ITSKOS v EKKLISIRHIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and POWELL JJA 1 March 1995, 29 March 1995. [1995] NSWCA 211 EMPLOYEE/EMPLOYER — NEGLIGENCE FACTS: The appellant suffered personal injuries whilst working on a demolition site as a sub-contractor of the first defendant. At first instance the appellant alleged negligence on the part of three defendants. The second defendant, Mr Puglia, was engaged by the third defendant, Doperas Pty Ltd, to supervise the building works on the site. The third defendant was the owner of the demolition site. Although the first defendant and the third defendant were both respondents to the appeal, no case was mounted against either of them. HELD: (1) The trial judge having determined, upon the basis of certain findings of witness credibility, that the second respondent owed the appellant neither the duty of care which an employer owes and employee, nor any duty of care independent of employment, the trial judge's findings should not be examined. (2) A worker injured on a construction site may be able to claim in negligence notwithstanding that the injured worker is not an employee of that person. Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16, Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, Bus v Sydney County Council (1989) 167 CLR 78, considered. CASES CITED Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bus v Sydney County Council (1989) 167 CLR 78 Mahoney JA The facts are outlined in the judgment of Meagher JA and I shall not repeat them. The appeal proceeded only against the second respondent. Mr Maxwell, in his argument for the appellant-plaintiff, argued three substantial points: that the plaintiff was the employee of the second defendant; that the plaintiff could claim the benefit of the relevant statutory provisions; and that the second defendant was liable to the plaintiff upon (as it was described) the "proximity" basis. Findings of fact were made by the trial judge. Relevant findings were based on his appreciation of the witnesses and their credibility: he did not accept the plaintiff generally as a credible witness. Upon that basis, I do not think that this Court should depart from the judge's findings in respect of the relevant primary facts. In order to understand the submissions made by Mr Maxwell, it is necessary to refer to the background. Upon the basis of the facts as they have been found, it may be stated as follows. The land in question and the building on it were owned by those associated with the third defendant company. They desired to have the building demolished. They contracted with the first defendant to demolish it. The first defendant felt unable to undertake the work and contracted with the plaintiff and those associated with him to do so. The third defendant and those associated with it arranged for the second defendant to be upon the site and, as I infer, to safeguard their interests. 2 UNREPORTED JUDGMENTS It was in this context that the plaintiff was injured. In the course of demolition, he has cutting away some steel reinforcement. He was on a plank some eight feet above the ground. He fell from the plank and was injured. He contended (as far as is now relevant) that his work should have been done not on a plank but on appropriate scaffolding: it is that which, for the purposes of the appeal, Mr Maxwell argued to be the relevant default. It was, as Mr Maxwell accepted in argument, the fact that scaffolding was not employed that was at the heart of the plaintiff's claim against the various defendants. During the trial, various claims were made for the plaintiff but, as far as remains relevant, the plaintiff's claim on appeal was essentially as I have indicated. The trial judge, after a long and detailed examination of the facts, held that the plaintiff was not an employee of any of the defendants but was doing the work as the result of a genuine sub-contract made between him and his associates and the first defendant. That finding is not now controvertible or controverted. His Honour held that the plaintiff had no contractual relationship to the second defendant. The judge said: "The second defendant did not know the plaintiff at all". It was open to the second defendant, acting in the interests of the third defendant and its associates, "to refuse to agree to the first defendant's choice of sub-contractor" but he did not do so. The judge concluded that "there was absolutely no reason for the second defendant, having given the contract to the first defendant, to concern himself with making a new contract with the plaintiff for part of the first defendant's contract work". 