Van Der Sluice v Display Craft Pty Ltd

Van Der Sluice v Display Craft Pty Ltd - [2002] NSWCA 204 - NSWCA 2002 case summary — Zoe

[9]

Held (Heydon JA, Meagher JA and Foster AJA agreeing), dismissing the appeal,

The defendant did not put the plaintiff in a position of working at such a height as to pose an obvious risk of falling. For persons experienced in that type of work the risk was not obvious. Apprehension of risk by a third party did not demonstrate an obvious risk to the plaintiff: [65]. O'Connor v Commissioner of Government Transport (1954) 100 CLR 225; and Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337 considered.
Foreseeability was not an "undemanding" test where simple uncomplicated operations by an employee within the normal system of work are concerned. The position could not be different for independent contractors: [66]. Shirt v Wyong Shire Council [1978] 1 NSWLR 631; Wyong Shire Council v Shirt (1980) 146 CLR 40; Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16; Nagle v Rotnest Island Authority (1993) 177 CLR 423; and Modbury Triangle Shopping Centre v Anzil (2000) 75 ALJR 164 considered and discussed.
While it may be reasonably foreseeable that many men in the plaintiff's position would fall off a ladder, the plaintiff was a skilled workman experienced in the type of repetitive work concerned. He had done this kind of work for years without mishap. The defendant was entitled to assume that the plaintiff would identify and eliminate relevant risks and could not reasonably foresee that the plaintiff would be harmed for failure to do so: [72]. Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 considered. Observations (Heydon JA) on apprehension of dangerous circumstances: The fact that the higher up a ladder one moves the more care one must take for one's own safety was a simple fact affecting human existence in the physical world which adults in industrialised societies learn well before they become adults. It was as fundamental, elementary and clear as facts such as that broken glass needs to be handled with care: [74].
The contractual duty of care had the same content as the tortious duty of care and failed for the same reasons: [53].
Precise measurement of the height of the ladder was crucial to the claim for breach of statutory duty under Construction Safety Regulations 1950 (NSW) Reg 73 but was lacking. Had the issue been raised at trial, it was possible that evidence could have been called to deal with it. Leave to argue the ground was denied: [104]. O R D E R S

[14]

The Master's approach in outline 4 On 27 October 1996 the plaintiff, then aged 23, was injured when he fell off a ladder on which he was working. 5 It was common ground between the parties that the facts were simple: but each saw the simplicity in different ways. In fact the Master was faced with significant difficulties of fact finding, because the plaintiff could not remember precisely how he fell, no eye witness to the early part of his fall was called, and there was an exiguity of relevant circumstantial evidence. 6 The plaintiff had been engaged on 11 October 1996 pursuant to a document signed by him to install and dismantle Christmas decorations at various locations. It was a type of work which the plaintiff had carried out for the defendant in earlier years. On 27 October the plaintiff and a team of workers assisting him were installing decorations at the Imperial Arcade, a shopping centre in Pitt Street, Sydney. The job was to be completed that day. The plaintiff was using a ladder owned by the defendant which he had used in previous years and which he had used at that site. It was a twelve foot aluminium ladder with steps on one side and cross beams on the other. 7 The Master then said (at para [41]): "An employee Joris Smink who was part of the plaintiff's team, was placing Christmas garlands flush against the awning under the barge board on the Pitt Street entrance to the arcade (see Ex D). In previous years the garland was looped onto the awning. In the 1996 year the garland was placed flush against the awning. To perform this task more hooks were required to be inserted than had been required in previous years. The ladder had to be moved constantly. The ceiling hooks had to be placed on the stepped part of the roof so that the garland could be hung. Mr Smink had carried out this procedure on the lower part of the awning and on the stepped part of the awning. He felt uncomfortable carrying out this task at a higher level and chose not to continue as he thought it was dangerous." 8 Mr Smink had been working outside the Imperial Arcade, and facing it. The Master then said (at paras [42]-[43]): "The plaintiff decided to personally undertake the work that Mr Smink thought was dangerous. The plaintiff was obliged to carry out the work at height and place the hooks in the higher part of the awning. To carry out this task he climbed the ladder. He placed his feet on the next rung down from the top of the ladder to affix the hooks into the stepped part of the roof overhead. The plaintiff reached up full stretch with one arm and leant forward to clip the hook in. He does not remember whether it was his left or right arm (T29.35). He then had to affix the garland. After inserting a number of hooks the plaintiff would descend the ladder and move it along the ground in the direction in which he was working. He would then ascend the ladder in order to place the hooks into the awning. To reach full stretch he could use only one side of his body. He was using one hand to clip the hook in. He would use either his right or left hand to position the hooks depending how far along the stepped awning he could reach. … Just prior to falling the plaintiff was standing on the second top step of the ladder. The top of the ladder connected with the bottom of his shin. He can remember reaching out but cannot recall whether or not he put the hook in the slotted part (T31). The plaintiff has no recollection of his fall or lying on the ground. His next recollection is being in hospital."

[15]

After the fall, a schoolgirl, Kathryn Hancock, came to the plaintiff's aid in a manner rightly praised by the Master. Kathryn Hancock saw the latter part, but not the initial part, of the plaintiff's fall. 9 In the fall the plaintiff suffered serious injuries, particularly to his head. He is now blind in one eye, suffered brain damage, has experienced a worsening in his pre-existing epileptic condition, and suffers from depression, anxiety and panic attacks. 10 The Master found (at para [28]): "The language of the contract [of 11 October 1996] is clear. The plaintiff was engaged by the defendant as an independent contractor. As such there was an implied term of the contract that the defendant would take reasonable care not to injure the plaintiff." 11 In addition to that contractual duty, the Master found that the defendant owed the plaintiff duties in tort on the basis that he was an independent contractor (at para [34]): "the defendant, in tort, had a legal obligation to provide the plaintiff with a safe system of work. As previously stated, in contract the defendant had a duty to take reasonable care not to injure the plaintiff. These duties are not inconsistent." 12 The Master then rejected one way in which the plaintiff put his case in the Statement of Claim: that on 11 October 1996 the plaintiff had suffered a fit or seizure to the defendant's knowledge, so that it was unsafe for the plaintiff to work at any height off the ground "unless he was properly secured from falling in the event of a fit or seizure": Statement of Claim para 17. The event referred to was a blackout suffered by the plaintiff during a training session on 11 October 1996 while he was untangling and testing some Christmas lights. He was placed under observation in hospital for two hours. He returned to work the next day. On 14 October 1996 he told Michael Clarkson, an officer of the defendant, that it could not be determined whether he had been electrocuted and that he was undergoing some tests. The Master said (at para [38]): "In these circumstances, it is my view the defendant has discharged its duty of care owed to the plaintiff when it became aware that the plaintiff may have suffered an electric shock. After the plaintiff became unconscious an ambulance was called and the plaintiff was taken to hospital. The plaintiff returned to work the next day and carried out his work in a normal manner. Three days after the accident the plaintiff told his employer he felt fine. The plaintiff also said that although it could not be determined whether he had been electrocuted, he was undergoing some tests. The day the plaintiff blacked out the defendant had the wiring checked by an electrician. Nothing untoward was found. The defendant was entitled to rely on the plaintiff's assurance that he was fine and the observations made by Tim Clarkson [another officer of the defendant] that the plaintiff had continued to carry out his work properly after he had been hospitalised. It was up to the plaintiff to decide whether or not he was fit to climb the ladder. There is no breach of duty of care so this part of the plaintiff's claim fails."

