NERCESSIAN v SECURITY COMPUTER SERVICES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and POWELL JJA 1 May 1998, 5 June 1998 [1998] NSWCA 157 NEGLIGENCE — occupiers liability — safe system of work — trial Judge entitled to accept expert evidence showing no negligence The appellant was injured while working as an air conditioning mechanic at the premises of the respondent. While climbing out of a hatch to gain access to the air conditioning equipment the appellant fell and was injured. The appellant sued the respondent in negligence alleging that the method by which he was required to gain access to the roof constituted an unusual danger which the respondent knew or ought to have known and that the respondent failed to take any adequate precautions to prevent injury. His Honour was not satisfied that the appellant had made out a case in negligence. The appellant submitted that the trial Judge erred by (i) not finding negligence, (ii) considering the appellant's evidence of complaints was not of great weight, and (iii) failing to apply expert evidence which established the need for an occupier to provide a ladder conforming with AS 1657. Held: 1. It was open to the trial Judge to accept expert evidence which concluded that the respondent had taken reasonable care to protect the appellant. 2. His Honour's conclusion that the evidence of complaint in relation to risk of injury was not of any great weight was correct. 3. This Court can not and should not interfere with his Honour's decision. Priestley JA I agree with Sheller JA. Sheller JA INTRODUCTION On | October 1985, in the course of his employment by Atlas Air Pty Ltd (Atlas), the appellant, Yervant Nercessian, was injured when working as an air conditioner mechanic at the premises of the respondent, Security Computer Services Pty Ltd. To gain access to air conditioning equipment on the roof of the respondent's three storey building the appellant was required to climb a ladder and open a submarine type hatch. The appellant alleged that he climbed the ladder, opened the lock, put his tool box on to the roof and when trying to climb into the opening fell from the ladder and was injured. The appellant sued the respondent to recover damages alleging negligence, the substance of which was that the method by which he was required to climb the ladder onto the roof constituted an unusual danger which the respondent knew or ought to have known and that the respondent failed to take any or any adequate precautions to prevent the appellant being injured by reason of this unusual danger. The respondent denied liability and joined Atlas as a third party alleging it had failed to ensure that the appellant was provided with a safe system of work. The action was heard between 10 and 21 February 1997 by Sinclair DCJ who in a judgment delivered on 28 February 1997 found a verdict for the respondent and for the third party. The appellant appeals from the verdict against him. 2 UNREPORTED JUDGMENTS BACKGROUND It was common ground at the trial that the appellant was an experienced air conditioning and refrigeration mechanic, who had been employed by Atlas since 1978 at the headquarters at Rozelle. His work included the servicing and repair, for most of the time away from Atlas' headquarters, of domestic and industrial air conditioners. By October 1985 the appellant had attended the respondent's premises and worked on the air conditioning equipment about thirty or forty times. On the roof of the respondent's premises were the cooling tower and condensers, part of the air conditioning equipment. The appellant needed to go up on the roof quite often. The ladder was the only access. It was secured to a wall of a kitchenette on the top floor of the building. At the top of the ladder the appellant was required to climb through a manhole in the gyprock ceiling and open the metal hatch in the iron flat roof situated about one metre above the manhole. Around the four sides of the manhole in the ceiling was a timber frame. The metal hatch on the roof was secured by two bolts, one of which was locked with a padlock. Photographs tendered at the trial showed the ladder secured to one side of the kitchenette, the manhole and the hatch in the roof. THE APPELLANT'S EVIDENCE Judge Sinclair accepted the appellant's evidence as to his recollection of what occurred. His evidence was that on the afternoon of | October 1985 he was working by himself. He had been working on the particular job for four or five days and had been up on the roof every day, four or five times a day. He obtained the key to the padlock from Neil McDonald, the respondent's manager. He climbed the ladder on the wall of the kitchenette and put his tool box on the timber surrounds of the manhole in the ceiling on his left hand side. He placed his left foot on the hard edge of the manhole, his right foot on the timber framing of the manhole in the ceiling and used the key to unlock the padlock. Having unlocked the padlock, he replaced it so as not lose it and opened the hatch door by flicking it back to his right hand side. He said it was possible to lay the hatch flat on the roof. The white ventilation shaft shown in the photographs was not there