Daly v D A Manufacturing Co Pty Ltd & Anor [2003] QCA 274

SUPREME COURT OF QUEENSLAND CITATION: Daly v D A Manufacturing Co P/L & Anor [2003] QCA 274 PARTIES: STEPHEN DENNIS DALY (plaintiff/respondent) v D A MANUFACTURING CO PTY LTD ACN 010 219 717 (first defendant/appellant) LETZBUILD PTY LTD ACN 070 914 395 (second defendant) FILE NO/S: Appeal No 10104 of 2002 SC No 7502 of 1999 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 4 July 2003 DELIVERED AT: Brisbane HEARING DATE: 11 April 2003 JUDGES: Williams and Jerrard JJA and Fryberg J Separate reasons for judgment of each member of the Court, Jerrard JA and Fryberg J concurring as to the orders made, Williams JA dissenting in part ORDER: 1. Appeal allowed 2. Substitute the amount of $240,957.00 for the amount of $370,392.84 originally ordered to be paid 3. Give the parties leave to make written submissions as to costs within 14 days of publication of this judgment CATCHWORDS: TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – where respondent fell from ladder not fitted with rubber feet – where learned trial judge found that appellant breached duty of care owed to the respondent – where appellant contends respondent did not exercise reasonable care in inspecting the ladder – where learned trial judge did not find that the defect was obvious even upon a casual inspection – whether conduct of respondent can be excused on grounds of inattention born of familiarity with a task – whether respondent contributorily negligent in failing to check safety of ladder -- 1 of 17 -- 2 DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – LOSS OF EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where respondent continued to work in occupation as a builder after suffering personal injury – where respondent now has decreased capacity for manual labour and employs a labourer to assist with his work – where this expense would not exist had the respondent not suffered personal injury – where evidence before learned trial judge established need for services – whether amount awarded to compensate respondent for this need excessive DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – where appellant complains that amount of Griffiths v Kerkemeyer damages awarded to respondent excessive – where amounts allowed at relatively standard rate – whether sums awarded by learned trial judge reasonable on the evidence Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, referred to Griffiths v Kerkemeyer (1977) 139 CLR 161, applied Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; CA No 40895 of 2001, 14 August 2002, distinguished O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, referred to Perre v Apand Pty Ltd (1999) 198 CLR 180, followed Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, referred to Smith v The Broken Hill Proprietary Co Ltd (1957) 97 CLR 337, referred to Sullivan v Moody (2001) 207 CLR 562, applied Tame v State of New South Wales (2002) 191 ALR 449, applied Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; CA No 40594 of 2001, 9 July 2002, distinguished Van Gervan v Fenton (1992) 175 CLR 327, applied COUNSEL: G W Diehm for the appellant S C Williams QC with P A Howard for the respondent SOLICITORS: Michael Stewart for the appellant Primrose Couper Cronin Rudkin for the respondent [1] WILLIAMS JA: The facts relevant to the disposition of this appeal are set out in the reasons for judgment of Jerrard JA and I will not restate them. The learned trial judge was correct in concluding that the appellant breached the duty of care which it owed to the respondent; for the reasons given by Jerrard JA the finding that the appellant was negligent must stand. -- 2 of 17 -- 3 [2] I also agree with the reasons given by Jerrard JA for reducing the amount allowed for future economic loss sustained by the respondent from $258,870.82 to $129,435.00. [3] The appellant also challenged the amounts allowed for past and future care, ($20,958.00 and $40,000.00 respectively), and an amount of $5,300.00 included in the award under the heading out of pocket expenses for the cost of vitamins and natural anti-inflammatory medication. There is some force in the submissions advanced on behalf of the appellant, but I have come to the conclusion that on the evidence the learned trial judge was entitled to make the findings which he did. The amounts in question are not unreasonable and their allowance ought not be disturbed. [4] However I differ from Jerrard JA on the issue of contributory negligence. As Jerrard JA has pointed out in his reasons for judgment the learned trial judge ought to have made the finding that the defect in the ladder (the absence of rubber feet) was obvious to anyone making even a casual inspection of it. All the evidence before the learned trial judge, including that from the experts called on either side, established that. [5] The learned trial judge said in his reasons for rejecting contributory negligence the following: “Detection of the defect by tradesmen likely to use the ladder in the course of their activities on a busy building site was unlikely. It was to be expected that a tradesman such as the plaintiff would, without making an inspection of the ladder, use it to gain access to the position of the subject tie. The mere fact that the ladder had been placed in position for such access would suggest to persons such as the plaintiff that it was ready and suitable for use. The plaintiff, having regard to his prior experience on other building sites over a period of years and on this building site, had no reason to suspect that the ladder was potentially unstable.” [6] The contention of the appellant is that if the respondent had exercised reasonable care for his own safety by inspecting the ladder, he would have been aware of the significant risk associated with using it. The respondent did not place the ladder against the wall; it was already there. The evidence did not establish who placed it there, or how long it had been there. Clearly the respondent was not aware of those matters, nor was he aware of when someone had last used the ladder. Given all of the dangers associated with using a ladder, and these were highlighted in the evidence of the experts, an experienced builder such as the respondent should have made some check of the ladder before he climbed it. All the evidence suggests that he saw the ladder in a position which would give him access to the point on the wall where he had to perform work, and that he climbed it without making any inspection or checks as to its safety. The ladder could not be tied off at the top and that was