[16]

The plaintiff does not complain about that conclusion in this appeal. Another ground for rejecting that part of the plaintiff's claim is that, as will be seen, the Master found that the cause of the plaintiff's fall was not an epileptic fit. 13 So far as the events of 27 October 1996 are concerned, the Master said (at para [50]): "on the balance of probabilities, the plaintiff did not suffer an epileptic fit which caused him to fall. The plaintiff fell because he was standing on the second top step of the ladder while reaching overhead and outwards at full stretch to put a hook in the slotted part of the awning. He overbalanced and fell from the ladder to the ground suffering serious injuries." 14 The Master took into account a principle which she stated as follows (at para [52]): "In the case of skilled independent contractors who encounter risks ordinarily incident to the work they are invited onto the premises to perform, reasonable men and women in the position of the defendant would not foresee or if they did foresee would not think it reasonably necessary to guard against the occurrence of those injuries which are ordinary incidents of the work. … ." 15 The Master then summarised the evidence of Tim Clarkson, who was about the plaintiff's height and build, that after the accident he took over the plaintiff's role, and found the ladder to be stable. After setting out parts of the evidence of two engineering experts, Dr Adams and Dr Olsen, the Master said (at paras [62]-[66]): "I accept that the plaintiff was under time constraints and he was the one with the responsibility to ensure that the job was completed by the end of the day. However, the plaintiff had been told by Mr Smink that he (Smink) refused to go any higher on the ladder to carry out the work because it was too risky. The plaintiff nevertheless chose to ascend the ladder to the step nearest the top of the ladder and reach overhead to a full stretch outside the style [sic] area of the ladder. The plaintiff was experienced as he had been doing this type of work for a number of years. I infer that the plaintiff knew that this was dangerous and that he was taking a risk, but nevertheless elected to carry on with the job. As the plaintiff was the supervisor in charge of the job, he could have easily requested an employee to hold the ladder for him so that it was more stable. He chose not to give that direction. Alternatively the plaintiff could have moved the ladder in the direction he was working on a more frequent basis thus minimising the area of his reach. Although it may have taken more time he would not be called upon to reach outside the centre of his mass and he would have been securely balanced. This is exactly the mode which Tim Clarkson adopted when he completed the job later that day. It is my view that the accident was caused when the plaintiff elected to place himself in a precarious position at the top of the ladder and over reached. The plaintiff lost his balance and fell with very serious consequences The plaintiff did not take care of his own safety, and was the author of his own misfortune. It is my view that a reasonable person in the defendant's position would not have foreseen that there was a risk of injury to the plaintiff when he was installing the Christmas decorations on the awning by means of a ladder. The defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady. Accordingly, as the defendant did not breach the duty of care it owed to the plaintiff the plaintiff's claim in negligence fails. In relation to breach of contract, it is my view, for essentially the same reasons as above, that the defendant did not breach its contract with the plaintiff. The defendant took reasonable care not to injure the plaintiff. The plaintiff's claim in contract also fails."

[18]

The competing theories of the parties 17 These submissions arose out of the Master's attempts to find out how the accident happened and why the plaintiff fell. Among the potential causes were the following. The plaintiff's foot could have slipped. He could have suffered an epileptic fit. He could have experienced sudden dizziness or light headedness leading to a loss of balance. The ladder could have been placed on the ground in an unstable fashion. The ladder could have been unstable because of moisture on the ground. The plaintiff could have performed some vigorous movement on the ladder causing a loss of balance. The plaintiff could have fallen by leaning sideways from the ladder until his centre of mass went beyond the side of the ladder. 18 The theory advanced by Dr Adams, an expert in ergonomics, on behalf of the plaintiff to explain the fall was that the ladder was unstable because of a combination of four factors: the plaintiff's position on the second top rung, a lack of even support beneath the feet of the ladder, the fact that the ladder was not held or secured, and a "sideways reach and lean" by the plaintiff. Thus he said: "the pavement, while being reasonably level, is not perfectly smooth and level. There is a strong probability that the four feet of the ladder may not have all been equally supported on that slightly uneven surface, thus allowing for some slight movement of the ladder as the person working on it moved. Understandably, Mr Van-Der Sluice does not have a precise recollection of the location of the ladder in relation to the hooks that he was inserting and the garland that he was hanging. Noting that on the highest level beneath the awning the brackets to which the hooks were attached are spaced at approximately 600 mm (2 ft) centres, it is reasonable to infer that Mr Van-Der Sluice would have been attempting to attach as many as three hooks in a row from the one ladder location. If this had been the case then he would have been reaching to the side from the ladder on which he was standing and may inadvertently have moved so far as to take his centre of mass beyond the base of support of the ladder. If there was any movement whatsoever in the ladder which, it will be recalled, was not being held by his fellow worker, then Mr Van-Der Sluice could have been thrown off balance (as he was) and would have been unable to arrest the fall since there was absolutely nothing above or beside him which he could grab to arrest the fall. As was noted in Section 2.1, Mr Van-Der Sluice was standing with his feet on the step immediately below the top of the ladder. It is universally recommended and is, in fact, advised in the form of a notice on most ladders on sale these days, that a person using a stepladder should not ascend above the second step from the top. It is a matter of simple physics that the higher a person goes on a ladder and/or the further they lean to the side while standing on a ladder the less stable the system (ladder plus person) becomes. Without more detailed information, which it is clearly impossible to obtain at this remove in time and with Mr Van Der-Sluice's understandable inability to provide a clear and detailed recollection, I can only conclude that the combination of: (i) His height on the ladder; (ii) The somewhat uneven support beneath the ladder's feet; (iii) The fact that the ladder was not held or secured in any way; and (iv) The movements possibly involving a sideways reach and lean; was a combination which resulted in the instability of the system and Mr Van-Der Sluice's fall."

[27]

