Millington v. Wilkie t/as Max Wilkie Plumbing Services & Anors. [2005] NSWCA 45

Millington v. Wilkie t/as Max Wilkie Plumbing Services & Anors. [2005] NSWCA 45 - NSWCA 2005 case summary — Zoe

[22]

CIRCUMSTANCES 4 The appellant was born in 1953, and had worked as a plumber for most of his life. In September 1997, he was performing casual work for Mr. Wilkie, who at the time had a general retainer to perform plumbing and maintenance work for the Authority, which was then his sole client. 5 On 23 September 1997, the appellant was injured while performing plumbing work in the course of his employment at a site under the Pyrmont Bridge, occupied by the Authority. 6 The work in question was the re-location of a down-pipe under the bridge, which extended from ground level to a height of 7 metres, being 6 metres to the bottom of a gantry and a further one metre beyond that. When the appellant and Mr. Wilkie arrived at the site that morning, they became aware that the ladder supplied by the Authority was too short, having a maximum working height of about 5 to 5.4 metres. 7 According to evidence given by Mr. Wilkie and accepted by the primary judge, Mr. Wilkie left the site to get a longer ladder, and before doing so said to the appellant: "Sit down and take it easy and don't get up the ladder". The appellant put up some barricades and removed part of the lower section of the pipe. Mr. Wilkie returned, and then left a second time, and before leaving again said: "Take it easy, don't get up the ladder". The primary judge's finding that Mr. Wilkie had said these things was originally challenged in the appeal, but that challenge was withdrawn at the hearing of the appeal. 8 The accident occurred when the appellant, being alone at the site, placed the ladder against a column of the bridge, and ascended about 2 metres. The ladder then slipped out and the appellant fell, causing severe injuries. The ladder had not been secured either at the top or the bottom. The appellant in cross-examination conceded that he knew a worker should not ascended a ladder unless it was secured by being tied or by being held by another person. 9 The appellant subsequently told a Workcover inspector who investigated the accident that it was his fault. 10 The appellant sued Mr. Wilkie and the Authority, alleging breaches of a common law duty of care and also breaches of statutory duties under regulations 73(2), 80 and 141 of the regulations under the Construction Safety Act 1912. The defendants cross-claimed against each other for contribution or indemnity. 11 The matter came before an arbitrator in late 2001, and on 13 November 2001, he determined that both Mr. Wilkie and the Authority were liable to the appellant, each for $345,904.80. In the arbitration proceedings, Mr. Wilkie was not called to give evidence. Mr. Wilkie sought a re-hearing, and the matter was subsequently transferred to the Supreme Court where it was heard by the primary judge.

[30]

GROUNDS OF APPEAL 19 The appellant relies on the following grounds of appeal: 1. His Honour erred in finding a breach of Regulation 80(6) of the Construction Safety Regulations but failing to enter a verdict for the appellant accordingly. 2. His Honour erred in finding a breach of Regulation 73 of the Construction Safety Regulations but failing to enter a verdict for the appellant accordingly. 3. Alternatively to ground 2 above, His Honour failed to determine whether there was a breach of Regulation 73 of the Construction Safety Regulations. … 6. His Honour failed to state the correct test as to the first respondent's duty of care at common law. 7. His Honour misconceived the correct approach as to breach of common law duty of the first respondent. 8. His Honour failed to make findings which would have enabled a verdict for the second respondent in relation to common law duty to be properly based. 9. His Honour failed to make findings to enable a proper basis for a verdict in favour of the second respondent in relation to breach of statutory duty. 10. His Honour's judgment failed to make findings on the issues of separate statutory duties of the first and/or second respondent, and whether either or both respondents were in breach of those duties. 11. His Honour's costs orders were in error in circumstances where the first respondent called no evidence at the arbitration of the matter and called its lay evidence only at the re-hearing in the Supreme Court. 12. His Honour's costs orders were in error as regards the costs of the proceedings in the District Court thrown away by the adjournment granted to the second respondent and ordered to be paid on 18th June 2002. 20 Mr. Wilkie relies on the following Notice of Contention: Pursuant to Supreme Court Rules Pt.51 r.21(1) the first respondent contends that the decision of the Court below should be affirmed but submits that the trial judge erred … (a) in finding a breach of regulation 80(6) of the Construction Safety Act Regulations, and (b) in finding a (possible) breach of regulation 73 of the Construction Safety Act Regulations. 21 I will consider in turn the following issues: the common law claim against Mr. Wilkie (grounds 6 and 7); the statutory duty claim against Mr. Wilkie (grounds 1-3 and Notice of Contention); the claim against the Authority (grounds 8-10); and costs (grounds 11 and 12).

