Kolodziejczyk v Grandview Pty Ltd

The partners went to the house. The cladding on site was different from that which they had previously used. There was also fascia board and cladding for the eaves. The partners began the work at the house, fitting the cladding to the sides of the house, the front, and then starting on the back. During the work on the house the partners decided they required scaffolding to do some of it, particularly on the sides of the house. When contacted, Andrew arranged for materials for moveable scaffolding with height adjustment to be delivered on site. Although not licensed to construct scaffolding, which Andrew knew, the partners put it together using their common sense and they used it where they could in the course of the cladding work. The scaffolding is depicted in a number of the photographs which were tendered, particularly exhibits E and F. The hire agreement for the scaffolding materials is exhibit H. Neither of the partners requested Andrew to provide them with any other type of scaffolding or platform built onto the roof timbers such as could be fitted into the roof, to enable them more safely to do the cladding to the first floor front dormer windows or the rear dormer type window." 5 The trial judge then made findings about discussions between Andrew and the partners about three problems which arose. It will be necessary to consider these findings below. 6 The trial judge continued: "The plaintiff said he did the cladding to the sides of the dormer windows at the front of the house, but not the right hand side of the right window because of the problem with the electricity wires. To do the work at the front he used the partners' six metre Oldfields aluminium extension ladder which was in good order and condition. The upper end of the ladder leant against the roof tiles above the guttering and the foot of the ladder was on grass, into which both bottom ends went because the ground under the grass was soft. The plaintiff went up and down the ladder to measure the sites of the cladding, cut it at ground level and took it up to the roof where, whilst standing near the upper end of the ladder, he fitted the cladding to the sides of the dormer windows and did the fascias etcetera. As he moved along the roof, so the ladder was moved and repositioned. The work at the front took him about four hours for each window. He then finished work for that day. On the next morning, 25 August 1999, the plaintiff prepared to clad the side of the rear dormer type window while his partner worked on the upper porch depicted in photograph exhibit E(5). For this purpose the plaintiff set up the same ladder which had rubber footings as he had done in respect of the front windows, but this time the feet of the ladder rested on concrete and not grass. Photographs exhibit F demonstrate the position of the ladder but, according to the plaintiff, the photographs indicate the ladder pushed a little bit to one side. The photo also shows the weatherboards, the side of the window and the then position of the scaffolding, from which he said he could not work to do this part of the job. He estimated it would take him about two and a half to three hours to clad the side of that window and the eaves etcetera. He checked the bottom of the ladder by kicking it. The feet did not move on the concrete. He did not ask Peter to stand at the bottom of the ladder holding it with his feet against it, adding that this might have prevented the feet of the ladder from moving, but Peter was busy doing his work from the porch. In any event, Peter would have had to be there for the time it took the plaintiff to install the cladding on the side of the window. The ladder was not tied from its top or its feet which comprised its bottom points of rest. Consequently it was not securely fixed so that it could not move from those points. In cross examination, at first the plaintiff said there was nothing at the top of the ladder to which it could be attached, saying, 'It was too far to the awning'. He then agreed he probably could have tied the top of the ladder to the column at the right side of the upper porch as shown in photograph exhibit E(5), which he estimated was about five metres from where the ladder came in contact with the roof. He also agreed he could have tied the ladder to the column at the corner of the building on the rear entry porch at ground level as shown on photograph exhibit E(3). As was pointed out in evidence by the defendant's ladder expert Dr Stark, whose evidence I accept in this regard, while one of the partners tied the top of the ladder the other could foot the ladder for only a few minutes, he agreeing that to do so for two and a half hours or so was impractical and could lead to a wavering of concentration and pressure by that man, resulting in some movement of the ladder while the other was working on or going up or down it. Having placed the ladder in position to the right of the dormer type window, as I have already stated, the plaintiff climbed the ladder for the first time on 25 August 1999. He reached the top of the ladder and, while standing on it, he began taking the measurements of the fascia on top of the wall. While doing this he lost his balance. He stated 'The ladder moved, I don't know, and I ended up on the concrete, a fall of about five metres'. The ladder did not fall. I infer that the top and or bottom of the ladder did move, causing him to lose his balance and fall down the roof and over the guttering onto the concrete surface at ground level." 7 The evidence of the plaintiff which the trial judge purported to quote actually was: "suddenly something happened, the extension ladder moved or - I don't know, I lost balance and I fell on the ground." 8 The trial judge then summarised certain features of the evidence of Dr B N Emerson, an expert called by the plaintiff, and of Dr Stark, an expert called by the defendant. He then made the following findings about that evidence: "1) To use the ladder the way it was set up by the plaintiff was fraught with danger because, while working at its top, it could slip, as it did, thereby causing the plaintiff to lose his balance and fall, as he did. 2) The preferable safe way of doing the work on the side of the dormer type window was by removing roof tiles and a platform being built onto the roof timbers, bridging across to the existing moveable scaffold, which would be locked into a safe position. 3) If number two could not be done for any reason, the work could be done safely from a ladder set up the way the plaintiff set it up, provided it was securely tied at the top and bottom. The tying of the top and bottom of the ladder could properly and safely have been done by the plaintiff at the top, while his partner Peter footed the ladder for a comparatively short time, if the bottom had not by then been securely tied." 9 The trial judge then concluded that the defendant was not under any duty to comply with the Construction Safety Regulations 1950, and in particular, relevantly to the appeal, Regulations 73 and 74, but that if it was, it was in breach of Regulation 73(3) and Regulation 74. The trial judge's reasoning in relation to the defendant's duty to comply was: "It is clear that, as between the defendant and the partners, the defendant at all times had the responsibility of arranging for all materials to be used at the house and additional equipment such as scaffolding reasonably requested by the partners being on site. The partners had the responsibility of carrying out the actual cladding work at the house in their own way and in their own time and were not subject to actual supervision or directions as to when and/or how the work was to be done. The partners used their own tools and ladders and also their vast knowledge and experience in doing work of this type. I feel constrained to find that the arguments of the plaintiff's counsel are not acceptable and those for the defendant are. The arguments for the plaintiff satisfy me that, as would be obvious, the defendant had a keen interest in the cladding work being satisfactorily completed by the partners, but at no time was the defendant carrying out the work. The partners were not the agents of the defendant to carry out the work but were doing so as completely independent contractors. The fact that they [the partners] were required by the defendant to wear the defendant's 'uniform' and introduce themselves as 'from Grandview' did not alter their position. They were not in fact employees of the defendant. The partners were the only persons responsible for the safety of themselves or anyone else who was in or came to the house during the period the work was being done and who had the duty to comply with the relevant statutory duties. Unfortunately for the plaintiff it is fairly obvious he did not give any thought to tying the top and the bottom of the ladder so that it could not move. Perhaps he was lulled into a false sense of security by the fact that he had previously done this type of work in this way and successfully and safely so. Without it being so tied, the plaintiff ascended the ladder and, as he was measuring part of the side of the dormer type window so that he could properly cut the cladding to go on it, he caused the ladder to move, lost his balance and fell. Consequently he was the author of his own misfortune and his claim against the defendant for breaches of statutory duties must fail." 10 The trial judge also rejected the plaintiff's case in negligence and contract in the following words: "Again, on my findings of fact, and especially having regard to the fact that the partners were carrying out the building work of cladding the walls of the house and the defendant was not, it follows that, except in most unusual circumstances, which do not apply, the defendant's only obligations were to provide on site the materials and, when requested as here, scaffolding materials for the side of the house and to comply with any other reasonable request for additional equipment. It cannot be said that the defendant owed to the partners or either of them a duty to take reasonable care for the safety of them while they carried out the work in their own way and were not subject to supervision and/or direction from the defendant as to how the work should be done. If such a duty did exist then, in the circumstances, I am not satisfied any breach of that duty causing the plaintiff's fall has been proved. In my view there cannot be implied in the contract between the defendant and the partners that the defendant would exercise any control over the partners as to how they did their work or, except as to providing materials and complying with any reasonable request of the partners, for additional materials such as scaffolding. By reason of the contract the defendant was not under a duty to take reasonable care for the safety of the partners or either of them while they carried out their work. If I am wrong in this regard, as with the issue of negligence, I am not satisfied any breach causing the plaintiff's fall has been proved."

11 The plaintiff complains of certain errors of law in relation to each of the three causes of action relied on. But first it is convenient to deal with two complaints about the trial judge's fact finding.

Factual errors 12 Ground 12 in the Amended Notice of Appeal is: "That His Honour's findings that the Appellant was not subject to instruction by the Respondent on how or when to carry out the relevant construction work was inconsistent with later findings made by His Honour, and wrong."

Ground 9 is: "That His Honour erred in finding that the Appellant was not subject to control and direction by the Respondent." 13 The plaintiff submitted: "There are some important inconsistencies in His Honour's fact finding: (a) At page 21 of his judgment (Red AB 26I-M) His Honour concludes the respondent had no knowledge that the appellant would use a ladder to clad the dormer windows. However, at page 23 of his judgment (Red AB 28X-29B) His Honour notes that Mr Szatow had visited the earlier site when a ladder 'was used in a way similar to the way the plaintiff used it when he fell at the subject house.' In any event the Respondent should have knew or should have known [sic: scilicet 'knew or should have known'] that the scaffolding it provided was unsuitable for this location so a ladder would have to be employed. (b) At page 29 of his judgment (Red AB 34F) His Honour concluded the partners 'were not subject to actual supervision or directions as to when and/or how the work was to be done'. However at pages 8 to 9 of his judgment (Red AB 13-14) His Honour details acts of supervision and direction of the partners by the respondent. These are significant errors of fact finding which in turn are crucial to the questions of breaches of statutory duty and the duty of care."

Similarities between the Beverly Hills site and the Liverpool site 14 The first inconsistency alleged is not an inconsistency in relation to fact finding. At Red 26I-M the trial judge said: "There is no evidence that any representative of the defendant was on site while the ladder was being used at the front or the rear of the house and therefore had any knowledge as to how the plaintiff was going about that part of the work." 15 At Red 28T-29F the trial judge said, in a passage part of which the plaintiff relied on to establish the inconsistency: "The plaintiff also relies on the fact that, when the partners did the cladding of a Cape Cod type house at Beverley Hills, scaffolding was not used, only the partners' extension ladders, to clad around the dormer windows, and that Andrew visited that site when the ladder was used in a way similar to the way the plaintiff used it when he fell at the subject house. It was submitted that, if he had thought about it, Andrew should therefore have realised a similar method would be used on this job and, by not prohibiting it, he acquiesced in the ladder's use in the way the plaintiff used it and therefore approved it."

