Reasons for judgment
3 After examining the evidence at length, Judge Delaney held that the plaintiff was not Ultimate's employee and that Ultimate owed no duty of care to him. Further, his Honour held that any obligation to comply with reg 73 "fell on the plaintiff himself because he was the one carrying out the work"; HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422.
4 The trial Judge said this about the accident:
"6. …[The plaintiff] said that on 6 September 1999 he was sent to perform plastering work at 40 Holt Street, Taren Point, a two-storey home. The plaintiff had been working on-site for a short time before he was injured. The work he was performing was detailed cornice work. On the day of the accident he had work to do on the first floor of the house. He said that Mr Kahunen [Ellis Kahunen described as the owner of Ultimate] would come down every few days and 'looked around to see that everything was going all right and brought some more material, or just to check and make sure everything was right'. The plaintiff said that when he was on-site he had access to the first floor by a ladder, a photograph of which he identified. He said that the building had reached the stage that the frame was up and he was doing gyprocking work. No stairs had been inserted into the house, and there was a void for the stairs to go into. Mr Paddison said that the ladder was as in photograph 15 [a reference to a photograph in the report of the plaintiff's expert, Barry A Tozer dated 7 January 2002].
7. The plaintiff arrived at the side at about 7 am and had been working on-site until about 2 o'clock in the afternoon. He said that he immediately went up to the first floor. He said the ladder was the only way you could get up to the first floor. The plaintiff said that the cement renderer did not know how to use the power box, so he asked the plaintiff to come down. He went onto the ladder, and as he got onto the ladder the ladder 'slipped, and I just lost balance and went onto the concrete floor'.
'Q. When you say it slipped, could you describe to us what you mean? A. Well, it moved sideways, and as it moved sideways I lost balance.
HIS HONOUR: Q. When you say 'moved sideways', was it to the left or the right, do you remember? A. Offhand, I think, I wouldn't swear by it, but I think it went to the right, because when I got up I was on the right side of the ladder.'
The plaintiff said the ladder slid sideways. The plaintiff said that he did not check the ladder to see if it was tied. He was then asked by the court:
'Q. Did you check to see whether it was footed? A. I never checked at the time, just hopped on it, everybody, I mean everybody was using the ladder.
Q. Were there other workers who appeared to be in some way or another connected with Mr Kahunen on-site? A. Not at that day, no.'
8. The plaintiff said that when he fell he had pain in his arms, right shoulder and left wrist. He telephoned his wife to arrange for her to take him to Bankstown Hospital where he was treated in the emergency department. He thereafter went to see Dr Kalnins, an orthopaedic surgeon. After the accident the plaintiff did not return to work for some time. Eventually he returned on light duties but with his son assisting him. Because of his disability he could not get a clearance to do his full pre-accident work. Eventually on 27 August 2001 he obtained his current employment as a driver with Ace Overalls (a drycleaning service).
9. When cross-examined the plaintiff agreed that he had been a plasterer or done plastering work for over thirty-five years in domestic and household construction and renovation and repair. He had worked on multi-storey buildings, he had worked for himself and in teams, and had been both a supervisor and had been supervised. He agreed that he had used all sorts of equipment from simple ladders to high scaffolding and pneumatic lifts. He was asked:
'Q. Apart from being told where the job was, so far as the detail of the work how to do it, you didn't need to be told by anyone how to do your job as a plasterer, did you? A. Not at all times, not at all times, no.
Q. And in respect of this job at Taren Point, having been told what the job was to do, you didn't need to be told by Ellis how to do the work? A. I was at this particular job.
Q. You were told? A. On this particular job I was.
Q. What were you told? A. Well, I was told how to do it because the simple reason was this was the first time he actually did a job for this builder and he wanted to keep him.
Q. Yes, and you were told to do quality work and take care with detail, et cetera? A. Correct.
Q. So far as the physical minute to minute, hour by hour doing of the job, you didn't need to be told how to do a good job, did you? A. No.
Q. Indeed, when Ellis came, he came only every two to three days? A. That's correct.'
10. The plaintiff said that there had originally been some scaffolding on-site, but because it was no longer needed he arranged for it to be returned and collected by the hire people. He agreed that by 6 September the need for the scaffolding had passed. He said that there were other tradesmen on-site from time to time. He thought that he had been on the job for about three weeks and the job was nearly finished. He was asked:
'Q. When you say you saw others use the ladder, by that do you mean - and sometimes we have to be excessively simple - you saw other tradesmen going up and down the ladder during the day as part of their work or getting to where they had to work? A. I did.