known to the respondent. A reasonable builder knowing that, would check the suitability of the ladder, including how its feet were placed, before climbing it. If such a check was made the respondent would have become aware of the absence of rubber feet, and would either have used another ladder or taken specific steps to ensure that the ladder would not slip whilst he was climbing on it. Various ways were mentioned in the evidence as to how the footing could have been secured. -- 3 of 17 -- 4 Precautions not always necessary become of greater importance when it is known the ladder is defective. [7] The conclusions of the learned trial judge quoted above are not supported by the evidence, particularly that of the experts called by either side. Once it is accepted, as it must be, that the defect (the absence of rubber feet) was obvious to anyone making even a casual inspection of the ladder, the findings made by the learned trial judge cannot stand. There is nothing in the evidence to support a finding that a reasonable builder seeing a ladder leaning up against a wall would assume that it was ready and suitable for safe use without making any check, such as a visual examination of it. It may well be different if the intending user was the person who had placed the ladder there at an earlier point of time and had used it safely at that time. But given the evidence in this particular case it was negligent for the respondent to have used the ladder without making any check to ensure it could be used safely. [8] This is not a case where the conduct of the worker can be excused on grounds of inattention born of familiarity with the task, or because of preoccupation with other matters. [9] Counsel for the appellant contended that if contributory negligence was found the degree of fault attributable to the respondent should be equal to that of the appellant. The apportionment of liability is always a matter of degree and involves a balancing exercise. To my mind the conduct of the appellant in bringing a defective ladder onto the site should attract a greater percentage of blame than the conduct of the respondent in failing to make the check I have referred to. In the circumstances, having regard to all of the evidence, the respondent should have been found guilty of contributory negligence to the extent of 25 percent. [10] The appeal should therefore be allowed, the judgment appealed from be set aside, and in lieu thereof there should be judgment for the respondent in the sum of $180,717.00. [11] JERRARD JA: On 11 October 2002 an order was made in this court that the respondent/plaintiff Stephen Daly recover damages of $370,392.84 against the appellant/first defendant, D A Manufacturing Co Pty Ltd, together with ordered costs. That judgment was for damages in consequence of an injury Mr Daly sustained on 28 August 1997, when Mr Daly, then a self employed builder carrying out his trade through his wholly owned company Daly Constructions (Queensland) Pty Ltd, fell from a ladder owned by the appellant. The injury occurred at a work site where the respondent was engaged as a contractor, and the ladder had been placed in the position in which the respondent used it by an employee of the appellant. The respondent’s injuries resulted from his falling some four metres onto a concrete floor. At that time the appellant and respondent had each been separately contracted by the owner of the work site to perform building works there. The appellant asks this court to reverse the judgment in the respondent’s favour, or to substitute a judgment in which the respondent’s damages are reduced by 50% on account of contributory negligence; and in any event argues that the quantum of damages should be reduced. [12] The issues raised by the appellant focus firstly on what are described as errors in the findings of fact by the learned trial judge. The appellant then submits that the -- 4 of 17 -- 5 findings which should have been made would lead to the conclusion that either no duty was owed by the appellant to the respondent in the prevailing circumstances, or that any duty owed had not been breached. The findings made relevant to liability which are complained of are set out in grounds 2(a) to 2(f) of the Notice of Appeal. The like findings which it is said the judge should have made appear in grounds 3(a) to 3(e). Additionally, the appellant asserts that the trial judge erred in finding that the plaintiff would suffer financial loss in the future in consequence of the injuries suffered in the fall. The trial judge had assessed that as amounting to two thirds of the cost of employing one labourer, allowed over a period of 25 years. The appellant said the learned judge should have found that the plaintiff was unlikely to suffer any further loss of income by reason of his injuries, and should not have received that percentage cost of employing a labourer. Finally, the appellant complains that the judge erred in allowing damages for domestic assistance beyond the first three months after the accident, and for allowing an amount of $5,300.00 as special damages, that sum representing the cost of vitamins and anti-inflammatory medication purchased by the respondent. Background Matters [13] The uncontested evidence included that the respondent through his company had been engaged to install panel ties between concrete wall slabs in a building being erected. The floor slab for the building had been poured and pre-cast concrete walls erected on poured concrete footings which surrounded that slab. Between the inside edge of each wall piece and the slab was a depression 1300 mm wide and between 200 and 250 mm in depth. [14] The work upon which the respondent was engaged required the placement of steel plates as ties across the panel joints of each wall to lock particular panels together. On 28 August 1997, the respondent was working on the last wall of the building to be fitted with those ties. By that time between 40 and 50 ties had been installed. The respondent had climbed the appellant’s extension ladder while carrying a steel plate, to ascertain if holes already drilled in that steel plate needed alteration when matched with ferrules in the erected wall panel. The foot of the extension ladder the respondent climbed rested on the concrete slab about 1,500 mm out from the wall. The height of the tie to be inserted was 5.5 metres from the ground, and the top of the ladder was positioned just under the tie point and about 2 metres below the top of the panel. [15] The respondent had established that the drilled holes in the steel plate did need alteration, and