Moore & Anor v Scolaro's Concrete Constructions Pty Ltd

2. On 25th May 2001 Eames, J. concluded a long trial arising out of the crippling injuries suffered by Cameron Toomey when he fell over a balustrade in the early hours of Saturday 2nd March 1996 and landed on his head on concrete stairs below. His Honour delivered his principal reasons for judgment on 17th August 2001[1]. Subsequent reasons for judgment dealt with other discrete aspects of the case. One of them led to the unsuccessful appeal to this Court in Manren Ltd. v. Royal & Sun Alliance Insurance Australia Ltd.[2] As I explained in my judgment in that case, Mr Toomey, whom I shall call "the plaintiff", sued ten defendants in the Supreme Court but his claim against the fifth defendant was compromised. Manren Ltd. is the present name of the tenth defendant, formerly called Hudson Conway Management Ltd.

5. The facts are carefully set out in the principal reasons delivered on 17th August 2001 and the non-compliance of the balustrade with the Building Code is explained. I gratefully adopt that exposition, which I cannot improve and do not repeat.[3]

8. On 29th August 2001 judgment was entered for the plaintiff against the first to fourth and sixth to tenth defendants in the sum of $2,248,259 together with damages in the nature of interest in the further sum of $109,812. That followed a reduction of 30% on account of the plaintiff's contributory negligence. One of the issues that remained for determination was contribution between the defendants. The judge heard further argument on that issue and made further orders on 11th December 2001 accompanied by additional reasons.[4]

"5. (a) On the contribution proceedings between the first, second, third, fourth, sixth, seventh, eight, ninth and tenth defendants, the apportionment pursuant to s.24 Wrongs Act 1958 is as follows: (i) the first defendant is liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (ii) the second defendant and the sixth defendant are jointly and severally liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (iii) the third defendant is liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (iv) the fourth defendant is liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (v) the seventh defendant and the tenth defendant are jointly and severally liable to contribute 10% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 10% to the plaintiff's taxed costs as ordered; (vi) the eighth defendant is liable to contribute 25% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 25% to the plaintiff's taxed costs as ordered; (vii) the ninth defendant is liable to contribute 25% to the plaintiff's damages ordered by me on 29 August 2001 herein and contribute 25% to the plaintiff's taxed costs as ordered. If any of the first, second, third, fourth, sixth, seventh, eighth, ninth and tenth defendants pays more than the percentage it has been ordered to contribute, such defendant may recover from any other defendant to the extent of such other defendant's liability to contribute. (b) As to the 10% contribution of the second defendant and the sixth defendant referred to in paragraph 5(a)(ii), the second defendant is liable to contribute 41.7% and the sixth defendant is liable to contribute 58.3%. If either of the second or sixth defendant pays more than the percentage it has been ordered to contribute, under this sub-paragraph, such defendant may recover from the other defendant to the extent of such other defendant's liability to contribute. (c) As to the 10% contribution of the seventh and tenth defendants referred to in paragraph 5(a)(v), the seventh defendant and the tenth defendant are each liable to contribute 50%. If either of the seventh or tenth defendant pays more than the percentage it has been ordered to contribute, under this sub-paragraph, such defendant may recover from the other defendant to the extent of such other defendant's liability to contribute. 6. That the first, second and fourth defendants are each severally liable to indemnify the seventh defendant to the extent of 20% each of the seventh defendant's 5% contribution."

15. The present appellants are the eighth defendant Gregory Moore and the ninth defendant David Spreadborough. They each brought separate appeals naming the other defendants as respondents and they each became the seventh respondent in each other's appeals. For that reason and because the plaintiff's claim against the fifth defendant was compromised, I shall refer to the individual respondents not as such but as the first, second, third, fourth, sixth, seventh and tenth defendants. Collectively they were referred to below as "the building defendants", just as the appellants were referred to as "the wrestling defendants".

