Zauner Constructions Pty Ltd v Harvey & Anor [2004] NSWCA 8 (14 May 2004)

Last Updated: 17 May 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: ZAUNER CONSTRUCTIONS PTY LTD v HARVEY & ANOR [2004] NSWCA 8

FILE NUMBER(S):

41189/02

HEARING DATE(S): 24 October 2003

JUDGMENT DATE: 14/05/2004

PARTIES:

Zauner Constructions Pty Ltd - Appellant

James Robert Harvey - First Respondent

Commercial Club (Albury) Limited - Second Respondent

JUDGMENT OF: Sheller JA McColl JA Grove J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 70/01 (Albury)

LOWER COURT JUDICIAL OFFICER: Walmsley DCJ

COUNSEL:

J D Hislop QC/M J Ward - Appellant

B Dooley - First Respondent

H N Kelly SC/M Holz - Second Respondent

SOLICITORS:

Keddies - Appellant

R H Lewis & Associates - First Respondent

A O Ellison - Second Respondent

CATCHWORDS:

Appeal - Personal injury - Workplace injury - Negligence - Terms of building contract - Apportionment of responsibility between employer and contractor when negligent construction caused wall to fall - Damages - Future economic loss - Quantum

LEGISLATION CITED:

Construction Safety Act 1912

Law Reform (Miscellaneous Provisions) Act 1965

Workers Compensation Act 1987

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41189/02

DC 70/01

SHELLER JA

McCOLL JA

GROVE J

ZAUNER CONSTRUCTIONS PTY LTD v HARVEY & ANOR

The first respondent was employed by and worked at the second respondent's business as a kitchen hand. On the morning of 2 October 1998, the first respondent was standing in the kitchen area with other staff, having been requested to attend a demonstration of a new dishwasher. The appellant which was a construction company had arranged this demonstration. At this time, the appellant was in the process of erecting a temporary wall nearby the kitchen. Just before the dishwasher demonstration commenced, the temporary wall fell over, struck the first respondent and knocked him over.

As a result of this incident, the first respondent sustained injures to his right shoulder, head, back of shoulders and trunk. The first respondent commenced proceedings against the appellant and second respondent for breaches of statutory duty and negligence, to recover damages for these injuries.

Both the appellant and second respondent cross-claimed against the other. In the cross-claims the appellant relied upon the terms of a building contract, in particular clause P8.8, which stated that if the owner (the second respondent) of the premises enters into occupation of the Works or any portion thereof, then in respect to any injury, it shall be at the sole risk of the owner. The appellant claimed that the dishwasher demonstration was occupation or use of part of the Works. The second respondent on the other hand, denied occupation or part thereof of the Works and claimed to have an indemnity under a different clause in the contract.

The trial Judge found for the first respondent, against both the appellant and the second respondent employer. The appellant's cross-claim was dismissed, while the trial Judge gave verdict and judgment for the second respondent in its cross-claim against the appellant. In assessing damages, the trial judge was required to assess the responsibility of each of the two tortfeasors. The trial judge considered the appellant was primarily responsible because it was carrying out building work, was in breach of building regulations, failed to ensure the first respondent was not on the other side of the wall and supplied the defective screw which was said to cause the wall to fall. The trial Judge's assessment was that the appellant ought to bear 85 per cent of the responsibility and the second respondent 15 per cent.

The appellant appealed, claiming that the trial Judge erred in finding that clause P8.8 operated in favour of the second respondent employer. The appellant further contended that the trial judge erred in the apportionment of responsibility between the two tortfeasors and that his Honour awarded excessive damages for future economic loss.

Held: per Sheller JA, McColl JA and Grove J agreeing:

1. It would be absurd to suggest that Clause 8.8 of the Lump Sum Contract was intended to mean that because the proprietor has entered into occupation of a portion of the Works or used a portion, the whole of the Works are at the sole risk of the proprietor.

2. It is reasonably clear that what was intended by the clause was that if the proprietor enters into occupation of, or uses a portion of, the Works, that portion shall be at the sole risk of the proprietor.