at that time. He said: "I was nearly pushing myself up and I fell down, that's what I remember." The appellant described the motion of standing up with his feet on the surrounds of the manhole and said "you put your hands on the roof and you push yourself up to the roof because there is a one metre gap between the ceiling and the roof." He went on to say "When I pushed myself... something hit me at the head or, I don't know what it was but I woke up unconscious in the Royal North Shore hospital." Initially he could not see properly. He had very bad pain in his back in two places, the middle line of his back in the lumbar region about the level of or slightly above his belt and another area further up his back, more or less in the centre line just below his shoulder blades. Judge Sinclair said that to some extent the appellant's evidence was based on his usual practice. Normally, he said, one foot would be on the framing of the ceiling manhole and the other would be on the top of the ladder. The appellant denied he propped the roof hatch against any other object on the roof such as the white ventilation shaft. He said he always pushed it over to the right, flat on to the floor of the roof. No one at Atlas had shown him how to climb up the ladder onto the roof or suggested he use a rope to pull his tool box up onto the roof. He had complained to Mr McDonald, whom he knew as "Neil", a few times and also URJ NERCESSIAN v SECURITY COMPUTER SERVICES PTY LTD (Sheller JA) 3 to his supervisor, Bob Kane of Atlas. When he complained to Mr McDonald they joked that you had to be a "Tarzan" to climb "up the places". In evidence he said: "T said to him, I said, 'this access is ridiculous and already we had an accident.' One of our guy he pulled his muscle back when he was pulling the pump - puffing it down the pump actually, and then we brought it up." The appellant asked when they were going to do something about it. Mr McDonald replied that he should complain to his boss, which he said he did many times. His evidence of complaint to Mr McDonald and Mr Kane was not contradicted. No witness, apart from the appellant, gave evidence as to his fall. An ambulance report stated that he was fully conscious whilst being conveyed to Royal North Shore hospital. EXPERT EVIDENCE The appellant relied on the expert evidence of a consulting engineer, Mr Nicholson, who gave two reports, the first on 22 August 1996 and the second, which replaced it, on 17 January 1997 after Mr Nicholson had access to the premises, which, he said, the respondent had previously denied him. His Honour observed that in some respects the version of the facts, particularly in the first of these reports, did not accord with the evidence. He added: "Furthermore he did not impress me as a good expert witness." The respondent tendered reports from two experts, Dr Neil Adams dated 6 February 1987 and Dr John Olsen, a consultant in Occupational Health Safety and Rehabilitation, dated 3 September 1992. The trial Judge said that in Dr Adams' opinion "although the access door does not meet all the recommendations of the relevant standards, it does provide quite adequately for safe movement, if used by an experienced worker provided it is used in a reasonable manner." From Dr Olsen's report the trial Judge took the relevant dimensions and description of the ladder, ceiling and roof openings and continued: "[Dr Olsen] said on walking up the ladder as far as the second top step he was able to balance his back against the surrounds of the hatch manhole and unlock the lock of the bolt and pop up the manhole cover which then gave free access to the roof. He said, on making his way from within the building to the roof, [he] noted that during emerging from the ladder to the ceiling space the surrounds of the hatch gave good support for sitting and subsequently for standing. To gain access to the roof itself was not actually made by the ladder but from within the ceiling space from the surrounds to the roof. Referring to the Australian Standards (which has no legislative effect) the ladder suffers from 2 minor deficiencies namely that is was mounted too close to the wall at 100mm, the minimum standard being 150mm, width of the ladder was a little narrow when compared with the standard specification of 350mm - 550mm. Otherwise he said the ladder meets the standards. The standard does not make reference to handrails at the top and expressly includes the terms 'if practicable'. "Access through horizontal openings should generally be accompanied above the opening where practical. In the present case it is obviously not possible since the opening was through the ceiling space as described and then onto the roof. Continuation of handrails above, in my opinion, would not be practical given the spacing between the ceiling and the roof.' He said that standing at the top of the ladder he was able to sit on the surrounds while undoing a padlock and then fastening the two bolts. Having done so the manhole cover popped out and could be slid onto the steel roof. From that point 4 UNREPORTED JUDGMENTS on it would be necessary to step from the ladder to the ceiling and then from the ceiling to the roof. In his opinion