18. The first defendant is the builder, Scolaro's Concrete Constructions Pty. Ltd. (in liquidation). It went into liquidation in the course of the proceeding below. Eames, J. made an order pursuant to s.471B of the Corporations Law enabling the proceeding to continue, but the company took no further part in it and has taken no part in the appeals. An affidavit sworn by the liquidator, but filed on behalf of the third defendant, discloses that the liquidator has been served with all the papers. A letter from the liquidator to the Registrar does not expressly state, but clearly implies, that the first defendant will abide the decision of the Court. Orders should be made nunc pro tunc pursuant to s.471B of the Corporations Act 2001 to regularize the appeals if that is necessary.[5]

21. The second defendant is the surveyor, Bigridge Pty. Ltd., and the sixth defendant is its director and employee, Andrew Young. The third defendant is the building inspector, Andrew Smith. The fourth defendant is the architect, Neil Evans and Noel McKernan Pty. Ltd. The seventh defendant is Davidson Hughes Estate Pty. Ltd., the owner and developer of the building during its construction, and the tenth defendant is Manren Ltd., the seventh defendant's project manager.

24. Section 24(2) of the Wrongs Act 1958 provides that the amount of the contribution recoverable from persons in the position of the defendants "shall be such as may be found by the ... court ... to be just and equitable having regard to the extent of that person's responsibility for the damage". The approach to be adopted was explained by the High Court in Podrebersek v. Australian Iron & Steel Pty.Ltd.[6] Gibbs, C.J., Mason, Wilson, Brennan and Deane, JJ. said[7]:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 C.L.R. 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; [1953] A.C. 663 at p 682; Smith v. McIntyre [1958] Tas.S.R. 36, at 42-49 and Broadhurst v. Millman [1976] VicRp 15; [1976] V.R. 208 at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

28. It has often been emphasized that the task of apportionment is similar to the exercise of a broad discretion. Two paragraphs earlier, their Honours said[8]:

"A finding on a question of apportionment is a finding upon a `question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v. Macgregor (Owners) [1943] A.C. 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v. Lowenstern [1958] V.R. 594."[9]

32. Mr Curtain argued that the judge had fallen into specific error in three respects and that, in any event, the apportionment of 25% of the defendants' liability to each of the appellants was manifestly excessive. The first of the suggested errors was his Honour's grouping of the wrestling defendants on the one hand and the building defendants on the other. The second error was that, in counsel's submission, in his apportionment of liability to the appellants, the judge had concentrated on causation ("the relative importance of the acts of the parties in causing the damage") to the exclusion of culpability ("the degree of departure from the standard of care of the reasonable man"). The third error was that, in counsel's submission, his Honour had reasoned via a non sequitur even in relation to causation.

35. Those arguments find their genesis in [448]-[456] of the principal reasons given on 17th August 2001. The judge had referred to s.24(2) and directed himself by reference to Podrebersek's case, but he had concluded as follows:

"455 Notwithstanding the able arguments addressed to me on behalf of Moore and Spreadborough to the effect that the roles of their clients should be regarded as being less responsible for the plaintiff's injury than the combined roles of the building defendants, I am firmly of a different opinion. The wrestling and the inadequate height of the balustrade can not be distinguished as to their contribution; one factor without the other would have meant that the injury was not caused to the plaintiff. 456 In my opinion, therefore, the conduct of the two defendants Moore and Spreadborough, together, on the one hand, and the omissions and acts of negligence of the building defendants, on the other hand, were equally the cause of the plaintiff's injury. In other words, Moore and Spreadborough were together 50% responsible for his injuries, and the builder defendants were also 50% responsible as between themselves. For the purpose of this discussion, lest there be any doubt as to this, I ignore the question of the plaintiff's own contributory negligence."

39. In my view, there is no bar to grouping defendants for the purposes of assessing contribution. That may be a convenient tool in discharging the task imposed by s.24(2). An example given in argument was a case of injuries sustained as a result both of a motor car accident and of subsequent medical attention. It may well be convenient to group the motoring defendants and the health care professionals in apportioning responsibility. I am reluctant to accept that, in the present case, it was not open to his Honour to group the wrestling defendants and the building defendants.

42. The more difficult question is whether [455]-[456] reveal either or both of the second and third errors assigned by Mr Curtain. He concentrated on the closing words of the first paragraph and the opening words of the second. The judge had said that one factor without the other would have meant that the injury was not caused to the plaintiff and that therefore the conduct of the wrestling defendants and the omissions and acts of negligence of the building defendants were equally the cause of the plaintiff's injury. It was submitted that that showed that his Honour had concentrated on causation to the exclusion of culpability. Moreover, it was a non sequitur even to say that, just because an accident would not have happened but for A and would not have happened but for B, A and B were equally causative.

