[2009] HCA 48
Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
[1987] HCA
Baker v Gilbert [2003] NSWCA 113
Bell v Thompson (1934) 34 SR (NSW) 431
Blatch v Archer [1774] 1 Cowp 63
[1959] HCA 8
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
[1991] HCA 12
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 48
Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479[1987] HCA
Baker v Gilbert [2003] NSWCA 113
Bell v Thompson (1934) 34 SR (NSW) 431
Blatch v Archer [1774] 1 Cowp 63[1959] HCA 8
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506[1991] HCA 12
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254[2000] HCA 61
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1[2015] NSWCA 90
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492[1985] HCA 34
Ridis v Strata Plan 10308 [2005] NSWCA 246
RPS v The Queen (2000) 199 CLR 620[2000] HCA 3
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330[2007] HCA 42
Strong v Woolworths Ltd (2012) 246 CLR 182[2012] HCA 5
Sutherland Shire Council v Safar [2017] NSWCA 203
Tame v New South Wales (2002) 211 CLR 317[2002] HCA 35
Wallace v Kam (2012) Aust Torts Reports 82-101[2012] NSWCA 82
Weissensteiner v The Queen (1993) 178 CLR 217[1993] HCA 65
Wyong Shire Council v Shirt (1980) 146 CLR 40
Judgment (15 paragraphs)
[1]
Background
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[2]
Evidence
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.
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.
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.
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.
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.
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.
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.
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.
[3]
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"
[4]
Conclave
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.
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.
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.
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.
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.
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.
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.
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.
[5]
Plaintiff's Submissions
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.
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.
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.
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.
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.
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.
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.
[6]
Submissions of Dak-Wal
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.
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.
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".
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.
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.
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.
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.
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.
[7]
Submissions of Akota
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.
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.
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.
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.
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.
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.
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.
[8]
Owners' Submissions
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.
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.
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.
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.
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.
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.
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.
[9]
Jones v Dunkel inference
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.
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.
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.
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.
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.
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.
[10]
Comments on the Oral Evidence
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.
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.
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.
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.
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.
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.
[11]
Timeline and Photographs
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.
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.
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.
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.
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.
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.
[12]
Principles on Liability
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.
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]
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.
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.
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.
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.
[13]
Conclusion
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.
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.
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.
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.
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.
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.
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.
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.
[14]
Endnotes
Exhibit D.
Exhibit E.
Exhibt 2D-6.
Exhibit 2D-1.
Exhibit 2D-4.
Exhibit CB1, p 116 (Statement of Steven Paul Squires dated 1 November 2019 at [9]).
Exhibit CB1, p 118 (Statement of Steven Paul Squires dated 1 November 2019 at [24]).
Exhibit CB1, p 128 (Statement of Steven Paul Squires dated 1 November 2019 at "SPS5").
Tcpt, 8 September 2020 p 45.
Tcpt, 8 September 2020, p 45(27-29).
Tcpt, 8 September 2020, p 39(35-44).
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.
Tcpt, 8 September 2020, p 43(25)-45(29).
Tcpt, 8 September 2020, p 64(30-32).
CB1, p 238 (Affidavit of Anthony James Jacobs dated 12 August 2020 at 12).
CB2, p 314 (Joint Concalve Report of Dr Cooke, Mr Hickey and Mr Bailey, 26 June 2020 at 5 [43]-[47]).
CB2, p 315 (Joint Conclave Report of Dr Cooke, Mr Hickey and Mr Bailey, 26 June 2020 at 6 [1]-[4]).
CB2, p 598-599.
Question and answer 42 of the Conclave Report.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
Blatch v Archer [1774] 1 Cowp 63 at 65; (1774) 98 ER 969 at 970, per Lord Mansfield.
Ibid; cited with approval in Weissensteiner v The Queen (1993) 178 CLR 217 at 225 [23]; [1993] HCA 65.
Jones v Dunkel, supra, at 319-320.
Bell v Thompson (1934) 34 SR (NSW) 431.
Jones v Dunkel, supra, per Windeyer J, at 320-321.
Weissensteiner v The Queen, supra, at CLR 227, per Mason CJ, Deane and Dawson JJ.
The statement of Mr Jacobs referred to a "nail", which was corrected in evidence in chief.
Exhibit CB2, p 608 (Expert Report of Mr William Bailey dated 26 March 2020).
Exhibit CB2, p 610 (Expert Report of Mr William Bailey dated 26 March 2020).
See for example Exhibit 3D-1.
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.
[15]
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
fic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Sutherland Shire Council v Safar [2017] NSWCA 203
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Wallace v Kam (2012) Aust Torts Reports 82-101; [2012] NSWCA 82
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Texts Cited: J Wigmore, A treatise on the Anglo-American system of evidence in trials at common law : including the statutes and judicial decisions of all jurisdictions of the United States and Canada (3rd ed, 1940, Little, Brown) Vol 2, s 285
Category: Principal judgment
Parties: Alfred Shoveller (Plaintiff)
Dak-Wal Constructions Pty Ltd (First Defendant)
Akota Construction Pty Ltd (Second Defendant)
Joanne Patricia Cunningham (Third Defendant)
Merran Rosemary Doyle (Fourth Defendant)
Susan Daintrey Virgona (Fifth Defendant)
Wilfred James Luscombe (Sixth Defendant)
Lucia Louise Luscombe (Seventh Defendant)
Representation: Counsel:
K Andrews (Plaintiff)
D Priestley SC / T Berberian (First Defendant)
N Chen SC / D Stretton (Second Defendant)
B Hull (Third - Seventh Defendants)
His recollection of events is, not unexpectedly, better than that of the plaintiff. The first night they had dinner together as a family and, on the next morning, Michael went to the beach with a number of the others, although the weather was wintry. Notwithstanding the wintry weather, it had not been raining on the day of the accident.
Michael and the others, or some of them, had lunch at the house and then went to a pub in the afternoon. Michael had one glass of wine; Michael does not recall the plaintiff having a drink as the plaintiff does not ordinarily drink alcohol.
The group spent about an hour at the hotel and then returned to the house. He and the plaintiff wanted to watch football, but the television was not working. They decided to go downstairs to the unit below to investigate what they could do to improve the reception.
While trying to improve the reception, the plaintiff offered to go upstairs to retrieve a second television screen. Michael remained downstairs. Within five minutes, Michael heard a loud bang.
He went outside the front door of the lower unit to investigate the noise and saw the plaintiff lying on the ground. He was confused about what had occurred but noticed that the railing from the entrance upstairs was lying on the ground next to the plaintiff.
He also noticed that the plaintiff did not have shoes on his feet. One of the shoes was on the ground near him and he later observed the other shoe upstairs, near the front door of the upper level unit, on the walkway.
The plaintiff was not moving when he was seen by Michael; who went upstairs to tell everyone what had happened; came back to the plaintiff; and, on his return, noticed that the plaintiff was making noises. There was no mobile telephone reception at the house and Michael's mother, on Michael's understanding, drove down the road to obtain reception to call an ambulance. The ambulance arrived a short time later.
It is unnecessary to deal with the evidence-in-chief of Karen Bates, who is the daughter of the plaintiff and the mother of Michael Shoveller. There was no cross-examination of Karen Bates or Michael Shoveller.
They were the only witnesses called by the plaintiff. The degree of cooperation between the parties was significant and the parties ought to be commended for that cooperation and agreement. It accords with the parties' and their legal representatives' obligations under s 56 of the Civil Procedure Act 2005 (NSW), but, even so, the parties and legal representatives are to be congratulated for the level of cooperation.
That cooperation included a Schedule of Agreed Facts. Some of the facts were agreed between some of the parties but not others; some of the facts were agreed by all of the parties. The Schedule [1] is in the following terms:
FACTS SHEET AGREED (A) OR DISPUTED (D)
FACT P D1 D2 D3
1 In mid-2015, a storm damaged the subject premises and an insurance claim was lodged by the homeowners with the NRMA. That claim did not concern the subject handrail A A A A
2 NRMA Appointed Dak-Wal to carry out the storm damage repairs A A A A
3 Dak-Wal was responsible for the erection and dismantling of the scaffolding and for the removal of the damaged asbestos cladding A A A A
4 Dak-Wal was the head contractor for the storm damage repair works A A A
5 Dak-Wal sub-contracted the fixing of the new cladding to Akota A D A A
6 Akota agreed to do other works for the owners whilst doing their subcontract works for Dak-Wal A A D A
7 Part of the additional work that Akota agreed to do was the welding of the subject balustrade D D D A
8 Removal of the asbestos cladding was completed by 9 May 2016 A A A A
9 Akota did its work on site between 12 May and 10 June 2016 A D A A
10 The scaffolding was dismantled between 1 June and 7 June 2016 D A A A
11 On 14 June 2016 Steven Squires attended the site and took photographs D A A A
12 At some stage between 22 May and 14 June 2016 the subject balustrade was disconnected from both its eastern connection to the house and its western connection to the post such that it was sitting on the walkway without any structural support D D D A
13 Defendants 3, 4, 5, 6 and 7 were all part owners of the said property A A A A
14 The Plaintiffs damages are agreed at $3,000,000 A A A A
15 There is no allegation of contributory negligence A A A A
The foregoing answers, as distinct from the questions, were provided by Mr Regan at the request of Ms Cunningham.
A significant number of photographs were tendered in the course of the proceedings, all of which are relevant, but many of which were tendered to identify better the timing at which particular work was performed.
In particular, an important aspect was the timing at which the scaffolding was dismantled and a number of photographs were tendered to show the dismantled scaffolding in various stages of construction or dismantling. Other evidence was adduced as to the timing at which the scaffolding was unloaded; dismantled; and collected.
It is clear from the photographs [3] that, as at 3 June 2016, the scaffolding was still in place, but dismantling had commenced. It is also clear that on or about 7 June 2016, the scaffolding was ready for collection. [4]
Exhibit 2D-4 is a bundle of worksheets for Dak-Wal that show all the scaffolding being loaded for the premises at another site on or about 30 May 2016 and a worksheet for the dismantling of the scaffold at that other site on 31 May 2016. A further worksheet of 7 June 2016 shows four hours of work in dismantling the scaffolding at the premises in the morning of 7 June 2016 and a further three hours in the afternoon of 7 June 2016.
On 8 June 2016, the worksheets show all of the scaffolding was due to be loaded at the premises at Killcare and delivered to another site. Further work, the last of it, from Dak-Wal's perspective, seems to have been performed on 10 June 2016. [5]
The first defendant called Steven Paul Squires, who had filed and serveda witness statement dated 1 November 2019. Mr Squires was cross-examined at some length and some of that evidence was and is crucial in the determination of the issues before the Court.
