FEDERAL COURT OF AUSTRALIA Canberra Wall Frames v White [1999] FCA 1810 NEGLIGENCE – contributory negligence - appeal from a judgment of the Supreme Court of the Australian Capital Territory awarding the respondent damages for negligence giving rise to personal injury – respondent was a carpenter who was subcontracted to erect on-site prefabricated timber wall frames manufactured and supplied by the appellant – one of the frames supplied was defective and unsafe to walk upon – frame collapsed whilst respondent was walking on it – whether respondent was contributorily negligent – whether respondent's failure to act on discovering the problem was a basis for contributory negligence – whether reg 73 of the Regulations under the Scaffolding and Lifts Act, 1912-1948 (NSW) as applicable in the Australian Capital Territory applies where the person carrying out building work is also engaged in it – apportionment of responsibility. Scaffolding and Lifts Act 1957 (ACT) McLean v Tedman (1984) 155 CLR 306, distinguished Sungravure Pty Ltd v Meani (1964) 110 CLR 24, cited Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563, cited Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, applied HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422, referred to General Constructions Pty Ltd v Peterson (1962) 108 CLR 251, cited Armstrong & De Mamiel Constructions Pty Ltd v Virenius (1981) 58 FLR 77, referred to Voce v Watson (1989) 97 FLR 448, referred to Steele v Twin City Rigging Pty Ltd (1992) 114 FLR 99, referred to Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65, applied CANBERRA FURNITURE MANUFACTURING PTY LIMITED (ACN 008 644 540), DAWE INDUSTRIES PTY LIMITED (ACN 008 576 823) and DOSYO PTY LIMITED (ACN 008 620 773) t/as CANBERRA WALL FRAMES v IAN JOHN WHITE A 42 OF 1999 MILES, HILL and GYLES JJ CANBERRA 24 DECEMBER 1999 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 42 OF 1999 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CANBERRA FURNITURE MANUFACTURING PTY LIMITED (ACN 008 644 540), DAWE INDUSTRIES PTY LIMITED (ACN 008 576 823) and DOSYO PTY LIMITED (ACN 008 620 773) t/as CANBERRA WALL FRAMES Appellant AND: IAN JOHN WHITE Respondent JUDGES: MILES, HILL and GYLES JJ DATE OF ORDER: 24 DECEMBER 1999 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The judgment of the Supreme Court of the Australian Capital Territory be set aside and in lieu thereof substitute judgment for the plaintiff in the sum of $89,986.98. 3. The appellant pay the respondent's costs of the proceedings in the Supreme Court of the Australian Capital Territory. 4. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 42 OF 1999 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CANBERRA FURNITURE MANUFACTURING PTY LIMITED (ACN 008 644 540), DAWE INDUSTRIES PTY LIMITED (ACN 008 576 823) and DOSYO PTY LIMITED (ACN 008 620 773) t/as CANBERRA WALL FRAMES Appellant AND: IAN JOHN WHITE Respondent JUDGES: MILES, HILL and GYLES JJ DATE: 24 DECEMBER 1999 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory, which awarded Ian John White ("the respondent") judgment in the sum of $179,973.95 against Canberra Furniture Manufacturing Pty Limited, Dawe Industries Pty Limited and Dosyo Pty Limited, together trading as Canberra Wall Frames ("the appellant") for damages for negligence giving rise to personal injury. In the course of the judgment, a defence of contributory negligence was rejected. This appeal is restricted to that issue. Salient facts 2 The appellant was a manufacturer and supplier of timber cottage frames. On or about 10 March 1994 it supplied to Sitecove Pty Limited ("the builder") timber wall frames for a cottage to be erected on Lot 24, Section 109, Conder, in the Australian Capital Territory. The builder subcontracted to the respondent and his son, Neil White, who operated in partnership, the task of erecting the timber wall frames supplied by the appellant, and then to erect roof trusses on that frame. 3 His Honour's account of the facts is as follows: "The plaintiff went to the site in Conder in March 1994. The frames were on the site. The first thing that was done was for the plaintiff and his son to mark out the slab with chalk, open the bundle of frames all strapped together and go ahead with the numbers and stand the sections of frame up in their correct positions. Having put the frames up, the frame would be braced to hold them secure. The floor plate, which is the bottom plate of the frame, was nailed down to hold it in position. The top horizontal piece of each frame was known as the top plate. In the course of carrying out that work, the plaintiff noted that frame 39 had a problem at the end of the cavity slider where it met frame 38. It appeared to the plaintiff at the time, while they were erecting the wall frames, that frame 39 needed a stud underneath the plate. No extra timber had been supplied and there was nothing marked on the plan to indicate that something had to be done to rectify the defect which the plaintiff saw. They went ahead with the work in the hope that the builder would come along and sort out the problem. The builder never arrived and the plaintiff and his son went ahead and completed the job. It emerged in cross-examination that in order to attach the top plate of frame 39 to the top plate of frame 38, the plaintiff or his son skewed three or four nails into frame 38. There was also a gang nail over the top. A gang nail is a metal plate with spikes in it. It took two days to erect the frame on the site. The roof trusses were not on the site during that period. The plaintiff and his son left the job and went to another job. Approximately two days later they returned to the