45. Counsel for the respondents and, in particular, counsel for the sixth and seventh defendants, argued that that was to read the impugned paragraphs out of context. In the first place, they were to be read in the light of his Honour's correct exposition of the law in the immediately preceding part of the judgment, which had concluded with an acknowledgment of both the factors that were relevant to an assessment of "responsibility", the word used in s.24(2). Secondly, even if one concentrated on [455]-[456], his Honour was there speaking of responsibility and not just causation. The word "therefore" picked up the whole of the preceding paragraph and not just the concluding words. If there were a doubt, the doubt was resolved by the second-last sentence of [456], in which his Honour had said that in other words the wrestling defendants were together 50% responsible for the plaintiff's injuries and the building defendants were also 50% responsible as between themselves. That is only a summary. It does not do full justice to the intellectual resources and forensic skill that were lavished on the offending paragraphs.

48. I accept Mr Curtain's submission that [455]-[456] reveal specific error, but not because of any literal or pedantic construction of the words the judge used. Notwithstanding the concluding words of [455], I do not believe that his Honour fell into the error of reasoning that, because an accident would not have happened but for A and would not have happened but for B, A and B must be equally causative in law. But I do think that his division equally between the wrestling defendants and the building defendants was driven by causation. As Dodds-Streeton, A.J.A. pointed out in the course of the argument, the reasoning in the impugned paragraphs had the effect of hermetically sealing the two groups, so much so that, if there had been three wrestling defendants, they would each have been held 16.7% responsible for the plaintiff's injuries.

51. Another factor that has influenced me is the order that I shall ultimately propose. In my respectful opinion, each of the appellants should contribute not 25% but 15%. That is such a great reduction that there is an analogy with manifest excess in sentencing. One always hesitates to say that a judge has imposed a manifestly excessive sentence but it is easier to do so, and to do so with deference, if one can see the precise point in his or her reasoning where the judge fell into error. That precise point must, in the present case, be [455]-[456], for the balance of the principal reasons given on 17th August 2001 and the additional reasons given on 11th December 2001 were rightly acknowledged on all sides to be a brilliant judgment.

54. I turn to explain why I consider that the appellants' contributions should be reduced, bearing in mind that a comparison between defendants involves matters of relative emphasis, proportion and value judgment upon which reasonable minds may differ and that it does not readily admit of articulation.[10] That is just as true on appeal as it is at first instance. It is a reason for restraint on appellate intervention, but also a reason not to be overambitious in explaining what is, again by analogy with sentencing, an instinctive synthesis of all the relevant factors.

57. Counsel for some of the respondents emphasized the consumption of alcohol and noisy behaviour to which the appellants had been party. Counsel for one of the respondents said that they had "misconducted themselves over a lengthy period of time at various locations and in close proximity to numerous people who were intoxicated". Counsel for one of the other respondents referred to their "deliberate dangerous and drunken" behaviour. Such puritanical propositions and alliterative assertions were put into perspective by the judge. His Honour said that "to these fit, happy, young men, their conduct was merely good-natured fun and nothing that could be described as unruly, excessive or unreasonable" but that their conduct, to an objective bystander, was more unruly than they imagined. [11]

60. As Mr McArthur submitted, a bucks' night is no excuse for negligence. He asked rhetorically what role the bucks' night would have played had there been a subsequent motor car accident. So much may be accepted. It is easy to be distracted either by sympathy for the appellants or the indignation that one might have felt had one been a resident of the neighbouring apartments. The real strength of the respondents' case, and the reason why I would not reduce the appellants' shares of responsibility below 15%, is that the appellants' conduct was objectively dangerous. As Mr Gillies said, it took place on a stairway, at night, with people in the vicinity some of whom, including the plaintiff, were at greater risk because they were intoxicated.[12]

63. Mr Curtain accepted the finding of negligence against his clients, but emphasized that the bump that precipitated the plaintiff's fall was but slight and that the building defendants had professional and like responsibilities that the appellants did not share. Unlike the appellants, they knew, or should have known, that the balustrade was non-compliant with the Building Code. It was their responsibility to take precautions for the safety of the public. Instead the apartments were, in counsel's words, a "permanent impending disaster, a location at which sooner or later someone would be seriously injured." He agreed, however, that the issue for the Court is the building defendants' responsibility for the plaintiff's injuries, not their responsibility for putting the public as such at risk.

