New South Wales Court of Appeal CITATION : SCALISE v BEZZINA & ORS [2003] NSWCA 362 HEARING DATE(S) : 5 August 2003 JUDGMENT DATE : 12 December 2003 JUDGMENT OF : Mason P at 1; Santow JA at 106; Brownie AJA at 107 DECISION : Appeal upheld. See para 105 for further orders. CATCHWORDS : Negligence - personal injuries - alternative statutory counts under Construction Safety Regulations - plaintiff fell from upper floor of building site - plaintiff's case that there was no fence rejected - plaintiff's case that any fence was defective not considered - rule in Browne v Dunn - sufficient if fair notice of alternative case raised by plaintiff in pleadings, opening and evidence in chief - not necessary for plaintiff to cross-examine all of defendants' witnesses on the point - new trial ordered on all issues (ND) LEGISLATION CITED : Occupational Health and Safety Act 1983 Construction Safety Regulations regs 73 and 75 Archer v Richard Crookes Constructions Pty Ltd, (1997) 15 NSWCCR 297 Browne v Dunn (1893) 6 R 67 (HL) Flower v Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 Fox v Percy (2003) 197 ALR 201 HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 CASES CITED : James v Hudson (1955) AR 1047 Jones v Dunkel (1959) 101 CLR 298 Khafam Developments Pty Ltd v Zeaiter, CA unreported 3 October 1996 Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 Stern & Anor v National Australia Bank Ltd (2000) 171 ALR 192 Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan (2001) 53 NSWLR 343 Voulis v Kozary (1975) 180 CLR 177 PARTIES : Pietro SCALISE v Ronald Joseph BEZZINA & Ors FILE NUMBER(S) : CA 40579/2002 Appellant: D T Kennedy SC/ F V Fletcher COUNSEL : 1st Respondent: ACA Bridge SC/ SE Torrington 2nd Respondent: PW Neil SC/ DJ Hooke Appellant: Taylor & Scott SOLICITORS : 1st Respondent: Deacons 2nd Respondent: Nevill & Edwards LOWER COURT District Court JURISDICTION : LOWER COURT DC 8499/2000 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40579/2002 DC 8499/2000 MASON P SANTOW JA BROWNIE AJA Friday 12 December 2003 Pietro SCALISE v Ronald Joseph BEZZINA & Ors JUDGMENT 1 MASON P: The appellant was injured when he fell approximately six metres to the ground from the second floor of a home unit building site. He was employed as a concrete finisher by the second respondent, a concreting firm known as General Beton Co Pty Ltd. The first respondent was a firm (Bezzina Butterfield) that was the head contractor. The accident occurred on 10 November 1997. 2 The appellant sued the respondents in the District Court pleading a case based on various counts of negligence and breaches of regulation 73 of the Construction Safety Regulations. The claim failed and there were verdicts for the defendants with costs. 3 The respondents' case at trial was that adequate protection had been provided by a temporary fence around the perimeter of the second floor (except perhaps for the gap giving access to the landing and stairway). 4 A double brick external façade had been laid to approximately floor level of an otherwise totally exposed second floor. There was a landing protruding beyond the line of one of the walls giving access to a concrete stairway that zig zagged to the ground below. 5 On the day of the accident concrete was poured to form the second floor slab. The formwork included a vertical edge board which rose up from the cavity between the brick work, flush against the outer face of the inner row of bricks (Black 172). 6 Rain had delayed the concrete pour and it was late in the day. After most of the concreters had been sent home, the appellant set about his work under instructions from the employer's site supervisor, Pietro Marra. A machine called a "helicopter" had been used to smooth the concrete. After it had been lowered to the ground Mr Marra instructed the appellant to fill in the footprints made by workers in the wet concrete as they had manoeuvred the machine off the slab. 7 The appellant was working alone at the time of the accident and it was well after sunset. It is not disputed that he fell, but no one witnessed what happened. 8 It was also undisputed that the respondents owed common law duties to provide the appellant with a reasonably safe working environment. The second respondent owed non-delegable duties of an employer. It was also common ground that regulation 73 required the respondents to provide some type of protective barrier in the form of a scaffold or fence to prevent a fall from the otherwise exposed edge of the second floor platform on which the appellant was working. Its terms are set out below. 9 The appellant said that he started filling in the footprints on the slab at the position of the hoist that had been used to lower the "helicopter". He walked backwards towards the stairs, squatting and filling or smoothing marks as he went. He worked so far backwards that he was standing on the top of the brickwork (Black 29). He said that the brickwork was about 110 mm thick. He stood up and lost balance and fell from the top of the wall to the concreted ground six metres below (Black 29, 159-60). As he fell, his feet hit a planter box which abutted the stairs and then he fell onto his backside and then flat on his back on the concrete. Fortunately he was wearing a construction hat. Nevertheless, his back injuries were substantial. 10 An ambulance was called. The ambulance officers' notes record the following history (Blue 412): Patient had just finished working on a building site, he had been doing some brick work, when he slipped on the wet surface and overbalanced, falling through the wooden barrier, he fell approx 5 mtrs onto concrete, o/A @ scene, patient supine on ground, o/e nil loss of consciousness, nil motor/sensory deficit, patient c/o sore buttocks, slight neck tenderness. The appellant was questioned about this and he denied having said that he "overbalanced, falling through a wooden barrier" . He agreed that there were pieces of wood around him where he lay, but denied that they had come down as he fell. He suggested that the ambulance officers must have misconstrued the events or what they saw (Black 80). 11 In his evidence the appellant was adamant that he fell because there was no fencing or scaffolding of any form erected around the edge of the second floor of the building (Black 35, 78, 92, 160). He denied in cross examination that there was any fence or handrail at the place where he fell (Black 78, 84, 85, 92, 158). He was aiming to work backwards towards the stairway, but it was his evidence that he fell off the edge some distance away from the landing which gave access to the stairway (see Black 159 and photograph at Blue 280). Accordingly, nothing turns on whether or not the temporary fence traversed the stairway. 12 The next witness for the appellant at trial was Mr Howard, an inspector with the WorkCover Authority. He went to the site at about 10.00am on the day following the accident. He made enquiries and took some photographs. He did not go up to the second floor. He observed no evidence of scaffolding on the site nor any fencing to protect the second floor (Black 171, 173). He gave evidence about the types of scaffolding and fencing that were either required by the Regulations or that he had seen on other building sites. To this evidence I shall return. 13 Mr Howard observed what he described as "catch screens" and some of them are depicted in his photographs (Blue 280). They are a wire mesh barrier provided for bricklayers designed to prevent objects falling below. It was never suggested by him or any other witness that these screens functioned as protective barriers or fences to protect workers (cf Black 33, 175, 181-2, 183, 237). The respondents got nowhere in their attempt to cross-examine Mr Howard into conceding that catch screens capable of protecting workers were in place (Black 181-187). There was no catch screen or scaffolding on this building site that could have protected the appellant from falling where he said he did. 14 Mr Howard said that a double brick wall is 11 ins from inner to outer edges, a standard house brick being four and a half inches. The cavity is therefore approximately two inches across. 