16 One fundamental difficulty in the plaintiff's contention that there is an inconsistency in relation to fact finding is that in neither passage was the trial judge purporting to find facts. Both passages appear in a section of the judgment headed "ARGUMENTS ON BREACHES OF STATUTORY DUTIES". The first passage sets out an argument advanced by the defendant. The second passage sets out, as the opening words indicate, an argument advanced by the plaintiff. Hence, though it would not be surprising if there were an inconsistency between the arguments advanced in the two passages, the two passages do not reveal an inconsistency in fact finding. 17 But in any event there is no inconsistency. The fact that Andrew saw the partners using ladders but not scaffolding while cladding a Cape Cod type house at Beverly Hills is not necessarily inconsistent with the conclusion that the defendant did not know of the fact that the partners would use the ladder as they used it on a Cape Cod type house at Liverpool. There would only be an inconsistency if the circumstances of the two jobs were relevantly similar, if the defendant was aware of the relevant similarity, and if there was some reason to suppose that those circumstances made it at least more probable than not similar methods would be employed by the partners. The trial judge made no findings of these kinds, and this Court was not taken to any evidence which would permit it to make any findings of those kinds. The furthest the trial judge went was to find that Andrew visited the Beverly Hills site "when the partners used the ladder in a way similar to the way the plaintiff began the work at the rear of the house when he had his fall": Red 11G-J. The trial judge also found that Andrew visited the Liverpool site. But he did not find that he did so while the ladder was being used in a way similar to the way it was used at Beverly Hills. 18 Further, whether or not there is an inconsistency in fact finding, the evidence does not suggest any error in fact finding. One difficulty facing the plaintiff while endeavouring to put cladding on the rear dormer window from which he fell was that the dormer window was too far along the roof to be worked on from the scaffolding erected at the side of the house. As the plaintiff said: "it's too far from the scaffold to reach the window". Another difficulty facing him was that even if the scaffolding were moved to the back of the house, the plaintiff would be too far away from the dormer window. A further difficulty was that if he tried to work on the ladder at a safe angle, he would be too far from the dormer window. His final difficulty was that the roof was too steep to work on. The evidence is silent about whether any of those difficulties existed in relation to the Beverly Hills house, or to what extent. In chief the plaintiff described the work done on a dormer window at the front of the house thus: "Q. Now the cladding to the front dormer style windows, did you or Peter install any of the cladding on the sides of those windows? A. I did. Q. Which one did you start on, can you identify that in the photograph for his Honour? A. Yes, number 7, the first window on the left hand side. Q. And how did you get up to it to put the cladding on it? A. I leaned the extension ladder against the roof tiles on the same angle that the roof is. HIS HONOUR: Q. You what, sorry? A. I leaned the extension ladder against the roof tiles. Q. By that do you mean something like that, if that's the roof, the back of my hand, and there's the ground down here, the ladder would actually lean against the roof tiles? A. Yes. Q. Above the guttering? A. Yes. Q. And did the angle of the roof then dictate what angle the ladder had to be at? A. Yes. STANTON: Q. At the front of the house what sort of ground surface were the bottom legs of the ladder sitting on? A. Soft ground. HIS HONOUR: Q. What sort of ground? A. Soft ground. STANTON: Q. And to do the cladding work on that first dormer window, how long did it actually take to do? A. About four hours. Q. And I take it you were having to climb up the ladder, measure our certain pieces, climb down the ladder and cut them? A. Yes. Q. Then take them back up the ladder and affix them? A. Yes. Q. Then measure up the next piece? A. Yes. Q. Go down the ladder and so on? A. Yes. Q. Did you see or speak to Andrew at any stage whilst using the ladder on the front of the house in the method just described? A. Not at this job. Q. Had you done similar jobs before on similar style houses? A. Two jobs before. Q. And did those previous jobs have those style of dormer windows? A. Yes. Q. And can you recall whether you were visited by Andrew whilst doing work on the dormer window using a ladder in such a way? A. On this job? Q. On any job? A. Yes. Q. So you're agreeing that there was at least one occasion when Andrew would have been physically present when you were working on a dormer window using a ladder in that method? A. Yes." 19 In cross-examination the plaintiff identified the suburb in which that house was located as Beverly Hills. He agreed that the house there had a "similar design" to the Liverpool house in that there were "dormer windows on front and back", but said that no scaffolding was used there, only extension ladders. There was in fact no evidence that Andrew ever saw the partners using ladders on the Liverpool site. Not only is there no inconsistency in the trial judge's findings, but it is highly questionable whether the evidence permitted him to make findings of sufficient similarity between the jobs to justify the conclusion which the plaintiff seeks as a matter of primary fact finding. 20 Does the evidence go far enough to establish that the defendant should have known, by reason of what Andrew saw at Beverly Hills, that the plaintiff would use the same method at Liverpool? Counsel for the plaintiff developed an argument that did not turn on questions of primary fact alone. Counsel for the plaintiff submitted that the defendant, having been told by the partners that they thought the job was dangerous, and having seen ladders used at Beverly Hills, had a common law duty to consider how the plaintiff was going to go about the job at Liverpool, and had Andrew "thought about it for a moment, he would have appreciated that that was the way we were going to do the job because we had no other way of doing it". It is true that the trial judge found, on the strength of some unclear evidence from the plaintiff, that the partners had told Andrew when first offered the Liverpool contract that "they were prepared to do the windows but did not want to do the cladding, that they had done two houses like it before and it was dangerous". The plaintiff's evidence was: "Q. … what did you or Peter actually say to Mr Szatow about the offer to do the cladding work and the window installation work? A. I can say we just said that we don't want to do this house because we done two of - two similar houses like this and these are dangerous, we just don't like this job."

Counsel for the defendant complained about the correctness of this finding. Counsel for the defendant said that the evidence was equally compatible with the conclusion that all the partners actually said was that they did not want to do the work, but did not communicate their perception that it was dangerous. However, the trial judge's estimation of what it was that the plaintiff, whose native language is not English even though he spoke English quite well, was trying to communicate about the conversation with Andrew Szatow, which took place in Polish, is not likely to be disturbed on appeal. In performing that estimation he was in a position greatly superior to that of this Court. Whether in these circumstances the defendant ought to have known that the scaffolding provided was unsuitable is a matter best considered in relation to the plaintiff's arguments on negligence.

Advice and supervision 21 The second alleged inconsistency, to which Ground 12 specifically relates, and which also has significance for Ground 9, depends on a contrast between two passages. The first, at Red 34D-G, is: "The partners had the responsibility of carrying out the actual cladding work at the house in their own way and in their own time and were not subject to actual supervision or directions as to when and/or how the work was to be done."

(The trial judge had made the same findings earlier, at Red 10B-F and N-R). The second, at Red 13H-14W, is: "During the work at the house the partners discussed on site with Andrew three problems which arose. (a) There was a bow or bulge on both sides. Andrew discussed with the partners what to do about this. In chief the plaintiff said Andrew was told the partners could not repair it because the existing material was pushing it out. In cross examination the plaintiff stated Andrew showed them the bow and said 'Can you fix it?' The plaintiff said 'We'll do our best'. Andrew did not tell the partners how to fix it but said to make the customer happy, the technical way of fixing it being left to the partners. The evidence did not disclose if this problem had been fixed before the plaintiff's fall. (b) At a time when the partners were working on the gables, being the high point on the sides of the house, there was a discussion as to how to do the cladding on the front right dormer window around the electric wires attached to a hook on the gutter at the front of the house (photo Exhibit E(7)). The plaintiff said to Andrew 'We don't have any idea how to do it'. Andrew said, 'Think of something'. In cross examination the plaintiff said it was impossible for him to get access to the part to be cladded there the way he was doing the job. It concerned him that he may be electrocuted. Andrew said 'You think of a way you can do that'. The plaintiff stated that it involved the use of special scaffolding and he had not solved the problem up to the time of his fall from the roof. (c) When the partners were putting the cladding around the ground floor area at the rear of the house, the windows were too deep inside the wall and they had a problem fitting the cladding inside the channels of the windows. Mainly to get approval from him, the partners spoke to Andrew about it. He said to put flashing around the windows and to use J trims which the plaintiff said were made of vinyl and provided a channel into which the cladding could go." 22 There is perhaps an ambiguity in the first passage: the statement that the partners "were not subject to actual supervision or directions" may mean that in law they were not obliged to submit to supervision or directions, or it may mean that they were not in fact supervised or directed. Whatever the correct construction of the first passage, the events relating to problems (a) and (b) are not inconsistent with it because queries by Andrew as to whether the partners could fix a problem, and encouragement by Andrew to the partners for them to solve a problem for themselves, do not equate to either supervision or direction. The events relating to problem (c) are not inconsistent either, because the proffering by Andrew of advice as to a particular technique to solve a problem raised by the partners with him is not supervision or direction. Even if any prima facie inference arises from the fact that the partners spoke to Andrew about problem (c) "Mainly to get approval", it is negated by the other two incidents, which show Andrew as leaving the partners ultimately responsible for solving their own problems. The three men had the strongest bonds of culture, language and commerce. It was natural for ideas to be swapped between them with a view to getting jobs done. While the actual work which the partners did on particular jobs was hard and time consuming work, they were relatively small, simple and repetitive jobs. Everything pointed against a relationship in which formal supervision took place or formal directions were made. In short, the informal raising of queries and exchange of advice do not establish "actual supervision or directions as to when and/or how the work was to be done". 23 Counsel for the plaintiff abandoned any attack on the trial judge's conclusion that the plaintiff was not an agent of the defendant and did not attack his conclusion that he was an independent contractor. Those conclusions are not negated by the uniform the partners wore or their compliance with the Code of Conduct. 24 The fact that the defendant procured the partners to behave in these ways so as to indicate a connection with the defendant might be the basis for a conclusion that the partners had ostensible authority from the defendant for their dealings at least with proprietors, and perhaps with other third parties, but that fact, when considered against all the other circumstances which the trial judge took into account, did not point to the conclusion that there was agency in fact. 25 Further, the fact that Andrew told the partners to use whatever they had with them to seal windows (Black 15F), and the fact that on the Liverpool job they were using sarking instead of the preferred material, flashing, because they had not been supplied with flashing but had sarking left over from other jobs (Black 14K-15C) do not support a conclusion of agency. Those facts are merely aspects of the practice that the defendant supplied the materials while the partners supplied their labour and most of the tools and equipment, and that practice is neutral on the question of agency. 26 It has not been shown that the findings negating agency were wrong. The contract was one for the provision of labour services otherwise than employees: that is not a contract of agency. And if the contract was not one of agency or employment, that strongly supports the trial judge's conclusion that the partners were not subject to supervision and direction by the defendant. Hence there is neither inconsistency nor error in the trial judge's conclusion on that point. 27 Apart from the question of what the defendant ought to have known about the plaintiff's method of work at Liverpool, to be considered below, it has not been shown that the "errors" of fact finding complained of were made. No other error in relation to primary fact finding was complained of.