66. I accept that the appellants were engaged in a dangerous activity, given its location and circumstances, but I cannot believe that their combined responsibility was five times as great as each of the builder, the surveyor, the building inspector, the architect, the developer and the project manager, who were the persons to whom all concerned were primarily entitled to look for the safety of the premises.[13] I am persuaded that the appellants' combined responsibility was much less than that of the building defendants. Mainly because of what I have called the latter's professional and like responsibilities, I would reduce the appellants' shares to 15% each The question then arises how the remaining 70% should be allocated.

69. It is convenient at this point to refer to the findings his Honour made with respect to the individual building defendants. Putting to one side some of the submissions concerning the seventh and tenth defendants, they were summarized in the third defendant's written submissions below. The judge said that that was a useful and generally accurate summation.[14] Bearing in mind that these reasons are intended to be read in conjunction with the reasons given on 17th August and 11th December 2001, I have set out in the Schedule, in edited form, the relevant part of those submissions.

72. Mr Curtain argued that the seventh and tenth defendants should bear the lion's share of responsibility. In practical terms that would mean that they would be jointly and severally responsible not for 10% as at present but for 30%. The principal basis for that contention was that the tenth defendant, through its site manager, James, had actual knowledge of the deficiency in the height of the balustrade and deliberately chose not to correct it. It is sufficient to say that, in my opinion, James's dereliction of duty was put in perspective by the judge in his additional reasons.[15] His Honour concluded that the seventh and tenth defendants were no more liable than the other building defendants.

75. In most cases, a material flaw in the judge's reasoning would require a complete reassessment of contribution between defendants, but I do not think that that is so in the present case. I have already referred to the acknowledged quality of the judgment below. Like any judge presiding at a long trial, his Honour had advantages that we cannot share. Those advantages are not limited to his assessment of the witnesses who gave evidence before him. They extend to a grasp of the case as a whole, acquired over 57 hearing days and supplemented, as Mr Blanden pointed out, by two views of the premises, video and in-court demonstrations and a scale model of the stairway, the latter being superior to the photographs in the appeal book.

78. I differ from his Honour on one point, and one point only. In my opinion, in conformity with the findings summarized in the Schedule and the judge's analysis of the responsibility inter se of the building defendants[16], each of their 10% shares should be increased to 14%. I do not accept Mr Settle's submission that, if his Honour had apportioned less responsibility to the appellants, that may have led him to differentiate between the respondents. Although some counsel urged us to take a different course, I consider that it is simply unnecessary to remit the matter to the Trial Division[17].

81. Accordingly, following the orders proposed in [6] above, I propose orders in each appeal in accordance with the following minutes:

2. Vary paragraph 5 of the judgment given on 11th December 2001 by substituting -

(a) "14%" for "10%" in each of sub-paragraphs (a)(i) to (a)(v), (b) and (c); and

(b) "15%" for "25%" in each of sub-paragraphs (a)(vi) and (a)(vii).

3. Vary paragraph 6 of the said judgment by substituting "7%" for "5%".

The findings in relation to this defendant are that (1) it should not have given priority to elevation 4 over the detail in plan 18B[18]; (2) it should have requested further information from the architect in relation to the drawings[19]; (3) it had ample opportunity to raise any uncertainty or ambiguity in the plans at site meetings. Only after the work had been substantially done did Scolaro learn of the code stipulation of 1000mm and advise James of Hudson Conway Management Limited ("HCML") of that fact[20]; (4) nonetheless Scolaro clearly built the balustrade at a height which did not comply with the code and in that respect was negligent[21]; (5) on the positive side of the ledger Scolaro did advise HCML of the discrepancy in heights with respect to the code requirement and suggest a solution.

