Winn v Smith [2003] NSWCA 105

New South Wales Court of Appeal

CITATION : Winn v Smith [2003] NSWCA 105 HEARING DATE(S) : 15/04/03 JUDGMENT DATE : 16 May 2003

JUDGMENT OF : Giles JA at 1; Santow JA at 2; Ipp JA at 3 DECISION : Appeal dismissed with costs.

CATCHWORDS : NEGLIGENCE - Vicarious liability - Liability of independent contractor - Failure to prove that the person who caused injury was an employee or independent contractor. ND PARTIES : Brett Winn (Appellant) Ross Smith (Respondent) FILE NUMBER(S) : CA 40798/01 COUNSEL : J Hislop QC/P S Jones (Appellant) R Gray (Respondent) SOLICITORS : Colin Daley Quinn (Appellant) Curwood & Partners (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 672/00 FILE NUMBER(S) : LOWER COURT Downs ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40798/01 DC 672/00

GILES JA SANTOW JA IPP JA

Friday 16 May 2003 BRETT WINN v ROSS SMITH Judgment 1 GILES JA: I agree with Ipp JA. 2 SANTOW JA: I agree with Ipp JA. 3 IPP JA: E & B Winn Constructions Pty Limited ("Winn Constructions") was the main contractor engaged to construct a three bedroom, single storied residence at the intersection of Southerby and Windemere Streets, Terrigal. The appellant was a director of Winn Constructions and the manager of the work at the residence in question. 4 On the morning of 6 February 1997 the appellant was working in the bathroom of the building under construction. A number of other persons were working on the premises. The appellant needed some materials that were outside and, in order to get them, he walked out of the front door area of the building. At this stage he saw his wife stop her car on the street. He waited outside the front door area for her to come to him. 5 While the appellant was waiting for his wife he heard someone call out. He turned to his right and was hit on the right side of his head by an object. 6 The only other witness who gave evidence as to what occurred when the appellant was injured was his wife, Mrs Patricia Winn. Her evidence was recounted by the trial judge, Downs ADCJ, as follows: "She stated that she drove to the job site at approximately 9 am on 6 February. As she was walking up to the unmade driveway towards the [appellant] she saw a man on the roof walking towards the front of the building with an object in his hand. She then saw him stop and throw the object down with an overarm action and it hit the right side of the [appellant's] head. She saw blood coming from his head. He was dazed but could focus. She observed that the man who threw the tile was wearing pale coloured shorts, T- shirt. He was wearing a cap and its shadow obscured his face". 7 Mrs Winn testified that the object that was thrown was "bluey-grey" and it was accepted at the trial that it was a tile. Mrs Winn was not able to identify the person who threw the tile. 8 There can be little doubt that the person who threw the tile was negligent. Downs ADCJ so held, stating: "The evidence before me established that the person who threw the broken tile was negligent. It is apparent that whoever threw the tile failed to exercise reasonable care for the safety of others by failing to look and see if it might strike anyone or by failing to throw it down where it could not strike anyone on the site". 9 The principal issue at the trial concerning the liability of the respondent was the identity of the individual who threw the tile and his relationship, if any, with the respondent. 10 The respondent did not go into evidence and submitted that it could not be inferred from the evidence that the person who threw the tile was the respondent or any person for whom he was, in law, liable. 11 At the trial, the appellant relied principally on two documents, exhibit AD and exhibit AE. 12 Exhibit AD was in the following terms: "sent by : 043811437 HORIZON 12/02/97 17:56 Pg: 3 ….. To whom it may concern At around 10.30 am while cutting in the roof, bill [sic] was doing the valleys at the front of the building and was throwing the off cuts away when the gentleman who was injured walked into path of tiles that bill [sic] had just thrown and was struck on the head at all times we were aware of the brick layers and carpenters as they were aware of us as we had been cutting in and cleaning down the roof since 7 am that morning".