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

Andar Transport Pty. Ltd. v. Brambles Ltd. [2004] HCA 28 Boyle v. Kodak Ltd. [1969] 1 WLR 661 Brancato v. Australian Telecommunications Commission (1986) 7 NSWLR 30 CIC Insurance Ltd. v. Bankstown Football Club Ltd. (1997) 187 CLR 384 Fuller v. New South Wales Department of School Education & Training [2004] NSWCA 242 Ginty v. Belmont Building Supplies Ltd. [1959] 1 All ER 414 CASES CITED: H.C. Buckman & Son Pty. Ltd. v. Flannagan (1974) 133 CLR 422 March v. E. & M.H. Stramare Pty. Ltd. (1991) 171 CLR 506 McDougall v. Carlevski (1996) 40 NSWLR 930 Network Ten Pty. Ltd. v. TCN Channel Nine Pty. Ltd. (2004) 205 ALR 1 Nicol v. Allyacht Spars Pty. Ltd. (1987) 163 CLR 611 Ross v. Associated Portland Cement Ltd. [1064] 1 WLR 768 Shedlezki v. Bronte Bakery Pty. Ltd (1970) 72 SR(NSW) 378

Peter Raymond Millington - appellant PARTIES: Max Wilkie t/as Max Wilkie Plumbing Services - 1st respondent Darling Harbour Authority - 2nd respondent

Mr. H. Kelly SC with Mr. T. McKenzie for appellant COUNSEL: Mr. M. Neil QC with Mr. L. Ellison for 1st respondent Mr. T. Hewitt SC for 2nd respondent

J.P. O'Neill Solicitors, Bankstown for appellant SOLICITORS: Rankin & Nathan, Sydney for 1st respondent Curwood & Partners, Sydney for 2nd respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40396/04 SC 20408/02

GILES JA HODGSON JA IPP JA

Tuesday 8 March 2005 MILLINGTON V. WILKIE t/as MAX WILKIE PLUMBING SERVICES & ANOR. HEADNOTE

FACTS In September 1997, Mr Wilkie (W) employed the appellant (M) as an experienced plumber for plumbing and maintenance work at a site under the Pyrmont Bridge, occupied by the Darling Harbour Authority (the Authority). The job involved working at a height of 7 metres to re-locate a pipe. On arrival at the site on the morning of 23 September 1997, M and W realised the ladder supplied by the Authority for this work was too short. As W left the site to get a longer ladder, (it was found by the primary judge) he instructed M not to get up the ladder. During his absence M erected some barricades and removed part of the lower section of the pipe.

W returned without a longer ladder, and before leaving a second time, again instructed M not to get up the ladder. Following W's departure the second time, M placed the ladder, unsecured at both top and bottom, against a column of the bridge and ascended about 2 metres. The ladder then slipped out and the appellant fell, sustaining severe injuries. The appellant conceded that he knew a ladder should not be ascended unless it was secured by being tied or by being held by another person; he also admitted to an investigating Workcover inspector that the accident was his fault.

M sued W and the Authority for breaches of common law duty of care and breaches of statutory duties under regulations 73(2), 80 and 141 of the regulations under the Construction Safety Act 1912. W and the Authority cross-claimed against each other for contribution or indemnity.

An arbitrator found both W and the authority liable to the appellant, but on re-hearing in the Supreme Court the primary judge found there was no breach of duty of care by either W or the Authority. While it was found regulations 80(6) and possibly 76 were breached, the primary judge found W not liable because M used the ladder in disobedience of instructions and cognisant of the risk. W was ordered to pay M's costs for the arbitration proceedings, and M was ordered to pay W's costs otherwise as well as the Authority's costs. On appeal the following issues were considered: (i) the common law claim against W; (ii) the statutory duty claim against W; (iii) the claim against the Authority; and (iv) costs.

HELD 1. W's instruction to M not to use the ladder were sufficient to fulfil his common law duty to provide a safe system of work. The primary judge's findings exclude the causation of damage through failure to instruct, because M knew not to climb an unsecured ladder. 2. Where an employer is put in breach of statutory duty by reason of conduct of an employee, and nothing done or omitted by the employer contributes to the breach, the employee is excluded from the class of persons for whose benefit the statutory duty was imposed and so has no cause of action for breach of duty: H.C. Buckman & Son Pty Limited v Flannagan (1974) 133 CLR 422, Nicol v. Allyacht Spars Pty. Ltd. (1987) 163 CLR 611 at 624, Andar Transport Pty. Ltd. v. Brambles Ltd. [2004] HCA 28 at [39] to [42]. In this case, the absence of any fault of W precludes M from succeeding on the basis of breach of any of the regulations under the Construction Safety Act 1912. 3. There were no submissions that were persuasive of a breach by the Authority of either its common law duty of care or statutory duty. 4. There is no basis for W to pay any of the Authority's costs, which the appellant has been ordered to pay.

