Toomey v Scolaro's Concrete Constructions Pty Ltd

Toomey v Scolaro's Concrete Constructions Pty Ltd - [2001] VSC 279 - VSC 2001 case summary — Zoe

[26]

In early 1997, after the plaintiff's accident, proceedings were issued against the builder and Bigridge Pty Ltd. Hudson Conway were joined as third party. Scolaro said that he was invited to attend a meeting with Manie and McNamara, together with De Pellegrin, at Hudson Conway's office at the Atrium. Scolaro and De Pellegrin agree that at that meeting the problem with the low rail was discussed, and possible solutions. Among the solutions discussed was a corimano, yet again. The discussion of a corimano on this occasion was not that which De Pellegrin and Scolaro said had earlier occurred with James. There is no doubt that this was a separate discussion about a corimano to that in which James participated. Scolaro told me that it was suggested at the meeting that he should attend the site and fix the problem. He said he would, but only if he was paid to do so, since it was not his problem; he had followed the plan. Both Scolaro and De Pellegrin said that the possibility of applying to the Building Appeal Board for a Code dispensation was discussed. Scolaro said that he complained that he had been told that HCML would apply for a dispensation, and he wanted to know why they had not done so, to which Manie replied that it was a bit late now. De Pellegrin's recollection was somewhat different. He recalled that Scolaro had said that in following the plans he was not to know if HCML had obtained dispensations for the low rail which was shown as approved on the plan. De Pellegrin agreed as to the HCML response, however, that HCML had not sought any such dispensation and he agreed that when Scolaro had asked why they had not, the response was that it was "a bit late now". Scolaro told me that on an earlier occasion, after he had learned of the 1000 mm Code requirement he had discussed the situation with Manie, who had suggested that a dispensation might be possible from the Building Appeal Board. Manie denied having had such a discussion, or having said that HCML would apply for a dispensation.

[32]

De Pellegrin's denial that he knew the balustrade was too low and that it was for that reason that the corimano proposal was advanced was strongly challenged. He acknowledged that a letter dated 13 June 1995 written by him to the sub-contractors was open to the construction that he was requiring that "all internal stair balustrading" for Block 1 and 2 be altered so as to comply with "the contract drawings, specification and Building Code of Australia". Both Mr Gillies and Mr Casey placed considerable emphasis on the terms of the letter which De Pellegrin sent to EFT. The typed letter undoubtedly supports the interpretation (indeed, De Pellegrin acknowledged that it was the only interpretation which was open) that he was instructing EFT to rectify internal balustrades in Blocks 1 and 2 so that they complied with the plans and the Code. The omission of or similar direction as to Block 3, having regard to the fact that the Block 3 balustrades (unlike Blocks 1 and 2) were probably completed at this time supports the inference that the decision had been taken ("Fuck it, leave it at 950") to ignore the height problem of the internal balustrades in Block 3, no doubt due to the pressures of time and cost. De Pellegrin, however, said that the typed letter mistakenly omitted the word "external", and the instruction was intended to relate only to external balustrades. A handwritten draft of the letter supports that assertion by De Pellegrin and having regard to the fact that Tsigaridis of EFT was not called to give evidence (whilst recognising that HCML or Davidson Hughes could also have called him) I am not prepared to draw the inference from the letter which Mr Gillies and Mr Casey urged upon me. However, whilst I do not place weight on this letter for that purpose the evidence of De Pellegrin that the corimano proposal had nothing to do with the height of the internal balustrade was not persuasive. I do not accept that he was unaware of the problem of the low height. Caverzan's evidence strongly supports Scolaro's contention that De Pellegrin did know of the problem and whether or not the letter of 13 June 1995 is relied on, the record of the balustrade height in all these blocks compiled by Lorich clearly demonstrates that the balustrades in Blocks 1 and 2 were built to a different intended height than had been the target for Block 3. Where De Pellegrin's evidence conflicts with that of Scolaro and Caverzan I prefer their evidence to his, which was less than frank in many respects.

[139]

"It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and `more stringent' kind, namely a `duty to ensure that reasonable care is taken'. Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. One of the classic statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes v. Percival: `that duty went so far as to require [the defendant] to see that reasonable skill and care were exercised in those operations... If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself... but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.' In Kondis v. State Transport Authority, in a judgment with which Deane J. and Dawson J. agreed, Mason J. identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common `element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken' is that `the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property as to assume or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised'. It will be convenient to refer to that common element as `the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person."

