Davis v Nolras Pty Ltd

Davis v Nolras Pty Ltd - [2005] NSWCA 379 - NSWCA 2005 case summary — Zoe

[13]

The racking system, its use, and PPSC's method of dismantling it 10 Rein DCJ described the racking system from which Mr Howell fell as: "[A] steel structure bolted together about six metres high with each level approximately two metres high. On each level was a chipboard or particle board panel laying across the metal beams and being screwed in at the corners to the frame. The system also had chipboard panel at the top of the structure." 11 In other words, the structure consisted of a steel frame about six metres high with chipboard shelving (about 18 millimetres thick) affixed to the frame. The steel frame consisted of uprights and horizontal members. Each chipboard shelf rested on four steel horizontal members forming part of the framework. Each end of each shelf rested on a horizontal member. Two other horizontal members "roughly a foot apart" passed under the length of each shelf. Each corner of the shelves was secured by a "wingtek" screw to the horizontal member underneath. 12 The rolls of shade cloth that had been stacked on the shelving were from four metres to about six metres long and about "a foot, a foot and a half" in diameter. Generally, they extended across the full length of each chipboard shelf. 13 Mr Davis had been involved in the installation and dismantling of pallet racking for about two years and three months before his accident. He explained: "Generally with dismantling a pallet rack we'll generally start from the top of the pallet racking. When dislocating the pallet racking on a rack that is 6 metres high we would generally start from the top dismantling the beams and anything that's on top of those beams so that there was nothing left above us therefore working our way to the ground level by level." 14 According to Mr Davis it was necessary to walk on each chipboard shelf to unscrew the wingtek screws before removing the shelves. Once the screws had been removed, a forklift operated by another PPSC employee would remove the loosened shelf. 15 Walking on the chipboard shelves was a risky business. Mr Davis said that if a shelf was damaged "it would be vulnerable to cracking and falling through". It was difficult to detect whether a shelf had indeed been damaged. The PPSC employee charged with dismantling a racking system would first make a visual inspection of the system while standing on the ground. He would then inspect the front face and sides but only at the first level. He could not inspect the other levels while standing on the ground. He would have to make a visual inspection of those as he was "going along". 16 The purpose of the inspection was to make sure "that the rack was secure at the base and that the beams weren't going to pop out as we walked on them". Mr Davis said that he would look for "usage damage" which he could "spot". He said that water damage was "something that's not easily seen". 17 Mr Davis made it plain that, whatever visual inspection occurred, the risk of a shelf cracking or breaking was ever-present. For that reason, when walking on upper chipboard shelving, he would proceed one step at a time, and attempt to place his feet on that part of the shelf that crossed the two central horizontal steel members (although this was not easily accomplished). He said that if he heard "cracks or creaks" he would know that there was a danger. If he did not hear a crack or creak he would keep going.

[15]