15 Mr Howard observed no handrails around the second floor deck. Nor did he see any evidence of what might have been handrails "in the area of the site that I inspected on the day" (Black 173. See also 179-80). He was however told that morning that formworkers had arrived at site earlier that day and removed the handrails (Black 179). There was also evidence to this effect from witnesses called by the first respondent (discussed below), which the trial judge accepted. 16 Mr Howard also gave evidence of certain admissions made on behalf of the second respondent which will be discussed below. 17 The appellant's next witness at trial was Mr Alvaro Lopes, a fellow employee of the second respondent. His evidence was that there was no scaffolding on the site and no handrail. Mr Lopes was not fluent in English, but the trial judge accepted that his evidence was to this effect (Red 40, 41). Judge Ainsley-Wallace said of Mr Lopes' evidence generally that: … his evidence and his demeanour as I assessed it does not persuade me to accept him in preference to the other witnesses as to whether there was a fence around the slab where the plaintiff was working at the time that he fell. 18 The next witness for the appellant was Mr Salvatore Marra, another co-worker and the son of Pietro Marra. He had instructed the appellant to fill in the footprints in the wet concrete. 19 Salvatore Marra was working with his father at the bottom of the stairs when the appellant fell. He did not witness the accident. After loading the helicopter on the truck he called out for the appellant and, receiving no response, went looking for him. He found him lying on the concrete slab on the ground, conscious but hurt. He asked the appellant what happened and was told "I've fallen". He said "From where?" and was told "from the timbers" (Black 209). Mr Marra did not suggest that this answer referred to any fencing. 20 Mr Marra said that there was no scaffolding or fencing. However, his answer with regard to fencing was qualified having regard to his memory of an event which (by the time of trial) had happened four and a half years before (see Black 210, 211). 21 The appellant's domestic partner gave evidence of a conversation with the appellant when she met him at the hospital. According to her, "he told me that it was – he was working on a building that was three storeys and he had a fall and that there were no handrails there, there was no scaffolding there and he slipped" (Black 218). He asked her to contact WorkCover to advise them of the unsafe building site. 22 At trial, the respondents made common cause and set about proving that there was a protective fence in place at the time of the appellant's fall. The witnesses were called by counsel for the first respondent. 23 Mr Teasel was a builder's labourer employed by the first respondent. He had been working at the site for some time prior to the accident. He said that he erected wooden handrails around the top deck about three or four days before the accident. He gave a detailed description of the work. Timbers (4" x 2") were wedged into the cavity, about a metre apart, to hold the edgeboard hard up against the inner brick skin. An edgeboard of 400-500 mm in height was placed flush on the floor level and nailed to the 4 x 2 timbers. The timber uprights were nailed to the sideboards of the formwork which were attached to the outer edge of the inner row of bricks. They were nailed to the sideboards. There was a top handrail nailed to the uprights and it was about a metre high (see Black 236-52 and Mr Teasel's sketches at Blue 303-5). Mr Teasel said that the uprights were 2.4 metres apart "because that's a regulation, you have to do it" (Black 237E, 238-9). Mr Teasel was told by Mr Butterfield (on behalf of his employer) that the handrails had to be no more than 2.4m apart and at least a metre high (Black 239). 24 Mr Teasel said that the handrails were on site prior to the fall and were last seen by him at about 5.30pm in the afternoon of the day of the accident. They were in "perfect condition" (Black 237). The handrail was fitted all the way around the perimeter of the building (Black 250Q). 25 Mr Teasel said that the edgeboards and handrails were taken off by the formworkers the next morning. This was normal practice because the formwork to which they were attached had to be removed before the concrete completely hardened (Black 253). Mr Teasel did not say that he saw the handrails being taken off (Black 237-8), but counsel for the plaintiff at trial cross-examined him about the work done by the formworkers. Mr Teasel was not required to confine himself to work done in his observation. He saw the finished product and he knew the normal practices of formworkers. He described in detail what the 8-10 formworkers did by way of removing the handrails (Black 253-4). They started at about 7.00am, which was when Mr Teasel arrived at site, and were engaged in the removal for about an hour and a half to two hours. The timbers were left on the top deck (Black 254. See also Mr Butterfield at Black 289. Inspector Howard did not go up to that deck: see Black 179). 26 At the end of Mr Teasel's cross-examination, counsel for the appellant at trial put a single question to Mr Teasel which formally and somewhat perfunctorily suggested that there were no handrails at all. To this Mr Teasel said "Well, you'd be wrong" (Black 255). 27 Trial counsel for the first respondent made an application immediately in the absence of the witness, but before he was excused. It related to the need to confront Mr Teasel about a particular scenario relating to the presence of timber on the "podium" level (Black 255-7). The debate has no present relevance beyond indicating that there was early attempted positioning a propos the rule in Browne v Dunn (1893) 6 R 67 (HL) in relation to the issue of "the presence of wood on the podium level", in particular the possible issue that the fencing wood was stacked up somewhere else. This particular issue does not remain a live one. 28 No questions were put to Mr Teasel challenging the adequacy of the fence which he said (but the appellant denied) was in place at the time of the accident. 29 On the next hearing day the plaintiff's case was formally closed. 30 The next witness was Mr Butterfield, one of the partners of the first respondent. Mr Butterfield said that handrails had been erected around the top level of the building about a week before the accident. The work had been done by himself and Mr Teasel. There was a handrail about a metre above the top of the slab fixed to four by two uprights. The handrail was present on the day of the concrete pour and was taken down by the formworkers the following day as they stripped the edge boards while the concrete was "green" (Black 262-4, 281, 289-90). 31 Mr Butterfield was cross-examined at length as to the manner in which the handrail was erected. He described it as attached to uprights wedged into the cavity between the two rows of bricks and nailed to the edge board placed by the formworkers to contain the concrete poured to form the slab (see esp Black 281-3 and the sketch at Blue 312). Mr Butterfield said that the uprights were nailed to the edgeboard and the top rail was nailed to the uprights. He adhered to his evidence about the presence of handrails and said that there were handrails on the verandahs (Black 272). 32 Some of this cross examination confirmed the plaintiff's continuing reliance upon reg 73 (see below). 33 Mr Butterfield was also challenged as to a signed statement he gave to Inspector Howard on 12 December 1997 when he said: We had temporary timber handrails on the stairs and we had Catch scaffold on the floor below. All the verandahs had temporary timber handrails. There was some temporary timber handrails around part of the top level of the deck but not all of it. He was adamant that all of the top deck had handrails around it and explained his answer to Mr Howard as "probably nerves" (Black 281). 