Regulation 73
35 Two issues arise in the determination of liability for what is alleged to be a breach of the statutory duty: first, the claim that, in these circumstances, the defendant "carried out" construction work; and secondly, whether the work in question was "construction work". In my view, the two issues are inextricably interwoven. It is necessary to explain. Authorities in the area tend to concentrate on the meaning of the words "carries out" in Regulation 73 and analyses of factual issues tend to commence with the well known passage in Buckman v Flanagan (1974) 133 CLR 422.
36 Buckman v Flanagan, supra, determined that the Act and Regulations placed "particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts." Thereafter, on the basis of that binding authority, the discussion has focused on who is performing the work and whether there is any residual control in the performance of the work by principals to whom, in the case of independent contractors, they have contracted.
37 However, in order to understand fully the history of the section, one ought start with the judgment of the Full Court of the Supreme Court of New South Wales in Davey v Skinner [1961] NSWR 216. In Davey v Skinner the majority judgment of Evatt CJ and Herron J determined that in circumstances where, coincidentally, a church group undertook building work and undertook to provide scaffolding and deliver bricks on that scaffolding to the bricklaying contractor, the bricklaying contractor was carrying out building work and responsible for compliance with Regulation 73 for the scaffolding that it did not supply.
38 In the course of the judgment in Davey, the majority said:
"The framers of the Regulations, as we have shown, were alive to the many categories of persons who can be classed as performing building operations yet chose to cast the safety obligations on the person who carries out any building work . As we have said, the opening words of Regulation 73 … require the observance of both the general and specified measures by any person who carries out any building work. A definition of such a person is in turn provided. He is a person who carries out the work (a) directly; that is one who personally performs or executes the work; (b) by his servants. No difficulty arises here as this refers to his employee; (c) by his agents. This is intended to avoid any narrowing of the field of responsibility to cases where those technically regarded servants are employed under a contract of service. The use of the familiar phrase 'servants or agents', from the subject matter of the Regulations, is intended to embrace those employed under a contract for services, that is, not merely servants properly so called, but also the agents, whom, though not strictly servants, the person carrying out building work employs to do for him what he has engaged to do….
A contractor in the position of the defendant is one, even if he is not the sole, person, to whom Part V is directed. Both the head contractor and the sub-contractor may be liable both civilly and criminally: Mulready v JH&W Bell [1953] 2 Q.B. 117 at 126. It may be said to be hard on a sub-contractor whose sub-contract is concerned only with the bricklaying, but under the Regulations it is primarily the workman's situation that must be considered. In a large building project the different trades usually operate under a series of sub-contracts. If a plumber or an electrician contracts to do all of the work of that class throughout the building it is not surprising that each should be responsible for the appropriate safety measures and to see to it that their respective workmen are provided with scaffolding and means of access to the work suitable to the class of work undertaken, and this by definition equally applies to a painter or signwriter or other trades." ([1961] NSWR at 221, 222)
39 Interestingly Sugarman J (as he then was), dissented on the basis that it was the church body, who subcontracted to the bricklayers, that was responsible and that was "carrying on" building work. He said:
"The expression 'building work' is used many times in the Regulations, not in a single uniform sense and not always in complete consistency with the definition of the same expression in section 3 of the Act…. However, I believe that there is some consistency in the use of the expression in section 6 of the Act and in various of the Regulations, where it refers, in my view, not to each single operation, such as bricklaying, carpentering and so on, in a larger work of constructing or erecting a new building, but to the particular work as a totality.