The failure to maintain and repair the roof 22 In my view, the argument that Nolras breached its duty of care by failing to maintain and repair the roof is without merit. While Nolras, as occupier, owed Mr Davis a general duty of care, the content or scope of that duty did not extend to repairing the roof. Put in another way, Nolras did not breach that duty by failing to maintain and repair the roof. 23 In Jones v Bartlett (2000) 205 CLR 166 Gummow and Hayne JJ pointed out (at [166] to [167], 213) that in determining the content of a duty of care in a particular case it is "of no utility merely to conclude that the duty is to be expressed simply as one to take reasonable care to avoid a foreseeable risk of injury to a person in the situation of the appellant". Their Honours observed: "That would be to leave unanswered the critical questions respecting the content of the term 'reasonable' and hence the content of the duty of care, matters essential for the determination of this case, for without them the issue of breach cannot be decided." 24 In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Gummow and Hayne JJ at [192], 611 to 612 emphasised the importance of the need "to identify with the necessary precision, by reference to considerations of the nature of those indicated in Wyong Shire Council v Shirt (1980) 146 CLR 40, the reasonable response to the risk of harm that existed". 25 The risk of harm in this case was the risk of injury to a person falling from a water-affected chipboard shelf. It is that risk that had to be eliminated. What is reasonable has to be determined by looking at the situation before the accident, not after: Vairy v Wyong Shire Council [2005] HCA 62 at [49] and [126]. 26 One way in which the risk of injury from falling from the weakened chipboard shelf could have been eliminated would have been to place appropriate warning signs at appropriate places in the vicinity of the shelving. Another way would have been by identifying and removing the affected shelving. 27 It is not clear, on the evidence, whether maintenance and repair of the roof by Nolras would have eliminated the risk. The evidence did not establish for how long the roof had been leaking, for how long Nolras had occupied the premises, for how long the water had come into contact with the shelf from which Mr Howell fell, and whether the shelf only became affected by water after Nolras occupied the factory. Had the shelf been weakened before Nolras became the occupier, the maintenance and repair of the roof would have been pointless. 28 There are also difficulties in inferring, on the evidence, that Nolras should have foreseen that a failure to maintain and repair the roof would lead to a person being injured by a structurally weakened chipboard shelf. This requires knowledge by persons, whose knowledge is to be attributed to Nolras, that water in quantities that might damage the shelving was falling or might fall on to the shelving, and that someone might walk on that shelving. Apart from the fact that at the time Mr Davis was injured, Nolras employees were working in the vicinity (and the evidence does not identify who the employees were, or their level of authority or experience, or the particular nature of their work) there was no evidence of this kind. 29 Moreover, no attempt was made in evidence to lay the foundation for the evaluative process required by Wyong Shire Council v Shirt to be undertaken. There was, as I have said, no evidence of the relevant period over which the failure to maintain and repair the roof led to the shelf being damaged. The cost of maintenance and repair may well have been more than the identification and replacement of any defective shelves. Common sense leads to the conclusion that the cost of maintaining and repairing the roof would have been far more than the cost of erecting warning signs. 30 In my opinion, repairing and maintaining the roof was not a reasonable response to the risk of harm that existed. 31 Accordingly, I would reject the argument that Nolras breached its duty of care as occupier by failing to repair and maintain the roof.

[16]

The failure to warn: proof of Nolras's relevant knowledge 32 It was submitted on Mr Davis's behalf, that Nolras knew or should have known, firstly, that water had affected the chipboard shelf from which Mr Howell fell, secondly, that, in consequence, the shelf had been weakened to the extent that it might not be able to bear the weight of a man, and thirdly, that a visitor to the factory premises might stand on the shelf and, because of the defect in it, fall. These submissions underpinned Mr Davis's argument that Nolras breached its duty of care by failing to warn him that rainwater had come into contact with the shelving and had affected it. 33 In examination in chief it was put to Mr Davis that, prior to his injuries, he had been to the factory as a PPSC worker, doing work for Nolras, "maybe three times" over a period of a couple of years and he replied in the affirmative. It may be accepted from this evidence that Nolras occupied the factory for a period of at least "a couple of years". 34 According to Mr Davis, on one of the days in which he had so visited the factory, the weather had been wet and he had to move electrical leads because of puddles on the floor. He said that the water he observed on this prior occasion was not in the particular area where he fell. He said: "We hadn't really worked much in that particular spot". Nevertheless, this evidence, together with Mr Davis's evidence as to the gaps in the roof and the position of those gaps (over the racking system), leads to the inference that, on occasions during the period of Nolras's occupation, water penetrated the factory from the roof and came into contact with the shelf that caused Mr Howell's fall. This leads in turn, I think, to the inference that Nolras knew or should have known that from time to time water must have come into contact with that shelf. 35 The next question is whether Nolras knew or should have known that the water would have affected the chipboard shelving of the racking to the extent that some of the shelves were substantially weakened and not safe to stand on. 36 Rein DCJ said that, assuming that Nolras knew that water had leaked onto the chipboard, "it would not follow that it was aware that the effect of such rainwater would be to produce an effect on the structure and integrity of the chipboard, which effect would not be visible upon inspection by those dismantling and would present a danger to experienced dismantlers in proceeding with their task". I agree with this observation. 37 There was no evidence as to the kind of chipboard used on the racking, the degree of compression of the woodchips of which it was constituted, its strength, its permeability and resistance to water, and whether it was more or less susceptible to the effects of water than other chipboard. In the absence of evidence as to any knowledge on the part of Nolras as to the quality and characteristics of the chipboard, and the extent to and frequency with which water came into contact with it, it is not possible to find that Nolras knew or should have known that the leaking rainwater might cause the shelves to crack when stood upon. It was submitted on Mr Davis's behalf that this was a matter of common knowledge of which judicial notice should be taken, but I do not accept that. I think it is common knowledge that there are various kinds of chipboard materials which have different characteristics and different degrees of water resistance, but no more than that is common knowledge. 38 Thus, in my view, Mr Davis did not establish that Nolras knew or should have known that water might have destroyed the weight-bearing capacity of the shelf from which Mr Howell fell. Accordingly, I would dismiss the appeal as to liability on this ground alone.

