RYU v KARADJIAN

Court of Appeal (NSW)|2006-06-05|Before: Giles JA, Tobias JA, Bryson JA

JUDGMENT OF: Giles JA at 1; Tobias JA at 2; Bryson JA at 16

DECISION: 1. Appeal allowed; 2. Set aside the verdict and judgment of Acting Judge Murray dated 13 August 2004 in favour of the respondent and in lieu thereof enter a verdict and judgment for the appellant in the sum of $163,696; 3. The respondent to pay the appellant's costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act, 1951 if otherwise qualified

CATCHWORDS: NEGLIGENCE - Occupiers Liability - the plaintiff, an experienced tiler, accompanied a tiler whom defendant had asked to attend at her house to give quotation for tiling work - defendant as owner-builder was carrying out building work, renovations, alterations and additions to the house, the work was incomplete and the areas to be tiled had bare concrete surface of balcony with two apertures left open for later installation of glass-tile skylights: apertures covered by gyprock held down by timber - no warning sign or other indication of aperture under gyprock - plaintiff stepped on gyprock and fell through to garage floor, suffering injuries - District Court found no breach of duty of care - on appeal held by majority, that there was a breach of duty in not giving a warning that the gyprock covered a substantial aperture - appeal allowed and damages awarded.

LEGISLATION CITED: Bankruptcy Act 1966 (Cth) s 82(2) Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5G & 5R

Francis v Lewis (2003) NSWCA 152 CASES CITED: Phillis v Daly (1988) 15 NSWLR 65 Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Appellant - Tai Ak Ryu Respondent - Virginia Karadjian

COUNSEL: Appellant - Mr S. Dixon Respondent - Not represented

SOLICITORS: Appellant - Tim Young & Associates Respondent - Not represented

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40699/2004

GILES JA TOBIAS JA BRYSON JA

MONDAY 5 JUNE 2006 TAI AK RYU v VIRGINIA KARADJIAN Judgment

2 TOBIAS JA: In this matter I have had the benefit of reading the draft judgment of Bryson JA. His Honour has set out the relevant facts which I will not repeat. Notwithstanding the shortcomings in the ex tempore reasons of the primary judge, Bryson JA has concluded that his Honour's findings and conclusions were sufficient to enable him to dispose of the appeal by proposing that it be dismissed. With respect, I take a different view.

3 The gravamen of Bryson JA's reasoning, as explained in [35] to [39] of his judgment, appears to be as follows. The essential issue was what caused the appellant to walk on the gyprock rather than walking on the concrete surface of the balcony when conducting his inspection of the surface for tiling. The appellant explained that it was common for gyprock sheets to be left lying around on construction sites and that the subject sheets appeared to be lying on a flat concrete surface. However, according to Bryson JA, this did not explain why the appellant was prepared to depart from regard for his personal safety by assuming, without any basis, that the gyprock was in fact merely lying on the existing concrete surface of the balcony and was not covering an aperture in that surface. His Honour reasoned that this assumption had no basis because the balcony was part of a building site with uncompleted work. This was so notwithstanding that the appellant was an experienced tradesman who said that he had never encountered apertures in a concrete surfaced balcony such as those covered by the gyprock in the present case.

4 Bryson JA further concluded (at [38]) that an experienced building worker moving around a building site would have needed to give attention to the plain possibility that something that one cannot see may not be a firm structure. This reasoning appears to be a different way of stating his Honour's earlier conclusion in [35] that it was unreasonable for the appellant, given his experience, to assume, as he had, that the piece of gyprock was lying on the concrete surface of the balcony.

5 I can accept as a general proposition that it may well be unreasonable for an experienced construction worker to assume that everything on a building site is firm and safe and able to be stood on unless it has been pointed out to him or her that that is not the case. However, in the present case, we are not dealing with a construction site of a general nature. This case concerns a substantial, concrete surfaced balcony which only required tiling to be completed. The appellant was aware of apertures in balconies for the purpose of accommodating services such as drainage pipes, but he had never come across a balcony of this sort, containing apertures of the nature and size of those that were covered by the pieces of gyprock.

