New South Wales Court of Appeal CITATION: Skoric v Meriton Apartments Pty Ltd [2008] NSWCA 239 HEARING DATE(S): 22 September 2008 JUDGMENT OF: Young CJ in Eq at 1-27, 31; Campbell JA at 28, 30, 32, 34; Handley AJA at 29, 33 EX TEMPORE JUDGMENT DATE: 22 September 2008 DECISION: The appeal is dismissed with costs. CATCHWORDS: TORTS- Occupiers liability- Respondents as occupiers of building site- Appellant worker suffered serious injuries walking down a stairwell carrying a heavy trolley- At first instance focus on safety of stairs- Primary judge finds no fault with stairs- Pleadings faintly suggest that respondents are negligent in not providing lift services and co-ordinating movements of materials- Primary judge disposing of such allegation in few words- Held no error but even had that case been fully considered, there was insufficient material to demonstrate the liability of the respondents. Djordje Skoric (A) PARTIES: Meriton Apartments Pty Ltd (R1) Karimbla Construction Services Pty Ltd (R2) FILE NUMBER(S): CA 40410/07 COUNSEL: B Toomey QC and S Maybury (A) L King SC and W Reynolds (R) SOLICITORS: Albert A Macri Partners (A) McCabe Terrill Lawyers (R) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 86/2005 LOWER COURT JUDICIAL OFFICER: Delaney DCJ LOWER COURT DATE OF DECISION: 6 March 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40410/07 DC 86/05 CAMPBELL JA YOUNG CJ in EQ HANDLEY AJA Monday 22 September 2008 SKORIC v MERITON APARTMENTS PTY LTD Judgment 1 YOUNG CJ in EQ: This is an appeal from the District Court in which his Honour Judge Delaney found a verdict for the defendants/respondents in a claim by the plaintiff/appellant for damages for personal injury. 2 Whilst there were two defendants below and two respondents in this Court, the primary judge found they were each occupiers. Both in the court below and on appeal, they can be considered as one. 3 The basic facts which are not in dispute are that on 22 May 2002, the appellant who was then 58 years of age was working on the World Square building in Goulburn Street, Sydney. He had come to work at about 7.30am and somewhere between 7.30am and 9am, possibly about 8.30am, the foreman, a man who was identified as Zoki, instructed the appellant and another man, Mr Maodus, that they were each to take a small trolley known as a "dolly" down to the 18th floor as a matter of urgency. They were working at that stage on the 19th floor of the building which was under construction. 4 The dollies each weighed about 35 kilograms and would need to be carried in both hands. The reason for the movement from the 19th floor to the 18th floor was that the dollies needed to be filled with gypsum which at the time of the request appears to be coming up from ground level by crane and the crane needed to be discharged of its load. 5 The appellant and Mr Maodus took their dollies to the bank of two workers' lifts. They communicated with the driver who was an employee of the respondents that they wished to board. However, they say that twice as the lift passed empty on their floor going down, the driver waved in a manner to indicate that he would not pick them up. There was evidence before the learned primary judge that there was a rule that before 9am, the workers' lifts were to be used for conveying workers from the ground level to their working area and were not to be delayed by carrying workers from floor to floor. 6 However, there was evidence from management that there was no such rule; his Honour never made any factual finding on this. 7 The workers who gave evidence seemed to think that there was such a general rule, but that, from time to time, the employee who was driving the lift would not observe it and would pick them up. 8 Doubtless, in this hope the two men approached the lifts and waited. They say that after two refusals they realised that their foreman wanted the load removed promptly, indeed they could see that the crane with the load of gypsum was waiting on level 18 to be speedily unloaded and they realised that the only way they could get to level 18 was to carry their dollies down the stairs. 9 The stairs were internal stairs, fully finished, and although the appellant had alleged otherwise, the learned primary judge found no defect in them nor any obstruction on them. Indeed the appellant and others had used the steps carrying loads on previous occasions without problems. There was a landing halfway down the stairs between the 19th and 18th floors, the appellant had just reached a point below that landing when he slipped and fell and quite seriously injured himself. 10 The appellant sued the occupiers of the building and there was some dispute before the learned primary judge as to who was the occupier; his Honour held that both the first and second respondents were the occupiers. There has been no cross-appeal on this finding and I have just referred to them as the respondents. 11 Before us the appellant says that there were two prime issues before the District Court: (a) (i) that the respondents as occupiers were negligent in not providing sufficient lift service to allow workers to transport goods; or (ii) that the respondents as coordinators of the site so carelessly arranged the programme that there was not coordination between those who needed to have loads moved from floor to floor and the lift service; and (b) that the occupiers were negligent in not providing safe stairs for the workers to carry goods. 