Q. You saw people carrying tools up and down? A. I did.
Q. You saw them passing tools up and down? A. I did.
Q. Passing materials up and down? A. Yep.
Q. Over the previous weeks had the ladder been located at the same spot it was when you had your fall? A. It was.
Q. You, yourself I think said in evidence that you had used this ladder many times? A. I have.'
He said that he had carried small pieces of material up and down the ladder.
11. The plaintiff agreed that ninety-five per cent of the time the only work available as a plasterer was on a sub-contract basis, and that is what he did. The plaintiff said that he had never had any difficulty obtaining from Ellis things that he needed for the purpose of carrying out his tasks. The plaintiff agreed that over the thirty-odd years of his working life he had used ladders, both wooden and metal A-frame extension. He was asked:
'Q. You took no particular notice of this ladder, or there was nothing about it that attracted your attention until after you had your fall, that 's correct? A. That's correct.
Q. Presumably you've used ladders when you've been able to use them yourself, and other times when you've had to have someone stand at the bottom to hold it for whatever reason? A. That's correct.
Q. And without being discourteous, after thirty odd years of being a plasterer in domestic and other environments using ladders you consider yourself to have enough common sense and experience to look after yourself on a building site without someone looking over your shoulder, correct? A. That's correct.'
12. The plaintiff knew that the building site was being conducted by Mr Harris, who was the director of the company, Telgrit. Mr Harris was apparently at the site most days. He would come around to make sure everything was being done to his satisfaction. He spoke to the plaintiff regularly. The plaintiff was later asked:
'Q. Whenever you went up and down the ladder, except on the last occasion, you had no problems with going up and down the ladder? A. Nobody did, no.'
13. The plaintiff said that he had done ladder jobs for the defendant before this one, his knee was painful but had not collapsed of recent times. The plaintiff said that the ladder slipped and he lost balance. He said he was on the way down the ladder. He said the only thing he was not sure about was how he landed. He maintained that he had always said that the ladder slipped and that he was on his way down, although he could not recall how far down the ladder he was. He said he had both feet on the ladder. He was asked:
'Q. Are you saying that the ladder started to move and that you then lost your balance and fell off the ladder? A. That's correct.
Q. You didn't ride it to the ground? A. No.
Q. To the best of your recollection your hands were empty at the time this happened? A. They certainly were.'
The plaintiff said that his hands were on the ladder as well as his feet at the time the ladder commenced to slide. He said he did not have any trouble as he started to move down the ladder, although he was completely on it. He recalled that he was closer to the top of the ladder than the bottom. The plaintiff said:
'Q. In that instant before you started moving down, the ladder wasn't moving at that stage, was it? A. I can't recall. All I know is the ladder moved and I fell.
Q. And you were just somewhere on the ladder when it moved? A. That's correct.
Q. It is indeed possible that you might have been coming down the ladder, I don't say by much, you might already have started your pathway down, or your climbing down, before the ladder started to move? A. It could have.
Q. You just don't know? A. All I can remember is the ladder moving and me falling off it. That's all I really remember. What position I was on the ladder, I couldn't swear by it.
Q. Can I just ask you to say before you got onto the ladder you stood at the top of the landing? A. That's correct.'
The plaintiff said the ladder was as shown in photograph 12 [ a reference to another photograph in Mr Tozer's report of 7 January 2002]. The plaintiff said that there was nothing in the void where the ladder could have been tied off.
14. The plaintiff denied that he was on the ledge and that he misjudged where he was and fell over the edge with the ladder falling down with him. He said this was not correct. The plaintiff said that Mr Kahunen used the ladder and he never saw Mr Kahunen have difficulty going up and down the ladder. There was a difference between the plaintiff and the defendant as to the manner in which the plaintiff fell."
5 Judge Delaney said that there were no contemporaneous records which were unequivocal as to the manner in which the plaintiff's accident occurred. Ultimate called Mr Peter D'Amico, who gave a different account of the fall. The trial Judge preferred the plaintiff's account to that of Mr D'Amico. The plaintiff said to various experts and medical practitioners that the ladder slipped. His Honour was prepared to accept that more likely than not this occurred and was the cause of his injury.
6 Next his Honour referred to the expert report of 7 January 2002 from Mr Tozer, an expert in building. The trial Judge said:
"17. …The report was partly based on incorrect information. However the report contained photographs of the ladder and the premises. The ladder was aluminium with a rubber foot at the end of each leg of the ladder. This feature was to prevent the ladder slipping. The ladder was not tied at the top, and no workman steadied the ladder before workers went up or down. It appears that the practice was to not tie off the ladder and to not have it held. The plaintiff worked alone. Economic considerations seem to have been the explanation for this.