had dropped the plate to the concrete floor where his father, who was working with him and apparently employed by Daly Constructions, was tasked to take the plate outside and drill fresh holes on the plate as marked by the respondent. The respondent remained waiting on the ladder with his feet some four metres from the ground. He felt the ladder slipping away from the wall and fell, injuring his left ankle. [16] The appellant was the contractor who was erecting the structural steel framing for the building. Its employees had bought onto the site the ladder from which the appellant fell. The respondent’s company had itself hired two ladders for use by the respondent and other company employees, and had bought those ladders onto the site. The learned trial judge’s unchallenged findings included that on that site, as on others, persons working there made use of any conveniently located ladder -- 5 of 17 -- 6 irrespective of ownership of it. That applied to the respondent and to his company’s other employees on site, and to the appellant’s employees. The ladder from which the respondent fell had actually been placed at and in the exact position in which the respondent used it, finding it convenient, by one of the appellant’s employees. The work the respondent performed required repositioning a ladder when each panel was tied, and his evidence was that “we” had always positioned the ladder on the flat concrete surface about 1,450 mm to 1,550 mm out from the wall, that is, not with the foot of the ladder resting in that gap or hole 1,300 mm wide between the wall and the edge of the concrete slab. [17] The position in which the respondent was working meant that the ladder could not have been “tied off” at its top. That ladder had no “rubbers” or grips on the bottom of the feet of the ladder. The respondent’s father pointed that fact out to the respondent immediately after the fall, and to score or scuff marks left by the feet of the ladder as it moved outwards and away from the wall. Expert evidence called by the respondent established that ladders are usually fitted with inflexible hard wearing plastic “feet” or “rubbers”, but either this one was not or they had been removed. A witness with unchallenged expertise in industrial safety called by the respondent, a Mr King, referred in a report admitted into evidence to the contents of a Falls from Heights Advisory Standard 1 , which advisory standard stated that ladders should be designed in accordance with AS 1892.1. Section 2.5.3 of AS 1892.1: 1996 states that: “Feet shall be fitted to the bottom of each style in the bottom section of the ladder and may be fixed or hung. Feet shall comply with the following requirements: (a) the feet shall be manufactured from or faced with a material which will resist deformation and slipping; (b) the feet or surfacing material shall be securely fixed at the styles but may be removable for renewal”. Mr King advised that s 9.3.10 of that standard specified that foot friction tests required “…the coefficient of static friction between the foot and the test surface shall be less than 0.5”. [18] Mr King’s evidence was that a ladder with rubber or synthetic feet would provide a much better grip than one with an uncovered aluminium foot, as had the ladder in question. He opined that if the ladder had been fitted with synthetic feet it would have provided a significant safety margin, as the foot of the ladder would have had to move out a further 700 mm from the wall before the coefficient of friction was overcome. Mr King’s report advised that in his experience the coefficient of friction between aluminium and concrete was very low, and the measurements made by him with an aluminium extrusion on steel trowelled concrete floor gave a COF of 0.3. An expert witness called by the appellant, a Mr Gilmore, agreed in cross examination that an extension ladder without fitted “feet” on a building site was clearly defective and contrary to Australian Standards, and to good practice. [19] Mr King’s report also described how the applicable Australian Standards stated that single and extension ladders should be placed so that the horizontal off set between the top and foot of the ladder was “approximately one-quarter of the supported length of the ladder”, which Mr King’s report said described an installation angle of 1 At AR 232 -- 6 of 17 -- 7 75.5 degrees to the horizontal. The respondent’s description of the work he was performing and the position in which he regularly placed the ladder was calculated by Mr King to be at about 75.9 degrees to the horizontal, and thus in accordance with normal operating procedures. The slightly steeper angle would be expected by Mr King to reduce the tendency to slip if an adequate COF had existed. Findings by the Learned Trial Judge [20] The description of the evidence given so far has been of matters not in contention. The findings by the learned trial judge in [19] of his reasons included that:
the first defendant had brought a defective ladder onto the site;
the detection of that defect by trades persons likely to use the ladder on a busy building site was unlikely;
it was to be expected that trades persons such as the respondent would use the ladder without inspection of its feet;
the fact that the ladder had been placed in position by the appellant’s employees would suggest that the ladder was ready and suitable for use;
the respondent had no reason to suspect the ladder was potentially unstable; and at [7] of those reasons that:
the appellant knew or ought reasonably to have known the ladder was likely to be used by other work persons on the site including the respondent; and in [17] that:
had the ladder been supplied with “rubber” feet the accident would probably not have occurred. Findings Challenged on Appeal [21] Regarding the last finding, the appellant’s written outline advised that it did not challenge the finding that the absence of synthetic feet on the ladder was a contributing cause to the ladder slipping. Its argument on appeal seemed to challenge the third and fifth of those seven described findings but not the others. I turn to the specific findings by the learned trial judge that were challenged in the appellant’s Notice of Appeal. [22] In ground 2(a) the appellant asserts that the learned judge erred in finding that had the ladder been placed inside the area of depression, its angle would have been too steep for safety. The appellant points to evidence given by Mr King in cross examination that the calculated angle of the ladder placed in that gap with its feet resting against the floor edge (and thus “dropped” downward by about 200 mm), and further extended upwards by approximately 200 mm so that it reached the same point upon which to rest, would have been an angle of 76.5 degrees, which Mr King considered “perfectly acceptable”. 2 2 AR 110 -- 7 of 17 -- 8 [23] That was Mr King’s opinion. The respondent, who was the person using the ladder, said clearly in both evidence in chief 3 and in cross examination4 that he thought that ladder so placed would have been “too steep”. That the respondent held that opinion is demonstrated by his unchallenged evidence that the ladders used on the 40 or 50 occasions when the earlier ties had been installed were all placed on the concrete floor rather than in the depression. The respondent’s evidence described nearly 20 years experience in the building industry. Despite Mr King’s opinion the learned judge was entitled to accept the contrary opinion of the experienced person who had used the ladders at that site, and the finding made was reasonably open. [24] The appellant then complains in ground 3(b) of the further finding, in the same paragraph [10] of the reasons for judgment, that: “Apart from that, there was evidence that the surface of the depression was uneven. That unevenness would constitute another risk factor were the ladder to be positioned in the depression”. The appellant points to evidence that the respondent had the option, for example, of putting a length of timber in the depression and under both feet of the ladder. It does not quarrel with the respondent’s description of the depression as having “crusher dust” in it, apparently supplied for (later) levelling purposes, and “very uneven” 5 at the relevant time. The respondent’s evidence was that he expected the ladder would have sunk somewhat in that dust. [25] The respondent expressed the view in cross examination that putting a board under the ladder would not normally be done on a job site, because unless the timber was very wide the timber plank could roll, and the ladder slip. Mr King's evidence supported the notional use of a plank provided it was bedded in 6 , and Mr Gilmore was of the same view 7 . The evidence just described means that the finding by the learned judge was open, but the finding did not acknowledge the possibility of bedding in a plank. However, the complaint made in ground 2(b) has little relevance when the finding complained of in 2(a) was reasonably open to the judge. [26] Then there is the complaint made in ground 2(c) that the finding in [10], that: “….the submission that the ladder should have been held in place by another person is rather unworldly. Such a precaution does not accord with practice on building sites unless there are signs of obvious instability”, was an error. That finding did reflect the respondent’s evidence that he had not seen a ladder being so “footed” by another person on a flat surface in his 20 years experience on building sites; in that experience, it was when a surface was unstable or the use of a ladder otherwise risky, that the ladder would be tied off or “footed” in some way. As against that, Mr King’s advice in his report 8 was that the ladder could have been “footed” by Mr Daly’s offsider (who was his father), and that footing of the ladder by the offsider would help control both lateral movement as well as rearwards slipping of the feet. 3 At AR 52 4 At AR 78 5 AR 79 line 38 6 At AR 110 7 At AR 114 8 At AR 235 -- 8 of 17 -- 9 [27] The finding made by the learned trial judge was a fair description of the respondent’s evidence, and the judge was entitled to accept that evidence as an accurate description of the workplace experience of the respondent as an experienced contractor. That evidence necessarily implied that the appellant’s own employees had not been observed “footing” ladders at that site; although there was clear evidence of the appellant’s employees using the respondent’s ladders and vice versa, with both sets of work persons using the nearest available ladder, there was no suggestion made in cross examination of the respondent to the effect that the appellant’s own employees adopted any different work practices with those ladders from that consistently used by the respondent at that site. [28] Ground of appeal 2(d) complains that the judge erred in finding at [11] of his reasons that a scissor lift would have been very difficult, if not impossible, to use in the relevant working space because of the ground configuration. Regarding that ground, the respondent’s evidence had been that that 1,300 mm depressed gap made the use of a scissor lift impossible, and cross examination made clear that he was not aware in 1997 of the availability of mobile platforms that could reach across that gap. However, Mr King said there were such platforms available in 1997, although he was not sure that they were “commonly” used then; whereas ladders were much more common at that time than an elevating work platform. [29] Mr King’s evidence described the availability of that variety of elevating platform, but not any opinion as to whether it could have been used at that time at that site. There was no evidence led from anyone that a mobile platform could have gained access to that work site, when the last wall was being erected, and the evidence does not seem to have advanced the possible use of such a platform any further than a theoretical one. The finding made by the learned trial judge failed to take that possibility into account, but it was not established to be a real one. The complaint about that finding does not much avail the appellant, and the more important finding is the next one. [30] This was the finding the subject of complaint of ground 2(e), being the finding in [11] that there was no reason for the respondent to think at the time that there was any significant risk attaching to the use of ladders. In this complaint the appellant points to the evidence by Mr King that it would have been preferable to have Mr Daly’s offsider “foot” or hold the ladder at its base. Mr King’s report describes how in the years 1982-1984 one in five of the falls from heights, which falls constituted 30% of reported workplace fatalities, occurred from a ladder. His report describes how the significant involvement of ladders in “fall” incidents has long been recognised. Accordingly, the appellant submits, his Honour’s findings are unsustainable. That submission overlooks that the respondent’s evidence was that he had used ladders at similar work sites over the years, had not seen one slip, and would not have used this ladder had he noticed that it had no “rubber feet”. He