Mr Squires is a licensed builder with over 35 years' experience in the residential and commercial building industry, who now specialises in insurance work and engages licensed subcontractors to carry out the work for Dak-Wal. He is a Major Loss Building Coordinator and his duties include project management; attending sites; coordinating work; supervision of work; engaging subcontractors; reviewing the scope of work; performing quality control and quality inspection of the works undertaken; liaising with other Dak-Wal employees and the client insurer.
Mr Squires sets out the scope of works, [6] which includes the removal and installation of screen; asbestos removal, disposal, air monitoring and certification; removal of all asbestos cladding to upstairs of building; the construction of scaffolding around the entire building; and other ancillary work.
A variation occurred in the work which included the removal of scaffolding clean up; the installation of poly skin to weatherproof existing windows and corners of the building; and the installation of new Weathertex Natural Selflok cladding with stainless steel fixings.
The work, including the variation, did not require work on the handrail. The witness statement [7] testified that Mr Squires recalled "observing that the subject handrail was in place" during each of his visits to the site. Mr Squires returned to the site on 21 June 2016 and had a conversation with one of the Owners, Mr Luscombe, about the handrail.
That conversation does not accord with the uncontested evidence otherwise before the Court as to the circumstances of the fall. Mr Luscombe was not present at the premises when the fall occurred. Nor does the description by Mr Luscombe, as recounted by Mr Squires, accord with the state of the handrail that is otherwise uncontested.
On 21 June 2016, Mr Squires secured the handrail in place by the use of screws, timber offcuts and brackets. Photographs were taken of the secured handrail.
Mr Squires also described the failed section of the handrail as being: steel; approximately 900 mm high; supported by vertical steel bars approximately 125 mm apart; and there is a three meter drop, approximately, from the highest point of the ramp to the ground below. The whole of the railing, including the failed section, was 6 to 8 m in length; joined the second storey of the house at one end and is free standing at the end closest to the road. The handrail, according to Mr Squires, was not required to be removed or modified by Dak-Wal to complete the works.
The scope of works, annexed to Mr Squires' witness statement, discloses that the contract to Dak-Wal included the removal of the asbestos cladding and the replacement of the upper-level cladding. The replacement of the upper-level quote cladding was subcontracted to Akota.
Further, the quote from Akota initially provided for the removal and replacement of the cladding, and included labour costs for a carpenter to install "sarking, cladding, architraves and moulding". [8] It should be noted that there are architraves, other than those surrounding the doorframe.
A later quotation excluded, from the work to be performed by Akota, work that was to be done by Dak-Wal, which was the setting up of the scaffold around the entire building to allow access to all elevations; and the removal of all asbestos cladding (the old cladding) to the upstairs of the building.
The old cladding that needed to be removed following storm damage, and the new cladding that replaced it, was fitted behind the architrave of the front door, particularly on the left-hand or northern upright section of the architrave. The balustrade was affixed, after the repairs by Mr Regan, by screws to the architrave on the left-hand side into the wall, or supports thereto, behind it.
The question, said to be relevant to liability, arose as to whether it was necessary to remove the section of balustrade that adjoined the doorjamb/architrave in order to remove the old cladding and Mr Squires gave evidence that it was unnecessary. In particular, Mr Squires' evidence was that the cladding slid behind the architrave without the need to remove the architrave or the screws affixing the balustrade.
The process of sliding the cladding that was behind the architrave was a process that applied to both the removal of the cladding and replacing it with the new cladding. [9] Mr Squires attested to the fact that the workers removing and replacing the cladding did not need to interfere with the architrave or doorframe. Mr Squires, part of whose task was to ensure that the work was at a standard that was approved, says he would have noticed if the cladding had interfered with the doorframe or architrave.
In fact, Mr Squires says he noticed that it was "always still attached to the doorframe". [10] It should be remarked, at this point, that the entire western wall of the house was re-clad and the doorway at the end of the walkway at the upper level is in the western wall.
The scaffolding had been erected around the west, north and eastern elevations of the premises and had two levels from which work would have occurred and did occur. The upper level of the scaffolding "ended very close to the railing". [11]
A photograph showing the higher work platform of the scaffolding and its relationship with the top of the balustrade section in issue in these proceedings is before the Court. There are a number of such photographs, but the most convenient source is a photograph taken on 22 May 2016. [12]
Mr Squires accepted that this photograph showed that the original asbestos cladding on the garage wall behind the railing had been removed as at 22 May 2016. He also accepted that the photograph showed that the cladding under the window on the western side of the house was in the process of being installed. As already stated, that new cladding was to cover the entire western wall and fit in behind the white door architrave or doorframe. Mr Squires reiterated that no involvement with the door architrave was necessary for the installation. [13]
Mr Squires was then cross-examined about photographs taken on 7 June 2016 at about 13:15 hours. In particular, Mr Squires was shown a photograph that was tendered and admitted without objection and marked Exhibit 2D-1.
That photograph shows that, as at 7 June 2016, as earlier stated in these reasons, the scaffolding was dismantled and awaiting collection at the front of the premises. However, the photograph, near its left edge, also shows the balustrade, including the section leading to the front door.
That section of the photograph in Exhibit 2D-1 was the subject of enlargement. The witness was asked about that enlargement. Mr Squires recognised the enlargement of that section of the photograph as an enlargement of Exhibit 2D-1 [14] and was examined about it.
The following questions are crucial in the case that is put before the Court. The exchange, in the cross-examination of Mr Squires by Mr Chen of Counsel, representing the second defendant, was in the following terms:
"Q. You can see, can't you, in the photograph that I've just placed before you, that the very section of railing that's supposed to be present, connected to the house, is entirely missing, is it not?
A. It is.
Q. The walkway itself runs close to the garage, approximately horizontal or level, and then slopes down towards the house, does it not?
A. It does, yes.
Q. On the right hand side of the photograph that I showed you, the blow up photograph, you can see what is or what appears to be - I'm going to describe it as "Hatching," do you see that?
A. Yes, I do.
Q. That is the section of railing, is it not, Mr Squires, placed up against that section of railing close to the garage?
A. Yes, I believe so.
Q. It's the case, isn't it, that after taking this photograph here, on 7 June, you then proceeded to walk down this very walkway, did you not, into the house?
A. I did.
Q. You, can I suggest, walked by an open section of railing?
A. It appears that way, yes.
Q. The only people who may have been in this area before you, undertaking any form of work, so far as you're concerned, would be the scaffolders, isn't that right?
A. Yes.
Q. They're the only people that would be getting up off the scaffold onto the walkway, isn't that so, at this time?
A. I believe so.
Q. The only people who would have reason, if, say, they were seeking to move equipment from the lower level onto the walkway, to remove it, isn't that right?
A. It appears that way, yeah.
Q. You can't think of anybody else, can you?
A. No.
Q. You see, Mr Squires, it was seriously remiss of you, can I suggest, for you to walk by this and leave it in that condition, isn't that so?
A. It would appear that way, yes.
Q. It would be contrary to what you think is proper and accepted practice by somebody in your position to leave an opening of that kind in that condition, isn't that so?
A. Yes.
Q. You did not give anybody a direction to put it back, did you?
A. No, I did not.
Q. Did you place it back in position, Mr Squires?
A. Not on this day I did not.
Q. Did you do it on another day?
A. I did.
Q. What day was that?
A. 21 June, I believe, or July. I can't remember the months.
Q. You do know, don't you, that on 14 June you were back at the site?
A. Yes.
Q. And you do know that that section of railing had been placed in position as shown in the photograph I took you to earlier, isn't that right?
A. Yes."
The reference in the last question to the photograph to which the witness had earlier been taken was a reference to CB-1, p 235. The enlarged section of Exhibit 2D-1 was tendered and marked Exhibit 2D-2.
The "hatched" section to which the questions refer is at the right edge of the photograph, viewed in landscape. At the left edge of the photograph, again viewed in landscape, the missing section of the balustrade is obvious.
Mr Squires' evidence also establishes that on 14 June 2016, Mr Squires was at the site and took further photographs. One of the photographs was taken standing on the walkway in the general vicinity of the section of railing that failed.
Mr Squires was asked whether he was the person that placed the failed section of railing back and placed a ligature attaching the failed section of railing or balustrade for the purpose of holding it upright. Each of those propositions was denied by Mr Squires.
The Court cannot hold and does not accept that Mr Squires replaced the failed section of walkway and attached it with a ligature. I bear in mind that the Court is concerned only to determine that question on the balance of probabilities, but there is no evidence that would establish, or render more probable, the placement of the failed section by Mr Squires prior to the accident. Even if I were to disbelieve Mr Squires' denial evidence in this regard, there is no evidence that the railing was re-located and attached with a ligature by Mr Squires.
Nevertheless, as Mr Squires himself conceded, he had seen and taken photographs of the railing or balustrade with the section missing. He walked past the balustrade with the section missing and he gave no directions for its replacement in a manner that would have obviated this accident.
There were others, including painters, working on the site between 7 June 2016 and 14 June 2016. But they were not using the scaffolding or working in the area adjacent to the upper level door.
However, one of the issues before the Court is whether, on the balance of probabilities, it was the scaffolders who removed that section of the balustrade to ease the loading and unloading of material from the higher scaffold level and to allow access to that level more conveniently; or whether it was those persons performing the cladding work. As to the latter, there is an issue as to whether, if it were the workers on the cladding, it was those workers removing the cladding or those installing it.
There was further cross-examination in relation to the possibility or probability that those workers, performing the cladding, would have needed to remove the plate fixing the railing or balustrade to the doorframe. Mr Squires rejected that possibility as not taking account sufficiently the nature of the asbestos cladding that was removed and the brittleness of asbestos material and, in particular, cladding.
Mr Squires was of the view that the plate, about which there was a series of questions, remained fixed to the house. The cladding, he said, was removed from around the bracket; not the bracket removed from the cladding.
The handrail, and the bracket that affixes the handrail to the house, is affixed through the cladding; the bracket is not fixed to the cladding itself. On the basis of that evidence and the absence of any other evidence to the contrary, I am asked to determine, on the balance of probabilities, that those performing the cladding did not remove the plate affixing the railing or balustrade to the house.
The balustrade was fixed by the plate into hardwood, which is structural. Cladding is not structural; it is a protective coating that is affixed to other structural items. To the extent it is necessary, I note that I considered Mr Squires to be a witness of truth, whose recollection was generally reliable and who, when the recollection was unreliable, admitted same. In the examination, Mr Squires stated that he did not notice a gap in the railing on 7 June 2016.
