1 MEAGHER JA: This is an appeal by a disappointed plaintiff who failed to obtain a verdict in a trial before Master Harrison. The plaintiff was a skilled electrician.
2 The plaintiff fell about 4 metres from a ceiling onto a concrete floor whilst working at the premises of the first respondent, Astra Pharmaceuticals Pty Limited (Astra), at 10 Khartoum Road, North Ryde (which we were informed is a suburb of Sydney). He was working at great speed, as Christmas was approaching, although on reduced hours (only 12 hours a day).
3 Astra is a company which manufactures pills. Each year at Christmas time its factory would close for a number of weeks to enable building alterations to take place. These alterations were often significant, and this was the case in December 1992. The alterations in that year involved the removal of walls and doors and the re-routing of air conditioning. These alterations necessarily resulted in alterations to the ceiling of the building.
4 On 24 December 1992 the plaintiff, Mr Wilke, was working on the ceiling. He was installing cabling around an air conditioning duct. The ceiling normally had joists running from wall to wall, about 2 feet apart. Perpendicularly to these ran trimmers, lengths of wood whose function it was to join the joists to each other. Both the trimmers and the joists were two inches across and four inches in depth. Above the maze of joists and trimmers were flat sheets of plywood, on which it was usually safe to walk. Sometimes - indeed often - the joists had to be cut, in which event each cut part would be nailed to a new trimmer.
5 Exactly how Mr Wilke met his fate is unclear. Nobody observed the cause of the fall. But either he was kneeling on a joist, and his foot slipped off it, or, alternatively he was kneeling on a trimmer which could not take his weight (although that was hardly possible). In any event, a co-worker, Mr Baldwin, opined that for Mr Wilke to be safe he should have used a plank to kneel on, or lie on. Nobody suggested this was impossible, but it was contended that it would have added to the time of the job. Instead of a plank, the re-instalment of part of the plywood, which had been removed, would have sufficed.
6 Mr Wilke's injuries were to the left scaphoid, but, whilst serious enough, were not as catastrophic as they might have been. No thanks to the defendants, his back was not broken.
7 Both defendants, the two respondents to this appeal, argued strenuously that neither of them were in any way negligent, and indeed that neither owed Mr Wilke any duty. The Master acceded to their submissions. She held that Mr Wilke had nobody but himself to blame for his misfortune. I must say that, at first blanch, this strikes me as more than a little odd. For a manager (to use a neutral term) to expect a workman to do his job on a narrow beam twelve feet above a concrete floor in a hurry and for extended hours without having some obligation to see that the workman is in some way protected from falling is to indulge in an extreme form of Gradgrindism.
8 I say that "manager" is a neutral term, because this is no employer-employee relationship at any point. Astra was the occupier of the premises; it did not employ Rondal Pty Limited (Rondal); it as principal engaged Rondal, the second defendant and second respondent, as an independent contractor; Rondal described itself as a specialist in "Construction Management Factory Maintenance"; Rondal in turn engaged, but did not employ, Mr Wilke's private company in order to obtain his services as an electrician. One gains the impression that in the building game one always uses independent contractors, not employees, in the (I hope, vain) belief that the statutory safeguards relating to work safety will no longer apply.
9 There was no written contract between Astra and Rondal. The contract between these parties consisted of a simple oral acceptance by Astra of a quotation from Rondal "for the demolition, building works and services to carry out the alteration work to the Khartoum Road address as per recent discussion". There were no plans drawn up. The plaintiff described the operation as "organised chaos".
10 Rondal, soi-disant experts in "construction management", was controlled by two gentlemen called Ron and Dale. They employed a manager, called Norm Fritter. They also employed an innominate engineer. None of these four gentlemen seem to have been in evidence on the day of the accident, and none of them gave testimony before Master Harrison.
11 In these circumstances, I cannot imagine a clearer case of negligence against Rondal Pty Limited. It was in precisely the same situation as the principal in Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16. In that case, Mason J at 21 said:
"While individual fellers, sniggers and truck drivers may have been responsible for their own safety with regard to carrying out their own functions, they had little choice but to rely on the care and skill of Brodribb in the arrangements which it made for the disposition of the work, and on the care and skill of the persons engaged by Brodribb in the execution of the work. The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines."