Court of Appeal (WA)|2004-10-01|Before: Murray J, Steytler J, McLure J

Miller v Paua Nominees Pty Ltd [2004] WASCA 220 (1 October 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MILLER -v- PAUA NOMINEES PTY LTD [2004] WASCA 220

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation Number : [2003] WADC 50

Negligence - Duty of care - Worker injured when jumping from scaffolding onto top of aircraft - Whether trial Judge erred in finding the respondent scaffolder owed no duty of care to the appellant worker in respect of the incident which led to his injuries - Respondent ought to have known there was no safe access to top of aircraft - Reasonably foreseeable risk that workers would injure themselves in attempting to access the top of the aircraft - Respondent owed those engaged in recladding work a duty of care to ensure that a safe means of effecting that work was provided - Turns on own facts

Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 78 ALJR 933

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Sullivan v Moody (2001) 207 CLR 562

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 78 ALJR 628

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842

Commonwealth of Australia v McLean (1996) 41 NSWLR 389

Devries v Australian National Railways Commission (1993) 177 CLR 472

Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837

Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Rep 81-673

Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572

Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 MURRAY J: I agree with Steytler and McLure JJ that, for the reasons given by their Honours, the appeal should be allowed.

2 To my mind the critical point is that the terms of the scaffolding contract and its definition of the scope of the work could not, in the circumstances of this case, so condition or confine the scope of the tortious duty of care as to support the conclusion of the trial Judge that no duty was owed to take reasonable care and precautions to guard against the harm which occurred.

3 The nature of the relationship between the appellant and respondent and the reasonable foreseeability of the occurrence of harm of the kind suffered by the appellant compelled the conclusion that the respondent, as well as the appellant's employer, owed the duty of care imposed by the common law.

4 STEYTLER & MCLURE JJ: The appellant was injured on 19 June 1997 while working on the re-cladding of the body of a mock Boeing 747 aircraft at Pearce Air Force Base in Western Australia. The respondent had provided scaffolding for the purpose of the re-cladding work. While attempting to get to the top of the aircraft the appellant leaped across a gap of about three and a half feet between the scaffolding and the aircraft. He missed his grip on a nearby transverse ladder beam and began to fall backwards off the aircraft. He grabbed the ladder beam with his left hand as he fell. He hung from the ladder beam by his left arm for a short while. That caused him to injure his left shoulder and back. He blamed the respondent for his injuries, saying that the scaffolding provided by it was deficient.

5 In the action which the appellant brought against the respondent he contended that the respondent had breached a duty of care owed to him by erecting the scaffolding in such a way as to give him no safe means of access to the top of the aircraft. The trial Judge dismissed his action, finding that the respondent had not owed him any duty of care bearing upon the circumstances of his injuries. The appellant appealed against that judgment. He contends that the trial Judge erred in this last respect and that she should have found that there had been a duty of care to avoid an accident of the kind which happened.

6 At the time of the accident, the appellant worked for a business known as Combined Insulation Services ("CIS"). CIS had contracted with the Australian Department of Defence to re-clad the exterior of the aircraft with sheet metal known as zincaneal. CIS had also contracted with the

respondent as regards the supply, by the respondent, of the necessary scaffolding. Written terms of the scaffolding contract appear in a quotation dated 19 November 1996 (exhibit 12 at the trial), given by the respondent to CIS, which was subsequently accepted by CIS. The relevant part of the quotation reads as follows:

"Thank you for requesting a quotation from Instant Scaffolds WA for the supply of scaffolding to replace sheeting on mock aircraft. It is my proposal that we complete the project in three stages.

(A) Nose of aircraft up to first door (grid line 16). Scaffold to consist of a series of towers each side of the aircraft, linked together beneath and over the top of the aircraft for stability. This scaffold may be mobile if ground permits. Instant Scaffolds WA will also give access across the front of window of mock aircraft. The ties across the top of the aircraft will permit workers to tie off with body harnesses so they may, if necessary, stand on top of aircraft.

(B) First door to wing (grid line 16 - 12.5). If our stock holding permits this position would be completed at the same time as position A, if not then the scaffold on A would be relocated. As per A scaffold would be erected either side of aircraft and linked over the top and underneath.

(C) From edge of wing (approx. grid line 7) up to tail section (approx. grid line 4). Scaffolds to be linked above and underneath as per A & B. This position would be completed after positions A & B.

Note: Instant Scaffolds WA will endeavour to get workers as close as possible to the work face utilising cantilevers etc. but because of the curvature of the mock-up and the fact that we will be utilising standard equipment only some areas may require a little extra reach, but at all times, safety will be paramount in the type of system we supply."

7 The grid lines referred to in the quotation were grid lines in a diagram of the aircraft which had been provided to the respondent.

8 As matters turned out, the respondent was asked to provide the scaffolding for section C first. After re-cladding work on that section had been completed, the scaffolding was progressively removed from it and installed for use on section B, the section in which the accident happened.

9 The scaffolding consisted of sections of aluminium framing. Each section was about 1.4 metres wide and 1.6 metres high. There were five rungs on the side of each section and these were 400 millimetres apart. The sections were fixed on top of each other so as to form vertical towers on either side of the aircraft. The towers, which were about 10 metres high, were joined across the top of the aircraft by horizontal ladder beams. At their closest point to the aircraft the towers were some 10 to 15 centimetres away from it. The gap was necessary as otherwise the metal cladding sheets could not have been attached. The respondent had installed a wire running along the spine of the aircraft at its top, enabling workers to attach lanyards and safety harnesses to that wire.

10 Because the body of the aircraft narrowed towards its top, the respondent provided a cantilevered platform, attached to the inside of the scaffolding towers, in order to provide access to the upper parts of the fuselage. Two guardrails were placed on the inside of that platform, the first some 400 millimetres above the platform and the second about 850 millimetres above it. The guardrails were not in place at the time of the accident. They had been removed in order to gain access to the fuselage of the aircraft.

11 When the scaffolding was moved from section C to section B, its configuration altered in order to meet the different configuration of the aircraft. Section B was more oval in shape than section C because of the existence, there, of an upper deck of the aircraft. For the same reason, the top of the aircraft was higher in section B than in section C. Persons working on section C had been able to step across to the top of the aircraft from the cantilevered platform. However, because of the different shape of section B, there was a gap between the cantilevered platform and the top of the aircraft, such that there was a vertical distance of 2 metres and a horizontal distance (from the inside edge of the platform to the centre of the aircraft) of 2.27 metres. It was consequently common cause that any person who sought to reach the centre of the top of section B of the aircraft from the cantilevered platform had to cover a distance greater than 2.27 metres.

12 We have mentioned that the accident occurred when the appellant attempted to leap across the gap between the scaffolding and the aircraft. He did so after stepping on to an external guardrail of the cantilevered platform. That guardrail was 400 millimetres above the platform.

13 The appellant had previously complained to the CIS supervisor on site about the difficulty in obtaining access to the top of the aircraft, but nothing had been done about his complaint. He had consequently adopted the practice of leaping across the gap in the manner which we have described.

14 Expert evidence was led at the trial from a consulting engineer, Mr Andrew van der Meer. He said that a scaffolder could have erected scaffolding which would have provided a safer means of access for workers onto the top of the fuselage. This could have been done by way of the provision of a cantilevered sloping ramp extending from the work platforms directly onto the fuselage. A ramp of that kind would have cost about $100.

15 The respondent's managing director, Mr Murray McLean, conceded that it would have been possible to install a ramp of the kind suggested by Mr van der Meer. However, he said, CIS never asked for such a ramp and nor was he ever told that workers were having difficulty in obtaining access to the top of the aircraft in section B. He also said that a ramp of that kind was not "standard equipment", being all that was required by the scaffolding contract.

16 The trial Judge referred to this background in the course of her judgment. Having accepted the evidence of each of the appellant, Mr van der Meer and Mr McLean, she turned to the question whether any relevant duty of care had been owed by the respondent to the appellant. She said (at [40]), in that regard, that she relied upon the return to "a touchstone of reasonableness" as discussed in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 and Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540. She also referred to the principle, enunciated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580, that "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour", as that principle has been applied and understood in Australia. As we have earlier remarked, she concluded that the respondent had not owed to the appellant any duty of care in respect of the events which resulted in his injuries.

17 In arriving at that conclusion, her Honour referred again to the evidence which had been given at the trial. She also made a number of findings of fact.

18 Amongst the evidence referred to by her, was evidence from Mr McLean to the effect that the respondent had never been asked by CIS to provide access to the top of the aircraft and (as we have previously mentioned) that it had not been told that workers were experiencing problems gaining access to it. The trial Judge found that Mr McLean had had no knowledge of how CIS intended to go about the job of re-cladding the aircraft and that he was unsure whether the workers would install the cladding on the top of the aircraft from inside the aircraft or from outside it, although, she said, "... he assumed they would do it on the outside of the aircraft." Mr McLean had conceded that, when a worker was standing on the cantilevered platform, there was no way of getting to the top of the aircraft in section B. He said that he had never envisioned that workers would climb off the scaffolding onto the aircraft itself.

19 The trial Judge referred (at [48]), in this last respect, to the following exchange which took place during the course of Mr McLean's cross-examination:

"But you knew they were re-cladding?---Sure.