34 Evidence was given by two additional witnesses about the presence of a fence with handrails at the relevant time. 35 Mr Donaldson was a plumber who had worked on the top level before the concrete pour and was present on site on the morning of the day of the fall. He said that there were handrails right around the perimeter of the wall. "They were timber, approximately about a metre high bolted into the – or jammed into most of the – into the cavity" (Black 296). Mr Donaldson agreed in cross-examination that he had not done a particular inspection of all the handrails, and that he gone there to inspect the plumbing work done by his men the day before. He nevertheless adhered to his evidence that there were handrails, although he accepted that there was no handrail going across the point of access to the stairwell (Black 297). 36 Mr Katsikas was an electrical contractor who was aware of the accident and who had been working on the site on the day before the concrete was poured. He had worked around the edges of the top deck putting a conduit in the deck between the mesh that had been laid to receive the concrete. The conduit pipes he was installing went across the building and dropped down the cavities to link up with the next floor down. Mr Katsikas said that he was working about a foot away from the edge and that he observed fencing with handrails. He said that "basically there was – what size would it be, four by two timbers wedged in between the cavity and the formwork going up around, I don't know, waist height 1200 I think, basically all the way around the perimeter. Because I could – because I'm actually turning the pipes down the cavity right there in front of me" (Black 299). When Mr Katsikas left the site the handrails were still there. 37 The short cross-examination of Mr Katsikas went no further than gently challenging him about the certainty of his recollection that the fencing was unbroken. Mr Katsikas said that he did not recall any gaps in the fencing (Black 300-301). 38 The plaintiff was recalled for further cross-examination. Counsel for the first respondent put to him the substance of the evidence previously given by Mr Salvatore Marra (Black 209) to the effect that there was a conversation between the two men when Mr Marra came to his aid after he had fallen. The following questions and answers ensued (Black 304). Q. And you replied by saying "I have fallen"? A. Yes sir. Q. And you remember Mr Mara then asked you, "Where from" or words to that effect? A. Yes sir. Q. And your reply to him was, "From the timbers"? A. I recall saying something like, "I've fallen from the top of the timbers" or to that effect yes. 39 The plaintiff was re-examined in the following terms: FLETCHER: Q. Mr Scalise what did you mean by the response, did you recall saying something to the effect of, "I fell from the top of the timber"? A. I was on the ground sir on my back and I was unable to move my limbs. I wasn't able to point out to Salvatore the exact spot from where I had fallen from and by that I had meant that if Salvatore was to look at the top of the timber which was resting against the wall, and for him to look up above that he would see the position at the top of the wall from where I had fallen from, from the slab in fact. Q. Could I have exhibit H please. I just want to show you photograph 1 from exhibit H. OBJECTION (TORRINGTON). LEGAL ARGUMENT. Q. What can you say about that photograph in respect from the previous answer you've given? A. Okay sir. There's a piece of timber which is resting against the wall and the top of that timber by looking directly above that one would see there the position from the top of the slab, from the top of the wall. Q. When you were laying down on the ground in what direction were you facing? A. I was – the piece of timber was on my right and I was lying back, on my back. The piece of timber was in actual fact like that, resting on that side of me. 40 There were two items of evidence in the nature of admissions upon which the appellant places reliance in this Court in his case against the second respondent. These were statements made to an Inspector Howard by directors of the second respondent and a plea of guilty entered by the second respondent when it was prosecuted under the Occupational Health and Safety Act 1983. The first item was led at trial by the plaintiff. The second emerged in the course of cross-examination of Mr Howard. 41 Simon and Albert Pizzinato were directors of the second respondent, the appellant's employer. Each man was interviewed by Inspector Howard on 4 December 1997. The records of interview were put into evidence against the employer (Black 176, Blue 286, 295). Each man agreed that he had visited the site on the day of the accident and that he had not observed any scaffolding or handrails or other system provided around the perimeter of the second floor deck. Simon Pizzinato agreed that he, together with Albert Pizzinato, was responsible for ensuring the health and safety of company employees (Blue 290K). The following answers were recorded in the record of interview. Q29 Did you visit the site at any time on that day while your employees were working? A Yes. Q30 Did you observe any scaffolding or handrails or other system provided around the perimeter of the second floor deck where employees were working? A No. Q31 Why did you allow employees to continue working without an adequate system of falls prevention being provided for your employees' safety? A The job was almost complete and I was there for 3/4s of an hour till the job finished. Basically the job couldn't be stopped. The concrete was on the road and the pump couldn't be stopped. Also stopping the pour for a length of time may have had structural effects. … Q34 Pietro Scalise apparently fell more than 1.8m from a building under construction on which there was no scaffolding or handrails or other means provided to prevent him or any other person falling more than 1.8metres. Do you have anything to say about this? A The builder should have provided something and the builder should have known his regulations. Q35 There is an apparent breach of Section 15 of the Occupational Health and Safety Act 1983 in that General Beton Company Pty Ltd failed to ensure the health, safety and welfare of its employees while working on this site and in particular Pietro Scalise. Do you have anything to say regarding this apparent breach? A No, nothing to say. Q36 There is an apparent breach of Section 73(3) of the Construction Safety Regulations 1950 in that no adequate height safety barrier was provided in an area where persons could fall more than 1.8 metres. Do you have anything to say regarding this apparent breach? A Same as before. I see it as a builder should have provided a barrier to prevent the fall. 42 The accuracy of these records of interview was not disputed and they were tendered into evidence against the second defendant (Black 176). The Messrs Pizzinato did not give evidence at the trial and their absence was unexplained. 43 Inspector Howard gave evidence that the second defendant was prosecuted under s15(1) of the Occupational Health and Safety Act 1983 and that it entered a plea of guilty (Black 188-9). Since, however the basis of the prosecution was not established this evidence was ultimately inconclusive (cf Black 291). Reasons of the primary judge 44 The learned trial judge summarised the evidence and made generally unfavourable findings as to the appellant's credibility. On the issue of whether there was a fence she preferred and accepted the testimony of Messrs Butterfield, Teasel, Katsikas and Donaldson. The judge found in effect that there was a fence or rail around the area where the appellant was working. 45 At page 14ff of her reasons the judge addressed the appellant's case as it was advanced in final submissions. It had been argued that each defendant had failed to provide a safe system of work. The primary submission was that there was no fence in place anywhere around the slab, nor was there steel scaffolding (as distinct from catch scaffolding) by way of alternative protection. It was common ground at trial that there was no steel scaffolding (Red 53 O-R, 55 R). The appellant had been adamant that there was no fence either, but his evidence on this issue was rejected and the evidence of the first respondent's witnesses was preferred. 46 In his final submissions at trial, senior counsel for the appellant pressed a number of alternative cases. It was submitted that, if there was a fence around the slab, it was not in the area where the appellant was working. Alternatively, it was submitted that the fence was inadequate in its construction and that it gave way when the appellant, who had been crouched underneath it, stood up with his back under the handrail. The appellant relied upon the absence of steel scaffolding as a safety long stop in the context of these alternative scenarios. 47 Judge Ainslie-Wallace held that it was not open to the plaintiff at trial to rely upon these alternative possibilities. To do so in the circumstances offended the rule in Browne v Dunn because it was unfair to the defendants in light of the way the case had been fought at trial. 48 This conclusion is challenged in the appeal. I shall explain her Honour's reasons when considering the attack upon them. 49 The primary judge proceeded to consider the alternative cases against the defendant in the event that she was in error in the application of the rule in Browne v Dunn. 50 As regards the first alternative (incomplete fence), the judge was not persuaded that there was no fence around the area where the plaintiff was working, irrespective of whether the whole of the second floor was fenced. There had been competing evidence on this matter, as I have indicated above. 51 This particular finding is challenged in the notice of appeal. 52 The further alternative case advanced in final submissions at trial was rejected on the following terms: Indequate fence The plaintiff argued that the nailing of the top rail to the uprights provided an inadequate fixing of the rail which would allow it to become dislodged if someone were to stand up under it. It was argued by the first defendant that this regulation was not pleaded. The statement of claim pleaded breaches of Regulation 73 of the Occupational Health and Safety Act including 73(3) and (8) which deal with the fencing of open spaces. Regulation 73(8) is in the following terms: "Effectively fence in the manner prescribed by these Regulations , all platforms, the open sides of all floors, openings in floors…." (emphasis added) Regulation 75 of the Occupational Health and Safety Act prescribes the methods to be adopted in fencing areas contemplated by Reg 73(8). I am of the view that it was not necessary for the plaintiff to plead Regulation 75, it being clear from a reading of Regulation 73 that any breach alleged of that section [sic] would import a consideration of Regulation 75. No evidence was called by the plaintiff as to whether the fence as described by Mr Butterfield did not comply with industry standards or was otherwise inadequate. Failure to comply with a regulation may, not must, support a finding of inadequacy. Even though counsel for the plaintiff submitted that this is a matter for common sense, I cannot find on the evidence that there was any particular defect in the construction of the fence. The evidence of Mr Howard, the Workcover Inspector was that the fence as described by Mr Butterfield and Mr Teasle, had it been around the whole of the perimeter of the slab where people were to work, would have enabled a prudent employer to deem it safe for people to work there. (transcript page 184 lines 35-50). Having considered the evidence I am satisfied that the whole of the slab area on which the plaintiff was working was surrounded by a fence of the type described by Mr Butterfield. 53 These reasons dealt compendiously with a case that pleaded in the alternative breach of duty of care and breach of statutory duty; as well as one in which the common law counts invoked breach of the regulation (without confining themselves to that basis) to establish that the fence was inadequate in design or construction. 54 The trial judge then addressed and rejected a submission based upon the principles of res ipsa loquitur and an argument that the lighting was inadequate on causation grounds. Finally, an argument that the employer had failed to supervise or to warn was rejected having regard to the plaintiff's experience as a concreter. 55 Two comments are appropriate before leaving her Honour's reasons. 56 First, there is no finding as to the mechanics of the fall. Doubtless this was largely the product of the trial judge's difficulties with the credibility of the appellant. But one thing is certain: he fell and was injured. There was no suggestion that he had stepped or jumped over the wooden barrier fence that Messrs Teasel and Butterfield had erected. He must have fallen through it after he stood up and lost balance (Black 29, 159-60). In fact, this is what the ambulance officers' notes apparently record they were told on site by the injured yet conscious appellant. 57 Secondly, the judgment does not address the claim based upon breach of statutory duty, even though the existence of a pleaded claim to that effect is acknowledged in the passage dealing with inadequate fencing set out above. The concluding paragraph of the judgment which states that "The plaintiff has not made out his case against either defendant in negligence" further confirms that her Honour did not consider the statutory count. 58 The grounds of appeal that were pressed may now be considered. Rejection of the no fence case 59 Senior counsel for the appellant did not flinch from the difficult task of challenging the credibility-based finding that rejected his primary case – that there was no fence where he fell over the edge. 60 The principles have been restated recently in Fox v Percy (2003) 197 ALR 201. 61 The trial judge rejected the appellant's evidence about the absence of fencing. That evidence was arguably at variance with his remarks to Mr Salvatore Marra and to the ambulance officers who tended him when he fell. Judge Ainslie-Wallace was also unimpressed with the appellant's credibility, particularly in relation to his evidence about attempts to find work. 62 On the latter issue, senior counsel for the appellant submitted that the judge had based some of her criticisms upon assumptions rather than facts. There is force in this submission. I also incline to the view that her Honour failed to perceive or give due weight to the possibility that desperation about obtaining employment and the depression caused by long-term unemployment can prompt young people to apply for jobs indiscriminately and/or make mechanical or perfunctory attempts to follow up job applications which they considered unlikely to bear fruit in the first place. This said, a court hearing an appeal by way of rehearing could not reverse her Honour's conclusions based upon her preference of the respondents' four witnesses over the appellant's witnesses on the issue of whether or not there was a fence. 63 Next, the appellant challenged the primary judge's failure to give conclusive weight to Mr Butterfield's admission to the WorkSafe Inspector. Mr Butterfield gave contrary evidence at trial and explained his remarks to the Inspector as the product of "probably nerves". In my view, it was open to the trial judge to weigh this material and to conclude, as she did, that Mr Butterfield's in-court testimony was to be preferred, supported as it was (to a large degree) by the evidence of Messrs Teasel, Donaldson and Katsikas. 64 The appellant was also critical of her Honour's failure to have regard to and to act upon the admission by the directors of the second respondent that the employer was guilty of an offence pursuant to s15(1) of the Occupational Health and Safety Act. This is curious, but it appears to reflect the absence of submissions on the topic and the absence of evidence about the facts upon which that plea was based. 65 More persuasive are the submissions referable to the admissions made by the principals of the employer, the Messrs Pizzinato. Neither witness was called or his absence explained. Yet each had made damning admissions against the employer that were relied upon in final addresses (Black 361). 66 It is well established that a party's admission(s) can have very great probative weight and that it may require a convincing explanation before they/it can be simply displaced by an unfavourable view as to the credibility of an opposing party's witnesses (Voulis v Kozary (1975) 180 CLR 177 at 193, Khafam Developments Pty Ltd v Zeaiter, CA unreported 3 October 1996). This consideration has made me pause, before ultimately concluding that this Court should not (in an appeal by way of rehearing) overturn the finding that some fence was in place. It does not follow that the finding might not be displaced if a new trial were ordered on other grounds (to which I now turn). Failure to consider statutory counts 67 The statement of claim pleaded against each defendant causes of action for breach of statutory duty. These were in the alternative to the negligence counts that (among other things) invoked the statutory breaches as evidence of negligence. 68 The particulars refer to regs 73(1), 73(3), 73(4) and 73(8) of the Construction Safety Regulations. Senior counsel for the plaintiff at trial opened his case accordingly (Black 19E). He continued: Your Honour the fact of the matter was that there was no scaffolding at the site. There was no real adequate lighting. There was no fence constructed around the perimeter of the second level where the plaintiff was working, and there was no fencing or scaffolding protecting the open side of the building. The plaintiff also with respect relies upon a breach of common law duties by both of the defendants in relation to the failure to provide safe place of work, adequate lighting, proper scaffolding and fencing, and a breach of duty to exercise reasonable care for his safety. The regulations were clearly invoked in final address. 69 Regulation 73 (now repealed) imposed various duties upon "any person who directly or by his servants or agents carried out any construction work". Breach of this regulation could be made the subject of a statutory count. On the facts, that count lay against each defendant (HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422). Neither defendant contended otherwise. 70 Relevantly, reg 73 provided: Safeguards and accident prevention measures for construction work Any person who directly or by his servants or agents carries out any construction 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 construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74: (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, … (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 1.8m, (4) make provision to ensure and maintain lighting (natural or artificial) sufficient and suitable for the illumination of all work places, stairways, corridors and passageways where persons must frequent, pass or use in the performance of their work or in passage to or from their work. Whenever artificial lighting is provided lamps shall be so placed and shaded that they will not affect the safety of persons by producing glare or deep shadows and such lamps shall be protected against breakage by wire guards, … (8) effectively fence in the manner prescribed by these Regulations, all platforms, the open sides of all floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes more than 1.5m deep. Provided that it shall be permissible to remove when necessary any guard rail, fence or part thereof for the purpose of handling materials or for the installation of other work, subject to such guard rail, fence or part thereof being at once replaced upon completion of such work, 71 Regulation 74 dealt with safety nets or belts and life lines. 72 Regulation 75 specified the type of fencing required for floors and landings. It provided: 75. Fencing of floors, landings, stairways etc Wherever, by this Part of the Regulations, it is required that a floor, platform, landing, working place, stairway or stairway landing, excavation or hole, or an opening in a floor, roof, platform or landing or that any other place shall be fenced, then such fencing shall be effected by: (a) positively fastening in position uprights or posts of 100 mm x 50 mm timber at a distance of not more than 2.5 m apart, (b) bolting to each upright or post mentioned in paragraph (a) of this Regulation such length or lengths of 100 mm x 50 mm timber as are necessary to form the top guard rail of the fence, the said 100 mm x 50 mm timber being bolted at such position to each upright or post that the distance from its top edge to the level of the place being so fenced is 1 m, (c) positively fastening to the uprights or posts mentioned in paragraph (a) of this Regulation toe or fender boards, of not less than 225 mm x 25 mm timber, in such manner that the bottom edge of each toe or fender board is level with the place being fenced and so that an opening or gap is not left between such bottom edge of the toe or fender board and the surface of the place being so fenced. Alternatively such fence may be constructed of steel members provided that each steel member used possesses the strength and rigidity of its corresponding timber member as set forth in this Regulation. As a further alternative the 100 mm x 50 mm guard rail may be replaced by a flexible steel wire rope, or by a fibre rope not less than 24 mm in diameter, provided that such rope is kept taut and is properly secured to the uprights or posts. 73 The trial judge correctly observed that reg 75 prescribed the methods to be adopted in fencing areas contemplated by ref 73(8). She also held that it was not necessary for the plaintiff to plead reg 75, it being clear that any breach alleged of reg 73 would import a consideration of reg 75. See also James v Hudson (1955) AR 1047. 74 All parties accepted that there was no scaffolding on the site, evidence of this having been led in the appellant's case and not contradicted (Black 35, 171). Any issue regarding "catch scaffolding" designed to catch falling bricks as distinct from falling workers can be ignored for present purposes (see Red 40, 55). 75 The trial judge held that it was not open to the plaintiff to press a case based upon the inadequacy of the fence which she concluded had been erected around that part of the perimeter from which the appellant fell. This conclusion was stated in the context of addressing the common law case and was based upon Browne v Dunn conclusions challenged in this Court by the appellant. 76 The judgment does not reveal why the statutory counts were not addressed, even in that part of the reasoning in which her Honour considered "the alternate [sic] case" (Red 57). The judge recognised that the pleading had raised statutory counts (Red 58), but she proceeded to consider compliance with the regulation in the most general of terms and, apparently, solely in the context of using the regulation as evidence of negligence (Red 58-9). 77 Was it open to the trial judge to ignore the statutory counts that had been pleaded and opened? In my view, it was not 78 The plaintiff's evidence – to the effect that there was no fence and no steel scaffolding at all – raised an issue on the statutory counts as well as in negligence. Indeed, that issue was raised on the pleadings and in the opening address. The fact that the plaintiff was disbelieved when he said that there was no fence at all did not in itself remove that issue, so long as there was evidence capable of supporting a verdict for the plaintiff on one or more of the pleaded variants of the statutory count. 79 Of course, the parties were free to fight the case by deliberately departing from the pleadings or the plaintiff was free to abandon an alternative case based on the statutory counts. Neither of these things happened, as I shall demonstrate. 80 There was a clear evidentiary onus upon the defendants to establish compliance with sub-regs (1) and (3) of reg 73 once the plaintiff had established that the defendants had carried out construction work in circumstances creating a risk of falling from a height. It was not incumbent on the plaintiff's counsel to take the fight in relation to regs 73 and 75 to the defendants' first witness, Mr Teasel upon pain of forfeiting the right to rely upon a pleaded case that was open on the evidence. 81 Mr Howard, the WorkCover inspector called by the plaintiff, said that if timber handrails were used for the upright posts of a protective fence, the regulations at the time required that the uprights be no more than 2.4 metres apart (Black 173, 178). Common practice was for pieces of 2 x 3 timber to be rammed into the cavity wall (which had a two inch gap) (Black 172, 174). Mr Howard said that this was the only way that a handrail could have been erected in this location, but he was critical of its safety because the top layers of a brick wall do not have great strength (Black 174-5. See also 190). 