6 In other words, it would not be reasonable for an experienced construction worker such as the appellant to assume, unless he or she was told otherwise, that everything on a given construction site would be firm and secure. However, in the present case, the appellant was presented with what clearly appeared to be a firm and complete concrete surface which only required tiling.

7 Furthermore, I cannot accept Bryson JA's assertion that pieces of gyprock are not left about on building sites so that people can walk on them but, rather, that they should be "respected". Again, that proposition may often make good sense. However, it does not follow that this would be the only reasonable approach in all cases. If it were clear that pieces of gyprock upon a building site were to be utilised in the building work, then obviously it would be inappropriate for them to be other than respected. However, as his Honour recognised (at [36]), the evidence did not establish that the two pieces of gyprock over the apertures were of the same size or in positions of regularity and symmetry. There was nothing to indicate that they were intended to be utilised in some other part of the building works, especially given the accepted evidence of the appellant that it was common on construction sites to have gyprock sheets "lying around everywhere". In other words, given the findings to which I have referred, the two pieces of gyprock in the present case gave every appearance of simply being off-cuts which were not intended for further use in the construction of the building. In these circumstances, no reason existed as to why the appellant should have "respected" them and "not trodden" on them.

8 In [20] of his judgment, Bryson JA refers to the appellant reaching the end of the corridor leading to the balcony and then walking onto the balcony when he saw the gyprock sheets lying on its concrete surface. The photographs in evidence make it clear that he would have been unable to see the first of the pieces of gyprock upon which he trod until he reached the end of the corridor. This piece of gyprock was only a metre or so from that first point of observation. Given the purpose for which he was inspecting the concrete on the balcony, I find nothing unusual in the appellant stepping onto the gyprock, which was roughly equidistant from the wall of the building on the one side and the concrete balustrade of the balcony on the other.

9 Accordingly, the piece of gyprock upon which the appellant trod was located in a central position on the balcony and was, in my opinion, directly in the path that one would have expected the appellant to follow as he exited the corridor onto the balcony for the purpose of carrying out his inspection.

10 Furthermore, given the close proximity of the piece of gyprock upon which the appellant trod to the entry point to the balcony from the corridor, the appellant would only have seen the gyprock fleetingly before it entered his path. Unless he stopped in his tracks when he first saw the piece of gyprock to ponder the reason for its presence, and to consider whether the gyprock was possibly covering a substantial aperture in what otherwise appeared to be an uninterrupted concrete surface of the balcony, the appellant would only have had a brief moment to observe and assess why the gyprock was there. In my view, there was no reason why he should have stopped to consider that issue.

11 In my opinion, it follows that the primary judge erred in his conclusion, as articulated by Bryson JA, that the reasonable response of a person in the position of the respondent to the foreseeable risk of injury to the appellant did not require a warning that the two pieces of gyprock upon the balcony each covered a substantial aperture in what otherwise appeared to be an uninterrupted concrete surface. This is so notwithstanding that the appellant was an experienced tradesman moving around a particular part of a construction site. Accordingly, I am of the view that the respondent breached her duty of care to the appellant in failing to warn him of the true situation. It follows that the appellant was entitled to judgment in his favour.

12 As Bryson JA has observed in [40] of his judgment, there is no challenge to the primary judge's assessment of damages of $163,696. However, the appellant did challenge his Honour's finding that he was guilty of contributory negligence which he had assessed at 45%.

13 The basis upon which the primary judge came to this conclusion is encapsulated in the following passage from his judgment: "As I have said in my principal judgment the verandah presented to a reasonable observer with two pieces of gyprock placed equidistant between the wall of the premises and the wall of the balcony, and as such to an experienced tiler would alert him to the possibility of there being something underneath. I bear in mind also that there is ample room not to walk on the gyprock at all."

14 I have rejected the primary judge's reasoning insofar as it supports a "do nothing" response by the respondent to her duty of care to the appellant. It follows that I also reject his Honour's reasoning with respect to any contributory negligence on the part of the appellant. I find that there was no such contributory negligence.

15 Accordingly, for the foregoing reasons I would propose the following orders: (a) Appeal allowed.

(b) Set aside the verdict and judgment of Acting Judge Murray dated 13 August 2004 in favour of the respondent and in lieu thereof enter a verdict and judgment for the appellant in the sum of $163,696.

(c) The respondent to pay the appellant's costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act , 1951 if otherwise qualified.

16 BRYSON JA: Mr Ryu (the appellant), who was the plaintiff in the District Court, appeals against the verdict and judgment for the defendant Mrs Karadjian (the respondent), given by Acting Judge Murray on 13 August 2004, for reasons then stated ex tempore.

17 The respondent was represented in the proceedings in the District Court, including representation at the trial, but did not appear in the Court of Appeal or take any significant steps to resist the appeal. The Court of Appeal was satisfied that she had been served with Notice of Appeal and was aware of the pendency of the appeal, including the appointment for a hearing on 28 April 2006; she did not appear at the hearing. The Court of Appeal made a procedural direction which overcame irregularity in service of the Notice of Appeal upon her. In correspondence to the Registry she maintained that since the decision of the District Court she has become a bankrupt; this is not our concern, as no provision of the Bankruptcy Act 1966 (Cth) provides for an automatic stay, no-one has applied for a stay of proceedings, and it appears that the appellant's claim is not provable in the bankruptcy; see Bankruptcy Act s.82(2).

18 The appellant claimed damages for personal injuries which he sufferred in an accident at the respondent's house at 12 Serpentine St, Bossley Park on 7 December 2001. The respondent then owned and occupied that house. At that time she was carrying out building work on the house, and held an owner-builder permit. The work was incomplete, and involved renovations, alterations and additions to the premises, and she proposed to have a large amount of tiling work carried out. She asked Mr S. K. Lee, a tiler, for a quotation for tiling work in conjunction with the building renovations. Mr Lee and the appellant are Koreans. The appellant had worked extensively as a tiler in Korea and in Australia, after qualifying in Korea in the 1970s and coming to Australia in 1998. The appellant's own language was Korean, and he spoke very little English. He accompanied Mr Lee when Mr Lee went to the respondent's house early in the day on 7 December in response to her request for a quote. In the appellant's account of the events, he accompanied Mr Lee by car to the house, and then accompanied Mr Lee when Mr Lee entered the house through the entrance to the garage. When one of them called out to enquire if anyone was present the respondent appeared and Mr Lee explained that he had come to prepare the quotation. There was a discussion in the ground floor kitchen about the tiling job and the respondent referred to tiling work in the kitchen, bathrooms, the hallway and the balcony. Mr Lee the respondent and the appellant walked around the premises, looking at areas on the ground floor that were to be tiled, and then moved upstairs to inspect areas to be tiled there. They walked from room to room upstairs, and discussion took place in the lounge room. While this discussion proceeded between Mr Lee and the respondent, the appellant walked down a corridor from the lounge room out onto a balcony, and it was his intention to inspect the concrete surface of the balcony to see whether or not it contained any lumps which had to be considered when tiling.

19 The evidence does not show relevant dimensions with precision. The Trial Judge described the balcony as extensive and found that it measured approximately 8 m by 4 m. Photographs Exhibit C4, C6 and C7 illustrate the lounge room, the corridor and the balcony. Photograph Ex C8 also shows a view of the balcony, from the point of view opposite to the appellant's approach to it. The photographs were taken several years after the event, and they show the area where work was later carried out in the finished state with tiles in position. They also show glass skylights through the balcony giving light to the garage: the glass was not in position on 7 December 2001. The garage floor was at least 2 m below the concrete surface of the balcony; various dimensions were given, up to 4 m. The place where the photographs show glass skylights were, on 7 December 2001, apertures in the concrete surface of the balcony, below which was the concrete floor of the garage.