As to the removal of the plate attaching the railing to the house, the evidence of Mr Squires was essentially corroborated by the evidence of Antony James Jacobs, who was one of the supervisors of the workers removing the asbestos cladding and whose Affidavit, dated 12 August 2020, is to that effect. The asbestos cladding, which was not hollow, was removed in sheets and it was, according to Mr Jacobs, unnecessary to remove the screws to the plate to remove the cladding. Further, the screws to the plate were not removed.
The fixing of the failed section of the handrail on the earlier occasion was explained in the evidence of Mr Regan and the section was solid, even though the repairs were temporary and effected with square brackets, rather than by welding.
Mr Jacobs had worked for Dak-Wal earlier in his career and, in that period, worked as a plasterer. He left Dak-Wal to work in asbestos removal and returned to Dak-Wal as the demolition supervisor, asbestos supervisor and as a tradesperson. His duties were to set up the site; remove the asbestos safely; and ensure the well-being of the workers around him. He holds appropriate licences for the removal of asbestos and has been involved in asbestos demolition for approximately 20 years.
Mr Jacobs recalls working at the premises and described it as a difficult site because of the changing levels and its awkward position on the side of a mountain. His Affidavit describes the walkway and the metal railing. He remembers the top of the horizontal metal railing being connected to the front doorframe.
Mr Jacobs then describes the system of work for the removal of asbestos which was as follows: the insertion of nail-puller into the cladding so as to jiggle, carefully, the cladding out from its position in order to remove it. He inspected the connection of the railing to the doorframe and, in his words, "gently pulled out the asbestos from behind the doorframe". [15]
The care with which asbestos must be removed or handled was described by Mr Jacobs. The effect of lack of care would be that, on his evidence, the asbestos will turn to powder. Asbestos, in powder or microscopic particles, is notoriously dangerous. The labourer, Mr Don Hatten was on the scaffold assisting Mr Jacobs and once the asbestos was removed, Mr Jacobs cleaned the area with a vacuum and the labourer transferred the asbestos to the truck.
Mr Jacobs attests to the fact that he did not touch or loosen any screws or any connection of the railing to the doorframe. Rather, Mr Jacobs worked around the doorframe to remove the asbestos cladding from behind it, which is the usual system. According to Mr Jacobs, there was no reason to remove or alter the handrail or to interfere with it in any way.
Mr Jacobs referred to his usual practice of assessing safety hazards after the work had concluded and recalled checking around the doorframe and the handrail and noting that there was nothing unusual about the handrail, which appeared to be in place. Further, Mr Jacobs, who is, on his testimony, trained in occupational health and safety, would have rectified any loose connection of the handrail, or at least told someone about it, as this would pose a serious risk.
The difficulty with that statement as to occupational health and safety is that, at the time that the asbestos cladding was removed, looseness in the failed section of the railing would not have posed a significant danger and would not, necessarily, have been obvious. The upper level work platform of the scaffolding abutted the railing in the section that had failed. It would have been impossible for a person to fall, even if there were no railing in place, given the presence of the scaffolding.
There is a further difficulty with the testimony of Mr Jacobs relating to the manner in which the asbestos was removed from behind the architrave. The difficulty in that evidence became obvious from the testimony of the expert witnesses in conclave because the manner in which the two fixing plates secured the railing to the house doorframe/architrave. This will be explained later in these reasons.
Nevertheless, Mr Jacobs is adamant that he did not disconnect the handrail from the doorframe or in any way disconnect it from the connection point to the house.
In cross-examination Mr Jacobs explained that the asbestos board was removed in a full sheet and that the sheets were 6 to 10 mm thick. The sheets were not hollow. Mr Jacobs also accepted that the railing had an end plate, which was attached to the cladding by a screw. Nevertheless, Mr Jacobs did not accept that there was a need to remove the screws to remove the cladding.
Mr Jacobs explained that he pried the asbestos cladding, using a flat bar and jiggled the board up and down, causing the asbestos cladding to crack around where the screws or bolts were. He then used a flat-head screwdriver or very thin chisel to pry away the remainder of the asbestos.
The last mentioned evidence in cross-examination as to the method of removing the asbestos board, given that the screws from the fixing plate were attached to the architrave and the bearer behind the cladding and pierced the cladding, was the first occasion on which that version of the removal was given.
Further, that evidence is and would have been highly relevant to the issues in the proceedings. Further again, the detail of that evidence is inconsistent with Mr Jacobs' evidence-in-chief, albeit in matters of detail.
The evidence-in-chief of Mr Jacobs was that the asbestos cladding was removed from behind the architraves in a whole sheet. There was no reference to needing to crack or split the asbestos cladding and then to remove, at a later time, that which remained on the other side of or around the screws.
I gained the impression that this evidence was a reconstruction based upon what could have happened, rather than that which Mr Jacobs recalled. Perhaps it was a recollection of some aspects of the removal together with other different aspects.
Mr Jacobs' Affidavit was sworn on 12 August 2020; the evidence in cross-examination was given on 8 September 2020. The events occurred in 2016.
Thus, the impugned section of the balustrade is manufactured in the same way: with the same posts; the same dimensions; and the same material. The failed section of the balustrade looks, feels and is consistent with the remainder of the balustrade, but was inserted in place at a later time than the remainder of the balustrade on the walkway.
The remainder of the balustrade was placed at the time that the walkway was poured. The walkway is concrete. The experts described the balustrade by reference to the diagram at p 6 of the report of Mr Bailey. That diagram is reproduced below:
The experts also referred to a sketch drawn by Mr Hickey of Connection 2 (numbered in accordance with the diagram in Mr Bailey's report, above), which is Figure 1 in the Conclave Report, and is reproduced below:
The note to the inclusion of Figure 1, the drawing immediately above, is an important aspect of the issue with which the Court must deal. Messrs Hickey and Bailey noted as follows:
"…the edge bracket shown in red in the diagram has a gap horizontally to the top rail. It is believed, based on Mr Regan's statement, that there was no gap and the railing was tight against the edge bracket, 'held' by two screws to the southern side." [16]
All of the experts agreed that the bracket "was tight on the north side of the rail and two screws were inserted on the southern side of the railing to secure it from moving laterally." [17] Messrs Bailey and Hickey agreed that there was approximately a 10 mm gap from the end of the upper railing to the architrave. Dr Cooke does not disagree with that measurement but could not confirm it.
The experts also agreed as to the state of the fixing of the railing prior to the commencement of work. This agreed opinion was drawn from photographs provided to the experts. Connection 1 was agreed to be a form of plate connected to the cladding and/or the sill behind it and likely done with screws. There was no certainty in the expressed opinion as to the method of fixing Connection 1. Connection 2 was agreed by the experts to be effected by the balustrade being inserted into the slot of the wooden block at the architrave as shown in Figure 1, above.
Connection 3, numbered in accordance with the Bailey report, showed a break in the weld as did Connection 4. However, the experts agreed that Connection 5 showed mending plates were installed either side of the post in the baluster immediately to the east. Those mending plates were 100 x 50 mm plates with M6 boltholes.
These are shown in Figures 10 and 11 on pp 17 and 18 of the Bailey report. [18] The experts also referred to a bend in the inner mending plate which they considered may be consistent with the plates having been tightened as described by Mr Regan. Connection 5 is the connection that was the result of Mr Regan performing his repairs.
As to Connection 6, the experts point to the fact that there were no photographs to show mudguard washers as described by Mr Regan. Nevertheless, if two mudguard washers or 75 mm plates had been fitted, as described by Mr Regan, with a central bolt which Mr Regan tightened firmly, then this had the potential to hold the baluster in line with the post, noting that the single bolt plates could only provide such alignment by friction and provided that one or other of the connections at the eastern end of the balustrade remained intact. The experts agreed that if the connections at the eastern end were not intact, then the two plates at mid-height would act as a hinge and the balustrade would act like a gate.
Most importantly the experts agreed that the fixing of the plate to the wall at the bottom connection (Connection 1), beneath the front doorstep, was done by some form of plate which was fixed to the cladding and/or the sill behind it by screws. This is most likely, but cannot be an opinion expressed with certainty.
The experts agreed that the screws used to fix the lower railing to the house were fixed through the cladding to the bearer behind it. Further, if screws were used, as the experts agreed was likely, it was likely that the screws were removed to allow the removal of the asbestos cladding in that location. As will be seen, I do not accept this occurred.
From the photographs that were shown to the experts, the experts agreed that between 22 May 2016 and 14 June 2016 the fixing plates and other connections utilised by Mr Regan were no longer in place.
It is abundantly clear that the experts agreed that the fixing plates and method of fixing the failed balustrade utilised by Mr Regan had been deliberately removed. I accept that opinion.
Further the experts agreed that it was convenient and/or necessary to remove the fixings from the plate attaching the lower rail to the house to remove the asbestos cladding. It was not necessary, according to the experts, to interfere with the railing to erect or remove the scaffolding.
Somewhat trite was the opinion of the experts expressed, again agreed, that if the railing were to have been removed, the relevant party ought to have ensured that the railing was made good so that it was structurally safe.
The experts expressed the opinion as to the responsibility for safety on site, to which the Court pays little or no regard, given that that question and the foreseeability of risk is a matter for the Court.
It is clear from the Conclave Report that, were it not for the removal of the work performed by Mr Regan, the balustrade would have withstood the forces occasioned by the plaintiff's fall and the injuries would not have occurred.
Further, if this has not already been obvious, the experts agreed [19] that the most probable cause of the connection being lost was that the plate fixings were removed to enable the asbestos cladding to be removed. The removal of the fixing plate required the use of tools and was required to be a deliberate act.
Further, according to the Conclave Report, the distortion or bending of the corner bracket, which also occurred, may have been occasioned by being knocked by heavy equipment, such as a heavy piece of scaffold. Otherwise the bracket would have to have been bent by the use of tools or using the railing as a lever.
The experts also agreed that, once the impugned section of railing had its structural integrity compromised, it was unsafe to allow pedestrian access to the walkway. Such a proposition is trite and, ultimately, a matter for the Court.
The cross-examination of the conclave was important. Mr Hickey was asked whether it was possible to remove cladding without removing the screws, by way of snapping the asbestos board, which was the version of the removal given by Mr Jacobs in cross-examination. The response from Mr Hickey was that it depended on whether there had been compression between the fixing plate, the asbestos and the timber. If there were to have been compression, then it would not have been possible to remove the asbestos without removing the screws.
