Minogue v Rudd

Supreme Court of NSW|2012-03-26|Before: Adamson J

l Lawyers (Third Defendant) File Number(s): 2008/00289464

Introduction 1The plaintiff claims damages against three defendants for serious injuries, including head injuries, he suffered when he fell from a height on a building site on 12 February 2004. The Court ordered that there be a separate hearing on liability: Minogue v Rudd [2011] NSWSC 966. These reasons and the orders that follow relate to liability only. 2It is common ground that the plaintiff fell from the ground floor to the basement of a dwelling which was under construction. There were no witnesses to the fall and the plaintiff has no recollection of how it happened or why he was in the area from which he fell.

The worksite 5The accident occurred on a residential property in Vaucluse owned by Mrs Rigby. The property was on a slope and had two street frontages: Coolong Road was at the lower level to the north and Wentworth Road was at the upper level to the south. There were two means of access to the ground floor: through an entry foyer on the western side and through a foyer on the southern side near the kitchen. The basement could be entered from outside through a cellar on the western side. 6Part of the residence had been demolished and was to be rebuilt. The work to be done was substantial and included, relevantly, construction of a laundry and kitchen and building an external decorative chimney. 7At all material times, the property was a construction site. It had fencing and red and white screening around its perimeter and a sign identifying Mr Rudd, the first defendant, as the builder. There were also signs which read: "DANGER CONSTRUCTION SITE UNAUTHORISED PERSONS KEEP OUT" 8There was scaffolding around the southeast corner of the house where the kitchen area was, including outside the kitchen window. The building materials for the chimney, the timber and the blueboard, were stored on the ground outside the kitchen window on the other side of the scaffolding from the house.

The contract and building works 9Mr Rudd commenced work on the site on 4 August 2003. He was party to a building contract with Mrs Rigby. The contract nominated Mr Tilden, the second defendant, as a supervisor who had authority to act on her behalf. 10The kitchen area was 5.2 by 2.42 metres. There were two means of access to the kitchen area: the window and the door opening. The window, which was on the south of the building, was about one metre above the floor. The flooring in this area was to be constructed by RMC Construction Services Pty Limited (RMC) between late November 2003 and early January 2004. According to Mr Mori, RMC's principal, the job was not completed since one of the joists did not have a noggin (beams that run perpendicular to joists, between joists, to provide lateral stability) on the western side. Mr Mori's evidence was that the completion of the framing of the floor awaited a final decision as to the position of the stairs and the location of an air-conditioning unit. The last time Mr Mori was at the site was 5 January 2004. 11At some time during this period, Mr Mori suggested to Mr Rudd, who in turn made the suggestion to Mrs Rigby, that the whole of the ground floor should be covered with plywood. This would provide a further layer of flooring which would lie underneath the final layer of flooring. Mrs Rigby rejected this suggestion on the grounds of cost. 12Mr Rudd gave evidence that, at another stage, Mrs Rigby proposed a meeting in the kitchen area to which she would invite a designer and tradespeople who were likely to be engaged to fit out the kitchen. She suggested to Mr Rudd that it would be sufficient for some boards to be put down so that the meeting could be held in the area where the work was to be done. Mr Rudd told Mrs Rigby that it would be dangerous to have such a meeting in the kitchen until the floor was complete. Mrs Rigby did not recall such an exchange. I accept Mr Rudd's evidence, including the following: "I would have said to Mrs Rigby that, you know, no one is to go in there until the flooring is in a condition where it can be done." 13Mr Rudd contacted Mr Mori in early February 2004 to tell him that the next job for him to do was the external decorative chimney which was to be built about halfway down the eastern external side of the house and was to extend from ground level to the height of the building. 14In February 2004, Mr Rudd went on a short holiday to Canada. The last day on which he worked on the site before his departure was Friday 6 February 2004. He returned on about 17 February 2004. He expected that while he was away the only work that would be done on the building was the construction of the external chimney by RMC. He told Mrs Rigby that he would be away. He sent facsimiles to Mrs Rigby and Mr Tilden in the days before his departure setting out what needed to be done in the next stage of the renovation and a list of names and contact numbers for the various trades who worked on the site. He identified Mr Mori as the carpenter. 15It appears from Mr Rudd's work diary for 6 February 2004 that scaffolders were on site on that day. This note is consistent with the evidence of Mr Bielik, who was engaged from time to time by Mrs Rigby to do work on the property. 16I accept Mr Rudd's evidence that before 6 February 2004, when he left on holidays, he arranged for hazard tape to be put up to bar the entrance to the kitchen area. 17When Mr Tilden learned that Mr Rudd was away, either directly from Mr Rudd himself or from Mrs Rigby, Mr Tilden took it upon himself to ensure that the decorative chimney was constructed in time to be rendered by a tradesman who was soon to become available for the job. Mrs Rigby trusted Mr Tilden, who saw himself as her representative, and agreed to his recommendation. 18On Monday 9 February 2004, Mr Tilden rang Mr Mori to ask when he could start building the chimney. There is some dispute, which does not need to be resolved, about precisely when Mr Mori could begin the work. Mr Tilden who was aware of Mrs Rigby's impatience with the progress of work decided to see if he could get someone else to start the job earlier. After he had spoken with Mr Mori, he rang Mr McWilliams. Because Mr McWilliams said that he could begin on Wednesday, Mr Tilden decided to engage the third defendant, rather than RMC, to do the work. Mr Tilden arranged to meet Mr McWilliams on the site that Monday. Mr Rudd did not become aware that the third defendant had been engaged until his return from holidays on about 17 February 2004 and learned of the accident. 19On Monday 9 February 2004, Mr Tilden gave Mr McWilliams drawings that indicated the dimensions of the chimney and where it was to be constructed. Mr Tilden showed him around the outside of the site and took him into the entrance on the southern side of the house to show him the stairs that led from the ground floor to the first floor, which could be used to carry the sheets of blueboard up to the first floor in order to construct the chimney at that level. 20On Wednesday 11 February 2004 the plaintiff, together with Mr McWilliams, began work on the site. The work at ground floor level could be conducted from the ground. However, the work at higher levels necessitated the use of the scaffolding on the southern and eastern sides of the house. By the end of the day they had substantially completed the wooden formwork structure to which the blueboard sheets would be affixed.

The accident 21On the following day, Thursday 12 February 2004 the plaintiff returned to the site with Mr McWilliams again and did some work, which probably included completing the wooden formwork for the chimney. 22Mrs Rigby also visited the site on the morning of 12 February 2004 at 7.30 am, although she did not encounter either Mr McWilliams or Mr Minogue. She came with Mr Hardwick and Mr Bloodworth, both of whom were to perform electrical work, including the installation of lighting in the kitchen area, on the site at a later date. They did not enter the kitchen area because it was blocked off with hazard tape and plywood. 23On that morning Mr Bielik was moving sandstone in the garden. He observed both the plaintiff and Mr McWilliams working together on the site. 24Mr McWilliams' evidence, which I accept, was that he left the site at about 9.00 am to go to North Sydney to drop off material and left the plaintiff to work by himself. By that stage the wooden formwork had been completed and the blueboard needed to be cut and affixed to it. 25At about 10.30 am on 12 February 2004, Mr Bielik heard a sound of "falling timber" and a scream. He ran to the residence, jumped down about a metre or so into the cellar and ran into the laundry area where he found the plaintiff faced down and bleeding on the floor. The plaintiff suffered serious traumatic head injury and other injuries. Due to these injuries the plaintiff is unable to recall what happened on the day of the accident. 26Very shortly afterwards, Mr McWilliams returned to the site. He heard Mr Bielik calling out for help and came into the house at the ground floor level through the foyer on the southern side, past the stairs to the first floor and the entrance to the kitchen area and down the stairs from the living room to the mezzanine where the dining room was. He leapt down from there to the laundry where Mr Bielik was trying to help the plaintiff. The evidence of Mr Bielik suggests that Mr McWilliams might have been in the kitchen area as he heard Mr McWilliams calling "from above". However, the observation that he was "above" is consistent with Mr McWilliams having been in the dining room on the mezzanine level which was visible from, but higher than, the cellar, where the plaintiff and Mr Bielik were. I accept Mr McWilliams' evidence that he did not go into the kitchen area at all. 27Police and ambulance officers and a construction rescue unit arrived at the site and the plaintiff was transported to hospital. Mr McWilliams went to the hospital separately in his own car. 28At around midday on the day of the accident, WorkCover inspectors, Senior Inspector Waterhouse and Senior Inspector Macready, attended the site to investigate. They took photographs and later took statements. Senior Inspector Waterhouse arrived at about noon and Senior Inspector Macready arrived about an hour later. Much of that report, some of the statements and all of the photographs are in evidence. 29The flooring in the kitchen was incomplete. There were joists which had been skew-nailed to the top-plates. Skew nailing is a term that describes the process of putting a nail into the joist at an angle towards its base so that the wall plate is penetrated. If this technique were not used, a substantially longer nail would be required to take account of the height of the joist. 30There were also noggins between all joists but one. Noggins were not required by the applicable standard. At the time of the WorkCover inspection on 12 February 2004, one of the joists was at an angle and rested on top of the contiguous joist, which left a gap wider than the 400 millimetre span between the other joists. The WorkCover inspectors noticed that the top plate on the northern wall, to which the joist which was on an angle had previously been skew nailed, had an area slightly larger than the width of the joist which was free of dust. They also noticed that the two skewnails that had presumably affixed the joist to the top plate were still in situ in the top plate and were not deformed. The corresponding area on the joist was damaged which is consistent with there being a crack which would permit the nails to be extracted from the joist (to permit it to be pivoted) without deforming the nails. 31There were boards resting on some of the joists in the kitchen area. Unlike the top of the joists, the boards were not covered in dust. The WorkCover inspectors noted that the boards appeared to have been recently swept. 32Photographs taken by WorkCover depict an electrical cord looped over a joist in the kitchen area which extended down to the basement area to a temporary sub-board located about 1200 millimetres above the floor. At the time of the WorkCover inspection the power switch was on and the power cord energised. No power tools were located by the WorkCover investigators in the kitchen area or the laundry area, being the areas where their investigation was concentrated. 33A green carpenter's bag and a black pouch were found in the laundry area. The plaintiff gave unchallenged evidence that he wore these on his belt when he was working and removed them only occasionally when they were in the way. Their location is consistent with the emergency officers having removed the plaintiff's clothing in order to treat him. Three T-shirts were also found in the vicinity. One T-shirt had embroidered on the pocket "DMW Carpentry Services Pty Limited" and was soaked in what appeared to be blood; the other had "Kangaroos next 5 km" on the front and also appeared to be soaked in blood. The third was damp, black and had aboriginal motifs on the back. 34Although Mr McWilliams had a theory that the plaintiff might have left his nail bag on the kitchen window, gone into the kitchen to retrieve it, and it had ended up on the laundry floor, I regard this as no more than speculation. Indeed Mr McWilliams does not suggest that it is any more than that. 35WorkCover found a noggin on the laundry floor. I am not satisfied on the balance of probabilities that this piece of timber was what Mr Bielik heard when he heard "timber falling".