site. The trusses were on the site laying across the wet areas at the back of the house on the erect frames. They were resting on the top plate of two load bearing walls, which were external walls, and resting on the internal frames. The plaintiff and his son then set the whole roof out on the top plate by walking around the top plate of the erected wall frames. Having done that, they set about putting the trusses in position. To do that the plaintiff and the son followed the usual practice of walking on the top plate and carrying the trusses into position. They worked on 16 March and knocked off, intending to get an early start the next day, which they did. The first truss that they moved on the morning of 17 March was a girder truss which had to go across the garage sections of the house. A girder truss is generally a stronger truss. It is a bit heavier as it has brackets bolted to it and a lot of other trusses fit onto it and it carries the weight. The subject girder truss was made of hardwood and weighed about 80 or 90 kilograms. Hence it was fairly heavy and it was a two man job to move it. The son was carrying the truss on the external wall and the plaintiff was starting to walk from bedroom 2 along frame 39 towards frame 38. When he got halfway across, the plate gave way beneath him and he fell to the concrete slab hitting his chin on the truss on the way down and landing on his "rump" on the floor, mainly on his left side. He immediately felt terrible pain and knew there was something wrong. A person working next door heard the plaintiff scream, came over and by the use of a mobile phone rang an ambulance. The plaintiff was conveyed to the Woden Valley Hospital. His contention was that frame 39 was defective. The top plate was short. It should have butted right into frame 38." (our emphasis) 4 It was common ground that frame 39 as supplied by the defendant was shorter than its top plate and a packing stud would have been required, at least as a temporary prop. His Honour held that it was clear that frame 39 needed some attention beyond that given to it before anyone walked on it. It was unsafe to walk upon otherwise. 5 His Honour's conclusion as to negligence was as follows: "I conclude that in supplying frame 39 in that condition, the defendant was under a duty of care to the plaintiff and his son to supply frames that were safe to walk upon as was customarily done in the housing construction industry. The defendant was guilty of a breach of that duty of care in failing to complete the timber frame 39, failing to provide instructions to the plaintiff of the need to do some work on the frame before walking on it, failing to warn the plaintiff that a stud was missing and failing to advise or direct the plaintiff not to walk on the top plate of frame 39 because there was a stud missing." In making these findings, his Honour had regard to expert as well as lay evidence. 6 There were essentially three bases alleged to constitute contributory negligence: (1) measures which could have been taken on the day of the accident to provide a safe platform for working; (2) the failure to do anything when the deficiency was found, such as using spare timber to fill the gap or alerting either the builder or the manufacturer to the defect and seeking a solution from either or both of them; and (3) breach of reg 73 of the Regulations under the Scaffolding and Lifts Act, 1912-1948 (NSW) in their application to the Australian Capital Territory pursuant to the Scaffolding and Lifts Act 1957 (ACT). Safety measures on the day 7 His Honour rejected this ground in the following way: "I find that the plaintiff had forgotten that frame 39 needed a prop and, in the strenuous exercise of carrying the roof truss and balancing on a fairly narrow top plate, he walked along the defective frame according to the usual practice and was not able to see from his position on the top of the frame the defect. All the top plates looked the same from where he was. It is true that if he had remembered the defective frame, he could have done a number of things to make it safe but he did not remember and I do not think it amounts to contributory negligence to forget that the frame was defective. See generally McLean v Tedman (1984) 155 CLR 306." 8 Having considered the submissions on behalf of the appellant, we cannot detect any error in the manner in which his Honour disposed of this issue. It was a finding well open to him on the facts. Failure to act on discovery of problem 9 This issue was referred to in abbreviated terms by his Honour in his reasons when dealing with the cross-examination of the plaintiff. He did not, however, deal with it in his findings on contributory negligence. It was certainly put by the appellant's counsel and was expressly recognised by the respondent's counsel, both in his opening and closing addresses, as his most vulnerable point on contributory negligence. As his Honour made no finding upon the issue, it is necessary for us to consider the findings of fact made by his Honour which might be relevant to the issue and also to consider the evidence. We have set out in paragraph 3 his Honour's narrative findings of fact, and have emphasised those parts which relate to this issue. 