18. Mr Tozer said that the likely cause of the accident was the position of the ladder at the time the plaintiff commenced to descend. He said that the ladder was defective and unsafe for use. He was not cross examined on this opinion nor was contrary evidence adduced. He said that if the ladder could not be securely fixed at the top then at least it should be securely fixed at the bottom or someone should be stationed at the base of the ladder to prevent slipping. He said the ladder was damaged and because of the defect did not comply with relevant regulations. However there is no evidence the condition of the ladder made it unsafe for use. Ladders have to be serviceable not new.
19. Although Mr Tozer said the defendant was negligent by providing a ladder which was defective, there was no evidence the defendant provided the ladder and in fact no one knew the way in which the ladder came to be on-site. The plaintiff was an experienced employee or subcontractor plasterer. The defect in the ladder was obvious. The lack of any tying off of the ladder was obvious and it was obvious that no one was holding the base of the ladder when he commenced to descend. ...
20. The plaintiff told Mr Tozer 'as he attempted to descend the ladder it fell over causing Mr Paddison to fall to the floor below'. While Mr Tozer said it was foreseeable that a ladder with defects placed in a position and manner shown in the photographs was almost certain to fall over when a person mounted it from the first floor level, the plaintiff's evidence did not support the opinion offered by Mr Tozer."
7 Later in para 23 of the reasons for judgment, Judge Delaney said:
"23. …The question is why the ladder slid. Mr Tozer sought to give the answer to this. He said the photographs indicated that the ladder would appear to have been a single aluminium ladder four metres in length which had been inclined at a correct angle, but not fixed. He said the photographs showed that the ladder was fitted with rubber strips at both ends of the stiles, and that the photographs also show that there was some damage to the treads. As well, the inside faces of the stiles were not parallel. The problems with this evidence is that it was never suggested that the defendant provided the ladder. The ladder was on-site, the defendant knew it was on-site, as did the plaintiff, and both had used it. Others had used it without difficulty."
8 It is not clear whether the trial Judge took account of the further opinion of Mr Tozer set out in a letter of 19 February 2002 which was in evidence. In that letter Mr Tozer referred to his report of 7 January 2002 and continued:
"You have advised in your recent letter that the ladder did not fall over when Mr Paddison climbed onto it. It is said to have moved sideways and he fell off it.
It would appear that, contrary to the assumption that I had made, the sideways movement of the ladder was arrested by the timber framing at the corner of the landing. However, from a review of the photographs, it would appear that the ladder had moved sideways a distance of at least 300mm before reaching the vertical timber at the corner. That degree of unexpected lateral movement of the ladder would have been sufficient for a person climbing onto a rung near the top to lose their balance and fall from the ladder.
I maintain my opinion that this ladder was defective and that the sideways movement which occurred when Mr Paddison climbed onto it was a result of these defects. Movement of the ladder could have been controlled and perhaps eliminated if the ladder had been fixed at its top point of support.
I trust that this supplementary report will be of assistance in the resolution of this matter. I am available to clarify any matter raised in the report or give evidence on request."
9 Mr Tozer was not required to attend court and was not cross-examined. In his evidence the plaintiff, looking apparently at the same photograph (No 12) said that the timber, namely "the uprights and the ones going across vertical, and horizontal" were not there at the time of the accident. According to Mr Tozer the photographs were taken three weeks after the accident.
10 The trial Judge said of the medical reports tendered:
"21. Dr Benanzio obtained a history that the plaintiff was working as a subcontractor, was on a ladder which slipped, and he fell about three metres. The CRS [CRS Australia] recorded that the plaintiff was working as a subcontract plasterer. In a report of 12 April 2001 Dr Kalnins merely recorded the accident in the following way: 'Mr Paddison came under my care following a fall from a ladder while at work on 6 September 1999.' The employer's report of injury, exhibit B, records:
'Q. How did the injury occur and what was the worker doing at the time (eg. Slip while walking down stairs)? A. Slipped while coming down ladder.'
This document recorded that the plaintiff was receiving $1,200 a week. …"
11 Judge Delaney went on to find that the relationship between the plaintiff and Ultimate was that of contractor and sub-contractor notwithstanding the fact that the plaintiff worked only for Ultimate. The trial Judge concluded, there being a relationship of independent contractor and entrepreneur which had lasted only a few months before the accident, that it could not be said that Ultimate owed a duty to the plaintiff by virtue of their relationship. His Honour found that in the context of a contractual obligation Ultimate, was required to provide a safe place of work and equipment. Ultimate fulfilled this obligation and therefore there was no breach of contract.
12 This brought Judge Delaney to the claim for breach of statutory duty. His Honour said:
"25. … The plaintiff contends that the defendant contravened regulation 73 of the Construction Safety Regulations. Regulation 73 provides:
'Any person who directly or by his servants arranges and carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work.'
[The regulation quoted is 80(3) upon which the plaintiff also relied].
The measures the plaintiff alleged that the defendant should have taken in this case were to provide suitable and safe scaffolding, a safe means of access, and the provision of fencing or other means of securing the safety of a person working at a place from which he would be liable to fall a distance of more than 1.8 metres. The plaintiff claimed that the defendant had breached regulation 73 by failing to take adequate measures to minimise accident risk and to prevent injury. It was not contested by counsel for the defendant that a breach of regulation 73 did not give rise to a cause of action.
26. The defendant argued that the principles expressed in HC Buckman & Son Pty Limited v Flanagan applied. The defendant argued that because the plaintiff was an independent contractor … any obligations to comply with regulation 73 fell on the plaintiff himself because he was the one carrying out the work. Although there have been authorities that have approached this matter in different ways, each case relies on its own facts. In Buckman , Jacobs J said at page 447:
'It will generally be found in the case of an employee and it will often be found in the case of a sub-contractor that, though performance of the acts necessary to performance of some statutory duties may properly be delegated to them, the performance of other acts and the compliance with other statutory duties will remain the direct obligation of the employer or the head contractor, as the case may be. Whether in any particular case this is so will depend upon the circumstances.'
27. In this case the head contractor is no longer a party to these proceedings. In my opinion the direct obligation in relation to the statutory duties could not be said to have devolved upon the defendant. Jacobs J [earlier had said at 446]:
'A subcontractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty.'
28. There is authority that where the head contractor has the task of coordinating the work of various trades to be carried out by subcontractors then the basis of supervision and coordination can alter the relationship between the head contractor and a subcontractor to reserve to the head contractor an obligation to comply with the regulations.
29. In my opinion, on the facts of this case, there was no such reservation, as there was no obligation on the defendant to do anything other than send the plaintiff to perform the work. In my opinion the duties under regulation 73 were wholly delegated to the plaintiff because there was no further work that still had to be done by the defendant, who was not involved in coordinating and supervising activities on the site.
30. Accordingly, in my opinion there is no breach of the statutory duty and it is therefore not necessary to consider the arguments put forward in relation to the question of contributory negligence applicable to statutory duties. If I did have to deal with this matter I was of the view that despite the concession made by counsel for the defendant it may be that the combination of the Law Reform Miscellaneous Provisions Act amendments and the Statute Law Amendment Act led to the conclusion that in fact as of the date of this accident the contributory negligence provisions of the Civil Liability Act did not apply to this case and that there would have been no basis for reduction for contributory negligence. There is a basis for reduction of contributory negligence on a contract claim in view of the amendments to the Law Reform (Miscellaneous Provisions) Act 2002. This of course depends on whether or not it is found that there is a breach of contract."
13 Later in his judgment, the trial Judge gave these reasons:
" Was the plaintiff a contractor or an employee?
31. The evidence on this point was that during the relationship the plaintiff an experienced gyprock fixer, only worked for the defendant and had done so for some years. He worked five days each week, and some Saturdays. He worked about 40 hours a week. He provided the defendant with invoices for his hours of work. The hourly rates would differ depending on the circumstances. The defendant would provide all materials on-site but the plaintiff would provide his own tools and any scaffolding up to 2.4 m. The plaintiff arranged his own workers compensation insurance. The defendant would deduct taxation under the prescribed payments scheme rather than the pay as you earn system. The defendant would decide the work allocation and direct the plaintiff to the various work sites.
32. While the matter is not completely free from doubt I conclude on this evidence that more likely than not the plaintiff was an independent contractor. The defendant owed to the plaintiff the same or a similar duty to take reasonable care as would a direct employer, and to take reasonable care to provide a safe system of work."
