which, construed objectively, was agreed for the defendant's benefit as a third party.
By cl 3, the parties agreed the settlement agreement barred any further action 'which may be instituted or pursued for and on behalf of' the plaintiff or Monger House Pty Ltd. The term is clearly prospective in its intent. The objective intent of that clause was to bar the plaintiff from continuing to press his then current action against Monger House Pty Ltd, which was listed for trial, and to prevent him from instituting any fresh proceedings against Monger House Pty Ltd at some stage in the future. The continuation of his proceedings against the defendant, against whom he already had judgment, was not contemplated.
Even leaving aside the privity rule, for the defendant's argument to succeed, the settlement agreement would need to contain a very clear and unambiguous indication that the plaintiff had intended to abandon his judgment already obtained against the defendant. It does not.
By cl 5.2 the plaintiff agreed that he would 'not bring any other claim or proceeding against' Monger House Pty Ltd 'or anyone else that is in any way connected with the Action or Dispute' (emphasis added). The current proceedings against the defendant were clearly not contemplated by that clause. Again, cl 5.2 speaks to future action and future proceedings, not to the proceedings already on foot and in respect of which he already had judgment against the defendant.
Further, the 'Dispute' was defined as the dispute between the plaintiff and Monger House Pty Ltd only, although the 'Action' was more broadly defined to refer to the proceedings themselves. I find the purpose of that clause was to protect directors, agents and employees of Monger House Pty Ltd, who had not been sued, from any potential future law suit.
Consequently, by reason of the privity rule and on the terms of the settlement agreement itself, I find the plaintiff is not barred from pursuing his claim against the defendant. He will not, however, be entitled to double satisfaction. To the extent to which his damages may be assessed or agreed, account must be taken of the $60,000 already received.
I turn now to the defendant's third party notice against Monger House Pty Ltd.

The defendant's claim against Monger House Pty Ltd for contribution

In July 2013, during a period when he was legally represented, the defendant served a third party notice upon Monger House Pty Ltd claiming a right to be indemnified against, or alternatively seeking a contribution towards, any liability to the plaintiff. That claim is made pursuant to s 7(1)(c) Law Reform (Contributory Negligence and Tortfeasors Contribution Act 1947 (WA) which provides:
Any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise.
By cl 5.1 of the settlement agreement the plaintiff released and forever discharged Monger House Pty Ltd from any liability. There was no admission of liability on behalf of Monger House Pty Ltd.
When this court subsequently dismissed the plaintiff's claim against Monger House Pty Ltd, that had the effect that Monger House Pty Ltd is not a 'tortfeasor who is or would if sued have been liable': James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53.
The case law is clear. The definition contained in the Act is not met by some hypothetical consideration of the merits of the plaintiff's claim against Monger House Pty Ltd, had that action proceeded. The cause of action has merged in the judgment and the action has been dismissed. The fact that the action was dismissed by consent makes no difference to the legal effect of the judgment.
The defendant was not consulted about the settlement agreement, and nor would one expect he would have been, given that the plaintiff then had judgment against him. But whether he had or had not been consulted, the legal effect of the judgment dismissing the action against Monger House Pty Ltd remains the same: see J-Corp Pty Ltd v Pannell Kerr Foster (A Firm) & Ors [2007] WASC 122 (Master Newnes) and Ward v Keet [No 4] [2010] WASC 268 (Allanson J).
Nor is there any basis to conclude that the settlement agreement amounted to a sham transaction or a fraud upon the defendant such that it might be set aside, even if there is such a power in the court: see Ward v Keet [No 4]. The defendant in any event confirmed in discussions it was not his intention to seek to set aside the consent order dismissing the action against Monger House Pty Ltd.
It follows that the defendant has no right to contribution against Monger House Pty Ltd. His action against Monger House Pty Ltd is dismissed.
What remains is the determination of the plaintiff's claim against him.

The evidence in relation to the accident

(a) The layout of Monger House

Photographs and also a simple hand-drawn mud map of Monger House were tendered during the trial. The block on which Monger House sits is a neat rectangle and the building takes up most of the land, leaving narrow corridors running down both sides and a courtyard at the rear. The building itself consists of the cottage at the front of the premises, which fronts onto Beaufort Street, and the two‑storey boarding house erected immediately behind, so that the two buildings are joined. The apex of the roof to the accommodation is in the centre of the building running from front to back.
At the time these events occurred, the corridor down the left side (as one looks at the property from the street) was approximately 1 m wide. On the right side of the building, towards the front, was a garage which narrowed the right corridor to about a metre wide as well. That right corridor led to a gate and, behind that gate, the corridor widened out to 3 m wide. The corridor down the right side was therefore predominantly 3 m wide and was chosen as the main working zone for the roof repairs.
The main entrance to the building was through the front door at the centre front of the cottage. The cottage contained the administration offices. Every boarder was given a key to the front door and to their individual room in the boarding house behind. Access to the boarding house was gained through a central hallway through the cottage which ran all the way to the back wall of the boarding house. While the defendant testified that the hallway had a middle door between the two buildings and that the boarders all had a key to that door as well, none of the witnesses who had actually lived at Monger House agreed. It matters not. There is no suggestion any of them had a key to either of the rear doors, which are the critical doors in this case.

In the boarding house were the rooms – probably 40 – and a kitchen on the right side of the building. Behind the boarding house was a courtyard, reached from rear doors, one upstairs and one downstairs, approximately centre of the rear wall of the building. The upstairs door led out to a small landing and then an external staircase down to the courtyard. The downstairs door was under those stairs and led into the courtyard.
Apart from the kitchen, the amenities were all outside the building. The courtyard at the rear contained the red brick laundry room with showers on the left and lines strung across to form a large clothes line on the right. There were only two toilets serving the boarding house – both separately located in the corridor along the right side of the building. The front toilet was about a third of the way down the corridor on the right side of the building. It was most easily reached through an external door near the kitchen.
The rear toilet was at the end of the same corridor on the right side of the building, just around the corner from the courtyard, and could be reached either through the door leading from the kitchen or, more naturally, from the courtyard.
The plaintiff was in that courtyard, in the vicinity of the clothes line, at the time of the accident.