And you knew they had to get to the top?---I knew they had to remove all the cladding and replace it with new cladding. I wasn't party to how they were going to remove or how they were going to replace either inside or outside of the aircraft.

Just answer the question. You knew they had to get to the top?

---Sure, yes."

20 Her Honour also mentioned that Mr McLean had said, in the course of re-examination by counsel for the respondent, that CIS's scaffolding had been erected to provide a safe platform for workers, confined by safety handrails, and that, if a worker went outside the scaffold as the appellant had done, he could do nothing about it.

21 The findings of fact made by the trial Judge were as follows:

"1. The ... [appellant] was employed by CIS. His system of work on site was determined by his employer and conveyed to the ... [appellant] by Mr Pollock the site supervisor.

2. The ... [appellant] was able to gain access to the top of the aircraft while re-cladding section C by stepping onto the top from the cantilevered platform.

3. Once the scaffolding providing access to section C was removed, the ... [appellant] had difficulty accessing the top of the aircraft in section B because the aircraft was higher and steeper in that section. The only way the ... [appellant] could reach the top was to remove the handrail from the cantilevered platform and launch himself across grabbing the ladder beam as he went and scrambling up to the top.

4. The ... [appellant] complained to Mr Pollock. Nothing was done about the complaint. Mr Pollock did not tell Mr McLean or any scaffolder of the problem the workers experienced with accessing the top of the aircraft in section B.

5. Mr McLean visited the site regularly. He was never asked to build a ramp or told of the need to devise a safe means for workers to access the top of the aircraft from outside the aircraft.

6. Mr McLean designed the scaffolding and knew there would be problems with workers reaching all parts of the fuselage because of its shape. Mr McLean knew there was no way of getting to the top of aircraft from the cantilevered platform. He knew that workers had to get to the top to re-clad the aircraft but he did not know whether they would access the top from inside or outside the aircraft.

7. Mr McLean was never asked to re-design or modify the scaffolding to bring workers within reach of the top of the aircraft.

8. Neither Mr McLean nor any scaffolder was informed of the system of work CIS had devised for re-cladding the aircraft.

9. Neither Mr McLean nor any scaffolder was informed that the workers were placing themselves at risk by removing the handrail and leaping across from the cantilevered platform to the top of the aircraft."

22 Having made these findings of fact, her Honour returned to the question of the duty of care saying (at [54]):

"A scaffolder's duty extends beyond its contractual obligations. It would be reasonably foreseeable to any scaffolder that if the erection or installation of the scaffold were defective there would be a risk of harm to workers in the position of this ... [appellant] who used the scaffold to access their worksite. Therefore I accept that the scaffolder was under a duty of care to a class of persons including the ... [appellant] to erect and install scaffolding which was safe and would not expose the ... [appellant] to risk and hazard of damage."

"But the ... [appellant] in this case does not complain of any fault in the erection or installation of the scaffolding. No part of the scaffolding failed. The scaffolding provided a safe platform for access for the ... [appellant] to the fuselage. The ... [appellant's] risk of injury arose entirely from the ... [appellant] adopting an unsafe system of work. The ... [appellant] was injured when he removed a portion of the scaffolding (the handrail) in breach of safety regulations, and attempted to launch himself from the scaffolding to the top of the aircraft. I am unable to see how it could be reasonably foreseeable to a scaffolder that a worker in the position of this ... [appellant] would alter the scaffolding and place himself at risk of harm by undertaking such a dangerous manoeuvre."

24 Then, after considering what had been said in Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74 at 85, the trial Judge turned to consider the contract which had been made between the respondent and CIS. She said (at [58] and [59]):

"In this case the terms of the contract show that the task undertaken by the scaffolder was to get workers as close as possible to the workface utilising cantilevers. The only reference in the contract to access to the top of the aircraft related to the ties across the top of the aircraft which would permit workers to attach body harnesses so that they may 'if necessary' stand on top of the aircraft. There is no mention of how the workers would get to attach their harnesses. In my opinion no obligation to provide access to the top of the aircraft from the scaffolding can be inferred from those terms. Those terms support the scaffolder's contention that it did not know how the re-cladding was to be accomplished. The scaffolders were not privy to the employer's system of work.

The contract contains the added limitation inserted by the employer for cost reasons that the scaffolder utilised standard equipment only. I accept Mr McLean's evidence that a cantilevered ramp as recommended by Mr van der Meer could well have been provided but such a ramp was not standard equipment and was not part of the design the scaffolder undertook to provide pursuant to the contract. The terms of the contract mention that some areas may require 'a little extra reach'. I find nothing in the terms which supports the ... [appellant's] contention that the scaffold was defective. I am satisfied the scaffold's design met the purpose for which it was erected as stipulated in the scaffolder's contract."

