Rawson Homes Pty. Ltd. v. Donnelly & Anor. [2005] NSWCA 211

Rawson Homes Pty. Ltd. v. Donnelly & Anor. [2005] NSWCA 211 | Case summary | Zoe

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CIRCUMSTANCES 3 In 1998, the plaintiff commenced working as a self-employed carpenter, generally working with another more experienced self-employed carpenter Murray Swane. During 1998 and 1999, the plaintiff did some carpentry work on homes being erected by Rawson Homes. 4 In 2000, Rawson Homes contracted to build a house at 17A Pomona Road, Empire Bay. 5 In June 2000, the plaintiff commenced working on the site. At that time, roof tilers were working on the roof, and part of the roof frame had been constructed incorrectly by the carpenters. At that time, it was the job of the plaintiff and Mr. Swane to correct the roof trusses. 6 On 26 June 2000, 17 sheets of Villaboard supplied by CSR were delivered to the site by M.E. Transport Pty. Limited (ME) and were left there on their edges against studs of one wall of the living room. These sheets were 6mm thick, 135mm wide (with the exception of one which was apparently 900mm wide) and between 2,400 and 3,600mm long. Their total weight was in excess of 500kgs. 7 On 5 July 2000, the plaintiff went to the site with Mr. Swane intending to do a frame straightening (involving checking the wall studs for straightness) and then to fix some eave sheets. He had a 2 metre long level which he used as a straight edge, and his practice was to go from one side of a wall to the other side, checking for studs that were bent or bowed. 8 In the living room there was a big stack of gyprock lying flat on the floor about 1 metre from the wall against which the Villaboard had been placed. At about 8.15am, the plaintiff came to work on that wall; and when he reached about the centre of the Villaboard, he fell backwards on to the floor with the Villaboard against his stomach; and he was severely injured. 9 Mr. Swane was nearby, but did not see the accident. He heard the plaintiff call out and went to his assistance. An ambulance was called, and the plaintiff was taken to hospital. The sheets were then placed in an upright position against the wall, and a timber prop wedged against them to prevent them from falling again. 10 The ambulance record, apparently prepared at the time, contained this entry: C/T person trapped by falling gyprock. O-A found 24 year old male PT sitting conscious (sic) and alert inside new home. PT states moving approx. 18 sheets of gyprock approx. 4.8m in length forward when all the sheets fell on the PT inially (sic) striking PT on ABDS and chest came to rest on PTS left lower leg. O-E PT has cevius (sic) lower left leg fracture PT deformity and rotation. 11 Notes apparently made when the plaintiff arrived at the hospital included the following: Today at work today Holding up multiple sheets of gyprock Load became too heavy and PT fell back with load landing on top of him. 12 The principal of Rawson Homes, John Carolan, arrived at the site about one hour after the accident. There is the following entry in his diary for 5 July 2000, apparently made at about that time: While attempting to check timber studs for straighteners for fall between living and dining rooms, Josh held pile of Villawood sheeting out from wall, when sheets reached a certain pivot the weight of the sheets pushed Josh backwards and pinned his body and leg underneath the sheets. He then yelled out to Murray for help, when Murray walked inside the house he saw Josh lying underneath the Villaboard in great pain. Murray then tried to lift the boards but could not, so Murray yelled for help from owners who arrived to help lift the sheets from Josh. Murray then placed a prop to the sheets to prevent from falling again. He then placed 2 bricks underneath Josh's bad leg as this was the position Josh was in least amount of pain. An ambulance was called and arrived on site and stayed on site for approximately an hour to stabilise Josh before taking him to Gosford Hospital. I arrived on site approx. 9.10am and immediately tried to determine what happened. On looking at the Villaboard its position against the wall is no longer the same position it was in prior to the accident, it is now hard against the wall at the bottom but prior it was approx. 230mm from the outside of the bottom plate to the outside of the outer Villaboard sheet which is in my opinion sufficient for the storage of the board, the accident could have been avoided had Josh asked for help to hold or move the sheeting instead of trying to hold himself. In Murray's opinion had Josh asked for help this accident may have been avoidable as Murray would have been in a good position to hold the weight of the sheets to prevent from falling, this was discussed between myself and Murray on site following the accident, we then held a level on the marks on the ground the following measurements were taken by Murray. 270mm in the middle of the sheets from outside of sheet to outside of frame and approx. 230mm at end of sheet. Met Vic Page from Workcover and discussed accident with him and told by Workcover to serve in a notification to what happened. 13 There was also in evidence a typed statement signed by Mr. Swane and dated 6 July, in the following terms: We arrived at the job at approximately 7.00am. We had been there working for just over half an hour. I was fitting the fixed panel and sliding door panel in the front sliding door unit (outside). Josh had just begun to straighten the frames between the living and dining room, (the wall which the villa board sheets were leaning on). To do this he uses a long straight edge, and runs it along the frames to find the studs that have got bows in them. The last time I actually looked at Josh and saw what he was doing (immediately prior to the accident happening) he was standing in front of the sheets, holding the straight edge on the studs.