20 The appellant said that as he reached the end of the corridor and walked onto the balcony he was looking where he was going and in fact saw two gyprock sheets lying on the concrete surface of the balcony. The Trial Judge found (Red 18): He walked across the balcony and, in doing so, stepped on one of the gyprock sheets thinking it was supported by the concrete of the balcony itself. However, the gyprock sheets were simply covering two apertures let into the concrete floor for the purpose of providing sky lights for the garage underneath.

The [appellant] says that when he stepped onto one of the gyprock sheets it broke into pieces and he plunged to the floor of the garage below ….

21 The Trial Judge also found (Red 19): He said that when he walked onto the balcony the owner was present or in the near vicinity, and that no warning had been given to him about the gyprock simply covering an aperture in the concrete, nor was it barricaded in any way to warn persons on the balcony of the presence of the aperture.

22 The respondent gave evidence of a number of matters which the Trial Judge did not accept, including a claim that the appellant did not come to the house with Mr Lee, or accompany the appellant and Mr Lee around the house, and that she first knew of his presence when she found him in the garage claiming to be injured. The respondent's credit was attacked successfully by the appellant's counsel. The Trial Judge found that the respondent was an unsatisfactory witness, for sufficient reasons which his Honour gave, and findings of fact largely but not completely follow the appellant's evidence of the events. From the Trial Judge's conclusions generally it must be understood that his Honour found that the respondent was aware of the presence of the appellant in the house, and was aware that he came to the house in the company of Mr Lee, whom she had invited to attend to give a quotation. She must also have understood that the appellant was present for the business purpose of assisting Mr Lee make a quotation for tiling work, and that he moved around the house for that purpose. She must also have known that he left the group in the lounge room and walked down towards the balcony, which was an appropriate place for him to go as the balcony was to be tiled.

23 The Trial Judge set out the following as matters established in cross-examination of the appellant (Red 19): … the [appellant] agreed that he had worked as a tiler for some eighteen years and during that time had inspected countless number of floors for the purpose of either carrying out tiling work or issuing quotations … he had never seen the circumstance that he encountered at these premises, namely, with gyprock covering holes, although he admitted that he had seen plenty of examples of holes being left in concrete suitable for the installation of the necessary plumbing. … He was questioned as to why he walked on the gyprock and answered that it was quite common to see building materials lying around a site and that he therefore did not think it unusual to see gyprock on this particular verandah.

24 There was no finding by the Trial Judge establishing the size of the piece of gyprock through which the appellant fell, or the other piece of gyprock which covered the other aperture. The appellant said in evidence in chief that the first sheet that he saw was "between 80 centimetres and a metre" (Black 14) meaning, I suppose, that it was rectangular. Later (Black 19) he gave evidence to the effect that the second piece of gyprock was in the area of the second glass opaque tiles shown in the photograph and covered the entire area of the glass tiles. The respondent gave evidence that the two holes for skylights were covered with "two sheets of gyprock and two big beams, timbers on the top of those holes" (Black 59). In cross-examination she was challenged about whether there were in fact big pieces of timber on top of the gyprock. She firmly maintained that there was timber there and said (Black 77): A. … The Gyprock was on the top, the big timber - the beams of the house were on the top, so it would press it down. The water doesn't go underneath the house onto the cement so it doesn't get wet. If the cement gets wet you can't use it. Q. You realise that the plasterboard would not support the weight of a person if they stood on it, don't you? A. Well, the timber would've supported it because you put a whole building on the top of that timber. Q. If someone stepped on the plasterboard you would realise that it would not support their weight, wouldn't you? A. Not, if there is a warning there and big pieces of timber on the top, you wouldn't even step in there. After a passage which is difficult to follow she said (Black 78) A. That's why I had the timbers on the top so nobody would walk on that area. When asked to say how big the timbers were the respondent did not know the measured size but said (Black 79): A. Like, they were this big, it's beams, you know the beams? They put on the top of the doors to hold the building, they were the beams and they were there.