(b) The defendant's evidence

The defendant has been self-employed since 1969 and is a sole trader. He testified that he has been employed in roofing for 42 years and had never been charged or prosecuted for any breaches.
He testified that, in March 2005, he was contacted by Mark Butler to fix the roof of Monger House, which had not been changed since 1923.
The defendant explained in some detail what was involved in the replacement of the tin on the roof. Generally the workers worked in a team of three, with two on the roof and one below. Being the most experienced, he was generally working on the roof. He said the tin being removed from the roof was 85 years old and was brittle and there were 1,400 sheets to be replaced. The old sheets were removed and simply thrown off the roof to the ground two storeys below in the corridor to the right of the building, with the workers on the roof yelling out 'Sheet' to warn the worker standing below that tin was about to fall.
For the most part, they utilised that corridor for entry in the mornings, for shifting materials in, for throwing the old tin sheets down off the roof to the ground below and for hoisting the new tin sheets up.
Then to replace the old, a new tin panel was temporarily tek-screwed to a plank down at ground level and then hoisted up unto the roof by means of a rope pulley, where it would be met by the workers on the roof who would secure it to the roof with, initially, two tek screws. He explained that, for 70% of the roof, there was an ability to leave the new sheet temporarily affixed to the plank on which it had been hoisted up, while affixing it to the roof. He said the majority of the roof design enabled that process to occur, because there was a gap at the top of the sheeting which enabled the plank to sit in (in alignment) while the new sheet was secured to the roof. He explained that, once the two tek screws had been put in, the new sheet was then safe to walk on and so the team would work by 'stitching' a series of new sheets onto the roof and then later they would go back and fully affix the sheets to the roof to finish the job.
The defendant testified that the method of throwing old tin off the roof and hoisting new tin up onto the roof was unavoidable, because of access difficulties to the site. He explained that, ideally, one would use a scissor lift, which is a mobile elevator but, due to the very limited access on site, there was simply no ability to use that kind of machinery. Consequently, he said, they had to employ a combination of scaffolding and physically dragging the new sheets up manually and tossing the old sheets off the side.
He testified they had to use fixed scaffold (presumably to get up onto the roof) but
because that uses ladders that zig-zag up it's more practical to throw the sheets off the side, which is standard practice in this instance. So that's what we were doing.
I presume he meant that was more practical than attempting to carry the old sheets down manually, via the scaffolding.
The defendant agreed that it was foreseeable that if something came off the roof it could cause an injury to people down below. He also agreed that a sheet of metal coming off the roof could cause serious injury. He agreed he knew that there were a lot of people staying as tenants in the building. He also agreed that there were not a lot of facilities in the building and, what facilities there were, were out the back door (apart from the first toilet which was accessible via a side door).
It was not suggested to him that the old sheets might more safely have been lowered from the roof by means of being tek-screwed to the same plank and utilising a pulley, or by some other means. He was not challenged on his evidence that the methods used were the only practicable methods available and the emphasis of cross‑examination was on the failure to warn and keep people clear of the works.
As to that, the defendant testified that he reached an agreement with the management of Monger House as to the logistics of replacing the roof while the building continued to operate as a boarding house. He said his agreement was verbal and 'it enabled them to keep their tenants'. In essence, they undertook certain responsibilities towards keeping their tenants away from the works and he undertook certain responsibilities.
He said he reached this arrangement with both Mark Butler and Eric Burghoffer, described as 50% partners, and also Shane, their caretaker. They agreed upon a 'no‑go' or exclusion zone during the period that the workers were working at the premises. He said the purpose of the exclusion zones was to stop people entering 'because of the potential danger' 'so that nobody got hit by falling material because it was being deliberately dropped over the side, for practical reasons'.
For most of the job, the exclusion zone (exclusion zone 1) enabled the boarders to retain access to the courtyard, laundry and showers and the rear toilet accessed via the courtyard. The defendant testified that exclusion zone 1 was in place up until three days prior to the accident. Two areas of scaffolding were also erected within exclusion zone 1.
Exclusion zone 1 ran exclusively along the exterior right side of Monger House, from the gate and along the 3 m wide corridor, taking in the first toilet and extending down to the rear toilet, but still allowing access to that rear toilet via the courtyard. The front toilet in the corridor to the right of the building was fully within the exclusion zone.
Exclusion zone 1 therefore allowed people to generally carry on as usual, with the exception that, during the hours the workers were on site, the number of accessible toilets was reduced to one.
The defendant testified that the kitchen doorway which led out to the first toilet was to be kept locked during the hours he and his team were working on the roof, so none could enter the exclusion zone from inside the building through that door. That door was to be locked in the morning by someone from Monger House when the roofers arrived. The defendant testified:
The door was Monger House, so Eric or Shane. Mark was actually working upstairs because they were going each building – sorry, each room at a time, re-stripping them down and painting. So that's what Mark was mostly doing. Eric was mostly the one in the office and Shane was the one organising people to do whatever people did there.
In addition, he said, they agreed that Monger House management would arrange for a sign to be stuck on the interior of that door stating 'Roofing. No entry' or words to that effect. He said he saw such a sign, approximately the size of an A4 piece of paper, on the interior of that door 'a couple of times'. There was no sign on the exterior of the door.
He said that door had to be locked all of the time they were working there and was still locked on the day that the accident happened. When asked how he knew that door was locked, the defendant responded 'Because it was closed'. He added 'I didn't try going through there, because it was closed'. It is plain that he assumed the door was locked, because that was the arrangement he had with the management of Monger House. He also testified that no boarders entered exclusion zone 1, which would give him another reason to suppose the door was locked as planned.
He understood that, at the end of the working day, that door would be unlocked, but the gate to the corridor leading out to Beaufort Street would remain locked because of security issues. The defendant testified that the gate was generally kept locked, but that it 'was either locked for our benefit or unlocked for our benefit'.
He testified that he and his crew would turn up to site around 7.00 am, at which point the gate would always be locked. He had been provided with a key and he would unlock it to enable his crew to bring in their roofing material and tools, which he said took about 15 to 20 minutes, and then he would lock it again. He said he was responsible for locking and unlocking the gate because that was external to the building. He said either he personally locked the gate once his men and all of their materials and tools had entered, or his ground man would have locked it. He could not guarantee his ground man did lock it, but said the arrangement was that he was supposed to lock it and it was never raised with him by management that the gate was left unlocked.
He explained that:
The gate was open while we brought the roofing material in, but when we were not there, it was locked and the arrangement Eric told me was it's supposed to be locked at all times because they were worried about people, unauthorised people, entering and doing things.
He said he and his crew were given a storage room to utilise for their tools and materials.
He also testified that barriers, by way of temporary orange grid plastic standing about 1.2 m high, were erected both at the entrance to the corridor on the footpath on Beaufort Street and also on the entrance to the far end of that corridor near the rear toilet. The point of that rear barrier was to block access to the corridor from the rear courtyard, but still enable access to the rear toilet.
The defendant said the orange plastic barriers were noticeable and, in a normal situation, he would assume that a person would see the barrier. He said he could understand, however, why people might have testified that they did not see any such barriers if those witnesses had generally gained access to the building by going in through the front door, which was in the middle of the building, whereas the front orange barrier was on the far right‑hand side and the rear orange barrier was around the corner from the courtyard. In other words, he accepted that, unless someone had cause to go down the corridor to the right of the building, they need not come into contact with either of the orange plastic barriers that were there during work hours.
He also testified that he had placed a swinging sign at the front of the premises by the garage. He said it was 'just a standard little sign that says, "Works. Do not enter"'. He said they had put that by the garage because there was no door on the garage and that was where all of their things were being kept and it was there from the beginning of the job. He said they would put the sign away in the evenings and then in the morning put it out when they started work, either him or his worker Ferris. The point of that sign then was to keep people out of the garage where their things were stored, rather than to act as any kind of barrier to the exclusion zone itself.
The defendant testified that, at lunchtimes, he and his crew would leave the site to go and have lunch, locking the gate behind them as they left and leaving the orange barrier in place. Following lunch they would return, unlock the gate and gain entry to the site.
He testified that the arrangement was that, at the end of the working day, he and his crew would remove all of the rubbish - such as the pieces of tin that had come off the roof - from the path, pack up the barriers and place them in the garage overnight, and then inform management that they had finished for the day, then Shane or Eric would unlock the door from the kitchen so that people could access the first toilet again during the night.
He testified that:
The bottom line is that our job was to make sure that at night, for instance, someone didn't go wandering down the side there and fall over something or – so our job was to keep people out of the area while we were working there during the day, that's external. The internal stuff belonged to Monger House because it wasn't reasonable for me to be looking out for where the hell everyone was when we're up on the roof.
The defendant testified that, while exclusion zone 1 was in place, people were not wandering through their work zone and 'while we were there working, well, obviously when there are sheets coming down, nobody was going anywhere near the place'. He said, as far as he was aware, there were no issues and no complaints.
After they had been working for three weeks, they reached the rear verandah section of the roof. They had been working parallel to the apex of the roof from the front to the rear of the building, but at the rear of the building the roof sheets ran perpendicular to the apex of the roof. The significance of that was that, in that rear section of roofing, there was no gap for the hoist plank to sit in enabling the roofers to secure the new sheet to the roof while it was still safely attached to the plank. Consequently, the new sheet had to be detached from the plank before it could be tek‑screwed into place. That was a more dangerous situation.
The other implication of moving to the rear section of roof was that the exclusion zone had to be extended to take in the rear of the property, the courtyard and shower and laundry area, the clothes line and the rear toilet (exclusion zone 2). As access to exclusion zone 2 could be gained through the two rear doors, upstairs and down, the arrangement was that both rear doors had to be locked and remain locked during the hours of the roof works. The defendant said he discussed that with Eric to the effect that 'Monger House was due to make sure that was locked, and they were kept out'.
He said work commenced on the rear section on the morning of the third last day, which equates to two days prior to the accident. He said he spoke to Eric and Shane in the morning:
I said we're starting on the back today so the back doors have got to be secured. Nobody is allowed out there. I mean, they could use the side piece at the front but no one was supposed to go out that way, either and (Eric) was concerned about the lack of toilets. … He said where are they going to go. I said, well, they can use the front because we're not doing anything there at the moment, but you can't do that until we pull these sheets off. But they were to close the back door inside … and the one directly below it, so nobody was to go in.
He explained his reference to 'the front' was the front toilet which was through the middle side door near the kitchen which was also supposed to be locked. He continued:
Because he wanted to know, well, both the toilets are blocked off. Where are they going to go? And I told him we'd do it in pieces. We'd pull off part of it, put the new bit on. As soon as we got the new bit, while we were putting the new stuff on they could use that. But it was a difficult time because it – it compromised two different areas. The idea was not having anyone near what we were pulling off.
He testified that he discussed that with Eric who
just wanted the roof on, and he said 'I don't care'. I said 'Well, keep everyone out of the way, it's working fine, we'll be out of here in a couple of days'. The weather held us up for a day longer.
As to exclusion zone 2, he agreed he did not see any signs put up by Monger House to warn the tenants and visitors of the works, saying 'I didn't see any. I didn't look. We were three and a half weeks into the job and we had a format going'. He agreed the only 'barricades' consisted of the two closed doors and also his physical presence at the end of the alleyway on the right‑hand side of the building.
He said the first two days that they were working on the rear of the roof he saw no one in the rear yard and there were no incidents. He said the accident took place at 4.45 pm on the third day, when they were only three sheets from the end.
The defendant testified:
That was the sheet that the gust of wind, unfortunately, took. But because that is what is considered a foreseeable incident, in other words sheets coming down, that was why we had the no-go zone.
He testified that the danger with roofing being blown off the roof did not so much attach to the old tin, which was only a body length and could be grabbed under one arm and walked across the roof but, rather, pertained to the new roof sheets.
He also explained that, because tin roofing does not fall straight down like a stone but, rather, wafts from side to side like a feather dropping, it can land 3 to 5 m away from the roof and so they needed the exclusion zone to accommodate that. He clarified that they would not work in strong wind, because it was too dangerous but, nevertheless, even in normal weather they could still experience a sheet gusting off the roof. He said it was not common and they had had some 1,400‑odd sheets to affix on this roof and were down to the third‑last sheet and no sheets had gusted off prior to that 'and it's just one of those bloody things'.
The defendant testified that, while he tends to work up on the roof given his greater experience, at the time of the accident he was actually on the ground because he had hurt his back earlier that morning. His two workers Luke and Ferris were up on the roof. Neither of the workers was called as a witness. The defendant was standing around the corner from the courtyard in the right‑hand corridor. He drew his location on a mud map. He was clearly in no position to see, and does not claim to have seen, what occurred.
It is implied in his evidence, but on a hearsay basis, that the tin that fell into the courtyard was a new sheet which gusted out of one his worker's hands. That is the only evidence before me as to the cause of the tin falling into the courtyard. The plaintiff's counsel, in closing submissions, adopted that explanation for the accident. Notwithstanding the lack of real evidence it appears common ground that a new sheet of roof tin did escape the worker's grasp in a gust of wind.
The defendant testified that, on the day of the accident, the weather was fine and there was washing on the line. He described big grey blankets hanging on the line that had been there for several days due to rain. He described them as being on the first three lines closest to the building itself.
Because he was the worker at ground level, he was the person who was cutting the new sheets and sending them up onto the roof. He added:
And I'm standing on this side of the scaffold because we don't want any sheets coming down – well, we just don't want sheets coming down a courtyard, partly because what was also down there was all these bloody blankets.
That scaffold was in the right corridor towards the end and around the corner from the courtyard. He said the sheets were coming off one at a time and it was part of the role of the person on the ground to pick up the sheet and put it off the pathway so that they did not end up with a 'big mish-mash pile of sheets'.
I understand from his evidence, then, that the old tin sheets were still being tossed into the corridor at the right of the building, and were being walked across the roof for that purpose, rather than being tossed into the courtyard below. Nevertheless, it was foreseeable that a sheet might fall into the courtyard and hence the defendant established exclusion zone 2 to safeguard against that risk.