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Vic Page from Workcover then came to investigate the accident. Scott and I were waiting at the site for him to arrive. The three of us discussed the accident in detail. Vic Page asked me why the sheets were propped up like they now were. I explained to him that after the sheets had fallen down on Josh, I had (with the two ladies help), stood them back up. They were then hard up against the frame, with no angle whatsoever, and unless somebody was holding them they would fall back down. So I had to put a timber prop there for that reason. I told Vic Page that the sheets had angle on them before the accident. Anyway, if they had not, they would have already fallen on the ground well before now. They had been delivered about a week beforehand. Vic Page, Scott and I also agreed that there were marks on the concrete from where the sheets had been standing, and the position of these marks proved that the sheets had in fact been leaving against the wall on an angle, not hard up against it. Scott and I held a level on the marks on the ground, and measured back to the frame. Scott has taken a note of the measurements in his diary. 14 There is also in evidence a discharge summary signed by a medical officer at Gosford Hospital, stating as follows: Joshua was lifting a heavy board at work when it became too difficult and he fell sustaining the above injury. 15 The same medical officer also signed a NSW Workers' Compensation Medical Certificate dated 10 July 2000, stating the "cause of injury as stated to me by this worker" as being "While at work holding heavy load and fell". 16 There was a Workcover investigation of the incident. There is in evidence a witness statement dated 4 October 2000 given by Mark Frasca, a director of ME who delivered the Villaboard. Relevantly, this statement sets out the following: Q16: Were you involved in the stacking of the villaboard sheets against the timber stud walls? A: Yes. Q17: Did anybody inform you on how to stack the sheets when delivered to site? A: We normally lean them up on an angle against the wall. Q18: Who employed you to deliver the sheets? A: CSR Gyprock and Plaster Lining Centre. CSR Limited. Q19: Are you aware if CSR Gyprock and Plaster Centre has a policy on how to stack the sheets when delivered to site? A: Not that I know of. Q20: How did you stack the villaboard sheets when delivered to site? A: The way the plaster (sic) wants it. We stack the plaster board flat on the floor and stand the villaboard up on an angle against a wall. Q21: How many sheets of villaboard are usually delivered to site? A: Depending on the size of the home. Q22: How many were delivered to Pomona Road, Empire Bay? A: About 17 at 6mm. Q23: Did you stack the sheets in a plumb manner against the stud wall? A: No. At an angle. We usually stack them with the base out about 450mm from the wall. Q24: Why were the sheets stacked against the wall and not flat on the floor similar to the gyprock stacking? A: More accessible for the plasterer. He uses it first. He carries it standing up and it is heavier than the plasterboard. He does not have to bend down. Q25: Did you place a restraint on the sheets stacked against the wall to stop them falling? A: No. Just at a suitable angle and it was not requested by CSR. 17 Mr. Ross Trethewy of Unisearch Limited, an occupational health and safety consultant, provided a report dated 22 October 2002 for Workcover. Among the opinions he expressed were the following: 23 The combined weight of the 17 sheets of Villaboard, approximately 500kg, and its position leaning unrestrained against a wall was high risk. The absence of a suitable lateral restraint created an unsafe system of work for contractors undertaking tasks in the area and an unsafe workplace for persons using the area for access. …

