Dettmer v K J McCracken Pty Ltd & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40353/01 DC 7794/98

MEAGHER JA STEIN JA CAMPBELL AJA

Friday, 28 June 2002 Douglas Ronald DETTMER v K J McCRACKEN PTY LIMITED and Anor

The appellant, Mr Dettmer, was a sub-contractor to the first respondent, K J McCracken (McCracken), which in turn was performing building and maintenance works for the second respondent, The State of New South Wales. The sub-contract works included the removal and replacement of a number of damaged awnings at Merrylands High School. In the course of carrying out the building works, the appellant fell from one of the awnings and injured himself.

The appellant sued the first and second respondents in negligence for damages for the injuries he suffered. The State was sued in two capacities as occupier of the school site, through the Department of Education and also the Department of Public Works, which let and supervised the head contract with McCracken.

At the trial the appellant argued that McCracken owed him a duty of care notwithstanding that he was a subcontractor of McCracken. However, Judge Ainslie-Wallace found that the evidence fell far short of establishing the required elements of control as indicated in Stevens v Brodribb Sawmilling Co Pty Limited (1985 - 1986) 160 CLR 16. Her Honour also found that no special relationship between the parties, such as would lead McCracken to owe a non-delegable duty of care to the appellant, was established. Further, the trial judge rejected the submission that McCracken ought to have known that the awning was unsafe and had a duty to warn the appellant.

On the issue of liability of the second respondent, as occupier of the site, her Honour found that it was a reasonable inference on the evidence that the second respondent ought to have known of the defective state of the awning. However, the judge concluded that the knowledge of the second respondent was insufficient to give rise to a duty to warn the appellant that the work it had engaged McCracken to do, and through it, the appellant, would cause the structure to become unstable.

It is submitted by the appellant that her Honour was in error in finding that no special duty of care was owed by the first respondent to the appellant notwithstanding that he was a subcontractor. The appellant submits that McCracken held a position of authority and control over him and that he relied on the expertise and skill of McCracken to ascertain the safety of the awning.

The appellant makes a similar submission with respect to the second respondent, in particular, it was submitted that a proper examination of the awning would have revealed that it was unsound and unsafe.

Held (per Stein JA, Meagher JA and Campbell AJA agreeing)

1. Officers of the first respondent did not direct the appellant in any material way as to how he was to carry out the works the subject of the subcontract. Rather, the first respondent relied on the skill, experience and knowledge of the appellant to carry out the building works and assess the structural adequacy of the awning in question.

2. The second respondent had no part in instructing or directing the appellant as to how he should carry out the subcontract with McCracken. The system of work which the appellant adopted was completely a matter for him and it was the appellant who devised the system of work which he would follow in order to carry out his subcontract.

3. The trial judge was entitled to find on the evidence that the second respondent had insufficient knowledge to cause it to know that the removal of the roofing sheets, in the manner determined by the appellant, would cause the awning to become unstable.

4. The principles in Stevens v Brodribb can be distinguished in this case. It does not concern a situation where the appellant was engaged in a business being conducted by another party, nor did the accident occur because of the interdependence of two or more trades or work skills and the absence of any system to regulate that interdependence.

5. The contractor did not owe a duty of care to his subcontractor to devise a safe system of work for the subcontractor to carry out the work the subject of the subcontract or to relevantly warn the appellant.

Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40353/01 DC 7794/98

MEAGHER JA STEIN JA CAMPBELL AJA

Friday, 28 June 2002 Douglas Ronald DETTMER v K J McCRACKEN PTY LIMITED and Anor Judgment

1 MEAGHER JA: I agree with Stein JA. 2 STEIN JA: Introduction 3 The appellant, Douglas Ronald Dettmer, appeals from a judgment of Judge Ainslie-Wallace delivered in the District Court on 11 May 2001. Her Honour entered a verdict for the defendants, K J McCracken Pty Limited and the State of New South Wales, the respondents to the appeal. The appellant had sued for damages for injuries he suffered when he fell from an awning while undertaking building work at Merrylands High School on 10 February 1993. The appellant was a sub-contractor to the first respondent (McCracken) which in turn was performing building and maintenance works at the school for the second respondent, the State of New South Wales. The State was sued in two capacities as occupier of the school site, through the Department of Education and also the Department of Public Works, which let and supervised the head contract with McCracken. 4 On the first day of the hearing in the District Court on 17 October 2000 it appears that the first respondent was placed in liquidation, however leave was given to the liquidator to defend the proceedings. The company was apparently insured with HIH. No appearance was filed by the first respondent in the Court of Appeal and there was no appearance on its behalf at the hearing of the appeal.