Where that totality is, as here, the construction or erection of a new building, I find it difficult to accept that section 6 was intended to require each and every sub-contractor for any portion of an entire work of construction or erection to serve the notice therein referred to. I find from Regulation 74 … that a 'building work', in the sense there intended, may have 'parts' on which particular persons may be engaged …
The subject of the duty and the objects of the rights conferred by Regulation 73 are, respectively, 'any person who directly or by his servants or agents carries out any building work' and 'persons engaged in such building work'. The relationship envisaged is not necessarily, or limited to, that of master and servant or employer and employee, which relationship in any event involves a common law duty of the master or employer to use due care for the safety of his servant or employee. The contemplated relationship is, rather, one of proximity in the wider sense, based on control of the situation, on the one hand, and exposure to risk in that situation, on the other. The 'persons engaged in such building work' may include employees, independent contractors working on the job, independent contractors who work on the job along with their own employees, and the employees of independent contractors. To treat the words 'any person who … building work' as related to individual operations, such as bricklaying, carpentry, plumbing, tiling, electrical work and so on, would introduce great complexity. It would make it difficult to discover any rational distinction between the subjects and the objects of the duties imposed and the content of the expression which describes them - between the person who 'carries out' any building work and the person who is 'engaged in' such building work - or to stop short of regarding the first of these expressions as comprehending everybody who, whether as employer or employee, works on the job. 'Carries out building work' and 'engaged in building work' would thus mean the same thing." ([1961] NSWR at 224 - 226)
40 It can be seen in the judgment in Davey v Skinner, whether the majority judgment or the dissenting judgment, that at no stage could it be said that the principal contractor was excluded from liability and responsibility for compliance with the Regulations. The difference between the majority and dissenting judgments in Davey is that the majority judgment considered that sub-contractors would, as well as the principal contractor, be responsible for compliance with the Regulations.
41 Davey was the subject of analysis and comment in Buckman, supra. The most quoted passage in Buckman is that which derives from the judgment of the Chief Justice, Barwick CJ, at 427 in which his Honour said:
"The policy of the Act will be found in its express provisions. It is not proper, in my opinion, to suppose some policy and then to construe the language used by the Act in order to effect that policy. [compare Project Blue Sky v ABA (1998) 194 CLR 355 at [69], [70] and [78].] Of course, if the language of an Act as a whole discloses the purposes the Act is intended to effect, particular expressions can take their meaning to conform to that policy. In the case of this Act it is only the actual provisions it makes that any policy is to be found. The heading to the relevant Part of the Regulation adds nothing and is merely descriptive of the Regulations themselves. For my part, I perceive that the Act and the Regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts. This seems to me an eminently practical and workable scheme of legislation. By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured. I am unable to accept the view that the word 'agents' comprises independent contractors who are themselves carrying out the building work which they have contracted to do." ( Buckman v Flanagan , supra at 427-428, per Barwick CJ)
42 That has been generally understood to exclude principal contractors, or some of them, from the responsibility to comply with the Regulations. However, it is clear from the text of the judgment and in particular the comments of the Chief Justice on Davey, supra, that his Honour was using the term "independent contractors" atypically. The Chief Justice said:
"It is not consistent, in my opinion, with that conclusion to include independent contractors who are carrying out particular building work as 'agents' of the building owner or contractor so as to impose on him the obligation which clearly will fall upon the independent contractors vis-à-vis the building work they are actually doing. Consequently, I am unable to accept the view expressed by the majority in Davey v Skinner when they said: 'in some circumstances such an expression' (servants or agents) 'could extend to independent contractors, as Williams J held in Ryan's Case .' But I do agree that: 'the use of the familiar phrase 'servants or agents', from the subject matter of the Regulations, is intended to embrace those employed under a contract for services, that is, not merely servants properly so called, but also the agents, whom, though not strictly servants, the person carrying out building work employs to do for him what he has engaged to do', that is to say, persons whose acts are in law the acts of a principal. But this description does not include independent contractors." ( Buckman , supra, at 429, per Barwick CJ)
43 It is plain from the above that Chief Justice Barwick was using the term "independent contractor" in a particularly precise and unusual way. The general discrimen between employees and independent contractors is the distinction between a contract of service and a contract for services. Yet his Honour the Chief Justice differentiates "independent contractors" from those engaged "under a contract for services". It seems that, properly analysed, the Chief Justice took the view that responsibility fell on that contractor who was, or who would be, vicariously responsible for the conduct of persons performing building work, being the building work which was directly responsible for the failure to comply with the regulations. His Honour Justice Stephen expressly agreed with the views of the Chief Justice. He did so after referring to the judicial analysis of both the majority and minority members in Davey v Skinner and the reasons for judgment of other members of the High Court in Buckman. He said:
"The imprecision of the language in which the Regulations as a whole are framed and the extent to which that language affords room for differences in interpretation is manifest.