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Rawson Homes pleaded guilty to that charge. 19 An Agreed Statement of Facts was presented to the Court dealing with the charge. It included the following" 14 It is alleged by the Informant that the Defendant, RAWSON HOMES PTY LIMITED (ACN 053 733 841), an employer, breached Section 16(1) of the Occupational Health & Safety Act 1983 on 5 July 2000 at premises located at 17A Pomona Road, Empire Bay in the State of New South Wales, in that it failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. Particulars of the Defendant's breach are as follows: (a) the Defendant failed to ensure that villaboard sheets at the premises were stored in a proper and safe manner; (b) the Defendant failed to provide adequate information, instructions and supervision to its subcontractors at the premises so as to minimise the risk of injury from the villaboard sheets; (c) the manner in which the villaboard sheets were stored leaning up against a timber stud wall at the premises was inherently unsafe; (d) as a result of the Defendant's failure, Joshua Donnelly suffered injuries. 20 There was other evidence at the hearing of that charge, including evidence given on 22 October 2002 from a manager at CSR. This included evidence that CSR recommended that Villaboard sheets be stored flat, that leaning 17 Villaboard sheets against a wall could be considered unsafe, that sheeting while it is left in such a position could be considered safe, that it was regarded as unsafe if people were working around Villaboard sheets stacked against a wall, and that CSR was aware of a practice whereby carriers would stack sheets against walls rather than horizontally as recommended. 21 At the hearing before the primary judge, the plaintiff gave evidence to the effect that he did not intentionally touch the Villaboard and did not believe he accidentally touched it. 22 Mr. Swane gave evidence, including confirmation of the statement he made the day after the accident and preparation of a diagram illustrating the angle of the Villaboard against the wall. Mr. Frasca gave evidence, substantially in accordance with his earlier statement. Mr. Carolan was available to give evidence, but did not do so. 23 A number of experts' reports went into evidence, but there was no oral evidence from experts. The plaintiff tendered Mr. Thethewy's report of 22 October 2002 and a further report of 14 April 2003; while Rawson Homes tendered reports of Dr. B.J. Hill of 3 April 2003 and 24 November 2003. 24 In his report of 3 April 2003, Dr. Hill said the following: The situation of a board or stack of boards leaning against a vertical support is shown in the sketch attached to this report. The force that the boards exert on the wall depends upon the weight of the boards and the angle of lean. This force can be calculated by considering the moments of forces about the bottom edge as shown on the sketch.

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I prefer the assessment of the plaintiff's expert and I accept that the Villaboard was stacked almost upright in a narrow corridor in an inherently unstable manner in that if left for days it could fall following the application of horizontal force. When the plaintiff tried to measure the wall he came into contact with the Villaboard and the sheets fell on him. Indeed, the fact that all the sheets fell on him, and not just one, is significant, as not even the defendant suggests the plaintiff attempted to move all seventeen sheets at once. 28 As regards evidence tending against the plaintiff's account, the primary judge noted that Mr. Swane in evidence could not recall the angle of the Villaboard precisely, said that she did not regard the statement to ambulance officers of assistance (the plaintiff being seriously ill and under medication, and the statement itself being ambiguous), and also relied on the failure to call Mr. Carolan. She also relied on the plea of guilty to the charge under the Occupational Health & Safety Act. 29 The primary judge found that Rawson Homes owed a duty of care to the plaintiff because of its control over the site and the vulnerability of the plaintiff; and she found a breach, because Rawson Homes permitted the Villaboard to be stacked unsafely. She also found that this was causative of the plaintiff's injury. 30 On the question of contributory negligence, the primary judge said this: The defendant submits that the plaintiff's contributory negligence would become a very significant matter if the court were to hold that the plaintiff took hold of the Villaboard and used horizontal force to remove them from the timber frame wall. That is not the finding that I have made. Indeed, the concept of the plaintiff grasping seventeen pieces of Villaboard and attempting to move them simultaneously is clearly absurd, as is the proposed "safer" alternative of Mr Swane holding them while the plaintiff measured the wall. The fact that the seventeen Villaboard slabs were in clear view is irrelevant because the danger caused by their weight, size and number was a matter which was hidden from the plaintiff as it was from all the other workers at the site. Although the defendant asserts there was "well established team work available for just such a situation as confronted the plaintiff' it was the evidence of Mr Swayne (sic) that on the one occasion he had struck this situation before he had removed the Villaboard by himself. The very number of the Villaboards, which Mr Frasca said was significant, meant that the total 500kg weight was too dangerous to move other than in the way Mr Frasca and his workmate moved it, namely a few sheets at a time.