Facts 5 Her Honour carefully found the relevant facts and what follows draws upon her findings. The appellant was a roof plumber in partnership with his wife since 1975. The partnership employed the appellant's sons in the business. Mr Dettmer testified that his work involved installing roof plumbing and fixing roof sheeting, principally on large building sites. Occasionally, this would involve the demolition of roofs. The appellant said that he was a pioneer in the field of roof plumbing and, by dint of his efforts, apprenticeships in the trade were commenced. The first respondent was a firm of builders and contractors who had used the appellant as a sub-contractor for many years. 6 The Department of Public Works commissioned McCracken to carry out work on the repair and maintenance of the Merrylands High School. In December 1992 the appellant was asked by McCracken to quote for some roofing works at the school. The works were part of the first respondent's contract with the second respondent. The sub-contract works included the removal of a number of awnings in the school grounds. One of the awnings was attached to the school canteen, which abutted the playground. Most of the roofing sheets on the canteen awning were rusted or otherwise damaged. The appellant's quotation was to include the removal and replacement of the damaged roof sheeting and guttering to the awning. 7 Prior to quoting for the job the appellant inspected the site and the awnings. The appellant submitted a quotation in the sum of $13,796 which, by letter dated 18 January 1993, was accepted by McCracken. The acceptance letter nominated Mr Don Pillay as its site representative and made reference to the 'subcontract conditions' which were available from the site representative. The letter annexed a document describing the relevant sub-contract conditions. This included clauses providing for the contract payment to be by way of a lump sum and for insurance to be taken out by the subcontractor. Working days and hours were specified. Liquidated damages were provided for, as was a defects liability period. 8 Besides Mr Pillay, the first respondent nominated a Mr Robinson as the site manager. Before quoting for the job the appellant had met Mr Robinson on site and had a discussion with him, which it seems was of a fairly general nature. While on site the appellant looked at what was required in a general way to obtain an idea of the scope of the work. He returned to the site later in January 1993 and measured the canteen awning so that he could quote a price for the job. In doing the measuring he stood beneath the awning. 9 The work the subject of the subcontract commenced at the beginning of February 1993. Her Honour described the progress of the work on the canteen awning as follows: The plaintiff commenced work on the roof by removing the gutter from along the outside edge of the awning. The plaintiff was assisted in the work by his son. The gutter was dismantled by first removing the bolts from the outside edge of the gutter which connected the gutter to the roof. This was done by the plaintiff's son who, according to the plaintiff, placed a ladder on the ground and leaned it against the roof. When the gutter was removed, the plaintiff said that he observed that the edge beam at the playground side of the awning was not a continuous beam running the length of the awning. Instead, the gutter was bolted onto a series of pieces of angle iron which were apparently held together by the guttering. The plaintiff said that when the gutter was removed the front edge of the awning dropped slightly and it was then that he realised that the edge was not a continuous piece of iron. After seeing this, the plaintiff had one of his sons weld the pieces of angle iron together to form a continuous piece. 10 A few days later Mr Robinson telephoned the appellant and told him that an overnight storm had caused problems with the awning on the playground side to the extent that the southern end had partly collapsed. It appears that Mr Robinson had caused an adjustable prop to be placed under that end to give it support. The appellant attended the site the next day and noted the prop. He also observed that the rafter beam at the southern end was not attached to the edge beam. The appellant formed the view that the gutter, which had run along the edge of the awning and which he had removed, had been holding the sides of the awning together. 11 The appellant discussed the matter with Mr Robinson and suggested that the awning be welded with some angle iron. It seems that Mr Robinson acquiesced in the suggestion and this work was performed by one of the sons of the appellant. Her Honour found that the appellant had the discussion with Mr Robinson in part to ensure that he could claim payment for the welding. 12 Importantly, her Honour said that, contrary to the appellant's evidence, she was not satisfied that he was directed by Mr Robinson to undertake any welding, although Robinson had clearly agreed to the welding being done. 13 The trial judge continued: The plaintiff's evidence was clear that when he saw that the edge beam was not a continuous piece of metal and, similarly, that the corners were not welded, he formed the view that those problems must be rectified before he did any further work and before he got onto the roof of the awning. It was his view that having done the welding described, the faults had been rectified. 14 Her Honour observed that there was no dispute on the evidence that the manner in which the awning had been constructed many years before, meant that the roof sheets were all that gave it lateral support. When they were removed the structure was significantly destabilised. It was also not disputed, by reason of reports obtained subsequent to the appellant's accident, that the awning was badly designed and poorly constructed.