Negligence 28 The relevant grounds of appeal were: "8. That His Honour erred in finding that the Respondent did not owe a duty of care under the general law to the Appellant in the circumstances. 10. That His Honour erred in his alternative finding that there was no breach of duty in any event or no breach causally related to the Appellant's fall. His Honour should have found breach of duty by the Respondent which caused the Plaintiff's injuries." 29 Counsel for the plaintiff submitted that the circumstances fell within the following words of Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31: "If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines." 30 That passage was preceded by the following words (at 30-31): "It is plain that Brodribb could reasonably foresee that there was a real risk that a worker carrying out Stevens' duties would sustain an injury of the kind that occurred. It is equally plain that a relationship of proximity existed between Brodribb and the individual worker sufficient to ground a common law duty of care. Subject to the ultimate control of the Commission, Brodribb had an exclusive licence to cut and take away logs from the logging areas. It allocated fellers, sniggers and truck drivers to specified parts in those logging areas; it required them to work together in teams in an intricate process of extracting timber from the forest and delivering it to the sawmill; and it monitored and co-ordinated the operations through its bush boss. While individual fellers, sniggers and truck drivers may have been responsible for their own safety with regard to carrying out their own functions, they had little choice but to rely on the care and skill of Brodribb in the arrangements which it made for the disposition of the work, and on the care and skill of the persons engaged by Brodribb in the execution of the work.

The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined." 31 Counsel for the plaintiff contended that the only way in which the plaintiff could have placed cladding on the dormer window at the rear of the house was the way he used. He could not stand on the roof because of its steepness. He could not use the scaffolding at the side of the house because it was too far from the dormer window, and even if the scaffolding were moved to a point behind the dormer window, that would leave the plaintiff too far from the dormer window. The angle of the ladder was inherently unstable; it sloped at an angle of 50 degrees, when it should have sloped at an angle of 75 degrees or greater; it might slip backwards or it might break; it was an inherently unsatisfactory platform from which to carry out building work. Particular stress was placed on the fact that its slope exceeded a ratio of one unit of measurement from the point on the ground immediately below the top of the ladder to four units of measurement up - a ratio adopted in Australian and New Zealand Standards, in other material, in the expert evidence, and in Regulation 80(14). (That Regulation was not relied on to found a cause of action, only as a guide to the content of the common law obligation.) Yet if the ladder had been used at the correct angle, the plaintiff would have been too far from the dormer window to work on it. Counsel for the plaintiff submitted that it was necessary either to provide an elevated work platform or to provide moveable scaffolding securely anchored on the roof timbers of the house after removing some of the roof tiles. Counsel submitted that the defendant failed to provide either a work platform or suitable scaffolding, and if suitable scaffolding were to be provided, failed to erect it - for the plaintiff, as the defendant knew, was not qualified either by experience or in law to erect scaffolding. The plaintiff relied on the evidence of Dr Emerson, his expert, who criticised the system because neither of these two methods were used. Dr Emerson also criticised the fact that the stiles (ie the sides) of the ladder "were poorly located and untied and the foot of each stile was not footed by another person" and that it was not tied at the top, which he said was impossible. While the plaintiff's ladder was "solid … in good condition with proper anti slip feet", he said that "even a properly designed, strong aluminium ladder such as are made for heavy duty building use, and used by [tradesmen], are not basically suitable for this task." 32 In my opinion, even if the defendant did owe the plaintiff a duty of care, the defendant did not breach it by not providing an elevated platform or moveable scaffolding fixed to the roof timbers. Nor did it in any other way. 33 The trial judge made a finding of fact that while the preferred method of working was to remove roof tiles, build a platform onto the roof timbers and bridge it across to the existing moveable scaffolding locked into a safe position, the work could have been done safely from a ladder set up the way the plaintiff set it up provided that the ladder was securely tied top and bottom, with Peter Gromek holding the bottom for a comparatively short time before the top and bottom were tied. 34 There were potential objections, not directly explored in the evidence, to what the trial judge decided was the preferable course, namely the fact the preferable course would take much longer than the five or ten minutes required for tying the ladder and the possible attitude of Mr Nguyen to the disturbance of his roof tiles. Counsel for the plaintiff attacked the trial judge's conclusion that a ladder tied at top and bottom was safe. However, it was a conclusion that was supported by Dr Stark's evidence. The trial judge summarised the material parts of Dr Stark's evidence thus: "2) The ladder should have been tied in position at its top and bottom to prevent it moving in use and, if that had been done, the fall would not have happened because the ladder could not slip. 3) It would be expected a tradesman whose professional work involved regular use of ladders to be well aware of such safe practices in ladder use. 4) Some form of scaffolding that provided a fenced platform would have been preferable to a ladder for doing the work in question, particularly if working on that part of the job for a long time. 5) I also note the examples provided of how a ladder may be tied at the top and bottom in annexures to his report."

35 In chief Dr Stark said: "It is well established and well documented ladder practice to: i. Set up a ladder such as that in question at approximately 75° ii. Tie the ladder in position to prevent it moving in use. Had either of these requirements been satisfied the accident in question would not have happened. I have appended in Annexure 2 a small selection of extracts from the relevant literature to this effect. One would expect a tradesman whose professional work must have involved regular use of ladders to be well aware of such safe practices in ladder use." 36 Dr Stark also said in his report: "Notwithstanding the above in my view a responsible tradesman whose daily business involved the use of ladders should have known better than set up the ladder in question in the manner it was set up. It was in my view particularly negligent of him not to tie the ladder or otherwise restrain it from slipping given the clearly hazardous angle employed. He should not have needed to be told that there was a risk of injury or to take additional care etc; such a tradesman should be and would be well aware that an unrestrained ladder set up at 50° was not a safe practice." 37 In oral evidence in chief Dr Stark said: "Q. In your report you have opined that the accident could have been avoided by one of two simple features. Firstly tying the ladder, is that one of the things? A. Yes. Q. And when you say tying the ladder do you refer to tying it off in the way that is illustrated in some of the documents appended to your report? A. Yes. Q. The purpose of tying is to prevent it slipping? A. Yes or toppling. Q. Or toppling indeed. The second feature which would have prevented this accident happening would have been if the feet or the bottom or part of the ladder had been secured in some way? A. Yes. There needs to be some means of preventing it moving and there would be many possibilities. Q. Would such a possibility be someone standing at the bottom of the ladder? A. Yes. Q. With their feet up against it? A. Yes, yes. Q. Something as simple as that? A. Yes." 38 In cross-examination Dr Stark said: Q. The ladder, as we've already mentioned, was a very high risk of slipping when used at that angle, would you agree? A. Yes. It shouldn't be used like this. It should have been lashed in position in which case it wouldn't have slipped so yes. I mean there is a higher risk if it's not properly lashed. Q. Doctor, would you agree that it is difficult to erect a safety fence adjacent to a ladder so as to prevent someone falling a distance of more than 1.8 metres? A. I don't think that's a practical proposition. Q. Exactly. It's not really practical -- Q. Yes. Q. - to try to fence a ladder -- A. A ladder no. Q. - to stop someone falling such a distance? A. Yes I would agree with that. Q. So really the only way to securely fence a working area where someone is working at more than 1.8 metres is to have a properly constructed scaffold or something of that nature with appropriate fences? A. Well it would be preferable. Q. Well indeed it's probably the only way of doing it, isn't it, short of erecting a fence on the side of a structure? A. Well much work is done from ladders and provided the appropriate precautions are taken it's done safely but you know I would agree that it's preferable if you can't have staging with a fence." 39 Dr Stark agreed that having the bottom of the ladder secured by means of a person holding it was not practical over the whole period of two and a half hours during which the plaintiff would have been working on the window. 40 Dr Stark then gave the following evidence: "Q. Now in terms of securing the top of the ladder I suppose one's always faced with a quandary of how to get safely up to the top of the ladder to secure it, is that a fair comment? A. Yes. The various recommendations say - and I can't quote the particular document - that you go up the first time with somebody footing the ladder and tie it off first if you're going to work for a period on it but yes, I mean, that's obviously a difficulty. Q. Given your understanding of the nature of the rear of that house and the length of the extension ladder there's no obvious convenient thing to attach the top of the ladder to, is there? A. There is a post and if you - there was a few placings. If you look on my figure 1, just behind the right side of the ladder, there was a post underneath the eaves. There was - yeah you may have to attach something to it, you know, an eye bolt or something to give yourself a point to locate it but you know I think there was enough there that you could have done it. Q. But it would have been difficult -- A. It wasn't really terribly convenient. Q. But in summary it would have been difficult, time consuming and less than ideal? HIS HONOUR: Q. All three? A. Well it wasn't as easy as it would often be because of the concrete being in place but there was a post there. You could run a rope from the bottom of the ladder to the post at the end of the patio. It would be preferred to run two ropes to the side rather than one straight back but one straight back would probably have done the job. STANTON: Q. Doctor would you agree that the longer the period of time that the work has to be done in an elevated position such as on that rear dormer type window the more and more desirable it is to have a properly constructed sound scaffolding platform? A. Yes I think - yeah, I'd agree with that. Q. Looking at a period of work in total that would require some two and a half hours of work in or about that dormer window that really the only safe way of doing it is to have a properly constructed scaffold that can reach the dormer window, isn't it? A. Well you know I think you could do it from [the] ladder as long as the ladder was safely located but I agree the longer the time goes on the more it would be advisable to - or the more it would be preferable to have staging. Q. The shallower the angle of the ladder the greater the danger and the more the appropriateness for scaffolding? A. Well the shallower the angle the greater the danger of it slipping and the greater the need for tying the ladder in position. There should be no danger of it slipping if you'd tied the ladder in position. Q. Yes but doctor far more desirable is to use a scaffold, isn't it? A. I think it's more desirable to use scaffolding yes. Q. Far safer to use scaffolding? A. Yes, yes scaffolding with fencing yes." 41 In re-examination Dr Stark said: "Q. You have some evidence in response to a question my learned friend asked about running the rope, tying a rope off? A. Yes. Q. To secure the ladder? A. Yes. Q. And I think you had said that if it had been properly secured it wouldn't have slipped? A. Yes. Q. Even at 50 degrees, is that correct? A. Yes. Q. Would it take less than a couple of minutes to so tie off a ladder in these particular circumstances? A. Well it would certainly - it depends on how you want to do it. If you'd simply run the rope back to the post there and have one line going backwards no a couple of minutes would be more than enough. If you want to do a really good job you'd [drill] a couple of holes in the concrete and put a couple of, you know, eye bolts in and tie it off if you were going to want this ladder there for a long time. Q. That might have taken five minutes? A. Five, ten minutes." 42 This evidence supports the trial judge's conclusion that though a properly constructed set of scaffolding was preferable, a tied ladder was a safe way of avoiding slipping. 43 Though Dr Emerson, unlike Dr Stark, was not given notice to attend for cross-examination and did not give oral evidence, the trial judge made various criticisms of him, one of which was that he "gave the impression of being something of an advocate for the plaintiff's cause". That was an impression which it was understandable the trial judge experienced in view of the somewhat repetitive and extreme language Dr Emerson employed. However, Dr Emerson offered some support for Dr Stark's opinion that a properly tied ladder was safe, because he repeatedly criticised the technique in fact employed on the ground that the ladder had not been tied. He said that it was impossible to tie the ladder at the top, but Dr Stark's evidence was against that, and the trial judge was entitled to accept Dr Stark's evidence on that point. The trial judge was entitled to accept it for the further reason that the plaintiff conceded that the ladder could have been tied at the top. He said: "Q. You could have attached it to the awning could you not? A. It was too far to the awning. Q. You could have tied it to the column? A. At the bottom of the house? Q. No at the top of the house? A. Top, probably." 44 The trial judge's finding that a tied ladder would have enabled the work to be done safely rests on the inherently convincing evidence of an expert witness whom the trial judge saw and heard being cross-examined, which is partly supported by the evidence of another expert and the evidence of the plaintiff. The plaintiff has not demonstrated why this Court should depart from it. 45 If a tied ladder would have enabled the work to have been done safely, it was a practicable, quick, cheap and easy technique. It was practicable, according to the evidence of the plaintiff and Dr Stark. It was quick - it would only take five or ten minutes according to Dr Stark, a period not disproportionate to the period of two and a half hours to do the job on the window. It was cheap and easy: as between the plaintiff and the defendant, it was a recognised practice for the plaintiff to provide ladders, neither the plaintiff in his evidence nor his counsel in address took any point that sufficient rope was not available to the plaintiff to tie the ladder, and Dr Stark was not cross-examined on his evidence about the plaintiff's negligence in failing to tie the ladder. 46 In these circumstances the failure of the plaintiff to work with the ladder tied at top and bottom did not merely constitute contributory negligence. It defeated any contention that the defendant was in actionable breach of its duty of care, if it owed one. 47 First, the plaintiff's failure made him the substantial cause of the accident. If the defendant's duty of care could be complied with by ensuring that there was a tied ladder instead of a different system of scaffolding, the plaintiff had his own intrinsically satisfactory ladder, it was common ground that he had rope or could get rope, and he conceded that he could have tied the ladder. The trial judge found that the partners "provided and used their own ladders and tools which were needed to do the work", and rope fell into that category. Since the trial judge has concluded that an effective, though not the preferable, way of ensuring safety was a tied ladder, the defendant's failure to provide scaffolding was not a cause of the injury. The defendant's failure to provide a ladder, rope and instructions about their use was not a cause either: in all the jobs which the partners did for the defendant, it was they, not it, who had the role of providing ladders or ropes, Dr Stark's unchallenged evidence was that the plaintiff ought to have tied the ladder and should not have needed to be told about the risks of the course he undertook, and the plaintiff admitted that he could have tied the ladder. 48 To use the words of the trial judge in relation to causation so far as the statutory counts were concerned, the plaintiff "was the author of his own misfortune". That expression normally means that the defendant's conduct was not a cause of the plaintiff's damage: Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 at 30. The plaintiff has not demonstrated that that conclusion was wrong in this case. 49 Secondly, it is important to bear in mind that the plaintiff was an independent contractor; that he had thirteen years' experience in the work one part of which he was engaged in when injured; that he and his partner determined what work he did, when, in what order, and how, without instructions from the defendant; that each working day the plaintiff positioned ladders, and each day he frequently ascended and descended them; that the plaintiff was conscious of the need for safety; that the dangers of working several metres off the ground on a ladder angled as his ladder was were clear; and that the plaintiff had ample opportunities to ponder the difficulties of the site, having worked on the windows for some time a fortnight earlier and having worked on the cladding on the front of the house before moving to the side and back the previous day or days. Further, the defendant is likely to have known all these facts with the exception of the angle of the ladder. 50 In O'Connor v Commissioner of Government Transport (1954) 100 CLR 225 an experienced plumber employed by the defendant fell through an awning which was affected by dry rot. Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said at 229-30: "The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury. But the party was provided with trestles and plank and nothing was wanting in tools or equipment. The deceased was experienced in his work. It was obvious that a question must exist whether the awning would bear his weight. The party sent down was as 'expert' or competent to judge of that simple subject as anybody that could reasonably be sent. Doubtless Blyton, who told the deceased to go, thought that he would work on the roof, but it was left to the deceased and the rest of the party to do the job as they thought fit. Blyton was only the leading plumber and when he sent the deceased as the next man he was not directing him how he must perform the work. It simply meant that it was what he himself would do, and without further thought he spoke accordingly. In such a simple matter who else should be left to judge? Does the reasonable care demanded of the employer require him to cause a scientific or other elaborate examination to be made of the strength of the structure lest the working plumber may decide to trust himself to it rather than work from a plank or trestles? If, as the jury may be taken to have found, the dry rot was the cause of the awning failing under the deceased's weight, the presence of the dry rot was as easily ascertained by the deceased as by anybody however skilled. The standard of care for an employee's safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable. The case is not one of a defect in premises provided by the employer as the place where the employee is to do his work. The awning was the very thing to be worked at. There were the means at hand of doing the work required without mounting the structure. It was an ordinary question for a plumber to decide for himself how he would do the work. Obviously any experienced plumber would see that there must be a question whether a structure like the awning supported not by posts but by brackets was strong enough to bear his weight as he dismantled it. It was not made for that purpose and neither the deceased nor any of his companions can be supposed to have thought that it had been specially tested to see if it was strong enough. It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job." 51 Glass, McHugh and Douglas, The Liability of Employees in Damages for Personal Injury (2nd ed 1979) pp 45-6, said that this line of authority laid down: "an important principle in limitation of the employer's liability. ...

