Shoveller v Dak-Wal Constructions Pty Ltd

Background

1. The house consists of a number of levels and a walkway proceeds down a few steps from the road level, then horizontally to the front door. To the right-hand side of the walkway (being to the north) is a garage and to the left-hand side of the walkway there is and was a drop to the lower level. The drop is approximately 2.5 m to 3.0 m. Along the left-hand side of the walkway, as one proceeds to the front door of the house, there was a metal balustrade or handrail.
2. Much of the circumstances surrounding the injury are uncontroversial; damages have been agreed; and the Court is required to determine liability only and, in so doing, determine which or who, if any, amongst the seven defendants is liable and, if more than one, their respective liabilities.
3. On 18 June 2016, the plaintiff was walking along the walkway and stopped immediately in front of the front door of the house. He did so for the purpose of attending to his shoes. At the time it seems that the plaintiff may have been carrying a television, which he had placed on the walkway prior to the fall. As he bent down, the plaintiff lost his balance and fell against the balustrade.
4. The balustrade failed. The plaintiff fell from the walkway to the concrete surface below. The section of balustrade which failed had previously been noted as being in need of repair and was repaired. This section of balustrade was found next to the plaintiff after the fall.
5. As a result of the fall, the plaintiff suffered a complete T8 paraplegia; left-sided fractures to the fourth, sixth and seventh ribs; unstable fractures of T8 and L1; stable fractures of the vertebrae at T9 and T11; pneumothorax (a collapsed lung); and related disabilities. The plaintiff underwent hospital treatment, including a T7-T9 laminectomy and decompression and associated treatment.
6. The plaintiff was born on 9 October 1942 and was almost 74 at the time of the fall. He lived independently and was substantially retired, although he assisted friends and family in general handyman type duties.
7. The proceedings are brought against the third, fourth, fifth, sixth and seventh defendants, each of whom was a part-Owner of the premises (hereinafter referred to as "the Owners"). They are also brought against the first defendant, Dak-Wal Constructions Pty Ltd (hereinafter "Dak-Wal") and the second defendant, Akota Construction Pty Ltd (hereinafter "Akota"). Dak-Wal and Akota were, at various times, at the premises, carrying out building work. The times at which each was carrying out work is disputed.
8. Dak-Wal was retained by IAG Ltd t/as NRMA Insurance in about April 2015 to carry out repairs in relation to storm damage, a claim for which was made by the Owners. IAG had agreed to repair the damage.
9. The repair works were to be undertaken pursuant to a scope of works approved by IAG. Dak-Wal retained a local builder, Akota, to undertake part of the works. Akota also undertook work, not as a subcontractor to Dak-Wal, directly with the Owners in relation to other work to be performed.
10. The works undertaken by Dak-Wal and subcontracted to Akota were set out in a written quote dated 11 March 2016 and were said to be performed in accordance with the Dak-Wal Subcontractor Terms and Conditions. Initially, Dak-Wal retained responsibility for the installation and removal of the external perimeter scaffolding and the removal of the asbestos cladding.
11. Akota was responsible for the balance of the approved scope of works. Akota, as stated, also separately agreed with the Owners to carry out other works not arising from the storm damage, including installation of new windows. This additional work was also the subject of a written quote. Akota apparently engaged subcontractors, including carpenters and painters, in addition to its own employees, to perform its various contracted works.
12. As stated, the handrail or balustrade was made of metal. Also as earlier stated, it had been noted as being in need of repair. It was in a broken and defective condition at a time prior to the commencement of any of the works, but not, it seems, immediately prior thereto.
13. A relative of the Owners (Mr Regan) performed temporary home handyman repairs to the handrail using metal fixings. This temporary repair work was performed in March 2016.
14. According to the first defendant, Dak-Wal, the handrail was not specified to be part of either the works contracted to Dak-Wal or the works contracted to Akota (either by way of subcontract or by way of the contract for the additional work). Akota takes the same view.
15. The Owners, on the other hand, allege that Akota, through an authorised officer or employee, Nathan Pavett, agreed to carry out a welding repair to the balustrade while he was on site. The agreement was oral; was never reduced to writing; and resulted from a conversation between Mr Pavett and Mr Luscombe, the sixth defendant, in October 2015. Further, no price for the repair work had been agreed.
16. The Owners believe that the agreement was repeated, and acknowledged or confirmed in two conversations between Ms Cunningham, the third defendant, and Mr Pavett in April and/or May 2016 and again in June 2016. The second occasion was about one week before the subject incident. Apparently, no price or quote was discussed and no timing was given for the performance of the work. Rather, Mr Pavett said he would do it at a time when Akota was working on site.
17. Akota denies that there was any separate, oral agreement to perform welding repair works to the handrail. In any event, the handrail was not welded before the fall. The building work commenced on site in about early May 2016. The removal of the asbestos cladding was finished by about 9 May 2016.
18. Akota workers and/or contractors attended the premises on 11 May and commenced work on site on or about 12 May 2016. On or by 8 June 2016, the scaffolding had been dismantled, stacked and was awaiting collection at the front of the premises.
19. After this time, Dak-Wal had no further direct involvement in the works other than the circumstance that one of its employees, Mr Squires, attended the premises to photograph aspects of the work on a couple of occasions, the last time before the accident, being 14 June 2016. These photographs were taken in order to supplement or document the progress that had been made in work on the premises in order to report to IAG. Akota performed subcontract work for Dak-Wal after 12 May 2016.
20. Importantly, one of the photographs, taken at 8:44:17am on 7 June, shows this section of the balustrade resting directly on the walkway, having been disconnected, in whole, at each end. The balustrade section was still upright and leaning or resting, but unfixed.
21. The Akota workers and subcontractors finished their various work by 10 June 2016. There was still to be completed painting work, which was completed on 17 June 2016.
22. I reiterate that damages have been agreed and the parties agree that the damages, if liability be determined, be in the sum of $3 million, plus costs, as agreed or assessed. There is no claim for contributory negligence. Initially, there were claims for contributory negligence, but such claims have been withdrawn.