That reasoning was adopted by the plaintiff on appeal thus: "it's entirely possible that in the circumstances of the inconvenience of moving the ladder for every single hook, it's entirely likely that anybody having made their way to the top of this ladder would do as much as they could even at the increased risk of seeking to do one which was two feet - bearing in mind that the appellant is not positioned on one point on the step on which he's standing, he can of course move to the left and to the right to the width of the ladder, thus allowing him to move obviously from the right hand side of the ladder, it's not especially imaginative to think that he was reaching out a little to the right and conversely a little to the left." 26 The defendant adopted a different stance in oral argument, no doubt for some good tactical reason, and indicated that its stance in oral argument was its preferred position. However, so far as there was a debate between the parties on this issue, it illuminates the Master's reasoning and the evidence relevant to it. 27 The defendant's submissions that the Master made no finding that the plaintiff had a practice of inserting three hooks at each positioning of the ladder, and that there was no evidence about it, were as follows: "She recorded the appellant's evidence that 'after inserting a number of hooks' (not further particularised in the evidence or in any finding), the plaintiff would descend the ladder and move it along the ground to the next working position (para 42). She also recorded that, in his report of 1 September 1998, Dr Adams 'inferred if the plaintiff was attempting to attach as many as three hooks in a row from the one ladder location …' he might become unstable (para 55). She made no finding to that effect. The appellant's evidence does not support any such finding as that suggested; see T31 line 40-line 50; T29 line 10-line 40; T 65 line 40-line 50. In fact that evidence is against any suggestion that three hooks from each positioning of the ladder could be fixed; the burden of the appellant's evidence is that he was at full stretch 'to reach up'. It must follow from that evidence that the appellant could only reach an affixation point directly above him. The suggestion that he was required to 'reach out to the left and the right of the ladder' is not supported by the evidence and, to the extent that the learned Master's findings are to the contrary (see below), it is contended that she is wrong." 28 The written material indicated by the words "see below" is as follows. It was advanced in support of Ground 2 of the Notice of Contention, which is: "The findings that the Appellant fell because he reached outwards at full stretch (para 50), that he reached overhead to a full stretch outside the style area of the ladder (para 62) and that he over-reached, lost his balance and fell (para 64) were wrong; the Appellant failed to prove the causal mechanism of his fall from the ladder." 29 The written material in question is: "The learned Master erred in finding that: (a) the appellant fell because he reached outwards at full stretch (para 50); (b) the appellant reached overhead to a full stretch outside the style area of the ladder (para 62); (c) the appellant over-reached, lost his balance and fell (para 64). There was no evidence to support such a finding or findings. The relevant evidence is at T29 line 5 to T31 line 50; cross examination is at T65 line 43 to line 50. There was no other evidence except for assumptions and speculation by Dr Adams in his report 1 September 1998 (dealt with in the judgment at para 55). There was no evidence that the appellant, at the time of the accident, or at any other time, allowed or permitted his centre of mass to move beyond the base of support of the ladder. There is no evidence that the ladder moved in any way; Ms Hancock did not see the appellant beginning to fall (T134 line 30). She could not recall taking notice of the ladder after he fell (T134 line 40). To the best of her recollection, she did not hear anything before the appellant fell (T134 line 2). The learned Master rejected the case that the appellant's fall was initiated by an epileptic fit (para 50 of the judgment). There is no evidence of the cause of the appellant's fall, other than his failure to make use of Smink to hold the ladder. The appellant was engaged to achieve a result within the specification prescribed by the respondent He was competent to control the system of work without supervision or other action by the respondent once a suitable ladder was provided; the Master found that a sound and suitable ladder was provided (para 54). The evidence of Dr Olsen (Exhibit 14; paras 60 and 61) permitted that finding. The Master found at paras 62 to 64 that the appellant's conduct within his own area of responsibility was the cause of his fall. Authority supports that approach ([ Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16] at 30.9 and 47.9). Even if the appellant was an employer, there was no breach of duty - the cause of the injury was solely the appellant's failure to take care. The principle recognised in The Liability of Employers by Glass & Others at p 45.7 is applicable - any causative fault was within an area of responsibility allocated by the law to the appellant." 30 The plaintiff's reply in relation to this Notice of Contention material was: "The Appellant submits that it was open to the Learned Master to infer each of the factual findings attacked (a) from the Appellant's evidence (at T29), (b) from factual findings of which no complaint is made, and (c) from the circumstance that the Respondent's employee Smink was not called, leading to a Jones v Dunkel inference. No position contrary to his evidence as to his position on the ladder was put to the Appellant in cross-examination. The Appellant identifies findings from which the inferences impugned may properly be drawn as the findings numbered 1 ( Appellant fell ), 56 ( full stretch with one arm ), 57 ( descend after a number of hooks ), 58 ( either left or right hand to position hooks ), 59 ( Appellant was on second top step ), 60 ( Appellant recalls reaching out ) and 76 ( Appellant trying to meet deadline ). The Master, having negatived the possibility that the Appellant had fallen in consequence of an epileptic fit, was entitled to apply commonsense in the determination of that which probably occurred."

[30]

As to the finding numbered 74, she said in para [71] "the plaintiff was trying to meet the deadline". 33 In my opinion there are only two parts of these statements which can be enlisted to support the proposition for which the plaintiff contends. The first is the statement in para [42] that after inserting "a number of hooks" the plaintiff would descend the ladder and move it, before ascending the ladder in order to place the "hooks into the awning". The second is the statement in para [43] that the plaintiff "can remember reaching out." 34 In these passages the Master was not making findings. She was purporting to do no more than summarise the plaintiff's evidence. It is true both that the Master did not reject the plaintiff's evidence in terms, and that the Master took the approach that where the plaintiff's evidence "is not corroborated I examined his evidence very carefully". The only actual findings she made were four in number - that the plaintiff reached "overhead and outwards at full stretch" (para [50]), that the plaintiff had been reaching "overhead to a full stretch outside the style area of the ladder" (para [62]), that the plaintiff "overreached" (para [64]) and that the defendant "would have expected that the experienced plaintiff would have known to … move the ladder more regularly (para [65]). The first three findings are findings challenged by the defendant. Curiously, the plaintiff does not rely on the fourth finding in support of the first three: yet that finding indicates that the Master must have thought that the plaintiff was putting up at least two hooks each time the plaintiff went up the ladder, since if he was only putting one up, there would be no point in moving the ladder more regularly. A similar assumption underlies the first sentence in paragraph [63]. 35 The answer to the question whether the Master made a finding about any practice of the plaintiff's of putting up three hooks at a time is that apart from what the Master said in paras [63] and [65] about moving the ladder more frequently or regularly, she made no findings to that effect and no findings capable of supporting conclusions to that effect. Further, what she said in para [65] is compatible with no more than two hooks being put up at each positioning of the ladder.

[35]

That type of leaning or tilting is not the type of leaning that must be done if hooks are inserted to the left or right, as distinct from straight above. 37 So far as the Master in para [42] referred to the placing by the plaintiff of a "number of hooks" at each place the ladder was moved to, nothing on T29 suggests that he placed more than one hook at each place the ladder rested. On that page the questioner referred to hooks (or "screws", meaning hooks) on four occasions, but in a manner equally compatible with a general description of the totality of the operation. The plaintiff never gave specific evidence that at each place the ladder rested he inserted more than one hook. He was asked only one question which might have elicited such an answer, but it did not. The question, already quoted, related to his activities just before he fell: "Q. Do you recall putting any hooks into the ceiling on that occasion? A. No, I don't recall that." 38 Accordingly, there was no evidence given by the plaintiff to support the proposition that he inserted, on each occasion, a hook to the left, a hook to the right, and a hook above him. Nor was there any other evidence to support it. Nor was there any evidence that he inserted two hooks on each occasion. There was no evidence given by the plaintiff to support the conclusion that he fell in the act of reaching "outwards at full stretch", or even overhead at full stretch - save from what could be inferred from his evidence about his ordinary practice. His evidence about his ordinary practice was not that he ever reached outwards and sideways. His evidence about his ordinary practice was that he reached upwards with one arm, thereby causing a tilt in his body. In those circumstances there is no significance in the fact that the plaintiff was not cross-examined on the relevant evidence, save to clarify the words "I had to sort of lean to do it, you know". Nor is there any significance in the defendant's failure to call Mr Smink, since the plaintiff's evidence did not suggest any possible inferences which Mr Smink's silence permitted the Master to draw more strongly. But despite the lack of direct evidence for the proposition that the plaintiff ever reached outwards, for reasons to be seen the Master's view that this is what caused the fall is probably to be accepted.