The defendant testified that he had not been in the courtyard himself in the 10 minutes prior to the incident. When asked how long it had been since he had been in the courtyard, he answered 'When we knocked off for lunch. That would've been maybe two and a half hours before then'. He said he told Shane 'we're going for lunch. You can open'. He then confirmed that he had not been in the courtyard since knocking off for lunch. He explained:
And the only reason I was, was to let people know that we were going for lunch so that they could use the yard. Because Eric had expressed concern about people want to use the laundry, people want to use the toilets. Because there's showers there as well … so that's the only reason I was in the courtyard, basically.
He then testified, however, that when he got back from lunch, the rear doors were closed. He said he walked around the back when they returned after lunch and saw that both doors were already closed.
When asked if he had actually informed anyone that he was back after lunch, he said he told Shane, who was in the front unit in the cottage. He then walked around through the side gate to recommence work and said nobody came past him where he was standing at the rear right side of the building, around the corner from the courtyard. When asked if he had any idea whether the doors were actually locked, the defendant said:
No, to be honest. They were just closed. And, again, there was nobody visible in the courtyard. Had there been I would've shooed them out of the way in the first place.
He said he assumed it was Shane who closed the doors. The defendant confirmed he had not seen the doors being closed and did not check that they were locked. He simply saw them in a closed position.
There is no evidence as to whether he could actually see the doors when he told Shane he was back. Shane was in the front unit of the cottage and the doors were right at the end of the hallway which runs down the middle of both buildings is one continuous length. In other words, while the defendant gave evidence that he saw the doors were shut from the courtyard, there is no evidence as to whether that suggested any change to the doors after he informed Shane he was back, or whether they were shut anyway, even during the lunchbreak when there was access to the courtyard.
He said the afternoon was progressing 'and next thing I hear, "Sheet" and I heard a thump'. He said he rounded the corner, entering the courtyard, and saw the tin sheet suspended on top of the washing lines and the plaintiff underneath it on the ground, almost in a foetal position, bleeding from a neck wound and there was 'a guy standing above him in shock, clearly'. He said, prior to that, 'I had no idea anyone was out there at the time'.
He said he could not see the plaintiff immediately as he rounded the corner, because the blankets on the line were impeding his view, and it was not until he really entered the courtyard that he saw the plaintiff and the other man. He insisted there were blankets on the line but did not deny that there may also have been other washing. There was at least a towel, given his later evidence. He said he also saw a couple of toolboxes and stuff and an open carton of beer, although his main focus of course was on the plaintiff. He said he did not notice any suitcases or backpacks, but was plainly not denying they were there and was saying that he simply had a mental image of what he noticed at the time 'in a flash'.
The defendant testified that, once he saw the plaintiff bleeding, he grabbed a towel that was just sitting on the line about the third line in and put it on his neck. He said:
I just grabbed that, put it on his neck, said to the bloke, 'Hold that' and then I yelled out, because by that time there were maybe a dozen people had come out the back, 'Call an ambulance' and it was Mark Butler who called the ambulance.
The defendant testified that he had done eight years of ambulance service in the Pilbara, including road trauma. He said he instructed the other man in the courtyard to hold the towel against the plaintiff. He then described the plaintiff as
lying on the ground, literally out. His eyes are closed and he's twitching, but he's not making any sounds. He's certainly not conscious. The guy above him is just standing there, like, frozen on the spot and I grabbed him – grabbed the towel, put his hand on the guy's neck – sorry, Mr Ward's neck.
He said the plaintiff remained unconscious. He said that he stayed with the plaintiff until the ambulance arrived and the other guy still had his hand holding the towel against his neck. He said at one point the other man asked him how long he should hold the towel there and the defendant instructed him 'you just keep it on him and don't move'.
He described that other man as having long, blondie hair and missing three teeth at the front 'and apart from that, I think he had blue eyes'. He said that person 'definitely wasn't Freddie Feelgood who was here earlier', a reference to one of the plaintiff's witnesses, Mr Duckett.
The defendant said the ambulance and the police arrived within 10 minutes and then Eric came out 'and I said, "what the bloody hell – what was he doing out here?"'. The defendant said the conversation he had with Eric immediately after the accident was heated, understandably enough.
He said, after the plaintiff had been taken by the ambulance, he and his workers cleaned up the site, put the last two sheets on the roof, and removed the two orange barricades from the front and rear entrances to the right corridor and put them back in the garage.
In cross-examination the defendant named the other man in the courtyard as John Chaney but, given his description of the man earlier, I infer he neither knew Mr Chaney nor purported to recognise him, but was basing his comment on something contained in the WorkSafe investigation documents, which are not before me and are untested. Referring again to the witness Mr Duckett, the defendant testified 'It was me that stopped (the plaintiff) from dying. Not this bloke that was sitting here yesterday'. He said he put the towel on the plaintiff's neck
and I told the bloke that was standing there like a gawping fish, which is John Chaney, not this guy yesterday, this Duckett, who appears miraculously a few weeks ago.
He agreed that, after he entered the courtyard, 'within a minute, like people just came out of presumably the bottom', meaning the door. In answer to the proposition that the door then presumably was not locked he responded 'Not my responsibility'.
The defendant testified that, because the doors were closed, he had concluded it was safe to work 'because we've been doing it for three weeks beforehand'. He added, 'I didn't – why would I think that they were doing anything different to what they've been doing before', a reference to the management of Monger House.
Of course he had only established exclusion zone 2 two days earlier. Prior to that, the tenants had been able to access the courtyard during the works.
He listed the steps he took to see that the access points had been barricaded off in exclusion zone 2 as consisting of telling Shane when they were starting work and seeing that the doors were closed 'and we hadn't had a problem. So that's as far as I looked at it' and said 'I had no reason to suspect that they weren't locked'.
As to what steps he had taken to ensure no‑one was in the rear courtyard the defendant testified 'Well, I just visibly looked'. He agreed that blankets on the line could have obscured his vision of someone in the courtyard. And, of course, if he did look upon his return after lunch, there may have been no‑one in the courtyard at that precise moment.
While on a couple of occasions in cross-examination the defendant appeared to agree that the rear doors must have been unlocked, the fact is he was in no position to know whether those doors were locked or unlocked at the time of the accident and his concessions to that effect carry no weight.
The defendant testified that his crew had instructions that anyone within the exclusion zone was to be removed 'but we never had an incident where we had to get rid of anyone'. However, importantly, he explained that, because the height of the roof was between 7 and 8 m high, and the workers were not only up on the roof but also working about 2 m back from the edge for safety reasons, their vision of anyone below on the ground was very restricted. He said the visibility differed depending on which section of the roof they were working on, but, from the section of roof they were on that day, the workers have been unable to see anyone within 6 to 7 m from the building walls. He agreed they should have been able to hear people if those people were talking, unless of course they were drilling.
He agreed that, apart from his own metal sign outside the garage, the only sign he ever saw was the single A4‑sized sign on the interior of the door leading to the first toilet. He said that same door also had a piece of four by two barricading it, but he did not see anything similar on any of the other doors. He agreed he did not know what steps were taken inside the house from his own knowledge.
He said he did know the two rear doors were locked at some times, because he was unable to enter them, but emphasised 'My job was outside on the roof, not inside looking after these tenants'.
The defendant denied that his attitude to the tenants in the boarding house as being 'old drunks and druggies' had compromised his approach to safety and responded 'No, if anything that made the job harder'. He agreed that, since being sued, he had developed an attitude towards the plaintiff and his legal advisers but said:
My attitude to this case is coloured by you people threatening my entire living on the basis of this man being a trespasser and having the gall to sue us six years up the track. Which has now changed to three years. And you funding his case and me being left out like a shag on a rock. So of course I'm coloured by this case. But up until this case came, he just happened to be an accident victim that put himself in harm … because he knew what was going on and he knew that we were working on that section of roof. And he knew he didn't have permission to be in the courtyard.
He took issue with the suggestion that he had developed a casual attitude towards safety on the job because of the nature of the tenants, countering:
My job was to change the roof in the most efficient way possible. I had a programme in place with Monger House where because of the – their job was clearly to look after keeping the tenants out. That whole system had worked fine … I didn't care about whether they were Peppermint Grove people or whatever because they weren't part of my thinking. It was just keeping them out. And all my crew had the same rule. If you saw people where they shouldn't be, it was a vocal, stop, get – bugger off. As far as I'm aware there were no incidents where we needed to remove anyone.