An area is marked out within which the employer's duty to provide a safe system of work is inoperative. It would appear that the immunity of the employer will be limited to isolated operations of no complexity outside the normal system or simple uncomplicated operations within it. It is not likely that the principle will undergo much further elucidation as scope for its operation is essentially a matter of degree depending upon the nature of the industrial activity. The only unifying principle available is the power of the court to hold that on the evidence in the particular case it would be beyond all reason to find an employer in breach of duty for failure to take certain specified steps. The impossibility of further definition is due not only to the inutility of classifying industrial tasks, but also the fact that what can reasonably be expected of industry by way of safety precautions is a developing concept." 52 The reasoning just set out, which is enunciated for the relationship of employer and employee, not the relationship between a head contractor engaging the labour of an independent contractor as sub-contractor and that sub-contractor, assumes a duty of care, but says that it will not be breached in certain circumstances. Assuming that there is a duty of care owed by the defendant here, it cannot be greater than that which would have been imposed on an employer in relation to an employee. The objective circumstances of the plaintiff's position, largely known to the defendant, meant that the defendant's assumed duty of care was not breached either by the non-provision of better scaffolding or the failure to supply rope and instructions about how to use it. The danger was the reverse of hidden. It was actually apparent to the plaintiff. The trial judge found that he spoke of that danger to the defendant. Particularly in view of the plaintiff's experience, the need to behave with an eye to safety was so plain, and the measures to be adopted which would achieve safety were so simple, that the defendant was not in breach of duty. The defendant was entitled to trust the plaintiff to make appropriate provision for his own safety. 53 However, even if, contrary to the above reasoning, there was causation and there was a breach of any duty of care, there was in the circumstances no duty of care. The plaintiff was an independent contractor. The application by Mason J of a duty of care to independent contractors was not a recognition that there was a duty of care owed to all independent contractors. The duty recognised by Mason J only arises in the category of cases discussed by Mason J, namely where there is a need for directions to be given as to when and where work is to be done and for the co-ordination of various activities. Here there was no element of different trades having to work together in teams in the course of an intricate process. There was no element of different trades having to rely on the care and skill of the persons engaged by the defendant and on the care and skill of the defendant in the arrangements it made for the disposition of the work. The partners simply had to apply cladding. No other trade was involved. There was nothing to be co-ordinated. No care and skill on the part of the defendant affected how that cladding was undertaken. 54 If the plaintiff's case in negligence had succeeded, it would be necessary to consider what reduction in the damages should be made on the ground of his contributory negligence. In view of the fact that the case fails, it is unnecessary to consider this question. 55 In view of the conclusions that there was no duty; that if there was a duty, there was no breach; and that if there was breach, it did not cause loss, it is not necessary to consider the question left open above, namely whether the defendant ought to have been aware that the plaintiff would work on the roof in the manner he did. 56 There were suggestions in argument that the circumstances under which the partners entered the contract to carry out the building work might justify recovery. The suggestions were faint. Pushed to a point rather above their own highest point, the suggestions were that the partners were pressured into engaging in a dangerous job, because when they asked for work they were told there was no work other than the cladding job at Liverpool, and to refuse it might have had a catastrophic effect on their business: they might lose the defendant's work, which was 80% of their trade. Perhaps an argument is open that where a head contractor knows a sub-contractor is in an inferior bargaining position and has been told by the sub-contractor that the only work offered and available is dangerous, it is not open to the head contractor to rebut an allegation of negligence by pointing to the fact that the sub-contractor chose to do the dangerous work in a dangerous way. In my opinion, though the trial judge found that the partners communicated their view that the job was dangerous, the evidence does not justify any conclusion that the defendant applied economic duress to the partners, or that they felt under pressure, to the point that they felt compelled to carry out inherently and unavoidably dangerous work. In a sense the work was dangerous; in another sense it was not, because the precautions to be taken to render it safe were cheap, simple and obvious. It was open to the plaintiff to carry out the work safely; the source of danger did not lie in other trades requiring careful selection and co-ordination; the defendant was entitled to rely on the plaintiff to apply his extensive experience to remove the source of the danger. Hence the precise circumstances in which the contract was entered in this case could not create a duty where no duty otherwise arose.

Contract 57 The relevant ground of appeal was: "That His Honour ought to have found that the Appellant was injured as a consequence of the Respondent's failure to provide a safe system of work, in breach of the contract between them, for the carrying out of this work on which the Appellant was injured." 58 Counsel for the plaintiff argued that "there should have been a breach found in the contractor in the present matter, as plainly the division of the job required the Respondent to provide safe and suitable scaffolding." 59 It was common ground that there was a contract. Paragraph 5 of the Statement of Claim alleged: "Pursuant to the said contract it was the obligation of the defendant to provide necessary scaffolding and/or ladders." The particulars of breach, apart from allegations about the scaffolding, alleged that the defendant failed to provide safe and suitable ladders to enable the plaintiff to work safely. There was no evidence supporting a term of the type pleaded as an express term. It could only have been implied. A term to the effect that the defendant would not commit the tort of negligence would not be implied, because it was not necessary to do so; in any event, for the reasons given above, such a term was not breached. A term that the defendant supply ladders would not be implied because it was not reasonable: it contradicted the practice of the parties over 13 years of dealing together. Accordingly the term should not be implied. If it were to be implied, breach of it caused no loss because the plaintiff supplied his own ladders, and they were safe and suitable if tied. No contractual term that the defendant should ensure that they be tied was pleaded.