The judgment indicates (1) through the provision of earlier plans omitting relevant details it was aware of the fact that balustrade heights needed to be checked when completed plans as to the project arrived[22]; (2) Thomas took no step to ensure that its agent Young was careful in his later examination of the plan[23]; (3) the failure of Young to detect and have corrected the defects in plan 18B was negligent conduct for which Bigridge was vicariously liable[24]; (4) the statutory immunity was not available to Young and Bigridge because Young did not act in good faith in relying on the certificate of final inspection[25]; (5) the primary responsibility for inspection remained with the surveyor. The statutory immunity applied only to the individual who is discharging functions under the Act[26]; (6) the conduct of Thomas was relevant to the question of good faith because he engaged Smith and his attitude was relevant to Young's attitude to Smith[27]; (7) the certificate presented by Smith did not comply with the regulations and the immunity provisions did not apply[28]; (8) a feature of Thomas' evidence was that he was acutely sensitive and appreciative as to his relationship with Hudson Conway[29]; (9) it was a deliberate decision on the part of Young not to oversee what was happening (with Smith) lest that interfere with or complicate the total immunity given by the Act[30]; (10) it is probable that Young did not bother to check the documentation Smith provided with the Form 14 and doubtful that he gave more than glancing attention to the Form 14 itself[31], Young adopted a "hands off" approach towards his own and Bigridge's statutory and contractual obligations[32], he displayed "blind disinterest"[33]; (11) Bigridge had a contractual obligation to HCML to inspect[34]; (12) Bigridge owed a duty to the plaintiff either to inspect the balustrade or to ensure it was properly inspected[35]. The surveyor is permitted to delegate only the act of inspection not the duty to inspect[36]. This was an instance of a non-delegable duty of care. No steps were taken by Young to ensure Smith was exercising the appropriate care in his inspections[37]; (13) duty imposed on young was equally imposed on Bigridge[38]. Bigridge was in breach of its duty with respect to onsite activities. It was obliged to check that reasonable care and skill was being employed by Smith. No step was taken by Young to discharge the non-delegable duty to check the work being done by Smith[39]; (14) Young should have picked up the defects on the plan and should not have granted an occupancy permit[40]; (15) Young had a continuing role and duty with respect to site inspections which was not discharged merely by appointing Smith. He failed to discharge that duty[41]; (16) Young did not bring the requisite skill and attention to the job of examining the plans and was negligent as a surveyor[42].

The judgment reveals (1) Smith was a person with an unusual personality[43]; (2) Smith was not familiar with the new forms introduced by the 1994 regulations. He sought advice from Thomas as to how he should complete the forms and in what detail[44]; (3) Thomas regarded him as a person whose approach was that of facilitator not inhibitor of building projects[45]; (4) he was paid an absurdly low monthly fee[46]; (5) to him the certified plans were "the Bible" and he saw his job as ensuring work complied with those plans[47]; (6) he regarded himself as working both for Thomas and Young[48]; (7) industry expectation was that the inspector should actually measure the height of the balustrade in order to certify compliance. A reasonable inspector would advise the surveyor if he found a difference. A reasonable inspector would not issue a Form 14 Certificate without any uncertainty being resolved by the surveyor[49]; (8) he was slow to cause difficulties on a project but would certainly do so if he thought safety or health were at risk. Either he did not observe the rail height at less than 1000mm or else he did not think it a safety issue[50]. He was immensely proud of his work[51]; (9) at the very least Smith had an obligation to ensure that the balustrade complied with the height shown on the plan. It should have been measured from the finished surface[52]; (10) Smith was clearly negligent[53].

(1) Plan 18B was not only not compliant with the Code but offended proper principles in design by containing inconsistent dimensions and ambiguities[54]. The draftsperson of Plan 18B did not make it clear beyond doubt that the detail applied to internal and external areas and whether the surfaces were tiled or carpeted[55]; (2) if a plan is drawn with ambiguities it can mislead the reader and did so in this case[56].