(c) The plaintiff's evidence

It was entirely uncontroversial that, on 17 May 2005, the plaintiff was struck by the piece of flying tin when he was standing in the courtyard at the rear of Monger House.
He testified that he had been staying at Monger House for about a month prior. He said he was expecting to take up employment with a friend, one Dion Jennings, a roof carpenter, and stay at his house, but the house was being renovated and Mr Jennings was staying at a hotel for several weeks and so the plaintiff boarded at Monger House in the interim.
He testified that his bedroom, room 17, was at the rear of the building on the right‑hand side (looking from the street). That places it on the same side as the corridor which made up exclusion zone 1.
He said he would reach the courtyard by exiting the ground floor rear door which led directly to the courtyard. That is one of the two rear doors which was supposed to be locked during the hours exclusion zone 2 was in effect. He said he was given two keys, a key to the front door and then his individual room key.
The plaintiff testified that, when he first moved into Monger House, there was no written notice that there was any work going on at the premises. He said there was scaffolding, however, on the side of his window, but no signs of any kind either on the scaffolding, or at any entrance to the place. He therefore missed seeing the A4‑sized sign on the back of the door leading out from the kitchen – entirely understandable given that the toilet closest to his room was the rear toilet which he would have accessed via the courtyard – and the defendant's swinging metal sign outside the garage at the front – also understandable, given that it was nowhere near the front door. The plaintiff's description of scaffolding outside his window coincides precisely with the mud map of Monger House drawn by the defendant showing the scaffolding.
The plaintiff testified that, two or three weeks prior to the accident, he had heard a heap of tin raining down outside his bedroom window around 7.00 am in the morning. It woke him up. He said there was no prior warning that he should expect that sort of thing and he had gone out to see what was going on. He said, at that time, there were visitors coming and going from the front of the premises and people in the communal area and the laundry. That is consistent with exclusion zone 1. He said that was when he became aware of people on the roof. He agreed that, after that, he periodically saw people working up on the roof.
He testified that there was nothing restricting his ability to walk around the premises at any time while he was staying there, apart from the right side gate, which was occasionally locked. Contrary to the defendant's evidence, he said the gate was left unlocked during the day and people would come in and out of that side entrance, but it was occasionally locked. Unless he stayed at Monger House all day and either sat out the front of the property or kept surveillance from his bedroom window, he is unlikely to have certain knowledge about the gate being locked or unlocked and people accessing it. He also said that the gate could only be opened from the inside. He said at night it was usually locked.
It was suggested to him in cross-examination that Monger House was a locked or secured environment. The plaintiff disagreed. He said people often forgot to bring their key and would gain entry by simply knocking on the front door and someone would open it and visitors could also gain access the same way. That is entirely plausible. It is far more plausible than the management achieving a secure environment.
The plaintiff testified, that on the day of the accident, he went to go and pay his rent and Eric, the manager, told him that he had been making too much noise and one of the older tenants had complained and therefore they wanted him to move out. He said Eric asked him to take his stuff out of his room so that they could clean the room up.
He said he moved his stuff out, which comprised his trade tools and clothes. The boarders also provided their own bedding and he confirmed he had. He said he had at least three suitcases and a big 100 litre backpack as well. He said he also moved the little bar fridge out of the room. The fridge belonged at the premises, but he took it out so that they could clean the room because it had cockroaches in it. He said he moved everything to the communal clothes line area at the back where he had a couple of loads of washing on the clothes line, still drying.
He agreed that, when he was asked to move his stuff out of the room, he was not specifically told that he should put his gear in the courtyard but said 'But they didn't say that I couldn't' and added 'The rest of my shit was still there, was out there so wouldn't I put it all together?'.
It was suggested to him that there were about 20‑odd grey blankets hanging on the line that day, but the plaintiff said he had no recollection of them and said all of his clothing and his doonas and sheets took up the whole six or seven lines of the clothes line. Given the obvious size of the clothes line depicted in the photographs, that is unlikely. He testified that there was nothing on the line except for his items. He said he still had washing left over that he had not hung up. He said he totally disagreed that there were blankets hanging on the clothes line and was 100% on that.
The plaintiff said he had telephoned his friend Mr Jennings who had said that, when he finished work, he would come and pick him up and he could stay at his place, presumably the place that was being renovated. The plaintiff said that telephone call was probably in the afternoon, about half an hour before the accident happened.
The plaintiff testified that the caretakers had mopped his room and he was in the courtyard, packing all of his stuff and also having a drink and talking to the guys, fellow boarders, while waiting for his friend to come and pick him up. He said he was there with at least three other people, one being a Jeff Conway and two guys he did not know very well. He said they had entered the courtyard and saw he had some beer and sat down and started talking to him. He believed one of them was named John, but he may well have been gleaning that having seen the name in the WorkSafe investigation file.
He said he had given Jeff Conway some money to go to the pub and he came back with a carton of beer and they were sharing it. He identified where he was standing at the time, by means of a photograph of the courtyard which is before the court. He said he had drunk one beer and had just opened his second beer and then the tin chopped him from behind. He was asked what he recalled after that and answered:
Not much. I sort of remember my beer foaming over and sort of woke up in the ambulance and was arguing about my neck. I vaguely remember bits and pieces, but, you know, there's not really – most of what I can remember is actually from what other people have told me.
The plaintiff testified that, about 10 minutes prior to the accident, he saw an elderly gentleman walk to the washing house. He said the man had exited out the back door on the lower level 'and a bit of off cut came down and missed him by about half a foot from the roof'.
The plaintiff was cross-examined on discrepancies between his evidence‑in‑chief and a statement he had provided to WorkSafe on 16 June 2005, a month after the accident and almost nine years prior to the trial. Ultimately, by consent, that statement was tendered. He vaguely recalled making the statement. He agreed that, having been made approximately a month after the accident, his memory would have been more accurate at that time, but said there were things he had recalled since the accident.
He was reminded that in his statement he had said 'I was having a beer and then the next thing I remember is waking up in Royal Perth Hospital'. He agreed there was no mention of him having an argument with anyone in the ambulance and was unsure whether, at the time he made the statement, he had any recollection of being in the ambulance.
There is no significance in such a discrepancy. There is no rational reason why the plaintiff would deliberately fabricate this small and insignificant memory. At worst for the plaintiff, it indicates he dwelt on the incident over the years and, through a natural desire to recover the gap in his memory, has unconsciously created memories. It may also be that the memory is genuine and accurate and came back to him over time. It matters not.
He agreed there was no mention in his statement of the elderly person nearly getting hit by a sheet of tin a few minutes prior to the accident, but said he was not questioned about other people when the statement was taken. This addition to his account is rather more significant. It was suggested to him that it was a fabrication but he denied that and said, to the best of his knowledge, it did occur. He was asked why he did not do something about it. He said 'We did … We told the roofers that we were down here and to watch – watch out cos we're here'.

