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." In further cross-examination it was put to him by Mr Mckenzie for the plaintiff: "Q: You say that that conversation which my learned friend put to you is something you don't recall? A: That's right Q: But it could have happened? A: I wouldn't have said it would have happened, it was a two man job if it was to be done a one man job for one man to be on the ladder I wouldn't have had Mr Millington there. Q: I think my question was - His Honour: Q: I think your question was you said you don't recall, it might have happened but you don't remember: Is that the way you put it? A: Well, I wouldn't have, I definitely would not have allowed him to go up the ladder without my help and I don't recall the conversation". 16 I do not take Mr Wilkie's answer "I don't recall" as meaning that the conversation, to his understanding might have occurred. Rather, as it would seem to me it was a denial of the conversation. I also record that I accept the evidence of Mr Wilkie Snr that no such conversation took place in his presence. 17 The plaintiff has not denied he told the first named defendant and Mr Bultitude, a Work Cover inspector, that the accident was his fault. In his summary of events which was admitted in evidence without objection the report of Mr Bultitude states: "Mr Millington an experienced plumber with some twenty six years experience has stated he was climbing a ladder to tie it off so he could undo some brackets to a four inch PVC downpipe when the ladder fell. He claims he was half way up the ladder when it fell. As a result of his accident the injured person suffered a broken left leg and broken right heel". Under the heading "Briefly Described Systems of Work Present at Workplace Prior to Accident " the report continued: "Both the injured and his employer have stated that Mr Millington was told not to climb the ladder. The employer was in the process of organising the use of a gantry working platform located on the underside of the Pyrmont Bridge and had told the injured person to wait until he had returned." 18 The inspector was of the view that the accident should not be further investigated because: "Injured person has stated he did not comply with employer instruction and this has been confirmed by the employer. Injured person has twenty years experience as a plumber and extensive experience using ladders". 19 Mr Bultitude said that the plaintiff had refused to make a formal statement. He recorded, however, that the plaintiff said that he believed that the accident occurred because he was "impatient" as he had been sitting around all morning. He agreed with Mr McKenzie that there was nothing in his statement "directly dealing with the direction not to use a ladder". Later he was asked by me: His Honour: Q: You have told me that you do not recall him telling you that he was told not to go up the ladder. Why did you put that in your report? A: I was paraphrasing with the inference that he was told to wait and not proceed with the work". 20 Mr Bultitude gave evidence, which I accept, that the ladder being used was of a type commonly in use at that time and that although he directed that the ladder be destroyed that was because it was damaged in the accident and not because, prior to the plaintiff's accident, it was unsafe. That is to say he regarded the ladder as suitable for use in the type of work he understood was being done provided that the ladder was properly secured. 21 If the plaintiff's version is accepted namely that he was told not to get on the gantry and later, at a second meeting, he told his employer he intended ascending the ladder to undertake dismantling work he would, in my opinion, have been entitled to a verdict notwithstanding that a serious question of contributory negligence would arise. But I do not accept the plaintiff's evidence. I find the evidence the plaintiff knew he should not have climbed the ladder in circumstances where it was not secured. Moreover, on the balance of probabilities, I conclude he was reminded by his employer not to mount the ladder. In my opinion and in the circumstances of this case the statement he made to the effect that the accident was his fault was a plain recognition by him that he knew that what he was doing was jeopardising his safety and that the "fault" to which he referred was the attempt by him to climb the ladder when it was neither secured at the top nor the bottom. It is unlikely in my opinion that he was told "not to get on the gantry" because the top of the ladder used by him would have reached only approximately 1 metre from the base of the gantry. Also, as I have said, I do not think the plaintiff told the first named defendant (either alone or in the presence of his father) that he was proposing to use the ladder by himself. 22 Mr McKenzie, on behalf of the plaintiff, has submitted that even if the plaintiff had been told, in terms, not to climb the ladder he has still made out his case in negligence because between the start of the work (when he was told not to climb the ladder) and smoko (about 1 hour later) he had undertaken some work and he was not "reprimanded" or "chided". This submission, in my respectful opinion, needs only to be stated to be rejected. The plaintiff was told he was not to use the ladder and again at smoko he was told not to use the ladder. In any event he knew as well as anybody else that he should not have used the ladder unless it was tied at the bottom or being held while he held it at the top. 23 Evidence was called on behalf of the plaintiff that the ladder used by the plaintiff was defective for the purpose for which it was being used. Dr Cook has opined that a ladder with swivel feet should have been used. He said that "without swivel feet the ladder would tend to slide slightly toward the pylon down the slope as the load was applied to the rungs, rather than slipping away from the pylon". The evidence of the plaintiff is not that the ladder slid forward toward the pylon. It is that the ladder slipped away from the pylon. Moreover, I do not think that the presence of swivel feet would have made any difference to what happened to the plaintiff. Dr Cook accepted that whether the ladder had swivel or fixed feet there was always a risk that the person who went up the ladder would be injured unless the ladder was secured. 24 On the findings I have made the plaintiff's case at common law fails either because, in the circumstances, there was no duty of care to tell the plaintiff what he already knew or if a duty could be implied it was not breached because the plaintiff was directed not to climb the ladder. 25 The first named defendant was undertaking construction work. There was a breach of regulation 80(6) because the ladder was not securely fixed preventing it from moving either from it's top or bottom points of rest and if that could not be done having a person stationed at the base of the ladder to prevent it slipping. There may also have been a breach of regulation 73 in that the means of access to the place where the plaintiff intended to work was not safe. But the ladder was not defective and it was destroyed after the accident not because it was regarded as being an unsafe piece of equipment but because it was in fact damaged in the accident. The breaches of the regulations occurred because the plaintiff elected to use the ladder as he did in disobedience to instructions and in circumstances where he was fully cognizant of the risks. In my opinion there should be a verdict for the first named defendant. 26 Upon the findings I have made there must, in my opinion, be a verdict for the second named defendants. The ladder provided by the second named defendant was suitable and safe for the purpose for which it was to be used. The plaintiff's injury was the result, not of defective equipment but because he misused safe equipment. The ladder was used in disobedience to instructions and in circumstances the plaintiff knew to be dangerous. 27 Accordingly there will be a verdict for the first and second named defendants. That being my finding there is no need for me to consider the cases sought to be made out by the first named defendant against the second named defendant and the second named defendant against the first named defendant. 28 Authorities: Boyle v Kodak (1969) 1 WLR 661 at 665 H C Buchman & Sons Pty Ltd v Flanagan (1974) 133 CLR 442 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 O'Connor v Commission of Transport (1954) 100 CLR 225 at 230 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 ********** Last Modified: 11/06/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.