25 The respondent also said to the effect that any person could walk on the beams. The challenge and her adherence to the presence of timber continued (Black 80). Although her evidence is difficult to follow she appears to have maintained that, apparently because of the presence of the timber, it was not possible for the appellant to have fallen through the skylight.

26 The appellant maintained in evidence that there were no pieces of timber on top of the gyprock, but his position was somewhat qualified in cross-examination. The respondent's daughter gave evidence which confirmed the presence of timbers. The Trial Judge's findings established that the gyprock over the skylight had timber placed upon it to hold it down (Red 26), but did not attribute any importance to the timber such as treating the timber as in some way acting as a warning, or treating the timber as offering means for a person to cross the skylight without stepping on the gyprock. The Trial Judge's findings do not attribute any real significance to the timber and I am unable to see that it has any continuing significance.

27 After finding that the appellant did, as he claimed, sustain his injuries by falling through the skylight when the gyprock upon which he stepped broke, the Trial Judge proceeded to state the reasons for his disposition. The Trial Judge said (Red 26): The liability of an occupier of domestic premises to members of the public who are invited onto the premises is to take reasonable care to protect such people from the foreseeable risk of injury arising from any defect on the premises (Australian Safeways Stores Pty Limited v Zaluzna (1987) 162 CLR 479).

That obligation, of course, is tempered by the requirements of the invitee to exercise reasonable care for his or her own safety. See Phillis v Daly (1988) 15 NSWLR 65 at 74. See also Francis v Lewis (2003) [NSWCA] 152.

28 The Trial Judge's reference to Phillis v Daly (1988) 15 NSWLR 65 shows advertence to the effect on the standard of care expected of an occupier of the law's expectation that the entrant would take reasonable care for his own safety. The passage in Phillis v Daly is as follows (at 74-75) (Mahoney JA): There is, in my opinion, a further matter to be taken into account. A person coming upon another's premises is expected to act reasonably. And this is relevant in deciding what it was reasonable for the occupier to do.

In one of the classic passages in Indermaur v Dames , Willes J (at 288) said: "And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know;.…"

This passage, and the words "using reasonable care on his part for his own safety", have been the subject of frequent examination. The words were used, I think, to indicate that the standard of the care expected of an occupier - and therefore what dangers he was expected to deal with - were affected by the law's expectation that the plaintiff would take reasonable care for his own safety. This, in my opinion, is still a matter for consideration. In determining whether he must deal with a particular danger and what he must do, the occupier is still entitled to take into account that, with due allowance for human nature, a person he permits to be upon his premises will use reasonable care for his own safety. To take an example used in argument, in deciding whether the risk was such that they had to spend money to remove the log and replace it with a fence, the defendants were entitled to expect that, with such allowances, persons coming upon their premises would pay heed to the obvious and act accordingly.

29 Francis v Lewis (2003) NSWCA 152 related to occupier's liability where an entrant slipped and fell on an external stairway and it was contended that the handrail was insufficient. The Trial Judge probably had in mind the following passage in the judgment of Mason P: [40] Foreseeability of risk of injury is not determinative of breach of duty of care. If, which I doubt, the learned trial judge overlooked this he would have been in error. The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable (see generally Phillis v Daly (1988) 15 NSWLR 65 at 74, David Jones Ltd v Bates [2001] NSWCA 233, Waverley Municipal Council v Swain [2003] NSWCA 61 at [114]).

30 The Trial Judge went on (Red 26): The premises in question were undergoing additions, alterations and renovations. As such, they represented a building site. I am satisfied that the skylight let into the concrete balcony were protected by gyprock which had timber placed upon it to hold it down. The balcony itself was an extensive one measuring some 8 metres by 4 metres. It is adequately shown in Exhibit C.

For a person walking upon it in its untiled state it would present as a concrete platform with two pieces of gyprock placed in line at points equidistant from the wall of the premises on one side and the wall of the balcony on the other.