[18]

This observation was qualified by their Honours' subsequent statement (also at 30) that: "It is one thing to leave it to an independent contractor to decide for himself how to do his work; it is another thing to leave him in ignorance of a fact that is material to his decision if he, using reasonable care, might not discover that fact." 40 PPSC was an expert in the business of dismantling racking systems of the kind from which Mr Howell fell. Nolras had entered into a contract with PPSC where PPSC undertook to dismantle the racking system at the factory. The question therefore arises whether the water-affected shelf constituted a defect in the factory which PPSC, as an expert in dismantling racking systems, was accustomed to meeting and safeguarding its employees against. Put in another way, was it reasonable for Nolras to rely solely on PPSC and its employees, as experts in the field, to take appropriate steps to safeguard themselves against water-affected shelves and not warn them that rainwater had come in contact with the shelving. 41 Part of Mr Davis's work had been to replace damaged chipboard shelves found in other factories. He testified that he had previously seen chipboard that had been affected by water. He was asked, in evidence-in-chief, how, in the course of dismantling racking systems, he would determine whether a shelf was so water-damaged that it needed to be discarded. He explained that, in that event, the shelf would be removed so that could be examined. On closer inspection, he would look down "the edge" of the shelf as that would give "an indication as to the swelling". He said that that was "generally the only indication you can get". Mr Davis testified that, while damage to shelving caused by "usage" was a "visible thing", water damage could not be detected by ordinary inspection of a racking system. The tenor of his evidence was that the presence of a water-damaged shelf was not a surprising phenomenon. 42 Mr Davis agreed that in the course of his work he would not infrequently "come across racking systems which had been damaged in some way". This included damage to "the chipboard material used in the middle". He said that this was a common experience in his employment. When PPSC employees realised that a shelf was damaged they would have adopt a procedure different to the one they usually used. Mr Davis said, "We'd take an hour longer but we would deal with it." 43 The following exchange occurred in the course of Mr Davis's cross-examination: "Q. It was quite common for pieces of chipboard to be damaged by water, is that right? A. Generally if it was on the outside perspective, yes, but in a warehouse the only generally [sic] damages we look for are a usage damage [sic] and they're quite noticeably [sic]. You can see them quite well and truly. Q. You say, generally, but they're occasions when the chipboard would be damage[d] wouldn't it? A. From water damage? Yes. Q. Inside the warehouse? A. That's correct. Q. Other than this occasion? A. Yes." 44 I would interpose the comment that it seems from this exchange that chipboard could be used as shelving in racking systems that were "outside" and not under cover; this reinforces the proposition that some kinds of chipboard would be able better to withstand water than others (otherwise chipboard shelving could not be used outdoors). 45 Significantly, this exchange also confirms Mr Davis's other evidence that on occasions he would find chipboard shelving, used internally, that had been damaged by water. 46 Mr Davis confirmed that he knew that water-damaged chipboard shelving might be unable to support a person's weight. He accepted that one of the hazards of his occupation was that the shelves might have a defect "that couldn't be detected and may not support a weight". I have referred to the method adopted by PPSC employees to cope with such a hazard, namely, when walking on an upper shelf, they would traverse the shelf gradually, one step at a time, and would attempt to place their feet where the shelf was supported by the two central horizontal steel members. If they heard cracks or creaks they would stop and investigate. If they did not hear a crack or creak, they would keep going. 47 This does not appear to be a safe method of work, but it was adopted by PPSC and Nolras bore no responsibility for it. Nolras had contracted with PPSC to dismantle its racks and it was entitled to assume that it would take appropriate care for the safety of its employees, subject to any unusual or unexpected risks on the premises. 48 The evidence establishes that PPSC and its employees were accustomed to meeting and safeguarding themselves against the possibility of shelves being structurally damaged by water. The fact that water-damaged shelving may have been encountered relatively infrequently did not make the existence of such a defect unusual in the sense of being a fact that a PPSC employee, "using reasonable care, might not discover". Having to deal with a water-damaged shelf from time to time was not an unexpected phenomenon. It was simply part of the job which PPSC, as a specialist racking system dismantler, had contracted to undertake. 49 Therefore, in my opinion, in the circumstances of this case it was reasonable for Nolras to rely on PPSC's employees to take reasonable care for their own safety should they encounter water-affected shelving. In my opinion, a warning by Nolras was not a reasonable response to the risk of harm that should have been perceived by it. In my opinion, the principle expressed in Papatonakis applies. 50 Accordingly, I would not uphold Mr Davis's failure to warn argument.