(1) HCML through James had actual knowledge of the deficiency of the height of the balustrade and chose not to correct it[57]; (2) Davidson Hughes Estate Pty. Ltd. ("DHE") through HCML were in a position of control by virtue of their contract with Scolaro's so as to ensure any deficiency was remedied[58]; DHE as owner/occupier of the building when the dangerous defect arose failed through its agent to exercise reasonable care to remove the defect and make the premises safe[59]; (4) having regard to the role played by James for HCML during the project, his decision not to correct the balustrade height was within the scope of his authority[60]; (5) DHE is liable for the inaction of HCML through James in addressing the danger posed by the low balustrade[61]; (6) DHE breached a statutory duty of care it owed under clause D2.16[62]; (7) HCML must have known that Scolaro and his sub-contractors were performing work which was substandard in many respects. The fact that external balustrades were built below the code height might have alerted HCML to the need to have internal balustrades checked. HCML chose not to require an architect's inspection. HCML had both expertise and considerable influence on site[63]. DHE was not an average owner, HCML had ample economic and practical influence on site to determine the manner of performance by the builder and subcontractors[64]; (8) HCML had been put on notice of the likely problems with the balustrade not only by virtue generally of the poor quality of the work of Scolaro and its subcontractors but more specifically by virtue of the knowledge that external balustrades were built below the height required by the plan[65]; (9) the liability of DHE arises by virtue of the breach of its statutory duty and also by virtue of its actual knowledge (through James and HCML) of the danger posed by the balustrade and the inaction of HCML to correct the defect. The liability of HCML arises independent of its role as agent by virtue of its own breach of duty of care arising by virtue of James' knowledge and inaction as to the balustrade[66].

105. I agree with Callaway, J.A. that, for the reasons he has stated, the appeals should be allowed and the judgment below varied as his Honour proposes.

109. In these appeals I have had the opportunity to read the reasons for judgment of Callaway, J.A. I agree with Callaway, J.A. that the appeals should be allowed, and with the other orders proposed by his Honour, for the reasons he has stated.

[1] Toomey v. Scolaro's Concrete Constructions Pty. Ltd. [2001] VSC 279 ("the principal reasons").

[2] [2003] VSCA 59.

[3] Cf. Tenth Dancote Pty. Ltd. v. Pyramid Building Society (unreported, Court of Appeal, 7th May 1997) in the second paragraph of the President's reasons, the first paragraph of my reasons and the first paragraph of the reasons of Hedigan, A.J.A.

[4] Toomey v. Scolaro's Concrete Constructions Pty. Ltd. (No. 3) [2001] VSC 477 ("the additional reasons").

[5] See Skinner v. Jeogla Pty. Ltd. [2001] NSWCA 15, distinguishing Humber & Co. v. John Griffiths Cycle Co. (1901) 85 L.T. 141 and BPM Pty. Ltd. v. HPM Pty. Ltd. (1996) 14 A.C.L.C. 857.

[6] [1985] HCA 34; (1985) 59 A.L.J.R. 492.

[9] See also Wynbergen v. Hoyts Coroporation Pty. Ltd. [1997] HCA 52; (1997) 72 A.L.J.R. 65; Liftronic Pty. Ltd. v. Unver (2001) 75 A.L.J.R. 867 and Esso Australia Ltd. v. Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 V.R. 246.

[10] Esso Australia Ltd. v. Victorian WorkCover Authority per Winneke, P. at 253 [21]. See also Fleming, The Law of Torts (9th ed. 1998) at 298.

[11] Principal reasons at [80]-[81].

[12] Compare the principal reasons at [421]-[422].

[13] I reject the argument, advanced by counsel for the tenth defendant, that the appellants' responsibility was all the greater because, if the balustrade had been built before the Building Code was amended in 1984, it would have been compliant and the appellants would have been solely responsible. In the first place, we are concerned with the events that actually happened and, in the second place, one might as well argue that only the building defendants would have been liable if the plaintiff had leaned over the balustrade and fallen without negligence on the part of the appellants.

[15] Especially at [42]-[44]. As to "the directing mind and will of the corporation", referred to at [44], see Director of Public Prosecutions Reference No. 1 of 1996 [1998] 3 V.R. 352 at 354-355.

[16] Additional reasons at [38]-[51].

[17] One suggestion was that arrangements could be made for Eames, J.A. to sit in the Trial Division for that purpose. Quite apart from whether it would be fair to ask his Honour to do so, nothing would be gained by that course if the other members of the Court share my view that his assessment should be accepted in all but one respect.

[46] Principal reasons at [282] and [326].