Having had the opportunity of considering the reasoning in these various judgments, which have subjected to careful examination every available aid to the interpretation of this ill-worded legislation, I do not propose to cover once again ground already much traversed. I agree with the views which have been expressed by the Chief Justice in his reasons for judgment and in the form of order which is there proposed." ( Buckman at 434, per Stephen J)
44 The other members of the majority who made orders in or to the same effect as that proposed by the Chief Justice did so for reasons which do not expressly agree with the Chief Justice. Justice McTiernan who, with the Chief Justice and Stephen J, forms the majority judgment, took the view, expressly, that responsibility for compliance with the regulations fell to the person who carried out, or failed to carry out, the work that would be covered by the Regulation and to the contractor, if any, who was vicariously responsible for that person's conduct. He said:
"The work described includes specific functions, such as 'erecting' (which was the respondent's function in this case) rather than the whole construction undertaking itself. Thus the obligation to observe the precautions described in … Regulation 73 would here fall on the respondent Flanagan rather than on Shaw or Buckman, since it was he who was carrying out the relevant building work as described by section 3. It cannot be said that either Buckman or Shaw was vicariously liable under the Regulation as regards the work carried out by Flanagan, by considering Flanagan to be the 'agent' of either appellant. Flanagan was an independent contractor, and the relationship between an independent contractor and the person with whom he contracts does not carry with it the legal consequences of the relationship of agency. It therefore does not here shift to Buckman or Shaw the liability imposed on Flanagan as the person carrying out the building work, since he was not carrying out such work as agent or [of] either appellant in the strict sense." ( Buckman at 432-433, per McTiernan J)
45 Justices Mason and Jacobs did not agree in the reasons of the majority on this question. The majority judgment determines that the term "agents" in Regulation 73 refers to persons for whom the person is vicariously liable. By necessary implication from the terms of the judgment it determines that only such a person who, by servants or agents, as described, is carrying out the building work which gives rise to the risk and/or otherwise gives rise to the breach of the Regulation, is liable. There seems to be little or no discussion on the meaning of the word "building work" except the discussion which refers to the provisions of section 6 of the Act. Chief Justice Barwick came to the view that the terms of section 6 of the Act made clear that only one such person could be carrying out the building work of any particular kind and therefore only one such person came under the obligation to serve the requisite notice on the chief inspector in relation to that work. In that regard the Chief Justice agreed with Mason J.
46 However, Barwick CJ took the view that only the person responsible (directly or vicariously) for the work in question was responsible for compliance with the Act and Regulations now in issue. Translating such an approach to the current circumstances, if taken literally, it would mean that, in some circumstances, no one would be responsible for compliance with the Regulations. Leaving aside the degree of control that the defendant in fact had over the work performed by the plaintiff (to which issue I will return), a painting contractor engaged to repaint a flat roof that was fenced inadequately by others who were not then engaged in carrying out any building work would not be responsible for the fencing because the painting contractor had not been engaged to undertake that fencing or safety work; nor had anyone else.
47 Justice Mason deals with this issue in the following way:
"Regulation 73, unlike section 6, speaks of a person who carries out building work directly or by his servants or agents. But for the presence of the word 'directly' and the alternative reference to 'servants or agents' it would be easy to conclude that the Regulation imposed a duty, conformably with section 6, on the person (not being an employee) who executes the relevant building work and on that person alone. The obligation, breach of which is punishable by conviction and penalty, would then be confined to the person who 'carries out' the work and has it within his power to comply with the stipulated requirements in so far as they relate to the work. However, some effect must be given to words which indicate that the obligation rests not only on a person who carries out the work directly or by his servants but on one who does so by his agents. The word 'servants' excludes independent contractors, but the same cannot be said of the word 'agents'. Although an independent contractor is not usually described as an agent of the person with whom he contracts, it may be correct in a suitable setting to speak of one to whom the performance of a task is by contract delegated by another as the agent of that other and therefore to refer to a sub-contractor (and a sub-sub-contractor), although he is an independent contractor, as the agent of the other contracting party and where appropriate, the builder.