Breach of statutory duty 60 The relevant grounds in the Amended Notice of Appeal are: "1. That His Honour erred in finding the Respondent was not carrying out building work and hence construction work within the meaning of Regulation 73 of the Construction Safety Regulations 1950 (NSW) and Section 3 of the Construction Safety Act, 1912 (NSW). 2. That His Honour erred in finding the Appellant was not an agent of the Respondent within the meaning of Regulation 73. 3. That His Honour erred in concluding the Respondent was not obliged to comply with Regulations 73 and 80 with respect to the relevant construction work. 4. That His Honour erred in concluding that the relevant construction work could be performed safely from a ladder. 5. That His Honour erred in concluding that the Respondent was not obliged to comply with Regulation 74 of the Construction Safety Regulations. 6. That His Honour erred in concluding that Regulations 73(1) and (2), 74 and 80(3) of the Construction Safety Regulations did not apply to the work. 7. That His Honour erred in interpreting and applying Regulations 73, 74 and 80 in that he should have found that they obliged the Respondent in the circumstances, to provide suitable and safe scaffolding, safe access, fencing and a safety belt or harness, while engaged in the work on which he was injured. … 9. That His Honour erred in finding that the Appellant was not subject to control and direction by the Respondent. … 11. That His Honour erred in failing to give any weight to the Respondent's admission of the facts contained in paragraph 2 of the Amended Statement of Claim and its further admission in Court that the relevant building work was being performed by it pursuant to a contract between it and the proprietor of the premises." 61 At the start of oral argument counsel for the plaintiff abandoned reliance on Regulation 80. Further, Ground 9 may be left out of account: the plaintiff's attack on the relevant findings considered above are rejected. At one stage in the oral argument counsel for the plaintiff accepted that if the plaintiff lost in negligence, he must lose on the statutory counts. However, it is not clear that that concession was maintained, and even less clear that it was sound. Accordingly, the position in relation to the statutory counts should be fully considered. 62 Section 3 of the Construction Safety Act 1912 (NSW), which was in force at the material time, defines "Building work" as including: "(a) work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, signwriting, sheathing, spraying, dismantling or demolishing or any other prescribed operation that: (i) is done in relation to a building or structure, at or adjacent to the site thereof … ." 63 Section 3 also defines "Construction work" as including "building work". There was controversy between the parties as to who was carrying out the work in the course of which the plaintiff was injured. But that it was "building work" and hence "construction work" was not controversial. 64 The following parts of the Construction Safety Regulations are relevant. First, Regulation 73(1)-(3) provides: "Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74:

(1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations, (2) provide and maintain safe means of access to every place at which any person has to work at any time, (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m … ." 65 Regulation 74(1) provides: "Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold, the person in charge of the construction work shall provide: (a) a safety belt and safety line or safety harness and safety line complying with the requirements of AS 1891 for the use of that person; or (b) a safety net complying with the requirements of BS 3913, while the work is being carried out." Regulation 73(1)-(3) 66 Regulation 73(1)-(3) in terms impose an obligation only on any "person who directly or by his servants or agents carries out" any "construction work". One group of issues between the parties turned on whether the defendant could be characterised as carrying out the work. The plaintiff said it was carrying out the work; the defendant said it was not; and the trial judge agreed with the defendant. Another group of issues between the parties was whether, even if the defendant was carrying out the work, the defendant was in breach of any obligation. The trial judge found that the defendant was not in breach of Regulation 73(1) or (2), but he found that it was in breach of Regulation 73(3). This second group of issues does not arise if the trial judge's conclusions in favour of the defendant on the first group of issues are correct. On the appeal counsel for the defendant did not attack the trial judge's conclusion that the defendant had breached Regulation 73(3), and it was not necessary to consider the plaintiff's contention that Regulation 73(1) and (2) were breached, since a breach of Regulation 73(3) suffices for his purposes. 67 The plaintiff's written submissions put his case on the issue of who was carrying out the work in three ways. One turned on an admission. The second was an argument that the defendant was carrying out the work through its "agents", namely the partners. The third relied on Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65. 68 The argument based on the admission, to which Ground 11 was directed, was abandoned during oral argument. So was the argument on agency, to which Ground 2 relates. The decisions to abandon these two arguments were sound. 69 The argument which the plaintiff continued to rely on depends on Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65. 70 In that case the appellant ("Maggiotto") had been engaged as head contractor to build thirty five home units on a site. The respondent ("Gordon") had been engaged to perform carpentry work. Gordon was injured when he fell from a ledge while undertaking an inspection. At trial Gordon succeeded in negligence, but his damages were reduced by 50% for contributory negligence. He failed in a claim for breach of statutory duty, and cross-appealed on that question. His cross-appeal succeeded, thereby overcoming any contributory negligence problem. Ipp AJA (with whom Meagher and Stein JJA agreed) said at [16]-[29]: "In H C Buckman and Son Pty Limited v [Flanagan (1974) 133 CLR 422] Barwick CJ (with whom McTiernan and Stephen JJ agreed) discussed the policy underlying the Scaffolding and Lifts Act 1912 (NSW) and the regulations thereunder, and in particular reg 73. He said (at 427): 'For my part, I perceive that the Act and regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law are his acts. This seems to me an eminently practical and workable scheme of legislation. By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured. I am unable to accept the view that the word 'agents' comprises the independent contractors who are themselves carrying out the building work which they have contracted to do'.

The learned Chief Justice went on to say (at 428): 'I agree with the majority in Davey v Skinner [1961] SR (NSW) 648 at 651 when their Honours said: 'Regulation 73 does not impose its obligations on an employer as such nor does it limit its safety measures to employees as such. Nor does it, for example, refer to a contractor as the person obliged to conform to its provisions. In broad terms it directs its provisions to any person who carries out any building work ... The obligation rests on the active person, that is the one who carries out the work in actual fact'. I agree with the majority, and am unable to accept the contrary view of the minority judgment in that case that Regulation 73 is directed to the principal contractor or building owner. Building work is so defined that it does not necessarily refer to the total work to be performed in a building, but the definition is suitably worded to enable each section of work being done, eg as 'painting, cleaning and signwriting', being regarded as building work so that the obligation to take the specific safety measures are imposed on that person who is carrying on or carrying out that particular work. It is not consistent, in my opinion, with that conclusion to include independent contractors who are carrying out particular building work as 'agents' of the building owner or contractor so as to impose on him the obligation which clearly will fall upon the independent contractors vis a vis the building work they are actually doing'. The argument advanced on behalf of Maggiotto was that Gordon was admittedly an independent contractor and the obligations to comply with reg 73, in so far as the carpentry to be done by Gordon was concerned, rested upon Gordon, he being the one carrying out the work in actual fact. Gordon, in the written argument advanced on his behalf, relied on remarks made by Mason J and Jacobs J in the same case. Mason J explained that the legislation confers no private right upon a sub-contractor against the head contractor 'when the doing of the work which attracts the performance of the duty has been wholly delegated to the sub-contractor so as to impose the same duty on him and he does the work in breach of the duty in the absence of fault on the part of the builder'. Where, however, the head contractor participates in the faulty construction work, a different result will follow. Thus, Mason J said (at 444): 'From this material a jury could conclude that the appellant's breach of par. 17 did not solely arise because the respondent was in breach of the same provision; on the contrary a jury might well conclude that the appellants participated by act or approval in reducing the stability of the column without taking any step prescribed by par. 17'. Jacobs J made the same point. His Honour observed (at 446) that: 'Where the exposure to accident risk occurs ... as a result of the employee or sub-contractor having failed to perform the necessary acts performance of which has been properly delegated to him, then the exposure to accident risk of that employee or sub-contractor alone is not a breach of the statutory duty ...'