I am not persuaded that evidence was a deliberate fabrication, but nor am I persuaded that the incident did occur on that day and was witnessed by the plaintiff. In any incident like this, there is the risk that a witness' genuine memory will become contaminated by information heard after the event from other sources. The plaintiff testified that he was allowed to return to Monger House for a week or so after the accident and one assumes there would have been discussions amongst the boarders about what happened and a likely swapping of stories. Mr Ford also said he had kept in touch with the plaintiff and had discussed the accident with him a number of times and Mr Ford had a couple of anecdotes to tell about falling tin.
There is a risk of suggestibility in any event in such circumstances. The delay in this case between the event and the giving of evidence heightens that risk. When a person gives evidence some nine years after the event, particularly an event in which he was injured, there is a real risk of others' memories, or claims, even rumours, becoming indistinguishable, over time, from the witness' own memories.
His explanation for the incident involving the elderly man not being included in his statement made a month after the event is not convincing in that, had he seen someone else almost struck by flying tin only moments before, it is highly likely he would have raised that with the WorkSafe inspector to impress upon him the dangerousness of the roofing works, notwithstanding that the primary purpose of the statement would have been to give his account of what occurred to him. I am not satisfied his evidence about that incident is reliable.
He agreed he had said in his statement: 'I was aware of the work being done. It was difficult not to be aware because of all the banging and clanging going on'. That is not inconsistent with his evidence in any event. It was the obvious occasion, however, to mention the elderly man.
The plaintiff adamantly denied that he was ever told that he was not to go to certain areas around the building on certain days. He said the only contact he had with any of the management was when he paid his rent weekly to Shane, the caretaker, and when Eric asked him to move out of his room. It was put to him in cross‑examination that representatives of Monger House, namely Shane, Eric and Mark, were telling people not to go into relevant areas on a regular basis, but the plaintiff was adamant that he was not given that information. Nor is there any evidence that he was.
The plaintiff was also adamant in cross-examination that there were no signs around the building indicating to keep out. He agreed there were several exits and entrances and it was put to him 'That there were signs on one or two of those at any given time', to which the plaintiff responded 'Possibly, but I do not recall seeing any of them'.
The plaintiff agreed that he had worked in construction previously. He agreed that, on a construction site, there are areas one cannot enter, but he said Monger House was not a construction site as far as he was aware. He said what was happening on the roof was none of his concern.
It was suggested to the plaintiff that he was told to leave the premises around 10.00 am. He denied that and said he did not recall precisely what time he was told that he was no longer welcome to stay, but was pretty sure it was in the afternoon. In his statement the plaintiff had said:
At around lunchtime I went to Eric, the owner, to pay another week's rent and at that time he told me he didn't want me there anymore. He told me the old people had told him I was being too noisy … I contacted Dion to pick me up and he told me he could pick me up after he finished work.
Eric asked me how long it would take to get all my stuff out of the room so that the cleaner could come in after 5 pm to clean the room. I had a lot of stuff and it would take a fair while.
I told him that I could drag it outside the back courtyard and go through all my stuff and give the key back to him, which I did do at some time after 5 pm.
The plaintiff said he did not now recall whether the accident occurred in the morning or the afternoon. There is no evidence apart from his as to the time he was asked to vacate his room and he was very vague on times generally. There is no evidence that occurred at 10.00 am and his statement certainly does not support that proposition.
The plaintiff said he did not recall returning his keys to Eric, but agreed he could have done. He later said he believed he handed the keys to the person who replaced Shane, a new guy. He said, after the accident, all of his things got put back into his room and then, after he was discharged from the hospital, he came back to pack up his stuff again and the new guy gave him the key to give him access to his room to pack the stuff up. He said that same person called an ambulance for him when he became sick with gastroenteritis about a week after the accident, suggesting he actually stayed at Monger House for a time.
The defendant's evidence was that Shane was still at Monger House on the day of the accident. There is every possibility the plaintiff had mixed up one of several occasions on which he returned keys, but nothing turns on it. Mr Ford also thought that Shane was no longer at Monger House at the time. If one could be confident the plaintiff and Mr Ford were right, that might be significant and tend to weaken the defendant's account about telling Shane they were back from lunch and seeing the doors shut, but I am not confident about their reliability on that point. Nine years on, that is a matter a person could easily be mistaken about.
The plaintiff testified that all his washing was on the clothes line and so, as Eric has asked him to clear out his room, he moved his things out there. He said he simply planned to pack all his gear up and then leave through the side gate once his friend came. He denied that the side gate was padlocked, but said that he did not make it that far anyway.
He denied that Eric had told him to leave the premises and said rather:
No. He didn't say leave the premises, he said – he asked me to move out so they could – move my stuff out of the room so they could clean it. And I had until the end of the day to leave.
Clearly Eric did ask him to leave, irrespective of whether he used that word or not, in the sense that the plaintiff could not stay another night. The salient point, however, is that the plaintiff denies being told to leave immediately or to leave by a fixed time.
The plaintiff was cross-examined very briefly about certain matters going to his credibility. He testified he is an inmate at Wooroloo Prison. He was asked how long he had been in gaol and he answered two years and four months. He was not asked what he was in prison for however, or what sentence had received.
He agreed that, at the time he was staying at Monger House, his name was recorded as Robert Green and claimed the 'dodgy' manager, Shane, had written him down as 'Mr Green in room 17' and said he had no idea why. That was not a very convincing explanation. He agreed that he has been known by other names, including his brother's name. I infer from that that he has, on a prior occasion, falsely used his brother's name.
He agreed that he has a naltrexone implant and said that is due to alcoholism. That only relates to his current condition. He also agreed that he used to smoke a little bit of 'weed' every now and then. He denied having any illegal drugs on the day of the accident and said the only alcohol he had had was the one beer. He denied demanding OxyContin at the hospital but said they may have given him MS‑Contin. There is no evidence contradicting any of his evidence on this point, nor was this accident caused by an addiction to painkillers in any event.
He was cross-examined about his discharge from hospital following the accident. He said that the hospital staff had told him that he was not allowed to have a cigarette but, contrary to their rules, he had walked downstairs with his drip and had a cigarette and after that they kicked him out. He said the hospital kicked him out because he had a cigarette. He denied discharging himself. That is a matter of perspective and nothing turns upon it.
In cross-examination the plaintiff agreed he is depicted in the photographs tendered at trial post‑treatment not wearing a Philadelphia collar around his neck, but he said he removed the collar for the photographs. I accept that explanation. The photographs would have served no evidentiary purpose if they merely depicted the plaintiff wearing a collar. Their purpose was clearly to show his scarring. He said he wore the collar for 10 weeks following the accident. It was suggested to him that some medical report said that he refused to wear it, but he denied that. There is no evidence he did.