[19]

Conclusion 51 I would not uphold Mr Davis's arguments as to liability. In the circumstances, there is no need to address the arguments advanced as to quantum. 52 I would dismiss the appeal with costs. 53 M W CAMPBELL AJA: I have had the advantage of reading in draft the judgments of Ipp JA and Brereton J. I agree with the orders proposed by Ipp JA with which Brereton J agreed. 54 Subject to what follows I agree substantially with the reasons given for those orders. 55 Ipp JA did not regard the circumstance that the defective chipboard was indoors rather than outdoors as a distinguishing feature in considering whether it was, in the relevant sense, an unusual danger [45], [49]. On the other hand, Brereton J did so regard it [68] to [71]. 56 This distinction led to somewhat different approaches to the disposition of the appeal so far as it was based on an allegation of failure to warn. 57 If it be assumed that the circumstance referred to is not a distinguishing feature I agree with Ipp JA's reasons in relating to the alleged failure to warn. If, on the other hand, it be assumed that it is a distinguishing feature I agree with Brereton J. 58 It does seem to me that the facts that the building was "very, very old", had a roof which showed light through crevices and that there were puddles of water on the floor in wet weather at times when employees of PPSC were present rather support the view taken by Ipp JA. However, it is not necessary for me to reach a conclusion on the point for either alternative leads to the same result. 59 BRERETON J: The appellant Nathan Davis was an employee of Pallet Packing Supply Company ("PPSC"), whose business included the installation and removal of pallet racking systems. The respondent Nolras Pty Ltd contracted PPSC to dismantle and remove a pallet racking system, the shelves of which were made of chipboard, from factory premises occupied by Nolras. While Mr Davis and his co-worker Mr Howell were dismantling the racking, a shelf on which Mr Howell was standing fractured and he fell to the ground. Mr Davis saw that one fragment of the chipboard had flown into the air and, fearing that it would land on and injure Mr Howell, he dived onto his knees and caught it, injuring his knees in the process. The chipboard shelf was unable to support Mr Howell's weight because it had been affected by water which had entered the factory during wet weather, through holes in the roof.

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Parties

Cases Cited (9)

Cited By (2)