82 Counsel for the first respondent cross-examined Mr Howard, asking him to assume that a handrail was affixed in the manner expected would be proved by later witnesses called by the defendants at trial. The nature of the fence he was asked to assume is disclosed in the following cross-examination (Black 178-9): Q. I'd like you to assume that a wooden handrail was affixed using this method. I'll just read it out to you. There was a bracket affixed to the edge boards and possibly into some concrete but certainly with bracket fixed the edge boards with bolts, understand that? A. Yep. Q. There was an upright, going up from the bracket with a diagonal across from the bracket supporting the wooden beam in an outward fashion, do you understand what I'm putting to you, so that there was a diagonal supporting it in an upright position? A. I think I do yeah. Q. And then there were handrails along the top of that? A. Mm. Q. I withdraw that Inspector Howard. Assume that the wooden uprights were bolted into the edge boards with bolts, lets just make that assumption. If they were bolted in that would be an appropriate method of fixation for the uprights provided they were 2.4 centres? A. What supports the edge board, I'm sort of fail to understanding what would be supporting the edge board at that point in time though, because the edge board might only be 100 and – maybe 200 millimetres high. Q. We're talking about a pour here with 300 cubic metres? A. Yes. Q. One would have to assume there would be a lot of outward pressure on the edge boards when they're prepared to receive the concrete wouldn't one? A. Yes. Q. So one has to assume that those edge boards are secured sufficient to allow the concrete to be contained within the slab area? A. Yes they must have been. Q. We'll have to explore those that allegedly did all these things, but assuming the edge boards were secured sufficient to take that 300 cubic metre pour, if the uprights were fixed by bolts to those edge boards and then at the relevant centres, that would be an appropriate method of fixation would it not? A. It's difficult for me to comment, not having seen the edge board, the system. There's a system that is claimed by some people to have in place and it's denied by others that it was ever in place. I find it hard to make a valid judgment on something that I didn't see. Q. Well to be fair to you, you did not interview the person who was alleged to have put it up did you? A. No I didn't. Q. Are you aware that that was a Mr Teasel? A. I was made aware of that, yes. 83 There was no evidence led by the respondents that the protective fence was bolted or that it had diagonal supports. 84 Furthermore, Inspector Howard's views did not and could not amount to a dispensation from the need to comply with regs 73 and 75 or represent a legally conclusive exegesis of their impact. 85 By the time that Mr Butterfield was called, the plaintiff had made plain that he would be relying upon the regulations. Thereafter, one infers that the defendants chose to run more of a tactical race, keeping a low profile on the statutory counts, perhaps because their strength lay elsewhere. But even if this inference should not be drawn, the plaintiff should not have lost the right to rely upon the regulations (in aid of his statutory and common law counts) where there was evidence to support those pleaded counts. 86 Mr Butterfield revealed limited understanding as to the details of reg 75. But his cross-examination left no doubt that the plaintiff was intending to rely upon the fine print of that regulation in the event that it were established that the plaintiff fell through a timber barrier erected by Messrs Teasel and Butterfield. 87 At one stage Mr Butterfield was cross-examined about the non-conformity of the upright posts with reg 75 (Black 275, 283-4). He agreed that the handrail or fence had no toe or fender board as required by the Regulations (Black 275, 287: cf reg 75(c)). Later he endeavoured to explain or qualify this evidence (Black 288) by saying in effect that reg 75 did not apply until after the slab had been poured (Black 288). He said that the width of the upright posts that he used was 38mm or 45mm. When it was put to him that the regulations required the use of 50mm timber (cf reg 75) he first said that you could not get such posts into the wall cavity, then (when he had agreed that 50mm was two inches) said that he had no idea what the regulation said (Black 284). 88 Mr Butterfield said that reg 75 on his understanding was concerned with the fence that would be erected after the pouring of a slab. Before the slab was poured, "temporary handrails" were appropriate because they were what was installed during the period that the edge board was in place (Black 288). At another time, when asked about the absence of a toe board in the temporary fence (cf reg 75(c)), he asserted that a toe board was not required for a temporary fence. As regards the requirement of toe boards on a verandah, he claimed "WorkCover does not enforce it" (Black 287). 89 The pleadings, the opening and this evidence show that issue was joined as to whether the fence said by the respondents to have been erected satisfied the specifications in the regulations (see also Black 181, 187, 275, 287-8, 294, 320, 341-2). 90 When effectively cornered with his evidence showing non-compliance with reg 75, Mr Butterfield sought to invoke industry practice to explain and justify his inability to erect a barrier fence compliant with reg 75 prior to the removal of form work. It is difficult to see how this was an answer to the mandatory language of the regulations and the strict liability to which they gave rise. Ultimately the matter was not addressed by her Honour and for this reason there will need to be a new trial on at least the statutory counts. Accordingly, it is best that this Court refrain from saying anything that might pre-empt the adducing of relevant evidence on possibly complex issues of compliance and causation touching the regulations. But one possible answer to Mr Butterfield's evidence that a regulation-compliant temporary fence could not be erected before the removal of the form work is that this called forth the obligation to provide "suitable and safe scaffolding" (cf Reg 73(1)) or means for securing safety "by fencing or otherwise" (cf Reg 73(3)). 91 Reg 74 originally provided for a defence (the onus being upon the person carrying out the building work) "if the special nature or circumstances of any part of the building work render impractical compliance". But this defence was removed in 1987 with the radical recasting of reg 74 (see Adrian Brooks, Occupational Health and Safety in Australia, 4th ed 1993, CCH, pp588-90). Browne v Dunn 92 In the context of the common law claim relating to the inadequacy of the fence, her Honour held that it was unfair for the plaintiff (in light of Browne v Dunn) to press the inadequate fencing scenario in final submissions. She said this (emphasis in original): Before passing to a consideration of the plaintiff's alternate case it is necessary to deal with a submission made by both defendants that none of the matters on which the plaintiff now seeks to rely to advance the case that there was a fence but it was either partially around the slab or inadequate to bear the weight of the plaintiff, was not put to any of the first defendant's witnesses and so infringed the rule in Browne v Dunn (1893) 6 R 67 (HL). The Browne v Dunn argument: Counsel for the plaintiff submitted that no questions were directed to any of the first defendant's witnesses about the construction of the fence because a finding of inadequacy was a matter for the court. No questions were directed to either Mr Teasel or Mr Butterfield to the effect that the method of construction of the fence which they described was inadequate. The terms of regulation 75 of the Occupational Health and Safety Act were put to Mr Butterfield