Such a setting is provided by Regulation 73. The duties which it imposes are in my view prescribed not only for the protection of the servants of the individual contractor but for the protection of all persons engaged in building work in a particular building….
The competing interpretation is that the duty of compliance is cast only upon a person in relation to the work which he carries out by his servants or agents, excluding that work which is undertaken by sub-contractors. Because the opening words of the Regulation limit the class to be protected to those 'engaged in such building work', it would exclude sub-contractors and their employees from the class sought to be protected in relation to work done by the builder or head contractor. This is a narrow view of the operation of the Regulation. Despite the need to construe the Regulation strictly because it is primarily penal in character (see Regulation 164), it is a view which in my view should not prevail….
I can find little support for the submission that Regulation 73 casts a duty on the builder to the exclusion of sub-contractors, the view which Sugerman J preferred in Davey v Skinner . Not only is it inconsistent with the opening words of the Regulation, but it is at variance with my understanding of the statutory definition of 'building work' contained in section 3. Accordingly, I approach the matter on the footing that the Regulation imposes duties on builder and sub-contractor and that the duties extend to building work done by a person through a sub-contractor." ( Buckman at 439, 440, 441)
48 While the reasons for judgment of Mason J, with respect to his Honour, are overwhelmingly compelling, the judgment of the majority (Barwick CJ, McTiernan and Stephen JJ) is binding.
49 The issue of liability under the Regulations has been the subject of much discussion. It is necessary to deal with those judgments. However, it is sufficient to remark that the circumstances reveal an approach which seeks to reconcile the comments of the majority and the minority in Buckman. In so doing, the circumstances suggest two extremes: at one end the position of the consumer (householder, owner-builder or occupier) who delegates the carrying out of all building work and who is thereby not liable for any non-compliance with the Regulation; at the other extreme is the employer who is vicariously responsible for the conduct of employees who in the course of their employment have failed to comply with the Regulation, thereby rendering the employer responsible for the non-compliance. Between those two extremes there are a range of circumstances which involve varying degrees of delegation and varying degrees of involvement in the carrying out of building work. Liability is determined by the degree to which there has been a retention of involvement in the carrying out of the building work and thereby a retention of responsibility for non-compliance with the Regulation. It seems that in no case has liability been sheeted home to a person not involved in the building and/or construction industry, i.e. a householder or occupier.
50 It is unnecessary to discuss every judgment of the Court of Appeal in which these issues are analysed. It suffices to examine five of them: Maggiotto Building Concepts v Gordon [2001] NSWCA 65; Kolodziejczyk v Grand View [2002] NSWCA 267; Bhambra v Roet [2003] NSWCA 393; Todorovic v Moussa [2005] NSWCA 100; and Lenz v Trustees of the Catholic Church [2005] NSWCA 446.
51 In Maggiotto, the Court of Appeal (Ipp AJA, with whom Meagher and Stein JJA agreed) referred at length to Buckman and to the judgment of Wood CJ at CL in Heatherington v Mirvac [1999] NSWSC 443. Ipp AJA reconciled the reasons for judgment of Barwick CJ and Mason and Jacobs JJ. In a passage which, although oft cited at length, bears repeating once more, Ipp AJA said:
"[20] Mason J explained that the legislation confers no private right upon a sub-contractor against the head contractor 'when the doing of the work which attracts the performance of the duty has been wholly delegated to the sub-contractor so as to impose the same duty on him and he does the work in breach of the duty in the absence of fault on the part of the builder'. Where, however, the head contractor participates in the faulty construction work, a different result will follow. Thus, Mason J said (at 444):
'From this material a jury could conclude that the appellant's breach of par. 17 did not solely arise because the respondent was in breach of the same provision; on the contrary a jury might well conclude that the appellants participated by act or approval in reducing the stability of the column without taking any step prescribed by par. 17'.