3. On the facts of this case, it is not necessary to define precisely the limits of the clause because there was no evidence that the second respondent had entered into occupation of, or used, the kitchen portion of the Works, properly understood, by allowing its employees to attend a demonstration of the dishwasher as arranged by the appellant.

4. At the time the first respondent was injured, neither the Works nor any relevant portion of the Works were at the sole risk of the second respondent.

5. Apportionment involves an individual choice of discretion as to which there may well be differences of opinion by different minds. Such a finding, if made by a judge, is not lightly reviewed.

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492.

6. In the present case, there could be no doubt that the degree of departure from the standard of care of the reasonable person was far greater in the case of the appellant than in the case of the second respondent and that the acts of the appellant were relatively far more important in causing the injury.

7. The trial Judge's apportionment was not so unfavourable to the appellant that the Court must conclude that it is vitiated by some erroneous understanding of the law or the facts.

8. The accident left the first respondent with little use of his right arm and significant problems with his left arm. The first respondent had taken proper and reasonable steps to rehabilitate himself and return to the workforce but clearly with his disabilities his prospects of obtaining work were very low. By comparison his prospects before the accident of becoming, and working until he chose to retire as, a chef were excellent.

9. The findings made by the trial Judge and his assessment of damages for future economic loss were justified and no ground is shown for this Court to intervene.

Legislation:

Construction Safety Act 1912

Law Reform (Miscellaneous Provisions) Act 1965

Workers Compensation Act 1987

Cases cited:

Bradford v Symondson (1881) 7 QBD 456

CSR Limited v Elliott (CA, unreported, 23 June 1994, BC9404968)

Jennings Construction Limited v QH & M Birt Pty Ltd (1986) 8 NSWLR 18

Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; (2001) 210 CLR 181

Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65

McCann v Switzerland Insurance Australia Limited [2000] HCA 65; (2000) 203 CLR 579

North v Marina [2003] NSWSC 64

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Tersons Limited v Stevenage Development Corporation [1963] 2 Lloyd's Rep 333

Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65

ORDERS

Appeal dismissed with costs.

**********

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41189/02

DC 70/01

SHELLER JA

McCOLL JA

GROVE J

Friday, 14 May 2004

ZAUNER CONSTRUCTION PTY LTD v HARVEY & ANOR

Judgment

1 SHELLER JA:

Introduction

Zauner Construction Pty Ltd (Zauner) appeals from the judgment of Judge Walmsley SC given in the District Court on 14 November 2002. Zauner was the second defendant in proceedings brought by James Robert Harvey (Mr Harvey), who was born on 11 January 1942, against Commercial Club (Albury) Limited (Commercial), the first defendant, and Zauner to recover damages for injuries Mr Harvey suffered to his right shoulder and minor injuries sustained to the back of his head and the back of his shoulders and trunk on 2 October 1998 on Commercial's club premises at 618 Dean Street, Albury, where Mr Harvey was working as a kitchen hand. Mr Harvey sued Commercial as his employer and Zauner, which was carrying out building work, including the erection of a temporary wall at Commercial's club premises, for breaches of statutory duty and negligence. Each of Commercial and Zauner put in issue liability and relied upon defences of contributory negligence. Each cross-claimed against the other. Zauner's cross-claim against Commercial relied upon the terms of a building contract for the construction of alterations to Commercial's club premises and alleged in particular:

"10 Pursuant to clause 8.8 of the contract, it was agreed between the Cross Claimant and the Cross Defendant that should the Cross Defendant or other person authorised by him enter into occupation of the Works or any portion thereof and/or use the same before Practical Completion of the Works then in respect of injury to or death of persons and damage to property, including the Works, the Works shall be at the sole risk of the Proprietor.

11 On 2 October 1998 at the request of the Cross Defendant the Cross Claimant made available to the Cross Defendant occupation or use of part of the Works in the kitchen area to allow a demonstration of a commercial dishwasher to take place.

12 The Plaintiff was injured whilst waiting in the kitchen area for that demonstration to commence.

13 At the time of the Plaintiff's injury the Cross Defendant was in occupation of a portion of the works or was using that portion of the works.