who said that he understood the regulation related to the permanent fence of the sort which replaced the wooden fence present when the plaintiff fell. The plaintiff called no evidence to the effect that the construction of the fence as described by the first defendant's witnesses was inadequate. There were other matters argued in submissions by the plaintiff that were subject to the same criticism by the defendants. The plaintiff argued that, had there been scaffolding around the building, the plaintiff would not have fallen. The scaffolding to which this submission referred was a steel construction of a type which would encase the outside of the building and which, in this case, was distinguished from the catch scaffold on the face of the building. This proposition was not put to Mr Butterfield nor was it put to Mr Howard the Workcover inspector. The plaintiff argued that the failure to provide scaffold was pleaded as a particular of negligence against the defendant and there was no requirement to cross examine on it because adequate notice of the issue had been raised in the pleading. Finally, the plaintiff submitted that if the court found that the slab was partially fenced, then it was submitted there was no fence at the place where the plaintiff said he fell. It was argued by the defendants that the plaintiff ought to have put to Mr Butterfield that if there was a partial fence, then there was no fence where the plaintiff was working. I am not persuaded that it was necessary to put the proposition to Mr Butterfield given his evidence that he was in error in saying that there was a partial fence around the second floor. Nonetheless, it was not put to Mr Teasle that the fence was only partially around the second floor. The first defendant argued that because these matters were not put, it was in the position of not having called evidence from witnesses as to the adequacy of the fence, compliance with industry standards and other matters to meet the case that the fence was inadequately constructed and whether the particular place from which the plaintiff fell was amenable to being covered by external scaffolding. The plaintiff argued that the rule in Browne v Dunn did not require that the case now being argued be put. The argument on the rule as advanced by counsel for the plaintiff was that it was only when a witness makes a positive assertion in evidence that it may become necessary to put a contrary proposition to that witness in cross examination where there is to be a submission made later which impeaches the evidence of that witness. By way of illustration, counsel for the plaintiff argued that he was not obliged to put the issue of scaffolding to Mr Butterfield because he made no mention of scaffolding in his evidence and there was nothing then in his evidence which required the plaintiff to put matters in contradiction to him. The rule in Browne v Dunn was considered by Hunt J in Allied Pastoral Holdings v Commissioner of Taxation (1983) 1 NSWLR 1. At page 16 his Honour outlined the operation of the rule as a matter of professional practice: "… unless notice has already been given of the cross examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence or the inferences to be drawn from it and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn . (emphasis added) In Reid v Kerr (1974) 9 SASR 367 at 373-4 Wells J said: A judge is entitled to have presented to him issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains at night. Certainly most of the cases to which Hunt J referred in the course of his analysis concern the failure to put the matters on which a witness is to be impeached. It would in my view be both a misinterpretation of his Honour's finding and an unduly restrictive interpretation of the cases to limit the obligation in the way the plaintiff argued. There was no issue in this case that there was no scaffolding around the building at the time of the plaintiff's accident or at any relevant time. The first defendant's case made clear in the cross examination of witnesses called by the plaintiff was that it was to be submitted that the fence (as described by Mr Butterfield) and the catch scaffolding together provided an appropriate safety response to someone working above ground. Plaintiff's counsel argued that Mr Butterfield having made no positive statement about scaffolding there was nothing to put to him by way of contradiction. It is true that Mr Butterfield did not address scaffolding in [his] evidence, however to fail to put the proposition to Mr Butterfield that had there been scaffolding of the type which is external to the building, left the first defendant in the position of not having an opportunity to call evidence to rebut the suggestion. Counsel for the first defendant submitted that there may be cogent reasons why that particular part of the building was not amenable to external scaffolding. However in the absence of evidence or the matter being raised, the court is left in the position of not being able to determine that matter for itself. It was further argued for the plaintiff that the issue of scaffolding was clearly raised in the pleadings. The statement of claim particularised negligence and breach of statutory duty of care as: "Failing to provide any or any proper scaffolding, fending or guard rails." That in my view is not sufficient to answer the first defendant's complaint of unfairness. It was entirely clear that the first defendant's case was that the railing and catch scaffolding provided appropriate falls protection. In my view the proposition put by counsel for the plaintiff that had there been external scaffolding the plaintiff would not have fallen should have been put at least to Mr Butterfield. In submissions, counsel for the plaintiff argued that the way in which Mr Butterfield and Mr Teasel had described the fixing of the handrail to the uprights in the fence would allow the court to find that the structure could not bear the upward pressure if the plaintiff had been crouched underneath it and had stood up with his back under the handrail. This was not put to either of those witnesses. Counsel for the plaintiff argued that there was no need to put this proposition to either men because to nail the top rail onto the uprights was in breach of the Occupational Health and Safety Act regulations. It was said that in this case there would have been no benefit to the court to have put the matter to Mr Butterfield because the way in which he constructed the hand rails was not in accordance with the regulations. It may be that whether the fence was constructed in accordance with those regulations was a matter for the court, but it is also a matter which fairness would dictate should have been put to the first defendant's witnesses to enable the first defendant to consider its position and to call evidence, if it wished, on that point. I accept the argument made by both defendants that the plaintiff's case, up until submissions, was brought on one basis alone. That is that there was no fence around the slab. Even though the regulations cover other matters, such as the construction of the fence, no particulars of breach going to the adequacy were pleaded. There was in my view no way the defendants could have known of this alternate case now being advanced. I accept the submissions made by both defendants that the failure to put these matters has resulted in unfairness to them. 93 There appear to be several streams of reasoning: (a) The plaintiff called no evidence in his case as to the inadequacy of the fence described by the defendants' witnesses; (b) The plaintiff failed to put to Inspector Howard or Mr Butterfield the proposition that steel scaffolding (as distinct from catch scaffolding) would have prevented the fall; (c) Had (b) been put, the defendants may have led evidence as to why that particular part of the building was not amenable to external scaffolding; (d) The plaintiff should have put to Mr Butterfield and Mr Teasel the proposition that the handrail they described could not bear the upward pressure if the plaintiff had been crouched underneath it and had stood up with his back under the handrail; (e) There was no way the defendants could have known, prior to submissions, that the plaintiff was bringing any case other then one based upon accepting the plaintiff's evidence that there was no fence around the slab; (f) These matters caused such unfairness to the defendants that, in light of Browne v Dunn , the plaintiff was properly precluded from relying upon them as an alternative basis for liability in negligence. 