New South Wales Court of Appeal CITATION : HIA Apprentices Limited v Bartley & 2 Ors; Apap Constructions Pty Ltd & 1 Or v HIA Apprentices Limited & 1 Or [2004] NSWCA 87 HEARING DATE(S) : 19/03/04 JUDGMENT DATE : 1 April 2004 JUDGMENT OF : Sheller JA at 1; Ipp JA at 2; Bryson JA at 57 DECISION : (1) Appeal upheld (2) Judgment, verdict and orders made by Delaney DCJ set aside (3) Judgment in favour of HIA, Apap Constructions Pty Limited and Mr Apap and verdict to be entered in their favour (4) The Plaintiff (Mr Bartley) to pay the costs of the trial and the costs of the appeal. CATCHWORDS : NEGLIGENCE - Personal injury - Plaintiff injured at building site - Unsafe method of work - Casual act of negligence. ND CASES CITED : Bankstown Foundry Proprietary Ltd v Braistina (1986) 160 CLR 301 CA 40142/03 HIA Apprentices Limited (Appellant) Nathan Bartley (First Respondent) Apap Constructions Pty Ltd (Second Respondent) PARTIES : Peter George Apap (Third Respondent) CA 40262/03 Apap Constructions Pty Ltd (First Appellant) Peter George Apap (Second Appellant) HIA Apprentices Limited (First Respondent) Nathan Bartley (Second Respondent) FILE NUMBER(S) : CA 40142/03; 40262/03 CA 40142/03 L J Ellison (Appellant) D T Kennedy SC/P Frame (First Respondent) COUNSEL : D Ronzani (Second & Third Respondents) CA 40262/03 D Ronzani (Appellants) L J Ellison (First Respondent) D T Kennedy SC/P Frame (Second Respondent) CA 40142/03 Rankin & Nathan (Appellant) Taylor & Scott (First Respondent) SOLICITORS : Henry Davis York (Second & Third Respondents) CA 40262/03 Henry Davis York (Appellants) Rankin & Nathan (First Respondent) Taylor & Scott (Second Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 1257/00 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40142/03 CA 40262/03 DC 1257/00 SHELLER JA IPP JA BRYSON JA Thursday 1 April 2004 HIA APPRENTICES LIMITED v NATHAN BARTLEY & 2 ORS APAP CONSTRUCTIONS PTY LTD & ANOR v HIA APPRENTICES LIMITED & ANOR Judgment 1 SHELLER JA: I agree with Ipp JA. 2 IPP JA: The first respondent (to whom I shall refer as "the plaintiff") was injured on 1 December 1997 when he fell from the upper storey of a cottage that was in the course of construction. 3 The plaintiff had been engaged by HIA Apprentices Limited ("HIA") as an apprentice carpenter. HIA is the acronym for Housing Industry of Australia. HIA operated a scheme whereby it engaged persons who wished to become apprentices in the building industry and allocated them to approved builders for whom they would work for specified periods. 4 Apap Constructions Pty Limited was a building company to which HIA had allocated the plaintiff in accordance with its scheme. Mr Peter George Apap controlled Apap Constructions and was its working director. 5 The plaintiff contended, and HIA accepted, that he was in the formal employment of HIA. While working for Apap Constructions, the plaintiff was under the day-to-day control of Mr Apap. 6 The plaintiff brought proceedings against HIA, Apap Constructions and Mr Apap for damages for the personal injuries he sustained when he fell while working on the cottage in question. Delaney DCJ upheld the plaintiff's claim and awarded him substantial damages. 7 Immediately prior to his fall the plaintiff, according to his testimony, had been on the upper storey of the cottage, nailing frames in place. He said that Mr Apap instructed him "to go downstairs and get some temporary bracing". The temporary bracing was lengths of timber. The plaintiff described what then occurred. He said: "I climbed outside of a window, I was on the outside of a frame and I was trying to reach a ladder which was downstairs and the frame that I was holding on to gave way." The plaintiff thereupon fell to the ground. 8 The internal stairwell in the cottage was, at the time, a void. There was a dispute between the parties as to whether there was an extension ladder in the stairwell which the plaintiff could have used to descend to the ground, rather than by the method described. Mr Apap asserted that an extension ladder had been placed in the void for the express purpose of ascending to the upper storey and for descending to the ground floor. The plaintiff denied this. Delaney DCJ found that the extension ladder was in the stairwell at the time. 9 Nevertheless, Delaney DCJ found for the plaintiff. His Honour's reasoning was as follows. He held that Mr Apap instructed the plaintiff "in a manner which required immediate compliance and immediate action" to go downstairs to get the bracing. He held that the plaintiff thereupon, immediately, "took the shortest route to do so which involved climbing down the outside of the frame and trying to step onto the stepladder". His Honour concluded: "In requiring the plaintiff to comply with this instruction in the manner in which I find that he did, Mr Apap, in my opinion, breached the duty of care which he owed to the plaintiff and was the cause of the plaintiff's injury." He found that this breach of duty by Mr Apap was also a breach of duty by Apap Construction. 