14 The Cross Claimant says that, pursuant to clause 8.8 of the contract, it is entitled to indemnity from the Cross Defendant for this claim, and that in breach of that clause the Cross Defendant has failed or refused to indemnify the Cross Claimant for this claim.

15 As a consequence of the breach of the contract, the Cross Claimant has and may suffer loss and damage and seeks indemnity from the Cross Defendant in respect of any loss arising out of the Plaintiff's action."

2 Commercial denied that it was in occupation of the works or any portion thereof as alleged in the notice of cross-claim and denied that Zauner was entitled to the relief sought in paras 14 and 15 of the notice of cross-claim.

Reasons for judgment

3 Mr Harvey claimed that on the date in question, in the course of his employment, he was standing in the kitchen area of the club premises near a wall that had been constructed by Zauner, when the wall fell and struck him and thereby injured him. Mr Harvey claimed that his injury was caused by the failure of Commercial and Zauner to comply with statutory duties imposed upon them by regulations made under the Construction Safety Act 1912. In particular he alleged that, contrary to reg 73(16), Commercial and Zauner failed to take all practical precautions by the use of adequate temporary guys, stays and supports and fixings or otherwise to prevent a danger to any persons through the collapse of any part of the structure during any temporary state of weakness or instability of the structure before it was completed and, contrary to reg 73(17), failed to take practical precautions to ensure or otherwise prevent a danger to any persons from the collapse of the building or structure or fall of any part thereof.

4 Judge Walmsley found that Zauner was working quite close to the club kitchen at about 8 am on 2 October 1998 when Mr Harvey and others were present in the kitchen to watch a demonstration of a new dishwasher. Zauner was in the process of erecting a temporary wall nearby, arrangements having been made a day or so before for that to occur. The temporary wall had been erected to an extent some time before the incident and one of Zauner's employees, Glen Marcus McCallum, was putting the finishing touches to the wall by doing what was described as bracing. This work was occurring on the other side of the wall from Commercial's employees and in circumstances where Mr McCallum was unable to see that those employees were present on the other side of the wall from him and near the wall. Mr McCallum claimed that steps had been taken to ensure people could not get to where Mr Harvey and the others were at the time he was injured. He said that mesh was wired to the doorframe. However, the trial Judge was satisfied that such steps as may have been taken were not sufficient.

5 Mr Harvey had come to work early that day at the request of Commercial. Shortly before the incident, he and others were ushered into a place near the new dishwasher. This was shortly after Anne Reid, Commercial's executive chef, had seen builders and some men associated with the installation of the dishwasher in that area. Just before the dishwasher demonstration began, the wall fell over without any notice to anybody, striking Mr Harvey and knocking him over. Mr McCallum, who was erecting the wall, came in and apologised and admitted fault.

6 Both Commercial and Zauner pleaded that Mr Harvey was guilty of contributory negligence for not keeping a proper lookout, not taking care of his own safety or for placing himself in a position of danger.

7 The trial Judge observed that Commercial did not cross-examine Mr Harvey so as to suggest he was guilty of any contributory negligence and Zauner did not do so seriously. "In the end neither counsel in address submitted that the plaintiff was guilty of contributory negligence".

8 Zauner called Mr McCallum, the carpenter who erected the temporary wall. He had done what he could to erect it from the dishwasher side and then moved to the other side and away from the dishwasher side to brace it. He was in the course of doing that when the incident occurred. He said he had not seen people on the dishwasher side before the wall fell. He could not see whether or not there were people there. When asked how the wall had fallen he said: "It happens". He blamed a defective screw for the fall. He did not believe he had admitted fault shortly after the incident and was surprised by finding people there saying to them "What are you doing here?" He said he had not heard anyone on the dishwasher side before the incident. The trial Judge observed that, on the evidence of a number of people, that was hardly surprising given that a great deal of noise was going on at the time.

9 Commercial called Ms Reid, who was also hit by the falling wall. She could not remember how the employees, including Mr Harvey got to where they were before the incident. The trial Judge said "it would seem there was an area adjacent to the old dishwasher which is quite close to the new one through which they came and that there was nothing of any substance barring access to the area where the plaintiff was when he was injured." After the wall fell, Ms Reid said Mr McCallum had come and said, "I am sorry, I am sorry. It's all my fault."