12 The respondents denied liability and also pleaded contributory negligence. They also sought the court to apply s 151Z of the Workers Compensation Act 1987 to reduce any damages that they might be ordered to pay. 13 On the appeal, Mr B Toomey QC and Mr S Maybury appeared for the appellant, Mr L King SC and Mr W Reynolds appeared for the respondents. 14 The learned judge had found for the respondents on what I have called (b) above and that finding is not the subject of the appeal. Mr Toomey said that the main ground of the appeal was that his Honour did not accord the appellant procedural fairness in that he did not properly consider the case involving the lifts, particularly the case as to failure to coordinate. 15 There were two principal problems in the way of that argument. As Mr King said with respect to (a)(ii), it was not pleaded, it was not part of the case and even if it was, it was not proved. Mr Toomey says that was far from correct and that if one looks at the pleadings and the way the case was run (particularly the way the appellant below put it at p 208 of the Black Book), those matters were put before the judge. Thus we have here a situation where the appellant lost the case and really does not know why, and that is not the way in which litigation should be conducted. 16 If one looks at the amended statement of claim which is on pp 56 and following of the Red Book, one would find it very difficult to realise that either case (a)(i) or case (a)(ii) was before the court. The only matters appear to be in para 10 (c) where there is a pleading that the respondents are responsible for the safe use (of stairs) by workers moving between floors carrying heavy objects where there might be slippery substances accumulating on the floor by reducing the risk of slipping. The words "reducing the risk of slipping" are to my mind directed to the staircase rather than to the case involving coordination or the use of the lifts. 17 Then particulars of negligence are given in connection with para 16. Again all of them, except possibly (d) and (e), are particulars that go to the case involving the stairs; (d) and (e) are in general terms, namely: "(d) failing to provide a safe place of work for persons working on the site; and (e) failing to provide safe access to all places at which workers were obliged to work." 18 Again, there is nothing that would make an objective reader think that what was being put was the case that Mr Toomey outlined to us, that is, although the appellant was an employee of a sub sub-contractor, the respondents were the occupiers of the building and were in overall control of everything, including the coordination of cranes and lifts. Thus it was up to the respondents to see that things were safe for the workers so that there was not the problem that came about in this particular case. He says the respondents must have known that equipment like dollies would be being moved from floor to floor yet they allowed the unsafe situation to continue. 19 On appeal, the emphasis was not so much on (a)(i), that is that the lift service was unavailable to the workers before 9am. The notice of appeal states that the learned primary judge misunderstood the appellant's case that the unavailability of the lifts forced the appellant into the perilous course of taking the stairs carrying a 35 kilogram trolley and that his Honour wrongly thought that that part of the appellant's case was "faintly argued" and peripheral and his reasons for rejecting that part of the case produced procedural unfairness. It also complained that the learned primary judge wrongly held that the appellant had not established any causal connection between the unavailability of the lifts and the appellant's fall in the stairwell. 20 I have doubt as to whether that matter was sufficiently drawn to the attention of the judge making the decision for that to be fair comment. It is the obligation of parties who wish to make a case to put their best foot forward and to make it completely plain to the learned judge what are the matters that he or she have been asked to determine. Even though I have read again what is on pp 208 to 209 of the Black Book, one can see that possibly case (a)(i) was before the judge but it is very difficult indeed to say that case (a)(ii) was before the judge. 21 It is certainly correct that if one trawls through the evidence one can see some material which would base an argument to establish (a)(ii) but the appellant has got to do more than that. It has to direct the mind of the judge by the pleadings, the evidence and the addresses to the points that need to be determined. Even if the matters were properly before the judge, it does not seem to me that on the material that either case was made out in connection with what I have called point (a). 22 Mr Toomey pointed out it had been put to the primary judge that even if he found that the stairs were the best stairs in the world, to walk down them, carrying a heavy and awkward weight without a handrail (because the load needed two hands to hold) was dangerous in itself and it was thus unreasonable to refuse the appellant the use of the lifts. 23 Mr King put there was no evidence to support an inference that there was no justification for the lift driver to decline to accommodate the appellant and even if the situation were otherwise, there was no causal connection between the lift driver's refusal and the appellant's injury. The lift driver's refusal is merely a "but for" feature of the sequence of events. 24 It seems to me that the respondents' submissions ought to be upheld. Maybe carrying the load down the stairs was awkward but it had been done before, the stairs were in good condition on the fact that the judge found them and there was nothing perilous about carrying out that particular task. Doubtless using the lifts would have been easier and had the lifts been available, the accident would not have occurred, but this in my view is not enough to demonstrate liability on the part of the occupiers. 25 It is true that the learned judge did not direct his mind to the question of coordination but there was really no sufficient material to enable the judge to find for the appellant on this part of the case, if it was part of the case before him, we just do not know what arrangements were made for the delivery of gypsum at 8.30am on this particular day. We do not know if that was by prior arrangement, nor do we know if there was some communication problem and whether that was the communication problem of the appellant's employer or of the respondents'. There was no material before the judge to enable him to decide whether there was a "not before 9am rule". It was a rule that was adopted without consideration as to its implications and indeed it seems from the evidence that was before the judge that no-one ever said that if there was such a rule it was an unreasonable rule. 26 In my view even if case (a)(ii) were properly before the judge, the material before him was not sufficient to enable the appellant to succeed, but in the circumstances it does not appear to me to be any need for the learned primary judge to have dealt with the claim about the lifts in any more detail than he gave. Accordingly I would dismiss the appeal with costs. 27 There was a cross-appeal on an aspect of the case. It is unnecessary to deal with that in light of my view on the appeal. The learned primary judge also found 30% contributory negligence if he were wrong on the primary question. Mr Toomey properly says that that was a finding of contributory negligence as to the case involving inadequate lighting of the stairs and it is not to be taken as a finding that on the lift count the same would be found. I think that is right but again it is unnecessary for me to deal with it. Accordingly I am of the view that the appeal should be dismissed with costs. 28 CAMPBELL JA: I agree with the orders proposed and with the reasons given for them. 29 HANDLEY AJA: I also agree. I would only add that the plaintiff called the foreman, Zoki Kakozakov, without asking him how it came about that at 8.30 on the morning of the accident these dollies had to be moved urgently from level 19 to level 18 and did not ask any questions to establish that his situation had arisen urgently as a result of the direction from the head contractor. The defendant called Mr Russell, the construction manager, employed on this site by the head contractor who said that he was the person with the overall day to day control of the development. He was asked no questions in cross examination to establish that the situation that lead to the urgent instruction from the foreman Zoki to move these dollies to the lower level had arisen as a result of any action or failure of action on his part. In these circumstances it is clear in my view that the case was never run as a case where the head contractor failed to adequately coordinate the trades and the movement of goods onto this site. 30 CAMPBELL JA: I also agree with the supplementary reasons of Justice Handley. The orders of the court will therefore be those proposed by Justice Young. [Mr King made submissions on costs] 31 YOUNG CJ in EQ: Since giving reasons it was drawn to our attention that there has been what is called an offer of compromise, that is if the appeal was withdrawn the parties could pay their own costs. There must be great doubt as to whether that is an offer of compromise, whether it is or not would to a great degree depend on the time in which it was made and how far the costs had been expended at that time. However, we are not able to be informed of that fact today. Mr King has asked for time to put in further written submissions. However, the court is under an obligation to deal with cases justly, cheaply and expeditiously. There is no reason why that material was not here today and I do not think it is appropriate that we should extend the hearing of this case any further to enable that time to be given and on the material that is before us, there is no sufficient reason to make any special order for costs. 32 CAMPBELL JA: I agree. 33 HANDLEY AJA: I agree. 34 CAMPBELL JA: The orders of the court remain those earlier put out. *********************** 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.