[44]

The fourth last answer is capable of being read as supporting the Master's implication in para [63] that Tim Clarkson applied only one hook at each positioning of the ladder. There was no attempt to challenge that answer in cross-examination. 46 However, so far as there was precision in the evidence in chief in any other respect, it was undercut by the following evidence in cross-examination: "Q. You described reaching up with both hands. My learned friend suggests like this you have reached up to get to the top part of the arc? A. To be honest, I can't exactly remember that. I remember I completed the job and that was it. Q. It would be fair to say you cannot recall how far up you reached or where you were standing on the ladder, which rung you were standing on? A. I did not realise what step I was on." 47 The Master appears to have preferred the precision of the evidence in chief to the want of recollection in cross-examination. None of the conventional bases on which a finding of primary fact by a trier of fact who heard and saw a witness can be interfered with by this Court would appear to apply to invalidate the Master's finding in para [54]. 48 However, if the finding were to be set aside because of the answer in cross-examination, the position is as follows. It is a reasonable inference from the evidence of Tim Clarkson that he inserted one hook at each positioning of the ladder. There is no evidence that he moved his body mass outside the stile area. What is quite unclear is what rung he stood on. However, Dr Adams' reasoning did not depend on whether a user of the ladder stood on the second top step or the fourth top step. If his arms were fully extended above his head and the plaintiff's were too, and if the plaintiff is correct that he was on the second top step, Tim Clarkson must have been too. It is possible, however, that Tim Clarkson's arms were only partly extended, as he said in chief: in that event either the plaintiff must have been mistaken about stretching up (if both were on the second step) or the plaintiff must have been mistaken about being on the second step. It was put to him in cross-examination that he was on the fourth step, but he denied it. 49 The problem with the Master's use of Tim Clarkson's conduct as a means of criticising what the plaintiff did is that Tim Clarkson's evidence did not make it clear what he did. Though it is capable of being read as suggesting that Tim Clarkson placed only one hook for each positioning of the ladder, taken as a whole it is not clear where he was on the ladder or how far he reached over his head. A further difficulty is that it may not be safe to compare Tim Clarkson's safe completion of the job with the plaintiff's experience, because, following the accident which befell the plaintiff, Tim Clarkson would be likely to have been very careful in avoiding any unnecessary risk. In circumstances where there is not much evidence of what the plaintiff did and less of what Tim Clarkson did, the Master's recourse to Tim Clarkson's evidence is not a strong support for her reasoning. 50 There is, however, some negative support for the Master's conclusions to be drawn from Tim Clarkson's evidence. If (contrary to Dr Adams' opinion, which was that it did not matter whether the plaintiff was on the second, third or fourth step) it was crucial to the plaintiff's case that he was obliged to work on the second step and that this created an inherently dangerous position, that case is not supported by any admission extracted by counsel for the plaintiff, who bore the burden of proof, in cross-examination of Tim Clarkson: he was not asked any question about whether it was essential to work from the second step. And, whether Tim Clarkson was behaving excessively cautiously or not, he was not cross-examined to suggest that he was, and he did complete the work without experiencing instability or suffering a mishap. If Tim Clarkson did the work without mishap, without the ladder being held and without sideways leaning, and the plaintiff did the work without the ladder being held and with sideways leaning, the cause of the plaintiff's mishap was likely to be the sideways leaning. Since by the end of the argument the defendant was contending (contrary to its written submissions) that the sideways leaning view was justifiable, and the plaintiff did not withdraw its written submissions that it was justifiable, it is difficult for this Court to conclude definitively that there was no sideways leaning. The plaintiff unquestionably fell, and sideways leaning appears to be the only available explanation for the fall. All others have been eliminated or lack evidentiary support. In particular, the Master excluded epilepsy and moisture on the ground, and did not find that the ground was uneven or that the ladder moved. There is no evidence of unevenness and no evidence that the ladder moved as a result of unevenness. 51 However, in view of these difficulties to do with the Master's use of Tim Clarkson's evidence, the safest course is to leave it out of account in evaluating the overall merits of the Master's reasoning.

[47]

Grounds 2 and 3: foreseeability 57 Ground 2 is: "The learned Master erred in determining (para 65) that the Opponent (c)ould not have foreseen that there was a risk of injury to the Claimant involved in installation of decorations by means of a ladder (a) generally, and (b) having found (i) ' In the case before me, there was a risk arising from the nature of the work and there was some need for coordination by the defendant' (para 34). (ii) ' It may be accepted that a risk of injury attaches in respect of any person who had to go on to work at height in order to install Christmas decorations. It follows from the circumstances that such a person is expected to work at a height as (scil. 'such that') he had to use a ladder.' (para 51) and (iii) ' … a mobile scaffolding platform would have been a very cheap and practical response to the foreseeable risk.' (para 69)." 58 Ground 3 is: "The learned Master erred in holding (para 65) that it was not foreseeable that the Claimant, having the overall obligation of completing the hanging of Christmas decorations, and under pressure of time, might risk injury by reaching from the top of the ladder to each side to install three hooks, rather than relocating the ladder for the fixing of each hook." 59 The plaintiff's written submission in support of these grounds was brief: "The finding (para 65) that the Respondent would not have foreseen risk of injury to the Appellant in the factual circumstances found is unsustainable. Even putting aside the obvious likelihood that the Appellant in circumstances of time pressure might reach from the top of the ladder to left and to right in order to save time, that which was directly contemplated by the Respondent involved the Appellant working at such a height as to pose an obvious risk that he might fall, as indeed he did. The learned Master has misunderstood the low threshold involved in foreseeability. Her findings of fact, quoted in ground 2, are at variance with her finding of an absence of foreseeability."

[48]