In that remark, Mr Hickey was referring to compression being caused by the plate being screwed, with force, to ensure no gap between the plate and the architrave; the architrave and the asbestos board; and the asbestos board and the timber bearer behind it. The only connection relevantly utilising a plate was Connection 1, the lower railing connection to the house.
Because the experts were not aware of the precise nature of the fixing plate; whether screws were used; and if screws were used, how many were used or how long they were and with what force they were screwed into the timber, Mr Hickey answered that he could not say definitively whether or not it was possible to remove the asbestos board by snapping it. Dr Cooke agreed.
However, Dr Cooke noted that the snapping of the board would not be in the course of good practice, because there was a risk of fragments of asbestos being left behind. Subject to the issue of compression, it may have been physically possible to remove the asbestos by snapping the board.
Mr Bailey also agreed with Mr Hickey. Mr Bailey explained that if there were pressure between the plate, in whatever form the plate took, the cladding and the bearer, the circumstance would be consistent with fixing a railing to carry a load.
In other words if there were not compression and the fixing plate were not screwed, with force, tightly to the architrave, cladding and timber bearer, the screws would then be sitting "somewhat in space". Mr Bailey referred to another part of the property where a drainpipe was shown to be suspended by a rope after the cladding had been removed, which, in his view, suggested that the practice had been to remove the screws when it rendered the removal of the cladding less convenient.
As to the statement by Mr Hickey that they were uncertain as to whether screws were utilised, Mr Bailey noted that he observed two holes at a location where the endplate was under the northern side of the step. These holes were consistent with the former presence of screws. I accept this description and that screws were used to fix Connection 1 to the house through a fixing or end plate.
Further, Mr Bailey explained that asbestos boarding can carry a large load in compression but cannot be placed under a tensile load. It is common knowledge, which Mr Bailey repeated, that asbestos board can be cut by scoring and snapping.
Indeed, after the dangerous nature of asbestos was more readily accepted and work methods altered to accommodate it, scoring and snapping was the only safe method by which asbestos board was cut. The prior practice, to which Mr Squires referred, of sawing or drilling asbestos board has ceased and not been utilised for many decades.
Importantly, the experts correctly noted that they were unaware whether, as a matter of certainty, the fixings were removed in the process of removing the asbestos cladding, which is the reason they express their answer as "between convenient and necessary" in the Conclave Report.
Further, Mr Squires had the means to rectify the balustrade easily. He did so on 21 June 2016, using material that was on-site. Further again, the plaintiff relies on the fact that no evidence has been called from the scaffolders, who were involved in the dismantling of the scaffolding.
The dismantling occurred on 7 June 2016. Without mentioning the case by name, it seems that the plaintiff relies on Jones v Dunkel [20] as to the failure to call any of the scaffolding workers or any worker who was permanently or regularly on-site working for the first defendant. This however ignores, at least in relation to some days, the calling of Mr Jacobs and the calling of Mr Squires, the latter having attended on six occasions.
The plaintiff submits that the second defendant also has liability. The second defendant was contracted, either directly or otherwise, to replace the cladding and was required to work next to or adjacent to the failed balustrade and was on-site, according to the Agreed Facts, between 12 May and 10 June 2016. On 7 June 2016, the balustrade was not in place.
Further, the plaintiff submits that the workers replacing the cladding ought to have been aware that the railing was not secured at the eastern end of the section, i.e. where connected to the house.
The plaintiff submits that the second defendant had the capacity either to report the issue with the balustrade to the first defendant or to reattach the mending panels itself. Once more, the plaintiff relies on Jones v Dunkel inferences on the failure to call Mr Pavett or any other person on site during the relevant time as to the condition of the balustrade or their role, or absence therein, in removing the fixing plate.
The plaintiff submits that there has been a breach of duty of care by all of the defendants.
Dak-Wal submits that as between 7 June 2016 and 17 June 2016, and especially on 17 June 2016 when the handover to the Owners occurred, Akota ought to have been aware of the problems with the balustrade and ought to have rectified those problems or informed the Owners of a hazard of which it was aware.
Further again, Dak-Wal submits that the speculation by the experts as to the party responsible for the interference of the handrail must be weighed against the evidence of Mr Jacobs who personally undertook the asbestos removal task. Mr Jacobs, as is clear from the above recitation of the evidence, and which is relied upon by Dak-Wal, categorically denies any interference and any need to interfere.
Moreover, Dak-Wal points out that, on its understanding of the evidence, the suggestion of the experts relates only to one of the four points of connection of the handrail. It seems, on my understanding of the evidence, that it relates to two points of connection, being both connections to the western wall of the house, although the evidence is different for each of Connection 1 and Connection 2.
In the alternative, even if the Court were minded to take the view that the handrail had been interfered with by Dak-Wal workers during the course of the removal of the asbestos cladding, the defective condition of the handrail persisted in that state of disrepair throughout the entire time Akota workers and its subcontractors were on-site. During that time, the Owners or some of them attended the premises.
Dak-Wal points out that the photographic evidence establishes that the substantial interference with the handrail occurred sometime after 22 May 2016. That date was a period of around two weeks after the asbestos cladding had been removed.
Dak-Wal submits that the expedient resolution proposed by some of the defendants that Dak-Wal should, nevertheless, be liable to some over-arching head contractor's site safety responsibility is not valid or available. Such an overriding or overarching duty is inconsistent, on the submission of Dak-Wal, with the true circumstances of responsibility on the site, including Akota's own contract with the Owners and its own subcontracts.
Secondly, such an over-arching responsibility ignores the confinement of the scope of works contracted to Dak-Wal. Dak-Wal submits that such an overriding duty cannot be founded on the written expert opinions before the Court and is not supported in law.
Further, Akota did not work on the railing; nor did it agree to do so.
Akota submits that, as a subcontractor, Akota owed no duty to look for and respond to hazards outside its agreed scope of work. Were it otherwise, all contractors working near the defective railing would be liable to the plaintiff in like circumstances, if such contractor failed to detect and to respond to the hazard.
Plainly, Akota submits, the foregoing secondary liability cannot be sustained. In so submitting, Akota relies, not only on cohesion, but on the provisions of the Civil Liability Act 2002 (NSW), and in particular s 5D(1)(b) and submits that it is not appropriate for the scope of the allegedly negligent person's liability to extend to this harm.
Fundamentally, Akota submits that any risk of injury was caused by the party or parties who disconnected the railing. Apart from such a party, the only entity responsible for reasonable precautions for the prevention of the risk of injury is the entity who had overall responsibility for the site, namely Dak-Wal; not Akota.
Further, the experts agreed, on the submission of the Owners, that the party probably responsible for disconnecting the bottom plate from the wall at the eastern end of the railing was the party responsible for removing the asbestos cladding.
As already stated in these reasons, the disconnection of the endplate under the step required the use of tools and would have facilitated the removal of asbestos with minimal dust. The Owners point out that the experts also agreed that the mending plates installed by Mr Regan were also disconnected by the use of tools.
Further, they rely on the opinion of the experts that the corner bracket was bent outward which would require the use of tools, unless it was bent by other means such as being struck by part of the scaffolding during removal.
Further, the Owners submit that none of the facts to which the experts agree were known to the Owners. Nor could it reasonably be suspected that they should have been known to the Owners.
The Owners were entitled, on their submission, to rely on the professional builders who had been authorised to carry out the works. It is not known, on that submission, who made the ultimate disconnection, but it must be inferred that it was someone involved, at some time, in the building works.
The Owners further submitted that the removal of the asbestos cladding underneath the step, near the front door, necessarily involved interference with the connection of the subject balustrade and that work should have been checked to see that the integrity of the balustrade was maintained. The state of the balustrade should have been observable to those working on site at least by 14 June 2016 and, on the evidence, earlier. The Owners submit that Dak-Wal, as the principal contractor, was ultimately responsible for leaving the premises in a safe condition at the time of handover to the Owners. Further, the Owners submit that they are not liable to the plaintiff.
In the course of his reasons for judgment, Windeyer J said:
"It is, I realise, always possible to confuse mere conjecture with reasoned conclusion, and to regard the mere fact that circumstances are consistent with a conjecture as corroboration of it. Nevertheless, I think that a jury properly directed might - not necessarily should - reasonably infer that immediately before the vehicles collided that driven by Hegedus was on the wrong side of the road. A jury could, in my view, properly think it more probable that this was so than that it was not. The cause of the collision can be only a matter of conjecture; but on which side of the road it occurred is, I think, susceptible of rational inference." (Citations omitted.) [23]
The reasons for judgment of Windeyer J, to which reference has already been made, relied upon the classic description of rational inference provided by Sir Frederick Jordan CJ in Bell v Thompson. [24] In the course of his judgment, Windeyer J cited with approval the following comment from J Wigmore, A treatise on the Anglo-American system of evidence in trials at common law : including the statutes and judicial decisions of all jurisdictions of the United States and Canada (3rd ed, 1940, Little, Brown) Vol 2, s 285, at 162:
"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." [25]
The inference available as a result of the principles in Jones v Dunkel was summarised in different words, by the High Court, in the following passage:
"… it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it." [26]
However, ultimately, the Court is still required to reach conclusions based upon the evidence that is before it. Those conclusions may derive from the drawing of inferences, but they cannot derive from mere conjecture or suspicion, based, inter alia, on the failure to call evidence to contradict that which might have been possible. Nevertheless, any inference to be drawn does not need to be irrefragable; it needs only to be concluded on the balance of probabilities.
Further, given the finding that there was compression of the asbestos board from the screws to the bearer, it would have been almost impossible to ensure that all of the asbestos was removed, from behind Connection 2, in the manner suggested by Mr Jacobs in cross-examination.
Over and above the foregoing, I accept that the new cladding, which was not asbestos, was installed by sliding it behind the architrave of the door. In order for that to occur, the fixing screws must have already been removed.
The foregoing does not suggest that Mr Jacobs was deliberately lying. On the contrary, four years after the event, Mr Jacobs was giving his best recollection of the events and the method by which the asbestos cladding was removed.
However, when faced with what Mr Jacobs obviously accepted was an impossible method, if the screws were in place, Mr Jacobs reconstructed what he thought would have happened in such a circumstance as his best recollection of the events.
Further, the fixing screws, once removed from Connection 2, would not have been replaced, because Mr Jacobs was aware that new cladding was to be installed and would need to be slid into place behind the architrave. It was only after the installation of the new cladding that a worker would have contemplated the fixing plate being replaced, on the basis of work efficiency and convenience.
Further to the foregoing, the presence of the scaffolding at or near the walkway would have rendered the absence of that section of the balustrade that failed not especially dangerous, because it would have been impossible for a person to fall between the walkway and the scaffolding.
As a consequence of the foregoing, on the balance of probabilities, the Court finds that the fixing screws that secured the failed balustrade in Connection 2 were removed prior to the removal of the asbestos cladding and were not replaced. By the time the workers from Akota came to install the new cladding, they may have been unaware of the need to re-fix the plate that secured the balustrade to the house.
Over and above the foregoing, on 7 June 2016, Mr Squires attended the site to assess the quality of the work and its completion. He photographed the walkway at a time when the balustrade was not in place. I accept that Mr Squires may not have noticed or paid attention to that circumstance. By that time the scaffolding had been removed.
Nevertheless, Mr Squires walked along the walkway and took further photographs from the area where the balustrade was missing. Mr Squires, on behalf of Dak-Wal, was responsible, overall, for the safety on the site and for handing it back to the owners after Dak-Wal's contracted work had been completed.
After its later repair, the lower railing of the balustrade was affixed to the house by being fixed to a hardwood bearer below the front step. After the June repairs to the lower railing, this was done with an angle bracket, welded in place and then screwed to the hardwood bearer. This can be viewed as Figure 16 in the report of Mr Bailey. [28]
Figure 18 of Mr Bailey's Report has a different view of the repaired connection, after the accident in question. It shows an angle bracket affixed to the bearer with two screws. [29] Further, Figure 18 shows two darker areas which are consistent with and look like holes in the hardwood at locations that would or may have been used with screws to secure an end plate to the house.
It is necessary to deal with some earlier photographs. Figure 19 in the Bailey report is a photograph of the front door area as at 15 January 2016. This, and other photographs that are clearer, or as clear, show the top railing located at the white architrave of the door. It also shows the pale coloured asbestos cladding otherwise depicted in photographs, prior to the removal of the cladding.
The step to the front door of the house is visible and, in Figure 19, it is depicted with the number 2. The number 1 depicts the architrave. The number 3 identifies an arrow that points to a darker area that Mr Bailey identifies as being consistent with an end plate used to affix the lower rail to the area under the door.
The enlarged photograph, Figure 19, together with other photographs [30] shows the state of the western wall of the house, to which the balustrade was affixed (or ought to have been fixed) prior to the commencement of building work. The enlargement in Exhibit 3D-1 shows the area underneath the step. It is most likely, and I conclude more likely than not, that that area had asbestos cladding of the same kind as the cladding on the remainder of the western wall. It is possible, but unlikely, that it was different material.
There are photographs available of the state of the western wall at the time that the replacement cladding had been installed. Those photographs show that the cladding was installed behind the architrave and below the step to the front door of the house, but only up to the beginning of the walkway from which the plaintiff fell. [31] These photographs were the subject of comment by Mr Bailey in his report, in which Mr Bailey remarks, by reference to Figure 16, that the new cladding "terminates at the edge of the walkway". [32]
It is necessary to return to the evidence of Mr Regan. As earlier stated in these reasons, Mr Regan describes his method of temporarily repairing the balustrade, which temporary repairs were effected prior to the building work commencing.
Further, the Court reiterates that the experts have agreed that the temporary repairs undertaken by Mr Regan would have prevented the plaintiff from falling. More accurately, the temporary repairs were such that the balustrade would have withstood the force associated with the plaintiff falling against the balustrade.
In determining, as I have, that the end plate affixing the lower railing was fixed to asbestos cladding, which, in turn, was fixed to the hardwood bearer behind it under the front step and that the asbestos cladding was removed from that area but no new cladding was placed in that area, there is a significant possibility that arises and which neither Mr Squires nor Mr Jacobs addressed.
The combination of Connections 1, 5 and 6 in the above diagram would have rendered the balustrade stable, but incapable of withstanding the force of a person falling against it. In order to remove the asbestos cladding in the manner described in the evidence-in-chief of Mr Squires and Mr Jacobs, it was necessary only to remove the fixing or long screws in Connection 2.
The asbestos cladding behind the end plate and affixing the balustrade to the hardwood bearer under the step could have been removed relatively easily by the method described by Mr Jacobs in cross-examination. The end plate for Connection 1 was not behind the architrave. Such a circumstance would render Mr Jacobs' evidence consistent, both in examination-in-chief and in cross-examination, and would render it consistent with Mr Squires' evidence.
Further, the removal of the fixing screws from Connection 2 would result in the new cladding being able to be inserted behind the architrave in one piece. If the screws were in place at the time of the insertion of the new cladding behind the architrave, insertion in one piece would have been impossible.
Theoretically it may have been possible to remove from the sheet of new cladding so much of the cladding from its edge as was as wide as the screws and as long as the distance between the screws and the southern edge of the architrave, but that would have been an extraordinarily complicated or detailed exercise and one which nobody suggests occurred.
Further, if that were to have occurred, evidence of that process would be available now, simply by examining the area behind the architrave. No party suggests such a course was adopted.
As a consequence it can be concluded, with certainty, that the fixing screws affixing Connection 2 to the architrave had been removed prior to the insertion of the new cladding. It is also more probable than not, particularly given the evidence-in-chief of Mr Squires and Mr Jacobs, that the fixing screws to Connection 2 were removed prior to the removal of the asbestos cladding. The foregoing says nothing about the removal of the screws in Connection 1.
If Mr Jacobs' evidence is correct, both in examination-in-chief and in cross-examination, then the only explanation is that the fixing screws to Connection 2 had been removed prior to the removal of the asbestos sheet, but the screws to Connection 1 had not been removed prior to the removal, separately, of the plank of asbestos cladding that was located under the front step of the house.
The asbestos attached to the hardwood bearer under the front step would then have been removed by, as Mr Jacobs describes it, scoring the plank on either side of the end plate and removing the asbestos from behind the end plate. Such a course would also account for what appears to be a space between the end plate and the hardwood bearer in the photographs taken on or after 22 May 2016.
Removal of the screws in Connection 2, but not Connection 1, would have resulted in the balustrade remaining in place and the block depicted in the foregoing hand-drawn figure remaining in place. Moreover, neither the corner bracket nor the shorter stabilising screws in Connection 2 was or were attached in a manner that the screws were fixed, beyond the architrave or into the cladding.
As a consequence the effect of leaving the screws in Connection 1 in place and removing the fixing screws in Connection 2, which affixed the woodblock to the architrave through the cladding to the bearer behind, would have been to leave the whole of the balustrade in place. The balustrade then would have been "secured" by Connections 1, 5 and 6 and by the somewhat flimsy angled screws fixing the corner plate, through the wooden block to the architrave for Connection 2.
It is not for the Court to conjecture as to the stages, if any, that occurred in the dismantling or weakening of the balustrade. Nevertheless, on the balance of probabilities, on the basis of the foregoing, the Court is satisfied that the screws, fixing the timber block that was the major component of the fixing of Connection 2 to the architrave, asbestos cladding and underlying timber bearer, had been removed prior to the removal of the asbestos cladding.
The removal of those screws did not necessarily involve the balustrade looking, in outward appearance, any different from its appearance when the screws were in place. I am not satisfied, either on the balance of probabilities or otherwise, that the screws fixing Connection 1 to the area beneath the front doorstep had been removed prior to the removal of the asbestos cladding.
From the perspective of the fixing of the new cladding, the absence of the screws in Connection 2, to which reference was made in the immediately preceding paragraph, was sufficient to allow the fixing of the new cladding without any further adjustment. The presence or absence of the screws fixing the end plate at Connection 1 were irrelevant to the fixing of the new cladding, because the new cladding was not, on the evidence before the Court, to be in place beneath the front doorstep of the premises.
As a consequence of those findings, it cannot have been Akota or its workers who removed the screws to Connection 2 or Connection 1.
There is no evidence in these proceedings, from anyone, that those involved in the application of the new cladding, or anyone else associated with Akota, interfered with the railing or the balustrade in any way.
The foregoing inference is not the only possibility. It may have been that what has been described above as the "fixing screws", being the longer screws fixing Connection 2 to the house, did not travel beyond the architrave. In that circumstance, those screws would not have pierced the asbestos cladding and entered the timber bearer beyond. That inference is unavailable as a result of the evidence of Mr Regan, particularly in relation to his second statement.
Mr Regan's first statement describes the bracket used to secure "the upper section of the handrail to the house" as an "angle bracket". In the second statement, Mr Regan provides a photograph of the screw which is the same kind of screw as used to secure that angle bracket to the house. [33]
The depicted screw, two of which were used to fix the "angle bracket" to the house, is approximately 6½ cm long and was, according to Mr Regan, whose evidence I accept, fixed tightly to the house. The architrave is not 6½ cm thick.
As a consequence the inference necessarily follows that the screw fixing the upper bracket to the house went beyond the architrave. It is unnecessary to determine that it went into the timber bearer, but once it travelled beyond the architrave, it necessarily pierced the asbestos cladding.
The other aspect of Mr Regan's description of the screws used to fix Connection 2, and most probably Connection 1, is that they have a countersunk head and the make-up of the screw immediately adjacent to the head has no thread in it. That part of the screw that has no thread is approximately 2 cm in length. [34]
If the depicted screws were used for both Connections 1 and 2 then, on the removal of the asbestos, there would have been, on Connection 1 or adjacent to it, a gap between the fixing plate and the timber bearer. The depth of that gap would have been equivalent to the thickness of the asbestos cladding. The oral evidence, in particular the cross-examination of Mr Squires, establishes the existence of such a gap.
Further, if the screws utilised were those depicted in photograph 4, which I infer was the case, there was an absence of thread for 2 cm, which would permit the fixing plate unimpeded movement backward and forward, for at least that 2 cm or the depth of the asbestos cladding, whichever is the lesser. To the extent that the asbestos cladding had a depth or thickness greater than the 2 cm, the fixing plate could have moved more than 2 cm, but beyond the 2 cm it would have been impeded, slightly, by the existence of a thread.
The same cannot be said for Connection 2. Because of the existence of the architrave, which remained in place, the timber block would not have moved as a result of the removal of the longer fixing screws. This is because of the existence of the shorter, angled screws preventing the block from lateral movement and "securing" the corner bracket. The shorter screws were attached only to the architrave and gave no substantial strength. These shorter screws were used to fix the corner bracket, to which it is necessary to refer.
The corner bracket [35] was fixed to the wooden block and provided some lateral restriction on the movement of the block and/or the balustrade at that point. After the accident, the corner bracket was found bent out of shape as a consequence of being hit, either accidentally or deliberately, by a tool or heavy object.
The upper railing of the balustrade was not, itself, fixed to the architrave. It was lodged in the timber block, which, in turn, was fixed to the architrave by the screws to which reference has been made. But for the stability provided by Connection 1 at the lower railing, the balustrade, or, more accurately, the top railing, could have been moved in and out of the timber block. [36] The in and out movement that would have resulted from the removal of the asbestos cladding behind Connection 1, and to which the Court has just referred, was described by Mr Regan [37] and was one of the reasons that the corner bracket was secured.
Once the endplate securing the lower railing to the house had the capacity to move, so too would the railing in Connection 2 have been able to move and it would have been able to move at least to the extent that Connection 1 could move. Further, once the fixing screws for Connection 2 were removed, the timber block into which the top railing fitted would have been able to be moved in a north-south direction, i.e. sideways. The only obstruction to the sideways movement would have been the corner bracket.
One is then required to factor into any conclusion the bending of the corner bracket. If, as is the conclusion of the Court above, Connection 2 could move sideways, then any significant force to the top railing, or any part of the post of the balustrade section closest to the house, would have or could have bent the corner bracket.
The first noteworthy effect of all of the foregoing means that a photograph, which depicts the balustrade in place at Connection 2 or Connection 1 and visibly unaffected, would not necessarily indicate that the main screws fixing the Connection 2 to the house were unaffected.
As at 22 May 2016, the photographs depict the connections unaffected. At that point in time work had commenced and it is more probable than not that the connections had been affected by some person. I find, on the balance of probabilities, that the main screws fixing Connection 2 to the architrave were removed prior to the removal of the asbestos cladding.
Of itself, the removal of those screws and the removal of the asbestos cladding may have created sufficient weakness in the balustrade to have allowed the accident to have occurred. However, more events occurred that affected the position with the balustrade.
First, as is clear from the foregoing, by 7 June 2016, the balustrade was detached from the house. Such is obvious from the photographs taken by Mr Squires and is conceded by Mr Squires. Sometime between 22 May 2016 and 7 June 2016 the balustrade became wholly detached from the house.
Given that the fixing screws were removed from Connection 2 prior to the removal of the asbestos cladding, there is no basis for an inference that the work performed by Akota either removed the fixing screws or in any way affected the position of the balustrade or the detachment of the balustrade.
As Mr Squires conceded, on 7 June 2016 he took the photograph which is Exhibit 2D-1. The enlargement of that photograph [38] showed the railing adjacent to the door was entirely missing.
Further, Mr Squires accepted, as earlier stated, that after taking the photograph he proceeded down the walkway into the house and took further photographs from the area adjacent to or very near the missing section of railing. The only persons, according to Mr Squires, performing work in that area at about that time were the scaffolders.
Those scaffolders were the only persons moving to and from the scaffolding adjacent to the walkway and were the only persons who had reason to move or remove equipment from the scaffolding onto the walkway. They were also the only persons performing work on the site prior to Mr Jacobs.
In summary, the Court determines that the long or fixing screws at Connection 2 were removed prior to the removal of the asbestos cladding. None of the other screws were, at that time, removed.
As a consequence of the removal of the fixing screws, there would have been no change in the outward appearance of the balustrade, which would have remained fixed to the house and the architrave by the end plate at Connection 1 and the shorter screws at Connection 2.
As a consequence of the foregoing conclusion, on the balance of probabilities, any general inspection of the balustrade by Mr Squires or Mr Jacobs would have disclosed the balustrade as being fixed to the house. Their evidence-in-chief, as to that aspect, can be accepted.
Each of Mr Squires and Mr Jacobs attests to the fact that the balustrade was fixed to the house and/or architrave at the time that they inspected it. Neither of them suggested a close enough inspection to determine whether the "fixing screws" had been removed.
However, neither of those workers removed the fixing screws. Nevertheless, there were other workers on the site, under the responsibility of Dak-Wal, who could have removed the fixing screws, including the scaffolders and the labourer assisting Mr Jacobs.
The experts attest to the fact, and it is uncontroverted, that the fixing screws to Connection 2 could not have been removed other than by the use of a tool. It was a deliberate act. That description is not intended to suggest any malice, or even foresight of the accident. A labourer was assisting Mr Jacobs in the removal of the asbestos cladding. That labourer was not called to give evidence.
The experts agree that it is more probable that the fixing screws were removed for the purpose of the removal of the asbestos cladding. Once the fixing screws were removed from Connection 2, as earlier stated, the balustrade would have remained fixed, albeit not securely, to the house. Thereafter, when the asbestos cladding was removed from behind Connection 1, the stability of Connection 2 was such that the balustrade would have been able to be moved more readily.
From the photographs and from the evidence that has been adduced, the balustrade remained in that condition until some short time before Mr Squires took photos on 7 June 2016. The scaffolding was removed on or before 8 June 2016.
The new cladding had been inserted by some time prior to 30 May 2016. On 30 May 2016, the scaffolders commenced dismantling the scaffold and, by 3 June 2016, the scaffolding had been partially dismantled. By 8 June 2016, all of the scaffolding had been dismantled and the scaffolding was stacked ready for pickup at the front of the site. On 14 June 2016, Mr Squires visited the site again and noted that the work had been completed and the premises "cleaned up".
The most likely scenario was that the scaffolders, in dismantling the scaffolding, between 30 May 2016 and 7 June 2016, dismantled the railing and balustrade to enable them to remove scaffolding planks and other heavy material by use of the walkway rather than the less convenient process of lowering them to the ground floor and then carrying them up fairly narrow stairs. The alternative to removing the balustrade would have been most inconvenient and required significantly greater effort while unloading material to the front of the house, including the scaffolding itself and the scaffolding planks.
It would seem that the scaffolders would have been encouraged so to do by the significant movement in the balustrade at the time of its dismantling. Even if the scaffolders did not deliberately remove the failed section of balustrade, the removal of the heavy planks was the process, on the balance of probabilities, by which the corner bracket was bent.
The bending of the corner bracket would have resulted in the balustrade being free to move, which, in turn, would have encouraged any worker to remove the balustrade for the purpose of easing the unloading of material, including the scaffold planks.
On any analysis, as at 7 June 2016, Mr Squires, the responsible person on behalf of Dak-Wal, inspected the site, and on or after 14 June 2016 determined that the work had been completed and the premises cleaned up. Handover to the Owners occurred on or about 14 June 2016.
Two other issues arise. First, the fact, and it is the fact, that as at 14 June 2016 Akota were performing work, unrelated to the scaffolding, and unrelated to the removal and/or replacement of the cladding, does not affect the proposition that Dak-Wal handed over the premises on or just after 14 June 2016 to the Owners. For that purpose, Akota were a representative of the Owners and, at least in relation to those parts of the site on which Dak-Wal had performed work, either directly or indirectly, Dak-Wal was responsible for handing over the premises in a state which did not obscure a foreseeable risk of injury and, more importantly, did not create a danger, as a result of the work performed under the contract that it performed.
The premises were handed over to the Owners in a state in which the balustrade was unsafe. That lack of safety was the result of the work performed under the contract into which Dak-Wal had entered. Further, Dak-Wal was aware of the danger arising from the missing or unsafe section of the balustrade, or ought to have been aware. That latter aspect was conceded by Mr Squires.
It is impossible to say, with certainty, who removed the fixing screws or longer screws in Connection 2. It is possible, on the balance of probabilities, to determine that it was more probable than not that the longer screws were removed before, and as part of the process of, removing the asbestos cladding.
The second aspect, to which attention should be drawn at this point, is the controversy during the course of the proceedings as to whether there existed an agreement between the Owners, on the one hand, and Akota, on the other hand, to repair the balustrade. First, no part of the contract into which Akota entered with the Owners, nor any part of the subcontract which Akota had with Dak-Wal, included repair to the balustrade.
It is submitted that there was a discussion about the balustrade and its repair by Akota and between a representative of Akota and the Owners. It is submitted by the Owners that the discussion involved an agreement that Akota would repair the balustrade during the time that Akota was on-site performing the other work for which it had contracted.
However the discussion does not involve an agreement as to the timing of the work; the precise nature of the work to be performed; nor the price or cost for which such work would be performed. In those circumstances, unless it can be said that the discussion amounted to the formation of a collateral contract between Akota and the Owners, the discussion cannot amount to a binding contract to perform work.
Even if it were a collateral contract and binding on Akota and the owners, its existence makes little or no difference to the liability of the Owners. The Owners were aware of the disrepair of the balustrade and took steps to repair it. It was repaired by Mr Regan and those repairs were sufficient to have avoided any foreseeable injury or risk of harm.
Even if there were a binding contract on Akota to repair the balustrade, given the lack of any specification of the timing that the repair would occur, or any specification that would have been able to be enforced, it would not create a liability in Akota that did not otherwise exist.
Lastly, in relation to the alleged agreement to repair the balustrade, I do not consider that the evidence before the Court establishes that there was a contract between Akota and the Owners that Akota would repair the balustrade. Rather, there was an agreement to enter into a contract at some later time, which agreement was never fulfilled.
Notwithstanding or because the relationship of occupier and invitee is a well-known relationship for which there is a duty of care, it is necessary to reiterate the somewhat trite proposition that not all damage occasioned on premises gives rise to a duty of care for which the occupier is responsible, even where the damage is foreseeable. In Modbury Triangle Shopping Centre Pty Ltd v Anzil, [44] the High Court dealt with a claim that the owner and occupier of a shopping centre breached the duty of care owed to the plaintiff by failing adequately to light a car park, which was part of the shopping centre, and which was the place at which the plaintiff was injured by an attack from three persons acting criminally.
The High Court made clear that the occupier of premises did not owe a duty of care that extended to taking reasonable care to prevent physical injury that resulted from the criminal behaviour of third parties on the land. In the course of the discussion, the High Court said:
"Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well settled principles concerning legal responsibility. References to duty of care, breach of duty, and causation provide convenient sub‑headings for a judgment, but in many cases the concepts require no further analysis. In other cases, of which the present is an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense. I do not suggest that is what occurred in the present case. The learned judges identified and addressed the problem that arose, although, as will appear, I disagree with the conclusion they reached. A recitation of facts may not be useful unless it distinguishes between facts essential to the cause of action, particulars, and evidence. Modern pleadings take a form which often blurs such distinctions. The rubrics under which issues are organised for discussion may do little to assist the resolution of those issues. Common sense is important, but it is not a substitute for legal analysis when that is required." [45]
Further, in Modbury Triangle, Hayne J refers to a process for determining whether a duty of care exists. His Honour said:
"In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend." [46]
Notwithstanding the terms upon which one might otherwise apply the principles outlined by Hayne J and recited above, it is impermissible for the Court to deal with the existence of a duty of care, its scope and any breach of the duty retrospectively. The issue must be determined prospectively, namely, on the basis of the reasonable person at a time prior to the incident which is said to give rise to liability. In any event, the reasons for judgment of Hayne J in Modbury Triangle include the comment that an occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land. In the present circumstances, the Owners had power to control who could or could not enter the premises in Killcare and had power to control the state of repair of the premises, including the state of repair of the balustrade.