1. WAS THE SECOND DEFENDANT LIABLE TO THE PLAINTIFF AS HIS EMPLOYER? Mr Maxwell, in his argument, sought to contend that the trial judge erred in not finding that the plaintiff was an employee of the second defendant. But, in my opinion, that argument was unsustainable. The plaintiff, in his statement of claim, did not suggest that he was the employee of the second defendant: his claim was to be a sub-contractor. Upon the findings of fact which the trial judge made, in my opinion correctly, the second defendant was not the plaintiffs employer and therefore did not owe to him the duty of an employer in respect of scaffolding on which Mr Maxwell relied. 2. THE STATUTORY CLAIM: At the trial it had been submitted that the relevant statute and statutory regulations imposed on the second defendant a duty which required him to ensure, in effect, that the plaintiff worked from scaffolding and not from a plank. Mr Maxwell conceded that, if the plaintiff was not the employee of the second defendant, that claim failed. Accordingly, it was not further argued. 3. THE PROXIMITY CLAIM It is, I think, important to bear in mind that a worker injured on a construction site may be able to claim in negligence against a person who has the charge of the site and/or the work notwithstanding that the injured worker is not an employee of that person. Reference was made in argument to cases such as Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16. It is important that this be recognised because, as the Court is entitled to know, a substantial part of the work upon construction sites may be done by persons who are not employees of those in charge of the site but are, either in reality or in form, independent contractors. It is not necessary or desirable that, in the present appeal, the Court mark out the boundaries of that form of liability or attempt to formulate the principles by which it is to be determined. But where a person has charge of a construction site and invites others to work upon it or, perhaps, URJ ITSKOS v EKKLISIRHIS (Meagher JA) 3 contemplates that they will do so, that person may have a duty in negligence to ensure that the working environment does not impose unacceptable risk of injury upon those working on it. If the site be so structured or so organised that it poses dangers to those who, whether as employees, sub-contractors or otherwise, come upon it, liability may arise in negligence for injuries suffered by such persons. Those who work on building sites or in analogous parts of the workforce are not insured against injury. In principle, the laws of negligence remain operative. However, the precautions required of one who has a duty of care are to be measured by "current community standards" and these are becoming more rather than less demanding: see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309; Bus v Sydney County Council (1989) 167 CLR 78. The present case, as it has now been put, involves a danger of a particular kind. As I have said, the plaintiff's injury arose, not from the nature of the site or its general organisation as such, but from the fact that the plaintiff chose to do the particular part of the work he was doing from a plank rather than from scaffolding. Whether and in what circumstances a person in control of a building site will be liable, not merely for damage from dangers incident to the nature of the site or its general organisation, but for damage from the way in which work is conducted upon it will require consideration in an appropriate case. In the present case, the second defendant was not a person having the relevant control of the site or of what was done on it. At the trial, there was evidence suggesting that the second defendant had, in practice, given directions as to what was to be done upon the site. The learned judge did not accept the plaintiffs evidence and, I think, did not accept that the second defendant had so acted. His conclusion was, as I have indicated, that the second defendant had no right to direct the plaintiff and did not do so. In the circumstances established by the evidence, there was in my opinion no duty upon the second defendant or those who appointed him to take care for the plaintiff's safety or, a fortiori, to direct that the work be done not from a plank but from scaffolding. Upon that basis, this part of the plaintiffs claim should fail. Mr Maxwell, in his endeavour to avoid the effect of the findings made by the learned trial judge, put his submissions briefly; but he presented the main thrust of them. In dealing with his submissions, I have stated the relevant aspects of the case similarly in a broad fashion. In the light of the findings of fact which, in my opinion, the trial judge correctly made, the submissions for the plaintiff should not be accepted. I agree with the orders proposed by Meagher JA. Meagher JA In this appeal, the appellant, Chris Itskos, seeks to overturn a decision of Holland AJ that he was not entitled to a verdict against the second respondent, a Mr Puglia. Mr Itskos suffered personal injuries