The defendant's arguments on grounds 2 and 3 60 The defendant argued: "At the trial, foreseeability in the breach sense was not in issue. The learned Master's reference to foreseeability must be understood in that context. Principally, her references to foreseeability are at para 52 and para 65. The manner in which it is dealt with at para 65 by the learned Master demonstrates the sense in which she used the word or words. The notion that the learned Master was plainly attempting to convey was that the simple uncomplicated task which the claimant was contracted to undertake, and in respect of which he was experienced and known to be competent, did not involve any real risk of injury if ordinary care was exercised (see O'Connor v Commissioner for Government Transport 100 CLR 225). It is conceptually the same as the reasoning of Taylor J in Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337 at 343.8. That is plainly the way in which the learned Master used the expression criticised; that is made plain by the words in para 65 of her judgment: 'The defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady.' In any event, no relevant error is demonstrated because the learned Master decided the case against the appellant on the reasonableness and causation issues." 61 In Smith's case an employee was injured when he and another employee called Woods threw a wooden packing case weighing 100 pounds from a roof: a projection on the case caught in the employee's glove and dragged him off the roof. At 343-4 Taylor J said: "Upon the evidence the explanation of the mishap is to be found in the fact that, with full knowledge that there were nails protruding from the surface of the box, the appellant and Woods proceeded to launch the case into space after preliminaries that were quite unnecessary but which were calculated to give to the case considerable impetus and, at the same time, to introduce some degree of risk. I confess that I am unable to see that any such risk was involved in the task which they were asked to perform provided that it was performed, as it should have been, in a reasonably sensible and careful manner. There was not the slightest reason for employing the extraordinary procedure which was employed nor, it should be said, why the foreman should for a moment have contemplated that it would be employed. In effect it may, therefore, be concluded that the task assigned to the appellant and Woods did not involve any real risk of injury even if carried out with some reasonably foreseeable degree of inadvertence or thoughtlessness; the accident occurred because of the quite extraordinary and unnecessary method in which the two employees proceeded to carry out a perfectly simple task." 62 In O'Connor v Commissioner of Government Transport (1954) 100 CLR 225 an experienced plumber employed by the defendant fell through an awning which was affected by dry rot. Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said at 229-30: "This conclusion seems inevitable. The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury. But the party was provided with trestles and plank and nothing was wanting in tools or equipment. The deceased was experienced in his work. It was obvious that a question must exist whether the awning would bear his weight. The party sent down was as 'expert' or competent to judge of that simple subject as anybody that could reasonably be sent. Doubtless Blyton, who told the deceased to go, thought that he would work on the roof, but it was left to the deceased and the rest of the party to do the job as they thought fit. Blyton was only the leading plumber and when he sent the deceased as the next man he was not directing him how he must perform the work. It simply meant that it was what he himself would do, and without further thought he spoke accordingly. In such a simple matter who else should be left to judge? Does the reasonable care demanded of the employer require him to cause a scientific or other elaborate examination to be made of the strength of the structure lest the working plumber may decide to trust himself to it rather than work from a plank or trestles? If, as the jury may be taken to have found, the dry rot was the cause of the awning failing under the deceased's weight, the presence of the dry rot was as easily ascertained by the deceased as by anybody however skilled. The standard of care for an employee's safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable. The case is not one of a defect in premises provided by the employer as the place where the employee is to do his work. The awning was the very thing to be worked at. There were the means at hand of doing the work required without mounting the structure. It was an ordinary question for a plumber to decide for himself how he would do the work. Obviously any experienced plumber would see that there must be a question whether a structure like the awning supported not by posts but by brackets was strong enough to bear his weight as he dismantled it. It was not made for that purpose and neither the deceased nor any of his companions can be supposed to have thought that it had been specially tested to see if it was strong enough. It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job." 63 Of these two cases, Glass, McHugh and Douglas, The Liability of Employees in Damages for Personal Injury (2nd ed 1979) pp 45-6 said that they laid down: "an important principle in limitation of the employer's liability. … An area is marked out within which the employer's duty to provide a safe system of work is inoperative. It would appear that the immunity of the employer will be limited to isolated operations of no complexity outside the normal system or simple uncomplicated operations within it. It is not likely that the principle will undergo much further elucidation as scope for its operation is essentially a matter of degree depending upon the nature of the industrial activity. The only unifying principle available is the power of the court to hold that on the evidence in the particular case it would be beyond all reason to find an employer in breach of duty for failure to take certain specified steps. The impossibility of further definition is due not only to the inutility of classifying industrial tasks, but also the fact that what can reasonably be expected of industry by way of safety precautions is a developing concept."

[49]

Conclusion in relation to the plaintiff's submissions 64 In evaluating the plaintiff's submission set out above, it is necessary, as the submission contemplates, to put aside "the obvious likelihood that [he] in circumstances of time pressure might reach from the top of the ladder to left and to right in order to save time". That must be done for the reasons set out above. There was no evidence or finding that time pressure was affecting the precise way the plaintiff was operating. That leaves three points in the plaintiff's submissions. 65 The first is that the defendant put the plaintiff in a position of working at such a height as to pose an obvious risk of falling. In my opinion the risk was, for persons experienced in that type of work, far from obvious. It does not follow from the fact that Mr Smink thought it dangerous to ascend the ladder that there was an obvious risk for the plaintiff in doing so. 66 The plaintiff's second point was that there is a low threshold involved in foreseeability and that the Master misunderstood this. The defendant referred to Wyong Shire Council v Shirt (1980) 146 CLR 40; Nagle v Rotnest Island Authority (1993) 177 CLR 423; Modbury Triangle Shopping Centre v Anzil (2000) 75 ALJR 164. It is true that Glass JA in the Court of Appeal in Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641 famously described foreseeability as an "undemanding" test. In many areas it may be, at least as the law stands now. But it has a different and more demanding operation where simple uncomplicated operations by an employee within the normal system of work are concerned, for the reasons explained in Smith's case, O'Connor's case and Glass JA's book. The position cannot be different for independent contractors: Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 at 31. The authorities relied on by the plaintiff deal with areas distinct from the question whether a system of work in which an experienced plaintiff is operating is safe. 67 The third point made by the plaintiff is that the findings of fact referred to in Ground 2 contradict the Master's conclusion that there was no foreseeability. 68 The first of the allegedly contradictory findings of fact was, in para [34], expressed thus: "there was a risk arising from the nature of the work and there was some need for co-ordination by the defendant in relation to the delivery of the decorations."

[53]

As counsel for the plaintiff accepted in oral argument to this Court, this is scarcely contradictory of the Master's finding that there was no reasonably foreseeable risk. What is said in para [69] appears after the Master said she rejected the plaintiff's case. It is part of the Master's provisional findings against the possibility that her reasoning leading to the decision to direct a verdict for the defendant was wrong. What is said in para [69] assumes that the findings on reasonable foreseeability in para [65] are wrong, but does not accept that they are wrong. 71 In oral argument counsel for the plaintiff put the plaintiff's case in the following forceful way: "if a man is standing half way up a ladder then of course he has the benefit of hand holds, mainly the rest of the ladder. If he is standing at the top of a ladder which is leaning against a wall then he presumably may get some hand holds on the wall or some part of the structure but when he's got a ladder that's standing out in the open like a pyramid and he's perched at the top of it and he has no point of stability beyond such as may be obtained by resting his shins against the top of the ladder we would say that it is plainly reasonably foreseeable that he's at risk of falling off and seriously damaging himself." 72 The answer to this argument is that while it may be reasonably foreseeable that many men in that position would fall off, the plaintiff was a skilled workman experienced in this type of repetitive work. In 1993 the plaintiff had set up a freelance decorating business, and most of the work it did was for the defendant. From 1993 to 1996 the plaintiff had done freelance work for the defendant on an extensive basis - as he said in chief, it was "a fairly long association". The September-February period each year was very busy, but not the rest of the year. The plaintiff had worked at the Imperial Arcade for the defendant two years before the accident. In September-October 1996 the officers of the defendant went to some trouble to secure the plaintiff's services. Not only had the plaintiff done work of this kind before for years without mishap, he had done it on that earlier occasion at the Imperial Arcade, and he did it on this occasion without mishap until he fell. The defendant could not reasonably foresee that he would fall, because the defendant was entitled to assume that he would identify any risk of falling and take measures to prevent that risk from arising if he did. For the defendant it was not reasonably foreseeable that the plaintiff would come to harm because of the skill it had detected in him during their earlier association - which skill the defendant had gone to considerable lengths to acquire on this occasion - and because of his experience, and hence his capacity to perceive any possible risks and his capacity to devise methods of negating them by not leaning too far to the right or left, moving the ladder appropriately, and having it held by Mr Smink or someone else if necessary. 73 Notwithstanding the risks as described in the argument of counsel for the plaintiff, the Master did find that any risk could have been acceptably obviated by asking another person to hold the ladder (which the plaintiff did not do) or moving it more frequently. Counsel for the plaintiff challenged the conclusion that the plaintiff did not give that direction, but it was a reasonable inference from the fact that no-one was in fact holding the ladder. Counsel for the plaintiff did not challenge the balance of the Master's reasoning on this point. 74 A primary difficulty in the plaintiff's position goes beyond the fact that he ought to have perceived the dangers in working very high on the ladder because of his experience in that type of work and on the very site of his injury, and beyond the fact that it would have been reasonable for the defendant to assume that he, as a skilled and experienced contractor in that line of work, would have perceived and guarded against those dangers. The fact that the higher up a ladder one moves the more care one must take for one's own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult's capacity. Mr Smink felt that for him it was risky to climb the ladder. The plaintiff did not. But Mr Smink was a backpacker from Holland working in Australia, not a skilled and experienced specialist. In view of the interposition of the judgment of the workmen between the task which the defendant had engaged them for and any risk of injury, the risk of injury was not reasonably foreseeable. 75 Grounds 2 and 3 fail.

