Peter Raymond Millington v Max Wilkie t/as Max Wilkie Plumbing Servises & Anor [2003] NSWSC 969

New South Wales Supreme Court

CITATION : Peter Raymond Millington v Max Wilkie t/as Max Wilkie Plumbing Servises & Anor [2003] NSWSC 969 HEARING DATE(S) : 19/08/03, 20/08/03, 20/10/03 JUDGMENT DATE : 29 October 2003

JUDGMENT OF : Cripps AJ DECISION : Verdict for the first and second named defendants

CATCHWORDS : negligence - breach of statutory duties - causation LEGISLATION CITED : Construction Safety Act (NSW) 1912 Boyle v Kodak (1969) 1 WLR 661 H C Buchman & Sons P L v Flanagan (1974) 133 CLR 422 CASES CITED : Kolodziejczyk v Grandview P L [2202] NSWCA 267 O'Connor v Commission of Government Transport (1954) 100 CLR 225 Van Der Sluice v Display Craft P L [2002] NSWCA 204 PARTIES : Peter Raymond Millington - Plaintiff Max Wilkie t/as Max Wilkie Plumbing Services & Anor - Defendant FILE NUMBER(S) : SC 20408/02 T McKenzie - Plaintiff COUNSEL : M Neil SC and L Ellison - 1st Defendant A Hewitt - 2nd Defendant J P O'Neil & Co - Plaintiff SOLICITORS : Holman & Webb - 1st Defendant Curwood & Partners - 2nd Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Cripps AJ

29 October 2003

20408/02 - Peter Raymond Millington v Max Wilkie t/as Max Wilkie Plumbing Services

JUDGMENT 1 HIS HONOUR: The plaintiff Peter Millington claims that on or about 23 September 1997 while in the course of his employment with the first named defendant he was injured in circumstances entitling him to damages for breaches of common law duties owed to him and for breaches of various safety regulations made pursuant to the Construction Safety Act 1912 by the first and second named defendants. The first named defendant, his employer was undertaking plumbing work for the second named defendant which was the occupier of the place where the work was being undertaken. 2 At the time of his accident the plaintiff was working alone. He was injured when a ladder he was ascending slipped out from under him causing him to sustain a serious injury to the right calcaneus and an injury to his left leg. He has not worked since the accident. 3 The plaintiff, was born on 12 January 1953. He had worked as an apprentice plumber and journeyman plumber most of his working life. He had been a general foreman, foreman and leading hand and was experienced in, and understood the risks associated with, the use of ladders on construction sites. In particular he knew what should and should not be done prior to workmen ascending ladders. 4 As I have said at the time of his accident he was working for the first named defendant who, in turn, was undertaking plumbing work for the second named defendant under the Pyrmont Bridge. The work undertaken was the relocation of a downpipe which extended from ground level for a distance of 7 metres – 6 metres to the bottom of a gantry under the bridge and a further 1 metre beyond that. 5 The plaintiff gave evidence that when he and the first named defendant arrived at the site they became aware that the ladder, supplied for the work by the second named defendant, was too short to be used for all the work to be undertaken. The ladder supplied by the second named defendant had a maximum working height of approximately 5 - 5.4 metres. He said that the first named defendant said he would find a key to start the motor on the gantry and would get a longer ladder. According to the plaintiff he said before he left "Don't do any work and don't get on the gantry". 6 After the first named defendant left the plaintiff said he undertook certain work at ground level by placing up barricades and removing clips which secured the downpipe to the under-structure of the bridge. 7 He said that when the first named defendant returned he asked him to get some more barricades. The first named defendant left and returned a third time by which time the plaintiff had continued to do further ground work. He said that when the first named defendant returned again there was a discussion as to what was to happen next. According to the plaintiff he said "I showed Max and his father what my next step was that I intended to do. It was to go from the height of, say, 2 metres to the underside of those timber columns, which was approximately 4 metres, and remove the clips in that section". 8 It is apparent that if this version of the events is accepted the first named defendant and his father must have realised the plaintiff would use the ladder supplied by the second named defendant without any other person being present while the ladder was being used. 9 The plaintiff gave evidence that after the first named defendant and his father left he placed the ladder against the column. The feet of the ladder were not secured nor was the top of the ladder. As I have said the plaintiff was working alone. He said when he had ascended approximately 2 metres off the ground the ladder slipped out and he fell. 10 In cross-examination the plaintiff conceded that he understood the risks associated when using ladders and that one of the primary requirements was to make sure the ladder does not slip when being used. He was aware that a ladder could be tied at the base or could be held by another person and tied at the top. He knew that a worker should not ascend a ladder unless it was secured either by being tied or being held by another person. 11 He agreed that it was his decision alone to go up the ladder without it being secured but, as I would understand his evidence, he asserts that the first named defendant and his father knew what he was proposing to do but did nothing to prevent him. 12 That first named defendant gave evidence that he left the site to get a longer ladder. He said he told the plaintiff "Sit down and take it easy and don't get up the ladder". 13 He said he was away approximately one hour and when he returned he saw barricades had been put up and part of the lower section of the downpipe had been removed. He said he left a second time and again said repeated "Take it easy. Don't get up the ladder". His father Mr Wilkie Snr gave evidence. He denied being present when, as alleged by the plaintiff (par 7), the plaintiff had said he was proposing to use the ladder. 14 The first defendant said that when he returned the plaintiff told him he knew he shouldn't have got up the ladder. He denied that he said to the plaintiff on the first occasion "Don't do any work and don't get up the gantry". He said, however, he had never given the plaintiff any instructions as to how to get up and down ladders because he didn't think he needed to. He said that it simply did not cross his mind that the plaintiff would use a ladder alone. 15 It was put to the first named defendant that the plaintiff had said (in the presence of the first named defendant and his father) that he was, in effect, proposing to use the ladder and that the first named defendant did not tell him he was not to do that work. The question was asked: "Q: Did that conversation happen ? A: I don't recall that Sir Q: You unloaded the truck and then he said that you went back off and said to him 'Bye, I'll see you when I get back' and he was left alone. If the plaintiff had said to you before you went away, after smoko that he was intending to do work at between 2 metres and 4 metres from ground level whilst you were away what would you have said to him? A: I would have said no don't do it."