15 The appellant's accident happened as follows. Before Mr Dettmer started to remove the roof sheets on the day of his fall, he had his son remove the rivets from the roof sheeting closest to the edge of the playground. The appellant then commenced his work by removing the rivets from the roof sheets closest to the canteen side. To do this, he stood on the roof sheet next to the one from which he was removing the rivets. After having removed the rivets from that edge, he removed the 'tek' screw in the centre of the roof sheet. He then removed the sheet and moved to the next sheet and repeated the process. At some stage he would pass the removed sheets to the ground for removal from the site. 16 At the time of his fall the appellant had removed at least 90% of the sheets. Mr Pillay and Mr Robinson approached the appellant and started to speak to him. Because the appellant was hard of hearing he decided to climb down off the awning. He turned and put his foot on the tek screw line in the centre of the sheet, felt something move beneath him and fell 3 metres to the ground. He was quite seriously injured. 17 While he was lying on his back on the concrete beneath the awning, he looked up and saw that a bolt was missing, which should have been fastened to the middle beam. The middle beam was twisted out of shape. The missing bolt and twisted beam were directly above where the plaintiff was lying and where he had been working prior to the fall. 18 In addition to lay evidence, the judge received three expert engineering reports. Her Honour concluded that she was satisfied that it was the twisting of the rafter beam which caused the appellant to fall, not that he had stepped onto an unsecured roof sheet. However, since the roof sheets provided the only lateral support, when they were removed from the awning, there was a sideways movement and rotation of the middle beam. The experts agreed that had the middle beam been securely fastened at each end, it would not have twisted. While one expert opined that the missing bolt was a major factor, he accepted that it was the removal of the sheets which allowed the twisting movement to occur.

19 No scaffolding was erected around the awning. The appellant's evidence was that the site of the awning was not amenable to the use of a scaffold. The appellant did not use a safety harness when he worked on the awning nor did he erect a safety rail around the edge. 20 The appellant's evidence was that he removed the roof sheets in the only way which he believed it could be done. He indicated that it was necessary for him to stand on the awning roof to remove the rivets and to be able to hold the drill directly above the rivet. No one told the appellant how he was to carry out the task of removing the roofing sheets, least of all any representative of McCracken, or for that matter the second respondent.

Judgment at first instance 21 At the trial the appellant argued that McCracken owed him a duty of care notwithstanding that he was a subcontractor of McCracken. The trial judge however found that the evidence fell far short of establishing the elements of control or other factors indicated by Mason J, as he then was, in Stevens v Brodribb Sawmilling Co Pty Limited (1985 - 1986) 160 CLR 16 at 24. Her Honour also found that there was not established any special relationship between the parties such as would lead to McCracken owing a non-delegable duty of care to the appellant (Kondis v State Transport Authority (1983 - 1984) 156 CLR 672). 22 Her Honour said: In my view the evidence does not establish the requisite degree of control and vulnerability in the circumstances of this case to give rise to a special duty of care. 23 The trial judge also rejected the submission that McCracken ought to have known that the awning was unsafe and had a duty to warn the appellant. Her Honour found that such knowledge as the first respondent had was insufficient to put it on notice 'any more than it alerted the plaintiff'. She added that the first respondent did not have any greater qualification or expertise than the appellant. 24 Turning to the issue of liability of the second respondent her Honour said: It is a reasonable inference on all of the evidence that the second defendant knew that the roof of the awning consisted of sheets which were rusted and/or damaged and that 90-95% of them would need to be replaced. The second defendant must have made an inspection of the awning in order to establish the work which was to be done in the scope of the work. Mr Blood was apparently the employee of the second defendant who was charged with the responsibility of seeing that the scope of works was followed and was in charge of seeing to matters of site safety. 25 The evidence led her Honour to find that the second respondent, as occupier of the site, ought to have known of the defective state of the awning. 26 However, the question arose of whether it knew, or that it ought to have known, that the work which it engaged McCracken to do, and through it, the appellant, would cause the structure to become unstable. If it did, it had a duty to warn the appellant, either directly or indirectly through the first respondent. 27 The judge concluded that: The knowledge of the second defendant as I have found it is, in my view, insufficient to cause it to have known that the removal of the roof sheets would cause the awning to become unstable.