The pleaded case: the plaintiff fell through a loose joist 36The plaintiff's case as pleaded is: (1)At 10.30 am on 12 February 2004 the plaintiff was crossing the kitchen area in the course of his carpentry work for the third defendant; (2)The flooring of the kitchen area was only partly constructed and consisted of joists and noggins; (3)As at December 2003 at least one of the joists in the kitchen area had been left loose in that its southern end was skew nailed to the adjacent wall plate but its northern end was not skew nailed to its adjacent wall plate; (4)Because the northern end of this joist was not skew-nailed, the joist was capable of moving laterally if trodden upon thereby creating the risk that any worker who trod on the joist would fall and suffer significant injury; (5)The fact that the northern end of the joist was not skew-nailed and was capable of movement if trodden on was, on or prior to 12 February 2004, something which each of the defendants knew or ought to have known. 37The plaintiff pleads that the accident occurred in the following way: "The Plaintiff while walking on the joists, stepped onto a joist, the northern end of which had been left loose and unnailed and which was not bilaterally braced with noggins kept securely in position by skew nails, with the results that the northern end of the joist moved about 1m westward under the Plaintiff's foot, causing him to lose his balance and fall, striking his head on a joist and then falling a distance of 2.93 ms between the joists to the concrete floor of the laundry one floor below, striking his head on the floor. As a result of the Plaintiff losing his balance, striking his head on a joist, and falling to the concrete floor below, the Plaintiff was injured." 38Both the plaintiff and the third defendant submitted that I should infer that the accident happened as the plaintiff has pleaded. The third defendant had an interest in establishing that the fall was as a result of a single loose joist or loose joists rather than merely uncovered joists per se, which might be seen to be more the first defendant's responsibility than the third defendant's. To that extent the plaintiff's and the third defendant's interests coincided on this issue. 39The third defendant submitted that Mr Bielik was only on site when Mr Rudd was there on one day, 6 February 2004. Mr Bielik has deposed that at some time, Mr Rudd spoke to him about not walking over the joists in the kitchen area. Mr Bielik said that he felt that the joists were loose underfoot and that he was holding onto the wall as he walked across them. The third defendant submitted that this amounts to direct evidence of the instability in the joist or joists which explains why the plaintiff, who was a carpenter experienced in walking on joists at heights and who was agile, would fall. The third defendant submitted that this would elevated that possibility to a probability which would be sufficient to outweigh all the other speculative matters raised by the first defendant. 40The third defendant's submission is encapsulated by the following passage from its senior counsel's address: "But if your Honour is asked to evaluate the probabilities of someone with skills, experience and physical characteristics and abilities of the plaintiff, somehow just falling off the stable platform, as opposed to the likelihood of his fall being caused by standing on a joist which Mr Bielik described as being loose and unstable underfoot, your Honour would have no difficulty in our submission in inferring that the loose, unstable joist moved under his foot and that caused him to lose his balance and fall, on the probabilities." 41In my view the difficulty with these submissions is that they depend entirely on Mr Bielik's recollection of the conversation with Mr Rudd after he had apparently walked on the relevant joists, namely those in the kitchen area. Mr Bielik was interviewed by police on the day of the accident. He then, to use his word, "suppressed" his memory of the accident and never returned to the site because of the trauma associated with finding the plaintiff and believing him to be dead. Before he went to the police station he had consumed a quantity of Bourbon to calm his nerves and alleviate the shock. His evidence about the conversation with Mr Rudd was given to an investigator who interviewed him on behalf of the third defendant in March 2012, over eight years after the relevant events. Mr Rudd could not recall having such a conversation but did not deny that it occurred. 42I am prepared to accept that Mr Bielik had a conversation with Mr Rudd about some joists. But I do not accept that he had such a conversation in the terms he deposed to the investigator in March 2012. I do not accept that Mr Bielik could remember the conversation with that degree of particularity after the passage of such a long period of time. The first defendant's cross-examination of Mr Bielik revealed how hazy his memory of those events was. Indeed at one point he agreed that it was his impression that the joists on which he was walking had not even been nailed down. If this impression was correct, then he would have been in the area before RMC had even skew nailed the joists to the top plate. 43Mr Rudd gave oral evidence that he walked on the joists after RMC had nailed them and he did not consider that any joist was loose. He said that he arranged for the hazard tape to be put up because the flooring was incomplete and that it was dangerous for anyone who was not actually working on joists to be walking across them. He said: "People shouldn't really be walking on the joists unless they are actually working, you know, you know constructing them. I mean, you know, it's a hazardous area. You could step in between them or, you know, you wouldn't need a joist to roll over to have an accident." 44The third defendant sought to impugn Mr Rudd's credibility in cross-examination by putting the following interrogatory and answer to him and highlighting an inconsistency between his answer and his oral evidence: "Interrogatory: Before the accident on 12 February 2004 did you believe that the subject joist or any other joist in the kitchen could move if trodden on? Answer: On 6 February 2004, I was aware that a noggin had not been put in place between the final and second last joist and believed that the joist could roll if weight was put on it. It is for this reason that I ensured that the red and white tape barricading the area and the 'Keep Out' sign were put up before I went on leave." [Emphasis added] 45There are difficulties in using interrogatories, which tend to be drafted by solicitors, as amounting to prior inconsistent statements, particularly when the witness, as in Mr Rudd's case, is not as attuned to the nuances of language as lawyers might consider themselves to be. I do not consider that Mr Rudd's credibility suffered from the exchange and I accept his response in the following passage: "Well okay. I mean, you know, you can twist it that way, but I think when you see the whole picture, you know, the whole area was unsafe. I mean people shouldn't be walking across joists, you know, without some kind of flooring on them." 46The third defendant also relied on the plaintiff's evidence as to how the accident occurred, notwithstanding the plaintiff's general lack of recollection. He cross-examined the plaintiff about certain statements he had made to an investigator which are recorded in a statement he signed on 7 June 2004. Although the plaintiff does not recall the circumstances of his making the statement to the investigator it appears that it was obtained by and for the workers' compensation insurer, although the plaintiff's signature to that document was obtained by his own solicitor. 47The third defendant put the following statements to the plaintiff from his statement of 7 June 2004, with which he agreed: "I remembered the existence of uncovered joists in the house. However I do remember that they [the joists] were uncovered and that they were loose." 48There is a deal of ingenuity, if not sophistry, in what the third defendant has endeavoured to do with the plaintiff's statement of 7 June 2004. I do not accept that the plaintiff was able to distinguish between what he had been told and what he recalled at that time. Although the plaintiff was being cross-examined by a party whose interests could be expected to be adverse, the third defendant was, for the reasons set out above, endeavouring to establish the plaintiff's pleaded case, and in so doing implicate the first defendant. I gained the impression in the following passage from the plaintiff's cross-examination that the plaintiff was embarrassed that he had signed a statement that appeared to make distinctions which he himself was not able to make: "Q. Do you see from your reading of those few paragraphs that again, like you did in the earlier statement, you were careful to distinguish between what you remembered and what you didn't remember? A. Yeah. Q. And also what you thought from having reconstructed things in your mind from what other people had told you? A. True. Q. And in paragraph 16, for example, you say, 'I don't remember the exact mechanics of what happened'. Do you see that? A. True. Q. And you say, 'However, I remembered the existence of uncovered joists in the house'? A. True, yeah. Q. So that's a statement of something that you did remember at the time, as opposed to something you put together from what other people told you? A. Probably. I'm not sure." [Emphasis added.] 49In reply to this evidence, the plaintiff tendered the following additional passage from his statement dated 22 November 2011 which was prepared for these proceedings: "I do not remember anything in relation to the joists or what they were like before I fell. I have only been able to give information about these subjects by repeating what I understand from what Declan [McWilliams] has told us since the accident." 50I have also had regard to a bundle of medical evidence tendered by the plaintiff, who has identified the passages relied upon in his written submissions. Much of the material relates to the plaintiff's present memory functioning rather than any amnesia surrounding the time of the accident. However, some passages are directed to the issue of memory of the accident, including the following: [Report of Dr Leng, neuropsychologist, London, following a consultation with the plaintiff in January 2007, at the request of the plaintiff's solicitors] "He told me he was amnesic for the accident itself. He was unsure what his last memory was before the accident. I asked him whether he could remember being in Australia before the accident occurred, and he said that he had snapshots of memory for the preceding 3-month period. His first memory after the accident is of seeing his brother, but he does not know how much time had elapsed... The likely initial severity of a traumatic brain injury is normally best judged from the period of post-traumatic amnesia, and here is was documented to have been over three weeks. In clinical terms this means a very severe traumatic brain injury, very likely to produce persisting neurocognitive and neurobehavioural consequences of practical significance." 51The third defendant has directed my attention to other passages in the bundle, including the following history given to Dr Buckley on 3 June 2004 which is recorded in a report of 2 July 2004: "Mr Minogue told me that he does not remember the accident. He remembers the morning of the day finishing off the construction of a chimney." 52I accept the evidence of the plaintiff that he does not recall either the circumstance of the accident or the surrounding circumstances, including the condition of the joists. In coming to this conclusion I have taken into account not only the medical evidence about the seriousness of the head injury the plaintiff suffered but also the evidence of the plaintiff, and my impression of the way he gave it, which is set out above. 53I do not accept that Mr Rudd was on notice of any instability in the subject joist or joists. Although he would have been aware, had he inspected it, that there was a single joist which did not have a noggin on one side, I am not prepared to infer from this that the joist was unstable, or that Mr Rudd ought to have been aware that it was. The evidence is that joists at that height and of those dimensions do not require noggins. I find, accordingly, that the subject joist was not unstable by reason of any lack of noggin on one side, or otherwise.