[55]

Ground 5 is: "The learned Master erred in that, having found (paras 34 and 51) the Opponent owed the Claimant a duty to take reasonable care for his safety she did not define the scope of that duty (see para 52), and held (para 65) without reasons or without adequate reasons that the Opponent did not breach that duty of care." 77 The plaintiff submitted: "The learned Master appears to have accepted that much the same duty existed between the parties whether the relationship was one of employee or independent contractor - paragraphs 33 and 34. She found that the Respondent had a legal obligation to provide the Appellant with a safe system of work. Insofar as the Master dealt with content of that duty, she found 'a personal duty of care reposed in it to exercise reasonable care to protect the plaintiff from foreseeable risk of injury, which called on it to ensure that they took adequate precautions for the plaintiff's safety while he carried out his … work' (para 51). The learned Master went on 'in the case of skilled independent contractors … the defendant would not foresee or if they did foresee would not think it reasonably necessary to guard against the occurrence of those injuries (sic, scil. 'risks') which are ordinary incidents of the work' (para 52). While no exception could be taken to the former statement (substituting 'reasonable' for 'adequate'), it is submitted that the finding that risk of the kind here relevant are not foreseeable, or if foreseeable, not reasonably necessary to guard against, is unsustainable. The learned Master found 'a reasonable person in the defendant's position would not have foreseen that there was a risk of injury to the plaintiff … the defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady. Accordingly as the defendant did not breach the duty of care it owed to the plaintiff the plaintiff's claim in negligence fails' (para 65). It is submitted that the learned Master has conflated questions of foreseeability and breach of duty. Her finding of absence of foreseeability is the subject of grounds 2 and 3. As to breach of duty of care, it is submitted that a proper analysis of the issues involved would have identified an obligation on the part of the Respondent to take reasonable care to avoid harm to the Appellant from dangers of which it was aware or ought to have been aware. The scope of that duty would include the provision of a safe base from which to carry out work. Had the learned Master correctly identified the relevant duty, it is submitted that the factual findings she made demonstrate that a breach of that duty, causally connected with the Appellant's injuries, had been established. The factual findings made by the learned Master include · There was a risk arising from the nature of the work and there was some need for co-ordination by the defendant (para 34). · The relevant ladder was a 12 foot aluminium ladder with steps on one side which belonged to the defendant (para 40). · To perform the task hooks were required to be inserted (para 41). · To carry out the work the plaintiff placed his feet on the next rung down from the top, reaching up full stretch with one arm and leaning forward (42). · After inserting a number of hooks the plaintiff would descend the ladder and move it (42). · To reach full stretch he could only use one side of his body, using one hand to clip the hook in (42). · The plaintiff fell because he was standing on the second top step of the ladder while reaching overhead and outwards at full stretch to put a hook in… He overbalanced and fell (50). · The plaintiff had been working to a height of 4.8m from the ground (53). · The plaintiff was working under some considerable time pressure (58, 62). · [The] plaintiff had been provided with an unskilled inexperienced work team (58). · [The] plaintiff had the responsibility to ensure the job was completed by the end of the day (62). · The plaintiff, in a precarious position, overreached (64). · A mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk (69). · No conduct on the part of the plaintiff makes him at all responsible for the damage in the sense that he departed from the standard of care of the reasonable man (70). · The plaintiff was trying to meet the deadline (71)." 78 So far as these submissions overlap with those advanced in relation to Grounds 2 and 3 (foreseeability), they fail for the same reasons. 79 So far as the submissions contend that there was no proper analysis of the issues involved in relation to breach of a duty of care, they rest on what Kirby J said in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [115]. He said: "These proceedings therefore fall to be determined by the application of the tests accepted in Nagle . The way in which this Court approached the problem in Nagle provides a model for the way in which similar problems should be addressed in future cases where, as seems inevitable, claims by injured persons will be brought against local and other public authorities seeking damages in negligence. Unless particular issues are conceded, it is highly desirable that trial courts should approach such disputes by considering, in turn, the standard questions: 1. Is a duty of care established? (The duty of care issue.) 2. If so, what is the measure or scope of that duty in the circumstances? (The scope of duty issue.) 3. Has it been proved that the defendant is in breach of the duty so defined? (The breach issue.) 4. If so, was the breach the cause of the plaintiff's damage? (The causation issue.) 5. (Where relevant.) Were the defaults alleged on the part of the public authority within the area of the authority's legitimate discretion on questions of policy and allocation of resources so that there was no duty of care owed to the plaintiff? Or was any suggested breach a matter left by law to the authority whose decision the courts would respect and uphold against the plaintiff's complaints? (The policy/operations issue.) 6. (Where relevant.) Has contributory negligence on the part of the plaintiff been proved and, if so, with what consequence? (The contributory negligence issue.)"

[56]