10 According to Mr Simmons, an architect, who arrived shortly after the incident, Zauner was responsible for the dishwasher display which was to take place. Mr Simmons said that under the building contract a separate contractor was to provide and install the dishwasher. Zauner had to co-ordinate his activities and to do work in association with the installation of the dishwasher. Zauner arranged with the dishwashing contractor for a demonstration of the dishwasher on 2 October. Ms Reid said that the demonstration and the need for it and the arrangements for it had been discussed at a site meeting with Zauner on 30 September. Zauner called its site manager, Richard Coleman Bulman, who was the co-ordinator for the demonstration and who had scheduled it for 8.30 am that morning. Mr Bulman told Mr McCallum to erect the barrier so that Zauner could work without being in view of the area where the dishwasher was. He could not recall whether there was any webbing of the type which had been described by Mr McCallum.

11 The trial Judge was satisfied that Zauner was engaged in building work as described in s3(1) of the Construction Safety Act. Although Commercial retained Zauner to conduct the building work, that did not cause Commercial to be carrying on building work: Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65. There could be no doubt that Commercial owed a duty of care to Mr Harvey, its employee.

12 The trial Judge found that on 2 October 1998 at about 8.15 am while the plaintiff was waiting at the first defendant's premises to watch a demonstration of the use of a dishwasher and was in the course of his employment, a structure, namely a temporary wall, which had been put in place by Zauner's employee, fell over and hit him and injured him.

13 His Honour was satisfied that Mr McCallum erected it and was working on it immediately before its fall and that further, immediately afterwards he spoke to Ms Reid and said in the presence of Ms Reid and others "I'm sorry, I'm sorry. It's my fault." The trial Judge was satisfied that Mr McCallum knew, or ought to have known, that there were people in the vicinity and that he should have taken steps to ensure that no one was there. He was further satisfied that Mr McCallum and, accordingly, Zauner, failed to take practicable precautions by ensuring that there was no danger to people from the fall of the wall, which he was satisfied was a "structure" within the meaning of reg 73(17). Further, by failing to warn anybody in the employ of Commercial, when the Judge was satisfied that Mr McCallum knew or ought to have known that people were on the other side of the wall, and by reason of the statutory breach, Zauner was in breach of its common law duty of care.

14 Additionally, Zauner was negligent by not taking sufficient precautions to ensure people would not get access to the area close to the temporary wall Mr McCallum was erecting. Further, in relation to Mr McCallum, the trial Judge said that in so far as his evidence was in conflict with that of others who gave evidence, he rejected it.

15 His Honour also found that Commercial was in breach of its duty to provide a safe place of work and a safe system of work. Though the control of the work to a large extent was in the hands of Zauner, it was still to an extent with Commercial.

16 The trial Judge accepted submissions put on behalf of Mr Harvey that because building work was going on so close to the area where Mr Harvey and others were working and was going on at the same time as the kitchen was continuing to function, there was a need for a heightened degree of concern and care and consideration on the part of Commercial, to take care to ensure that its employees were not injured. He accepted what Ms Reid said, that she could see builders and dishwashing employees on the dishwasher side of the wall before the accident and could hear a lot of banging going on. There was a breakdown of communication between Commercial and Zauner which ought not to have occurred. The breakdown involved inquiring of Zauner if it was safe to go into the area near the new dishwasher. The trial Judge was satisfied that by reason of that failure to make that enquiry of Zauner and otherwise failing to keep Mr Harvey and others away from the area before the answer to that enquiry was known, Commercial was in breach of its common law duty.

17 The trial Judge had considered an argument that it was premature for Commercial to allow people in before 8.30 am. He said that Ms Reid's observations of people in the area earlier explained why she had people in the area at that time. The trial Judge was satisfied that there was a minor variation to the earlier arrangement that the demonstration would start at 8.30 am whereby it was to start a little earlier. His Honour found a verdict and judgment for Mr Harvey against Commercial for breach of common law duties and against Zauner for breach of statutory duty and common law duties. He noted that sensibly counsel for neither of the defendants argued that there ought to be a finding of contributing negligence.