The cause and mechanics of the fall 54Three experts, Mr Cowling, Mr Heathcote and Mr Dubos, prepared reports which were served in these proceedings and tendered as evidence. There were numerous objections to those reports. None of the reports complied with the rules of evidence, either because the assumptions were not identified, the experts engaged in conjecture and speculation or because they went beyond their expertise: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588. The parties requested, and I agreed, that rather than take up court time with ruling on these objections, I should take in the expert reports as assumptions unless I was satisfied that the opinion was properly based and within its author's expertise. 55The experts were called and gave their evidence concurrently. There was substantial agreement in their views. Their evidence was to the following effect. 56The plaintiff's injuries were not such as to permit an inference to be drawn as to the cause or mechanics of the fall. Nor does the joist which is on an angle assist in solving these questions. It is unlikely that it moved during the fall since its position on top of the contiguous joist is inconsistent with a downward force and its undamaged regular appearance is inconsistent with any involvement in the fall. Although it may be implicated in that its position opened up a greater gap than there would have been had it been located parallel to the contiguous joists, it is a matter of speculation whether the plaintiff fell through that gap, although he might have done, having regard to where he landed.

Findings as to how the accident occurred 57I accept the consensus of the experts that neither the probable cause nor the probable mechanics of the fall, nor where the plaintiff was probably standing when he fell, can be determined. I consider the instant case to be in a similar category to that considered in Lithgow City Council v Jackson [2011] HCA 36; 85 ALJR 1130. I do not regard the hypothesis advanced by Mr Gross QC, senior counsel for the plaintiff, as to how the plaintiff fell to be at all self-evident. I reject his submission that: "So it is fairly obvious that the plaintiff ends up going through the wider gap head first and landing on his head." 58Where no expert called by any party was able to say why and how the plaintiff fell, I do not consider myself to be able, by the application of so-called "common sense", my experience of ordinary life, or otherwise, to fill the gap. 59Both the plaintiff and the third defendant submitted that the plaintiff was a young, fit, agile man who was accustomed to walking on uncovered joists and that if he fell, it was probably because of a defect in the joists rather than any other reason. I reject this submission, which appears to be based on "tendency" rather than anything else and is a non sequitur. 60The third defendant also referred me to Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 (Forst's Case) and contended that I am permitted to infer on the balance of probabilities that the plaintiff fell because of a loose joist. In that case a worker performed two strenuous tasks and then collapsed and died of coronary thrombosis. There was expert evidence, which was accepted by the arbitrator, to the effect that death from coronary thrombosis could not generally be related to exertion. The Supreme Court of South Australia overturned the arbitrator's finding and the employer appealed to the High Court. The High Court dismissed the appeal. Rich ACJ said, at 563-564: "I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is a strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death?" 61This dicta has subsequently been distilled into the proposition that an inability to call lay or expert evidence that shows the precise way that something has happened is not fatal: see Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 at 317, per Mason P. I do not consider the "presumptive inference" in Forst's Case to have any immediate bearing on the instant case. The proof of causation in Forst's Case did not depend on anything about which the worker (had he survived) was capable of giving evidence. A mere description of what he was doing when he collapsed and later died, was sufficient to give rise to the presumptive inference of a causal link. 62As Mr McWilliams said, of walking on uncovered joists: "you can never be complacent." Regrettably, able, fit, agile, qualified tradespeople, including carpenters, fall from joists in which there is no defect. For the reasons given below, there is no room for the doctrine of res ipsa loquitur in the instant case. 63I consider it to be a matter of speculation as to why the plaintiff fell. He may have slipped, tripped, fainted or simply missed his footing. I do not consider the hypothesis that he lost his balance on a loose joist to be more probable than other possibilities. I do not consider that the evidence as to the cause or mechanics of the fall to rise above the level of conjecture: see the cases cited in Condos v Clycut Pty Limited [2009] NSWCA 200 at [68], per McColl JA (Campbell and Macfarlan JJA agreeing). 64It follows that the plaintiff has failed to prove his case as pleaded above. However, as the case was conducted on a broader basis than is revealed by the pleading I propose to determine the case on this broader basis rather than simply find that the plaintiff fails against each defendant because he has not proved that the accident occurred in the way alleged in his pleading.