[21] Jacobs J made the same point. His Honour observed (at 446) that:
'Where the exposure to accident risk occurs ... as a result of the employee or sub-contractor having failed to perform the necessary acts performance of which has been properly delegated to him, then the exposure to accident risk of that employee or sub-contractor alone is not a breach of the statutory duty ...'
Jacobs J went on to say (at 447):
'It will generally be found in the case of an employee and it will often be found in the case of a sub-contractor that, though performance of the acts necessary to performance of some statutory duties may properly be delegated to them, the performance of other acts and the compliance with other statutory duties will remain the direct obligation of the employer or the head contractor as the case may be. Whether in any particular case this is so will depend upon the circumstances'.
[22] Earlier, Jacobs J (at 446) dealt with the situation where a person carrying out building work delegates work to a sub-contractor but still has a statutory duty not to expose that sub-contractor to accident risk. His Honour said:
'When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do acts or things in order to ensure their safety when engaged on the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions where under the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer's statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty'.
[23] In my opinion, the reasons for judgment of Mason and Jacobs JJ are not inconsistent with those of Barwick CJ. They can readily be reconciled.
[24] The essential point made by Barwick CJ was that whether a person was obliged to comply with the regulation depended upon whether that person was actually carrying out building work: see Hetherington v Mirvac Pty Limited [1999] NSWSC 443 per Wood CJ at CL.
[25] Mason J held that where a person participates, whether by act or approval, in the building work carried on by the independent contractor to whom the work has been delegated, that person is duty bound by reg 73. There is nothing in this proposition that departs from anything said by Barwick CJ.
[26] Jacobs J pointed out that, where a head contractor instructs some other person to carry out part of the building work, circumstances may arise that require preliminary steps to be taken to ensure that the work which the other person is instructed to do can be done safely. The issue then arises as to the responsibility for those preliminary steps. It must be a question of fact in each case as to whether the other person has been instructed to perform the preliminary steps as well as the work, the subject of the express instructions.
[27] According to Jacobs J, the head contractor will only be regarded as having instructed the other person to perform the preliminary steps if that person was particularly directed to do the specific work 'necessary in order to fulfil the [head contractor's] statutory duty'. That is to say, according to his Honour, the head contractor will only avoid having a statutory duty in regard to the preliminary steps if the head contractor particularly directs the other person to take those steps. Additionally, the other person 'must be provided with all material, assistance and supervision necessary' to ensure compliance with reg 73.
[28] These remarks have to be seen in the context of the statement by Barwick CJ that under the regulations a head contractor owes no duty thereunder in respect of work delegated by it. Jacobs J was merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe. His Honour observed that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps. Nothing in this approach departs from that of Barwick CJ.
[29] It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task. In that event, the task of doing the work necessary to complete the ancillary work or preliminary steps may well not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. The strictures expressed by Jacobs J are designed to prevent such a gap from opening. To ensure that the policy of the legislation, as enunciated by Barwick CJ, is fulfilled, the approach of Jacobs J should be adopted."
52 Dealing with the factual circumstances before the Court, Ipp AJA said:
"[38] Gordon was instructed merely to do the carpentry work at unit 33 and to do so without there being stairs in place. He was not directed to do the specific work necessary to protect himself from the dangers and risks caused by the void. Nor was he supplied with scaffolding or other appropriate material. Additionally, the obligations of co-ordinating and supervising the work remained with Maggiotto, and these obligations had direct relevance to the safety of the work Gordon was instructed to perform. It follows that the performance of Maggiotto's duties under Regulation 73 was not 'wholly delegated' to Gordon. Maggiotto still had to do construction work in regard to unit 33. That work involved co-ordinating and supervising the activities to be performed by Gordon and others, and supplying the necessary materials to Gordon.
[39] There can be no doubt but that Maggiotto breached the duties imposed on it by reg 73."