25 Her Honour then turned her attention to the fact that the respondent had placed a wire along the spine of the aircraft to which lanyards and safety harnesses might be attached. She reiterated, in that respect, that while it was reasonable for the respondent to foresee that the workers would require access to the top of the aircraft, that did not "overcome" its lack of knowledge of the system of work adopted by CIS and, in particular, its lack of knowledge on the question whether the top would be accessed from inside or outside the aircraft. She said that it would not have been reasonable to expect a scaffolder to make inquiries to ascertain what was CIS's system of work and that, if that system of work required workers to access the top of section B from the cantilevered platform outside the aircraft, then this was a matter for CIS to draw to the attention of the respondent. Notwithstanding the appellant's complaint about the difficulty of access to the top of the aircraft, that was never mentioned to the respondent and, in these circumstances, her Honour said, she did not accept that the scaffold was itself defective (at [60]).

26 The trial Judge went on to say (at [61] and [62]):

"For these reasons I am not satisfied that the scaffolders owed a duty of care to the ... [appellant] in relation to this injury. It is not reasonable in this case to require the scaffolder to have in contemplation the risk of injury experienced by the workers (Tame's case per Gleeson CJ at [12]). I am satisfied that the scaffolder was not in such a relationship with the ... [appellant] that he ought to have acted in these circumstances (Ryan's case per Kirby J at [240]). If the ... [appellant's] system of work required him to have access from the cantilevered platform to the top of the aircraft and if there was no safe access provided by the scaffold I do not consider it would be reasonable to expect the scaffolder to either know of that or to visit the site and learn of that. The system of work is the responsibility of the employer. Part of the safe workplace provided by the employer is the scaffolding. If the ... [respondent] had been asked by CIS to provide access to the top of the aircraft or the outside of the aircraft I have no doubt that it would have done so. In this case I am not satisfied that the relationship between the ... [respondent] and the ... [appellant] is one that would in these circumstances give rise to a duty on the part of this ... [respondent] to monitor the system of work and to prevent this ... [appellant] from engaging in such a dangerous procedure. The touchstone of reasonableness as discussed in Tame's case and the test for determining whether the ... [respondent] owes the ... [appellant] a duty of care does not require it.

For these reasons I am satisfied that the ... [respondent] did not owe the ... [appellant] a duty of care in respect to the injuries suffered in this accident and, therefore, the ... [appellant's] claim in negligence fails."

27 There are four grounds of appeal, three of them (grounds 1, 3 and 4) being supported by lengthy particulars. Ground 1 contends that the trial Judge erred in finding that there was no duty of care. Ground 2 contends that she erred by placing excessive weight on the conduct of CIS (the ground does not stipulate what is the conduct there referred to) and on that of the appellant in removing the handrail when these matters were not relevant to the existence of a duty of care and could only have been relevant to questions of breach of duty and causation. Ground 3 contends that the finding that the respondent had adequately performed the terms of the scaffolding contract was "incorrect" and that the finding that CIS approved the scaffold before work commenced was irrelevant. Ground 4 contends that the trial Judge erred by determining that it would not be reasonable for the respondent to make inquiries to ascertain the system of work on the scaffold.

28 The respondent lodged a notice of contention supporting the judgment of the trial Judge on grounds other than those relied upon by her. These grounds are as follows:

"1. The Trial Judge's finding that there was no relevant duty of care in relation to the injury sustained by the Appellant (Plaintiff):

(a) is consistent with and supported by the failure by the Appellant (Plaintiff) to plead a duty of care based upon the design of the scaffolding;

(b) having found that the responsibility for the system of work was that of the employer, such duty of care would not shift to a third party vis the Respondent (Defendant);

(c) is consistent with there being no duty to control another's (the employer's) actions to prevent harm to the Appellant (Plaintiff).

2. The Trial Judge's findings that the Plaintiff was injured when he took himself outside the confines of the scaffold and launched himself from the scaffolding to the top of the aircraft is supported by the evidence notwithstanding that the Trial Judge's finding that the Plaintiff had removed a handrail was not open on the evidence as a direct cause of the accident."

29 Before dealing with the single proposition which arises from the appellant's four grounds of appeal (that the trial Judge erred in finding that there had been no relevant duty of care), we should, first, deal with a challenge made by the appellant (supported by particulars to ground 1 of the grounds of appeal) to a factual finding made by the trial Judge. The finding which is challenged is to the effect that Mr McLean did not know whether the workers engaged on the re-cladding work would gain access to the top of the aircraft from inside or outside the aircraft. Counsel for the appellant contends that Mr McLean's evidence did not establish his lack of knowledge in this respect. He submits that, instead, it established that Mr McLean knew that the top of the aircraft would be reached from outside the fuselage. He also contends that, even if Mr McLean did not know that the top of the aircraft would be reached from outside the fuselage, he should have known that this would be so.

30 That the respondent knew that CIS workers would go beyond the bounds of the scaffolding to the top of the aircraft is said by the appellant's counsel to be obvious from the terms of the scaffolding contract itself. As will be apparent, it provides that the ties across the top of the aircraft will permit the workers to "tie off" with body harnesses so that they might "if necessary, stand on top of the aircraft". It is also said to be obvious from the fact that the respondent installed the wire which ran along the spine of the aircraft at its top. That Mr McLean (and hence the respondent) knew that the top of the aircraft would be reached from outside the fuselage is said to be apparent from his evidence at the trial.

31 We were taken, in this last respect, to a number of passages in the transcript of Mr McLean's evidence. We will set out those which are more pertinent.

32 At page 273 of the transcript, Mr McLean said that the cross-members across the top of the aircraft were for the purpose of structural stability of the scaffolding, but acknowledged that they were also "there for if [sic] workers had to go outside the confines of the scaffold to attach harnesses". At transcript pages 275 - 276, the following exchanges occurred during the course of Mr McLean's examination-in-chief:

"You have been in court and you've heard the plaintiff say that it was difficult to get up onto the upper section of the aeroplane. Did anybody complain about that to you?---No.

At any time?---No.

You've told us that you constructed this scaffolding and you went back from time to time to make any modifications and the like. Were you aware of the precise nature of what the workers of CIS were doing on the site from day-to-day?---I knew that they were replacing the cladding on the aircraft.

Were you aware of how they were doing it at all?---Never.

When you construct scaffolding like this and you finish putting it up, what's the next step that takes place?---You inspect the scaffold to ensure all your safety features are in place, handrails, etcetera. You then would get the company representative of the client to come with you and make sure he is happy with the scaffold. If your client is happy, you fill out a handover certificate. You get him to make sure that it's all okay. You get him to sign it right there on the docket or on what we call a hire agreement and you leave."

33 Mr McLean went on to say that these procedures had been followed in this case and that a handover certificate had been filled out in respect of each of the three sections of scaffolding (although he had not himself been involved in the obtaining of a handover certificate or "tagging", as he described it, in respect of section B).

34 Then, in the course of cross-examination, the following exchanges took place between counsel for the appellant and Mr McLean:

"One of the objectives was to make it possible, and safe, for workers to get to and to work upon the very top of the aircraft. Do you agree?---I agree that they need to get to the whole surface of the aircraft.

And the top?---That's part of the whole surface.

And to be able to get there safely?---To reach that area off the scaffold, yes.

Just simply put, to be able to get there safely?---When you say 'get there safely,' what do you mean?

Get to the top of the plane safely. Exactly what I said?---Climb off the scaffold and get up there or just reach it?

Reach it, safely?---Reach it, yes."

"...

Those harnesses are for working on top of the aircraft?

---Correct.

Not for getting up onto the top of the aircraft, are they?---They shouldn't need them because they are working on the scaffold.

Yes, but to go from the scaffold to the top of the aircraft where they attach themselves with a harness how do they get there?---I don't know how they were doing the job. I had no idea of their method of their project."

"...

The handrails were removable?---The scaffold is a modular scaffold system so everything is removable on it.

To get access you contemplated that they would clip it out, work on the plane, and clip it back?---I never contemplated anything like that because I didn't know how they were going to do it.

If there is a handrail in the way between a worker and the fuselage how is he going to work?---I don't know how they were proposing to do that job. My job was to give them access up next to the aircraft. I don't know how they were going to do it. They may have been - I don't know - removing it from the inside. It's possible.

Are you aware of the practice of handrails which clip out?

---Every scaffold is a modular scaffold. Every handrail can be removed.

Are you aware of the practice mentioned by Mr van der Meer yesterday that everyone does it, they clip it off?---That's not true. It's illegal. It's a $25,000 fine if you alter a scaffold.

So you're not aware that it happens?---I'm sure it happens."

35 Finally, after Mr McLean had acknowledged that there was no way of getting to the top of the aircraft (in section B) from the cantilevered platform of the scaffolding, the following exchange (part of which has earlier been quoted) took place between cross-examining counsel and Mr McLean:

"Did that concern you when you designed the scaffolding?

---Again I say I wasn't party to how they intended to do the centre of the scaffold [sic]. My job was to give them access as close as possible to the fuselage of the aircraft. I didn't know whether they were taking it from the inside or the outside of the scaffold. I had an assumption that maybe they were going to do it from the top but no-one ever told me how they were actually - where they were actually going to stand on the aircraft.