on 28 January 1985 when he fell from the first floor of a building at 55 Parramatta Road, Homebush which was in the course of being partly demolished. When he fell he was engaged in cutting by oxy-acetylene torch concrete reinforcing steel which had been left protruding from a wall after a concrete slab on the first floor had been demolished by him and his partner, one Jim Skoumbar. He had been working on a plank, which collapsed. He alleged scaffolding should have been provided. The facts were much in dispute. The parties to the case at first instance were Mr Itskos (plaintiff), Mr Ekklisirhis (first defendant) Mr Puglia (second defendant) and Doperas Pty Ltd (third defendant), a company which has now been dissolved. Each defendant succeeded in repelling the plaintiff's attack upon him or it. 4 UNREPORTED JUDGMENTS The third defendant was the owner of the demolition site. The plaintiff, Mr Itskos, had no claim, in contract or in tort, against it, and the contrary was not suggested in the appeal. The second defendant, Mr Puglia, an employee and or an affiliate of, a company called Pabora Pty Ltd (which was not a party to this case either at first instance or an appeal) was apparently engaged by the third defendant to supervise the building works on the site. It is not suggested that he had any real personal expertise in any branch of the work to be done, and in particular it is not suggested that he was cognisant of what was involved in demolition work. He, Mr Puglia, engaged the first defendant, Mr Ekklisirhis, to do a number of the building jobs required to be done on the building. The demolition work was one of those jobs. Mr Ekklisirhis decided he could not do the demolition work. The plaintiff was selected to do it in his stead. There was much debate before his Honour as to what was the relationship between the plaintiff and the first two defendants. On this issue there was a considerable bulk of evidence, most of it conflicting. I might add that about the only relevant fact which is common to all the different accounts is that the plaintiff, together with his partner Mr Skoumbar, was, and held himself out as, a skilled demolition expert. On the disputed issues, there was no documentary evidence; his Honour had to decide them on the oral testimony of the various witnesses, and his Honour's findings, therefore, are all credibility based and hence unexaminable by us. His Honour disbelieved the plaintiff and his witnesses, and his Honour disbelieved the first defendant, Mr Ekklisirhis. His Honour believed the second defendant. The most critical set of findings by his Honour, in my view, relate to relationship - or, rather, the lack of relationship - between the plaintiff, Mr Itskos, and the second defendant, Mr Puglia. His Honour held that there was no contract of employment between the two of them, nor was there a contract of services. Mr Puglia, knew that the plaintiff would take over Mr Ekklisirhis's demolition work, he approved the appointment, and he might have told the plaintiff what work had to be done. But the plaintiff was neither an employee nor an independent contractor of Mr Puglia. The plaintiff was, however, a sub-contractor of the first defendant, Mr Ekklisirhis. He was not an employee of Mr Ekklisirhis who neither reserved a right to direct him how to do his work nor in fact exercised any such right. Once this set of findings had been made by his Honour, it is difficult to know on what basis Mr Itskos could claim against Mr Puglia. The latter did not owe the plaintiff any of the duties which an employer owes an employee. Nor did the circumstances give rise to any duty of care independent of employment: Mr Puglia knew that Mr Ekklisirhis had engaged the services of the plaintiff to perform some demolition work in which he claimed expertise. That is all. There is no evidence accepted by the judge that Mr Puglia knew that scaffolding, which would have prevented the accident, could, or in such circumstances would have been used. Nor was it a case when all three persons (the plaintiff, the first defendant, and the second defendant) were devoted to the achievement of one aim. The appellant also conceded that if the plaintiff had no right in tort against the second defendant, Mr Puglia, he could not succeed on any statutory ground. Finally, although the first defendant, Mr Ekklisirhis, and the third defendant, Doperas Pty Ltd, were both respondents to the appeal, no case was mounted against either of them. URJ ITSKOS v EKKLISIRHIS (Powell JA) The result must be that the appeal should be dismissed with costs. Powell JA I agree with Meagher JA. 5 Appeal dismissed with costs. Counsel for the Appellant: M MAXWELL Instructed by: MARSDENS 10 Counsel for the Respondent: G GEAGEOS Solicitor for 1st Respondent: JONATHON BAKER Solicitor for 2nd, 3rd Respondent: SCARFONE AND CO