The alternative case: the dangerous condition of the kitchen 65The alternative argument put by the plaintiff appears to be that it does not matter how the plaintiff fell, or what he was doing in the kitchen area, because the first or second defendant were responsible for the dangerous condition of the kitchen area and the third defendant was responsible for the work being performed by the plaintiff. 66Many of the particulars of negligence are identical for each defendant. They can be summarised as follows: (1) Particulars against all defendants: (a)Failure to make sure that each joist was securely braced by noggins; (b)Failure to warn the plaintiff of a loose joist; (c)Failure to prevent access to area where the loose joist was; (d)Failure to provide netting or safety harnesses; (e)Breaches of clauses 34, 35, 36, 38, 39(a) and 39(e) of the Occupational Health and Safety Regulation (OH&S Regulation) which govern the person who is the "controller" of the premises; (f)Failure to ensure that the plaintiff had a site specific induction prior to commencing work in which their attention was drawn to the loose joist in the kitchen area. (2) Additional particulars against the first defendant: (a)Breaches of clauses 56, 213(1), 213(2), 226, 227, 234(1) and 234(2) of the OH&S Regulation; (b)Failure to ensure that the third defendant had a site specific induction prior to commencing work in which their attention was drawn to the loose joist in the kitchen area. (3) Additional particulars against the second defendant: (a)Breaches of clauses 56, 234(1) and 234(2) of the OH&S Regulation; (b)Failure to ensure that the third defendant had a site specific induction prior to commencing work in which their attention was drawn to the loose joist in the kitchen area. 67Section 10 of the Occupational Health and Safety Act 2000 (OH&S Act) requires controllers of premises to ensure that the premises are safe and without risks to health. Parts 4.2 and 4.3 of the OH&S Regulation (in which clauses 34, 35, 36, 38, 39(a), 39(e) are to be found) impose absolute (in the sense that they are not qualified by reasonableness) duties on controllers with respect to work premises and their use to do the following: (1)Identify hazards: cl 34; (2)Assess risks: cl 35; (3)Eliminate risks, or, if they cannot be eliminated, control them: cl 36; (4)Provide information to other persons who have responsibilities: cl 38; (5)Ensure that safe access is provided to all parts of a place to which a person may require access and from which a person may fall: cl 39(a); (6)Ensure that floors are designed to be safe without risks of falls with appropriate floor coverings (if necessary). 68Clause 56 imposes an obligation on an employer to ensure control of risk of fall from heights. Clauses 213(1), 213(2), 226, 227, 234(1) and 234(2) impose obligations on principal contractors to ensure OH&S training is undertaken, OH&S matters are managed and that structures do not collapse. 69Mr Gross made much of these alleged breaches. His submissions were, effectively, that the content of the duty of care was informed by the regulatory framework that surrounded the workplace and that such breaches of statutory duty amounted to negligence. Although he conceded that cl 36 of the OH&S Regulation would not, of itself, give rise to a private cause of action for breach of statutory duty because of its generality, he pressed it as a particular of negligence. However, he contended that a breach of cl 39, which governed fall prevention, did give rise to a private cause of action for breach of statutory duty. 70The plaintiff based his negligence case, in part, on an alleged breach of cl 36 and said that the first defendant was obliged to eliminate the risk of the plaintiff falling by putting down floorboards. He submitted that the option of controlling the risk by putting up a barricade was only open to a defendant if the risk could not be eliminated. 71The plaintiff appeared to place some reliance on the following paragraph in Leighton Contractors Pty Limited v Fox [2009] HCA 35; 240 CLR 1 where the High Court (French CJ, Gummow, Hayne, Heydon and Bell JJ) said, at 19: "No claim for breach of statutory duty. The case against Leighton and Downview was not pleaded as involving breach of statutory duty. No doubt this was because the terms of the OHS Act prevent the duties imposed by it on employers and others giving rise to correlative private rights." 72The plaintiff contended that neither this passage nor the Act said anything about whether a breach of the Regulations would give rise to a private cause of action. 73However, as the High Court observed in the footnote to the passage from Leighton quoted above, s 39A had not been enacted when Mr Fox was injured. Section 39A, which was inserted into the OH&S Act by the Workers Compensation Legislation Amendment Act 2003, relevantly commenced on 1 August 2003. The relevant legislation was summarised by the High Court in the footnote as follows: "Section 32(1) of the Occupational Health and Safety Act 2000 (NSW) provides that nothing in Pt 2 is to be construed as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of Pt 2; s 46(2) provides that a person is not liable to any civil or criminal proceedings by reason only that the person has failed to observe an approved industry code of practice. [Section 39A of the Act] makes provision for the regulations to provide that nothing in a specified provision or provisions of the regulations is to be construed as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of the provision or provisions but that the failure of the regulations so to provide is not to be construed as conferring a right of action..." [Emphasis added] 74Section 39A remained in force until 30 June 2005 when it was repealed by the Statute Law (Miscellaneous Provisions) Act 2005. Accordingly it was in force at the time of the plaintiff's accident. I reject the plaintiff's submission that he has a private action based on breach of statutory duty in respect of Regulation 39. It is not open to the plaintiff in light of s 39A of the OH&S Act. 75None of the parties contended that there was an implied repeal of the Civil Liability Act 2002 (the Act) by the OH&S Act and Regulations. Accordingly, it is not necessary for me to determine the questions expressly left open by the Court of Appeal in Wynn Tresidder Management Pty Limited v Barkho [2009] NSWCA 149 at [87]-[101], per McColl JA (Tobias and Young JJA agreeing) including whether there is such an implied repeal. 76This case has been conducted on the basis that the defendants' liability to the plaintiff, if any, for negligence, is governed by the provisions of the Act which are considered in more detail below. Although the Regulations to which the plaintiff has referred are relevant to the question of negligence, a breach of any of the regulations referred to will not necessarily amount to negligence, since, unlike the obligations imposed by the Regulations, the duty and standard of care are moderated by the standard of reasonableness. 77In Leighton, the High Court considered the relationship between breaches of statutory duty and the law of negligence. The Court said, at 22: "The obligation imposed on Leighton under the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal's conclusion that a common law duty existed. While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer [(2007) 234 CLR 330 at 345 [43]; [2007] HCA 42], 'whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden'." 78For this reason I do not propose to make findings as to whether any defendant is a "controller of premises" within the meaning of the Regulations, or whether any particular regulation has been breached by any one or more of the defendants, since this exercise will not advance the task I have to undertake of determining whether any one or more of the defendants is liable in negligence to the plaintiff. 79On the final day of the hearing, at the commencement of his oral submissions, Mr Gross, submitted on behalf of the plaintiff that the second and third defendants were entitled to judgment on the plaintiff's claim and that he sought judgment only against the first defendant. 80However, later in the day, Mr Gross retracted that submission and said that his primary case was against the first defendant but that he also pressed his case against the other two defendants. 81Nonetheless, the plaintiff's written submissions contained the following passage, from which Mr Gross did not resile: "Neither Mr McWilliams nor the plaintiff were at fault in relation to the absence of temporary flooring, or the absence of the noggin, both of which caused the plaintiff to suffer injury." 82Although Mr Gross ultimately pressed the plaintiff's case against the second and third defendants, the most powerful and detailed submissions as to their respective liabilities were made by the first defendant in support of his cross-claims against them.

The existence of hazard tape 83In light of the alternative case put by the plaintiff (that the first or third defendants were responsible for the dangerous condition of the kitchen), a factual dispute emerged as to whether there was any hazard tape or plywood across the entrance to the kitchen area and when and by whom it was removed. 84The plaintiff's case was that there was neither hazard tape nor plywood across the kitchen opening. The plaintiff relied on the fact that by the time the WorkCover inspectors came at about midday, there was no evidence of either the plywood barricade or the hazard tape. The plaintiff also relied on what Mr McWilliams said to Senior Inspector Waterhouse on 22 March 2004 when asked how the accident could have been prevented: "The floor should have been completed with a covering or cordoned off so that people can't enter the area." 85The plaintiff submitted that Mr McWilliams' answer was inconsistent with the presence of a cordon. 86The first defendant's case was that there was both hazard tape and plywood across the entrance to the kitchen area. He relied on the evidence of Mrs Rigby and Mr Hardwick to that effect. 87Mr Rudd's recollection was that there was hazard tape and a sign that said "KEEP OUT" which faced outwards from the entrance. He did not recall whether there was also a piece of plywood across the entrance. Nor did he recall whether he asked Mr Bielik to do this or someone else. Mr Bielik did not recall doing this himself. 88Mr Rudd's evidence as to the cordon was challenged on the basis that he had not told WorkCover about the presence of the cordon. His response, which I accept as being credible and reasonable in the circumstances, was: "I wasn't asked about it." 89On the day of the accident Mrs Rigby saw the lawyers who had advised her with respect to the building contract to notify them of what had happened. She denied, and I accept her denial, that she saw them because she considered herself to be exposed to a claim. Her lawyer advised her to prepare a file note which recorded her observations of access to the kitchen area that morning on the site visit. The following day she prepared a file note, which she and Mr Hardwick signed. It read as follows: "On the morning of 12 February 2004 at approximately 7.30 am I had a site meeting with Brad Bloodworth and Kevin Hardwick of ICS. We went through the various rooms in the house to discuss lighting and electrical needs. We did not enter the kitchen area as it was taped off with red tape and a piece of plywood was placed over the entrance which prevented us from entering the kitchen. We knew not to enter the kitchen." 90Although neither Mrs Rigby, nor Mr Hardwick, could remember how the area appeared at the time they gave their evidence, they swore that when they signed the file note, they were satisfied that it reflected their observations on the previous morning. 91Mr McWilliams recalled that there was hazard tape across the entrance to the kitchen, which he said was in two strands, one at the height of slightly more than a metre and the other at the height of slightly less than a metre. He could not recall whether there was plywood there as well or whether there was a sign in addition to the hazard tape. Mr McWilliams denied that he removed it so that he could come into the kitchen area when he heard the cry for help from Mr Bielik. He was adamant that he had not jumped from the level of the kitchen to the basement below. I accept Mr McWilliams' evidence that he did not go into the kitchen area at all. 92Although Mr Bielik could, in other circumstances, be expected to be the most reliable witness if indeed he was the one who did the work of putting up the hazard tape and/ or the plywood, he was so affected by the plaintiff's fall that I do not find his evidence to be as reliable as that of the file note signed by Mrs Rigby and Mr Hardwick. Mr Bielik was interviewed by police on the afternoon of the accident but he was not asked about access to the kitchen area. He was not interviewed by WorkCover. He was not required to recall what had occurred until March 2012, when a statement was prepared in conjunction with the plaintiff's solicitors. As referred to above he had tried to "suppress" his memories of that day because it had been so distressing for him. He never returned to the site. 93I accept Mrs Rigby and Mr Hardwick's evidence on this matter. They were relevantly disinterested in that neither believed that they were exposed either to the risk of a claim by the plaintiff or a WorkCover prosecution. Furthermore they made the observation of the entrance to the kitchen at a time shortly before the accident. Neither was immediately affected by the shock of the trauma. The file note was prepared the day afterwards when their observations of the previous day were still fresh in their memories. 94I am satisfied that the cordon tape and the plywood barricade were in situ at least until Mr McWilliams left the site at 9.00 am on 12 February 2004. I make no finding as to the identity of the person or persons who removed it, or the reason why it was removed, since the evidence does not permit of anything more than speculation on these matters.

The case against Mr Rudd, the first defendant 95In substance, the plaintiff's case against the first defendant, as it developed in the course of the hearing, was that he was negligent to leave the kitchen area in an unfinished state from early January 2004, when RMC left the site, until 12 February 2004 when the accident occurred and that, as occupier he had a duty either to cover the joists with floorboards or to erect a barricade such that it was physically impossible for anyone to come into the kitchen area through the door opening or the window. The plaintiff submitted that in any event the hazard tape was inadequate and any warning sign should have specified with particularity that there was a loose joist in the kitchen area. 96The plaintiff's submissions on the first defendant's obligations are encapsulated in the following submission made by Mr Gross: "No matter how you frame the conjectural possibilities from the range of what he may or may not have been doing, you still end up with the same answer. If, as all the experts say and is obvious, can I say, you have got the temporary flooring across, it is going to save a plaintiff who is walking in whatever direction, whether he is curious or performing his job very specifically there or dancing an Irish jig, it doesn't matter. He is protected. He is a person who is foreseeably in there and there is an obligation to protect." 97The first defendant submitted that he did not owe any duty of care to the plaintiff since he did not know, or have reason to expect, that the third defendant or the plaintiff would be coming onto the site at all. The first defendant submitted that he had no reason to believe that anyone other than RMC would be engaged to construct the decorative chimney and RMC knew, better than anyone else, what the state of the kitchen area was since it had constructed it. 98I reject this submission. In my view the first defendant's role as the builder on the site and his capacity to control the site, even in his absence by appropriate barriers and warning signs, were sufficient to impose a duty of care on him. Although I accept Mr Rudd's evidence that he was only expecting RMC and the renderer to come on to the site in his absence in February 2004, he conceded in cross-examination that there was a real prospect that other tradespeople would come onto the site during his absence for various work purposes, including the making of preliminary observations or preparations. 99The first defendant's liability, if any, to the plaintiff is governed by the Act. Section 5B provides that a party is not negligent for failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and in the circumstances a reasonable person in the position of the first defendant would have taken those precautions. 100I reject the first defendant's submission that the risk that anyone would enter the kitchen area while he was away was either insignificant or not foreseeable. Although Mr Rudd considered that the kitchen area could not be completed while he was away and that the only work to be done on the site was the construction of the external decorative chimney, he must have been aware that Mrs Rigby was anxious for the property to be completed and had previously suggested that she would like to bring persons into the kitchen area to measure up the kitchen so that they could provide quotations and, perhaps, prepare cupboards or other fit-out offsite. Although Mr Rudd had substantial control over the site, he knew that, from time to time, Mrs Rigby and Mr Tilden exercised their authority to bring people onto the site. 101For these reasons I consider that the first defendant owed a duty of care to persons who came onto the site, including the plaintiff. 102The first defendant took the precaution of arranging for hazard tape and plywood to be erected at the entrance to the kitchen to warn people of the dangers of entry and to bar entry. 103The precautions that the plaintiff submitted the first defendant failed to take were first, that he did not cover the joists with flooring, and secondly, that he did not erect a physical barricade over the entrance and the window. 104Accordingly, s 5B of the Act requires me to determine whether, in the circumstances, a reasonable person in the first defendant's position would have taken those precautions. 105The kitchen area was a dangerous area because the joists were not covered. 106As to the danger posed by the pivoting of the joist such that it rested on the contiguous joist and left a greater gap than would have been created had the joists been parallel, there is insufficient evidence for me to make a finding as to when this danger was created. I consider that, on the balance of probabilities, the gap created after Mr Rudd left for his holiday and that whoever moved the joist did so notwithstanding the hazard tape and the plywood barricade. 107I find that the putting up of hazard tape and a plywood barricade was sufficient to discharge any duty of care that Mr Rudd, the first defendant, owed the plaintiff to warn him of dangers in the kitchen area. I do not consider that a reasonable person in the first defendant's position would have either barricaded the door entrance and the window or covered the kitchen floor with plywood. The premises were a construction site and their fencing and signage around the perimeter made this clear. The plaintiff was a qualified carpenter who was not engaged to do any work associated with the construction of the kitchen area. In my view hazard tape and plywood was sufficient warning to such a person to keep out of the area. 108The plaintiff admitted as much in the following passage: "Q. For you as a carpenter engaged in building construction work, what significance would yellow and black hazard tape be to you? A. Keep out mainly." 109The plaintiff gave a somewhat inconsistent answer after the luncheon adjournment while he was still giving his evidence in chief in the following terms: "Q. From your observations, what was the hazard tape being used for? A. Mainly to warn people that maybe that owned the house to keep them out of the area. Myself, like I'm a qualified trades person, I assess an area and go through it. I would be used to walking on that." 110There is no evidence that persons whose entry was unlikely to be dissuaded by hazard tape and plywood, such as children or vagrants whose capacity to reason might be compromised, ever came to the premises. Had such persons been in the reasonable contemplation of a person in the position of the first defendant, the failure to take greater precautions may have been unreasonable. However, that is not the instant case. 111I have also had regard to the principles in s 5C of the Act. In particular, I have had regard to s 5C(a): the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person is responsible. I am not entirely sure whether Mr Gross's ultimate submission was that the boards had to be completely covered because a single joist was not braced with a noggin on each side or whether they had to be covered because it was dangerous to leave them uncovered. However, if it be the latter, then s 5C(a) is relevant since it would have required the first defendant to cover all of the uncovered joists throughout the first floor of the property. Since Mrs Rigby did not agree to the first defendant's suggestion that there be an under-layer of plywood, he would have had to do it at his own expense and contrary to her instructions. 112Section 5C(b) is also relevant, in that it provides that the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. That covering the floor or putting up a barricade as distinct from a cordon are other precautions that could be taken to prevent a person from gaining access to the kitchen area does not mean that the first defendant is liable to the plaintiff for not taking such precautions if the precautions he actually took were reasonable, as I have found them to be. 113It follows that there will be judgment for the first defendant on the plaintiff's claim.

The case against Mr Tilden, the second defendant 114While not a party to the building contract, Mr Tilden was referred to in it in the following two notes. Note 4 to cl 1 of the contract, which incorporated General Conditions of Contract, provided: "The contractor acknowledges and agrees that John Tilden ('the Supervisor') may act as the owner's supervisor of the works and the contractor will accept and act upon instructions issued by either the Supervisor or the owner in writing." 115Note 3 to cl 11 (Payment Agreement) provided for the owner's obligation to pay trade subcontractors and relevantly provided: "The owner will make payment to the trade subcontractor within 7 days of John Tilden certifying the invoice for payment." 116Mr Tilden played various roles in connection with the site. He was a draftsman who did some drawings for the renovation and advised Mrs Rigby about the appropriateness of sums claimed in invoices that were submitted by the builder and various constructors. His letterhead describes him, amongst other things, as "project manager" and I find that he performed some of the tasks associated with that description. 117Although the plaintiff's case against the second defendant was only faintly pressed, his claim was not entirely abandoned. Indeed, at times, the plaintiff sought to establish matters which were in Mr Tilden's favour. 118I consider that both Mr Tilden and Mrs Rigby sought to minimise his role with respect to the site. He insisted that he was just a "draftsman" whereas Mrs Rigby steadfastly maintained that he was "clerk of works", as if his only role had been to vet invoices. Although this understatement does not reflect particularly well on the credibility of either, it does not affect the plaintiff's case against Mr Tilden in any substantial way because of the evidence that established what Mr Tilden actually did, as distinct from what his title was. 119Mr Tilden arranged for the third defendant to construct the false chimney. His reasons for not engaging RMC, which had formerly worked on the site, appear to be that he was concerned about the timetable and he did not consider that he could wait for RMC to become available to perform the work. He was, accordingly, responsible for engaging the third defendant to perform the work on the chimney. He consulted with Mrs Rigby who approved of and authorised the engagement. 120Although Mr Tilden said that Mr Rudd did not tell him that he would be away on holidays, Mr Tilden learned of Mr Rudd's absence from Mrs Rigby. When Mr Tilden retained the third defendant without reference to Mr Rudd he appreciated that Mr Rudd was away and he was in charge during this period. 121The only "site induction" which Mr Tilden performed was the inspection with Mr McWilliams on 9 February 2004. It is difficult to see what a more comprehensive site induction could relevantly have added to what was made obvious by the presence of hazard tape and a plywood barricade at the entrance to the kitchen area. Therefore even if Mr Tilden did not specifically tell the third defendant not to go into the kitchen area I do not consider that his failure to do so had any relevant causal effect, since if a person is not dissuaded by hazard tape from entering a particular area, that person is unlikely to be dissuaded by an oral warning or prohibition. 122Aside from this omission, Mr Tilden's only causal responsibility appears to be to have been that, but for his engagement of the third defendant, the plaintiff would not have been on site and would therefore not have been injured. This passes the "but for" test of causation but this is not always sufficient for legal responsibility: Alexander v Cambridge Credit Corporation Limited (1987) 9 NSWLR 310 at 335-336, per Mahoney JA and at 349-358, per McHugh JA; March v Stramare (1991) [1991] HCA 12; 171 CLR 506. I find it is not sufficient in the instant case. 123Accordingly there will be judgment for the second defendant on the plaintiff's claim.