(d) Benjamin Luke Duckett

Mr Duckett is a sound engineer. He said he resided at Monger House in 2005 for three or four months. He testified that he had not kept in contact with the plaintiff since the accident occurred, but that he had heard that he had not died from his injury.
Presumably in 2005 he was going through some difficulties, given that he described the premises as 'cheap accommodation, I suppose, for people that are hard on their luck'. At the time he testified he was an inmate of Wooroloo Prison, having been sentenced for manufacturing methylamphetamine. He looked healthy enough when he testified, however, and hopefully his time in prison has been drug‑free. He presented as lucid, articulate and intelligent.
Mr Duckett's description of Monger House was consistent with the defendant's mud map. He said that his bedroom was on the ground floor. I infer it was also on the right side of the building, because he testified that one side of the building, where his air‑conditioning unit was, had a whole lot of scrap material in it.
He agreed that, when he was there, some construction was going on. He said he noticed there was roofing going on, because there were workers around sometimes and there was a lot of scrap material and noise.
He said he knew there was some kind of building stuff upstairs but, because he was living downstairs, it did not affect him too much. He testified that, quite often, stuff would fall from above onto the air‑conditioning unit which protruded out of his window. He said it was not big items, just nuts and bolts and dust. He said he did not actually see any sheets of tin coming down from the roof and simply remembered some sheets piled up. Of course, being employed at the time, he would often have been at work.
He was asked whether he was prevented or restricted in using the ground floor or the outside areas during the course of the building works. He said, apart from the scrap material in the corridor
there was nothing to – to say that we couldn't use any of the courtyard area with the clothes line and where we put our bikes and stuff like that.
He identified the same corridor on the right side of the building as the alley that he used to walk his bike down if his bike was chained up out the back. He said there were a couple of poles in the courtyard which most people used to chain their bikes to the poles (and one is depicted in a photograph before the court) and then, to get out the front to Beaufort Street, they would wheel their bike down that side alley through the gate. That description encapsulated the whole of exclusion zone 1. He said they used to jam the gate shut occasionally, which was the only way in and out of the property other than the front door of the building. He agreed that, at some stage during the roofing, that gate was shut, but explained he did not think that was related to the building works, but thought it was to stop theft of the bikes from the back of the property.
The following exchange took place in examination-in-chief:
Now, in the time that you were there, when there was roofing going on, did you go to the courtyard at all? – Yes.
For – how regularly, for what purpose? – To hang out my laundry, to get my bike.
And did anyone stop you from going out there? – No.
Were there any signs telling you not to go there? – No.
Was there any flags, or streamers, or things to prevent access? – Well, no, but I think that's also because there wasn't – well, there didn't appear to be any construction happening downstairs, so I - - -
Right? – Yes, there was – I mean, obviously if there was builders walking around, or you had to keep out of their way, but other than that there didn't appear to be anything happening downstairs.
In cross-examination he explained his last answer as meaning that, if anyone was coming through the alley on the right side of the building, including builders bringing things in, he would get out of their way, in the same way that, if people were walking down the centre hallway of the building occasionally with building materials (presumably a reference to the interior renovations) he would let them go past. Mr Duckett testified:
It was always a – sort of a busy area, and that time of day, I mean, just the whole complex really, all the people that – that lived there, and – and came in, and went, and left, and people going out the back to check their laundry, and – you know, I mean, it's – there was always people around. I don't think there was ever a quiet time in that whole place that I lived there.
As to the incident itself Mr Duckett testified that he was in his room when he heard some 'kerfuffle' out the back. He said it sounded like an accident of some kind and a bit of a scream and he came out to find what was going on. He estimated it took him about 30 seconds to arrive in the courtyard where the clothes line was and he saw the plaintiff leaning against the pole holding his neck and he recalled a lot of blood. He did not, therefore, purport to have seen the accident.
He said he reached around and grabbed a towel off the line and wrapped it around the plaintiff's head and held it on to his neck. He said he recalled the plaintiff asking him to hold it onto his neck because the plaintiff said he was going to pass out. He recalled somebody else calling for an ambulance and thought the ambulance arrived reasonably quickly. He was asked whether anything else was on the washing line and he replied 'Maybe another towel. Socks. Something like that'. He recalled there were a few people around but said, after he saw the blood, he was not thinking about anyone else.
It was put to the witness in cross-examination that his evidence was 'a total fabrication'. That honed down to an allegation that he was not the person who held a towel to the plaintiff's neck, and that the plaintiff had not spoken to him following being struck, because he was not conscious.
Mr Duckett readily agreed that he had not spoken to the police or anyone from WorkSafe following the incident. There was no detail in the cross‑examination (nor by way of re‑examination) as to why he had not spoken to anyone at WorkSafe, nor how long he had resided at Monger House following the accident.
As to the plaintiff being conscious, Mr Duckett said that, at the point at which he spoke to him, the plaintiff was sliding down a post and sitting upright but was still conscious. He was unable to recall, however, whether the plaintiff was still conscious by the time the ambulance arrived. Mr Duckett said at that stage he was panicking, because he fully expected the plaintiff to die, and the ambulance officers took over.
Mr Duckett was adamant that he had held a towel to the wound. He said his memory of the whole event was pretty clear because it was horrific. He said he was not the one who called the ambulance and did not have any hands free. He described himself as 'the first one there' and said there were other people around, but they disappeared.
Mr Duckett said he had not kept in contact with the plaintiff and the first he heard that anything came of this was when he was subpoenaed to court as a witness. He agreed that someone had approached him in the few weeks prior to trial and asked whether he would be a witness. He said he had had no contact with the plaintiff in prison and he had first been in Hakea, then moved to Acacia and then moved to Wooroloo. He said he is in contact with the plaintiff now 'since he asked me if I'd – that his lawyer wanted to come and see me about being a witness'.
In re-examination Mr Duckett was asked to describe the wound. He said it was a big cut across the plaintiff's neck but the plaintiff was holding it, so he did not have a good look at how big it was, but he knew there was a lot of blood. He demonstrated initially with his hand on what appeared to be the left side of his neck but then said he thought it was on the right side and showed the top of the neck under the ear, which is consistent with the photographs showing the scarring to the plaintiff's neck.

(e) Troy Jarren Ford

Mr Ford's usual occupation is that of oil rigger but, at the time of testifying, he was also an inmate at Wooroloo Prison, for driving offences. He said he stayed at Monger House in 2005 and 2006 for six months with his girlfriend Jessica in a room downstairs on the right side of the building. He said he later found out that the residence was exclusively for men and so she could not stay there. He said at the time of the accident he was employed as a labourer.
He said he was friends with the plaintiff at the time and they had kept in touch since. He said he had discussed the incident with the plaintiff over the last couple of years.
Mr Ford said the roof was being re‑done towards the end of the period of his stay. He was aware of that because it was 'pretty noisy' and 'pretty obvious'. When asked whether there were any areas of the property he could not enter during the works he replied:
Not as such. Like, if there's a scaffold in the way or something like that, obviously you couldn't walk through it, but it was all still open as per normal.
He said there were no signs about the place and no barriers stopping him from moving anywhere. When asked whether he was told not to go anywhere he responded 'Oh, occasionally you'd get yelled at from the roof, from time to time, or other people would, but yeah, nothing as such'. In cross-examination he said he had not gone out into the corridor on the right side of the building during the works because, he said, he had no reason to. He said he gained access to his room by going straight through the front door with his key and then walking down a hallway 15 or 20 m 'and I was just in there, on the side'. He did not have a bike that he was taking in and out of the alleyway.
He was asked whether he went into the courtyard during the period of the roofing and he testified he went there every day either 'cutting through for the toilets, or just putting our clothes out, or my girlfriend would put her clothes out there'. Mr Ford maintained that he could come and go into the courtyard whenever he liked 'because it was – it was the clothes line and that's where we hung our clothes out'.
Of course, for almost the entire period of the works, the courtyard was not in the exclusion zone.
As to the day of the accident itself, he testified that he was not at work on that day because he was having a 'sickie'. He said the plaintiff was packing up some of his stuff and he had a beer with him. He agreed that he knew the plaintiff was being evicted and said it had happened just about an hour before that. He said the plaintiff 'was basically getting the hurry along from the place'. He said it was well after lunch, 'like late arvo' and there were a couple of other people there, 'Ben Duckett was floating around' and Jeff Conway, whose nickname was Junior, who lived there with his missus, was also there. He made no mention of a John Chaney.
When asked to hone in on who was actually in the courtyard at the time of the incident he said it was the plaintiff, Jeff and himself. He testified, however, that he was there for about 10 minutes having a beer and then he left and drove to South Terrace on the foreshore in Perth to try to arrange some accommodation for the plaintiff and he had just arrived and made it upstairs when he received a phone call from Jeff Conway telling him the plaintiff had died. Plainly then he was not there at the time of the accident. He said he drove back to Monger House, by which time the plaintiff had just left in the ambulance.

