Judgment date: 15 February 2011

Ilvariy Pt y Limited t/as Craftsman Homes v Sijuk [2011] NSWCA 12

Court of Appeal1

In Brief

  • An on-site builder owes a duty of care to make the site safe for sub-contractors working on site.
  • An occupier is entitled to expect that a tradesman will deal with dangers or defects within his particular expertise but this does not discharge a builder's duty to exercise reasonable care for the safety of the building site of which it has possession.

Background

The plaintiff was an experienced workman who carried out work as a brick cleaner. He was employed by his wife who carried on a cleaning service called Rosa's Cleaning Services. On Saturday 3 April 2004 the plaintiff suffered personal injury when he fell through a hole in the scaffolding on a building site.

The plaintiff sued the owner/builder of the subject house who had possession of the site, Ilvariy Pty Limited t/as Craftsman Homes (defendant).

It was accepted that between Wednesday afternoon, and the Saturday morning of the plaintiff's accident, an unknown person or persons moved a 600mm x 600mm piece of scaffolding from its position thereby leaving a gap in the scaffold. The scaffolding was erected by Uni-Roof (Hire) Pty Limited, and had a sign on it which said that it was safe.

Supreme Court Decision

The trial judge, Hall J, rejected the defendant's argument that it had not been told that the plaintiff would be working on the Saturday in question, and that had it been told, they would have inspected the site including the scaffolding. The trial judge found that this type of work was often done on a Saturday and that the defendant was well aware that the work may have been done on this particular Saturday.

In relation to duty of care the trial judge found that:

"The defendant, as the on-site builder and organiser of sub-contractors, had the principal responsibility to take reasonable care to make the site safe for the performance of work by such sub-contractors including Rosa's Cleaning Services and the plaintiff. The duty of care in that respect extended to the provision of safe means of access for sub-contractors, including the scaffolding on site. The defendant's duty of care extended to those who might reasonably be expected to perform work on Saturdays."

In relation to breach of duty of care the trial judge found that:

"The factual matters included, firstly, the absence of any clear arrangement for the performance of work including the failure by the defendant to co-ordinate the plaintiff's work for a particular day, secondly, a failure to carry out an inspection of the site and, thirdly, the existence of a gap or hole in the scaffold. The evidence, in my opinion, clearly establish a breach by the defendant of its duty of care to provide a safe place of work and a safe means of access to the work to be performed by the plaintiff. That breach of duty was causative of the plaintiff's accident."

The trial judge therefore found in favour of the plaintiff, but made deductions of 15% for contributory negligence, and a further 10% for the notional liability of the plaintiff's employer (his wife) pursuant to s 151Z of the Workers Compensation Act 1987.

Court of Appeal Decision

The first ground of appeal was that the trial judge misdirected himself as to duty by positing a duty in terms of that owed by an employer. In particular, the defendant relied upon the following comments of Brennan and Dawson JJ in Papatonakis v Australian Telecommunications Commission2 at 30:

"...where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind."

Whilst agreeing that the duty of care owed by the owner/builder was distinct from that owed by an employer, Allsop P, who wrote the leading judgment for the unanimous Court of Appeal, rejected the defendant's argument that the plaintiff should have exercised due care for his own safety by examining the scaffolding before he began work and uncovering any defect himself. In rejecting this submission Allsop P held that:

"This way of putting the matter transforms contributory negligence into a complete defence to the claim."

Allsop P stressed that tradesmen of the plaintiff's class are not accustomed to dealing with dangerous scaffolding, especially scaffolding that was said by a sign to be safe. Whilst Allsop P agreed that an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with, he also held:

"That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession."

Allsop P further held:

"No doubt, in some respects, a person who retains an independent contractor can expect the latter to decide how to do the task and what safeguards to put in place. This does not include leaving it to the contractor to find the danger in scaffolding at a building site that reasonable care by the builder/occupier would have found and eliminated."

The defendant also appealed in relation to the trial judge's finding of 15% contributory negligence on behalf of the plaintiff, and 10% notional negligence on behalf of the employer for the purposes of s 151Z of the Workers Compensation Act 1987. Whilst accepting that these assessments were at the lower end of the range, Allsop P did not find that they were outside the range and accordingly declined to overturn the trial judge's findings on both issues.

The defendant's appeal therefore failed on each and every ground.

Implications

The duty owed by a builder to contractors on-site is not akin to the non-delegable duty of care owed by an employer to an employee. The duty owed by a builder is to exercise reasonable care to avoid exposing people coming onto the site to a risk of injury from dangerous conditions which exist on the site. In circumstances where a builder makes no attempt to ensure on-site work and safety procedures, it is likely that there will be a finding of breach of this duty by the builder.

At the same time the Court of Appeal also made it clear that there will still be cases, such as the Papatonakis case, where non-employer occupiers will not be under a duty of care to give warnings of particular defects to independent contractor tradesmen of the class that are accustomed to meeting and safeguarding themselves against that particular defect. The Court of Appeal made it clear that each case turns on its own facts, and clearly this was not such a case.

The Court of Appeal's decision to uphold the trial judge's finding of 15% contributory negligence, and assessment of the employer's notional liability of 10% once again reinforces the difficulties of overturning evaluative judgments that involve the exercise of discretion and where those assessments are "within the range".

The apportionment of liability between an employer and non-employer tortfeasor is to be determined on the circumstances of each case by considering the extent to which each party's breach of their respective duty of care was causative of the harm.

1 Allsop P; Hodgson, Whealy JJA
2 [1985] HCA

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.