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GROUNDS OF APPEAL 33 Rawson Homes relies on the following grounds of appeal: As against the First Respondent: 1. The learned trial Judge erred in law by imposing a duty of care on the appellant to co-ordinate the building site greater than that required by the serial introduction of a series of trades. 2. The learned trial Judge erred in law finding the Appellant breached Regulation 73(5) Construction Safety Regulations in that: (a) The stacked building materials were not in a corridor or passageway; (b) The stacked building (c) Any breach of the regulation which occurred did not cause materials did not obstruct any corridor or passageway;the First Respondent's injury; (d) Any obligation to comply fell upon the First Respondent and his partner in accordance with H C Buckman & Son Pty Limited v Flannigan (1974) 133 CLR 422. 3. The learned trial Judge's decisive finding of fact at Judgment [para.25] was glaringly improbable. 4. The Jones v Dunkel inference drawn at Judgment [18], [31], [32], and [36(d)] is not available in that: (a) The evidence of Mr Carolan was before the Court in the form of his work diary; (b) Alternatively, the absence of his evidence did not justify a positive inference that the appellant had failed to "co-ordinate the site" leading to interference with the stability of the stacked villaboard by inadvertent or negligent acts by other workers on the site causing the angle of the villaboard to alter or because of work at or near the stack (Judgment [22]). 5. The learned trial Judge failed to engage with the issue presented for determination by the competing expert advice and in particular her Honour failed to adequately explain her preference for evidence of the plaintiff's expert over the defendant's expert. 6. The learned trial Judge erred in the use she made of evidence of a plea of guilty by the appellant to a breach of section 16, Occupational Health & Safety Act 1983 because: (a) Breach of section 16 was not alleged as a particular of negligence; (b) The statutory obligation under section 16 is more stringent than the duty of care imposed by the law of tort and the plea of guilty to the former is no evidence of breach of the latter and lesser duty; (c) Section 22, Occupational Health & Safety Act 1983 precludes breach of section 16, inter aIia, from conferring or affecting a right of action in any civil proceedings. 7. Further or in the alternative her Honour erred in failing to find the First Respondent guilty of contributory negligence in failing to move the villaboard or otherwise call for assistance. As against the Second Respondent: 8. The learned trial Judge erred in failing to find the Second Respondent owed the First Respondent a duty of care which it breached by: (a) The actions of its representative for delivery of the villaboard, M E Transport Pty Limited; (b) By failing to instruct its representative in delivering the villaboard to always stack it flat in a horizontal plane. 34 I will consider in turn the following issues: questions of fact (grounds 3, 4, 5, 6 and 7); duty of care (ground 1); Regulation 73(5) (ground 2); and the cross-claim (ground 8).

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QUESTIONS OF FACT Submissions 35 Mr. S. Campbell SC submitted that the finding that the accident occurred as alleged by the plaintiff was glaringly improbable, having regard to the contemporaneous documents and expert evidence. 36 He submitted that Rawson Homes' contention that there was a substantial lean to the boards was supported by Mr. Carolan's diary, Mr. Swane's statement and evidence, Mr. Frasca's statement and evidence, and the circumstance that the boards had stood for nine days, there being no suggestion of anything that could have altered the lean of the boards. Rawson Homes' contention that the plaintiff had deliberately drawn the Villaboard away from the wall was supported by the ambulance record, the hospital notes, the doctor's notes and by expert evidence to the effect that substantial force would be required to bring leaning Villaboards of that weight away from the wall. 37 Mr. Campbell also submitted that the primary judge's decision on the facts was vitiated by significant errors. First, the primary judge said that what was in truth Rawson Homes' case, namely that the plaintiff had drawn all the Villaboards away from the wall, was not put by Rawson Homes and was absurd. Next, the primary judge did not deal appropriately with the expert evidence: if and in so far as there was any conflict, the judge did not identify this conflict or indicate why she preferred one expert over the other. Next, Mr. Campbell submitted the primary judge made an error in drawing a Jones v. Dunkel inference from the non-calling of Mr. Carolan, in circumstances where it could not be expected that he could add anything to what was in his diary. Finally, there was error in reliance on the plea of guilty, where the statutory provision imposes a much higher standard than a common law duty of care. 38 Mr. R. McIlwaine SC for the plaintiff submitted that the primary judge was entitled to accept the evidence of the plaintiff, and that the matters relied on by Mr. Campbell were not strong enough to preclude such acceptance. 39 Mr. McIlwaine also submitted that there was no error in relation to Jones v. Dunkel and the reference to the plea; and that in so far as there was any error in the other matters, such error did not vitiate the judge's conclusion.