ORDERS 1. Appeal dismissed with costs. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40396/04 SC 20408/02

GILES JA HODGSON JA IPP JA

Tuesday 8 March 2005 MILLINGTON V. WILKIE t/as MAX WILKIE PLUMBING SERVICES & ANOR. Judgment 1 GILES JA: I agree with Hodgson JA. 2 HODGSON JA: On 29 October 2003, Cripps AJ gave his decision in proceedings in which the appellant Peter Millington had sued his employer Max Wilkie and the occupier of certain land the Darling Harbour Authority (the Authority) for damages in respect of an injury the appellant had suffered in the course of his employment. The primary judge gave a verdict for Mr. Wilkie and the Authority; and on 25 November 2003 he made orders for costs generally unfavourable to the appellant. 3 The appellant appeals from those orders.

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.

RELEVANT STATUTORY PROVISIONS 12 The regulations relied on by the appellant were as follows: Regulation 73 - 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. For this purpose without limiting the generality of the foregoing, he shall subject to regulation 74: …. (2) provide and maintain safe means of access to every place at which any person has to work at any time.

Regulation 80 - Provision and Use of Ladders and Step Ladders 80(2) Every ladder and every step ladder used for any purpose covered by these regulations shall be designed and constructed as prescribed by these regulations.

80(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.

80(4) ladders shall be placed so that: (a) Each side rail or stile has a level and firm footing and the top rest for each side rail or stile is level, reasonably rigid and of adequate strength to support the maximum required load...

80(6) Every ladder shall so far as practicable be securely fixed so that it cannot move either from its top or bottom points of rest. If it cannot be so securely fixed it shall where practicable be securely fixed at the base or if such fixing at the base is impracticable a person shall be stationed at the base of the ladder to prevent slipping.

Regulation 141 - Plant & Gear Generally 141(1) All plant and gear and every part thereof shall be of sound material, good construction, adequate strength, free from patent defects and be suitable and safe for the purpose for which it is intended... 13 Two other provisions are relevant. Clause 6(1) of the regulations provides: 6(1) Where the obligation to observe any of the provisions of these Regulations is not by these Regulations specifically imposed on any person it shall be the obligation of every person who directly or by his servants and agents - (i) carries out any building work … 14 There is a definition of "building work" in s.3 of the Construction Safety Act 1912, as follows: Work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, clearing, 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 …

PRIMARY JUDGE'S DECISION 15 The primary judge found that the appellant's common law claim against Mr. Wilkie failed because there was no duty of care to tell the appellant what he already knew, namely that he should not ascend a ladder unless it was secured; and that there was no breach of any duty, because the appellant had been directed not to climb the ladder. 16 As for the statutory counts, the primary judge found there was a breach of regulation 80(6), because the ladder was not secured, and there may also have been a breach of regulation 73; but he found that Mr. Wilkie was not liable, because the appellant elected to use the ladder as he did in disobedience of instructions and cognisant of the risk. 17 The primary judge also found in favour of the Authority, because the ladder provided was suitable and safe for the purpose for which it was to be used; and the appellant's injury occurred because of his misuse of safe equipment. 18 On costs, the appellant submitted that Mr. Wilkie should pay his costs, because Mr. Wilkie did not give evidence before the arbitrator, relying on McDougall v. Carleveski (1996) 40 NSWLR 930; and submitted that Mr. Wilkie should also pay him the amount of costs that he was ordered to pay the Authority. The primary judge did not consider that Mr. Wilkie was not called at the arbitration because of a tactical decision; and he ordered that Mr. Wilkie pay the appellant's costs of the proceedings before the arbitrator, and that otherwise the appellant should pay Mr. Wilkie's costs; and he ordered that the appellant pay the Authority's costs.

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).

