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". The document was signed by the respondent. Underneath his signature appeared the following: "work comp FAI … … Fax 9959 3439 liability claim …" 13 Exhibit AE, as Downs ADCJ noted, appeared to be an insurance company's report of injury form. The respondent's name had been filled in as "the insured" and his "type of business" as "roof tiling". In handwriting, the following appeared: "Mr Winn walked into the path of the broken tile that had been thrown off the roof". The form gave the name of "Bill Innes" as a witness to the incident and the latter's address and telephone number were set out. Importantly, against a section entitled "Number of Employees," a zero had been written. 14 Downs ADCJ commented in regard to exhibits AD and AE: "[E]ven it could be inferred that Bill or Bill Innes threw [the tile], there was not any evidence from which it could be inferred that he was a servant, employee or agent of the [respondent]. Exhibit AE merely stated, so far as the [respondent] was aware, Bill Innes was the only person who saw the tile strike the [appellant] and it does not identify Bill lnnes as being the person who threw it or identify him as being a servant, employee or agent of the [respondent]. Exhibit AD identifies a person called Bill, who may or may not have been Bill Innes, being a person who, like the [respondent] had been cutting and throwing down off-cuts at 7 am that morning. As the [respondent], believes that the only witness was Bill Innes he, the [respondent] could not have thrown down the offending tile. There was not any evidence that Bill threw down the tile which struck the [appellant] and, indeed, that Bill was the Bill Innes, a witness of the injury. It could have been a plumber or one of the bricklayers, carpenters, labourers who were working on the site." 15 Downs ADCJ upheld the respondent's argument and dismissed the appellant's claim. The appellant appeals against his Honour's decision. 16 Mr Hislop QC who together with Mr Jones appeared for the appellant, submitted that his Honour erred in that the person who threw the tile "could have been a plumber or one of the bricklayers, carpenters, labourers who were working on the site". Mr Hislop submitted that: "[t]he only inference that could reasonably be drawn on the evidence, such that it was, was that the person who threw the tile was one of the people engaged in the tiling of the roof of the premises". 17 Mr Hislop argued that the person who threw the tile was an employee or sub-contractor of the respondent. In the absence of other evidence, this submission had to rest on the following propositions: (a) The respondent was responsible for all the tiling work on the roof; (b) The person who threw the tile was working on the roof tiling; (c) Therefore, the inference arose necessarily that the person who threw the tile must have been an employee of the respondent. 18 The evidence as to the contracts governing the roof tiling work was sparse indeed. 19 An expert's report that was in evidence did bear on this issue. The relevant part of that report reads as follows: "I am instructed that the sub-contract was between [Winn Constructions] and Boral Montoro Roofing. Mr Eric Winn ["WS"] explained to me that a quotation for the tiling was received from Boral Montoro and this quotation required a signature to be converted to an order. WS duly signed the document and returned it to be Boral Montoro. I am instructed by [the appellant] that Boral Montoro further sub-contracted with Horizon Roofing and that Horizon Roofing further sub-contracted with [the respondent]. A copy of the sub-contract is not available …" 20 It is not clear from the expert's report, however, whether Boral sub-contracted all the tiling work to Horizon and, if so, whether Horizon sub-contracted all the tiling work to the respondent. The report casts no light on the scope of these sub-contracts and there was no other evidence on this issue. 21 It is therefore not possible to say that the respondent was responsible for all the tiling work on the roof. The evidence does not establish that the respondent was in sole control of the roof at the time. These gaps in the evidence, in my view, are, in the end, fatal to the appellant's case. 22 Mr Hislop pointed to the fact that it was conceded in the pleadings that the respondent was in the business of roof tiling and, at the relevant time, "was fixing roof tiles on a cottage under construction". He then drew attention to the following exchange that occurred in the course of the appellant's examination-in-chief: "Q. Would you please tell the Court, using the same language we asked you to do before in first person, what was the substance of that conversation? A. I said 'Hello, I'm Brett Winn, I'm the site manager on the job here'. He said 'Hello, I'm Ross Smith the tiler'. I said 'All your materials are here and we will co-operate as best we can with you'. He said to me 'Where would I find the power source?' I then indicated or I said to him that the power was in the meter box which [was] over the far left. He said … Q. Slow down please. Then he said something? A. He said that 'We'll be here for approximately three days to finish the roof off'. I said 'The location of any waste material was to be put out the front'. He then said that, he then said to me 'the tiles will be going up this direction'. I then said to him that the people that were working on the job, the bricklayers and the carpentry [sic] and myself, were out the front and went about my business". 23 Mr Hislop submitted that the appellant's evidence that the respondent said "we'll be here for approximately three days to finish the roof off" was proof that the respondent had other persons working for him on the roof. 24 However, while that answer was capable of bearing the meaning Mr Hislop contended for, it said nothing about whether the person who threw the tile was working for the respondent. 25 Mr Hislop further relied on the statement by the respondent in exhibit AD that "at all times we were aware of the bricklayers and carpenters as they were aware of us as we had been cutting in and cleaning down the roof since 7 am that morning." He submitted that the statement established that the respondent and his "team" had been working on the tiling on the roof since 7 am on morning in question. 26 Mr Hislop pointed to the fact that according to Exhibit AD, "Bill" was working on the tiling ("doing the valleys") and Bill was the person who threw the tile off the roof and thereby injured the appellant. He submitted that Bill was part of the respondent's team. 27 I accept that Exhibit AD contains evidence to the effect that the respondent did not alone do tiling work on the roof on the morning when the tile was thrown. It also contains evidence that "Bill" threw the tile. I am also prepared to accept that the references in the exhibit to "we" and "us" are intended to embrace the respondent and Bill. But Exhibit AD does not lead to the inference that Bill was an employee of the respondent or even that he was part of the respondent's team (whatever that may mean). As there was no evidence as to whether the respondent, as a sub-contractor, was solely responsible for the roof tiling work, it is not possible to say whether the reference to "we" and "us" was intended to denote persons doing tiling work on the roof who were in some contractual relationship with the respondent, or only persons who were carrying out tiling work (independently and without any contractual relationship with each other) on the roof at the time. 28 The point is that, as I have noted, it is not possible on the evidence to draw any inference as to whether Boral sub-contracted all the roof tiling work to Horizon and whether Horizon sub-contracted all the roof tiling work to the respondent. That being so, it is not possible to draw any inference as to whether Bill was working for the respondent or was otherwise part of his team, on the one hand, or whether Bill was working for, or sub-contracted to, Boral or Horizon, on the other. 29 A further piece of evidence that supports the proposition that an employee of the respondent threw the tile off the roof is the expert's report to which I have referred, in which the statement is made that "the thrower of the tile was [the respondent's] employee". There are other references in the report to the effect that the person who threw the tile was an employee of the respondent. 30 The following matters are relevant to the evidentiary weight of the expert's report, insofar as it relates to the issue of the employment of the person who threw the tile. Firstly, it is apparent that the expert's statement that the thrower of the tile was the respondent's employee was based on instructions the expert received, presumably from the appellant's solicitors (to whom the report was addressed). Secondly, the report was only tendered for the purposes of establishing negligence, and not the relationship between the respondent and the thrower of the tile. Thirdly, at the time the report was tendered the appellant's case was being conducted on the basis that the thrower of the tile was the respondent himself. There was then no issue as to whether the tile was thrown by one of the respondent's employees. Fourthly, Downs ADCJ observed before admitting the report: "You see because this report is based on certain assumptions or facts that he's been given. They may or may not become part of the evidence. If they are not part of the evidence then I have to ignore them so it's a matter for you". Counsel then appearing for the appellant at the trial explained that he wished to tender the report because it contained photographs that were relevant. Nothing was said about the thrower of the tile being the respondent's employee. 31 In the light of the factors referred to in the preceding paragraph, the weight to be attributed to the expert's report is very slight. 32 Mr Hislop placed considerable emphasis on the fact that the respondent did not testify at the trial, and it was not put to the appellant that the person who threw the tile was an employee (or even a sub-contractor) of the respondent. 33 While the argument based on the respondent's failure to give evidence carries weight, it is counter-balanced by the fact that the question whether Bill was an employee (or sub-contractor) of the respondent could readily have been answered had the appellant sought leave to interrogate the respondent and sought an order against the respondent for discovery. The appellant's legal advisors took no steps of this kind. In addition, although Bill Innes was identified as a witness to the incident, and his address and telephone number were given, the appellant did not call him to testify and no evidence was given explaining the omission to do so. 34 Further, on the ninth day of the trial (the trial lasted 13 days), counsel for the appellant applied for an adjournment to lead the evidence of two witnesses. These were two employees of Winn Constructions who were present on the site at the time of the injury. Apparently, the appellant's solicitors had received instructions on about 20 January 1999 from the appellant that these two witnesses saw or might have seen what had occurred when the tile was thrown. The trial commenced on 9 May 2001. Downs ADCJ refused the adjournment on the grounds that it was sought too late. 35 These matters show that there was ample opportunity for the appellant to obtain better evidence than was led on his behalf dealing with the issue of the relationship between the respondent and the person who threw the tile. In my opinion, they also detract from any inference that might otherwise have been drawn from the failure of the respondent to testify. 36 In my view, no inference arises from the fact that it was not put to the appellant that the person who threw the tile was not an employee (or even a sub-contractor) of the respondent. The appellant did not assert in his testimony that that person was an employee or sub-contractor of the respondent and there was no need to put the contrary to him. 37 There is testimony that conflicts with the evidence on which Mr Hislop relied. Evidence in this category is principally exhibit AE, which indicates that the respondent had no employees (and is evidence that Bill Innes was not an employee of the respondent). This evidence carries particular weight as the exhibit was tendered by the appellant, and not by the respondent. In other words, it was the appellant's own evidence, constituted by exhibit AE, that the respondent had no employees. 38 Of marginal weight is exhibit AD, which appears to be a fax sent by Horizon on 12 February 1997. The recipient of the fax appears to be FAI, an insurance company, and the words "work comp" and "liability claim" on the exhibit suggest that Horizon was sending the fax to its insurer in regard to a potential claim against it arising out of the injury to the appellant. This is evidence (albeit of tenuous value) that Horizon regarded itself as possibly liable for the act of the person who threw the tile. 39 It is to be noted that Downs ADCJ did not deal expressly with the contention of the appellant that the person who threw the tile was a sub-contractor of the respondent and that the respondent was liable to the appellant on the ground of a breach of a non-delegable duty of care. This omission requires some explanation, particularly as Mr Hislop submitted that the appeal should succeed on that ground (that is, in the alternative to the ground based on the submission that the trial judge should have found that the person who threw the tile was an employee of the respondent). 40 Paragraph 3 of the appellant's statement of claim originally read: "On or about 6 February 1997 [the respondent] by his servants, employees or agents commenced to carry out the fixing of the roof tiles to the premises and in the course of fixing the tiles threw roof tiles from the roof of the premises to the ground below". 41 Mr Hislop submitted that the allegation that the respondent, by his "agents", threw roof tiles from the roof, was sufficiently broad to encompass a case based on a non-delegable duty. The argument is difficult, however, as nothing else in the statement of claim is suggestive of a case based on the breach of a non-delegable duty. 42 Importantly, until the ninth day of the trial, the appellant's case was run on the basis that the respondent, himself, threw the tile from the roof onto the ground. On that day the appellant sought to amend paragraphs 3 and 4 of the statement of claim as follows: "3. On or about 6 February 1997 [the respondent] by his servants, employees or agents commenced to carry out the fixing of the roof tiles to the premises and in the course of fixing the tiles [the respondent] or his servants , employees or agents threw roof tiles from the roof of the premises to the ground below. 4. On or about 6 February 1997 [the appellant] was working on the ground floor of the premises in the course of his employment and left the premises by its only entrance whereupon he was struck on the head by a roof [tile] thrown from the roof by the [respondent] or his servants, employees or agents ". The underlined passages reflect the amendments then sought by the appellant. 43 The respondent objected to the proposed amendments on the ground that the appellant had conducted his case on the basis that that he, the respondent, had personally thrown the tile. The respondent asserted that the amendment created a totally different case. Counsel for the appellant replied: "The original case quite clearly set out a cause of action of vicarious liability of the employer. Indeed the amendments only seek to make quite certain that it was either [the respondent] or his agents or servants who threw the tile". Counsel went on to say: "Assuming for one moment that the amendments were not made and it turned out that in fact Bill Innes threw the tile – just assume for one moment that was the case – [the respondent] would still be liable for the vicarious acts of his employees …" 44 These passages make it clear that the appellant understood the original pleaded case and the pleaded case contained in the amendment to mean that it was either the respondent personally or persons for whom he was vicariously liable who threw the tile. Later, counsel confirmed this by saying: "[T]he case against the [respondent] has always been one of vicarious liability". Hence, counsel submitted, the amendment would not result in any prejudice to the appellant. 45 In the course of argument, Downs ADCJ pointed out that the respondent "came to meet a case where the negligence alleged was by the [respondent] himself. So there is gross prejudice". Counsel for the appellant responded: "[T]he submission would always have been in this case that your Honour would make an award of damages against [the respondent] because he is vicariously liable for the acts of his agents, servants or employees" 46 The judge replied that the respondent should not have to meet a case that was not alleged against him. Counsel responded once more: "It's alleged against him on the basis of vicarious liability. He must come to Court". 47 In the end Downs ADCJ refused the application to file an amended statement of claim. Counsel for the appellant then sought an adjournment of proceedings to allow the appellant to proceed to appeal against his Honour's ruling. This led to a short adjournment and, when the parties returned, counsel for the respondent consented to the amendment and it was granted. 48 The exchanges between his Honour and counsel for the appellant make it plain that the appellant was presenting a case based on vicarious liability and not on a non-delegable duty. The amendment was consented to on that basis. On this ground alone I would not accede to the arguments now advanced on the appellant's behalf that the respondent is liable by reason of a breach of a non-delegable duty on his part. 49 In any event, weighing all the evidence, I am not persuaded that Downs ADCJ erred in holding that the appellant did not prove on a balance of probabilities that the person who threw the tile was an employee or sub-contractor of the respondent. In my view, the matters relied on by the appellant do not overcome the difficulties to which I have referred, particularly those arising from the lack of evidence establishing that the respondent was the sub-contractor responsible for all the roof tiling work. 50 In the circumstances I would dismiss the appeal with costs. ********** Last Modified: 05/19/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.