I do not believe that content of the defendant's duty of care required any more to be done to protect invitees from the obvious danger of falling through the gyprock.

The content of duty of care and issues of breach have been the subject of appellate jurisprudence in a number of recent cases.

31 After giving references to a number of judicial decisions the Trial Judge continued (Red 27): I think the very positioning of them, that is, the gyprock sheets, would alert a reasonable person to the possibility that they may be covering something. The [appellant] himself was an experienced tiler. During the course of his career he would have experience in walking on and around building sites. In my view he should know that it may be dangerous to walk on structures such as pieces of gyprock. It can be seen in Exhibit C, there was ample room to walk around the gyprock to carry out the inspection of the concrete surface that he was carrying out. In my view, the [appellant] has carelessly walked upon the gyprock when it would have been quite easy to have walked around it. As a consequence, in my opinion, he has failed to take adequate care for his own safety. Accordingly, I find a verdict for the [respondent].

32 The Trial Judge's reasons suffer from shifts in reference between the position of a reasonable person and the position of the appellant himself. There also appears to be, at one point, an intrusion of consideration of contributory negligence. My concern is not only with the correctness of the reasons given but rather with the correctness of the District Court's disposition of the action. The reasons given were not cast in terms which can be readily or closely related to the approach to negligence cases authoratively required in accordance with the judgment of Mason J. in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. Nor did the Trial Judge closely or recognisably follow the paths of decision indicated by provisions of the Civil Liability Act 2002; and counsel particularly referred to Division 2 Duty of Care s.5B General Principles, Division 3 s.5C Other Principles, Causation s.5D General Principles, Division 4 Assumption of Risk ss.5F Meaning of "Obvious Risk" and 5G Injured Persons Presumed to be Aware of Obvious Risk, and to s.5R Standard of Contributory Negligence. The judgment was delivered ex tempore on Friday 13 August 2004 after evidence had been taken on 5th, 6th, 9th and 13th August and counsel had addressed on 13 August 2004. Few ex tempore judgments, indeed few judgments can entirely survive sustainedly hostile criticism or being picked over, and it is my concern to understand what in substance were the grounds upon which the Trial Judge disposed of the proceedings as communicated by his reasons rather than to maintain a critique of his Honour's formulations.

33 In my opinion a complete exposition of the Trial Judge's views on each aspect of ss.5B and 5C is not required for a disposition which will survive an appeal, and it is sufficient for the Trial Judge to state findings and conclusions on such parts of the subject as are required to make the disposition intelligible. The same should be said of the application of the reasoning in Shirt's case; many cases, including many occupier's liability cases, follow relatively well established paths of consideration, and do not call for an exposition of everything which, in principle, could be said to be involved.

34 An important matter for the appellant's evidence to deal with is what it was that led him to walk on the gyprock. His answers dealt with this consistently; the passage in chief is (Black 15): Q. Why did you step onto the gyprock? A. I thought it was sitting on top of the concrete. In cross-examination (Black 40):

Q. Why was it necessary for you to walk in [sic] the gyprock? A. Just to inspect the verandah.

Q. Why did you walk on the gyprock? A. It's quite common on construction sites to have gyprock sheets lying around everywhere, and on that particular day it just looked as if they were just lying on a flat surface on concrete.

35 The Trial Judge referred to this evidence and plainly regarded it as relevant. The appellant's evidence does not explain the matter in hand, that is, why, with the concrete surface available, he walked on the gyprock, and it should be understood that he could not explain this in any better way. The explanation means that the appellant walked on the gyprock because the appearance to him was that it was lying on concrete. This echoes Mallory's reason for climbing Mount Everest - because it was there. It does not explain departure from self-interested regard for personal safety by walking on the available concrete surface in favour of relying on whatever might have been under the gyprock on the assumption that it was more concrete surface. This was no more than an assumption; it did not have a basis, and it was not a reasonable assumption to make on a building site with uncompleted work.