18 The trial Judge, in assessing damages, pointed out that he was required by s151Z(2) of the Workers Compensation Act 1987 to assess the percentage of responsibility of each of the two tortfeasors. He considered that Zauner ought to take the major share of the damages. Zauner was actively carrying out building work and was in breach of building regulations designed for the safety of people. It had failed to ensure that Mr Harvey was not on the other side when working on the wall. It supplied the defective screw which it said caused the wall to fall. In his Honour's assessment Zauner ought to bear 85 per cent of the responsibility and Commercial 15 per cent.

19 Mr Harvey suffered an injured right shoulder and a rotator cuff syndrome. He was a right hand dominant man. Though he had had a number of surgical procedures, he had been left with grossly restricted movement of his right arm which the trial Judge was satisfied would be permanent. By reason of being obliged to undertake work and activities with his left, previously undertaken by his right he had developed a left arm rotator cuff syndrome as well.

20 The trial Judge was satisfied that Mr Harvey would always have significant problems with his left arm although it was clear he had some use of that arm. He had very little use of his right arm. His Honour was satisfied that he would never return to his pre-accident occupations of motor mechanic or kitchen hand moving to chef. He was satisfied that by reason of his arm injuries he would never realise his ambition to become a chef and would always suffer a great deal of pain and restriction of movement. The trial Judge said that Mr Harvey found the whole experience extremely distressing, involving as it did the loss of his livelihood, the loss of his independence, and the loss of his ability to enjoy life and continue what he had always apparently had, a very physically active life both at work and at home, and in his leisure activities away from home.

21 The trial Judge was satisfied that he had a need for care to assist with the gardening and aspects of household work which, but for the accident, he would have continued to do. Those needs he would have permanently.

22 The trial Judge was satisfied that, but for the injuries, Mr Harvey would have realised his ambition of becoming a chef within a reasonably short time. Mr Harvey was a most impressive man with an excellent work history. The trial Judge found him as a witness to be careful and considered and accepted him totally as a witness of truth. He would present to an employer as a hardworking and loyal employee with an excellent work history and an excellent attitude to work. His Honour accepted that he had done all he reasonably could to obtain work since the accident, notwithstanding the very significant injuries and disabilities that he had been left with. He was satisfied that, if not injured in the accident, he would probably have proceeded to complete his training as a chef and would have obtained work as a chef, not necessarily at the club, but probably at another such establishment if not in Albury then in Canberra.

23 He took into account and accepted Mrs Harvey's evidence that she had a senior position involving knowledge of employment opportunities, and that prospects for his employment were now bleak. The trial Judge said:

"I consider it unlikely he will ever obtain any significant paid work, by reason of his injuries. I note that workers compensation rehabilitation helpers have ceased assisting him in any way and have expressed the view that by reason of his age and disabilities, they are unable to help him. That observation I find perfectly understandable."

24 It was unlikely that Mr Harvey would obtain any work which would cause him to receive any significant income. His Honour was satisfied, but for the injuries, Mr Harvey would have worked at least until sixty-eight. He had resigned the part-time job, which he had gone back to after the accident, in October 1999 when Mr Harvey's wife was given a senior position in Canberra. She and Mr Harvey moved to Canberra. The trial Judge found that Mr Harvey would always have a need to consult general practitioners for pain relieving drugs. He would always need physiotherapy and drugs to be prescribed for him. The trial Judge was satisfied that Mr Harvey had a need for his wife or others to assist him with housekeeping and nursing care and the like, after each of the procedures he had, and would always have such needs.

25 His Honour awarded general damages of $130,000 and added interest of 2 per cent on $65,000 for six years, $5,200. For past economic loss he awarded $88,240 consisting of 78 weeks at $380 a week, 140 weeks at $500 a week, and then for a further period of 24 weeks at $270 a week. For past out-of-pocket expenses the agreed figure was $63,873.

26 For future economic loss, the trial Judge thought it appropriate to adopt $500 a week and allow an amount based on that figure on the 3 per cent table to age sixty-eight less 15 per cent which was $140,250. For future superannuation he awarded $15,147 derived by taking 120 per cent of the future economic loss award and applying 9 per cent. The Fox v Wood element was agreed at $6,340.84.

27 The trial Judge accepted Mr Harvey's submission as to the calculation of past Griffiths v Kirkemeyer damages and awarded $53,550 for that. He added $12,852 for interest calculated at 6 per cent over four years. For future Griffiths v Kirkemeyer damages the trial Judge ordered $100,956.

28 For future out-of-pocket expenses the trial Judge awarded $54,404. The total unadjusted was $670,812.84.

29 Adjusted pursuant to s151Z of the Workers Compensation Act the verdict against Zauner became $662,190.18. Allowing for the apportionment of 15 per cent in accordance with the Act the verdict against Zauner became $652,609.84.

30 In the result, there were amended verdicts, judgments and orders as follows:

"2. Verdict and judgment for the plaintiff against the first and second defendants jointly and severally in the sum of $549,459.84 with costs.

3. Verdict and judgment for the plaintiff against the second defendant solely and additionally for a further sum of $103,149.36.

4. Verdict and judgment for the first defendant against the second defendant in the sum of $467,040.86. Such order may be satisfied by the second defendant's paying said monies to the plaintiff in part satisfaction of order 2 above.

5. Second defendant to pay 85% of the first defendant's costs of its cross claim.

6. Cross claim by the second defendant against the first defendant is dismissed.

7. Second defendant to pay first defendant's costs of that cross claim.

8. Second defendant is to pay 85% of the first defendant's costs of the action and indemnify the first defendant as to 85% of such costs as it pays or is obliged to pay the plaintiff.

9. Order 8 is to operate so that as between defendants, the first defendant to pay 15% and the second defendant to pay 85% of the plaintiff's costs."

Grounds of appeal

31 Zauner appealed against this decision and relied upon the following grounds:

"2 His Honour erred in failing to find that the Clause 8.8 of the Lump Sum Contract operated in favour of the Appellant leading to sole liability being found against [Commercial].

3. In the alternative, his Honour erred in the apportionment of liability between the Appellant and the Second Respondent.

5. His Honour erred in the assessment of damages which was excessive."

32 Ground 5 was directed against the assessment of damages for future economic loss having regard to Mr Harvey's residual earning capacity and his ability to continue in employment even if uninjured.

Ground 2

33 The building contract made on 6 July 1998 was in a standard form headed "Lump Sum Contract for simple building works Edition 2", the copyright of the Royal Australian Institute of Architects and Master Builders Australia dated 1997. It assumed that the proprietor had appointed an architect. By definition "The Works" meant "the whole of the work described in Item B5 of the Appendix" (1.2.5), that is to say:

"The whole of the work to be executed in accordance with this Agreement, namely the construction of alterations to an existing registered club and associated works as shown, described or referred to in this Agreement and including all Variations provided for by this Agreement."

According to P8.3, in P8 only, the meaning of "the Works" is enlarged to include associated temporary works such as off site storage and transit within Australia.

34 "The Site" meant "The lands and other places to be made available by the Proprietor to the Builder for the purposes of this Agreement and as more specifically defined in Item B6 of the Appendix" (1.2.6), that is to say: the address of Commercial's club premises at 618 Dean Street, Albury.

35 "Practical Completion" was defined as "The stage of being substantially complete and fit for use and/or occupation by the Proprietor" (1.2.9) and "The Date for Practical Completion" as "The date on or before which the Builder is to bring the Works to Practical Completion, namely the date stated in Item B9 of the Appendix subject to adjustment as provided for in Section 9" (1.2.10). There were against the margin "B9 1.2.10 Date for Practical Completion" three dates, "Stage 4A - 7/9/98 Stage 4B - 19/10/98 Stage 4C - 9/11/98".