Evidence

1. The plaintiff, Mr Shoveller, gave evidence and filed an Amended Evidentiary Statement dated 8 August 2019. He has no recollection of the accident and little of the events in the period immediately prior to it. The lack of memory is unsurprising, given the nature of the injuries.
2. As a consequence of his lack of memory and the agreement as to damages, his evidence is not especially relevant to the issue of liability. There were some matters of relevance.
3. Mr Shoveller remembers being invited to the house and remembers meeting Tony Bates on arrival in the afternoon of 17 June 2016. He had not been to the house prior to that occasion.
4. When he arrived at the premises, Mr Shoveller saw painters at work and he was informed that the premises had just been re-clad. As a result of work being performed on the premises when they arrived, Mr Shoveller, his daughter and grandchildren left at the premises the car in which they arrived and walked to the beach.
5. On 18 June 2016, Mr Shoveller had been in the downstairs area of the house trying to fix the television, because the television in the top unit was not working. Thereafter, all that Mr Shoveller can recall is that: he was with his grandson downstairs; he went up the stairs to put his shoes on; and he recalls nothing else until after the accident, or, more accurately, as he was "flying through the air". After the recollection as to flying through the air, the next thing that is recalled is waking in hospital.
6. He was the subject of some cross-examination and admitted that he had, in the time prior to the accident, walked up and down the pathway or, as referred to in these reasons, walkway, adjacent to the balustrade at least once or twice. He could not remember whether he had done so more times than that.
7. Mr Shoveller does not recall noticing anything unusual about the handrail or how it was connected to the house. Nor does he recall whether he was carrying the television before the fall.
8. Michael Shoveller (hereinafter "Michael"), the plaintiff's grandson, gave evidence and relied upon his Evidentiary Statement dated 1 September 2020. He had travelled to the Central Coast for a long weekend family get-together. He remembers staying one night before the plaintiff had his accident. By the time Michael arrived the plaintiff's daughter, Angeline (Michael Shoveller's aunt) and Angeline's daughter, Francesca, were already at the premises. Michael Shoveller's mother, Karen (now Karen Bates) and her partner Tony arrived about two hours later.