Jacobs J went on to say (at 447): 'It will generally be found in the case of an employee and it will often be found in the case of a sub-contractor that, though performance of the acts necessary to performance of some statutory duties may properly be delegated to them, the performance of other acts and the compliance with other statutory duties will remain the direct obligation of the employer or the head contractor as the case may be. Whether in any particular case this is so will depend upon the circumstances'. Earlier, Jacobs J (at 446) dealt with the situation where a person carrying out building work delegates work to a sub-contractor but still has a statutory duty not to expose that sub-contractor to accident risk. His Honour said: 'When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do acts or things in order to ensure their safety when engaged on the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions where under the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer's statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty'. In my opinion, the reasons for judgment of Mason and Jacobs JJ are not inconsistent with those of Barwick CJ. They can readily be reconciled. The essential point made by Barwick CJ was that whether a person was obliged to comply with the regulation depended upon whether that person was actually carrying out building work: see Hetherington v Mirvac Pty Limited [1999] NSWSC 443 per Wood CJ at CL. Mason J held that where a person participates, whether by act or approval, in the building work carried on by the independent contractor to whom the work has been delegated, that person is duty bound by reg 73. There is nothing in this proposition that departs from anything said by Barwick CJ. Jacobs J pointed out that, where a head contractor instructs some other person to carry out part of the building work, circumstances may arise that require preliminary steps to be taken to ensure that the work which the other person is instructed to do can be done safely. The issue then arises as to the responsibility for those preliminary steps. It must be a question of fact in each case as to whether the other person has been instructed to perform the preliminary steps as well as the work, the subject of the express instructions. According to Jacobs J, the head contractor will only be regarded as having instructed the other person to perform the preliminary steps if that person was particularly directed to do the specific work 'necessary in order to fulfil the [head contractor's] statutory duty'. That is to say, according to his Honour, the head contractor will only avoid having a statutory duty in regard to the preliminary steps if the head contractor particularly directs the other person to take those steps. Additionally, the other person 'must be provided with all material, assistance and supervision necessary' to ensure compliance with reg 73. These remarks have to be seen in the context of the statement by Barwick CJ that under the regulations a head contractor owes no duty thereunder in respect of work delegated by it. Jacobs J was merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe. His Honour observed that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps. Nothing in this approach departs from that of Barwick CJ. It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task. In that event, the task of doing the work necessary to complete the ancillary work or preliminary steps may well not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. The strictures expressed by Jacobs J are designed to prevent such a gap from opening. To ensure that the policy of the legislation, as enunciated by Barwick CJ, is fulfilled, the approach of Jacobs J should be adopted." 71 Ipp AJA went on to consider what work Maggiotto did as head contractor, and said at [31]-[39]: "Maggiotto had only two labourers on the site and their work was cleaning. All structural and construction work, involving all the various trades engaged to construct the 35 units, was being carried out by sub-contractors. This involved the excavation work, the form work and pouring of concrete, the formation of walls and bricklaying, roof trusses and the formation of the roof, and various aspects of carpentry work. Plainly, a great deal of co-ordination and supervision was required. This task was assumed by Maggiotto. Frank Sgambellone was the Maggiotto foreman on the site. His task, according to his testimony, was 'project management of trades and progress of job'. He said that project management entailed 'virtually control of sub-contractors, purchase ordering, liaising with architects, engineers, Department of Housing'. Maggiotto, through Mr Maggiotto and Sgambellone, in fact gave directions as to when and where the work was to be done. Those persons, on Maggiotto's behalf, supervised and co-ordinated the various activities and trades involved. In this process of supervision and co-ordination, Sgambellone instructed and permitted the various sub-contractors to go to the various areas where they were working whenever it was appropriate for them to do so. Sgambellone said that he had a system which he adopted in determining when the fit out carpenter would commence his tasks. The system was to instruct the carpenter to commence his joinery work after the gyprock walls were lined. Sgambellone would, from time to time, as a carpenter would finish his work in one unit, instruct the carpenter to proceed to commence work on another unit. In particular, as regards Gordon, Maggiotto told him where and when to work. Sgambellone accepted that one of his tasks was to provide Gordon with continuity of work until he had completed his tasks. In cross-examination, when asked whether, when he was on site, he was under the direct control of Sgambellone, Gordon said: 'If Mr Maggiotto was not there, yes I'd be under Frank's control'. It was put to Gordon in cross-examination that Sgambellone, the foreman, 'was the person who provided you with all the materials you needed on site, didn't he'. He replied in the affirmative. Sgambellone agreed with the proposition that Maggiotto supplied the materials with which the various trades on the site 'carried out their various activities'. Thus, it was part of Maggiotto's supervisory and co-ordinating function to supply Gordon with necessary materials. These would include scaffolding, when necessary. In the case of unit 33, scaffolding was patently necessary for the purposes of bridging the void. Therefore, on the undisputed evidence, Maggiotto co-ordinated and supervised the different trades required for the completion of all the building work on site, and supplied the materials necessary for the trades to carry out their work. In performing these tasks Maggiotto was, in my view, performing building work (and, hence, construction work) within the meaning of the definition in s 3 of the Construction Safety Act . This case therefore differs from Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 (belatedly relied on by counsel for the appellant) where Santow AJA pointed out (at para 143) that the none of the respondents had done any construction work. Gordon was instructed merely to do the carpentry work at unit 33 and to do so without there being stairs in place. He was not directed to do the specific work necessary to protect himself from the dangers and risks caused by the void. Nor was he supplied with scaffolding or other appropriate material. Additionally, the obligations of co-ordinating and supervising the work remained with Maggiotto, and these obligations had direct relevance to the safety of the work Gordon was instructed to perform. It follows that the performance of Maggiotto's duties under Regulation 73 was not 'wholly delegated' to Gordon. Maggiotto still had to do construction work in regard to unit 33. That work involved co-ordinating and supervising the activities to be performed by Gordon and others, and supplying the necessary materials to Gordon. There can be no doubt but that Maggiotto breached the duties imposed on it by reg 73." 72 It seems clear that the construction by Ipp AJA of what was said in H C Buckman & Son Pty Ltd v Flanagan was an essential part of the reasoning which led to his conclusion that Gordon's cross-appeal should succeed. Since Meagher and Stein JJA agreed with him, his construction of the High Court case is part of the ratio decidendi of Maggiotto's case and binds this Court. 73 The first submission of the plaintiff was that there were factual similarities between Maggiotto's case and the present case, namely that in both cases the head contractor supplied materials. That similarity exists, but there are three very significant differences. The first difference is that in that case the head contractor had to coordinate and supervise the activities of a large number of tradesmen in constructing from scratch thirty five home units, and act as "project manager"; in this case the activity involved was simply placing cladding on the walls (the windows having been dealt with weeks earlier, and no other trade being involved). The second difference is that in that case the head contractor gave directions as to when, where and in what order the work was to be done, and Gordon admitted that he was under the head contractor's control while in this, according to the findings of the trial judge which are in part unchallenged and in part not successfully challenged, the partners determined for themselves the manner in which they did the work, the hours and days worked, the order in which the work was done and which one did which part of the work; they were not subject to any instruction or directions by the defendant as to how and when they carried out the work, nor to any supervision. The third difference is that in that case the head contractor supplied materials when needed; in this case the head contractor did not supply them until a request was made by the partners. In Maggiotto's case it could be said that the head contractor had an absolute obligation to ensure that materials, including the missing stairs which, had they been there, would have prevented the plaintiff's fall, were there; here the head contractor's only obligation was to supply what was asked for and not until it was asked for. 74 The second submission of the plaintiff was that the scaffolding supplied was inadequate. That is material on the question of whether, if the defendant was bound by Regulation 73, it had complied. But it is an immaterial submission on the present point, namely, whether the defendant was bound. In any event, the trial judge found that the preferred method of working in the area where the plaintiff fell was to remove roof tiles and build a platform across to the moveable scaffolding, but that a satisfactory method was to work from a ladder set up as the plaintiff had his ladder set up, provided that it was securely tied at top and bottom, being held by Peter Gromek for any brief period which was necessary. In short, the ladder used, which the partners (not the defendant) owned and provided, was an adequate item of equipment provided it was properly used. 75 The third submission was that the use of the ladder was "an unsafe and non-complying method". That submission is material to the question whether, if the defendant was bound by Regulation 73, it had complied. But it too was not material to the present question, namely whether Regulation 73 applied to the defendant. See further [83] below. 76 The fourth submission is that the defendant through Andrew Szatow was aware of the method which the partners would use. That was rejected as a matter of fact at [19] above. 77 A fifth submission of the plaintiff turns on the argument that Andrew Szatow visited the site on a number of occasions, instructed the partners how to do various tasks, and received requests from them about how to do them. So far as that argument would assist the plaintiff, it was rejected at [21]-[26] above. There were visits and discussions, but they did not rise to the level of direction, control or supervision. 78 The fourth and fifth submissions, so far as they attempt to fit this case into Mason J's proposition that Regulation 73 applies to a person who "participates, whether by act or approval, in the building work carried on by the independent contractor", thus fail. 79 Sixthly, the plaintiff appeared to rely on an analogy with Maggiotto's case and to say that here, as in that case, there was a delegation only of a specific task to the sub-contractor, but not the ancillary work or preliminary steps necessary to ensure the safety of those working on the delegated task. The plaintiff submitted that the delegation by the defendant was not complete; that the defendant retained the right and duty to supply necessary materials apart from the partners' ladder and tools, and among those necessary materials was scaffolding; and the retention of that right and duty amounted to building work. Even if the partners as independent contractors could do the cladding work as they wished without control from the defendant, the defendant retained a duty and responsibility to supply proper scaffolding. That duty and responsibility stemmed from the fact that the defendant knew the plaintiff was not trained to erect scaffolding, was not qualified to erect it (Construction Safety Act 1912 s 17A(1)), did not own any scaffolding, and had never provided it during the numerous past jobs the partners had done for the defendant; and from the fact that the defendant had always supplied scaffolding when needed for those jobs. The duty further stemmed from the fact that the defendant knew or ought to have known that not only was the plaintiff not a skilled scaffolder, but he also lacked the skill to determine whether scaffolding was needed and what type of scaffolding was needed. His skill in cladding did not establish any skill as a person who could reliably call for appropriate scaffolding. Nor was the latter skill established by the fact that the partners habitually contacted the defendant and asked for scaffolding when they thought they needed it. Finally, it was submitted that even if delegation was attempted, there could be no proper delegation of scaffolding erection to a person not legally authorised to erect it. 80 The last of that group of arguments can be disposed of quickly. It relied on a statement of Brennan J's in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47. He said that the duty to use reasonable care "does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur." That was a statement about the scope of the common law duty of care, and in particular a statement about its scope in circumstances where there is a need for co-ordination of concurrent activity amongst several trades. It was not a statement about whether there was in fact delegation for the purposes of analysing the application of Regulation 73. What would otherwise be a delegation is not rendered the less a delegation because the principal contemplates conduct by the delegate that may be unlawful. In any event it was not demonstrated that the defendant contemplated the unlawful erection of scaffolding to enable work to be carried on at the point from which the plaintiff fell, since the postulated scaffolding and platform to be used for that purpose had never been requested. See further [83] below. 81 The analogy with Maggiotto's case fails, because here the defendant had delegated to the partners the performance of the totality of the relevant task, namely erecting cladding, on condition that if the partners judged it necessary to use scaffolding, they were to request it and the defendant was to supply it. It was for the partners to decide when, in what order and how the cladding was to be erected. While the provision of scaffolding for carrying out part of the work is capable of being analysed as a "preliminary step" or as "ancillary work" necessary to ensure the safety of the partners, the trial judge found that the actual task in the course of which the plaintiff fell did not require the use of scaffolding, but could be carried out on the ladder actually used provided the partners adopted the simple measures of securing it at the top and bottom. 82 Further, even if the fact that a tied ladder was a safe way of working is put aside, as between the partners and the defendant it was the agreed role of the partners to form a judgment about when scaffolding was needed and to ask for it. The partners were qualified to form a judgment about whether scaffolding was needed even though they were not qualified in law to erect it and lacked specific training in erecting it. The scaffolding actually supplied was safe for the purpose for which it was required - work on the side of the house. The partners did not ask for scaffolding in relation to work on the dormer windows. If the only way of doing the work safely was to employ scaffolding fixed to a platform anchored on the roof timbers, then the cause of the plaintiff's injury was non-employment of that scaffolding, and a failure by both plaintiff and defendant to appreciate that scaffolding so used was needed. 83 The plaintiff's reliance on his difficulties, if any, in assessing what means should be employed with a view to carrying out the work on the dormer windows safely is not assisted by his supposed lack of skill in erecting scaffolding and his lack of legal authority to do so. The real question, crucial to the plaintiff's Maggiotto argument, is what his skill was in diagnosing what the problem was and how it should be overcome. That had nothing to do with his lack of qualification to erect scaffolding or his lack of skill in erecting it. The problem must have been obvious to the plaintiff - inability to use the scaffolding on site, inability to stand on the roof, inability to reach the dormer surface unless the ladder angle was 50 degrees. If the inability of the plaintiff to work out a solution to the problem created by the perceived and obvious danger is a crucial factor favouring the conclusion that there was no total delegation, the fact of that inability is a matter on which the plaintiff bore an onus. That fact also would not take the matter far unless the defendant were aware of it. The plaintiff gave no evidence about his own inability to work out a solution to the obvious danger, and there was no other evidence either of that inability or of any belief on the part of the defendant that the plaintiff had that inability. Nor was there any evidence from which it could be inferred that the defendant did realise, or ought to have realised, that the plaintiff had that inability. The opening words of Regulation 73 raise a factual question, not a normative question. The question is not whether in all the circumstances the defendant should have closely examined the question whether the plaintiff was unable to diagnose and solve problems relating to dangerous cladding operations on steep roofs before effecting a full delegation of the cladding construction work and everything connected with it. The question is whether as a matter of fact the defendant effected that delegation. If the defendant had realised that the plaintiff was relevantly unable to work out safe solutions to obvious problems, that might be an evidentiary factor pointing against the likelihood of full delegation. But there is no evidence either of any relevant inability on the part of the plaintiff or of the defendant having perceived that that inability existed. 84 Seventhly, the plaintiff relies on an analogy with Zahner v Andreas Pty Ltd [2001] NSWCA 352 at [35]. That case is distinguishable. The head contractor there found liable for injuries to the plaintiff while he was dismantling scaffolding had overall supervision of numerous activities on site, including responsibility for coordinating work between various sub-contractors (some of whom themselves sub-contracted works) and ensuring site safety (at [33]). Here there was no need for coordination and to assert that the defendant had a responsibility for ensuring site safety is to assume the answer to the question under debate.