The case against DMW Carpentry, the third defendant

The pleadings 124It was common ground between the plaintiff and the third defendant that the plaintiff was, at least, a deemed worker under Sch 1, cl 2 of the Workplace Injury Management and Workers Compensation Act 1998. On the first day of the hearing the plaintiff applied for leave to amend the statement of claim to delete allegations that he was an employee of the third defendant and to substitute an allegation that he was at all material times performing carpentry work on the premises in his capacity as an independent contractor to the third defendant. Because to allow the amendment would have led to an adjournment of the proceedings I did not permit the plaintiff to delete paragraph 14C of the Third Amended Statement of Claim in which he alleged in part that: "The Plaintiff... was performing carpentry work on the premises under a contract which, in terms of Schedule 1, clause 2 of the of the Workplace Injury Management & Workers Compensation Act 1998 (NSW) was a contract made by the third defendant with the plaintiff as contractor." 125On the fourth day of the hearing, the plaintiff made the following concession: "The plaintiff concedes he was, at the time of the accident, a deemed worker under the Workers Compensation Act of the third defendant as per paragraph 14C of the Third Amended Statement of Claim and that in the event that the plaintiff recovers damages, s 151Z of the Workers Compensation Act will operate in relation to any recovery rights of the Workers Compensation insurer." 126On the final day of the hearing, the first defendant made submissions in support of his cross-claim against the third defendant that the plaintiff was an employee of the third defendant and that the third defendant accordingly owed him a non-delegable duty of care to take reasonable steps to ensure a safe system of work. The first defendant submitted that the plaintiff was in the kitchen area as a result of the third defendant's failure to discharge his duty of care and that accordingly the third defendant was liable to the plaintiff. These submissions require a detailed consideration of all the evidence in the case, and in particular the physical evidence, which will be set out further below. 127Following the conclusion of the first defendant's submissions, immediately before the luncheon adjournment on the fifth and final day of the hearing, the plaintiff applied for leave to amend the statement of claim to reinstate the allegation that he was an employee of the third defendant. Leave was granted to insert the following paragraph, 14D, into the statement of claim (which became the Fourth Amended Statement of Claim): "Alternatively, the Third Defendant at all material times employed the Plaintiff." 128I allowed the amendment because the question whether the plaintiff was an employee was always an issue in the case since, as set out above, the first defendant alleged in his cross-claim against the third defendant that the plaintiff was an employee of the third defendant. I considered that it was a necessary amendment for the purposes of determining the real questions raised by the proceedings within the meaning of s 64(2) of the Civil Procedure Act 2005. 129Generally speaking, the duties owed by employers to employees are higher than those owed to independent contractors (who may be deemed workers under the Sch 1, cl 2 of the Workplace Injury Management and Workers Compensation Act 1998). There was, accordingly, at least a possibility that the plaintiff might fail against the third defendant because he did not allege that he was employed and yet the first defendant's cross-claim against the third defendant would be determined on the basis that the plaintiff was employed by the third defendant. This would have been highly undesirable. Although the plaintiff's counsel appear to have changed their minds more than once in the course of these proceedings as to the way they wish to chart the plaintiff's course, I do not consider that the plaintiff ought be prejudiced by their conduct of his case, which required difficult forensic decisions to be made. 130The third defendant could not point to any particular prejudice arising from the amendment, but it was submitted on his behalf that the plaintiff was bound by his counsel's conduct of the case and that the decision to abandon the employment allegation on the first day was a deliberate forensic one, to which he should be held. I considered this matter to be insufficient to outweigh the other matters to which I have referred above. 131In my view the dictates of justice, as referred to in s 58 of the Civil Procedure Act 2005 were, on balance, in favour of allowing the amendment, and accordingly I allowed it.

The status of the plaintiff: employee or independent contractor? 132The duty and standard of care owed by the third defendant to the plaintiff depends in part on whether the plaintiff was an employee of the third defendant. Accordingly, it is necessary to determine this question at the outset. 133The plaintiff put, only as an alternative, that he was an employee of the third defendant. However, the first defendant put it as his primary submission on his cross-claim against the third defendant. 134The plaintiff's evidence is that he was paid at an hourly rate of about $28.50 and that his wages were paid by the third defendant into his personal bank account without tax having been deducted. As referred to above, he registered a business name, A1 Carpentry, and obtained an ABN when he arrived in Australia. Had he not already done so, the third defendant would have required him to do so. He worked exclusively for the third defendant from the time of his arrival in Australia. The work that he did permitted the third defendant to fulfil his contractual responsibilities to third parties, such as to Mrs Rigby, through Mr Tilden, in the instant case. The plaintiff did not get any jobs on his own account; it was the third defendant which invariably obtained the jobs on which the plaintiff worked. He worked about 40 hours a week and started at 7.00 am and finished at about 3.30 pm. If he worked later, he was not paid for extra time. 135He supplied such of his own tools as were contained in a carpentry bag and a nail bag, both of which could be, and generally were, looped through his belt and carried with him as he performed his duties. On the day of the accident the contents of these bags included a claw hammer, a pen, numerous screws and nails, a 100 millimetre steel hinge, a retractable measuring tape, a retractable Stanley knife and a green carpenter's pencil. The other tools, such a power tools including angle-grinders, drills and skill saws, and equipment, such as a sawhorse and trestles, were supplied by the third defendant. 136The extent to which the third defendant controlled the plaintiff is relevant but not determinative, since the whole of the relationship must be considered: Hollis v Vabu Pty Limited [2001] HCA 44; 207 CLR 21. I find that the third defendant controlled the work that would be done by the plaintiff, when it would be done and where it would be done. He supervised the plaintiff. 137Although the plaintiff did not recall wearing a uniform, I accept the evidence of Mr McWilliams that the plaintiff wore the third defendant's uniform when he was working. The third defendant submitted that I should find that the plaintiff was more likely to have been wearing a T-shirt with a kangaroo or an aboriginal motif than one with the third defendant's crest. I do not consider that the state of the evidence permits me to make this finding. In particular the third defendant was not asked whether he took his T-shirt off and left it in the basement after he had gone there to tend to the plaintiff. Nor was Mr Bielik asked whether any of the T-shirts were his. It is not beyond the bounds of possibility that the plaintiff was wearing both bloodied T-shirts at the time of his fall: the kangaroo T-shirt as an undershirt and the DMW polo shirt over the top. 138I find that, having regard to all of the matters referred to above, the plaintiff was employed by the third defendant. 139However, even had I found that the plaintiff was not, strictly speaking, an employee, the distinction may not be material. The distinguishing feature of the employment relationship is that the employer's duty of care is non-delegable. 140In the instant case, there was no delegation of any duty owed by the third defendant. Apart from Mr McWilliams' temporary absence for a short period on the morning of the accident, he was present on the site with the plaintiff at all times while they were working. At no time did the third defendant arrange for anyone else to supervise the plaintiff. 141Even if I am incorrect in finding that the plaintiff was an employee of the third defendant and he was, as the plaintiff submitted, an independent contractor, the duty owed may well be substantially the same. In Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; 160 CLR 16, Mason J said at 31: "The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines." 142There was a need for the third defendant to give directions to the plaintiff and co-ordinate his work with the plaintiff's own. The third defendant had the ability not only to prescribe a safe system, but also to direct the plaintiff to comply with it. The control that the third defendant had, and exercised, in directing the plaintiff how to do the job was not less if it be found, contrary to my finding above, that the plaintiff is an independent contractor. 143I consider that, irrespective of whether the plaintiff was an employee or independent contractor, the duty owed to him by the third defendant was akin to that which would have been owed had he been an employee, namely a duty to take reasonable care to avoid exposing him to the risk of injury: Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 at [94], per Ipp JA (Mason P and McColl JA agreeing).

The plaintiff's case: that it did not matter why he was in the kitchen 144The plaintiff submitted that it did not matter why the plaintiff was in the kitchen area and, indeed, what he was doing there. However Mr Cavanagh SC, on behalf of the first defendant, made detailed submissions designed to persuade me that the reason the plaintiff was in the kitchen area was because he was undertaking work for the third defendant there and that, accordingly, the third defendant was negligent and liable to the plaintiff. 145Because, as I have found, the third defendant controlled the plaintiff in his carpentry work, there are two possibilities: either the plaintiff was in the kitchen area because of the work he was required to do for the third defendant or he was there for an extraneous reason.