10 His Honour found that Mr Apap's manner of giving the plaintiff those instructions caused the plaintiff to leave the upper storey by the window, rather than by climbing down the extension ladder in the stairwell. He said: "Requiring the plaintiff to take the steps that he did in an immediate manner was a breach of his duty and caused the plaintiff [to] exit the top floor of the building in the way in which he did." 11 As regards HIA, Delaney DCJ held that it owed the plaintiff a non-delegable duty to take reasonable care for the plaintiff's safety, and that it had breached this duty. His Honour equated, in effect, the breach of duty by Mr Apap and Apap Construction with a breach of duty by HIA. 12 His Honour held that the plaintiff was not guilty of any contributory negligence, that HIA "should have contribution and indemnity from [Apap Constructions and Mr Apap] to the extent of 75%" and that HIA was responsible for 25% of the plaintiff's damages. 13 HIA, Apap Constructions and Mr Apap appeal against the orders made by the trial judge. 14 HIA, Apap Constructions and Mr Apap contend that Delaney DCJ erred in finding that they had not discharged the duty of care that they owed the plaintiff. Apap Constructions and Mr Apap also contend that Delaney DCJ erred in finding that there was no contributory negligence on the plaintiff's part and, further, argue that his Honour erred in awarding the plaintiff $300 net per week for future economic loss until age 65. 15 It is only necessary to deal with the grounds of appeal relating to the findings that HIA, Apap Constructions and Mr Apap were negligent. 16 At the date of the fall the plaintiff was 22 years of age. By that time he had had four years experience in the building industry, including experience in carpentry, timber work generally, and construction of residential houses. In 1993 he had done a TAFE course in which he had passed a number of subjects relating to the construction work of which he had practical experience. By the date of the fall he had worked for Apap Construction for about six to seven weeks, doing the kind of work, generally, that he was doing on the day of his fall. In particular, he had "done a fair bit of ladder work", he had "climbed ladders hundreds of times" and had "used ladders as part of construction work hundreds of times". He had done above ground construction work on very many occasions. 17 The method that the plaintiff used to go down from the upper storey, to his knowledge, was dangerous. This was obvious, which the plaintiff conceded. As the trial judge found, there was a ready and safe alternative close to hand, namely, the extension ladder. 18 As I have pointed out, the trial judge held that the plaintiff climbed through the window and not down the extension ladder because he had been instructed to get the bracing "in a manner which required immediate compliance and immediate action." For this reason, the plaintiff "took the shortest route to do so" (i.e., through the window). 19 I am unable to see on what basis an instruction to fetch the bracing, even if it had to be complied with immediately, could be construed as an instruction not to use the extension ladder but to go through the window and to jump down on to a stepladder some distance below. 20 I would add that the added time in getting to and using the extension ladder would have been minimal. Moreover, although it is not entirely clear, it does seem on the plaintiff's own evidence that there was an interval of time between the giving of the instruction and his compliance therewith. 21 The plaintiff's description of how the accident occurred was the following: "I was on the outside of the frame with my feet on the floor in between a couple of studs and I was hanging on to the window sill, there was an A-frame ladder which was off to the side a bit and as I reached my foot out the frame that I was holding on to pulled out. I was left with two hands in the air, one foot in the air and the other foot on the floor." 22 Hanging onto the windowsill, as he was, the distance between the plaintiff's feet and the top of the stepladder below was about one metre. He was intending, somehow, to drop down from the windowsill to the top of the stepladder. The plaintiff accepted in cross-examination that he, himself, had made the decision to attempt this route. He accepted that Mr Apap had not told him to leave the upper storey in that way. He knew that this was a dangerous method of descent. He knew from his previous experience that the extension ladder was the safe way to get from the upper storey to the ground floor. 23 In these circumstances, the learned judge erred in finding that Mr Apap, by his instructions, "caused the plaintiff [to] exit the top floor of the building in the way in which he did". In summary, there was no evidentiary foundation for this finding. 