There is no suggestion that the defendant and the management of Monger House agreed that there would be any meeting with all of the boarders held at the beginning of the works, or that fliers distributing information about the progress of the works would be delivered to each room.
The defendant appeared to have an expectation that the management would tell the boarders something about the works from time to time, but his evidence was very vague and there is no evidence that the management did give any such information to the boarders.
Even assuming they may have done so from time to time in passing conversation, or that boarders may have enquired from time to time, there were many boarders staying at Monger House and there is no evidence at all of any systematic means of informing them all, or for that matter any of them, about the progress of the works and the relevant exclusion zone in place on any particular day.
Exclusion zone 1 at least had some back-up measures. The gate at the right side of the building could be kept locked. It is not necessary to make a finding about how many times per day the gate was opened because it is not suggested that the plaintiff could have gained entry to the courtyard that day without going past the defendant who was working at the end of the corridor.
The defendant also placed an orange plastic barrier near that same gate and at the end of that corridor. I accept his evidence in that regard. The presence of a worker at ground level in that corridor would also serve to warn any boarder who had found his way into the corridor. There was also scaffolding down that same corridor which would also have been noticeable to any person planning to enter the corridor. None of that impacted on witnesses who had no particular need to enter Monger House through that corridor, like the plaintiff. He went through the front door. The metal swing sign near the garage off to the side is irrelevant really. It was unlikely to deter anyone from entering the exclusion zone. In any event, these back‑up safety measures have no relevance to the accident itself because the plaintiff cannot have gained entry to the courtyard via that corridor.
There can be no question that the defendant knew of the risk of injury to the boarders at Monger House if they came to enter the exclusion zone during the works. That was the logic behind the exclusion zones. The defendant volunteered that evidence and confirmed it in cross‑examination. He also knew that there was a risk that, notwithstanding his arrangements with the management of Monger House, a boarder might enter the work zone. I infer as much from his evidence that his men were under specific instructions that, if they saw anyone within the exclusion zone, they were to tell them to get out.
Exclusion zone 2 had no back-up safety measures in place in relation to the rear doors. The two doors, upstairs and at ground level, were to be locked when the workers arrived, then unlocked when they left for lunch, locked again on their return, then unlocked on their departure. If Shane or Eric forgot to lock the doors, the boarders would be able to access the courtyard. The defendant took no steps to ensure the doors were locked prior to commencing work. He did not check them at all.
There is no evidence that a sign was placed on either of the rear doors. The defendant expected there to be such a sign, but never saw one. It follows obviously there was also no evidence as to whether any sign was sufficiently attention‑grabbing to be noticed by people who walked through the doors routinely, and whether any sign became invisible if the door was open.
Even if there were signs as the defendant expected there to be, any signs would be likely to be ineffectual. Exclusion zone 2 was only in effect when the workers were on site. From the late afternoon, overnight and first thing in the morning, there was no exclusion zone 2. The boarders could enter the courtyard at will. Likewise at lunchtime they could get about the premises unrestricted. That means, during those times, the boarders would have become accustomed to utterly ignoring any warning sign on a door.
The only means of practically keeping them out was to ensure the doors were locked and remained locked at all relevant times, that any alternative entrances were barred, that no boarder had access to any key if he found the door locked and needed to access the courtyard, and that no‑one was already in the courtyard or laundry block or toilets when those doors were locked.
There were no orange plastic barriers erected on the exterior side of the two doors to guard against exit during the hours of work should the doors have been accidentally left unlocked. That was no onerous task. The defendant explained that the barriers in exclusion zone 1 simply consisted of orange grid plastic affixed at either end to two pickets. The barriers were lightweight and were rolled up at the end of the day and stored away. Of course, a person bent on entering the courtyard could have simply moved the barrier, but it would have flagged to them that they ought not enter the courtyard. Any such barriers were exterior to the building and within the responsibility of the defendant.
There were no warning signs erected anywhere in the courtyard, either warning boarders not to enter due to the roof works, or informing them of the risk. Again, any such signs were the responsibility of the defendant. Placing obvious visible signs at the two entrance doors and in the courtyard generally was not an onerous task.
The defendant was aware that his workers on the roof had very limited ability to see if anyone was in the courtyard below. From his position around the corner in the right corridor, he could not see into the courtyard at all. He and his workers were therefore in no position to know if the courtyard was unoccupied. They were working blind. And there was no obvious presence of a worker on the ground to deter the boarders from entering, unlike in exclusion zone 1. Those factors combined increased the need for precautions.
There was another factor which increased the need for precautions. Exclusion zone 1 allowed life to go on relatively as normal, apart from the fact that the number of accessible toilets was reduced from two to one during the hours of the works. Exclusion zone 2 denied the boarders access to all external amenities, including the only two toilets and the showers.
The defendant was well aware of that. He had specific discussions with Eric of Monger House about that very issue. The defendant must have been well aware that exclusion zone 2 was very inconvenient for the boarders, at least some of whom would be likely to use the toilets, showers, laundry and clothes line during the day if they were able to gain access to them. The defendant was also well aware that the second exclusion zone would not be enforced at lunchtime, for that very reason. Unless the boarders were well informed about the process, if they found the door open and wished to use the facilities they were likely to enter the courtyard. There is no evidence they were kept informed and the on‑off nature of the second exclusion zone increased the risk of misunderstanding.
I find the defendant did breach his duty of care to the plaintiff. The arrangement reached with the management of Monger House was inadequate to guard against a boarder entering the exclusion zones and was particularly inadequate in respect of exclusion zone 2. The safety precaution employed by the defendant in relation to exclusion zone 2 amounted to complete reliance upon someone from Monger House hearing and registering the fact that the builders were on site and locking both doors. That complete reliance was naive and unjustified given that it was entirely foreseeable that a person who was otherwise occupied might simply forget to lock the doors. The defendant took no steps to ensure the doors were locked. No other safety precaution was put in place.
It remains to consider the provisions of the Civil Liability Act 2002 (WA). Section 5B applies to any claim for damages 'for harm caused by the fault of a person'. 'Harm' is defined to include personal injury. 'Fault' is not defined, but must include a breach of a duty of care: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79 [233] (Pullin JA). Section 5B therefore applies to this case.
It provides:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
The factors mentioned in s 5B(2)(c) and s 5B(2)(d) are to be balanced against the factors mentions in s 5B(1)(a) and s 5B(1)(b).
I find the risk of an occupant of Monger House, namely one of the boarders, being injured by tin flying or being deliberately thrown from the roof was foreseeable. The defendant accepted as much, even in circumstances where a new sheet of tin flew off the roof.
That risk was not insignificant. In fact it was a significant risk in circumstances where the defendant testified there were 1,400 old sheets to be replaced with new sheets, there were access issues with the site which necessitated fairly basic methods of construction, and there were perhaps some 40 boarders coming and going.
I find that, in the absence of adequate precautions being taken to ensure the boarders did not enter the work zone, there was a probability of one or more of them being injured by being struck by tin coming down from the roof. If that occurred, the likelihood was that the person struck would incur serious, if not fatal, injuries. The defendant described the manner in which the tin sheets tended to fall – not dropping straight down like a stone, but wafting back and forth like a feather dropping. There was therefore a real risk of very serious laceration. The plaintiff in this case was most fortunate that the clothes line interrupted the fall of the tin. The defendant testified that the sheet of tin was suspended on the lines.
In those circumstances, I find that a reasonable person would have taken precautions to guard against that risk. The defendant appreciated the risk and did take some precautions. Those precautions were simply inadequate, however, to guard against the risk. The precautions I have identified which were not taken – barricading both doors with easily removable orange plastic barricades during the period they should have been locked, putting clear and obviously visible signs at all possible entrance points directing the boarders not to enter the exclusion zone, checking that the doors to the courtyard actually were locked and that no‑one remained in the exclusion zone – the courtyard, laundry, showers or toilet - before commencing work were all quite simple safety precautions to take, involving very modest expense by way of extra signage and barricading and some little extra time by way of checking the doors and checking for stragglers in the exclusion zone. Offset against the very modest burden of those extra precautions, the risk of serious injury to a boarder was obvious and must take precedence.
Finally, in terms of the social utility of the activity which creates the risk of harm, this is not a case in which imposing onerous safety precautions will have the unfortunate effect of making it economically untenable for the defendant to continue to provide a necessary or desirable or laudable service to the public, or the deserving. This was a commercial contract to repair the roof of a privately owned building for the purposes of converting very basic accommodation into apartments. That factor does not weigh against imposing liability.
Given those circumstances I find that a reasonable person in the defendant's position would have taken the precautions I have outlined and the defendant failed to do so. Factual causation was not otherwise in issue. It was entirely uncontroversial that one of the defendant's crew working on the roof, for whom he was responsible, had dropped or lost hold of the sheet of tin that fell and injured the plaintiff. But for the failure of the defendant to ensure the plaintiff did not enter the exclusion zone, the plaintiff would not have been injured. The failure of the defendant to take those adequate precautions was a necessary condition of the occurrence of the harm: s 5C(1) Civil Liability Act 2002. It need not have been the sole cause of the harm. Leaving aside the issue of contributory negligence, which I will turn to shortly, no other matter was raised or put in issue in the pleadings or at trial to suggest that liability should not be imposed upon the defendant. Subject to the issue of contributory negligence, I find the defendant is liable for the injury which resulted.