1. The only other evidence adduced by the plaintiff was a communication ultimately from Mr Regan, who had completed the repairs to the balustrade. By agreement that document was admitted. [2] Mr Regan was called by the Owners. The substance of the evidence, which is important in the scheme of the matters to be decided in these proceedings, is in the following terms: "- You said the existing handrail failed - brief description of what went wrong with it. It was old and starting to rust in the two places where it joined the house and joined the original handrail - when was the temporary repairs to the existing handrail carried out - I don't know exactly but well before the insurance repair work started - I'm guessing early 2016 - you can ask Murray Regan - he did the temporary repair work - who proposed the temporary fix Murray Regan - who carried out the temporary and at whose recommendation was the threefold fix carried out Murray Regan - is it true that one of the husbands of the co-owners undertook a temporary repair to the handrail, is this correct? Murray Regan was Merran Doyle's live in partner at the time (2016). They got married in Feb 2018 - so now husband of co-owner - what work did he actually carry out? Was it the installation of the bracket or the white piece of material? It was the installation of brackets in 2 locations - short term temporary repair until more permanent fix (welding) could occur. I don't know what you mean by white piece of material - when did you instruct Akota to fix the handrail by welding two section of the handrail together? Verbally in April or May 2016 - it was not on the written variation list of the attached contract because Akota agreed to do it for free - it appears that the bracket worked for a time, who removed the bracket or the white piece of material? The bracket would have worked perfectly well if it had not been disconnected by someone. We do not know who disconnected the bracket, however, it is very likely to have been either DakWal or a sub-contractor of DakWal or Akota. Possibly whomever removed the scaffold from around the house - perhaps whomever removed the scaffold thought it would be easier to move the scaffold pieces back towards truck if handrail was not in the way - what was this material made of? Brackets were made of steel - please check with Murray Regan - 22 May and 18 June - was it 2016? Yes both photos were 2016 - I note there were a few photos taken - please provide copies of other photos. Attached email from Guy Luscombe dated 31 May 2016 - has some photos. My brother, Tony Bates took some photos on 18 June 2016 - one hour before the accident - please ask him for his photos from that day - when were you informed of the incident. If you are notified by email, please provide copy of the email I was informed of the accident on the evening 18 June 2016 by telephone. I can't remember who called me - either my sister or my brother. I was not notified in writing - at the date of taking the photos, had you already been informed of the incident - No the photo issued to you dated 18 June 2016 was taken approx. one hour BEFORE the accident - who and at what time was the photograph taken on 18 June 2018 My brother Tony Bates. He was taking photos to show us all the great progress of the work by the builders and to show us how nice the house looked - who took the photographs? Tony Bates - my brother"

Conclave

1. Three experts were qualified and gave evidence in the proceeding. Prior to the evidence, there was a conclave of the experts and a report issued dated 26 June 2020, which answered a number of very specific and detailed questions.
2. Mr Bailey, a mechanical and biomedical engineer, but not a builder, building consultant or architect prepared a report which was commissioned by the Owners, dated 26 March 2020. His report was later in time than the report of Dr Cooke of 1 April 2019 and of Mr Hickey of 29 January 2020 who were qualified by the plaintiff and the second defendant respectively.
3. Mr Hickey, whose report was prepared on behalf of Unisearch, a business section of University of New South Wales, is a builder with over 48 years' experience in the construction industry. His resume is before the Court.
4. Dr Cooke is a consultant architect and, as has been stated, was qualified by the plaintiff and, somewhat ironically, also gave his opinion on behalf of Unisearch. I do not summarise each of the individual reports. The experts were, in large measure, in agreement and most of the crucial questions, if not all, are answered in the report of the conclave, which does need to be summarised.
5. Some of the questions and answers are relevant and extremely important, but uncontroversial. The experts give the dimensions of the railings and each baluster. They also give the dimensions of the posts at either end of each section of the railing or balustrade, but, most relevantly, that post which was adjacent to the doorframe.
6. The experts expressed the opinion that the section of the railing that failed was a section that was added after the railing was initially constructed. This was the result of an alteration in the building itself.
7. Initially, it seems, where the failed balustrade was placed, there were stairs to the lower level of the premises. At some point in time those stairs were removed and the section of balustrade that ultimately failed was erected between the end of the pre-existing balustrade and the house to cover the area previously utilised for the stairs.
8. The manufacture of the balustrade seems to have been all done at the same time and the experts expressed the view, with which I agree, that the new section of the balustrade, that which ultimately failed, was initially a balustrade used on the stairs that were removed.

Plaintiff's Submissions

1. On the balance of probabilities, the plaintiff submits, that the plaintiff would not have fallen had the balustrade been properly secured. Frankly, this is trite and is certainly the evidence of the experts.
2. That the plaintiff would not have fallen had the balustrade been properly affixed is not the issue that is controversial in the proceedings. That which is controversial is the issue of causation in relation to each of the defendants and, in that regard, is dependent, on the submission of the plaintiff, on whether or not one or more of the defendants removed the balustrade or was responsible for its removal and/or ought to have affixed the balustrade permanently in such a way as to prevent a person who placed any pressure upon the railing from falling.
3. There is no doubt that one or more of the defendants removed the balustrade section and did not secure its refixing. The issue is which defendant, if any, is responsible for its insecurity or weakness.
4. The plaintiff submits that the Owners of the property either jointly or individually were aware of the fact that the balustrade was not properly affixed and sought to have it repaired. This was done by Mr Regan and the plaintiff submits that the owners are responsible for inviting the plaintiff to the premises in circumstances where the premises were not safe.
5. Against that proposition, the experts agreed that the repairs performed to the impugned section of the balustrade or railing by Mr Regan was such that the fall would not have occurred. The Owners had repaired the defect of which they were aware prior to the work being performed.
6. The plaintiff submits that a reasonable inspection by the Owners would have established, immediately, prior to the fall and/or prior to the invitation being issued or implemented, that the balustrade was not properly attached. The Owners were aware that the property was being rented and were aware that there were persons staying at the premises on the subject weekend. For that reason, the plaintiff submits that the Owners are liable as occupiers.
7. Further to the foregoing, the plaintiff submits that the first defendant is also liable in negligence as a consequence of its responsibility as principal contractor and its function in erecting and dismantling the scaffolding and removing the asbestos cladding. The plaintiff submits that Mr Squires ought to have been aware, having walked past the gap that the failed balustrade had created on 7 June 2016, of the risks associated with persons walking along the walkway in the absence of a section of the railing.

Submissions of Dak-Wal

1. Dak-Wal accepts that it took possession and control of the site as a building contractor to the Owners. At that point in time it acquired the duty of care as an occupier of the premises.
2. However, the submissions of Dak-Wal maintain that the duty came to an end when its occupation relevantly ended and the site was handed back to the Owners. This, according to Dak-Wal was when all the scaffolding had been dismantled and stacked ready for pickup.
3. Dak-Wal also concedes that, even if it were not the occupier of the premises at the time of the injury, it came under a duty of care if, as the contractor, it were aware of a hazard on the premises "in respect of which it was reasonably foreseeable that a person entering the property, even after handover, may be injured".
4. The first defendant, Dak-Wal, also relies upon Jones v Dunkel in relation to the failure of the second defendant, Akota, to call Mr Pavett and at least five other workers who were on the site over many of the relevant days.
5. Further, Dak-Wal submits that the Owners were aware of the pre-existing defect in the handrail and that the repairs carried out by Mr Regan were temporary. The Owners owed entrants, such as the plaintiff, a duty of care because they knew they would be staying at the property. The submission of Dak-Wal is that the Court is entitled to expect the Owners to give evidence in those circumstances.
6. The difficulty with the foregoing submission is that the alleged pre-existing defect in the handrail was a defect which, on the opinion expressed by each of the experts, would not have allowed the fall to occur or, otherwise put, would have prevented the fall. The repairs effected by Mr Regan were sufficient to resist the force of a person leaning or falling against the balustrade.
7. As to the liability of Akota, Dak-Wal submits that it is under the same duty as occupier/builder as Dak-Wal was. This submission must be confined to the time from the completion of Dak-Wal's contract works, when the scaffolding was removed as it was only from that time that Akota could have been the occupier/builder. Prior to that time Akota was a subcontractor only and the principal contractor and occupier of the premises was Dak-Wal.
8. Nevertheless, at least from the time of the completion of the scaffolding until the handing over of the site on 17 June 2016, Akota owed, on the submission of Dak-Wal, a duty as an occupier/builder and that duty required it to handover on 17 June 2016 a site that was safe. Further Akota had a duty to inform the owners of any hazard on the premises of which it was aware, or ought reasonably to have been aware, which occasioned any risk of harm or foreseeable risk or harm.