[32]

STATUTORY DUTY CLAIM AGAINST MR. WILKIE Submissions 25 Mr. Kelly SC for the appellant submitted that the liability for breach of statutory duty is strict. Mr. Wilkie was plainly carrying out building work, and having regard to regulation 6, he was plainly in breach of at least regulation 80(6). The appellant's role in causing the accident could have led to a reduction in the damages recovered by reason of the apportionment prescribed by s.151N(3) of the Workers' Compensation Act 1987, as in force between 1 July 1987 and 25 November 1999; but this did not exclude the liability of the employer. 26 Mr. Kelly submitted that the line of reasoning in Ginty v. Belmont Building Supplies Limited [1959] 1 All ER 414, Ross v. Associated Portland Cement Limited [1964] 1 WLR 768, and Boyle v. Kodak Limited [1969] 1 WLR 661, which would deny recovery to an employee whose actions alone put an employer in breach of statutory duty, has been rejected by the High Court in Andar Transport Pty. Limited v. Brambles Limited [2004] HCA 28 at [36]-[52], especially at [39]. 27 In any event, he submitted, the duties of an employer and employee can never be co-extensive or co-terminous: Nicol v. Allyacht Spars Pty. Limited (1987) 163 CLR 611 at 625 per Dawson J, Andar at [39] and [44], Fuller v. New South Wales Department of School Education and Training [2004] NSWCA 242 at [21]. He also referred to Brancato v. Australian Telecommunications Commission (1986) 7 NSWLR 30 at 33-34. 28 Mr. Neil SC for Mr. Wilkie submitted that Andar did not reject the result of Ginty, but only its reasoning to the extent that it was based on the identification of a sole or effective cause, a notion rejected in March v. E. & M.H. Stramare Pty. Limited (1991) 171 CLR 506. Andar did not reject the reasoning to the same result of Mason J in H.C. Buckman & Son Pty. Limited v. Flannagan (1974) 133 CLR 422 at 443. 29 As a fall-back position, Mr. Neil submitted that, by reason of the appellant's responsibility for his own injury, there would be a reduction of the verdict by 100%, or almost 100%, pursuant to s.151N of the Workers' Compensation Act.

[33]

Decision 30 One matter not explored in submissions was whether a breach of regulation 80(6) was excluded, in that that regulation could be regarded as subject to the terms of regulation 80(3), and thus as only applying where access by ladders was required "to all places where any person has to work"; and the appellant did not have to work above ground level at the time in question, and indeed had been directed not to do so. It appears that this was not a point taken below, and it was not raised in the Notice of Contention. Accordingly, in my opinion it is appropriate to proceed on the assumption that regulation 80(6) was breached as found by the primary judge, either because the words "where any person has to work" should be given a broad construction, or because regulation 80(6) should not be limited by the terms of regulation 80(3), or because of some other consideration. 31 In the case of Ginty, the plaintiff/employee was injured as a result of failing to use boards to support his weight when working on an asbestos roof. His employer had supplied him with the boards, and he had been instructed to use them. The employee's failure to follow these instructions amounted to a breach of the relevant building regulations by both the plaintiff and his employer. Pearson J held that the plaintiff was unable to recover damages from his employer for breach of statutory duty. The following passage from the judgment of Pearson J was quoted by the majority judgment in Andar, as follows: [T]he important and fundamental question in a case like this is not whether there was a delegation, but simply the usual question: Whose fault was it? ... If the answer to that question is that in substance and reality the accident was solely due to the fault of the plaintiff , so that he was the sole author of his own wrong, he is disentitled to recover. But that has to be applied to the particular case and it is not necessarily conclusive for the employer to show that it was a wrongful act of the employee plaintiff which caused the accident. ... One has to inquire whether the fault of the employer under the statutory regulations consists of, and is co-extensive with, the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability." (emphasis added) 32 A similar approach was taken in Ross, although in that case the House of Lords considered that the employer bore some responsibility beyond that of the employee for the employee's unsafe use of a ladder. At 777, Lord Reid said this: If the question is put in that way one must remember that fault is not necessarily equivalent in this context to blameworthiness. The question really is whose conduct caused the accident, because it is now well established that a breach of statutory duty does not give rise to civil liability unless there is proved a causal connection between the breach and the plaintiff's injury …

[35]

It may certainly be accepted that, in the absence of an express provision conferring a cause of action upon employees for breach of their employers' obligation, courts have recognised the plaintiff's right by implication and as an exercise in statutory interpretation. However, that process does not in turn permit the development of a limitation which cannot legitimately be inferred from the nature, scope and terms of the legislation in question. These implications are, as Kitto J put it in Sovar v Henry Lane Pty Ltd , not to be "conjured up by judges to give effect to their own ideas of policy". There must be read with these qualifications in mind statements to the effect of those in Nicol that "[t]he courts, having created the liability, are able to confine it" and that "the approach [in Ginty ] to the question of an employer's escape from liability for breach of statutory duty may be applied with equal validity to the question of an employer's escape from liability for breach of a common law duty". 34 In Buckman, one of the issues was whether a head contractor had delegated work attracting performance of a statutory duty to a subcontractor, in circumstances where that subcontractor breached the duty (in the absence of fault of the head contractor) and caused injury to himself. Three of the five judgments held that the head contractor was not relevantly carrying out building work and was therefore not subject to the relevant duty; but Mason J held to the effect that, although the head contractor was subject to the duty and was put in breach of it, the subcontractor was excluded from the class of persons for whose benefit the statutory duty had been imposed and so had no right of action. At 443, he said this: To avoid the absurdity to which Lord Reid referred and to do justice between the parties it is necessary to imply a limitation in the class of persons for whose benefit the statutory duties are imposed and who may recover damages for breach of the statutory duty so as to exclude the plaintiff who sues in the circumstances mentioned. This implication is made as a matter of construction of the statute and the regulations and in the sense already explained. 35 Jacobs J in that case seems to have held that, in that event, there would be no breach of the statutory duty: although it would have been otherwise if other persons had been exposed to risk. He also said that the same would be true if the delegation had been to an employee rather than to a subcontractor. 36 In saying in Andar that the reasoning of Dawson J in Nicol should be preferred, their Honours appear to have been referring to his Honour's reasoning at 624: Rather it seems to me, the limitation which imposed upon the liability of the employer in this regard is something which, if not actually a matter of statutory construction, amounts to a restriction of the civil liability for breach of statutory duty which the courts have engrafted upon the statutory obligation. The courts, having created the liability, are able to confine it.

[36]

