J-CORP PTY LTD -v- THOMPSON [2019] WASCA 173 (7 November 2019) - WASCA 2019 case summary — Zoe

WAWASCA

J-CORP PTY LTD -v- THOMPSON [2019] WASCA 173 (7 November 2019)

[2019] WASCA 173

Court of Appeal (WA)|2019-11-07|Before: Murphy JA

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At a glance

Source facts

Court

Court of Appeal (WA)

Decision date

2019-11-07

Before

Murphy JA

Source

Original judgment source is linked above.

Judgment (96 paragraphs)

[1]

The respondent (Mr Thompson) was a roof carpenter working for roofing subcontractors engaged by the appellant (J‑Corp) to assist in the construction of a house in Bullsbrook. Mr Thompson was injured when an isolated brick column, or pier, collapsed as he stepped off it. We shall refer to the collapsed pier as the pier in these reasons.
The pier had been built by bricklaying subcontractors engaged by J‑Corp, but had not been constructed according to structural engineering specifications. Drawings prepared by structural engineers engaged by J‑Corp required that a galvanised rod running through a cavity in the pier be 'cast' into the cavity. This meant that the cavity should be filled with mortar, cement or broken bricks and mortar. The cavity in the pier had not been filled when it collapsed. The unfilled pier was laterally too weak to support the application of even low intensity lateral loads such as those applied by the feet of roof carpenters.
Mr Thompson claimed damages from J‑Corp in negligence and for breach of its duty as occupier of the building site under the Occupiers' Liability Act 1985 (WA). The trial judge found these causes of action to be established and awarded damages. The trial judge found that J‑Corp breached its duty of care by failing to ensure that the pier cavity was filled with mortar, cement or bricks and mortar.
J‑Corp now appeals from the trial judge's decision on the ground that his Honour erred in finding that J‑Corp breached duties of care which it admittedly owed to Mr Thompson as builder and occupier. In essence, J‑Corp alleges that the trial judge erred by:

[2]

[6]

The trial judge made the following findings of primary fact, which are not challenged by the ground of appeal or the notice of contention.
On 12 August 2014, Mr Thompson was working as a roof carpenter on a house being built by J‑Corp. He was not employed by J‑Corp.[1] Mr Thompson contracted his services to TJO Roofing, a contract roof carpentry business.[2] The proprietor of TJO Roofing received communication from J‑Corp saying that the brickwork was done and the roof carpenters were able to start work.[3] 12 August 2014 was the first day on this particular job.[4]
The house design was such that it included a porch area at the front of the house. The pier, with an unfilled cavity, had been constructed. A wooden beam traversed the span from the brickwork of the master bedroom to that pier. A second wooden beam traversed the span from the pier to the brickwork of the garage, so that it ran at a right angle to the other wooden beam.[5] The beams were nailed together at the top of the pier.[6] Trestles and planks organised in a scaffold arrangement had been used to place the beams onto the pier.[7]
The brickwork (including the pier) was constructed by a subcontractor (not an employee) engaged by J‑Corp. The contract between the bricklayer and J‑Corp enabled J‑Corp to inspect the subcontractor's work and obliged the subcontractor to execute the works in accordance with any directions of J‑Corp's supervisors. The relevant supervisors were employed by J‑Corp on wages.[8]
Mr Thompson was 'marking up', a process which involved walking along the wall plates on the top of the brick walls and marking the wall plates to show where the roof rafters would later be fixed.[9]
In the process of marking up the roof, Mr Thompson walked across the beam which traversed the span from the master bedroom to the pier. He was in the process of stepping on to the beam which traversed the span from the pier to the garage. The pier collapsed as Mr Thompson took a step to walk off the pier. The manner in which Mr Thompson stepped off the pier was not exceptional or out of the ordinary.[10]
The trial judge accepted the following evidence given by Mr van der Meer, a consulting structural engineer:[11]

[33]