80 He also said at [117]: "In Pyrenees Shire Council v Day [(1998) 192 CLR 330 at 419, adopting Caparo Plc v Dickman [1990] 2 AC 605 at 617-618], I have expressed my preference for the conclusion that three considerations are involved in deciding whether a duty of care exists: 1. Whether it was reasonably foreseeable to the alleged wrongdoer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position; 2. Whether there exists between the alleged wrong-doer and such person a relationship characterized by the law as one of 'proximity' or 'neighbourhood'; and 3. Whether it is fair, just and reasonable that the law should impose a duty of a given scope on the alleged wrong-doer for the benefit of such person." 81 There are two difficulties about relying upon Kirby J's reasoning. First, it is not supported by a majority of the High Court: Sullivan v Moody (2001) 183 ALR 404 at [49]. The second is that, in particular, the process of locating a duty stated by Kirby J does not appear to be shared by the rest of the High Court. They saw it as a necessary but not sufficient condition for the existence of a duty. Here the Master found that it was not reasonably foreseeable to the defendant that its conduct would be likely to cause harm to the particular plaintiff in view of his experience and skill. The plaintiff's attack upon that proposition has already been rejected. 82 Though the plaintiff criticises the Master for failing adequately to define the duty resting on the defendant, his own formulation is that the defendant had a duty to take reasonable care to avoid harm to the plaintiff from dangers of which it was aware or ought to have been aware. The plaintiff also submitted that the scope of the duty included the provision of a safe base from which to carry out work. The base - the ladder - was in itself safe. If there were any unsafeness, it proceeded only from the way in which the plaintiff used the ladder. The defendant was entitled to rely on the plaintiff, with his skill and experience, to use the ladder in a manner so as not to cause him injury. 83 The supposed factual findings relied on by the plaintiff are to some extent not supported by the evidence: see the analysis above of the question of how far it can be said that the plaintiff's behaviour was governed by time pressure. Some of the factual findings are irrelevant: the lack of skill or experience on the part of the plaintiff's team had nothing to do with the accident. The proposition that a mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk begs the question of whether it was necessary for the defendant to embark on that response. It is a fallacious reading of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 to conclude that it holds that if the risk of injury is reasonably foreseeable and removal of that risk by simple and cheap measures is possible but not undertaken, there is a breach of duty. Mason J left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures: Council of the Municipality of Waverley v Lodge [2001] NSWCA 439 at [29]. The second last finding is not a finding, but a statement of the plaintiff's submission below. The surviving findings do not support the conclusion that the defendant was in breach of duty. 84 The preferred position of both the plaintiff and the defendant during the oral argument of the appeal was that, despite the want of evidence for the proposition, the Master's view that the plaintiff had reached outside the stile area of the ladder and that this was the cause of the fall, was a sound explanation of it. If so, that was a voluntary choice made by the plaintiff, and the fall did not result from any flaw in either the equipment or the system of work being operated. The contest between the parties at the trial did not turn on the precise height the plaintiff was at, but on whether Dr Adams was right that the system was flawed and that the plaintiff should have been supplied with a cherry picker, or a mobile scaffolding unit, or trestles, planks and steel railings, or a different type of ladder. Dr Olsen's competing view was that the ladder actually supplied was satisfactory if used properly. If it had been used properly, the cause of the fall was unexplained, with a consequential impact on the case of the plaintiff, who bore the onus. If the cause of the fall stemmed from the plaintiff moving his body mass outside the stile area, the ladder had not been used properly by the plaintiff, who was thus the author of his own misfortune. In para [61] the Master in effect found that to lean sideways was to fail to take a rudimentary safety precaution, which the defendant could reasonably assume would have been taken. No error has been demonstrated in that view. 85 The plaintiff relied on Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135. That case is distinguishable. It is not clear whether the experience of the plaintiff there matched that of the plaintiff here. The plaintiff there was an electrician working all over the premises, though he fell from the ceiling; the plaintiff here was experienced at doing the single and repetitive thing he was doing when he fell. There was pressure there, but not here, for work to be done "at great speed", "in a hurry and for extended hours". The circumstances there called for a co-ordination of activity between trades, but not here. That case involved the plaintiff working continuously on a narrow beam, not moving up and down a ladder repetitively, as the present plaintiff had often done before. And that case involved the plaintiff moving about surfaces he was entitled to expect to be safe but which were not, whereas this case involved working on an inherently stable and sound ladder in a manner which might involve danger, depending on the user's perception, depending on the extent to which the user judged that particular safety measures were not necessary, and depending on the extent to which the user employed proper safety measures. 86 Grounds 4 and 5 fail.

[58]

Ground 12: breach of statutory duty 88 This ground was: "The Appellant's accident having occurred in circumstances in which Regulation 73 of the Construction Safety Regulations 1950 (NSW) applied, and the factual circumstances not in issue demonstrating a breach of the obligation cast upon the Respondent by that Regulation a verdict without deduction for contributory negligence ought to be entered for the Appellant." 89 Regulation 73 provides: "Any person who directly or by his servants or agents carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work and for this purpose without limiting the generality of the foregoing, he shall subject to Regulation 74 - … (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m … ." 90 Regulation 74(1) provides: "Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold the person in charge of the construction work shall provide: (a) a safety line or safety harness and safety line complying with the requirements of AS 1891 for the use of that person; or (b) a safety net complying with the requirements of BS 3913 while the work is being carried out." 91 The defendant opposed leave being granted to the plaintiff to rely on this ground. It submitted that if the issue had been raised at the trial, its case would have been conducted differently in that the new ground could possibly have been met by calling evidence, and for that reason leave should be refused. 92 The plaintiff's argument was that whatever the relationship between the parties, the defendant was in breach of its statutory duty under Regulation 73. He submitted: "The Master recorded (para 53) Dr Adams' evidence ' that the Plaintiff's feet would have been approximately 2.7m above the pavement ', a proposition not put in issue by the Respondent. On the found facts of the accident which were not in issue set out in 1, 49, 55, 67 and 69 of the annexed document, there was a breach of that statutory requirement [ Iskra v Adar Electronics Pty Ltd (1986) 6 NSWLR 282]. No defence of contributory negligence was available against that circumstance - Statutory Duties (Contributory Negligence) Act 1945, s 2. The regulation was not pleaded in the court below. However, no prejudice would result to the Respondent from allowing the matter to be raised, even at this stage. The majority of the High Court in Vabu [at 181 ALR 272, [31]], speaking of an issue conceded in the Court of Appeal observed: ' All the facts necessary for determination of the question were adduced and proved at trial and no new fact is sought to be or needs to be raised.' (Citations omitted) No question of the Respondent's conducting its case differently at trial arises [cf Callinan J in Vabu , at 296 [113]], as the matters central to the issue were not in issue."

[59]

The "found facts" referred to were as follows: "1. Plaintiff fell off a ladder. … 49. Plaintiff used Defendant's 12' aluminium ladder. … 55. Plaintiff climbed ladder to next rung from the top to affix hooks into roof. … 67. Plaintiff had been working to a height of 4.8 m from the ground. … 69. Plaintiff had responsibility to ensure job [completed] by the end of the day. …" 93 The defendant relied on the following chronology of events. 94 On 1 September 1998 Dr Adams signed his first report. He said that if the plaintiff was on the second step of "the 3m stepladder", his feet would have been 2.7 metres above the ground. 95 On 14 May 1999 Dr Olsen provided his first report. He assumed that the ladder height in working position was 3.34 metres, that there were eleven steps, and that the spacing between each step was 300 millimetres. He drew a plan, Figure 1, with a man of the plaintiff's height, 1.83 metres. He said: "Given that firstly it would be necessary to have clear headspace under the awning, it would not be possible for the plaintiff to be standing on a step above the fourth step from the top. This is clearly seen in Figure 1. Alternatively given that the plaintiff recollects clearly reaching above height it would also not be possible for him to stand above the fourth step from the top even if the ladder was placed outside of the alignment of the awning, so that head height was not restricted by the awning. I formed the view that the ladder supplied was suitable in the circumstances and that the description given by Dr Adams does not add up to the physical circumstances and therefore it would appear that Dr Adams has been provided with inaccurate data." 96 On 6 August 1999 Dr Adams provided a further report, commenting on Dr Olsen's. In it he said: "I acknowledge that there was a minor error in my report in respect of the height at which Mr Van-Der Sluice was standing on the ladder. It is obvious that if he was attaching hooks and decorations at a height of about 4m and was reaching overhead to do so, then his feet would not have been at a height of more than about 2m above the pavement rather than the 2.7m which I had mistakenly assumed in my original report."