14 His Honour then posed the question of whether there was a breach of duty but regarded the case as distinguishable from Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132. In that case the plaintiff, a stockman, was working as an independent contractor and not as an employee of Rockdale, when he was injured at Rockdale's feed lot while doing mustering and related work. Judge Delaney quoted extensively from that decision and the also decision of Wood CJ at CL in Hetherington v Mirvac Pty Limited & Ors (1999) Aust Torts Reports 81-514. In the second case, the plaintiff was a skilled roof tiler who, while commencing work for the setting out of a roof, fell through fibro eave sheeting intended as a lining for part of the roof. The plaintiff knew of the dangers of stepping on to unsupported fibro. Walking on rafters was an everyday occurrence for him. It was part of the skill and experience that he brought to his trade that he coped with that situation. He brought a claim to recover damages from the head contractor and developer of the retirement village which he was taking part in building. The head contractor had sub-contracted the fibro cement lining work to another company. At 66,014 para [181] Wood CJ at CL remarked that the simple truth was that the plaintiff made a misjudgment and took a calculated risk for which, in the Chief Judge's view, he should be regarded as solely responsible.
15 Judge Delaney continued:
"35. It is true that the manager of the defendant company was regularly on-site. He would come to the site for various periods each day. It is therefore reasonable to assume that he knew, or ought to have known of the condition of the ladder. The manager cannot give evidence as he has suffered a stroke.
What is the scope of the duty of the defendant to the plaintiff's [sic] an experienced employee or subcontractor if duty of care is established?
36. It was submitted by the defendant that the defendant had not breached its duty. The plaintiff on the other hand submitted that the defendant should have instructed the plaintiff about the proper use of the ladder. It was submitted that the plaintiff should have been told not to use a defective ladder and that the ladder should have been replaced as it was defective. In my opinion the defendant was not required to take such a step to discharge the duty to take reasonable care. The plaintiff was an experienced and skilled worker involved in the building trade. He had daily experience with ladders over more than 25 years.
37. It also depends on how the ladder fell. What caused the accident? The plaintiff said that as he stepped onto the ladder and was holding it with both arms and had both legs on the rungs it moved to one side. It was not suggested that the ladder collapsed and the photographs do not support this contention. Indeed it appears that the only explanation advanced by the plaintiff is that the ladder moved because it was not tied. I consider that this accident occurred because the plaintiff misjudged the way he descended the ladder, thereby causing it to slide because of the distribution of his weight.
38. Mr Tozer suggests that good practice required that the ladder be fixed. However it seems to me this ignores the practice and procedure of the building industry. It may be that it is expensive and inappropriate to have an additional worker alongside the plaintiff to steady the ladder when the plaintiff is an experienced workman and is used to ladders and has been so experienced for many years. It is not clear what instruction should have been given to the plaintiff that would have avoided the injury suffered by him.
39. Although the obligation upon the defendant (if duty of care is established) is that referred to in McLean v Tedman (1985) 155 CLR 306 to implement, maintain and enforce a system of work, assuming the relationship of employee/employer existed, is it necessary in this case that the plaintiff be advised to have somebody steady the ladder or to tied [sic] it off? In my opinion the obligation of the defendant did not go to this. In my opinion there was no relevant instruction which could have been given which in the circumstances would be more likely than not to have avoided the risk of injury. There is no evidence that any defect in the ladder caused or contributed to the fall. There is evidence that the ladder was defective, in that it was partly warped and the feet were worn. However, the ladder was used continuously over the period of time the work was being carried out by many employees and not found to be defective in its operation. The plaintiff made no complaint about its condition.
Decision on Liability
40. In my opinion, the plaintiff was a subcontractor. The defendant did not coordinate any aspect of the work and therefore I find that there was no duty of care owed by the defendant to the plaintiff in their relationship of contractor and subcontractor. Even if there had been such a duty I find that there was no breach of statutory duty. There was in my opinion no breach of the contractual terms into which they entered. In those circumstances there would be a verdict for the defendant. If others were of a different view and it was necessary to consider the question of contributory negligence pleaded, I am of the opinion that contributory negligence has been established as the risk was clearly foreseeable to the plaintiff, and the plaintiff's damages should be reduced by 25% for contributory negligence considering the relative culpability of the parties. I now turn to damages. In the event others are of a different view to me on the question of liability."
16 Judge Delaney assessed damages under several heads. One head, economic loss, is relevant to this appeal. His Honour said:
"45. The parties agreed arithmetically that the plaintiff had lost income to the date of trial in the sum of $110,000 depending upon whether it was found that the plaintiff had any other capacity for work than that which he was presently performing at a rate of $424 per week and if the base figure was correct. In my opinion his current wage reflects his current earning capacity. However he has not taken expenses as a subcontractor into account in determining earnings before the accident. I consider that his average net earnings before this accident were $600 on average. Therefore his loss is $150 per week. I consider that the sum of $150 per week should be allowed to the plaintiff to age 65 on the 5% tables less 20% for vicissitudes to account for the fact that the had a pre-existing leg problem which had already affected his ability to be able to work as a plasterer before this accident."