In substance, the ground of appeal raises two issues.
First, it is submitted that the trial judge erred by, in substance, adopting a 'hindsight' approach which required J‑Corp to avoid the particular incident, rather than exercise reasonable care as a builder and occupier who was required to address a risk that was identified and articulated in general terms.[42]
Secondly, it is submitted that the findings of fact referred to in par 1.2 were not supported by the evidence. As we understand the ground, it does not challenge the finding that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters. That finding was supported by the evidence of Mr van der Meer. Rather, this aspect of the ground challenges the finding that, as builder of the house, J‑Corp ought to have known this.[43] The ground also challenges the conclusion that it was reasonably foreseeable that a roof carpenter would walk or stand on the pier and apply horizontal forces sufficient to topple the pier.[44]
There is a second aspect to the impugned factual findings mentioned in par 1.2 of J-Corp's ground of appeal, namely, that referred to in par 1.2.3. It is, however, not necessary to deal with this separately if J‑Corp is successful in challenging the findings in par 1.2.1. As will be seen, that is the position. For this reason the challenge to the finding in par 1.2.3 is not considered further in these reasons.
We note that some of J‑Corp's written and oral submissions sought to impugn factual findings which were not the subject of any ground of appeal. For example, it was suggested that the engineering specification that the galvanised rod be cast into the cavity did not apply to the pier, or that the term 'cast' may have had a different meaning.[45] However, the ground of appeal makes no challenge to these findings of primary fact. It is therefore unnecessary and inappropriate for this court to entertain them, particularly where the absence of grounds, particulars and a proper schedule of relevant evidence has the effect of depriving Mr Thompson of a proper opportunity of responding to a challenge to the trial judge's factual findings.[46]
Mr Thompson resists J‑Corp's submissions on both issues. He also relies on a notice of contention against the contingency that J‑Corp succeeds in its submission that the trial judge addressed the relevant risk too narrowly. In that event, Mr Thompson contends that the outcome would have been the same even if the trial judge had addressed a broader risk.

[44]

Neither the trial judge nor the parties identified any evidence which supported the conclusion that J‑Corp ought to have known that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters. The evidence did not indicate that J‑Corp, or a reasonable builder in its position, would have reached that conclusion without the application of specialised engineering knowledge.
The trial judge's finding as to what J‑Corp ought to have known is also difficult to reconcile with his Honour's finding as to what a tradesperson would have appreciated. The trial judge accepted Mr van der Meer's evidence that generally tradespeople would not be able to predict the destabilising force required to topple a brick pier.[58] In finding that Mr Thompson was not contributorily negligent, the trial judge found that Mr Thompson could not be expected to know the structural stability of a filled or unfilled pier.[59] If a person in Mr Thompson's position could not be expected to know the structural stability of a pier, how is that knowledge to be attributed to a person in the position of a builder and occupier who also has no specialised engineering knowledge?
Counsel for Mr Thompson refers to the trial judge's finding that J‑Corp was the builder of the house and knew the engineering plan required the rod to be cast into the cavity.[60] He submits, in effect, that a builder in J‑Corp's position would appreciate that a failure to follow structural specifications may result in the pier being structurally unstable. So much may be accepted. However, the trial judge's finding went beyond a conclusion that a reasonable builder in J‑Corp's position would appreciate that a failure to following structural engineering specifications is likely to compromise structural stability. The finding was that J‑Corp ought to have known of matters concerning the load bearing capacity of the pier which required the application of specialised engineering knowledge to appreciate. In our view, that finding was unsupported by the evidence.
In our view, similar problems arise with the trial judge's finding that it was reasonably foreseeable that a carpenter stepping off the pier would apply horizontal forces sufficient to topple the pier.[61] That finding attributes specialised engineering knowledge to the hypothetical reasonable builder or occupier in J‑Corp's position.
For these reasons, J‑Corp's second submission, summarised at [29] above, should also be accepted.

[45]