36 Clause 1.3 obliged the Builder to "bring the Works to Practical Completion by the Date for Practical Completion" (1.3.3). Section P8 was headed "Indemnities and Insurances" and dealt with "Liability for Damage to Property" (P8.1), "Liability for Injury to Persons (P8.2), "Insurance of the Works", "Public Liability Insurance", and "Workers' Compensation and Employers' Liability" (P8.3, 8.4 and 8.5) and "Settlement of Claims" (P8.6).

37 P8.3 and 8.4 imposed upon the Proprietor the obligation to effect the insurance described. P8.5 imposed upon the Builder the obligation to obtain the insurance described. The insurance of the works described in P8.3 was to be under a Contracts Works Insurance policy "which at all times covers the whole of the Works including any associated temporary Works and including material incorporated or to be incorporated therein the property of the Insured or for which they are responsible and whilst on or adjacent to the Site of the Works, in storage off site and in transit within Australia to or from the Site all of which are in this section P8 only called `the Works' in respect of loss, destruction, or damage of or to the property insured ...".

38 P8.7 ("Periods of Insurance") and P8.8 ("Occupation") were as follows:

"P8.7 PERIODS OF INSURANCE

The insurances referred to in clauses P8.3, P8.4 and P8.5 have been or shall be effected so as to be in force as and from the date the Proprietor makes the Site available to the Builder and shall be maintained effective in respect of damage to the Works until Practical Completion of the Works and in addition shall cover work done under clause 6.8, and in respect of public liability and of workers' compensation and employers' liability until issue of the Final Certificate.

P8.8 OCCUPATION

Should the Proprietor or any tenant or other person authorised by the Proprietor enter into occupation of the Works or any portion thereof and/or use the same before Practical Completion of the Works, then in respect of injury to or death of persons and damage to property, including the Works, the Works shall be at the sole risk of the Proprietor."

39 Section 9 of the Contract was headed "Time". 9.1 headed "Practical Completion" provided that the Architect should decide the date when in the Architect's opinion the works had reached a state of Practical Completion and should thereupon notify in writing the Proprietor and the Builder accordingly with provisos that it is unnecessary to consider. Mr Simmons, a director of Teilion Pty Ltd, the architect named in the contract, said that at the date of the incident the Practical Completion of Stage 4A of the contract, which was the first bundle of works in the contract, had not been reached.

"... the reason the demonstration was given at that time was the dishwasher was installed by a contractor from Newcastle who was there for a limited amount of time. It was a time when he was in Albury and the dishwasher could be demonstrated to the staff. The handover of the first stage of the work and practical completion of the first stage of the work did not occur until some time after October 2nd."

40 Counsel for Zauner put this question:

Q. Sir, the concept of practical completion has a number of ramifications in terms of the contractual responsibilities of parties, doesn't it? A. Yes.

Q. I didn't ask you about contractual completion - practical completion. What I said to you in my question was that, from the time that the kitchen staff thereafter used the dishwasher and the area in which the dishwasher was located? A. No, they did not. The new dishwasher was not used by kitchen staff on the day subsequent to the demonstration. They continued to use their old dishwasher for some time after the demonstration of the new dishwasher, and the new dishwasher - how can I put it - lay idle and unused for a period of time.

Q. Sir, were you in attendance at the club during the operational hours of the kitchen beyond the installation of the dishwasher, as a basis for making that statement? A. I was not there every minute of the day."

41 Mr Bulman described an arrangement whereunder while work within the kitchen area of the club was in progress, areas were cordoned off by barricade hoarding to segregate those areas where building work was being carried out from areas where the kitchen remained in operation.

42 Ms Reid gave the following evidence about the erection of the hoarding to prevent access to areas where building work was being performed:

"Q. Now from the time that the staff assembled in the kitchen for the purpose of being shown how the dishwasher was used that area was then utilised by you and your staff for performing your duties, wasn't it? A. Yes.