24 Mr Kennedy SC, who together with Mr Frame appeared for the plaintiff in the appeal, submitted that there was an alternative ground on which the judge had found negligence on the part of HIA, Apap Constructions and Mr Apap, namely, that they had failed to provide a safe system of work for the plaintiff. Mr Kennedy submitted that the system that should have been provided involved instructing the plaintiff to use the extension ladder and not to climb up and down the frame on the outside of the cottage. 25 There are a number of problems with this submission. 26 Not least is the fact that the safe system of work contended for was not part of the particulars of negligence pleaded. 27 The first part of the particulars of negligence asserted several breaches of statutory duty. These concerned a failure to provide scaffolding, fencing or other means of securing the safety of the plaintiff, a failure to provide a stepladder of the requisite height, a failure to securely fix the stepladder and a failure to fit a board to the stepladder's top end. None of these particulars related to the ground on which Mr Kennedy relied on before this Court. 28 The second part of the particulars of negligence alleged: "The plaintiff was required to work on the upper storey of a building being constructed by the second defendant, and to go to and from the upper storey was required to climb over a window opening onto a ladder. The bottom timber of the window opening was not securely fixed and gave way whilst the plaintiff was trying to get over it." This particular concerned the stepladder (not the absence of the extension ladder). Hence, the allegation that the plaintiff was required to climb over a window opening onto a "[step]ladder". The particular did not support an allegation of negligence based on a failure to provide a safe system of work in the terms contended for. 29 In the course of the hearing, an amendment was apparently allowed to the plaintiff's pleading. This amendment asserted (under the heading "Particulars of Breach of Contract") that: "The first defendant failed to provide on-site inspection of work sites upon which the second and/or third defendants engaged the plaintiff". Again, this amended particular did not assert a failure to provide a safe system of work in the terms now argued. 30 Apart from the pleadings, the expert evidence adduced on behalf of the plaintiff made no mention of a failure to provide a system of work amounting to the giving of instructions to the plaintiff to use the extension ladder and not to climb between the upper storey and the ground floor by means of the framework. The report of Mr Tozer, the plaintiff's expert, was predicated on the basis that there had been a failure to provide an extension ladder in the stairwell. This underlay the opinion expressed by him that a safe system of work had not been provided. 31 In his evidence in chief, the plaintiff testified that extension ladders were from time to time used in the stairwell. He said: "If we had the time we'd actually put them in the stairwell and use them in the stairwell". 32 The plaintiff said that on those occasions when Mr Apap wanted the apprentices to work fast there was no time to put the extension ladders in place. The apprentices would then use the "noggins" to climb up and down the framework so as to get to and from the upper storey. Noggins are boards placed as stiffeners within the framework. 33 According to the plaintiff, Mr Apap was present when the apprentices climbed up and down the noggins and he, Mr Apap, did not instruct them that they were not to do that. The plaintiff said that Mr Apap had not given him any instructions regarding climbing up and down the noggins. 34 While Mr Beggs, the other apprentice employed by Apap Construction, denied that he had climbed up and down the noggins, the judge appears (despite believing Mr Beggs in regard to the presence of the extension ladder in the stairwell) to have accepted that some persons did use the noggins to move between the ground floor and the upper storey. 35 Mr Kennedy submitted that this evidence showed that a dangerous system of work was countenanced on the site. He also submitted that this evidence showed that the use of such a system (climbing up and down on the noggins) was an issue at the trial. Mr Ellison, for HIA, and Mr Ronzani for Mr Apap and Apap Constructions (who both appeared at the trial) said that the evidence as to the use of the noggins was led only as an explanation as to why the plaintiff attempted to go from the upper storey to the ground floor through the window on the upper storey. They both said that the plaintiff's case at trial was not conducted on the basis that he was relying on a safe system of work involving the failure to instruct him not to climb on the outside of the building. It was difficult for Mr Kennedy to respond to this as he did not appear at the trial and nor did Mr Frame, his junior. 