It is then necessary for this court to address Mr Thompson's notice of contention and consider whether a breach of duty by J‑Corp was established.
It is accepted by all parties that J‑Corp owed a duty to Mr Thompson to take reasonable care when coordinating the activities of trades at the premises to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised. That was a duty of a kind identified by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd.[62] J‑Corp's duty is to be distinguished from the more stringent non‑delegable duty owed by an employer to its employees to ensure that reasonable care is taken for their safety.[63]
The activity being organised by J‑Corp was the construction of a house. It organised for the work to be undertaken by different trade contractors - relevantly for present purposes bricklayers and roof carpenters - who did not control each other's activities and who did not have any right to direct each other as to how work was to be performed. The roof carpenters were called onto site after the brickwork was complete. Breach of duty must be assessed by considering the steps which a reasonable builder and occupier in J‑Corp's position would have taken to co-ordinate the work of the two trades to avoid unnecessary risks of injury, or minimise the risk of injury, to the roof carpenters.
In this case, a reasonable builder and occupier would contemplate the risk that roof carpenters standing on or near elevated brickwork in the course of their work on site may be seriously injured in the event of a failure of the brickwork due to structural defects.
That risk would be contemplated in circumstances where a reasonable builder and occupier in J‑Corp's position would appreciate that carpenters sometimes step on elevated brickwork, including isolated brick piers, in the course of constructing roofing. Evidence summarised by the trial judge supports that conclusion,[64] as J‑Corp's counsel properly accepted.[65]
A reasonable builder and occupier would also be aware that a fall due to the failure of elevated brickwork on which a roof carpenter is stepping in carrying out his or her work is likely to result in serious injury to the roof carpenter.
The risk is also to be contemplated in circumstances where the builder/occupier has engaged consulting structural engineers to specify the construction of structural aspects of the brickwork. That structural engineering advice is contained in the engineering drawings.[66] A builder/occupier could not be expected to calculate the precise consequences of a failure to follow structural specifications for the brickwork, as to do so would require the application of structural engineering expertise. However, a builder/occupier would appreciate that a failure to follow engineer's structural specifications is likely to compromise the structural strength of the brickwork and create risks as to its stability.
In these circumstances, before having the roof carpenters come to work on site, a reasonable builder and occupier in J‑Corp's position would inspect the brickwork to check that structural elements had been constructed in accordance with structural engineering specifications. Having done so, it would require the bricklayers to rectify any identified structural defects in the brickwork before having the carpenters work on site. It would do that because the reasonable builder and occupier would appreciate that departures from structural engineering specifications for the brickwork would carry risks of structural failure and consequent injury to carpenters.
In terms of the considerations referred to in s 5B of the Civil Liability Act:

[50]

In all the circumstances, a reasonable person in J‑Corp's position would have inspected the brickwork to check that structural elements had been constructed in accordance with structural engineering specifications, and required the bricklayers to rectify any identified structural defects, before having the roof carpenters come to work on site.[73]
J‑Corp breached its duty to Mr Thompson by failing to inspect the brickwork to check that structural elements had been constructed in accordance with structural engineering specifications before having the roof carpenters come to work on site.
That breach of duty by J‑Corp caused Mr Thompson's injuries. If an inspection had been undertaken, the unfilled pier would have been readily identified as having been constructed contrary to the structural specifications in the engineering drawings. A reasonable builder and occupier in J‑Corp's position would have required the bricklayers to remedy the defect by filling the pier before the roof carpenters came to work on the site. This is not to overlook J-Corp's challenge to the factual finding, as made in par 1.2.3 of its ground of appeal, that in the exercise of reasonable care J-Corp should have filled the cavity in the pier before roof carpenters commenced work. That finding was made by the trial judge in determining whether there had been a breach of duty. In the present scenario, the breach is the failure to inspect not the failure to fill. In stating that, having inspected, a reasonable builder and occupier in J‑Corp's position would have brought about rectification of the defect by requiring the cavity to be filled, a causal inference is being drawn as to what would have occurred on the balance of probabilities in the hypothetical circumstance that J-Corp had acted with reasonable care by performing an inspection.
There is no challenge to the trial judge's finding that the pier would not have failed if it had been filled.
J‑Corp counters that the connection between the structural specification for the pier and the accident was merely coincidental. It submits that the pier was not designed as a work platform, and that the purpose of the galvanised rod was to hold down the roof rather than to stabilise the pier. It was merely coincidental that, if a specification designed for a different purpose had been complied with, it would have created more lateral strength for the particular pier that would have made it less likely to topple when force was applied to it.[74]
We do not accept the above submission as precluding a finding that J‑Corp breached its duty to Mr Thompson. The trial judge found that the pier was not designed as a work platform, or to have lateral forces applied to a top edge by a workman using it as a work platform.[75] The trial judge also found that one of the pier's purposes was to support and bear the weight of roof timbers, and that the upper end of the galvanised rod was to be secured to the roof timbers.[76] There was no challenge to these findings in the appeal. However, the trial judge did not find that was the only purpose of the pier. Contrary to J‑Corp's submissions,[77] there was evidence that casting the galvanised rod into the cavity of the pier was designed to increase the lateral stability of the pier during construction. Mr van der Meer gave evidence that:[78]