10 It is relevant in this connection to take into account what his Honour had said in dealing with the cross-examination of the plaintiff. So far as is relevant, it was as follows: "It was further suggested that he could have put a timber prop under the frame to give it some support on a temporary basis. He rejected that as something which the builder should have done. Lastly, it was put to the plaintiff that having noticed the defect in frame 39, he did nothing about bringing the defect to the notice of the builder and, at the relevant time, he was not thinking about the defect. He was on the top of the frame looking down and could not see the defect. All the top plates looked the same. In rejecting the temporary prop measure, he said that he did not think of it at the time, that other people could have done that and that there was no timber delivered on the site for extra work. In any event, there was no indication marked on the plan that any extra work had to be done." 11 Some of the evidence given by the respondent in cross-examination pertinent to this point was as follows: "MR STRETTON: Now, Mr White, you've said that two days before your accident approximately when you put this up, it appeared to you that it needed a stud underneath, correct? Sorry, you have to answer rather than nod?---Yes, I've answered it about three times. Okay. And you – did you contact the builder and say to the builder anything about the need for a stud?---No. Did you – why didn't you do that?---Well, it wasn't a major problem at the time. I see. Did you ---?---It never – as I said we left – what you've got to realise, we left a job for two days and that's between 40 to 50 frames in that house and for me to remember every detail of every frame is virtually impossible. Well, you've identified what you said was a problem with something missing, did you contact the Canberra Wall Frames to ---?---No. --- tell them there was a problem?---No. Well, did you think the problem was somehow going to fix itself?---Well, after we finished the roof trusses, normally you go around, in cottage work, and do all the odd pieces. So, at that time – I withdraw that. You would know, wouldn't you that in the supply of pre-fabricated material, whether it be trusses or frames or wardrobes or anything else, there a [sic] plenty of occasions when things don't fit as they should?---That's right. And the carpenter's job is to make them fit if they can, isn't it?---I've done it a lot of times. Yes. And if ---?---But the only trouble is --- Sorry?---Sometimes – like, I've done it a lot of times but you don't get paid for it. No?---But when one's – you miss out once, no-one wants to know about it. But you see the position here was, that there was – you say there was a problem with the frames not meeting, you'd identified the problem but you'd done nothing to either contact the builder or the wall framer who supplied them, about it?---No, it's correct. And what you did was two days later, come back and walk on that top plate which you tell his Honour, was only secured by skew nails on one end, correct?---That too, yes. … And another thing you could have done was to put a timber or prop under it to give it some support on a temporary basis, couldn't you?--- Well, that should have been done before they sent it out. They must have known it was wrong. That computer drawing they put out indicates that the frame was made like that which it wasn't. The bloke had the frame, putting the frame together he must have seen it was wrong. He had more chance to put a temporary prop in there than I did. Mr White, you were the man putting it up?--- Exactly right. You---?---I didn't make--- --- tell his Honour that there ---?---I had no control over the manufacture of the frame. But you could have rung him up at any time – or contacted the builder, couldn't you?---You've got to be joking. No, I'm not joking?---Well, I didn't. I said that earlier." 12 The respondent gave evidence about the temporary prop which might have been utilised either on the day of discovery or on the day of the accident as follows: "Yes. Okay. Now, is there any reason that you can advance why, if you intended to walk on this area which you knew was only supported by some skewed nails, that you couldn't have put a temporary prop underneath? Is there any reason you could not have done that?---Well, I didn't think of it at the time. I said that earlier. But had you thought of it there was no reason at all why you couldn't have put a temporary prop under there and it would have been perfectly safe, is there? ‑--Well, I think other people could have done the same thing. HIS HONOUR: Didn't you say yesterday that you had no materials?---There was no timber delivered on site for any extra work. In that particular plan it's fairly square as you can see. There's not many angles on it. And normally the only extra timber sent on a site will be with a bay window which is not in that cottage. And there wouldn't have been any extra studs, no. And there was no indication marked on that plan that any extra work had to be done. MR STRETTON: Well, there would have been some extra timber left over when you put up the frame. For example, from timber that had used to secure the bottom of a wardrobe, you know?---Yes, but I come back two days later as I said earlier. Sorry?---We come back two days later. Yes, but you'd put the frame up?---Yes. So what do you mean by you came back two days later?---What do you mean "be timber left over". Where would the timber be left over from? Well, let's suppose there was no timber left over. You've already told his Honour that you had planks and a wooden frame?---Yes, that was assembled in the garage area in the --- So you could have used one of those planks or the frame to temporarily prop that area, couldn't you?---Well, normal procedure like you said there earlier, you showed how I could put that plank across that frame. That means I'm walking along with a truss and I would have had to change direction. You can't do it. I'll come back to the proposition, Mr White, and I think you may have misunderstood me. You could have put a prop, whether it be a piece of timber, a piece of plank that you could have cut or your frame that you had, under that area to support it if you wanted to walk on it?