36 On my reading of the transcript, the submissions of Mr Ellison and Mr Ronzani on this issue must be accepted. It does not appear to me that the safe system of work now contended for was a matter that was properly before the Court at the trial stage. 37 Mr Kennedy submitted that Delaney DCJ had made findings as to the failure on the part of HIA, Mr Apap and Apap Constructions to provide a safe system of work in the terms I have described. This submission requires some analysis of his Honour's judgment. 38 At the commencement of the judgment his Honour set out the plaintiff's main complaint as follows: "In summary the plaintiff claimed that his injury occurred when he was instructed by Mr Apap to descend from the upper storey to the ground floor to undertake some specific tasks. He claimed that Mr Apap was a stern employer who had a gruff manner, required him to descend quickly to undertake that task and pursuant to that instruction he did so by descending the outside of the frame of the cottage. While he was doing so the window frame gave way and he fell. … It was his contention that although the accident occurred late in the afternoon of 1 December 1997 there was no ladder in place from the ground floor to the upper floor of the cottage to enable other employees or himself to move from one level to the other." 39 The judge then referred to the expert report of Mr Tozer to support the contention that the failure to provide proper access from one level of the construction site to the other was a breach of the duty of care. His Honour went on to deal extensively with this issue by reference to the absence or otherwise of the extension ladder in the stairwell. He made no reference at this stage of his reasons to a system of work involving instructions by Mr Apap to use the extension ladder and not to use the noggins. 40 Having found that the extension ladder was in the stairwell, the judge held, as I have said, that Mr Apap's "immediate manner" required the plaintiff to take the shortest route to fetch the bracing and this involved climbing through the window and jumping onto the top step of the stepladder. At this point his Honour said: "I find that this is something which he, the plaintiff, had seen other persons engaged in the job doing, that is climbing up and down the frame rather than using a ladder". 41 In my view, his Honour's reference to the plaintiff seeing other persons climbing up and down the frame was merely by way of explanation for the plaintiff's conduct. This statement by his Honour was not in the context of any discussion concerning a safe system of work. I would add, in passing, that the fall did not occur when the plaintiff was climbing down the frame by using the noggins. It occurred when he attempted to jump from the windowsill on to the top of the stepladder. 42 His Honour proceeded to state: "Mr Apap had a duty to take reasonable care for the safety of the plaintiff which included the giving of reasonable and appropriate directions as to the manner of conducting the work". This observation was made in the context of the finding that Mr Apap had given a negligent instruction that required the plaintiff, in effect, to climb through the window and jump onto the stepladder. It was again not a statement made in the context of any discussion about a safe system of work. 43 His Honour then turned to HIA and said: "Whilst there are obviously difficulties where an organisation is involved in building and providing services for apprentices such as this, and in relation to other training schemes, the duty on the promoters of such schemes remain liable [sic]. In my opinion this was a case in which, having regard to the nature of the industry involved and the risks that were involved in the type of work which was going to be undertaken by the plaintiff, that it was an obligation which the first defendant could not omit to enforce by continuous reference to the builder, and that in those circumstances the failure to properly ensure that the system of work which the plaintiff was undertaking was safe, it breached the duty of care it owed to the plaintiff which caused or contributed to the injury the plaintiff suffered. In my opinion, they did not give appropriate or relevant instruction and did not check that the work was being performed in a way which did not adversely impact on the ability of someone with as little experience as the plaintiff to be able to perform his work safely." These remarks are difficult to understand. Whatever meaning is attributed to them, they seem to be an explanation for the judge's finding that the conduct of Mr Apap, in causing the plaintiff to climb through the window, was conduct for which HIA was liable. 