Regulation 74 85 The trial judge found a breach of this Regulation. He did not say specifically why that finding did not justify a verdict for the plaintiff. However, implicitly he appears to have concluded, for reasons similar to those for concluding that Regulation 73 did not apply because the defendant was not carrying out construction or building works, that the defendant was not in charge of the construction work. Santow AJA in Almeida v Universal Dye Works Pty Limited (2001) Aust Torts Reports 81-603 at [119] suggests that the plaintiff's failure to overturn the trial judge's Regulation 73 reasoning does not necessarily mean that he must fail in relation to Regulation 74. Santow AJA said: "It can readily be seen that the class of persons protected by Regulation 73 is specifically persons engaged in such construction work. Whereas the class of person obliged by Regulation 73 (here to provide the relevant safeguards and accident prevention measures) is specifically 'any person who directly or by his servants and agents carries out any construction work'. That class of person includes a subcontractor who actually carries out the work, but not the head contractor who is in charge of it. Regulation 74, as I explain, reverses the position. It takes the class of person obliged by Regulation 73 ('a person engaged in construction work) and makes that person instead the protected person. But the person obliged by Regulation 74 becomes 'the person in charge of the construction work'." 86 The plaintiff argued: "In Almeida v Universal Dye Works Pty Ltd (2001 Aust Torts Reports 81-603 Santow AJA (with whom Priestley JA agreed) held that where: '[a head] contractor retains overall responsibility for the construction work [that] necessarily entails being in charge of it, whether carried out by the contractor itself, or as is more usual, via a subcontractor' (paragraph 132). Santow AJA regarded responsibility for the construction work as including elements such as: - being responsible for the work to the proprietor. - being in overall charge of the construction work. - co-ordinating trades. - making the site available to those doing the work (paragraph 130). It is noteworthy the contractor found by Santow AJA to be obliged to comply with Regulation 74 in Almeida's case had far less involvement with the relevant building work than the Respondent in this matter. For instance it did not supervise the work being performed." 87 The contention that the defendant supervised the work here has been rejected at [21]-[26]. However, that is not conclusive, for the reasons given by Santow AJA at [130]-[131]: "The words 'person in charge of the construction work', are apt to include a head contractor in overall charge of construction work, co-ordinating any various trade or trades and making the building site under its control available to those doing the work. Moreover, because a head contractor remains responsible for the work to the proprietor, it could not discharge that responsibility if not in overall charge of the work and building site. This certainly does not mean that the head contractor must carry out the work itself. A subcontractor, as here, may be delegated to do the work. Nor does it mean that the head contractor dictates how the subcontracted work is to be done, save very broadly in its co-ordinating role. Typically, the head contractor is not an employer of the subcontractor's employees dictating in any detailed fashion how the work is done. Indeed Regulation 74 imposes no duty requiring such dictation. The duty is merely to 'provide' certain equipment capable of use on the site for its intended purpose. Certainly there is no duty that presupposes the capacity to enforce its use, as in the wearing of a safety harness. Contrast, for example, Regulation 73(2) in its requirement to provide and maintain ' safe means of access, or Regulation 73(14) 'to cause measures to be taken to ensure scaffolding materials' etc are not 'thrown, tipped' etc. The conclusion that 'the person in charge of the construction work' would include a head contractor in the First Respondent's position is not precluded by the holding of the trial judge as to the role actually played by the Respondents. He concluded that 'there is no suggestion in the evidence that any of the Defendants, or their servants, had, or sought to have, any role of direction, supervision, or otherwise, in the manner of performance of the work ' [emphasis added] … . Supervision of the manner of work is not what the head contractor typically does. But the head contractor is nonetheless in charge of the construction work. Nor does that conclusion depend upon whether the First Respondent instigated the putting up of the safety net … though Mr De Silva gave evidence to that effect, subsequently resiling … . Nonetheless the evidence that the First Respondent funded equipment purchases for the indigent subcontractor reinforces the First Respondent being 'the person in charge of the construction work'. But that would have been so even without that additional involvement." 88 The real issue is whether Regulation 73 applies to all head contractors, or only some. Santow AJA certainly held that the application of Regulation 74 is not to be avoided merely by interposing a sub-contractor (at [136]). But what he said at [130] suggests that Regulation 74 may only apply where the head contractor is in overall charge in the sense of co-ordinating trades and making the building site available. The question posed by Santow AJA in [132] as a means of determining whether a contractor was in charge of work was whether the contractor "retains overall responsibility" for it. While a head contractor is the party in direct relationship with the proprietor, and is thus liable to be sued in contract for defective performance, Santow AJA was not speaking of "overall legal responsibility" but overall responsibility for the conduct of the work. He was intending to distinguish between some head contractors and others. Here there was no co-ordination required, and the partners had the building site available to them at any time. The head contractor did not retain any responsibility for the work. Hence, Regulation 74 did not apply to the defendant. Counsel for the plaintiff conceded the possibility that if a specialised scaffolding sub-contractor had been interposed between the defendant and the plaintiff, Regulation 74 would not apply. However, the question of who has been interposed is merely an evidentiary question relevant to the central issue of whether overall responsibility has been retained. Here it was not. 89 The defendant advanced several unsatisfactory arguments about Regulation 74. 90 First, it submitted that there was no evidence that a safety belt, safety line, harness or safety net had not been supplied. That submission must fail. If it were to be alleged that one of those items had been supplied, a duty on the defendant to plead that allegation in the Defence in order to avoid surprise would have existed. No such allegation was pleaded. More importantly, neither expert discussed any of these items; in particular Dr Stark, who was the expert called by the defendant, might have been expected to do so if the defendant was relying on the provision of one of them, did not. 91 Secondly, the defendant submitted that even if one of those items had been provided, there was no evidence that the plaintiff would have used it, or that it would have avoided his injuries. In the absence of contrary evidence, it must be presumed that the injuries would have been avoided, and there is no contrary evidence. And given that the defendant perceived danger in the operation, it may be inferred that if safety equipment of the type described had been available or provided, the plaintiff would have used it, even though no counsel actually asked him to say so. In any event, the trial appears to have been run on the basis that the only issue which was alive in relation to Regulation 74 was whether it applied to the defendant. The trial judge commented on "a paucity of evidence" about it. It is too late for the defendant to take evidentiary points about issues which it did not identify as issues at the trial. 92 The defendant also argued that there was no risk that a person in the position of the plaintiff might fall because there was no adequate handhold or foothold. If the ladder were tied, arguably there was an adequate handhold and foothold, because the plaintiff's hands and feet could be placed on the rungs of the ladder, which had been made inherently stable by the tying. But without tying, the ladder was unstable, and hence the handholds and footholds were not adequate. The fact that a person in the position of the plaintiff could easily have made them adequate does not derogate from the fact that they were not in fact adequate. 93 Finally, the defendant argued that if the contributory negligence of the plaintiff justified a finding of 100% contributory negligence, any causal connection between the defendant's conduct and the plaintiff's injury would have been negated: Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25. The defendant submitted that similarly, where breaches of statutory obligations were in question, proof of causation remained essential and causation was capable of being broken by 100% contributory negligence. The defendant submitted that the trial judge had made such a finding by saying that the plaintiff, in ascending the ladder without ensuring that it was properly tied, "was the author of his own misfortune". 94 In view of the other reasons for rejecting the plaintiff's case on Regulation 74, it is not necessary to consider this argument.

2. The appellant is to pay the respondent's costs of the appeal. 96 IPP AJA: I agree with Heydon JA. 97 DAVIES AJA: I have had an opportunity to read the reasons for judgment of Heydon JA. I need not describe the general facts which are set out in his Honour's reasons. 98 The learned trial judge summarised the substance of the expert evidence as follows: "(1) To use the ladder the way it was set up by the plaintiff was fraught with danger because, while working at its top, it could slip, as it did, thereby causing the plaintiff to lose his balance and fall, as he did. (2) The preferable safe way of doing the work on the side of the dormer type window was by removing roof tiles and a platform being built onto the roof timbers, bridging across to the existing moveable scaffold, which would be locked into a safe position. (3) If number two could not be done for any reason, the work could be done safely from a ladder set up the way the plaintiff set it up, provided it was securely tied at the top and bottom. The tying of the top and bottom of the ladder could properly and safely have been done by the plaintiff at the top, while his partner Peter footed the ladder for a comparatively short time, if the bottom had not by then been securely tied." 99 In my opinion, paragraph (3) of that finding did not fairly summarise the expert opinions. Moreover, I am satisfied that the use of a ladder in the circumstances in which it was used was inherently dangerous. 100 The appellant and his partner, who were essentially carpenters, were working on a Cape Cod house. The house had two levels with the roof sloping down from its ridge to the top of the ground floor level. Protruding from the roofline were the dormer windows of the upper floor. The roofline had a slope of about 50 degrees above horizontal. The dormer windows protruded a significant distance from the roof. The task on which the appellant and his partner were working, inter alia, was to reclad the walls on the sides of the windows. 101 The windows were situated towards the centre of the roof so that they were surrounded by sloping roof above, below and to the side. Because of the 50 degree slope of the roof, no worker could stand on it. Moreover, because the windows and the walls on the sides of them where the cladding was to be placed were set back from the edge of the roof, the appellant could not work from a ladder placed in the ordinary way against the edge of the roof, or from scaffolding erected adjacent to the house and the edge of the roof. The scaffolding with which the appellant and his partner had been provided, which was a scaffold on wheels, could not be used. 102 In my opinion, the only safe way to perform the work which the appellant and his partner were called upon to perform was to erect a platform on which a worker could safely stand. This could have been done by erecting scaffolding and extending the scaffolding across the roof to the point where the work was to be performed, attaching the scaffolding to the roof timbers after removing a number of roof tiles. On the scaffolding, a protected platform should have been constructed. 103 The appellant's expert, Dr B N Emerson, whose report was tendered on behalf of the appellant at the trial and who was not called for cross-examination, made this point when he said: "I have concerns regarding the safety of workers in using this 5m long ladder to access the 5m high-elevated place of work. This elevated place of work in my opinion requires a proper scaffold or an elevating platform vehicle and the like. The Defendant did not follow up the provision of these essential requirements for the job. Therefore the Plaintiff was placed at significant risk of injury. …. What I am alluding to is the fact that even a properly designed, strong aluminium ladder such as are made for heavy duty building use, and used by tradesman, are not basically suitable for this task. I am of the opinion that the Plaintiff was not afforded a satisfactory means of access to an elevated place .." 104 Dr H L Stark, who gave evidence on behalf of the respondent, did not dissent from the view that the use of appropriate scaffolding was desirable but he qualified that view. Dr Stark reported: "Clearly some form of scaffolding that provided a fenced platform would have been preferable to a ladder for working on the site in question. … Although in general good ladder practice is to use ladders as a means of access to work platforms, there are many instances where the accepted practice is to work from the ladder itself. The Construction Safety Act envisages work (80(12)) done from ladders, and since it instances ladders greater in height than 1.8m (80(13)) it appears to me that working at a height exceeding 1.8m from a ladder is permissible. The reference to platforms and fencing at 1.8m in 80(13) appears to me to specifically refer to access ladders cited in 80(3)." 105 The evidence shows that, if a ladder is used, it is important to place the ladder at an angle of approximately 75 degrees. Dr Stark annexed to his report information on this point. He annexed a guideline from the Australian/New Zealand Standard on Portable Ladders which stated: "2.3 PITCH ANGLE Portable non-self-supporting ladders should be placed so that the horizontal distance between the support point of the ladder and the foot of the ladder is approximately one quarter of the supported length of the ladder. For example, when the top of a 6 m long ladder is supported against a vertical wall, the base of the ladder should be approximately 1.5 m out from the wall. (See Figure 2.2)"