The first defendant's case: the plaintiff was in the kitchen area with the express or implied permission or consent of the third defendant 146The first defendant submitted that I should find that the plaintiff was in the kitchen area at the behest of, or for the benefit of, the third defendant or that the third defendant owed the plaintiff a duty of care to take reasonable steps to ensure that he did not go into the kitchen area. 147The first defendant made the following circumstantial case to establish that the kitchen area had been used as a work site by the plaintiff, and probably the third defendant, with the express or implied permission or consent of the third defendant. It followed that the third defendant was in breach of his duty to take reasonable steps to ensure that the plaintiff did not enter the kitchen area. 148The primary facts that comprise the circumstantial case are: (1)RMC last performed work in the kitchen area on about 5 January 2004. (2)Apart from Mr Bielik, who was working in the garden, the only persons working on the site from the time Mr Rudd left on 6 February 2004 until the accident were the third defendant and the plaintiff. (3)When Mr Rudd left the site on 6 February 2004, there were no walking planks or boards across the joists in the kitchen area and the broom and the shovel were not there. (4)When Mr Rudd left the site on 6 February 2004, there was no blue power cord looped across a joist in the kitchen area. (5)There was a cordon constructed of hazard tape and plywood across the entrance to the kitchen area at 7.30 am on 12 February 2004 which deterred or prevented Mrs Rigby, Mr Hardwick and Mr Bloodworth from entering the kitchen area. (6)The cordon had been removed by the middle of the day, when the first WorkCover inspector arrived and closed the site. (7)On 12 February 2004 there were walking planks and boards across some of the joists in the kitchen area. (8)On 12 February 2004 there was a blue power cord looped across a joist in the kitchen area which was live, in that it had power ready to be used, although the power was not flowing, since no tool was attached to it. (9)Neither the owner nor Mr Tilden played any part in putting the walking planks in the kitchen area or using the blue power cord there. (10)As at 12 February 2004, the walking planks and boards had been recently swept. (11)Each blueboard was 2.4 x 1.2 metres and weighed between 35 and 40 kilograms. (12)There were 3-4 blueboards outside the residence, which needed to be cut into halves or quarters. 149The findings of credibility for which the first defendant contends are: (1)Mr McWilliams' evidence including his evidence that he used red and yellow but not blue power cords ought not be accepted. (2)When Mr McWilliams said in a statement to WorkCover dated 22 March 2004 that the plaintiff carried the blueboards up to the first level, I should infer that the blueboards had not already been cut to size. (3)Mr Rudd's evidence that the walking planks and boards and the broom and shovel that were in the kitchen area at the time of the WorkCover inspection were not there when he left the site on 6 February 2004 ought be accepted. 150The inferences for which the first defendant contends are: (1)The cordon was not removed by any of the ambulance or police officers who attended the scene in answer to the Triple-0 calls or Mrs Rigby, Mt Tilden or Mr Bielik. (2)The cordon was removed either by the plaintiff or the third defendant so as to access the kitchen area to perform carpentry work. 151The first defendant also sought to establish that the ground was wet at the relevant time, which may have inclined the third defendant and the plaintiff to work inside instead of out in the open on ground which could have been muddy. Mr Cavanagh relied on a Daily Rainfall report of the Bureau of Meteorology which showed that in the 24 hours before 9.00 am on 12 February 2004, 21.4 millimetres of rain fell at the Royal Sydney Golf Club at Rose Bay. 152The first defendant said that I should not draw any inference against him for not calling Mr Mori. Although Mr Rudd contracted with RMC, they could not be said to be "in the same camp" for the purposes of a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference. I accept this submission.

The third defendant's credibility 153The first defendant accepted that if I accept the evidence of Mr McWilliams, I cannot find that the circumstantial case that the plaintiff was in the kitchen area with the express or implied permission of the third defendant to have been made out. 154The first defendant submitted for the following several reasons that I should not accept Mr McWilliams as a witness of truth. 155First, the first defendant submitted that Mr McWilliams was prepared to say to WorkCover when he was interviewed on 22 March 2004 when asked what, in his opinion, would have prevented the accident from occurring: "The floor should have been completed with a covering or cordoned off so that people can't enter the area." 156The first defendant submitted that this answer was given when Mr McWilliams well knew that there had been hazard tape and plywood barring the entrance to the kitchen when he was working at the site and that he gave a misleading answer because he wanted to deflect attention from his own responsibility. 157Secondly, the first defendant relied on several answers given by Mr McWilliams in the witness box to the effect that he could not recall matters to which he deposed without qualification in his statement made on 3 March 2012. 158Thirdly, the first defendant was critical of Mr McWilliams' lack of recollection of the way the work had been performed. Mr McWilliams' recollection did not permit him to recall whether he erected trestles on the ground to cut the timber and the blueboards. He said, however, that it was his usual practice to do so. He also said that had he not used trestles, he would have used a sawhorse. He said that he would not have cut the timber or the blueboards on the ground itself. Nor would he have carried the timber or the blueboards inside to cut them. His evidence was that cutting blueboards creates dust and it is always preferable to cut them outside. He was sure that he would have cut the timber outside near where it was stacked. 159The third defendant submitted that it was not open to the first defendant to submit that Mr McWilliams was not telling the truth because it was not sufficiently put to him. 160I substantially accept Mr McWilliams' evidence. I do not consider Mr McWilliams' lack of precise recollection adversely affects his credibility. My impression was that he did not want to overstate what he was able to remember. Although his answer to WorkCover as to how the accident could have been avoided referred to above was anomalous given that he agreed that there was a cordon across the entrance to the kitchen area, I did not form the impression that he was other than forthcoming in describing the cordon in his evidence in chief. Furthermore, his evidence was not particularly self-serving. He did not, for example, recall whether he had had any discussion with the plaintiff about not going into the kitchen area arising from having been with him when they saw the hazard tape. He also did not recall the location of the power board that was used on 11 and 12 February 2004, although it was very much in his interests to say that he used a powerboard that was outside the premises. 161Importantly, I accept his evidence that he did not put the plywood walking plank or sheets in the kitchen area and that neither he, nor the plaintiff to his knowledge, entered the kitchen area prior to his departure on the morning of 12 February 2004. 162I also accept Mr McWilliams' evidence that the reason he asked people he engaged to do carpentry work to have their own ABNs was not in order to prevent their being regarded as his employees.

The third defendant's submissions in response to the first defendant's case 163The third defendant submitted that the fundamental premise of Mr Cavanagh's circumstantial case, that there was no one else working on the site from when Mr Rudd left on 6 February 2004, could not be made out. He pointed to Mr Rudd's diary entry for that day which referred to "scaffold". He submitted that I ought infer that scaffolders use power tools and that since there was scaffolding outside the kitchen window, I could infer that there was at least a possibility that the power cord and the dust created was used by the scaffolders. 164Although I am prepared to accept the submission that scaffolders were on the site on Friday 6 February 2004, I do not consider that I ought accept the submission that they were using power tools since it was not put to Mr Rudd and it may well be that he would have had an answer to it (Browne v Dunn (1893) 6 R (HL) 67). Furthermore I would not infer, in the absence of evidence, that scaffolders use power tools. 165The third defendant relied on Mr Rudd's evidence that there were bricklayers on site on 6 February 2004 and that they were using power. 166The third defendant submitted that I ought not infer from the WorkCover inspectors report that the boards in the kitchen area had been swept within any particular period. Rather, all I could infer was that there had not been any dusty work performed in that area since the boards had last been swept. 167The third defendant also submitted that the appearance of the kitchen area, the walking planks, the plywood boards and the blue power cord, were consistent with Mr Mori leaving and expecting to be able to return shortly to resume work on the kitchen floor. 168The third defendant submitted that I ought not accept Mr Rudd's evidence that when he left the site on 6 February 2004 neither the boards, the walking plank, the power cord, the broom nor the shovel was in the kitchen area. The third defendant relied on Mr Rudd's admission that the first time he had been asked to recall the appearance of the kitchen area was more than eight years after the accident, on 28 March 2012, the morning he gave oral evidence in these proceedings. The third defendant submitted that the appearance of the kitchen area was, at that time, a matter of no consequence to Mr Rudd and therefore it is highly unlikely that he would have taken any particular note of it. The third defendant relied on the circumstances that Mr Rudd spent a total of one and a half hours on the job that day, he was about to go away on a holiday to Canada and the work that needed to be done on the site while he was away was to be done outside and did not involve the kitchen area at all. At the conclusion of the cross-examination by the third defendant, Mr Rudd adhered to his evidence, about these items not being in the kitchen area and said: "I'm pretty sure they weren't there." 169As to the rainfall records, the third defendant submitted that there was no evidence as to the distance between the rain collector at Rose Bay and the site. Furthermore it submitted that rain in Sydney is notoriously localised. He drew my attention to the photographs taken by the WorkCover inspector on 12 February 2004 which depicted a bright, sunny day with no obvious dampness evidence on the ground. The third defendant submitted that I should accept Mr McWilliams' evidence that it was a "beautiful day". 170The third defendant also relied on Mr McWilliams' evidence that one would not, if one had the choice, cut blueboard inside since it creates toxic and unpleasant dust. Furthermore he submitted that it made no sense to suppose that tradesmen would carry blueboard sheets which weighed 35-40 kilograms inside to cut them into smaller (and therefore lighter) pieces. The third defendant submitted that I should accept Mr McWilliams' evidence that he did not go into the kitchen area, that the plaintiff, to his knowledge, did not go in until the accident occurred (when Mr McWilliams was away) and that the kitchen area was neither a convenient place for the work to be done or a convenient thoroughfare. 171The third defendant placed emphasis on Mr Rudd's evidence that there was an alternative temporary power source in the backyard on the Wentworth Avenue side, which was on the same level as the kitchen area. Although Mr McWilliams could not recall what power source he used, or whether there was a power source available in the backyard near where the timber and the blueboards were stored, he agreed that a power source outside the kitchen window would have been the closest and therefore the most convenient. 172The third defendant submitted that if there was any inference to be drawn against any party by reason of Mr Mori's not having been called to give evidence I should draw the inference against the first defendant.