But you knew they were recladding?---Sure.

And you knew they had to get to the top?---I knew they had to remove all the cladding and replace it with new cladding. I wasn't party to how they were going to remove or how they were going to replace either inside or outside of the aircraft.

Just answer the question. You knew they had to get to the top?

---Sure, yes.

And you would agree with me that the cantilever which you had designed, I take it, was not as close as possible to the top?---It was as close as possible to the aircraft.

There was, in fact, no access to the top of the plane, unless you climbed over the sloping aircraft?---The scaffolding was erected with handrails in place so it wasn't possible for them to get outside there unless they removed it [sic]. I don't know what they intended to do up there. They never ever said to me, 'We have a problem here. How are we going to solve it?'"

(Transcript pages 299 - 300)

36 In our opinion, the trial Judge made no error in finding that Mr McLean (and hence the respondent) did not know whether the top of the aircraft would be reached from inside or outside the fuselage. What may be gleaned from all of the evidence to which we have referred is that Mr McLean, and therefore the respondent, envisaged that those engaged in the re-cladding work had to reach the top of the aircraft and, as is apparent from the terms of the scaffolding contract itself, that they might stand on top of the aircraft. However, there is nothing in the evidence which established that Mr McLean, or the respondent, knew how the top of the aircraft would be reached. As we understand Mr McLean's evidence, the effect of it was that he did not know how CIS would do the re-cladding work, that he saw his job as being "to give them access as close as possible to the fuselage of the aircraft", that, for all he knew, the cladding might be removed or replaced from inside the aircraft, that no-one ever told him where the workers would stand on the aircraft, that the scaffolding erected by the respondent was accepted by CIS and that no-one ever told him that there was a problem with the scaffolding as erected. We have earlier mentioned that the trial judge accepted Mr McLean's evidence. She described him as "a witness of truth".

37 That brings us back to the appellant's proposition that the trial Judge erred in failing to find that the respondent owed to the appellant a duty of care in respect of the incident which led to his injuries.

38 As the trial Judge recognised, the determination of the nature and extent of any tortious duty owed by the respondent in this case involves some consideration of the contractual obligation undertaken by it. Of course, a contractual obligation between two parties does not, of itself, preclude the existence of a concurrent tortious duty in the respect or respects covered by the contract: Bryan v Maloney (1995) 182 CLR 609 at 619 - 620, per Mason CJ and Brennan and Deane JJ. Nor, as the majority in Donoghue v Stevenson made clear, does the existence of a contractual undertaking to one person preclude the existence of a corresponding tortious obligation to another: see also Voli v Inglewood Shire Council, above, at 84; Hawkins v Clayton (1988) 164 CLR 539 at 574 - 575; Bryan v Maloney, above, at 620 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 78 ALJR 628. However, the nature and extent of a tortious duty may be modified by the terms of a contract.

39 In Voli, at 85, Windeyer J (with whom Dixon CJ and Owen J were in agreement) said, in a case involving the collapse of a stage in a Shire Hall the plans and specifications for which had been designed by an architect:

"First, neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it."

40 Similarly, in Bryan, at 620 - 621, Mason CJ and Deane and Gaudron JJ said:

"The fact that the law recognizes the existence of concurrent duties in contract and tort does not mean that the existence of a contractual relationship is irrelevant to either the existence of a relationship of proximity or the content of a duty of care under the ordinary law of negligence. In some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the recognition of, a relationship of proximity either between the parties to the contract or between one or both of those parties and a third person. In other circumstances, the contents of a contract may militate against recognition of a relationship of proximity under the ordinary law of negligence or confine, or even exclude the existence of, a relevant duty of care."

41 In this case, as we have mentioned, the trial Judge found that the task undertaken by the respondent, as reflected in its contract with CIS, was that of getting workers "as close as possible to the workface" (at [58] of her reasons), but subject to the limitation (which she found to have been inserted in the contract by CIS for cost reasons) that only standard equipment was to be used. As has also been mentioned earlier, she also found that the design of the scaffolding met its purpose and that, while a ramp of the kind recommended by Mr van der Meer could have been provided, this was not standard equipment and, hence, not part of the design which the respondent undertook to provide. These findings, together with the findings that the respondent did not know what system of work would be adopted by CIS (in particular, whether the top of the aircraft would be reached from inside or outside the fuselage) and that CIS accepted the scaffolding without ever mentioning any shortcomings in its design or passing on any complaint in respect thereof, formed the backdrop against which her Honour considered the question whether the respondent owed to the appellant any duty of care in respect of the accident which befell him.