This appears to be acceptance of the approach taken by Mason J in Buckman . 37 As a judge of an intermediate court of appeal, I feel in some difficulty in the light of the above discussion. The High Court has decisively disapproved of the reasoning in Ginty, Ross and Boyle; but has not in terms disapproved of the result of that reasoning. It has cautioned against implying a limit to the availability to a cause of action for breach of statutory duty, but has not in terms disapproved of the limit implied by Mason J in Buckman. The limit referred to by Mason J was in terms a limit applying only to subcontractors; but the effect of the reasoning in Ginty, Ross and Boyle extended to employees. Furthermore Jacobs J in Buckman applied a somewhat similar approach to employees as well as subcontractors. 38 In my opinion, the results of the reasoning in Ginty, Ross and Boyle retain persuasive weight, as does the reasoning of Mason J in Buckman, as accepted through the endorsement of the reasoning of Dawson J in Nicol. Further, in my opinion the reasoning of Mason J can apply to employees as well as subcontractors, as suggested by the judgment of Jacobs J in Buckman. 39 That is, in circumstances where an employer is carrying on building work and, without any fault of the employer, an employee uses a ladder in breach of regulation 80(6), although the employer will be in breach of the statutory duty, this does not necessarily mean that the employee will thereby have a cause of action for damages against the employer. The existence of such a cause of action depends upon an implication which depends in turn on identification of the class of person for whose benefit the statutory duty was imposed. The approach of Mason J in Buckman suggests there may be excluded, from that class, employees whose actions have put the employer in breach, where nothing done or omitted by the employer itself has contributed to the breach. 40 In my opinion, it is appropriate for this Court to take that approach, unless or until it is ruled out by the High Court. 41 In the present case, the only fault of the employer that can be suggested is that it should have appreciated that the appellant might disobey the instructions given and use the ladder unsecured when left alone on the site. This would not be a casual act of negligence or a mistake made in the heat of the moment, from which employers should protect employees, but, on the findings of the primary judge, a deliberate departure from an instruction twice given by the employer. I do not think there is in these circumstances any fault of the employer that could prevent the application of the principle to which I have referred, excluding the appellant from the class of persons for whose benefit the statutory provision was enacted. 42 Even if there were any breach of any other regulation, such as regulation 73, the same considerations would apply. Accordingly, in my opinion, this aspect of the appeal fails. 43 I would add that this principle applies only where fault of the employer is excluded altogether; and that this will never be the case where the employer has breached a duty of care to provide a safe system of work. If an employer has delegated the provision of a safe system to an employee, and that employee fails to achieve a safe system and is thereby injured, the employer will be liable (subject to questions of contributory negligence) because the employer's duty to provide a safe system cannot be delegated and so the employer's independent obligation remains: see Nicol at 625, Andar at [44]. 44 Also, the principle does not apply where the employer is a company and the breach of statutory duty occurs because of the act or omission of the company by its managing director, who also happens to be the employee who is injured. In that case, the breach is by the company through its officer, not merely by reason of an act of an employee; and it cannot be said that the employer company is without fault. So although I would take Andar to have approved the dissenting judgment of Mason JA in Shedlezki v. Bronte Bakery Pty. Limited (1970) 72 SR(NSW) 378, I do not see that as excluding the principle I have applied.

[39]

CONCLUSION 51 In my opinion, the appeal should be dismissed with costs. 52 IPP JA: I agree with Hodgson JA. 53 For my part I found the proposition advanced on the appellant's behalf, in regard to damages for breach of statutory duty, impossible to accept. The appellant's argument was that an employer is liable to an employee for damages in circumstances where: (a) The employee was injured by performing an act which the employer expressly instructed him not to do. (b) By performing that act contrary to his employer's express instructions, the employee caused the employer to breach its statutory duty. (c) Apart from the employee's own conduct in disobeying the instructions, nothing done or omitted to be done by the employer, or any person for whom it is vicariously liable, brought about the employer's breach of statutory duty. (d) By performing the act in question, the employee, himself, breached his statutory duty. (e) As the employee was alone at the ladder at the time, there was nothing the employer could have done to stop him from disobeying his instructions. 54 In Brancato v Australian Telecommunications Commission (1986) 7 NSWLR 30 Mahoney JA (at 36) said that to impose liability for damages in circumstances such as the present would do nothing to help in the achievement of the purpose of the statute that is breached and would invite those to whom the statute was directed "to see the result as ridiculous or, as [Lord Reid in Boyle v Kodak Ltd [1969] 1 WLR 661 at 665] said, 'absurd'". I would add the epithet, "grossly unfair". 55 In CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408): Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the Court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

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