44 It is true that his Honour does in this passage refer to a failure on the part of HIA to "ensure that the system of work which the plaintiff was undertaking was safe". But the judge does not identify the system of work to which he was referring. The passage is all the more obscure because, although this phrase appears on page nine of his Honour's reasons, there is no prior reference in the reasons to any system of work or a failure to provide for one. 45 Accordingly, I do not accept that this reference to a system of work relates in any way to a system of work requiring the plaintiff to be instructed to use the extension ladder and not to attempt to go from the upper storey to the ground floor on the outside of the building. Looked at on their own, his Honour's reasons do not persuade me that an issue involving a safe system of work of the kind now contended for was a live issue at the trial or that he made a finding based on such a system of work. When one has regard to all the circumstances to which I have referred, the inference is overwhelming that the case was not fought on this basis. 46 Therefore, I would not uphold the argument based on the proposition that HIA, Apap Constructions and Mr Apap were negligent in failing to provide a safe system of work involving instructing the plaintiff to use the extension ladder and not to climb through the window and down the outside of the framework. 47 I would add, in any event, that – as I have observed – when the plaintiff fell he was not attempted to climb down the framework by using the noggins. He was attempting a method of getting down that was even more dangerous. That is, by lowering himself from the windowsill and then jumping onto the top of the stepladder. In other words, he did not follow the system of work on which Mr Kennedy relied and which he submitted was unsafe. 48 Plaintiff's Senior Counsel referred to Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301 to illustrate the obligation of the employer to provide and also to enforce a safe system. This does not bear on the present case, which does not relate to a system of work. At the trial it was not contended and it was not found that descending otherwise than by the extension ladder was a system of work. 49 Two other matters need to be addressed. 50 Firstly, although there was no notice of contention, the plaintiff's written submissions argued, in effect, that the judge erred in finding that the extension ladder was in the stairwell at the time. 51 Mr Apap's evidence in this respect was corroborated by the evidence of Mr Beggs, who was working on the site at the date of the accident. It was put to Mr Beggs in cross-examination that he "believed" that there was a ladder in the stairwell. He replied that he knew that there was a ladder. It was put to him that he knew that there was a ladder "because there always was". He replied in the affirmative. It was then put to him that he could not get up to the upper storey without a ladder. He agreed with this. It was then put to him that an exception to this would be if he climbed up the frame. He said, in effect, that he did not climb up the frame and there was always a ladder in the stairwell. Delaney DCJ accepted the testimony of Mr Beggs and, in my view, he was entitled to do so. 52 Secondly, counsel for the plaintiff submitted, by reference to evidence of Mr Apap, that there was a period when work was being done on the upper storey when there was no ladder in place in the stairwell void. Hence, it was said, the plaintiff might not have known of the presence of the ladder, and it was not established that he did have that knowledge. 53 From Mr Apap's evidence it might be inferred that there was a period during the morning of 1 December 1997 when work took place on the cottage without there being an extension ladder in the stairwell. Nevertheless, the plaintiff's case was not that he did not know that there was a ladder in the stairwell. Rather, he advanced an affirmative case that there was no ladder in the stairwell at all. Mr Beggs testified that there was "always" a ladder in the stairwell and the judge believed him. Furthermore, it was not put to Mr Apap or Mr Beggs that work was being done without a ladder having been installed in the stairwell. 54 In my view, none of the matter advanced on the plaintiff's behalf on this issue is persuasive. 55 In my opinion, negligence on the part of HIA, Apap Constructions and Mr Apap was not established. 56 I would uphold the appeal, set aside the judgment, verdict and orders made by Delaney DCJ. I would grant judgment in favour of HIA, Apap Constructions Pty Limited and Mr Apap and enter a verdict in their favour. I would order that the plaintiff (Mr Bartley) pay the costs of the trial and the costs of the appeal. 57 BRYSON JA: I agree with Ipp JA. ********** Last Modified: 04/05/2004 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.