such access to the roof was not hazardous. In his opinion the access provided to the place of work on the roof was reasonable enough. Certainly it was not straightforward and it did require a certain amount of manoeuvring and climbing although that in itself is not unusual for service mechanics including air conditioning mechanics." Photograph 2 included in Dr Adams' report and captioned "A person emerging from the roof hatch from a position standing on the platform surrounding the ceiling hatch", illustrated what Dr Olsen meant by stepping from the ceiling to the roof. TRIAL JUDGE'S FINDINGS The trial Judge made the following findings of fact, inter alia: "2. The plaintiff was an experienced tradesman who had been engaged in this type of work for many years and had worked on this particular site frequently over the past two years. Hence he was no stranger to the task of gaining access to this roof. 4. I am satisfied that having climbed the ladder he placed the toolbox on the surrounds of the manhole and then unlocked the hatch to the roof and pushed it aside in a manner in which, in his prior experience, he would expect it to lie clear of the access to the roof. It is more likely than not that as he was pushing the upper part of his body upright through the hatch in the roof, with his feet on the wooden surrounds of the manhole into the ceiling, that he fell. 5. The cause of his fall is difficult to establish at this time on the probabilities. His assertion that he was struck on the head by something and remembers no more until he recovered consciousness in hospital is difficult to accept in that according to the ambulance report he was fully conscious on the way to hospital and there is nothing in the hospital report to suggest he was unconscious on arrival there. He may well have been given some medication which affected his level of consciousness by the time the family arrived but there is no supporting evidence that he was ever hit on the head." His Honour held that the respondent as the occupier was under a duty "to take reasonable care to protect the plaintiff, being an experienced tradesman working on the premises with which he was familiar, from foreseeable risk of injury which might reasonably have been recognised and guarded against by the occupier." He did not regard the uncontradicted evidence of complaint in relation to the particular risk of injury as of any great weight and was not satisfied on the balance of probabilities in the circumstances that the appellant had made out a case in negligence against the respondent. APPEAL AND CROSS-APPEAL When the hearing of this appeal began the appellant sought and was granted leave to file an amended and completely revised notice of appeal which can be usefully summarised as follows: 1. That the trial Judge should have found that the respondent failed in its duty of care to provide the appellant with a safe means of access from ground level to the ceiling/roof level and in particular in failing to comply with the Australian Standard AS 1657, para5S.4 and paraS.6, and in not finding that the respondent's breach of duty was causally related to the appellant's fall; 2. That the trial Judge erred in finding that the evidence of complaint "was not of any great weight"; URJ NERCESSIAN v SECURITY COMPUTER SERVICES PTY LTD (Sheller JA) 5 3. That the trial Judge erred in failing to consider and apply expert evidence which established the need for an occupier such as the respondent to supply a fixed ladder which complied with AS 1657. The references in the amended notice of appeal were to the 1963 edition of the Standard. Mr Nicholas used the 1974 edition. ParaS.3 and para5.5 replaced para5.4 and paraS.6 referred to in the amended notice of appeal. The respondent filed a notice of cross-appeal seeking judgment against the third party for indemnity or contribution contingent upon the appellant's appeal against the respondent succeeding. APPELLANT'S SUBMISSIONS Mr Hall QC, who appeared for the appellant, relied upon paraS.4 and para5.6 (para5.3 and paraS.5 of the 1974 edition) to submit that the respondent had failed to take reasonable steps to ensure that access to the roof to perform the work the appellant was required to perform was safe and further submitted that the complaints should have made the respondent aware of the problem. In his second report of 17 January 1997, Mr Nicholson referred to the Australian Standard AS 1657 - 1974 which he said was chosen "'to reflect the laws that should have governed the design and construction of the subject vertical ladder." Relevantly, s5 of the Standard, "Fixed Ladders", provided in part as follows: "5.3 ACCESS THROUGH HORIZONTAL OPENINGS. Where access is provided through a horizontal opening, the stiles or handrails shall, where possible, be extended not less than 900mm above the opening. Hand grips above the level of the opening shall be provided in other cases. Where access is provided through an opening which is normally kept closed, the stiles or handrails may be terminated below the opening and the equivalent shall, where practicable, be provided above the opening. Where it is necessary for a person to open a trap door whilst standing on a ladder, provision shall be made, either by a platform or by suitable guards, for adequate support of that person. 