had used both other ladders and that particular ladder before at that site without any suggestion of slippage. That evidence by the respondent, not challenged, results in the learned judge’s findings complained of in 2(e) being open on the evidence. [31] More importantly, and since both the employees of the appellant and of the respondent’s company could have been engaging in the same unsafe practices, there was the following evidence of Mr King in re-examination, relied on heavily by the respondent in this appeal. This was the opinion that if the ladder had had “conforming” feet with adequate grip levels it should not have slipped in the -- 9 of 17 -- 10 condition in which it was used9 . That evidence provided the basis of the learned judge’s finding quoted earlier, and not challenged, that the accident would probably not have occurred had the ladder been supplied with rubber feet. That finding, and Mr King’s evidence at AR 112, necessarily means that the work practice described by the respondent was a safe one, provided use of the ladder as supplied was not contrary to good practice on a building site by reason of the ladder not meeting the Australian Standard described by Mr King. [32] The appellant by ground 2(f) challenges next the finding by the learned judge in [14] of the reasons that the only material difference between the use of ladders by the plaintiff on a prior occasion on this job site, and the use of the subject ladder, was that the former had “rubber” feet, whereas the latter did not. The evidence supports the appellant’s challenge, since while it shows that the respondent’s father and another employee of D A Manufacturing Co Pty Ltd had all used that same ladder at that work site on earlier occasions, the respondent could not say whether the ladder was fitted with “rubber” feet on those earlier occasions.10 Likewise the respondent could only “guess” that the two ladders his company had hired and brought onto the site had appropriate plastic feet on those, because he had not checked. His evidence at AR 70 was: “They come from a hire mob and I’d imagine if someone was hiring out a ladder or any equipment, that it would be up to speed with everything”. He added in respect of the appellant, and the fact he acknowledged that he had not checked that ladder before using it, that: “They’re a very professional company. If I was to check, whether it be the feet, because the feet were missing and then I checked the rest of the ladder, I had spent half me day checking all the gear because I mean, if it wasn’t the feet it might have been the runner, it might have been the rope that pulled it up, or it might have been the top rubber that balances against the wall panel.” [33] The respondent conducted the trial and its argument on appeal on the assumption that it was common ground between him and the appellant that all other ladders on the site were fitted with appropriate plastic feet. That assumption is reflected in the learned judge’s findings, but not by any evidence that was actually led. The appellant called no evidence about the condition of the respondent’s ladders and the other ladders the appellant had, or about the appellant’s work practices with the use of ladders or when its employees were working at height. It called only the expert witness Mr Gilmore, a consulting engineer, and it led no evidence regarding the respondent’s work practices or its own. Accordingly, the vigorous challenge it made at trial to the respondent’s case was largely limited to challenges made in cross examination, and to almost every aspect of that case. This approach at trial has been reflected in the grounds of appeal, which challenge many findings but with limited positive evidence to support contrary or other findings. [34] The finding made by the learned judge, that only this ladder on this occasion lacked “rubber” feet was used by the judge only for the observation that it: 9 At AR 112 10 At AR 81 L30-40 and exhibit 9 at AR 273 -- 10 of 17 -- 11 “…rather supports the conclusion that the absence of rubber feet caused the ladder’s failure”. That support was not available for that conclusion, but other evidence was. The appellant conceded that absence to be a contributing cause of the ladder slipping. Findings the Appellant Argues for [35] The findings the respondent contends the learned judge erred in not making are listed in its third ground of appeal. The first was that the respondent could have practicably taken the ladder inside the depression. That argument may have had some force had the appellant led any evidence of any practice by any one else at that work site which would have challenged the respondent’s opinion that the ladder would have been rendered too steep for him safely to use it. [36] The next ground 3(b) argues that the learned judge should have found that if and when exercising reasonable care for his own safety, the respondent would have had the ladder held in place at its foot by another person. Again the appellant led no evidence of any work practices different from those the respondent described, and did not challenge the specific finding by the learned judge in [19] that the respondent had no reason to suspect that the ladder was potentially unstable. There was no evidence of any instruction by the appellant to its own employees, let alone obedience to it, requiring that practice to be followed on a level concrete surface. [37] The third finding urged was that the learned judge ought to have found that using a scissor lift for the respondent’s task was practical. The appellant simply failed to establish that proposition in cross examination. Contributory Negligence [38] Next comes the argument in ground 3(d) that, had the respondent been exercising reasonable care for his own safety, he would have identified a significant risk attaching to his use of the ladder. Allied to this is the complaint that the judge ought to have found that the defect in the ladder was obvious to any one making even a casual inspection of it. That last proposition of fact (ground 4) must be correct. The respondent agreed that he would not have needed to look very hard at the ladder to notice the defect, and could have quickly looked down and seen if it had “feet”11 . Grounds of appeal 3(d) and 4 are both relevant to the complaint in ground of appeal 7 that the learned judge erred in finding the respondent was not contributorily negligent. Central to that last finding was the observation that detection of the defect: “……by tradesmen likely to use the ladder in the course of their activities on a busy building site was