[61]

It was not clear what 4.8 metres was the length of. He said those measurements were made "a few minutes before coming to court". The defendant submitted to this Court that it was not possible to test the new measurements for want of notice, despite the fact that the trial had commenced on 3 April 2000, been adjourned on 7 April 2000, and resumed on 13 June 2000, the day on which Dr Adams entered the witness box. The defendant pointed to difficulties in dealing with these measurements arising from the demolition of the façade of the building, and arising from the fact that Dr Adams' opinion of the height of the awning above the front of the arcade, being one metre, rested on an "estimate" which was "difficult to scale from photographs". He also admitted that he had never been told the height of the ladder. 99 The defendant submitted that because Dr Adams referred to 1.8 metres in his oral evidence as raising a "need for proper protection", it must have been in the minds of the plaintiff's advisers that a statutory count could have been pursued. The plaintiff's solicitor has filed an affidavit negating this submission and that evidence should be accepted. But the crucial question is not whether the plaintiff's advisers thought of Regulation 73(3) and rejected it, but whether it can be said that reliance on it could possibly have been met by evidence at the trial. The defendant submitted: "Had the statutory count now sought to be relied on been the subject of an application to amend, and had it been permitted, it is clear that the respondent/defendant could, should and would have done many things that might have led to a very different corpus of evidence relevant to the statutory count, such as: (a) investigated with some care the history of the now altered façade of the Imperial Arcade; (b) engaged engineers and architects to investigate the issue of height; (c) approached the evidence of Mr T Clarkson ( who completed the work using the equipment and the system that the plaintiff employed ) somewhat differently; (d) considered calling other evidence (for example, Matthew Shaw - Black Book 339L)."

[62]

Matthew Short assisted Tim Clarkson in completing the work after the plaintiff's fall. One respect in which Tim Clarkson might have been much more fully pressed would have been the issue of which step he stood on. 100 The plaintiff submitted: "It is true that there was a difference of views on the accuracy of assumed or calculated assumptions. The [defendant's] expert [Dr Olsen] opined (Blue Book 375/O) that ' it would not be possible for the plaintiff to be standing on a step above the fourth step from the top.' This view followed [his] receipt of instructions that the actual ladder was 3.34m long. The [plaintiff's] expert [Dr Adams] had calculated ladder length from his measurement of the height to the ceiling into which the [plaintiff] was inserting hooks. This measurement was erroneous, the distance was about .8m greater . The [plaintiff] deposed that he was on the second top step and the learned Master so found (RAB 68). This dispute was irrelevant, as Dr Olsen's premise itself placed the [plaintiff] at a height above 1.8m, namely 2.14m. Dr Olsen was instructed that the ladder was 3.34m, (Black Book 374/U) and [he] has used that figure in [his] scale diagram. Dr Olsen's scale diagram (Black Book 384) depicts the [plaintiff] standing (4 x 300mm) below a height datum of 3.34m, ie, 2.14 above the ground. Evidence on the Subject The [plaintiff] deposed that the ladder was a single-sided step-ladder, ' roughly 12 foot ' (Black Book 13/E, 30/U), an assessment upon which he was not cross-examined (cf. Black book 69/R). Dr Adams in his initial report assumed the ladder to be 3m long. In the absence of the ladder he calculated this from his measured height to the ceiling the [plaintiff's] height, and the [plaintiff's] stated position on the ladder. As the [plaintiff] was on the second step he calculated that the [plaintiff] was standing 2.7m above the ground. In evidence Dr Adams confirmed that the [plaintiff] would on his original assumptions be standing 2.7m above the ground (Black Book 262/W). Having measured the height of the Arcade ceiling (Black Book 260/P), he assessed that height as ' unduly conservative ' (Black Book 364/N), presumably by the extra .8m which his remeasurement disclosed (Black Book 261/P). Dr Adams observed in cross-examination ' I did not regard the questions of height as being as crucial as the system of work using a ladder for a task that involved stretching and reaching. Once you are above 1.8 metres there is the need for proper protection and the probability of significant injury if a fall does occur. Once the height is above 1.8 metres, although I would certainly prefer to have been accurate, I did not regard it as the crucial determinative of the probability of injury, or the actual nature of the injury ' (Black Book 265/N). He also stated (Black Book 266/Q) that the original inference that the ladder was '…. no more than 3m ..' was a calculation from a height of the ceiling, the height of the [plaintiff] and the [plaintiff's] statement that he was working from the step below the apex of the ladder (Black Book 267/E). It was the remeasurement of the ceiling height, he said, which rendered the 2.7m assessment of height unduly conservative. 'Had I measured the height correctly initially I would have assumed a higher ladder than three metres ' (Black Book 278/U). Dr Olsen was shown a ladder which was 3.34m long, and observed that (on the assumption that it was the ladder in question) the [plaintiff] would not have been standing on the second top step (Black Book 375/P). Dr Adams accepted that reasoning (Black Book 369/Q), whilst drawing attention (Black Book 370/E) to the [plaintiff's] ' fairly definite ' description of his position on the ladder, and the possibility that Dr Olsen had looked at another ladder. Of the [appellant's] other witnesses, only Mr Timothy Clarkson gave evidence relating to the ladder (Black Book 2/338/B). His description of the ladder as a double-sided ladder does not match that described by the [plaintiff] and assumed by Drs Adams and Olsen. He was unable to recall the height to which he ascended to complete the work, but he too found it necessary to raise his arms above his head (Black Book 340/M-B). Cross-examination established that he had said to the police the ladder was an A frame 12' ladder (Black Book 347/D). Neither Dr Olsen nor Mr Smink was called." 101 So far as Dr Olsen is concerned, the correct position is that counsel who appeared for the plaintiff at the trial did not require him for cross-examination. 102 Even though Dr Olsen placed the plaintiff at 2.14 metres above the ground, there is considerable force in the defendant's arguments. To them might be added the fact that counsel for the defendant at the trial put to the plaintiff in cross-examination only one question suggesting he was on the fourth step, not the second. Counsel for the defendant assured this Court, and there is of course no reason to doubt, that he cross-examined in that way on instructions. Because of the difficulty of meeting a statutory count based on Regulation 73(3), it is very likely that counsel for the defendant would have cross-examined at much more length if the 1.8 metre question had been relevant. The fact that counsel for the defendant did not cross-examine the plaintiff about the length of the ladder also favours the defendant's contention, not the plaintiff's contention. 103 Further, if the 1.8 metre figure had been crucial, it may be presumed that a greater attempt to isolate the precise ladder might have been made. 104 So far as there was agreement that the plaintiff was more than 1.8 metres above the ground, it was an agreement arrived at without any specific attention to the issue or any appreciation of its potentially decisive significance. For the case run at the trial, the precise height did not matter. For the statutory count case, it is crucial. 105 For these reasons leave to rely on Ground 12 should be refused. Accordingly, it is not necessary to consider particular issues which arose in relation to Regulation 73(3) during oral argument.

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