The appellant's case 28 As to the liability of McCracken, the appellant submits that the evidence establishes its position of authority and control over the appellant. Accordingly, it is submitted that her Honour was in error in finding that no special duty of care was owed by the first respondent to the appellant notwithstanding that he was a subcontractor. Further, the appellant was in a position of special dependence and vulnerability and accordingly relied on the first respondent. The appellant, so it was submitted, had no knowledge or skill to comprehend that the awning was dangerous for him to walk upon in the manner that he did. He therefore relied on the expertise and skill of McCracken to examine the awning in order to ascertain that it was safe for the respondent to work upon. 29 The appellant sought to buttress his argument by reference to the activities of McCracken in giving him directions on the work he was required by it to do. It was further submitted that her Honour erred in not finding that, in response to the risk, it would have been reasonable for the first respondent to warn the appellant of the danger, when it knew, or ought to have known, that the awning was unsafe. 30 A similar submission is made by the appellant with respect to the second respondent. Particular reliance was placed upon the evidence that the awning was poorly designed and constructed and upon her Honour's finding that the second respondent must have inspected it in order to establish what work needed to be done within the scope of works contracted to the first respondent. 31 It was submitted on behalf of the appellant that a proper examination of the awning would have revealed that it was unsound and unsafe.

The liability of the State of New South Wales 32 I turn firstly to the question of the liability of the second respondent. It must be remembered that the second respondent had no direct relationship with the appellant. The Department of Public Works let a contract for the performance of works at the school to the first respondent. One of the subcontractors of the first respondent was the appellant. The second respondent had no part in instructing or directing the appellant as to how he should carry out the subcontract with McCracken. The system of work which the appellant adopted was completely a matter for him. That is in accordance with the evidence, including that of the appellant himself. 33 The appellant, a roof plumber of considerable relevant experience, had the benefit of inspections of the awning before he carried out the work. While it seems that he was more intent on measuring up for the purposes of tendering for the job, the appellant was beneath the awning and inspected the underside of the sheeting and structure of the awning. He was in a position to see the missing bolt and the apparent nature of the construction. Indeed, it seems that the appellant did appreciate that the awning had structural problems since he suggested to Mr Robinson, which was accepted by him, that he weld angle irons in the corners. Moreover, he saw the result of the storm damage which led to a partial collapse of the southern end of the awning and the need for the first respondent to place an adjustable prop under that end to support it. 34 The evidence is plain that the appellant determined, without any input from anyone else, how he was going to carry out the removal of the roof sheeting. 35 It was the appellant who devised the system of work which he would follow in order to carry out his subcontract. The intervention of Mr Peter Blood from the Department of Public Works, who was charged with responsibility for the scope of works, is relied on by the appellant to establish the authority and direction of the second respondent to the appellant. However, Mr Blood did no more than tell the appellant to remove and replace all of the roof sheets rather than only those which were rusted or damaged. In reality this made little difference since it appears that the scope of works, and the subcontract, required between 90 and 95% of the roof sheets to be removed and replaced. At the time the appellant fell and injured himself, he had, according to his evidence, already removed in excess of 90%. 36 The limited intervention of Mr Blood did nothing to change the relationship between the appellant and the second respondent so as to create a duty of care in the latter owed to the appellant. 37 In my opinion her Honour was entitled to find that the appellant's injury would have occurred whether or not Mr Blood had directed the appellant to remove all of the roofing sheets. 38 What is centrally important to the facts is that it was the roof sheets which gave the awning lateral support. Without the roofing sheets, the structure became unsafe. As each sheet was removed, the awning became progressively more unstable. The bolt from the middle beam, under the sheet on which the appellant had been working immediately before he fell, was missing where it joined the rafter beam. Her Honour was entitled to find that it was the loss of lateral support in the awning, by reason of the appellant's removal of the roof sheets which, together with the missing bolt, permitted the beam to twist and caused the appellant to fall to the ground. 39 While her Honour found that the second respondent, as occupier, ought to have known that the awning was defective, she was correct to then consider whether the second respondent knew, or ought to have known, that the work on the awning which it engaged McCracken to carry out, and which the first respondent subcontracted to the appellant, would cause the structure to become unstable. If it did, it had a duty to warn the contractor. However, in my opinion, her Honour was entitled to find on the evidence that the second respondent had insufficient knowledge to cause it to know that the removal of the roofing sheets, in the manner determined by the appellant, would cause the awning to become unstable. 40 It seems to me tolerably clear on the evidence that the reason that the unfortunate accident occurred arose from the system of work adopted by the appellant himself. 41 The appellant's system of work was something that the second respondent had no role in. It was purely a matter for the appellant to determine how he would carry out his subcontract. 42 The removal of the roofing sheets by the appellant progressively rendered the awning less stable. While the awning was defective at the time of the events, it was not rendered 'dangerous' until the appellant removed its only lateral support. It was for the subcontractor to formulate a safe system for him and his sons to carry out the work. The existence of the risk, that the awning would collapse if the roof sheets were removed in the manner formulated by the appellant, was not a risk that the second respondent was aware. The evidence was certainly insufficient, as her Honour found, to establish this knowledge. The second respondent was dealing with an experienced contractor (the first respondent) who in turn had subcontracted to a very experienced and specialist roof plumber, bearing in mind the scope of the works. 43 On behalf of the second respondent, Mr Graves SC submits that even if the second respondent was aware of the potential risk, it had no liability since it was for the appellant (and perhaps the first respondent) to devise a suitable system of work to cope with the risk. In the circumstances of the facts of this case, it seems to me that the submission is correct. 44 In my opinion her Honour was not in error in finding that the second respondent was not liable to the appellant in negligence.

The Liability of McCracken 45 Much of what I have said above is equally applicable to the question of the liability of the first respondent. Nonetheless, a different factual basis underlay the appellant's case against McCracken. 46 In particular, the role played by Mr Robinson and Mr Pillay, employees of the first respondent, was stressed as material by Mr Blacket SC on behalf of the appellant. Mr Robinson was the site supervisor in charge of the scope of works under the first respondent's contract with the Department of Public Works. The appellant maintained that at various points of time he was subject to the directions of Mr Robinson. In addition, the appellant contended that he relied on the expertise of the first respondent. The appellant had no engineering background whereas the first respondent was described on its letterhead as 'builders and structural engineers'. The appellant claimed that McCracken had engineering experience. 47 A fair reading of the evidence leads to the conclusion that the first respondent never gave the appellant any directions as to how he was to carry out the works the subject of the subcontract. The idea of the welding of the awning with angle irons emanated from the appellant who volunteered to have his son carry it out, so long as he was paid for it. There was no direction by the first respondent to the appellant to carry out the welding in the sense necessary to support the appellant's submission. Indeed, there was no evidence of any direction to the appellant as to how he was to carry out the work. At the highest Mr Pillay suggested that before the work was performed he or Mr Robinson might ask the appellant to give him an idea as to how he was going to carry out the works the subject of the subcontract. As her Honour observed, it was the unchallenged evidence of Mr Pillay that he was told by his employer that the appellant was an experienced tradesperson and he was 'to leave him alone'. 48 The other aspect of the evidence is the relative skill, experience and knowledge of the appellant on the one hand and that of the first respondent, in particular Mr Pillay and Mr Robinson, on the other. As her Honour observed neither of these men had any engineering qualifications. Indeed, so far as the evidence discloses, they were carpenters. Her Honour found that they had no particular qualifications to assess the structural adequacy of the awning in question. Although Mr Pillay thought the awning was 'flimsy' he did not realise its deficiency in design until after the accident.

49 By contrast the appellant had 25 years experience as a specialist roof plumber and for many years had carried out similar work on contracts with the first respondent. He had the benefit of at least two inspections. While he was clearly more concerned with measuring the awning for the purposes of the tender, he had the opportunity of inspecting the structure of the awning and the roof sheeting. In particular, he did this, in part, from underneath the awning. Indeed, his inspections did indicate some of the deficiencies in the structure. Hence, the welding of the angle irons at his suggestion. 50 Moreover, as mentioned before, he provided his own workmen, his tools and devised his own system of work. In this the appellant was not directed in any material way by officers of the first respondent. Indeed, to the contrary. It seems to me that the appellant had more relevant expertise than either Mr Pillay or Mr Robinson and her Honour was right to so find. 51 In his evidence the appellant, perhaps understandably, sought to shift responsibility to the first respondent contending that it would not ask him to work on the structure unless it had ascertained that it was safe for him to do so. Her Honour described some of the appellant's evidence in this regard as 'disingenuous'. She said that 'it is not credible that [the appellant] would not make any independent assessment of whether or not a structure was unsafe but rather, to rely on the opinion of the contractor who engaged him'. 52 In so far as the appellant places reliance upon Stevens v Brodribb, it should be noted that this case does not concern a situation where the appellant was engaged in a business being conducted by another party, nor did the accident occur because of the interdependence of two or more trades or work skills and the absence of any system to regulate that interdependence. See Mason J at 31 and also McArdle v Andmac Roofing Co [1967] 1 WLR 356. 53 In my opinion this is not a case where the contractor owed a duty of care to his subcontractor to devise a safe system of work for the subcontractor to carry out the work the subject of the subcontract or to relevantly warn the appellant. 54 The trial judge was correct to find that the first respondent was not liable to the appellant. 55 Accordingly, the appeal should be dismissed with costs. 56 CAMPBELL AJA: I agree with Stein JA.

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