---Well, I didn't. I didn't do it. I know you didn't. But you could have, you could have if you'd directed your mind to it, couldn't you?---Well, as I said to you there's 40 or 50 frames in that house and it's pretty hard to remember every detail." 13 On re-examination, the respondent said: "Do you remember Mr Stretton asking you about whether you could have used a plank or your A-frames to prop up this head in frame 39?---Yes, he did ask me that, yes. How long – I'll withdraw that. How many planks did you have on this particular site?---I'd say half a dozen. And what – do they come in a standard size?---Yes, they're about – between three to four metres long. Could you have used one of those planks without doing something to it to prop up this ---?---Well, I would have had to cut my plank, nearly in two. I wouldn't have wanted to do that. All right. What about using an A-frame, one of your A-frames?---Well, they're higher than the opening of the actual – the door frame. The heights of the head it would be – the A-frames would be higher. All right. What sort of timber were the A-frames made out of?---Pine. If you had taken that apart I – would you have had something you could have used?---By pulling them apart, yes. But I had them already erected in the garage - in the - what did I say, the family room, I think it was – the lounge room." 14 It is apparent that this material presents a serious case to be considered of failure by the respondent to take reasonable precautions for his own safety. It has not been dealt with. The question which arises is whether the matter should be returned to the Supreme Court of the Australian Capital Territory or whether we should deal with it ourselves. The parties have argued the matter as if we would make the decision ourselves, and have, indeed, asked that we deal with the question of apportionment if that arises. In the circumstances of this case, we shall consider the issue. The issue depends, in the main, upon findings of fact by his Honour, together with the evidence of the respondent himself. 15 Counsel for the respondent submitted that there was no express evidence that the respondent, when he observed the problem, appreciated that it would have an impact upon the safety of the structure upon which he would have to walk to lay the roof trusses. It was put that in the absence of this, there was no case of contributory negligence. On this basis, the respondent's rather cavalier attitude to the solution of the problem was related to the contractual responsibility for a building fault rather than any concern for safety. 16 The evidence of the experts called by the parties, the fact that the collapse took place where it did, together with ordinary commonsense, would indicate that a fault such as that which the respondent identified when the frame was delivered and erected would lead to weakness, particularly if weight were applied from above. Indeed, that is the respondent's case of negligence against the appellant. His Honour held that frame 39 needed some attention before it should have been walked upon. The respondent is a most experienced builder and carpenter. If he had properly turned his mind to the effect of the problem he had identified upon the task he was to perform of fixing the roof trusses, he would, in our view, have plainly recognised that something needed to be done, whether temporarily by himself or by the builder or manufacturer, before walking upon the frame as erected. Indeed, so much is implicit in the explanation given by the respondent for not taking precautions when he was fixing the roof trusses – he did not say that the problem would not have raised questions of safety, he said he had simply forgotten the problem. Failure by the respondent to consider the consequences of this problem from a safety point of view when discovered was not the kind of inadvertence referred to in McLean v Tedman (1984) 155 CLR 306, which was also a master and servant case (cf Sungravure Pty Ltd v Meani (1964) 110 CLR 24; Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563; and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529). Furthermore, if the respondent had done something about the problem when discovered, he is most unlikely to have forgotten it. 17 In our opinion, the respondent was guilty of contributory negligence. Breach of regulation 73 18 Regulation 73 of the Regulations under the Scaffolding and Lifts Act, 1912-1948 (NSW) as applied in the Australian Capital Territory at the relevant time was, so far as is material, as follows: "73. Any person who directly or by his servants or agents (including every independent contractor from time to time engaged in that work) 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 – (1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations; (2) … (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 six feet; …" 19 In our opinion, his Honour correctly rejected this basis for contributory negligence. In our opinion, the statutory obligation is placed upon a subject (the person who carries out any building work) inter alia to prevent injury to the object (persons engaged in such building work). In our opinion, the section does not apply where the subject and the object is the one person. We accept that as the partnership of the respondent and his son was responsible for the whole task of erecting the wall frames and roof of the building, they would be caught by the Regulation if any person other than themselves was engaged in