42 In our respectful opinion, she was right in adopting the proposition that there has, in the law of negligence, been a return to "a touchstone of reasonableness". So much is apparent from the judgments of the High Court in Tame.

43 There, Gleeson CJ said (at [8]) that "reasonableness" is the essential concept in the process of definition of the ambit of a person's proper concern for others in the context of a decision about whether a defendant's conduct amounts to actionable negligence. In considering what is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages, his Honour returned to Donoghue v Stevenson, saying (at [9] - [11]):

"Lord Atkin, in Donoghue v Stevenson ([1932] AC 562 at 580), spoke of the effect of acts or omissions on 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question'. It is the reasonableness of a requirement that a defendant should have certain persons, and certain interests, in contemplation, that determines the existence of a duty of care.

In the same case, Lord Macmillan said (... at 618 - 619):

'The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. What, then, are the circumstances which give rise to this duty to take care? In the daily contacts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other.'

Donoghue v Stevenson was what would now be called a product liability case. By majority, the House of Lords held that it was reasonable to require the manufacturer of a product, intended for human consumption, without the possibility of any intermediate quality control, to have in contemplation the safety of consumers of the product. To a modern lawyer that does not sound revolutionary, but it was the principle upon which the decision rested that represented a major legal development."

44 His Honour went on to say that a necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed (at [12]). As he pointed out (ibid), foreseeability may be relevant not only to questions of the existence and scope of a duty of care, but also, of course, to breach of duty or remoteness of damage. However, when concerned with the first of those topics, his Honour said (at [12]), it "is important that 'reasonable foreseeability' should be understood and applied with due regard to the consideration that ... it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated". After referring to what had been said by Deane J in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 579, Gleeson CJ went on to say (at [13]):

"What a person is capable of foreseeing, what it is reasonable to require a person to have in contemplation, and what kinds of relationship attract a legal obligation to act with reasonable care for the interests of another, are related aspects of the one problem. The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility."

45 His Honour also pointed out, at [14], that, if predictability of harm was the only basis upon which to impose a requirement to have in contemplation the risk of harm to others, this might be extremely onerous.

46 McHugh J (with whom Callinan J was, in this respect, in agreement: at [331]) considered (at [101]) that the time has come when the Court "should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations". He said, at [103], that, absent a pre-existing relationship or circumstances that automatically give rise to a duty, reasonable foreseeability of harm to others is a necessary condition of duty. He went on to say (ibid):

"In dealing with the duty issue, however, it is often necessary to consider the issue of reasonable foresight as a separate issue. In the duty situation, the issue is whether the law imposes or ought to impose an obligation on the defendant to avoid conduct that exposes persons in the position of the plaintiff to unreasonable risks of harm."

47 Then, at [105], his Honour said that, while what is foreseeable is a question of fact, reasonableness was "a value" and that, in some situations, policy issues might be relevant to the issue of reasonable foresight "because reasonableness requires a value judgment".

"Because reasonable foreseeability is a compound conception of fact and value, policy considerations affecting the defendant or persons in similar situations arguably enter into the determination of whether the defendant ought reasonably to have foreseen that his or her acts or omissions were 'likely to injure your neighbour'. It is unnecessary in this case to determine whether that is so. But whether or not such policy matters are a factor in the foresight issue, the concept of 'likelihood' in Lord Atkin's formulation does not require the defendant to take into account remote possibilities of harm. The defendant is no more bound to take them into account than he or she is entitled to take into account only those risks whose chance of occurring is more probable than not. Rather as Walsh J said in Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd (1963) 63 SR (NSW) 948 at 960, the defendant must consider 'whether [a] risk exists, and if any such risk exists at all, whether it may reasonably be disregarded'. To go further and divide risks that must be avoided into those that are far-fetched or fanciful and those that are not is to attempt to give the subject of negligence a degree of definition that it cannot carry."

49 Gummow and Kirby JJ suggested (at [185]) that the promotion of reasonable conduct that averts foreseeable harm was a fundamental objective of the law of negligence, adding that:

"In part, this explains why a significant measure of control in the legal or practical sense over the relevant risk is important in identifying cases where a duty of care arises. Further, it is the assessment, necessarily fluid, respecting reasonableness of conduct that reconciles the plaintiff's interest in protection from harm with the defendant's interest in freedom of action. So it is that the plaintiff's integrity of person is denied protection if the defendant has acted reasonably."