As is clear from the foregoing, the duty of care owed by occupiers of premises to entrants, particularly those invited onto the premises, is to take such care as is reasonable. [47] It is not necessary for an occupier to inspect premises to discover unknown, latent or unsuspected defects. [48] Nevertheless, as the Court of Appeal pointed out in Ridis, supra:
"Householders, who do not know of the existence of a defect in their property that might cause danger to unlawful visitors - but who are aware of circumstances which would alert a reasonable person to the danger from the defect - cannot necessarily ignore the existence of the defect"; rather, the circumstances may well require, by way of reasonable response, an inspection of the property (or part of it), and a removal or repair of the defect" [49]
In this case, the performance of building work that was significant and which may have had the effect of giving rise to risks of harm is a circumstance of which the Owners were aware and by which they should have been alerted to the possibility of the existence of the defect. The Owners should have inspected the property. Nevertheless, it was not for the Owners to take precautions against latent and unknown defects.
As earlier stated, the liability in these proceedings of any of the defendants is governed by the terms of the Civil Liability Act. The foregoing comments relate to the common law duty of care and are necessary because the Civil Liability Act presupposes the existence of a duty of care and does not prescribe the basis upon which such a duty of care will be held to exist. Rather, where, under the common law, a duty of care may exist, the Civil Liability Act qualifies whether harm caused by any breach of such a duty of care is actionable and in what circumstances.
It is agreed between each of the parties, and is obvious from the circumstances pertaining to the incident in question, that the plaintiff suffered harm, whether that is used in the sense defined in the Civil Liability Act or otherwise. Further, that which is claimed is a failure to exercise reasonable care and skill and falls within the definition of negligence under the Civil Liability Act.
The terms of s 5B of the Civil Liability Act qualify the circumstances where a person would be held to be liable for negligence and does so by excluding liability unless the risk was foreseeable, by which the provision makes clear it has to be a risk which the person knew or ought to have known; the risk was not insignificant; and a reasonable person in the position of the defendant would have taken those precautions. [50]
The condition precedent to liability not being excluded, namely, whether a reasonable person would have taken the precautions, is required to be assessed after consideration of the probability that the harm would have occurred if care were not taken; the likely seriousness of the harm; the burden of taking the precautions to avoid the risk of harm; and the social utility of the activity that creates the risk. [51]
In determining whether the burden of taking precautions to avoid the risk of harm is such that liability ought not to exist, the burden that is taken into account is the burden of taking precautions to avoid risk and includes the burden of taking precautions to avoid similar risks for which a defendant would otherwise be responsible, being risks of the same kind. [52] The Court is prohibited from taking into account the subsequent conduct of a defendant that has been taken and which, if taken before the accident, would have avoided the risk of harm, unless that was, beforehand, foreseeable. Subsequent conduct cannot, of itself, constitute an admission of liability. [53] Nor does the fact that the risk of harm could have been avoided by doing something differently, of itself, give rise to or affect liability. [54]
While it is not a matter of great controversy in the proceedings before the Court, it is necessary to deal with the effect of the provisions of the Civil Liability Act on the question of causation.
The Civil Liability Act breaks causation into factual causation, being that the negligence was a necessary condition of the occurrence of the harm; and the scope of liability, where the Court is required to determine whether it is appropriate for the liability to extend to the harm caused. [55] Factual causation is devoid of policy or value judgments. [56]
In order for a conclusion that the scope of liability should not extend to the harm caused, there needs to be a conclusion of the tenuousness of the factual link or some limitation by reference to the responsibility involved. [57] Otherwise, the question of causation has been described as a matter of common sense. [58]
Notwithstanding the "common sense" that may determine causation, the High Court has also stated that the Civil Liability Act reinstated the "but for" test for causation and said:
"[18] The determination of factual causation under s 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm.
[19] The division of the causal determination under the statute into the distinct elements of factual causation and scope of liability is in line with the recommendations in the Final Report of the Committee convened to review the law of negligence ('the Ipp Report'). The authors of the Ipp Report acknowledged their debt to Professor Stapleton's analysis in this respect. The policy considerations that inform the judgment of whether legal responsibility should attach to the defendant's conduct are the subject of the discrete 'scope of liability' inquiry. In a case such as the present, the scope of liability determination presents little difficulty. If the appellant can prove factual causation, it is not in contention that it is appropriate that the scope of Woolworths' liability extend to the harm that she suffered. In particular cases, the requirement to address scope of liability as a separate element may be thought to promote clearer articulation of the policy considerations that bear on the determination. Whether the statutory determination may produce a different conclusion to the conclusion yielded by the common law is not a question which is raised by the facts of this appeal." [59]
In relation to factual causation, the High Court dealt with the matter in March v E & MH Stramare Pty Ltd [60] in which the Court said:
"The question (of 'what caused an accident from the point of view of legal liability') must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not." [61]
The foregoing was applied and relied upon by the Court of Appeal in Sutherland Shire Council v Safar. [62] In that judgment, the Court [63] referred to the judgment of the Court of Appeal in Hudson Investment Group Limited v Atanaskovic, which, in turn, said:
"[103]. The effect of s 5D(1)(a) is that factual causation is to be determined by the "but for" test: "but for the negligent act or omission, would the harm have occurred?": Adeels Palace at [45]: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18] (per curiam). The test requires the Court to determine whether, if the defendant had not breached its duty of care, the harm complained of would have been prevented. The test is not satisfied merely by showing that taking the steps the plaintiff alleges should have been taken might have made a difference: Adeels Palace at [50]. The plaintiff must show that it is more probable than not that, if the defendant had taken reasonable care, the harm would have been prevented: Adeels Palace at [53]. However, if the defendant's negligent act or omission is necessary to complete a set of conditions jointly sufficient to account for the occurrence of the harm, the test of factual causation will be satisfied: Strong v Woolworths Ltd at [20]." [64]
As already stated, the Civil Liability Act governs liability in the current proceedings and the relationship between the plaintiff and the Owners is one of the well-settled and well-known categories of relationship for which responsibility applies to the occupier of premises for damage caused by the manifestation of a risk of harm that was foreseeable. The risk that any part of the balustrade would be unsafe and unable to withstand the force of a person tripping or falling is a foreseeable risk and it was that risk of harm that manifested and caused the damage occasioned to the plaintiff.
More broadly, the risk is the risk of damage from falling from the walkway for which purpose a balustrade is constructed. In constructing the balustrade it is necessary to ensure that the balustrade will withstand the forces that could foreseeably be applied to it as a result of an accident of this kind, which would be the kind of accident for which the balustrade would be installed.
One of the fundamental objectives of the law of negligence is the promotion of reasonable conduct that averts foreseeable harm. It is for this reason that it is necessary for the defendant in an action in negligence to be able to exercise a significant measure of control in the legal or practical sense over the relevant risk. [65] In those circumstances, it is the reasonableness of conduct that reconciles the plaintiff's interest in protection from harm with the defendant's interest in freedom of action. As a consequence, the plaintiff is denied protection, if the defendant has acted reasonably.
In Tame, the High Court was dealing with responsibility for mental harm, but the general statements to which reference has just been made, are equally applicable to the fundamental concepts of actions in negligence, generally. It is the foregoing principles that must be applied in determining the liability for the damages suffered by the plaintiff.
Apart from the current circumstances, the work may have been performed incompetently and, itself, given rise to a risk of harm.
As it happens, during the building works and while Dak-Wal were the occupiers of the premises, the premises were altered in a way that reversed the steps taken by the Owners to avoid foreseeable risk of harm, being the temporary repairs. The Owners' failure to inspect the premises resulted in the Owners letting the property and inviting persons onto the premises in circumstances where they had failed to take reasonable steps to avoid foreseeable risk of harm. The Owners are liable to the plaintiff in that respect.
Secondly, for the relevant period up to approximately 14 June 2016, Dak-Wal was the occupier of the premises. So much is conceded by Dak-Wal in its submissions.
Further, Dak-Wal concedes that it owed a duty of care, of the kind described by reference to the Owners, during the time that Dak-Wal occupied the premises. That duty of care was occasioned as a result of the principles associated with occupier's liability.
However, Dak-Wal ceased to be the occupier of the premises prior to the incident on 18 June 2016. Dak-Wal handed the premises over to the Owners on or about 14 or 15 June 2016.
The Court accepts the submission of Dak-Wal that it cannot be found to be in breach of the duty of care associated with being an occupier of the premises in circumstances where it had ceased to be the occupier of the premises and could not have breached a duty of that character at that time.
The submissions as to the liability of Dak-Wal are also agitated on a different basis. Dak-Wal concedes that it came under a duty of care if it were, for a reason other than being the occupier, aware, or ought to have been aware, of a hazard on the premises in respect of which it was reasonably foreseeable that a person entering the property, even after it ceased to be the occupier, may have been injured. As stated, Dak-Wal concedes that duty. That concession is appropriate.
I accept that, dealing with the risk of harm to which s 5B of the Civil Liability Act refers, the risk of harm can be defined in a number of ways, one of which is that a person would fall through the absent or insecurely placed piece of handrail to the ground below and be injured. That is the risk of harm described by Dak-Wal in its submissions.
That risk was foreseeable to Dak-Wal, as conceded by Dak-Wal. It is, on the evidence before the Court, uncontroversial that Dak-Wal considered the risk foreseeable because Mr Squires, and possibly Mr Jacobs, but at least Mr Squires, was or ought to have been aware that the piece of balustrade was not in place at all at a point during the performance of the works by Dak-Wal. As is conceded by Dak-Wal so much is obvious from the evidence. Further, the risk was not insignificant.
Dak-Wal submits, and the Court accepts, that reasonable precautions for the avoidance of that risk would have included permanently fixing the handrail; advising others that this should be done; and checking to see that it had been done prior to other entrants coming onto the property. None of those precautions were taken. Each was a reasonable precaution.