unlikely….” and the other findings in [19] quoted earlier, including the fact of the ladder being already placed in position. [39] The appellant’s cross examination of the respondent makes clear that it was in possession of the respondent’s statement exhibit 9, which included in it a description of his prior usage of that same ladder at that site. Despite that, the appellant led no evidence as to whether the ladder was in the same state on the day 11 At AR 70 L12-25 -- 11 of 17 -- 12 of the fall as when used on preceding days; and there was no cross examination as to the circumstances in which the respondent had used it previously. Exhibit 9 records that prior to the fall on 28 August 1997 the respondent had seen that day three ladders already in position against the wall and had used the first (one which he had supplied), before ascending the second, that from which he fell. The respondent’s evidence was silent as to whether on the previous occasions when he had used that particular ladder it had already been placed in position for use, or whether that was done by him. The appellant asked no questions about this in cross examination, and just who constituted the “we” referred to in [16] herein was not established in evidence. [40] The relevance of that matter is that detection of the defect in the subject ladder seems more likely to occur if the person using the ladder has to carry it and place it in position for use. As the learned judge found, a ladder already placed in position would suggest that it was both ready and suitable for use. Absent evidence that the respondent had himself previously positioned that ladder (when defective) for use at any time, the appellant failed to establish that the learned judge erred in not making the findings sought in ground 3(d). While the finding of fact in ground 4 should have been made, there was no contrary finding, and that finding alone would be insufficient to establish contributory negligence by the respondent. [41] The learned trial judge relied on the matters cited earlier from the reasons for judgment at [19] when not finding contributory negligence. His Honour referred to the passage in the joint judgment of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd12 , where the High Court described the task faced by a judge making an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for damage. As is also remarked upon in that judgment at ALR 532, a finding on a question of apportionment is not lightly reviewed, and the very limited evidence called by the appellant, together with the absence of inquiry about other matters in cross examination, means that it fails to establish on appeal that the learned judge should have found contributory negligence. [42] The appellant particularly points to the respondent’s own position as the effective controlling mind of his employer company and that company’s obligations to its own work force. That is, the appellant complains that the respondent ought to have informed himself more about matters of workplace safety because his company’s position as an employer required that knowledge, which was relevantly his. The appellant submits that as the controlling mind of his company, the respondent ought to have inspected the ladders that company hired, and informed himself more about applicable Australian Standards and best practice with ladders. [43] The validity of those arguments can be conceded. Nevertheless the appellant did not, but was in a position to, establish that the ladders the respondent’s company hired had the like defect, or that inspection of its defective ladder on earlier days would have revealed that defect. Without such evidence the respondent’s arguable neglect of the obligations really cast upon him as director of his company were not shown to have materially contributed to the reasons he fell, and fault in him relevant to that fall was not established. A Duty of Care 12 (1985) 59 ALR 529 at 532 -- 12 of 17 -- 13 [44] The appellant attacks the finding that it even owed the appellant a duty of care. In [17] of the reasons for judgment the learned judge thought it plain a duty of care was owed. The judge referred to the reasonable foreseeability of the risk of injury to persons of the class of which the respondent was a member, namely members of building trade at that site, and the judge considered that a reasonable contractor in the appellant’s position would have taken steps to ensure that any ladder positioned so as to provide access to parts of the building site was in a good order and condition. As the judge held, the provision of a ladder which complied with normal industry standards was a straight forward and obvious precaution to take, and the judge noted that the appellant did not suggest that it was either normal or acceptable in the building industry for ladders not to be fitted with rubbers on their feet. [45] Additional matters supporting the imposition of the duty found by the judge include that the appellant was in complete control of whether or not it supplied ladders fitted with appropriate feet and which matched the required Australian Standard. 13 Likewise the appellant could have ensured that ladders which did not match the standard were not available for use at that work site. Imposing a duty of care on the appellant could not unreasonably interfere with its commercial freedom or cut across established legal principles 14 when, to adopt the observations of Gleeson CJ in Tame v State of New South Wales15, it is reasonable to require the appellant to have in contemplation the safety of persons, other than its own employees, whom to its knowledge were using ladders it supplied at work sites; and likewise to have in contemplation the risk of injury to those people which eventuated from supplying a defective ladder. The appellant knew or ought to have recognised that it had created an unreasonable risk of harm to others by supplying that defective ladder 16 . [46] The appellant did not actually challenge any of the findings or propositions that resulted in the learned judge holding a duty of care had existed. Instead, it submitted that that ultimate conclusion was inconsistent with the reasoning of the New South Wales Court of Appeal in the two cases of Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204, and Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267. Those were each cases in which the relevant plaintiff had been injured following a fall from a ladder, but in neither of those cases was the ladder itself unsafe or defective in any way. In Van der Sluice the plaintiff was engaged by the defendant