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Decision 40 In my opinion, the primary judge's conclusion cannot be said to be glaringly improbable. 41 The primary judge was entitled to give substantial weight to the evidence of the plaintiff, denying deliberate pulling out of the boards and asserting a belief that there had been no inadvertent touching of the boards. The conclusion was supported by the evidence of the plaintiff's expert, to the effect that if the boards had been sufficiently close to the vertical, their fall could have been caused by brushing or bumping. The plaintiff's expert did not spell out exactly how this could have happened, and how it could have occurred without force being directly applied to the innermost board, as contended by Dr. Hill. However, the plaintiff's expert was not challenged on this opinion by objection to evidence or cross-examination, and it is conceivable that if the boards were sufficiently close to vertical their fall could have been precipitated by a bump, giving rise to some kind of rebound, possibly coupled with an adhesion or suction effect by outer boards on inner boards. 42 Further, the evidence relied on by Rawson Homes in relation to the angle of the boards and the handling of the boards was not conclusive. As regards the former, Mr. Frasca's evidence was only as to practice, and it was conceivable that something might have happened during the nine days the boards were there to alter the angle at which they were leaning. The measurements taken by Mr. Carolan were not supported by any evidence from him, and Mr. Swane did not support his bald assertion about measurements contained in his statement by any oral evidence clarifying exactly what was observed and what was done, so as to support the view that the marks against which measurements were made could be taken as a reliable indication of the previous position of the bottom of the boards. 43 The notes taken by ambulance officers were taken at a time when the plaintiff was in severe pain and under medication, and may have been influenced by contributions from Mr. Swane. The hospital and medical officer's notes could be consistent with the view that the handling and lifting being referred to was that which occurred after the boards began to fall and the plaintiff was struggling to hold them up. 44 Turning to the question of errors, I do not think the primary judge was in error in applying Jones v. Dunkel: the diary entry could be considered a self-serving document, and in my opinion carries much less weight in the absence of its maker being called to give evidence, as he could have been. In my opinion also, the plea of guilty could be relied on. Although the standard required by the relevant statutory provision is higher than the common law standard, the plea does amount to an informal admission of the elements of the offence, and indeed of the particulars of the offence as set out in the Statement of Agreed Facts. Particularly is this so when no attempt was made to give any explanation of the plea of guilty. 45 However, in my opinion the other two matters relied on by Mr. Campbell do indicate significant errors. 46 If there was a difference between the opinion of the experts which was of significance, the primary judge should have identified the difference and given reasons for preference of one expert over the other. However, had this been the only error I am inclined to the view that it would not have been sufficient of itself to vitiate the judgment. 47 In my opinion the other error is more serious and in fact fatal. The scenario of the plaintiff moving all seventeen boards back from the wall, with a view to holding them vertically, so that their weight was taken off the wall and would thereby not give a false reading as to the straightness of the studs, was a scenario relied on by Rawson Homes, and cannot be said to be absurd. If one took the measurements referred to in Mr. Carolan's diary as indicating the actual lean of the villaboard, and applied the resulting figures to the formula given by Dr. Hill, a force in the order of 20kgs would have been sufficient to move all seventeen boards from the wall, and of course as the boards approached a vertical position the force required to continue to move them towards that position would become progressively less. This calculation is based on the assumption that the total thickness of all the boards is about 102mm (17 x 6mm), and thus that the bottom of the lowest board was of the order of 128mm from the wall. The application of a force of 20kgs is something not unusual on a building site, and the adoption of this procedure, although it could be managed, does carry a significant risk because the application of the initial 20kgs would result in some momentum which could well carry the boards beyond the upright position where they could be easily maintained in equilibrium. This scenario is in my opinion strongly supported by the objective evidence on which Mr. Campbell relied; and although, as I have indicated above, that evidence is not conclusive, it does make the scenario extremely plausible. 48 Thus, although the primary judge would have been entitled to accept the plaintiff's account that he did not intentionally or accidentally touch the Villaboard, it was necessary for her to address correctly the relevant question. However, her judgment reveals that she accepted the plaintiff's account having already concluded that the plausible scenario actually relied upon by Rawson Homes had not been suggested by it, and was in any event absurd, which it was not. In my opinion, that error vitiated her Honour's acceptance of the plaintiff's account of the accident which underpinned her finding that Rawson Homes had breached its duty of care. 49 The question whether the plaintiff's evidence should nevertheless be accepted in the face of the material relied on by Rawson Homes is not one that can be resolved by this Court. Accordingly, subject to what I say below, there would have to be a new trial. This new trial, however, would be as to liability only. 50 The possible qualification is that the plaintiff did have a fall-back case, to the effect that even if Rawson Homes' scenario was accepted, there was still a breach of duty. This case would have some support from the plea of guilty, and is a case that this Court could possibly determine. The problem however is that this case would involve the likelihood of a finding of contributory negligence by the plaintiff; and that would mean that, even if negligence is found in the plaintiff's favour, the plaintiff would recover less than 100% of his damages; whereas if the matter goes back for re-trial, the plaintiff could get 100% damages if his scenario is accepted.

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Cases Cited (11)