As a consequence, Dak-Wal is liable in negligence for the harm that manifested from the risk conceded by Dak-Wal.
Dak-Wal relies not on any denial of liability, but, rather, on the liability of others overtaking its own liability. Dak-Wal relies upon the principles in Blatch v Archer, supra, and Jones v Dunkel in asking the Court to draw inferences from the failure by Akota to call evidence and the failure of the Owners to call particular evidence.
As earlier explained in these reasons, the principles in Blatch v Archer and Jones v Dunkel are of assistance in drawing inferences from evidence that is otherwise before the Court. As was made clear in Weissensteiner, supra, where the circumstances are such that the only party who can give direct evidence of the matters in dispute does not give evidence, then the failure of a party to give or to call evidence is taken into account in evaluating evidence which is otherwise before the Court and this reasoning process has long been recognised by the law. [66]
The foregoing was set in the context of a criminal trial and applies even more strongly in the case of civil proceedings. Nevertheless, there must be evidence from which the Court is entitled to draw an inference or which implicates the particular party that is criticised for not calling evidence. The inference arises from the principles stated in Jones v Dunkel. [67] Of course Weissenteiner, as stated, was a proceeding for a criminal prosecution for murder and the comments on its applicability and the limitations on its principles do not apply readily to civil proceedings. [68]
As to the liability of Akota and its contribution to the liability of others, there is no evidence that rises above mere conjecture that Akota removed the fixing screws in Connection 2. Since Akota did not need to deal and was not contracted to deal with Connection 1, there can be no possible basis upon which it can be said Connection 1 was the subject of interference by Akota. Moreover, while Akota was dealing with work that may have involved Connections 1 and 2, it was performing that work as a subcontractor to Dak-Wal, which remained ultimately responsible for the work and was, during that time, the occupier of the premises.
The work performed by Akota directly for the Owners was not work that was performed in the vicinity of, or in relation to, the relevant part of the cladding, the architrave and/or the connections to the balustrade. The Court has already dealt with the lack of any obligation or contract in relation to a more permanent repair of the balustrade by agreement between the Owners and Akota.
The submissions of Dak-Wal also rely upon the Owners' failure because they were aware of the risks associated with the balustrade and the balustrades' state of disrepair. The difficulty with that submission is that the evidence discloses knowledge possessed by the Owners of the disrepair of the balustrade, but the Owners took steps to avoid the foreseeable risk of harm associated therewith. They commissioned Mr Regan who repaired the balustrade. The repairs were temporary and the Owners sought to effect permanent repair, but Mr Regan's temporary repairs avoided the risk of harm associated with the disrepair. That is the expert opinion and it is an opinion that the Court accepts.
The Court is unable to identify with certainty the worker or workers who removed the fixing screws to Connection 1; and Connections 5 and 6. It is in a position to determine, on the balance of probabilities, that at least the fixing screws to Connection 2 were removed prior to the removal of the asbestos cladding and therefore by a worker or workers for whom Dak-Wal bears responsibility. It is also, as a matter of timing and a process of elimination, able to determine, on the balance of probabilities, that the scaffolders removed the section of the balustrade and eventually "fixed" it with the ligature, prior to its failure.
Even if the Court were unable to come to that conclusion, on the balance of probabilities, it is clear that as at 7 June 2016, Dak-Wal ought to have been aware of the hazard on the premises, being the absence and/or disrepair and/or insecurity of the balustrade, in respect to which it was reasonably foreseeable that a person entering the property, even after the handover that was affected about a week later, may have been injured.
As already stated, the risk of harm associated with that circumstance was foreseeable to Dak-Wal and the risk was not insignificant. It would have been extremely easy for Dak-Wal to have taken precautions that were reasonable and would have obviated or avoided the risk of harm. The steps it took on or about 21 June 2016, using material that was otherwise on-site, was one of the methods by which the risk of harm could have been avoided. Further, relevantly, Dak-Wal was responsible for the work of the scaffolders.
The Owners' negligence arises from its failure to take reasonable steps to avoid the risk of harm associated with the balustrade. I accept that the Owners, as at 18 June 2016, the date of the injury, were, in fact, unaware of the state of the balustrade.
Nevertheless, given that the Owners were inviting persons onto the site, they ought to have been aware of the risk of harm associated with the weakness in the balustrade. A simple inspection of the premises to ensure that the work had been performed reasonably and adequately and there were no foreseeable risks of harm, associated with the alteration to the premises arising from the completion of the works, would have alerted them to the issue and avoided the risk of harm that manifested in the injury to the plaintiff.
The Court is required to determine the relative contribution of each of the Owners, as a group, and Dak-Wal. The issue of apportionment depends on the appropriate share in the responsibility for the damage. It assumes that, but for the negligence of Dak-Wal and but for the negligence of the Owners, the damage would not have occurred. The Court has already dealt with that aspect. In determining the appropriate share in the responsibility for the damage, the Court must compare the culpability of each of the tortfeasors.
The culpability of the tortfeasors amounts to the respective degree of departure from standards of care and the relative importance of the acts of the parties and the departure from that standard in causing the damage. The test is not dissimilar to that utilised for the purpose of contributory negligence. [69]
The Owners' failure to inspect and take reasonable steps for the avoidance of risk of harm to persons they invited onto the premises occurred over a short period. It occurred in circumstances where the Owners had previously commissioned repairs to the balustrade that were sufficient to avoid the risk of harm. While the Court has considered that the failure to inspect was a failure to take reasonable steps to avoid the risk of harm, the Owners had no reason to suspect that the repairs they had undertaken did not remain effective.
On the other hand, Dak-Wal, whether or not it was its workers who removed the connections or workers for whose work they take responsibility, photographed the defective railing; took further photographs from the area where the railing was missing; and was grossly negligent in not taking steps to avoid the risk of harm of the foreseeable injury of which it was either aware or ought to have been aware.
So much was conceded by Mr Squires. Mr Squires, a senior employee of Dak-Wal, conceded that it was "seriously remiss" for him to have seen the absent balustrade; walked by it; and to have left it in that condition. Further, he accepted that such conduct would be "contrary to what [Mr Squires thought] is proper and accepted practice by somebody in [Mr Squires'] position to leave an opening of that kind in that condition". [70]
Notwithstanding the negligence of the Owners, applying the principles associated with the apportionment of liability it seems that workers for whom Dak-Wal was responsible were the persons who created the risk of injury by removing the railing and/or removing the connections that secured the railing and failed to avoid the risk of harm by reinstating the railing or, at the very least, informing the Owners of the creation of that risk during their occupancy. These actions were directly causative of the harm and were breaches of Dak-Wal's duty of care.
In determining the relative blameworthiness of each of the parties I have found to be negligent and bearing in mind that which is just and equitable, [71] I consider that Dak-Wal should be 100% liable for the damages.
As a consequence of the foregoing, the Court makes the following orders:
1. Judgment on the Statement of Claim for the plaintiff against the first defendant and the third to seventh defendants;
2. Judgment on the Statement of Claim for the second defendant against the plaintiff;
3. Judgment on the First Cross-Claim for the third to seventh defendants/cross-claimants against the first defendant/second cross-defendant;
4. Judgment on the First Cross-Claim for the first cross-defendant;
5. Judgment on the Second Cross-Claim for the second defendant/first cross-defendant against the cross-claimant/first defendant;
6. Judgment on the Second Cross-Claim for the third to seventh defendants/second to sixth cross-defendants;
7. The Third and Fourth Cross-Claims are dismissed;
8. The first defendant shall pay the costs of and incidental to the proceedings and each Cross-Claim incurred by the plaintiff, the second defendant and the third to seventh defendants;
9. Leave is granted to any party to apply for a different order as to costs; for the inclusion of any agreed order as to damages; and any other aspect relating to damages or the form of the orders to be entered. Such application shall be made within seven days of the date of this judgment, with each party affected by any such application filing any response thereto within a further seven days of the application. All or any such application or response shall be made by email directly to the Associate to Justice Rothman. The Court will, if there be a contest in relation to such a matter, list the matter for directions to deal with the processing of any such application. Such directions hearing shall be by audio visual link.
Exhibit CB2, p 608 (Expert Report of Mr William Bailey dated 26 March 2020).
Exhibit CB2 p 308 (Statement of Kenneth Murray Regan dated 9 March 2020, Photograph 4)
Ibid.
Exhibit CB2 p 307 (Statement of Kenneth Murray Regan dated 9 March 2020, Photograph 3).
See the hand-drawn depiction earlier in these reasons at para 112.
Exhibit CB2, p 305 (Statement of Kenneth Murray Regan dated 9 March 2020 at [12]).
Exhibit 2D-2.
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59].
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at 106 (Barrett and Gleeson JJA and Tobias AJA).
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7.
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 ("Shirt").
Shirt, supra, (Mason J, citing Donoghue v Stevenson (1932) AC 562 at 580; [1932] UKHL 100; Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1027, 1034, 1054 and 1060).
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 ("Modbury Triangle").
Modbury Triangle, supra, at [13] (Gleeson CJ).
Modbury Triangle, supra, at [105].
Hackshaw v Shaw (1984) 155 CLR 614 at 662-3; Baker v Gilbert [2003] NSWCA 113 at [30]; and see previous reference to Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7.
Ridis v Strata Plan 10308 [2005] NSWCA 246 at [133].
Ridis, supra, per McColl JA at [133], citing Baker v Gilbert, supra.
Civil Liability Act s 5B(1).
Civil Liability Act s 5B(2).
Civil Liability Act s 5C(a).
Civil Liability Act s 5C(c).
Civil Liability Act s 5C(b).
Civil Liability Act s 5D.
Wallace v Kam (2012) Aust Torts Reports 82-101; [2012] NSWCA 82 at [12]-[14] (Allsop P).
Wallace v Kam, supra.
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [43].
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12.
March v E & MH Stramare at [435] (Deane J).
Sutherland Shire Council v Safar [2017] NSWCA 203 at [107].
Harrison AJA with whom, on this issue, Macfarlan JA and White JA agreed.
Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255 at [103].
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [185], per Gummow and Kirby JJ.
Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65 at CLR 225, [23], per Mason CJ, Deane and Dawson JJ, citing Blatch v Archer, supra with particular reference to the authorities that there follow.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3.
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; [1985] HCA 34 at [10].
Transcript, 8 September 2020, p 65: l 26-33.
Law Reform (Miscellaneous provisions) Act 1946 (NSW), s 5(2); and Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509 at 1513, [20]; Council of the City of Greater Taree v Wells [2010] NSWCA 147 (Basten JA).