Findings in relation to contributory negligence

The defendant's claim of contributory negligence on the part of the plaintiff is based upon assertions that he: (a) failed to heed the warnings he was given; (b) ignored the barricading of the area; (c) gained access by some unlawful means; and, (d) remained in the area knowing works were being undertaken there. I reject the proposition that the plaintiff was guilty of contributory negligence.
As to (a), there is no satisfactory evidence that the plaintiff was given any warnings. There is no evidence there was a sign on the rear ground floor door. Even if there was, it was a sign to be ignored at multiple times during the day and night. Particularly, it was a sign to be ignored during lunchtime when the workers left the site. There is no evidence, indeed no suggestion, that the boarders at Monger House were ever given information about the works in any organised way. The defendant had an optimistic hope that Shane or Eric might be giving the boarders information from time to time, but there is no evidence they did and, with maybe 40 boarders coming and going, the likelihood was that the information would be very ad hoc. There is no pleading relying upon s 5N of the Civil Liability Act 2002.
As to (b), the only barricading in exclusion zone 2 that is relevant was the rear door which was supposed to be locked. If it was locked, the plaintiff could not ignore it. The only evidence as to how he gained access to the courtyard was his, to the effect that he entered through that door, the same door through which others gained access to the courtyard in the moments following the accident. The only evidence that the door was locked is an assumption made by the defendant. I find the door was unlocked. There was no other barricading to be ignored.
As to (c), there is no evidence the plaintiff gained access to the courtyard through unlawful means.
The allegation in (d), namely that the plaintiff remained in the area knowing works were being undertaken there, merits some consideration. The question of contributory negligence has to be approached on the basis that the defendant failed to discharge his obligation to take reasonable care. The court must then consider whether any act on the part of the plaintiff amounted to a contributory cause of the accident and, in considering the role of the plaintiff in causing the accident, if any, whether his conduct amounted to negligence, or mere inadvertence, inattention or misjudgement: McLean v Tedman.
In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 [10]; (1985) 59 ALJR 492 the court explained (authorities cited removed):
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
The issue is now governed by the Act. There is no evidence that the plaintiff was intoxicated. He testified he had one drink and no evidence has been put before me to suggest a high blood alcohol reading. There is no need therefore for me to consider the presumption of contributory negligence contained within s 5L.
Section 5K provides:
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose —
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
It is clear that the plaintiff knew there were repair works being conducted on the roof. He had been aware of that for some two or three weeks, since he was awakened one morning by tin raining down outside his bedroom window. After that, he periodically saw people working up on the roof. He was also aware of scaffolding.
The first exclusion zone, however, had little or no impact on his day‑to‑day movements it seems, and that is not implausible. He said his movements around the property were unrestricted, apart from the side gate which was occasionally locked. But of course entry could be gained to his bedroom through the main front door, without any need for him to go through the side gate. Unless the plaintiff spent every waking moment at Monger House, he would pay little heed to any restrictions in his movement when he was not there and probably no heed to restrictions which had no impact on him, particularly as the exclusion zone became an unrestricted zone once the workers left for the day.
He gave no evidence about whether he noticed any change in the restrictions in the last two days prior to the accident.
The plaintiff had said in his statement: 'I was aware of the work being done. It was difficult not to be aware because of all the banging and clanging going on'. Given the degree of noise that I expect inevitably accompanied dragging tin up onto a roof and tossing old tin over the side, not to mention screwing sheets in place, I infer that the plaintiff and others around Monger House that day could probably hear the roofing work throughout the day. No doubt they were pretty used to the noise by the time the job was in its third week.
Common sense would alert any reasonable person to the likelihood that being hit by a piece of flying tin would result in injury. That is a different question, however, from whether the plaintiff was, or ought to have been, alert to the risk that he might get hit by a piece of flying tin if he stayed in the courtyard having a drink with his mates.
The evidence is that tin had been progressively dropped from the roof into the corridor down the right side of the building. Given how long the works had been going on for and given the plaintiff's evidence and the evidence of Mr Ford about the amount of tin coming off that side of the building, it would be reasonable to assume they were, or ought to have been, aware of the risk of being hit by a piece of flying tin if they ventured down that corridor during the hours of the roofing work, past the locked gate and the orange barriers.

There is no satisfactory evidence that tin had ever been dropped off the roof into the courtyard, however. The defendant testified that he did not want tin dropped into the courtyard given the presence of the clothes line. He also said the old tin sheets could be put under one arm and walked across the roof, unlike the new tin sheets which were larger. I infer from his evidence then that they were still using the corridor on the right side of the building to drop the old sheets but the defendant appreciated there was still the risk of tin dropping from the roof into the courtyard, particularly the new sheets which, as he explained, could not be safely left attached to the plank on which they were hauled up because of the design of the roof at the rear section. It was his appreciation of that risk, which was not insignificant, which necessitated exclusion zone 2.
The plaintiff did testify that, about 10 minutes prior to the accident, he witnessed an elderly gentleman who was walking to the washing house narrowly miss being hit by an offcut of tin coming from the roof. The defendant put it to him that this was a fabrication, which he denied. For reasons stated earlier, I am not prepared to treat the evidence as reliable, coming some nine years after the event and not having been mentioned in his statement to the WorkSafe investigator. There is a real risk that the evidence is the result of post‑event discussions with others conducted soon after or possibly quite a long time after the event and those discussions may also have been unreliable.
I find a person in the courtyard would have been able to hear roofing works and may have seen the workers up on the roof, but I am not prepared to find that a reasonable person in the plaintiff's position would have appreciated the risk of being hit by flying tin in the courtyard. While there is no pleading relying upon s 5N of the Civil Liability Act 2002, I will add, the defendant being unrepresented, that had there been such a pleading, I find the risk was not obvious.
While the plaintiff's evidence was that he had done some work in the building industry and had done a couple of days labouring for his friend Mr Jennings, a roof carpenter, it was not suggested to him that he has any serious experience in the roofing industry and must have had an informed understanding of how the workers were likely to operate at Monger House or how they were operating that day. In fact the defendant testified that the methods used on this job were not standard for such a job on a modern building site but were caused by the restricted access of the site.
I consider a person in the courtyard is unlikely to have appreciated that the workers could not see him if he was within about 6 – 7 m of the wall closest to them and would have assumed they were aware of his presence. He is likely, I find, to have assumed they would not throw sheets of old tin off the roof if they knew he was in the courtyard below and, indeed, to the extent to which there is any evidence about the cause of the accident, it seems that they did not throw an old sheet of tin off the roof. I am unaware of whether the workers knew he was in the courtyard or not.
Further, if the rear door was not locked to bar his entry, which I have found it was not, and given that there was no orange barrier or warning sign or sign telling him to keep out of the courtyard, I find he is likely to have assumed there was no difficulty with him being in the courtyard. He had told Eric that he had a lot of stuff and the defendant recalled seeing at least his tools and his open carton of beer in the courtyard. In the absence of any evidence that anyone from Monger House told the plaintiff he must not put his things in the courtyard given the exclusion zone and the risk of injury, the courtyard was an obvious place for him to put his things while waiting for a lift to alternative accommodation.
Further, given that he was around Monger House for much of the day vacating his room, he was there at lunchtime when the defendant and his workers took off for lunch and the courtyard, including the toilet, showers, laundry room and clothes line, was available for everyone to use. In the absence of evidence that, once the workers returned, there was an announcement made by Shane or Eric of Monger House, which the plaintiff heard, that the courtyard was now a no‑go zone, coupled with a gathering up of anyone who might have been outside using the facilities, and that the doors were duly locked from that point on, the plaintiff would have no reason to think he could not continue to use the courtyard.
Exclusion zone 2 had only been in place for the previous two days and was very different to the routine of the previous three weeks. It must have been very inconvenient for the boarders who were about Monger House during the hours of the roofing repairs. The defendant testified that he and Eric had discussed the difficulties with the exclusion zone, particularly as it meant denying the boarders the use of any toilet during the hours it was in place. I find it inevitable that, unless the boarders were physically prevented from gaining access to the courtyard, they would both access the courtyard, and assume they were entitled to do so.
The only act the plaintiff did which contributed to the accident was to be present. There is no evidence that he flouted any instruction given to him by anyone, or that he was sufficiently informed of the risk such that a reasonable person in his position would not have stood in the courtyard. At its highest for the defendant, I find the act of the plaintiff in being present in the courtyard while there were workers on the roof amounted to mere misjudgement on his part of the situation he was in.
In the circumstances I consider it inappropriate to apportion any responsibility for the accident to the plaintiff.

Conclusion

I find the defendant is liable to the plaintiff for the harm suffered when he was struck by the tin. The plaintiff is not barred from pursuing his claim against the defendant by virtue of the terms of the settlement reached between the plaintiff and Monger House Pty Ltd.
Because of the order of this court dismissing the plaintiff's case against Monger House Pty Ltd, the defendant has no right to contribution from Monger House Pty Ltd.