[143]

Neale, who was called in support of the case for Young, said that had he noticed the anomalies on Plan 18B but nonetheless have decided to grant a building permit he would have regarded it as prudent to have drawn the anomalies to the attention of the building inspector, but having done so he would not himself then measure the balustrades. He said that he could not presume with absolute certainty that all persons who read the plan would appreciate that the anomalies of Elevation 4 should be ignored in favour of a height of 1000 mm shown on the Detail. Even where the inspector could be presumed to be an expert, Neale agreed he would want to be assured that there was no risk that the inspector, by his reading of the Plan, would allow the balustrade to be built below 1000 mm. He said that if the plan made it clear to the inspector that the anomalies had been picked up and if the plan was clarified to show that it imposed a 1000 mm requirement then the surveyor might not need to have brought the anomalies to the attention of the inspector. He said that he would himself bring the anomalies to the attention of the architect, who might amend the plans, thus obviating the need to speak to the inspector. Alternatively, the surveyor might follow the traditional practice (especially for a safety item such as this) of marking in red on the plan a correction or clarification. He agreed, too, that in a large scale project it may be wise for the surveyor and the inspector to have a look over the site together before the occupancy permit was granted. His own practice would be that when receiving a Form 14 he would want to clearly ascertain what was being certified. If he had earlier identified anomalies on a plan relating to a safety feature it was fair comment to say it would be prudent to follow up as to the Form 14 to see that there was not a problem. He agreed that it may be particularly appropriate to follow up with the inspector when he didn't himself know the inspector.

[276]

Mr Casey challenged the accuracy of Dr Wirth's account of what Ritchie Toomey had said, but in response to what seemed to me to be perfectly proper questioning to test the accuracy of the recollection, there was a remarkable reaction from Dr Wirth, not immediately apparent from a reading of the transcript of his evidence. Almost as soon as the questioning had commenced Dr Wirth adopted a glaring demeanour - modified sometimes with a half smile - and a tone which was at once both hostile and defensive, and absurdly so. There was thinly disguised contempt for the questioner evident in Dr Wirth's manner. In the course of questioning, Dr Wirth offered a gratuitous complaint that he had to pay $28,000 per annum for insurance against legal action, and it was very apparent from his manner that he held a deep-seated hostility to the conduct of litigation such as that brought by the plaintiff, which he described as being "quite a spectacular legal case". It emerged in re-examination that among the recent appointments which he had held was a period of 14 months as an adviser to a body which he was reluctant to name because of a confidentiality agreement, he said, but eventually identified as being Medico-Legal Consultants of Australia, a body which he said acted on behalf of 150 to 200 specialist medical practitioners investigating long term compensation cases on behalf of insurers and legal firms, to find out, among other matters, whether it was appropriate that the claimants should continue to receive compensation payments. What part, if any, that experience played in producing his present hostility towards the legal profession, and his obvious deep resentment at having his evidence tested, I do not know. I assumed, perhaps wrongly, that Dr Wirth would have had previous experience as a witness before courts, but he was not asked whether that was so, and it may be that his extraordinary resentment of perfectly proper questioning reflected, merely, a lack of such experience and a naïve belief that his recollection of events which had occurred many years ago, and which he had not made the subject of contemporaneous notes, should be accepted without question, notwithstanding the fact that his initial version of the conversation was at odds with the account given on oath by Ritchie Toomey and was likely to cause considerable distress to the plaintiff and his family.

[353]

Thus, for the period of 258 weeks his gross income would be $167,700; his net income about $110,000. This figure makes no allowance for superannuation contributions from his employer. Mr Stanley, in his reply to the address of Mr Casey, whilst contending that no allowance for superannuation should be made if the plaintiff was to be largely self employed, seemed to accept that an allowance for employer superannuation contributions should be made (although the submission on behalf of the defendants had not done so), if I concluded that the plaintiff was more likely to be employed in a sales or other capacity. He submitted, however, that the allowance for past and future contributions which the plaintiff sought was far too large. It was accepted that, as was set out in the actuaries' report, that an employers' rate of contributions, gross of tax and expenses was 6% until 1 July 1998, then 7% to 1 July 2000, when it rose, thereafter, to 8%, and in 1 July 2002 it was to rise to 9%. The actuary noted that the contribution applied only to earnings from ordinary hours of work, over-award payments, shift loadings, and also commission. The actuaries' calculations allowed for expenses, taxes and interest with respect to the fund. Based on an assumed gross income of $1000 p.w. the calculation for the value of that contribution up to 1 May 2001 was $35,184. I did not have the benefit of particularly detailed submissions on either side with respect to superannuation, and my analysis of the actuaries' report is a tentative one. I can say, however, that I see no basis for accepting the argument of Mr Stanley that allowance should be reduced by reference to the sums which the business paid the plaintiff's mother, who was a part time employee at times, nor because the profitability of the business was relatively low. As I have earlier stated, if the business was not sufficiently profitable for the plaintiff to be paid at least $650 gross p.w. then I do not consider he would have remained there.

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