53 If it is not otherwise clear, Maggiotto had been engaged as a head contractor to construct a number of home units and had engaged Gordon to perform carpentry work to fit out some of the home units. Gordon was an experienced carpenter and was working on a particular unit which required him to work around and above a void. In order to perform that work Gordon climbed along a ledge which was approximately 3 inches wide, climbed up to a workspace and, when he, having completed the work, sought to lower himself back on to the ledge, he slipped, tumbled backwards and fell, injuring himself in the process.
54 As has been made clear in subsequent judgments of the Court of Appeal, with some of which I will shortly deal, the Court of Appeal considers itself bound by the analysis of Ipp AJA in Maggiotto repeated above. A fortiori it is binding on me. Whether or not it is binding, the analysis is, with wholly unfeigned respect, correct. Factually it was a head contractor involved, in significant respects, in the construction of home units, part of which construction was sub-contracted to Gordon. Further, the head contractor was still required to perform work in and around the area in which the sub-contractor was working and the head contractor's work would have involved compliance with Regulation 73.
55 In Kolodziejczyk, the Court of Appeal, once more, had occasion to deal with the issue of Regulation 73. The factual circumstance was that a "builder" sub-contracted to partners the performance of cladding work in the construction of the second storey of a house. The Court of Appeal (Heydon JA, with whom Ipp and Davies AJJA agreed) recited the findings of fact of the trial judge part of which included a finding that the partners "had the responsibility of carrying out the actual cladding work at the house in their own way and in their own time and were not subject to actual supervision or direction as to when and/or how the work was to be done. The partners used their own tools and ladders and also their vast knowledge and experience in doing work of this type." The same passage had earlier remarked that the "defendant at all times had the responsibility of arranging for all materials to be used at the house and additional equipment such as scaffolding reasonably requested by the partners being on site." However, it is clear from the facts before the Court and recited that the responsibility for additional equipment was confined to that requested by the partners who, in turn, were wholly responsible for the manner (including safety precautions) in which the work was performed. Heydon JA, after noting an ambiguity in the finding of fact by the trial judge, remarked:
"[22] … Whatever the correct construction of the first passage, the events relating to problems (a) and (b) are not inconsistent with it because queries by Andrew as to whether the partners could fix a problem and encouragement by Andrew to the partners for them to solve a problem for themselves, do not equate to either supervision or direction."
56 His Honour then dealt at length with common law negligence, which, for present purposes I do not recite, and with the alleged breach of statutory duty, being a breach of Regulation 73 and 74. At [70], Heydon JA cited a passage from Maggiotto being paragraphs [16] to [29]. His Honour considered himself bound by the ratio in Maggiotto and then distinguished it in the following passage:
"[73] The first submission of the plaintiff was that there were factual similarities between Maggiotto's case and the present case, namely that in both cases the head contractor supplied materials. That similarity exists, but there are three very significant differences. The first difference is that in that case the head contractor had to coordinate and supervise the activities of a large number of tradesmen in constructing from scratch thirty five home units, and act as 'project manager'; in this case the activity involved was simply placing cladding on the walls (the windows having been dealt with weeks earlier, and no other trade being involved). The second difference is that in that case the head contractor gave directions as to when, where and in what order the work was to be done, and Gordon admitted that he was under the head contractor's control while in this, according to the findings of the trial judge which are in part unchallenged and in part not successfully challenged, the partners determined for themselves the manner in which they did the work, the hours and days worked, the order in which the work was done and which one did which part of the work; they were not subject to any instruction or directions by the defendant as to how and when they carried out the work, nor to any supervision. The third difference is that in that case the head contractor supplied materials when needed; in this case the head contractor did not supply them until a request was made by the partners. In Maggiotto's case it could be said that the head contractor had an absolute obligation to ensure that materials, including the missing stairs which, had they been there, would have prevented the plaintiff's fall, were there; here the head contractor's only obligation was to supply what was asked for and not until it was asked for."
57 An analysis of the three differences adumbrated by Heydon JA, because of which a different result ensued, confirms the similarity between these present proceedings and the factual circumstances in Maggiotto. I will deal with them shortly.