Findings on the why the plaintiff was in the kitchen area 173I am not satisfied on the balance of probabilities of any of the following matters: (1) That the third defendant removed the plywood or hazard tape from the entrance to the kitchen area; (2) That the third defendant directed the plaintiff to use the power source in the basement under the kitchen area, or acquiesced in his so doing; (3) That the blue power cord was the third defendant's, as distinct from RMC's; (4) That there was any impediment to the plaintiff's using the power source that was outside the residence, near where the blueboard and timber was stacked; (5) That the plaintiff actually used the blue power cord which was powered from the basement or went into the kitchen area to investigate an alternative power source; (6) When the boards in the kitchen area had been swept, and by whom; (7) When the noggin fell to the basement and whether this was the sound of timber falling that Mr Bielik recalled; (8) That there was any reason, associated with the construction of the chimney, being the work which he was to perform for the third defendant, for the plaintiff's being in the kitchen area; (9) When and by whom the plywood barrier and hazard tape were removed. 174The removal of the hazard tape and the plywood from the opening to the kitchen area is a very significant integer in the first defendant's circumstantial case. He submitted that it "defies belief" that such items could have been removed by ambulance or police. I do not accept this submission. When the police and ambulance officers attended the site, I infer that the most significant matter was the plaintiff's life and the concern that he might die if not brought to hospital quickly. The WorkCover report recorded: "APPARENTLY IP [injured person] IS TRAPPED." 175Mr Bielik's evidence of the post-accident scene was: "Within a few minutes the whole mayhem broke loose. There were five or six police cars, construction rescue, two ambulances..." 176Although there is no suggestion that the plaintiff was actually evacuated through the ground floor, it may well have been something that was considered, if not by police or ambulance officers, then possibly by the construction rescue workers to whom Mr Bielik refers. Although Mr Bielik regarded the entranceway from the garden to the basement as being "pretty open", this would not necessarily have been apparent to persons who did not know the site as well as he did and it may not have been "pretty open" to a number of people carrying a stretcher. Although I have reservations about the reliability of Mr Bielik's evidence having regard to the trauma he suffered, I am inclined to accept his estimate as broadly accurate that between six and eight people were required to carry the plaintiff out to the ambulance because he was a "big guy". It appears that the plaintiff had also had a seizure and needed to be restrained, which may also account for the number of people required to move him. 177I am not satisfied that the possibility that one of the persons who came to the site to help rescue the plaintiff removed the plywood and the hazard tape has been excluded on the balance of probabilities. 178Although I am prepared to infer that, as a matter of general practice, police and ambulance officers do not interfere with a site, particularly when they have grounds to expect, as occurred here, that WorkCover will investigate it, I do not consider it to be fanciful or far-fetched that one such officer, rescue worker or indeed a well-meaning neighbour or passer-by removed the tape and the board in order to see if there was a better means of access than through the cellar which was the path taken by Mr Bielik to get to the plaintiff, or through the ground floor and down the stairs to the dining room, which was the route taken by Mr McWilliams, both of whom were familiar with the site. Senior Inspector Macready gave evidence that neither he nor Senior Inspector Waterhouse made any enquiries of the police or other emergency services whether they had altered the premises. 179Senior Inspector Macready said that the detailed inspection was restricted to the kitchen area and the laundry area. If the hazard tape and plywood had been removed or cast aside, it would be understandable if the WorkCover inspectors either did not notice it (because it was not in the area the subject of their detailed inspection) or did not link its presence on the site with the accident and their investigation and made no mention of it in their report. 180Although it is not fatal to the first defendant's circumstantial case against the third defendant, I am influenced by the fact that there were no blueboards in the kitchen area or any tools that the plaintiff might have been using had he gone into that area to work. Indeed there is no sign in the kitchen area of what the plaintiff was doing while he was there. The positions of the shovel and the broom as depicted in the photographs are inconsistent with his having used them immediately prior to his fall, or indeed at any time. I consider that it is more probable that the nail bag and carpenter's bag ended up on the floor of the basement because the ambulance officers removed the plaintiff's clothing and belt in order to treat him, rather than because they fell and he tried to retrieve them, or because he had removed them both to perform a particular task without the encumbrance that they imposed. 181The fact that there is no sign of activity in the kitchen area which unequivocally implicates the third defendant is all the more important since Mr McWilliams and the plaintiff had already done a full day's work on the site before the day of the accident. They had cut timber and done most of the formwork for the chimney on that first day. That there was no sign of their being in the kitchen corroborates Mr Rudd's evidence that there was a power source outside near where the material was stacked which they could have used, and Mr McWilliams' evidence that they did use that power source. 182I accept the third defendants's submission that that there was, according to Mr Rudd's evidence an available power source outside near where the blueboards and timber had been stacked and that Mr McWilliams and the plaintiff used it and did not have to have recourse to the power source in the basement below the kitchen area. 183I accept that Mr McWilliams used either trestles or a sawhorse to cut the timber and that this occurred outside. I am not satisfied that they were prevented from performing these tasks outside by inclement weather. 184As I have said above, I accept the first defendant's submissions that it is not appropriate to draw any Jones v Dunkel inference against Mr Rudd by reason of the fact that Mr Mori was not called. Mr Rudd's evidence was that each trade would have their own power cords and bring them to the site. However, Mr Mori may have been able to shed light on the presence of the blue power cord, the broom and the shovel in the kitchen area. In particular he might have been able to give evidence as to whether the blue power cord was one that he used at that time. His absence does not lead to an inference either way but there are, by reason of his absence, matters about which I have no evidence. 185Since Mr Mori was not called, I am left with the evidence of Mr Rudd that these items were not in the kitchen area on 6 February 2004. Although I do not consider Mr Rudd to be untruthful, I do not consider his evidence to be reliable in this respect. The kitchen area was to be constructed, at least in so far as its floor was concerned, by RMC. The time at which RMC was to return to the site was unknown and depended on a decision about the location of the air-conditioning. Mr Rudd did not recall who he asked to put up a plywood bar and hazard tape across the entrance to the kitchen premises, but he did not suggest that he did either of these things himself. Had he done them himself, his evidence as to the state of the kitchen area on 6 February 2004 might have been more reliable since he would have had the opportunity to make such observations on the day in a more consistent fashion. I do not accept his evidence as to the state of the kitchen area on 6 February 2004. 186Mr Rudd's evidence as to the state of the kitchen area on his last day on the site before his holiday is crucial to the first defendant's circumstantial case against the third defendant. Because I do not accept his evidence and because I am not satisfied of the matters listed above, I am unable to accept the first defendant's circumstantial case. 187It follows that the plaintiff was in the kitchen for a reason which has not been shown to be associated with his employment, aside from the fact that but for his employment he would not have been on the site at all. I am not satisfied that the third defendant was in any way implicated in the removal of the plywood sign and the hazard tape. In my view there is no proper basis for an inference that these were removed prior to the plaintiff's decision to go into the kitchen. 188There was no reason for the plaintiff to be in the kitchen area at all to perform his work. There was a power source outside which had been, and could be, used to cut the timber and the blueboard. There were stairs which could be used to carry the timber and the blueboard to the first floor of the building when the ground floor construction had been completed. 189The difficulty in formulating any breach of a duty of care that the third defendant owed to the plaintiff is that I cannot, for reasons already given, determine why the plaintiff was in the kitchen area or what caused him to fall. 190The plaintiff includes in his particulars res ipsa loquitur. In my view, the instant case is not amenable to that doctrine since what occurred and why it occurred is a matter of speculation: Shellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121. Some hypotheses which might be envisaged would involve negligence (such as had the third defendant directed the plaintiff to enter the kitchen area to gain access to the power board in the basement below), but others would not (if the plaintiff chose on his own account to disregard the hazard tape and barricade and take advantage of Mr McWilliams' absence to enter the kitchen area to inspect the first floor because he was curious). 191Although the duties on employers with respect to their employees have been described as onerous and exacting, the relevant duty was to take reasonable care to ensure that the plaintiff had a safe system of work. 192The Act applies and therefore I need to determine, in accordance with s 5B, what a person in the third defendant's position would have done to take precautions against the relevant risk of harm, being the possibility that the plaintiff would enter the working area. Because the first defendant had caused hazard tape and plywood to be installed across the kitchen entrance, the third defendant did not, in my view, need to do any more as part of ensuring a safe system of work, in circumstances where, as I have found, the plaintiff had no need to go into the kitchen area. Whether the third defendant expressly prohibited him from going into the kitchen area is not to the point, since in my view, the sign was adequate to indicate that entry was forbidden. 193The plaintiff has not discharged his onus of proving that the third defendant was negligent, or that any negligent act caused him to fall. 194For the foregoing reasons there must be judgment for the third defendant on the plaintiff's claim.

Contributory negligence 195The plaintiff submitted that there should be no deduction for contributory negligence. The first and third defendants submitted that there needed to be a significant discount for contributory negligence if any of the defendants were liable. It is well established that in employment relationships, there is usually a lesser allowance for contributory negligence because of the relationship: see Thompson v Woolworth's (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234 at 247-248; and Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; 160 CLR 301 at 310. 196Because of the significant uncertainties surrounding the cause and mechanics of the plaintiff's fall it is not possible to make a realistic assessment of the extent to which, if at all, the plaintiff contributed to his own injuries. All that can be said with confidence is that a reasonable person in the plaintiff's position would not have gone into the kitchen area. 197Further, in light of my findings on liability, it is unnecessary to determine an appropriate deduction for contributory negligence.

Cross-claims 198In light of my findings it is unnecessary to determine the cross-claims, which are accordingly each dismissed.

Orders 199The orders are: (1)Judgment for the defendants on the plaintiff's claim. (2)Dismiss all cross-claims. (3)Order the plaintiff to pay the defendants' costs of the proceedings, including of the cross-claims.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2012

Occupational Health and Safety Act 2000(NSW)

Workers Compensation Act 1998(NSW)

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