Submissions of Akota

1. The submissions of Akota start with the rather trite proposition that there is a factual issue as to which of the parties disconnected the railing and at what point in time. One possibility, on that submission, is that Dak-Wal's workers disconnected it when removing the scaffolding. If that inference is not drawn, all that can be said is that the railing was disconnected by unknown persons for unknown reasons sometime between 22 May 2016 and 8:44:17 AM on 14 June 2016. I do not accept that the disconnection, at least in relation to Connection 2 and the long, fixing screws used, necessarily occurred after 22 May 2016.
2. Dak-Wal was the head building contractor for the works. Akota submits that a builder in occupation and overall control of the site owes a duty to persons coming onto that site to use reasonable care to prevent them from sustaining injury by reason of dangers on the site. Here, the defective railing was a danger on the building site for which Dak-Wal bore overall responsibility.
3. If Dak-Wal removed the connections to the railing, reasonable care required that they be made good. If Dak-Wal did not remove them, on the submission of Akota, Dak-Wal should, nonetheless, through Mr Squires, have noticed them on 7 or 14 June 2016. As a consequence, Akota submits that, if any party were to be liable, it must be Dak-Wal.
4. Further, Akota submits that, in relation to the Owners, they remained in occupation of the premises by retaining access to the premises during the works and letting out the premises during that time. The Owners, according to the submission, were co-occupiers of the premises with Dak-Wal.
5. If there were to be criticism of the Owners, it is that they ought to have inspected the property before letting it out to visitors such as the plaintiff. At the very least, their failure to inspect the premises establishes their liability.
6. The only case, and if not the only then certainly the primary case, of the plaintiff against Akota, on Akota's submissions, is that it detached the railing. Such a submission is contrary to the evidence and must be dismissed.
7. If there be a secondary case against Akota, on Akota's submission, it must fail because Akota owed no relevant duty of care. Akota did not have the duties of a builder/occupier or owner/occupier with respect to the safety of the overall premises.

Owners' Submissions

1. Lastly, the Owners submit that each of the defendants (Dak-Wal, Akota and the Owners) owed the plaintiff a duty of care. The nature and scope of the duty owed by each defendant was to take reasonable care for the safety of people who could reasonably be expected to enter the subject property.
2. The Owners submit that, by engaging, through their insurer, competent contractors, Dak-Wal, and its subcontractor, Akota, to do the work, the Owners did not breach any duty they owed the plaintiff. The cause of the balustrade being in the state that it was when it failed must rest with something done or not done either by Dak-Wal or by Akota. Either one or both of them breached the duties it owed to the plaintiff.
3. The Owners submit that it should have been reasonably foreseen by each of Dak-Wal and Akota that the works might involve the balustrade being the subject of interference. Either one or both should have ensured that the balustrade was safe. If it were reasonably foreseeable for Dak-Wal and Akota that the works might involve such interference, then, as a matter of logic or common sense, it was also foreseeable for the Owners.
4. They, being either or both Dak-Wal and Akota, on the Owners' submission, should also have foreseen that, if the balustrade were not left in a safe condition, someone could place weight upon the balustrade and fall to the ground below. The Court remarks that such a submission applies equally to the Owners.
5. Dak-Wal was the head contractor and its employee, Mr Squires, on 14 June 2016, took a photograph looking up towards the balustrade from the ground below and also took a photograph looking down from the walkway. At that point in time, on the submission of the Owners, Mr Squires must have been standing next to or adjacent to the defective balustrade. On that basis, Dak-Wal should be held to have primary responsibility, if not entire responsibility.
6. The Owners submit that the connection between the upper railing in the house was lost and the panel of the balustrade had been lowered to the concrete surface, thereby disengaging that panel at the slotted timber block.
7. According to the Owners' submission, the only workers in that area in the period in which that connection was lost were the scaffolders who were the responsibility of Dak-Wal. The Owners' submission points to the agreement of the experts that the disconnection of the impugned panel of the balustrade occurred after 22 May, when Photograph A was taken and is likely to have occurred before 14 June or on 14 June 2016. This is derived from the content of Photograph B showing the balustrade panel that failed in a lower position and placed on the concrete walkway.