as an independent contractor to install and dismantle Christmas decorations. When using a ladder owned by the defendant and carrying out a task that a member of his team thought was dangerous, he fell from the top step of that 12 foot A-frame ladder and injured himself. He could not recall how or why he fell, and there was no eye witness evidence of the early part of his fall. [47] The principal judgment of the Court of Appeal was that of Heydon JA, as he then was. That records at [17] that the plaintiff’s foot could have slipped, he could have suffered an epileptic fit, he could have experienced sudden dizziness, or light headiness leading to a loss of balance. The ladder could have been placed on the ground in an unstable fashion, or become unstable because of moisture on the ground, or the plaintiff could have performed some vigorous movement on the ladder causing a loss of balance. The judgment also records that various theories as 13 Perre v Apand Pty Ltd (1999) 198 CLR 180, at [15] Gleeson CJ, [38] Gaudron J, [215] Gummow J, [406] Callinan J 14 Sullivan v Moody (2001) 207 CLR 562 at [53] 15 (2002) 191 ALR 449 at [9] and [12] 16 Tame v State of New South Wales at [102], judgment of McHugh J -- 13 of 17 -- 14 to why the fall occurred were advanced by an expert in ergonomics. None of those suggested any defect in the ladder. [48] That principal judgment in Van der Sluice refers to the principles in the well known judgment of the High Court in O’Connor v Commissioner for Government Transport17, and the remarks of Taylor J in Smith v The Broken Hill Proprietary Co Ltd18 . These describe the lack of need for instruction to (experienced) workmen as to how to carry out a simple task which did not involve any real risk of injury, even if carried out with some reasonably foreseeable degree of inadvertence or thoughtlessness. [49] As the leading judgment in Van der Sluice observed at [74], the fact that the higher up a ladder one moves the more care one must take for one’s own safety is one of those simple facts affecting human existence in the physical world which most adults in industrial societies have learnt by the time, or indeed before the time, they have become adults. These are matters about which no adult need be told, and against which any adult can be trusted to guard. Those observations, which it is respectfully observed were clearly applicable in Van der Sluice where that appellant fell from the penultimate top step of an A-frame ladder, have little applicability in a case where the ladder had an unnoticed but serious defect. [50] The remarks made in O’Connor and in Smith were applied in Kolodziejczyk. That appellant fell five metres from the top of the ladder when carrying out house renovation work pursuant to a contract with the defendant. That appellant had lost his balance when standing on the top of an extension ladder; and when the ladder moved, he fell. The ladder itself did not fall. It was not tied or held in any way. It sloped at an angle of 50 degrees when it should have sloped at an angle of 75 degrees or greater. The judgment of the New South Wales Court of Appeal, again delivered by Heydon JA, records at [45] that tying the ladder was a practicable, quick, cheap, and an easy technique, which would have enabled the work to have been done safely; and that in those circumstances that appellant’s failure to work with the ladder tied at the top and bottom made him the substantial cause of the accident and the author of his own misfortune 19 . This was because, as explained at [52], the danger was the reverse of hidden, being actually apparent to the experienced plaintiff, who had spoken of the danger with the defendant; and that defendant was entitled to trust that plaintiff to make appropriate provisions for his own safety. [51] Although that matter under appeal also involved a fall from the top of an extended ladder, it has little other relevance to this matter. Those two judgments relied on by the appellant were examples of the application of the principles declared by the High Court in O’Connor and Smith to two cases which each involved a fall from a ladder; but those principles demonstrated in those two recent decisions neither result in the appellant in this matter being absolved from a duty of care nor the respondent being found to have been contributorily negligent. The Appeal against Quantum 17 (1954) 100 CLR 225 at 229 – 230 18 (1957) 97 CLR 337 at 343 - 344 19 At [48] and explaining that that expression normally means that the defendant’s conduct was not a cause of the plaintiff’s damage (Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 at 30) -- 14 of 17 -- 15 [52] Turning to the appeal against quantum the evidence was that the respondent now works 40 hours per week, whereas before the accident he worked about 80 hours per week. He continues as a builder, although he finds any task on a building site difficult and painful. It appeared common ground he expects to continue as a builder. His evidence was that in the 40 hours per week he works now, he is not as productive as he was before, doing only two thirds of what he used to do in the same time. This is because of the pain he experiences. Accordingly, on his evidence he hires a labourer to assist. This costs $1,000.00 gross per week or $515.00 net. That is not an expense he would otherwise have undergone. [53] The evidence demonstrated that he has been able to manage his affairs so that he has not lost income as a result of his injuries. The net profit of his company increased in the 1998/1999, 1999/2000, and 2000/2001 years. It had fallen in the 1997/1998 year in which the accident occurred. Although he has not lost income he has a reduced capacity for manual labour, as the learned judge found, and that labour is a necessary part of the occupation of a builder. [54] His injuries have resulted in his having wasting of his left calf and left thigh muscles, an abnormal gait and a 25% impairment of the function of his left lower limb. In those circumstances the learned judge allowed him, as a need established by the evidence and caused by the injury, an amount of $258,870.82, equalling two thirds of the calculated weekly cost of hiring a labourer for the next 25 years. [55] The appellant complains this should not have been allowed because the respondent’s company had increasing profits rather than losses. Further, the respondent’s rather imprecise evidence as to how his father “takes a lot of work load off me” 20 and how he had employed other labourers as well because - “they have been necessary because I have needed them, yes. I have