the work for which they were responsible. The Regulation as it applies to the Australian Capital Territory was amended to include the words "(including every independent contractor from time to time engaged in that work)" following the decision of the High Court in HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422. There is no suggestion that any other person was to be involved. We need not decide, in this case, whether independent contractors such as the respondent might be liable to prosecution in those circumstances. We are satisfied that the Regulation is not intended to protect a person carrying out the building work, even if that person also happens to be engaged in the building work. 20 Counsel did not refer us to any authority directly in point. We note that the point arose, but did not need to be decided, in Armstrong & De Mamiel Constructions Pty Ltd v Virenius (1981) 58 FLR 77. See also Voce v Watson (1989) 97 FLR 448. The conclusion we have reached is consistent with the discussion of the different, but not unrelated, question of co-extensive duties under the Regulation discussed by Higgins J in Steele v Twin City Rigging Pty Ltd (1992) 114 FLR 99 at 105-8. 21 This conclusion means that we do not need to consider the impact of reg 74. 22 We should also make clear that no issue was raised as to the continuing application of reg 73 in the Australian Capital Territory. Apportionment 23 That brings us to the difficult question of apportionment, which we must consider without the benefit of a judgment below. It is also complicated by reason of the absence of the builder as a party. From a practical and legal point of view, it seems to us that the builder bears a significant portion of the responsibility for what occurred. It, rather than the appellant, supplied the goods to the respondent subcontractor, and it, rather than the appellant,had the major responsibility for carrying out the building work within the meaning of reg 73. It had a duty to provide appropriate material to the respondent for the purposes of the subcontract and, perhaps, to provide whatever supervision was necessary in relation to the provision of those materials – such as checking them out upon arrival. We do not have the evidence, such as the contracts between the various parties, before us to make any fine judgments about this, nor is it an issue in the case. We have not heard from the builder. However, the respective contributions of the subcontractor and the manufacturer are to be evaluated in accordance with the principles enunciated in Podrebersek v Australian Iron & Steel Pty Ltd (supra) at 532-533 and Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65, notwithstanding the absence of the builder but having regard to the role of the builder as the necessary link between them. 24 The evidence was that mistakes of one kind or another are not uncommon in prefabricated kits, and that the respondent was accustomed to dealing with that problem. The respondent did notice the problem, and could have alerted the appellant to it. The evidence from the appellant was that it would have responded with appropriate urgency. The appellant created the risk, but the respondent had sole operational responsibility for dealing with it. It would be wrong, in our view, to impose upon a supplier of goods the same duties as would apply to an employer or, even, to a builder who employs labour-only subcontractors. There was simply no duty of supervision of the respondent and no duty to devise and maintain any system of work for the respondent imposed upon the appellant. 25 It also needs to be recognised that the primary obligations of the appellant were contractual, and there was no contract with the respondent. This does not deny the existence of tortious responsibility, but puts the present case into perspective. 26 This is not a case where a manufacturer put into circulation a chattel with a dangerous latent defect without the opportunity of examination before use. Indeed, the evidence was that it assumed that any obvious defect of the kind which existed in this case would be picked up by those responsible for erection of the package. It was sold, after all, to a builder, and was erected by an experienced subcontract team. As we have said, the evidence of the respondent was that such defects were not uncommon. The defect was picked up, but nothing was done about it. On the other hand, the respondent points out that the appellant had no system of inspection of the frames before they were released for delivery. 27 There is much to be said for the appellant's submission that the respondent should bear primary responsibility for the particular accident which occurred. On the whole, however, we consider that a proper apportionment would recognise equal culpability and relative importance, taking into account the whole of the conduct of the appellant and respondent. We thus propose to reduce the verdict by 50%. 28 We order that: 1. The appeal be allowed. 2. The judgment of the Supreme Court of the Australian Capital Territory be set aside and in lieu thereof substitute judgment for the plaintiff in the sum of $89,986.98. 3. The appellant pay the respondent's costs of the proceedings in the Supreme Court of the Australian Capital Territory. 4. The respondent pay the appellant's costs of the appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court . Associate: Dated: 24 December 1999 Counsel for the Appellant: Mr GA Stretton Solicitor for the Appellant: Mallesons Stephen Jaques Counsel for the Respondent: Mr RL Crowe Solicitor for the Respondent: pappas, j. – attorney Date of Hearing: 16 November 1999 Date of Judgment: 24December 1999