Jones v Dunkel inference

1. Each of the parties relies upon the failure of other parties to call certain witnesses and the inference that is said to arise from the principles established by the High Court in Jones v Dunkel. But the principles arising from the judgment in Jones v Dunkel are not as far-reaching as the parties seem to assume.
2. First, one or other of the parties relies upon the principles in Blatch v Archer. [21] The principle thereby establishes that all evidence is to be weighed according to the proof which one or other side in the proceedings has the power to produce and the other side the power to contradict. [22] The principle allows a court more readily to accept evidence adduced in circumstances where it was within the power of another party to contradict it and that party chose not to contradict it or not to call evidence in that respect.
3. Further, the inferences that are said to arise from the principles adumbrated by the High Court in Jones v Dunkel allow the Court more readily to draw inferences that otherwise arise in proceedings. Yet, those inferences must otherwise arise in the proceedings and the principles in Jones v Dunkel do not allow the Court to conjecture as to what evidence would have been or should have been called.
4. The Jones v Dunkel inference arises only in circumstances where a party would be expected to adduce the absent evidence and allows the drawing of an inference that nothing in the absent testimony or evidence would have assisted the case of the party that would have been expected to call the witness or adduce the evidence. It does not allow the Court to draw an inference where there is no evidence from which such an inference could be drawn. Nor does it allow the Court to make up for a deficiency in evidence such that the failure of the party to make out a case on the balance of probabilities can be overcome by the effect of the principles and the drawing of such inferences.
5. A party that does not bear the onus of proof on a particular issue is entitled to sit on its hands and rely upon the failure of the moving party, who or which does bear that onus, to prove its case.
6. The facts that gave rise to the judgment of the High Court in Jones v Dunkel were that there was an issue in proceedings relating to a motor vehicle accident as to which side of the road each driver was travelling. At trial, the defendant sought a verdict by direction, which was refused. The Court of Appeal dismissed an appeal taken by the plaintiff against the ultimate verdict in favour of the defendant on the basis that the plaintiff submitted an inference ought to have been drawn from the failure of the defendant to give evidence. The appeal turned on the direction to the jury given by the trial judge.

Comments on the Oral Evidence

1. The Court accepts that, in the absence of the fixing plates and screws penetrating the asbestos, the cladding would and could be removed by the process described by Mr Jacobs and, in a less detailed way, by Mr Squires. That process was also accepted as appropriate by the experts.
2. The presence of the fixing plate, or more accurately the screws used to fix it and the timber fixing block and its screws, alters that process. The process initially described by Mr Jacobs and also described in the evidence of Mr Squires would have been impossible to perform, if Connection 2 had been screwed to the architrave, through the asbestos cladding and into the timber bearer behind.
3. The nature of Connection 2 and the fixing plate in Connection 1, together with the photographs that show what seemed to be holes where the screws would have been, make it more likely than not that Connection 2 was attached by screws (hereinafter sometimes referred to as "the fixing screws") into the architrave, through the asbestos cladding and into the timber bearer. This is consistent with the evidence of Mr Regan and I find, on the balance of probabilities, that Connection 2 was attached in that manner.
4. I also accept, on the balance of probabilities, that Connection 2 was screwed, with force, to the material into which it was being fixed. As a consequence, the Court holds that, without removing the fixing screws, the asbestos board could not have been removed easily and may, possibly, not have been able to be removed at all.
5. I do not accept the version of the manner in which the asbestos board was removed behind Connection 2, given, for the first time, by Mr Jacobs in cross-examination. His original version was the use of a nail-puller [27] and the removal of the asbestos cladding in sheets by sliding it out from behind the architrave. Only in cross-examination did he give a version which accommodated the presence of screws through the cladding.
6. Further, as Mr Squires explains and as Mr Jacobs corroborates, the safest way to remove the asbestos cladding, given the danger of asbestos powder, was to remove it in sheets and not to cut or break the asbestos board on site. This was the version of the method of removal of the asbestos cladding given by Mr Squires and, in his examination-in-chief, by Mr Jacobs. It also accords with the method suggested as most convenient and appropriate by the experts.

