Contributory Negligence
6As I have decided the question of primary liability and assessed the damages to which Mr McGlashan may have been entitled if my decision were wrong, I think it appropriate that I record my findings about contributory negligence. Contributory negligence is not mentioned in my reasons of the 29th May 2013 nor in the separate questions as reformulated by me, but it is raised on the pleadings and was fully argued by the parties orally and in writing before I acceded to the application to decide the separate questions. In truth, my failure to deal with it in my judgment of 1st May 2014 was an oversight.
7Mr McGlashan was Lidoran's independent contractor. He was an experienced roofer who had been in his own business for many years. Conventionally, the duty owed by a principal to its independent contractor is formulated in accordance with the judgment of Brennan J in Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 as I discussed at [32] - [42] of my judgment of 1st May 2014. In the ordinary case, the content of that duty does not extend to an obligation to institute and maintain a safe system of work for the independent contractor.
8My decision about that would have been different had the plaintiff proved that Lidoran assumed responsibility for the institution and maintenance of a safe system of work in the knowledge that Mr McGlashan was relying on it to do so; that is had I found he was legally vulnerable.
9I made contingent findings about the question of breach at [75]-[80] of my earlier judgment. At [77] I decided that assuming the existence of a duty of care, "a reasonable person in Lidoran's position would have taken the precaution of providing adequate means of securing the ladder, even to the extent of providing a second tradesman, or offsider, to foot it if required". I found that, but for the availability of an offsider to foot the ladder during Mr McGlashan's descent, his personal injury would not have occurred.
10I also found that accepted safe practice in the roof-fixing industry involved long ladder work being performed as a two-man job, the second man footing the ladder (at [43]). I accepted the evidence of the expert engineers, Hugh Stark and Ron Beckett that it was possible for an unaided tradesman to secure a ladder by tying, or lashing it, to appropriate anchor points which could be reached from ground level. However, none of the experienced roofers who gave evidence before me referred to this as a possible procedure. Accordingly, I found that the standard of reasonable roofers, as opposed to reasonable engineers, did not extend to the adoption of this practice. Moreover there was no evidence before me of any appropriate anchor point that could be reached from ground level to secure the ladder at the Sefton job being performed by Mr McGlashan at the time of his injury.
11Questions of contributory negligence are to be decided in accordance with the provision of s 5R Civil Liability Act 2002 (NSW), that is, objectively. The principles expressed in ss 5B and 5C of the Act likewise apply to questions of contributory negligence. But it should be borne in mind that the specific provisions of the Act operate against, and on the assumption, of the continued validity of common law principles, except where those principles are excluded, either expressly or implicitly, by the statute.
12Where an "employer's" duty extends to instituting and maintaining a safe system of work, an employee injured by an incident of the system will generally not be guilty of contributory negligence: Davies v Adelaide Chemical and Fertiliser Co Ltd (1946) 74 CLR 541 per Dixon J at pp. 552-3. This principle may be taken to explain the decision in General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 193-4 per Lord Reid.
13On the assumption that Lidoran's duty of care extended to instituting and maintaining a safe system of work, I would not have found Mr McGlashan guilty of any contributory negligence in performing the work alone, without an offsider to foot the ladder, notwithstanding that as an independent contractor, he could have refused to perform the job if in his judgment it could not be performed safely by one man. As Lord Oaksey pointed out in Christmas at (p 190) workmen, "have to make their decisions on narrow windowsills and other places of danger, and in circumstances in which the dangers are obscured by repetition"; see also Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at pp 177-8. The defendant has not discharged his onus of proving what precaution was reasonably available to a reasonable person like Mr McGlashan working alone to secure the ladder. He might have decided not to perform the job. But his decision to undertake it, in my judgment was not of itself unreasonable on the assumption adopted for the purpose of the argument that he was entitled to expect that Lidoran were responsible for sending the offsider, and had let him down.