36 His Honour's reference to placing two pieces of gyprock in line at points equidistant from the wall of the premises has to be understood with the photographs which illustrate the positions of the apertures. The apertures are in line and at points equidistant from the wall of the premises; evidence does not show that the two pieces of gyprock over the apertures were the same size or were in positions of regularity and symmetry, but the Trial Judge's findings do not, on a fair reading, say that they were. I do not believe that the Trial Judge's reference to "the obvious danger of falling through the gyprock" is a finding, or reflects an understanding by the Trial Judge that the danger was obvious to the appellant, or to a reasonable person in the position of the appellant, or that it was obvious that there were apertures under the gyprock and that a person who stepped on the gyprock would fall through. Taking the sentence as a whole, in my understanding the Trial Judge alluded to the respondent's duty of care arising from the danger of falling through the gyprock, which undoubtedly was obvious to the respondent, and was addressing, as "the content of the defendant's duty", the reasonable response of the respondent to the foreseeable risk of harm to an entrant; the Trial Judge decided that, where the balcony in its untiled state presented to an entrant as a concrete platform with two pieces of gyprock placed in line, no more needed to be done to discharge the duty of care. I think that this further appears from the Trial Judge's next observation after references to earlier decisions - that the very positioning of the gyprock sheets would lead a reasonable person to the possibility that they may be covering something, and from the reference to there being ample room to walk around the gyprock, to carry out inspection of the concrete surface.

37 The last passage of the reasons for disposition in which the Trial Judge said that the appellant carelessly walked upon the gyprock and that it would have been quite easy to walk around it, should be understood, and is readily understood if not approached in a spirit of hostility, as a reference to the expectation, involved in the occupier's duty of care, that a person coming upon the occupier's premises will act reasonably.

38 I see the reason for his Honour's disposition in elements to which his Honour referred, not, it must be stated, in a well-ordered or cogent way. The appellant had much experience on building sites, in Korea and in Australia; building sites were familiar to him. The foreseeable risk of harm which is relevant is foreseeable risk of harm to a class of persons such as him with experience and familiarity with building sites. He said, firmly and repeatedly in evidence, that he had never encountered apertures such as this on a building site, covered in such a way. This evidence must be taken to be true; there is no basis for finding that it was not; but the possibility that something that one cannot see may not be firm structure is a plain possibility which requires the attention of an experienced building worker moving around a building site. For such an experienced person on a building site, the choice between relying for footing on untiled concrete surface, of which there was altogether sufficient for passage, and relying on whatever may lie unknown under a piece of gyprock is one which a reasonable person, of whom the law holds the expectation referred to in Phillis v Daly that he will take reasonable care for his own safety, could only resolve in favour of relying on the firm structure. There is only one reasonable answer to the choice between adopting as one's starting point an assumption that everything on a construction site is firm and sure and can be stood on unless it has in some way been pointed out that it is not, and the reverse assumption, that something is firm and sure and can be stood on if one can see enough to show that it is. Pieces of gyprock are not left about on building sites so that people can walk on them. Indeed, like building materials generally, they should be respected, not trodden on.

39 The reasonable response to foreseeable risk of injury to an experienced tradesman moving around a construction site is different to the reasonable response to foreseeable risk of injury to a customer moving around a department store, or to a guest invited to a private house on a social occasion. The Trial Judge's conclusion when understood as a conclusion about the reasonable response of a person in the position of the respondent to the foreseeable risk of injury to the appellant, was a conclusion that there was no breach of the duty of care. In my opinion this is correct.

40 The Trial Judge, while finding against the appellant, also made a finding to the effect that if the appellant had been entitled to recover damages, it would have been appropriate to deduct 45% for contributory negligence. The Trial Judge also assessed the damages at $163,696.00. The appellant challenges on appeal the finding that there was contributory negligence, and that 45% is an appropriate apportionment, but does not challenge the assessment of damages at $163,696.00.

41 In my opinion the Court of Appeal should dismiss the appeal.

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Civil Liability Act 2002(NSW)ss 5B, 5C, 5D, 5F, 5G

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