5.5 GUARD RAILING. Exposed edges of access openings and landings other than for access from a ladder shall be provided with guard railing complying with 13.4." Although para5.6 (paraS.5 in the 1974 edition) was mentioned in the amended notice of appeal, Mr Nicholson's comments, so far as relevant, were confined, for the most part, to paraS.3 (paraS.4 in the 1963 edition). Mr Nicholson said: "Where access is provided through a horizontal opening, the stiles or handrails shall where possible, be extended not less than 900 mm above the opening. Hand grips above the level of the opening shall be provided in other cases. Comment: There was no extension of the stiles, run type ladder or handrails into the ceiling cavity and there was no extension of the stiles and rungs above the hatch cover to ensure the Plaintiff a safe hand grip and step up onto the roof from the top of the ladder provided which ends below the ceiling. Where access is provided through an opening which is normally kept closed, the stiles or handrails may be terminated below the opening and the equivalent shall, where practicable, be provided above the opening. Where it is necessary for a person to open a trap door whilst standing on a ladder, provision shall be made, either by a platform or by suitable guards, for the adequate support of that person. 6 UNREPORTED JUDGMENTS Comment: No such secure platform was provided to secure his footing. The opening through the roof would needs have been [sic] offset from the vertical ladder alignment and further the distance between the ledge and the roof should have been greater to enable the Plaintiff to stand on the ledge to open the hatch cover to provide access to the roof up a second short set of steps (preferably not vertical)." The trial Judge discounted Mr Nicholson's expert evidence because the account of the accident on which it was based did not, in some respects, accord with the evidence. Mr Nicholson gave oral evidence but did not impress the trial Judge as a good expert. RESPONDENT'S SUBMISSIONS Mr Higgs SC, who appeared for the respondent, emphasised that, according to the trial Judge's findings, when the accident took place or immediately before, the appellant had his feet on the wooden surrounds of the manhole in the ceiling. He had unlocked the hatch to the roof and pushed it aside so that it lay clear of the access to the roof. If he was standing in this position, he was supported from a height of about one metre by the surrounds of the roof hatch itself, which photograph 2 in Dr Adams' report demonstrated. In that position, it was said, the appellant was every bit as secure as if he had been standing on a ladder. It was when he proceeded to push the upper part of his body upright through the hatch in the roof that apparently he fell. CONCLUSION On the face of it, the manoeuvre the appellant described would appear to be made more difficult and more dangerous by the absence of a ladder continuing up to the roof line and of handrails on the roof. However, the trial Judge accepted the evidence of Dr Adams that the access door provided quite adequately for safe movement if used by an experienced worker, provided it was used in a reasonable manner, and the evidence of Dr Olsen that the access provided to the place of work on the roof was reasonable enough and not unusual for service mechanics including air conditioning mechanics. Neither of these witnesses was cross-examined. Based on this evidence his Honour was not satisfied on the balance of probabilities that, in the circumstances, the appellant had made out a case in negligence against the respondent. I detect no error in the trial Judge's process of reasoning. It was open to him to accept the expert evidence of Dr Adams and Dr Olsen which supported the conclusion that the respondent had taken reasonable care to protect the appellant, an experienced tradesman working on the premises, with which he was familiar, from any foreseeable risk of injury which might reasonably have been recognised and guarded against by the respondent. In short, to adopt the language of the claim, the method by which the appellant was required to climb onto the roof did not constitute an unusual danger, met the recommendations of the relevant standards and provided quite adequately for safe movement by an experienced worker using it in a reasonable manner. This being so, I agree with the trial Judge that the evidence of complaint in relation to the risk of injury was not of any great weight. I do not think this Court can or should interfere with his Honour's decision. ORDERS Appeal and the cross-appeal dismissed with costs. Priestley JA I agree with Sheller JA. URJ NERCESSIAN v SECURITY COMPUTER SERVICES PTY LTD (Priestley JA) Appeal and the cross-appeal dismissed with cost. Counsel for the appellant: P M Hall QC/R F Wilkins Solicitors for the appellant: Mark Mulock & Co Counsel for the respondent: D Higgs SC/M J Fordham Solicitors for the respondent: Tress Cocks & Maddocks 10 Counsel for the third party: M Boulton Solicitors for the third party: McMahon Drake Balding