needed them to help me out” 21 was nowhere near as precise as the outcome reached by the learned judge on that rather sparse evidence. [56] The fact that the respondent’s company has shown an increasing profit is really irrelevant, provided the evidence showed – as it did – that the respondent had a need for the services of an extra employee in his building work, resulting from the injuries suffered. Although his company makes a profit, it could be expected to make a bigger one without that extra cost. The principle to be applied must be the same as that which allows recovery of compensation for gratuitous services supplied to meet a need occasioned by an injury22 . While the evidence before the learned trial judge was certainly imprecise, it did establish a need for those services. The respondent had vastly reduced his working hours but would continue as builder, he did not like administration and saw himself as a poor administrator, and his presence at work sites where he would need assistance could be confidently predicted for the future. In those circumstances the award made by the learned judge of part of the cost of an extra labourer was justified, but the amount was too generous. While it did compensate the respondent for a need he had, that need was for one third, not two thirds, of the cost of a labourer for one week. That is because the respondent has an incapacity to work as before, at a rate or level satisfactory to 20 At AR 34 21 AR 34 22 Van Gervan v Fenton (1992) 175 CLR 327 at 331-333 -- 15 of 17 -- 16 him, for one third of a 40 hour week, and he gets the assistance of a labourer for that. He does not work an 80 hour week, and did not swear to any need to employ a labourer for the 40 hours he no longer works. If he had that need, he did not prove it. Accordingly, the significant damages allowed under that head must be halved and reduced to $129,435.00. [57] The appellant’s complaint about the Griffiths v Kerkemeyer23 damages fails. The learned judge allowed those at the rate of three hours per day from 4 September 1997 until 30 May 1998, one hour per day from 1 June 1998 until 17 April 1999, and half an hour per day thereafter until trial. He made the like allowance of half an hour per day for future Griffiths v Kerkemeyer care, assessing that as being the measure of the respondent’s reduction in his ability to bear his share of normal domestic activities. [58] The amounts allowed were at the relatively standard rate of $12.00 per hour, and it is really the last one which is the subject of greatest complaint. The cost of that future care was allowed for over a 30 year period and came to $40,000.00. On the evidence led those sums allowed were reasonable and the appellant has not shown they should be disturbed. [59] Finally, there was the amount allowed for expenditure on vitamins and anti- inflammatory medication. The appellant’s complaint is not that the respondent may not have a need for such medication and expenditure, but that the evidence supporting it was only his wife’s description that “we”24 were “told” to get those items by the respondent’s physiotherapist. The physiotherapist was not called to prove making that recommendation. Even if the recommendation had been misunderstood, if the respondent then accordingly felt the medication satisfied a need occasioned by the injury the expenditure might well be justified; and in the circumstances the judgment should not be corrected because of allowance of this small amount by reason perhaps of some hearsay opinion evidence. 25 [60] I would order that the appeal against liability be dismissed, the appeal against quantum allowed to the extent of substituting the amount of $240,957.00 for the amount of $370,392.84 originally ordered to be paid, and that the parties have leave to make written submissions within 14 days of publication of this judgment as to costs. [61] FRYBERG J: On the evidence the trial judge's findings on liability were correct. That evidence and the issues on appeal have been summarised in the reasons for judgment of Jerrard JA and I need not repeat them. I wish to refer specifically to one point only. The appellant argued that either it owed the plaintiff no duty or the content of any duty which it owed was so limited that a breach was not proved. It did so on the basis that the absence of synthetic feet on the ladder was a patent defect of such an obvious nature that the defendant was entitled to assume that users would observe it. It therefore had no duty in respect of the feet, or its failure to provide a ladder with feet did not amount to a breach of duty. That submission should be rejected. 23 (1977) 139 CLR 161 24 At AR 132 25 Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258 at 265 -- 16 of 17 -- 17 [62] I have been troubled by the issue of contributory negligence, although not in the same way as Williams JA. It is notorious that repetitive workplace tasks generate inattention. The use of a ladder by the respondent on this site was such a task. Momentary inattention in the use of a commonplace tool in respect of a characteristic which a workman, whether tradesman or labourer, would reasonably assume would not embody a defect does not satisfy the requirements for a finding of contributory negligence in a workplace. [63] On the other hand it is notorious that ladders can slip. Things can go wrong. The respondent could have placed the ladder against the edge of the slab, that is, in the depression, where it would have butted against at least 200 mm of concrete. That would have made longitudinal slippage of the ladder impossible. It is true that it would also have made the angle of elevation of the ladder 0.6 degrees steeper than it was, but that seems trivial. This constitutes, I concede, a "belt and braces" approach to the task, but that might not be thought unreasonable. I have been troubled by whether this supports a finding of contributory negligence. In the end I am not prepared to dissent from the views of the three judges who have considered whether failing to place the ladder in the manner described constituted contributory negligence, because the onus of proof lay on the appellant to demonstrate it clearly and the degree of contributory negligence would be small. [64] Apart from that matter I agree with the reasons of Jerrard JA on this issue. [65] As to quantum I agree with Williams and Jerrard JJA. The amounts allowed under the doctrine in Griffiths v Kerkemeyer are no more outrageous than those allowed in other cases in accordance with that doctrine. [66] I agree with the orders proposed by Jerrard JA. -- 17 of 17 --