50 Hayne J, at [249] and [250], said that, while various attempts have been made to identify a satisfactory means of defining or describing the circumstances in which a duty of care should be found to exist, none has proved to be an all-embracing explanation of the way in which the law has developed and is developing. What is clear, his Honour said (at [250]), is that foresight of harm does not suffice to establish the duty of care (see also Sullivan v Moody (2001) 207 CLR 562 at 576 [42], per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) or, to put it differently, that the common law does not provide a remedy for all who suffer negligently inflicted harm, even if it could reasonably have been foreseen that carelessness might cause harm of the kind suffered. He also said (at [249]) that even the double specification mentioned by Brennan J in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 487 (where his Honour said that "a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member") may not suffice in some cases.

51 In this case the appellant has pleaded a duty, owed to a class of persons including himself, "to erect and install scaffolding which was safe and would not expose ... [him] to the risk and hazard of damage". One of the pleaded breaches of that duty is the respondent's failure to provide the appellant "with a safe means of access to the aircraft from the scaffolding".

52 The pleaded duty is too broad to be meaningful (cf Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 78 ALJR 933 at [3] and [81]). However, what the appellant's contention came down to, as it was articulated by his counsel in the course of argument, was that the respondent owed him a duty to provide a safe means of effecting the work to be performed by him.

53 The respondent did not, and did not intend to, provide a means of access from the scaffolding to the top of the aircraft. While, as we have said, Mr McLean knew that workers had to get to the top of the aircraft, the trial Judge accepted that he did not know what method of work would be adopted and never envisaged that workers would climb off the scaffolding onto the aircraft itself. We have also mentioned that the trial Judge found that a contractual obligation to provide access to the top of the aircraft from the scaffolding could not be inferred from the terms of the contract. In our respectful opinion, those factual findings were open to her Honour and the finding in respect of the construction of the contract was rightly made. However, and after some difficulty, we have formed the opinion that her Honour erred in concluding, essentially as a consequence of these findings taken together with the fact that the employer was responsible for providing a safe system of work, that the relationship between the respondent and the appellant was not such as to give rise to any relevant duty of care.

54 What seems to us to be critical is that the respondent assumed the responsibility, under its contract with CIS, of endeavouring "to get workers as close as possible to the work face" in order to enable them to do the re-cladding work and of ensuring that safety would be "paramount" in the type of system supplied. Moreover, it did so in circumstances in which, as we have said, it envisaged that workers had to reach the top of the aircraft and knew that this could not safely be done from the scaffolding. No other means of safe access to the top of the aircraft had been mentioned or offered to be provided by CIS. The respondent did not make relevant inquiries. Having regard to the responsibility it had assumed, it should have. In our view, the respondent ought to have known that there was no safe access to the top of the aircraft. In those circumstances, there was, in our opinion, a real risk, which was reasonably foreseeable by the respondent, that CIS' employees would injure themselves in attempting to access the top of the aircraft, including by misusing the scaffolding as a launch point for a dangerous leap across a substantial gap. In those circumstances, it seems to us, it was reasonable to require the respondent to have that risk in contemplation and to impose upon it an obligation to take steps to avoid it. Put differently, it seems to us that the respondent owed to those engaged upon the re-cladding work, including the appellant, a duty of care to ensure that a safe means of effecting that work, including work on the top of the aircraft, was provided.

55 We would consequently uphold grounds 1 and 4 of the grounds of appeal.

56 We should add some comments in respect of the notice of contention.

57 As to ground 1(a) of the notice, while it may be true that the appellant did not plead "a duty of care based upon the design of the scaffolding", the duty which we have found to exist seems to us sufficiently to fall within the rather broader duty pleaded by the appellant (and we have mentioned that the appellant pleads that the duty was breached by the respondent's failure to provide the appellant with a safe means of access to the aircraft from the scaffolding) and to accord with that which was contended for in the course of oral submissions.

58 As to grounds 1(b) and (c) of the notice, it is true that CIS had a responsibility of providing a safe system of work and that the respondent had no "duty to control ... [CIS'] actions". However, the fact that CIS had the primary duty of providing a safe system of work, and the fact that it was not under the control of the respondent in that regard, does not seem to us to alter the circumstance that, given the nature of the responsibilities which the respondent assumed, the respondent owed the duty to which we have referred.

59 As to ground 2 of the notice, the fact that the appellant was "injured when he took himself outside the confines of the scaffold and launched himself from the scaffolding to the top of the aircraft" is, as we have said, a risk of the very kind which, in our opinion, should have been contemplated by the respondent.

60 We would consequently allow the appeal and dismiss the notice of contention.

Miller v Paua Nominees Pty Ltd [2004] WASCA 220

At a glance

Court

Decision date

Before

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Judgment (111 paragraphs)

Miller v Paua Nominees Pty Ltd [2004] WASCA 220 (1 October 2004)

Parties

Cases Cited (19)