Timeline and Photographs

1. Thus far the Court, in these reasons, has dealt with the evidence of Mr Squires and Mr Jacobs who were involved, either in a supervisory or hands-on manner, in the removal of the asbestos cladding. One of the issues associated with the evidence given by Mr Jacobs in cross-examination as to the method of removing the asbestos cladding with the fixing screws, being the screws that fixed the balustrade to the architrave, is that the method described is inconsistent, not only with the evidence-in-chief of Mr Squires and Mr Jacobs, but with the rationale provided by each of Mr Squires and Mr Jacobs for the removal in that way. The cladding was, at least in part, behind the architrave to the door.
2. In so far as the cladding was not behind the architrave to the door, the method described by Mr Jacobs in cross-examination could easily be utilised. To the extent that the cladding was behind the architrave, the method described by Mr Jacobs in cross-examination is either extremely difficult or impossible.
3. As earlier stated asbestos cladding is brittle and has no structural strength. It will not support weight. The combination of the danger of asbestos dust and the brittleness of asbestos board has occasioned the development of a method by which such cladding is cut without the use of power tools. There was a time, in the building and construction industry, where asbestos cladding (and other asbestos products) would have been drilled and/or sawed.
4. Mr Squires and Mr Jacobs each described the method by which asbestos board is cut. After the board is scored, or the skin of it sliced, the board can be snapped along the line of scoring.
5. The version of removal of board around the screws that was described by Mr Jacobs in cross-examination would be extremely difficult in circumstances where the board was being removed from behind the architrave and without removal of the architrave. It would be even more difficult if, as has been the evidence in these proceedings, the screws in Connection 2, fixing the balustrade to the architrave and the house, were applied tightly, leaving no gap between the connection, the architrave, the asbestos cladding and the bearer behind.
6. The parties seemed, generally, to concentrate on the removal of the screws from Connection 2 and less attention was paid to the circumstances surrounding Connection 1. At this point, the Court reiterates that Connection 1 connected the impugned balustrade to the western wall of the house, connecting the lower railing of the balustrade to the area under the front step of the house.

Principles on Liability

1. First, it is necessary to identify the risk of harm. The risk of harm that should be identified with sufficient precision is that which would enable a defendant, and the Court, to assess a reasonable response to the risk. [39] The risk of harm need only be identified with sufficient precision to enable one to determine which of a number of risks are involved, for the purpose of determining what, if any, reasonable precautions ought to have been taken in order to avert it. [40] It is generally unnecessary and undesirable to define the relevant risk with too great a level of particularity.
2. In these proceedings, the plaintiff was an invitee, who was renting the property from the Owners. As such, there is a relationship between the plaintiff and the Owners which gives rise to a duty of care. That duty of care requires the Owners to take reasonable care to avoid a foreseeable risk of injury to the plaintiff, or a person in his class. [41]
3. The claim for damages by the plaintiff is governed by the terms of the Civil Liability Act 2002 (NSW), which governs the determination of liability for negligence.
4. No party in these proceedings suggests that the failure of the balustrade was an obvious injury or one for which liability would not run. As already stated, liability for the Owners rests upon the principles of occupiers liability, which is a well-known and previously determined relationship.
5. The determination of whether a duty of care exists, in situations that have not previously been determined as one of the traditional relationships, and, even in those for which there has traditionally been a duty of care established, involves the application of a matrix or calculus to which the High Court referred in Wyong Shire Council v Shirt. [42] A duty of care arises when there exists between the defendant, who was said to owe it, and the plaintiff, to whom it is said to be owed, a sufficient relationship of proximity, such that a reasonable person in the position of the defendant would foresee that carelessness would be likely to cause damage. [43] Whether there is a relationship that gives rise to proximity is a conclusion, not a test.
6. The circumstances in which Shirt was decided arose as a result of the Court dealing with breach of the duty of care, rather than its existence. While the High Court dealt with that issue on a basis that included foreseeability, the issue of foreseeability differs slightly when one is dealing with damages arising from the risk of injury, on the one hand, and breach of the duty of care that is said to arise, on the other hand.

Conclusion

1. A number of factual aspects are obvious from the evidence in the proceedings and are otherwise described in the foregoing reasons. First, the accident and damage to the plaintiff was caused by that section of the balustrade closest to the house and enclosing the walkway failing. Secondly, the plaintiff was on the premises as a consequence of an invitation and commercial arrangement between the plaintiff or his family and the Owners.
2. The risk of harm from falling from the walkway was foreseeable and the Owners were required, as occupiers of the premises at the time that the injury occurred, to take reasonable precautions for the avoidance of that risk of harm. The relationship between the Owners and the plaintiff was such that there was a "proximity" between them and a duty of care existed.
3. That such an injury or such a risk was foreseeable is relatively uncontroversial. The Owners submit that they took reasonable steps to avoid the manifestation of the risk of harm. Dak-Wal submits that the Owners were aware of the instability or insecurity of the particular section of the balustrade. The last proposition is accurate, only to a point.
4. The Owners were aware of the weakness of the section of balustrade, prior to the commencement of works and the occupation of the premises by Dak-Wal. The Owners took steps to remedy that weakness and obviate the risk of harm. On the expert evidence, the steps that the Owners took, at that time, would have obviated the risk of harm from circumstances of the kind that occurred and which caused the plaintiff's damage.
5. There can be little doubt that the Owners, in effecting the repairs, albeit temporary, to the balustrade took reasonable steps to avoid the risk of harm associated with a foreseeable injury.
6. Nevertheless, the Owners then undertook building work and, in particular, were aware that Dak-Wal undertook works, either directly or through one or more subcontractors, at the premises. The risk of harm associated with the fall from the walkway remained.
7. Before renting the premises, the Owners should have inspected the premises to ensure that the works had been completed satisfactorily and that the works, directly or indirectly, had not occasioned circumstances that presented a risk of harm.
8. The failure of the Owners to inspect, in particular, the balustrade, before letting the premises to the plaintiff and/or his family was a failure to take reasonable steps to avoid the risk of harm. That risk of harm was foreseeable.

Endnotes

1. Exhibit D.
2. Exhibit E.
3. Exhibt 2D-6.
4. Exhibit 2D-1.
5. Exhibit 2D-4.
6. Exhibit CB1, p 116 (Statement of Steven Paul Squires dated 1 November 2019 at [9]).
7. Exhibit CB1, p 118 (Statement of Steven Paul Squires dated 1 November 2019 at [24]).
8. Exhibit CB1, p 128 (Statement of Steven Paul Squires dated 1 November 2019 at "SPS5").
9. Tcpt, 8 September 2020 p 45.
10. Tcpt, 8 September 2020, p 45(27-29).
11. Tcpt, 8 September 2020, p 39(35-44).
12. IMG_0399J PG, 22 May 2016 at 6:57 AM found as part of Exhibit 3D-3 and in the Court Book, Exhibit CB-1, p 234.
13. Tcpt, 8 September 2020, p 43(25)-45(29).
14. Tcpt, 8 September 2020, p 64(30-32).
15. CB1, p 238 (Affidavit of Anthony James Jacobs dated 12 August 2020 at 12).
16. CB2, p 314 (Joint Concalve Report of Dr Cooke, Mr Hickey and Mr Bailey, 26 June 2020 at 5 [43]-[47]).
17. CB2, p 315 (Joint Conclave Report of Dr Cooke, Mr Hickey and Mr Bailey, 26 June 2020 at 6 [1]-[4]).
18. CB2, p 598-599.
19. Question and answer 42 of the Conclave Report.
20. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
21. Blatch v Archer [1774] 1 Cowp 63 at 65; (1774) 98 ER 969 at 970, per Lord Mansfield.
22. Ibid; cited with approval in Weissensteiner v The Queen (1993) 178 CLR 217 at 225 [23]; [1993] HCA 65.
23. Jones v Dunkel, supra, at 319-320.
24. Bell v Thompson (1934) 34 SR (NSW) 431.
25. Jones v Dunkel, supra, per Windeyer J, at 320-321.
26. Weissensteiner v The Queen, supra, at CLR 227, per Mason CJ, Deane and Dawson JJ.
27. The statement of Mr Jacobs referred to a "nail", which was corrected in evidence in chief.
28. Exhibit CB2, p 608 (Expert Report of Mr William Bailey dated 26 March 2020).
29. Exhibit CB2, p 610 (Expert Report of Mr William Bailey dated 26 March 2020).
30. See for example Exhibit 3D-1.
31. See Exhibit 3D-3, including the enlargement of the photograph taken on 18 June 2016 and the partially completed cladding photograph and its enlargement taken on 25 May 2016, particularly in the area of the enlargement of the area marked with a yellow box from the original photograph.

Amendments 08 April 2021 - inserted images and corrected paragraph numbering 20 April 2021 - Case title amended from (No 2) to (No 3) as Justice Rothman issued two ex tempore judgments prior to the substantive judgment. 11 May 2021 - - Orders [1], [3] and [4] - subsequently varied in Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509;

• Orders [8] and [9] - subsequently vacated in Shoveller v Dak-Wal Constructions Pty Ltd (No 4) [2021] NSWSC 509. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2021