Dr Stark annexed a document produced by Telecom on the safe use and care of ladders which dealt in considerable detail with their use and which stated, inter alia: "Fig. 48 - A ladder placed at too steep an angle is difficult to climb and is liable to fall over backwards or sideways. Fig. 49 - A ladder which is too sloping will have a tendency to slip. Angle of Slope The stability of a ladder will depend to a large extent on the angle at which it is placed. If the ladder is too straight up and down, it is liable to fall over backwards or sideways when being used (Fig. 48). If too sloping, the feet have a greater tendency to slip (Fig.49), or the stiles may break (Fig. 50)." 106 No breach of reg. 80 of the Construction Safety Regulations was relied upon, but it is worth noting that the regulation provides: "(3) Any person who directly or by his agents or servants carries out any building work shall provide and maintain in place during working hours such ladders as are necessary to provide safe means of access to all floor levels and to all places where any person has to work until such time as temporary or permanent stairways are completed and are available as such safe means of access. … (11) Ladders used for the purposes set forth in paragraph (3) of this Regulation shall rise to a height of at least 1 m above the place of landing for persons using such ladders. … (13) A landing place at least 680 mm in width and 1.2 m in length shall be provided at the head and base of every ladder used for the purposes set forth in paragraph (3) of this Regulation and if any person is liable to fall for a distance of more than 1.8 m therefrom then such landing place shall be fenced in the manner set forth in Regulation 75. … (14) every ladder shall, where possible, be used at such an angle that the horizontal distance from the top support to the foot of the ladder is equal to one quarter (1/4) of the length of the ladder." 107 If a worker has set up a ladder at the proper angle, then the ladder is at its most stable, and the worker can climb up and down it having his feet firmly on the rungs, standing upright so that his weight goes directly down to the rungs on which he stands and holding on with one or both hands to the rungs or frame of the ladder. As I have said, if the appellant had placed the ladder at a correct angle, resting against the edge of the roof, he would not have been able to reach the window or the side of the window where the work was to be carried out. 108 The appellant extended his six metre ladder to its maximum extent and set it up with its head up near the side of the window on which he was to work and with the feet extending down to the concrete below. As the roof was at an angle of about 50 degrees, the ladder was at an angle of a little less than 50 degrees from the horizontal. The part of the ladder that extended over the roof was lying either flat on or close to the roof. A worker climbing a ladder at such an angle could not stand upright but must use an ape like posture. The worker would not have his body and weight in such a position that his weight was directed vertically down onto the rungs on which he was climbing. Furthermore, once the worker reached the roofline, the worker would encounter the situation that the rungs of the ladder were close to the tiles, which might interfere with the positioning of the feet. 109 The most significant point is that, at its top, resting against the tiles, the ladder did not provide a secure base on which the appellant could stand and from which he could work. Regulation 80(11) evidences an obvious point that a ladder should be positioned so that the worker standing on a rung should be able to hold onto the rungs or the frame. 110 When the appellant got to the top of the ladder, he could not hold onto the ladder as he was standing on its top most rungs. When he reached the top of the ladder he had to stand upright. His task was to measure the fascia. The rungs did not provide a safe platform and the appellant could not hold onto the ladder. The tiles may even have prevented him from placing his feet on the rungs as ordinarily occurs. We do not know how the appellant was standing. There is no description of this in the evidence. However, it is apparent that the ladder, positioned as it was, flat on the roof, provided no safe platform from which to work. 111 It is not in dispute that the appellant was negligent in setting up the ladder as he did. Dr Emerson and Dr Stark were agreed on that point. 112 Dr Emerson and Dr Stark agreed that safety would have been improved had the ladder been tied or otherwise appropriately fixed in place, top and bottom and, that, because that did not occur, it is likely that the ladder moved and the appellant became unbalanced and fell. Dr Stark appears to have considered that the use of a ladder may have been appropriate had the ladder been tied. In my opinion, a ladder was totally unsuitable for the work because of the slope and because it did not provide a safe platform for the appellant at the top of the ladder, the point where the appellant had to stand and work. 113 Dr Stark practically conceded this point in this evidence: "Q, Yes but doctor far more desirable is to use a scaffold, isn't it? A. I think it's more desirable to use scaffolding yes. Q. Far safer to use scaffolding? A. Yes, yes scaffolding with fencing yes." 114 The immediate cause of the accident was the appellant's failure to securely tie the ladder in place. On the appellant's evidence, he felt a slight movement in the ladder and he became unbalanced. However, the underlying cause of the accident, and I would say the real and effective cause of it, was that the appellant did not work from a safe and secure platform. That resulted from the fact that the appellant was not provided with scaffolding to enable him to do so. 115 That brings me to the Construction Safety Act 1912 and the Construction Safety Regulations made thereunder which imposed statutory obligations on persons carrying out building works with a view to ensuring that adequate protective measures are installed and maintained on building sites. Regulation 73 provides, inter alia: " Safeguards and accident prevention measures for construction work Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74: (1) provide suitable and safe scaffolding, which shall confirm to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations." 116 Regulation 73 and Regulation 80 required that scaffolding be erected to undertake the task which the appellant had to carry out. A ladder should not have been used. Its use for the work was inherently dangerous as it did not provide a safe and secure, let alone a protected, platform from which the appellant could work. 117 The operation of the Act and the Regulations in relation to head contractors and sub-contractors was considered in H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422. Barwick CJ held at 429: "It is not consistent in my opinion with that conclusion to include independent contractors who are carrying out particular building work as 'agents' of the building owner or contractor so as to impose on him the obligation which clearly will fall upon the independent contractors vis-à-vis the building work they are actually doing."

McTiernan and Stephen JJ expressed a like view. Mason J expressed the view that the head contractor and sub-contractor should both be regarded as persons carrying out the building work but, at 433, that the regulation conferred no private right upon a sub-contractor against the head contractor to the performance of the statutory duty when the doing of the work which attracted the performance of the duty had been wholly delegated to the sub-contractor so as to impose the same duty on him as it did upon the head contractor. Jacobs J expressed a view which accorded with that of Mason J. 118 In Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65, Ipp AJA, with whom Meagher and Stein JJA agreed, reconciled the differing remarks of the judges, in so far as they can be reconciled, when his Honour said: "According to Jacobs J, the head contractor will only be regarded s having instructed the other person to perform the preliminary steps if that person was particularly directed to do the specific work 'necessary in order to fulfil the [head contractor's] statutory duty'. That is to say, according to his Honour, the head contractor will only avoid having a statutory duty in regard to the preliminary steps if the head contractor particularly directs the other person to take those steps. Additionally, the other person 'must be provided with all material, assistance and supervision necessary' to ensure compliance with reg 73. These remarks have to be seen in the context of the statement by Barwick CJ that under the regulations a head contractor owes no duty thereunder in respect of work delegated by it. Jacobs J was merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe. His Honour observed that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps. Nothing in this approach departs from that of Barwick CJ. It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task." 119 In the present case, the respondent did not delegate to the appellant and his partner the whole of the tasks required by the building works. The arrangement between the appellant and his partner and the respondent was effectively a labour only contract, although the appellant and his partner had, as carpenters, their own tools and a ladder. The respondent was the contractor for the entirety of the work and such work as the appellant and his partner did was done under the respondent's tradename "Grandview". In my opinion, the respondent, as head contractor, was a person who "by his servants or agents carries out construction work". 120 The respondent did not delegate all necessary tasks to others. In particular, the respondent did not delegate the task specified by Regulation 73(1), the provision of safe and secure scaffolding, but retained that task for itself. The case has some analogies to Zahner v Andreas Pty Limited & Boral Building Services Pty Ltd [2001] NSWCA 352, were the head contractor, Andreas, delegated the tasks of supply, erection and dismantling of scaffolding to an independent contractor, Boral, but was held to retain the duty of maintaining the scaffolding, as that task had not been delegated. 121 In Buckman, Barwick CJ at 427 and 8 said: "For my part, I perceive that the Act and regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts. This seems to me an eminently practical and workable scheme of legislation. By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured. I am unable to accept the view that the word 'agents' comprises the independent contractors who are themselves carrying out the building work which they have contracted to do." 122 In my opinion, in the context of the Construction Safety Act and Construction Safety Regulations, which are concerned with the safety of workers on building sites, his Honour had it in mind, by using the words "those whose acts are in law not acts", that, under tort law, an ordinary duty to take reasonable care to avoid a foreseeable risk of injury to another may be discharged by the employment of a qualified and ostensibly competent independent contractor. I adopt the expression used by Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 at 550. The principle of "competent contractor" was referred to in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 by Mason J at 32, Wilson and Dawson JJ at 44 and Brennan J at 47. I do not accept that a head contractor can avoid an obligation imposed by the Construction Safety Regulations by delegating to the task a person not apparently qualified to carry it out. If it could be so avoided then the result postulated by Barwick CJ, that the safety of all will be secured, would not be achieved. 123 In Buckman, Jacobs J put this matter expressly when he used the term "properly delegated" in the following passages: "…. where the performance of the acts necessary to comply with the statutory duty have been properly delegated to the employee or sub-contractor, or where the exposure to accident risk occurs as a result of the employee or sub-contractor having failed to perform the necessary acts performance of which has been properly delegated to him, then the exposure to accident risk of that employee or sub-contractor alone is not a breach of the statutory duty … ." 124 In the present case, the respondent did not delegate the performance of the whole of the building works to the appellant and his partner. The sub-contract was a labour only contract. The provision of appropriate scaffolding remained the responsibility of the respondent. Indeed, as the appellant and his partner did not hold the appropriate certificate and the respondent was aware of that, the responsibility for the scaffolding could not have been delegated to them. There was a breach of reg. 73(1) because scaffolding was required to enable a safe and protected working platform to be constructed. That breach was the respondent's breach. 125 The following remarks of Jacobs J in Buckman at 432 are apposite: "When a person carrying out building work delegates to an employee or sub-contractor the performance of acts required to be done in order to comply with the statutory duties he is not likely to be able in all cases prior to that delegation and the consequent performance of those acts to provide that employee or that sub-contractor with the protection which the particular statutory duty imposes. It must therefore often be the position that the statutory duty does not extend to the employee or sub-contractor engaged in the acts necessary for the fulfilment of that same statutory duty. When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do acts or things in order to ensure their safety when engaged on the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions whereunder the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer's statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty." 126 Accordingly, the appellant was entitled to the damages of $349,787 which the trial judge assessed. 127 It is not necessary for me discuss other issues which were raised in the appeal. 128 I would uphold the appeal. I would set aside the orders below and, in substitution therefore, I would order that there be judgment for Marek Kolodzieczyk against Grandview Pty Limited in the sum of $349,787 with costs. I would order that the respondent pay the costs of the appeal. **********

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