94 In my view these conclusions reveal a misunderstanding and/or misapplication of Browne v Dunn. In any event, they do not do justice to the way the case was fought at trial prior to final submissions. 95 Much has been written about the rule in Browne v Dunn (see generally Bulstrode v Trimble [1970] VR 840, Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1). The rule is rooted in considerations of fairness. It is a rule of practice "necessary both to give the witness the opportunity to deal with [contradictory] evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inferences sought to be drawn" (Allied Pastoral at 16 per Hunt J). 96 Usually, the rule is applied in favour of a moving party whose witness has established a particular proposition. It throws upon the opponent the burden of contradicting that witness by cross-examination and imposes sanctions necessary to ensure fairness if the rule is breached. If the contending party keeps mum until after the close of the other party's case then the other party may unfairly have lost the opportunity to corroborate, elucidate or explain. The rule is also grounded in considerations of judicial economy in that it saves parties and courts time and expense in duplicating evidence that is not controversial, because failure to challenge an available and appropriate witness on some matter will often signal that the matter is not in dispute. 97 The rule in Browne v Dunn is not a preclusive rule of evidence. Its breach does not necessarily dictate that evidence may be not be called in contradiction. Rather, if it appears during the course of the trial that the rule has been offended and that unfairness may result, the judge has a discretion as to how best to remedy the unfairness so that the trial does not miscarry. The steps available to the judge include permitting witnesses to be recalled (Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556; Archer v Richard Crookes Constructions Pty Ltd, 1997, 15 NSWCCR 297 at 303). This is not to deny that one remedy available in a proper case is to preclude the party in default from addressing upon a particular subject upon which the opposing party was not cross-examined (Payless). 98 The rule does not undermine the adversary nature of proceedings or make one party the other's keeper. Thus, a party who proves facts sufficient to establish a cause of action or a defence upon which that party bears the onus does not have to confront the other side's witnesses with the issue if they do not address it in their own evidence. To require this would invert that aspect of the rule grounded in what I have described as judicial economy. There is no unfairness in letting the sleeping dog lie and also invoking Jones v Dunkel (1959) 101 CLR 298 so long as the moving party has by pleadings or otherwise signalled the matter sought to be proved and led necessary evidence on the topic. There is no need to confront an opponent's witnesses by cross-examination if they fail to contradict evidence earlier called by the moving party in support of an issue raised in the pleadings or otherwise (Flower v Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 at 148-9, Stern & Anor v National Australia Bank Ltd (2000) 171 ALR 192 at 203 [42]). 99 The learned trial judge proceeded at variance with these principles in penalising the plaintiff because his counsel could have cross-examined defence witnesses on issues that the plaintiff either did not raise or raised inadequately. At trial, the plaintiff signalled reliance upon breaches of reg 73. His case was pleaded and opened on that basis (among others). It was proved that he was engaged in construction work where he was liable to fall more than 1.8 metres. It was common ground that there was no steel scaffolding and the possibility that catch scaffolding might serve the same function was briefly explored and effectively abandoned. Whether or not the plaintiff was believed when he said there was no fencing either, the gauntlet of non-compliance with reg 73(1) and (3) had been thrown down before the plaintiff closed his own case. The defendants were fully on notice (see Allied Pastoral Holdings at 17, 24). 100 As to the matters extrapolated from her Honour's reasons (par 93 above), I would add the following additional comments: (a) There was evidence as to the inadequacy of the fence in that it failed to protect the appellant. In any event, the strict rigour of the statutory duty meant that it was not incumbent on the appellant to prove more than non-compliance and a causal link. The repeal of the former reg 74 removed any broad defence of impracticability. It was necessary to grapple with the detailed language of the regulations. (b) Steel scaffolding would obviously have protected against the fall. There was simply no issue about this proposition. The respondents merely relied upon the temporary fence as the substitute for what the Regulations required. (c) It is doubtful whether evidence about the impracticability of erecting external scaffolding would have answered the mandate of the regulation. In any event, it was up to the respondents to call such evidence. No action of the appellant at trial relieved them of this responsibility. (d)-(f) These matters have already been addressed fully. 101 These considerations also mean that there must be a new trial as regards the adequacy of the fencing as regards the common law claims as well. Disposition 102 In my view this Court should not limit the issues in the new trial. The principles are discussed in Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan (2001) 53 NSWLR 343 at 349-51. I have touched on matters of concern in relation to aspects of the "no fence at all" case. They would not rise to the level of justifying a verdict in the appellant's favour, but they preclude any quarantining of the finding about some fence having been erected. These matters include the judge's approach to the appellant's attempts to obtain employment, the Butterfield and Pizzinato admissions, the absence of any finding to explain why the appellant fell (as he undoubtedly did) and the conflicting evidence as to whether the fence went all the way around. The appellant's credibility will remain important, but it seems appropriate that the judge hearing the new trial should be unfettered in his or her opportunity to assess the case then advanced in all its permutations. 103 I would however reserve liberty to the respondents to apply for the imposition of conditions (cf Pt 51 r23(5)), provided that any such application is made by notice of motion filed within 21 days and accompanied by written submissions. In the event that a motion is filed, the appellant may file written submissions within a further 14 days of service. The application will be considered by the Court on the papers, unless it becomes necessary to require further attendance. 104 A new trial order removes the issue relating to the costs of the arbitration proceedings that preceded the trial in the District Court. 105 The orders proposed are therefore: 1. Appeal upheld. 2. Set aside the verdicts and orders in the District Court. 3. New trial ordered. 4. Liberty to the respondent to apply for the imposition of conditions (cf Pt 51 r23(5)), provided that any such application is made by notice of motion filed within 21 days and accompanied by written submissions. In the event that a motion is filed, the appellant may file written submissions within a further 14 days of service. 5. Costs of the first trial to be determined by the judge hearing the new trial. 6. Respondents to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if qualified. 106 SANTOW JA: I agree with Mason P. 107 BROWNIE AJA: I agree with Mason P. ********** Last Modified: 12/19/2003 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. 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