COMMON LAW CLAIM AGAINST MR. WILKIE 22 On this matter, the appellant relied on written submissions, to the following effect. The primary judge failed to direct himself properly as to the nature of the common law duty of Mr. Wilkie: it was simply wrong to find "there was no duty of care to tell the plaintiff what he already knew". What was required was a finding as to whether the employer had provided a safe system of work. The employer knew that the appellant had never done ladder work for him, and had never given the appellant instructions about how to get up and down ladders. There was no evidence that Mr. Wilkie knew that the appellant was aware of how he could complete the ladder task; and Mr. Wilkie could not assume that the appellant had sufficient knowledge about correctly performing this work when he had made no enquiries of the appellant and given him no instructions. 23 The written submissions also contended that the finding that the appellant was directed not to climb the ladder did not exclude a breach of the common law duty. The appellant had ignored a direction not to do any work, so Mr. Wilkie should have anticipated that the appellant might attempt to climb the ladder notwithstanding the direction. 24 In my opinion, the findings of the primary judge are sufficient to meet the appellant's claim based on a breach of a common law duty to provide a safe system of work. Because, on the primary judge's finding, Mr. Wilkie had instructed the appellant not to use the ladder, there was no occasion to instruct the appellant as to the dangers of using an unsecured ladder or to ensure that the ladder was secured. Furthermore, the primary judge's findings exclude the causation of damage through failure to instruct, because the appellant knew that he should not climb an unsecured ladder.

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.

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 …

That approach appears to me to avoid the difficulty which has sometimes been felt in explaining why an employer, put in breach of a statute by the disobedience of his servant, can escape liability to that servant for injuries caused by the breach. If the employer exercised all due diligence, and the breach and resultant injuries were solely caused by the servant's conduct, the employer is liable vicariously for injuries sustained by a third party just as he would be for injuries caused solely by his servant's common negligence: but he can say to the disobedient servant that his conduct in no way caused or contributed to that servant's injuries. A similar approach by Lord Reid appears in Boyle at 667-8. 33 The reasoning appearing in Ginty, Ross and Boyle is rejected at [39] in the majority judgment in Andar, on the basis of the rejection in March of the process of identifying a sole or effective cause of an accident. Their Honours state that the reasoning of Dawson J in his dissenting judgment in Nicol should be preferred. The majority judgment notes at par.[40] attempts to present the reasoning in Ginty as an aspect of the proper construction of the statutory obligation; and refers to a "necessary tension" resulting from that approach being evident in the judgment of Mason J in Buckman. However, the majority judgment in Andar does not disapprove of that judgment; and it continues: 41. The liability incurred by employers on breach of statutory obligations of the kind considered in cases such as Ginty is, ordinarily, strict. In such circumstances, caution should be exercised before implying limitations on the right of an employee to recover for breach of that obligation. Especially is this the case where Parliament has provided a mechanism for the apportionment of responsibility between employee and employer.

42. 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.

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.

CLAIM AGAINST THE AUTHORITY 45 No submissions have been advanced which could persuade me that the Authority was itself relevantly carrying on building work, so there is no basis for any finding against the appellant for breach of statutory duty. 46 Furthermore, no submissions have been advanced which could justify rejecting the finding of the primary judge that the ladder supplied by the Authority was suitable and safe; and so in my opinion there is no basis for a finding against the Authority for breach of a common law duty of care.

COSTS 47 It was submitted that the primary judge should have ordered that Mr. Wilkie pay the appellant's costs in their entirety on an indemnity basis, and that there should have been a Bullock order that Mr. Wilkie pay the Authority's costs. 48 In my opinion, there is no possible basis for an order that Mr. Wilkie pay any of the costs of the Authority which the appellant has been ordered to pay. This is not a case in which the appellant needed to sue both respondents because of any uncertainty about facts within the knowledge of one or both of the respondents but not the appellant. 49 As regards the order for costs in relation to Mr. Wilkie, this was not a case like McDougall where a clear tactical decision was made and evidence which probably would have ended the matter at the arbitration stage was not called. However, there was a chance that had the evidence of Mr. Wilkie been called at the arbitration stage, the matter would have concluded there; and in my opinion it is not possible to say that the order made by the primary judge reflecting that chance was so plainly wrong as to attract appellate intervention. 50 Nothing was said in support of ground 12. Apparently when the proceedings were adjourned the Authority was ordered to pay the costs occasioned by the adjournment; the judge's general order as to costs would not override that order.

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.

See also Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 205 ALR 1 (at 4 [11]) per McHugh ACJ, Gummow and Hayne JJ and at (24 [87]) per Kirby J. 56 When this approach is applied to the construction of regulations 73 and 80(6) the result, in my view, is inevitable. It could not have been intended by the legislature that an employee would be able to recover damages from an employer in the circumstances in question. Such a result would be so improbable that the regulations should be construed to exclude from the class of persons for whose benefit the statutory duties thereunder were imposed, the class described by Hodgson JA as "employees whose actions have put the employer in breach, where nothing done or omitted by the employer itself has contributed to the breach". **********

06/06/2005 - Par.[25] - "1926" changed to "1987" - Paragraph(s) Paragraph 25

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