Q. That area was effectively given back to you-- A. Yes.

Q. --for the purpose of being shown that dishwasher use and thereafter-- A. Use it.

Q. --to utilise that portion of the kitchen which had been finished for those purposes? A. Yep."

43 Clause P8.8 is in a form which is not new. However, we were told that the research of counsel had revealed no helpful discussion about its meaning. Mr Hislop QC, who appeared for the appellant, boldly submitted that the use of any portion of the Works before Practical Completion of the Works would in respect of injury to or death of persons and damage to property, including the Works, put "the Works ... at the sole risk of the Proprietor". Clearly this is wrong, despite the definition in B5 of the Works as the whole of the work to be executed in accordance with the agreement, if only for the reason that there are three stages of Practical Completion. It would be absurd to suggest that if Commercial went into occupation of that portion of the Works which was stage A or began to use that portion of the Works, either before or after Practical Completion, the whole of the Works would be at the sole risk of the Proprietor. Absurd though this suggestion seems, the fact that it is made by senior counsel suggests that a strict construction of P8.8 produces a result which could not conceivably have been intended by the parties to the agreement.

44 The expression "The Works shall be at the sole risk of the Proprietor" has the meaning, common in insurance, that the proprietor shall be solely liable in the circumstances described for injury to or death of persons and for damage to property; see Bradford v Symondson (1881) 7 QBD 456 at 464. For the reason to which I have already adverted, this expression cannot sensibly be read as meaning that because the proprietor has entered into occupation of a portion of the Works or used a portion of the Works, the whole of the works are at the sole risk of the proprietor. Once one accepts that, it is reasonably clear that what was intended was that if the proprietor enters into occupation of or uses a portion of the Works, that portion shall be at the sole risk of the proprietor. Accordingly, if a portion of such Works is occupied or used by the proprietor and injury or death or damage occurs in that portion of the site or results from its use, and this is to put it as its broadest, then the proprietor is solely liable for the consequences of that injury, death or damage. But even then the language is opaque. What is meant by "enter into occupation of the Works" or "use the same"?

45 On the facts of this case it is not necessary to define precisely the limits of the meaning of P8.8. At the time the dishwasher demonstration was scheduled to begin, there was no certificate of Practical Completion. Zauner had arranged with the contractor, responsible for installing the dishwasher, a demonstration of it to employees of Commercial for obvious reasons. By their attendance, apparently by arrangement or at the invitation of Zauner, Commercial did not occupy that area of the site or of the Works. The contrary was barely suggested. No more could it be said in any sensible way that Commercial was using any portion of the Works. Sense can only be given, to what is an ill thought out clause, by treating it as designed to deal with the situation before Practical Completion, that is to say before the stage of being substantially complete and fit for use and or occupation by Commercial, where the proprietor occupies or uses portion of the Works in a way or to an extent that would only have been permitted if a certificate of Practical Completion had been given. It may or may not have been correct to say that after the incident of 2 October 1998 and before a certificate of Practical Completion issued, Commercial did within the meaning of P8.8 occupy or use portion of the Works but that is irrelevant in the present case. There was no evidence that Commercial had entered into occupation of or used the kitchen portion of the Works, properly understood, by allowing its employees to attend a demonstration of the dishwasher as arranged by Zauner.

46 A further factor is that Mr Harvey was injured in consequence of Zauner's negligent act in the course of its legitimate occupation and use of the site or Works. At the time that Mr Harvey was injured, in my opinion, neither the Works not any relevant portion of the Works were at the sole risk of Commercial pursuant to P8.8. The second ground of appeal should be rejected.

Ground 3

47 The trial Judge said:

"I consider [Zauner] ought take the major share [of the responsibility]. It was actively carrying out building work. It was in breach of building regulations designed for the safety of people. It failed to ensure the plaintiff was not on the other side when working on the wall. It supplied the defective screw which is said to have caused the wall to fall. In my assessment [Zauner] ought bear 85 per cent of the responsibility, and [Commercial] 15 per cent."

48 Mr Hislop challenged this apportionment. It was said that Zauner should, at most, have borne 60 per cent of the responsibility. In the first place, he submitted that Zauner was not in breach of reg 73(16) or (17) properly understood. Those regulations were in the following terms:

"Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74, -

...

(16) take all practical precautions by the use of adequate temporary guys, stays, supports and fixings or otherwise to prevent danger to any person through the collapse of any part of a building or structure during any temporary state of weakness or instability of the building or structure or part before the building or structure is completed;

(17) where any construction work is carried on which is likely to reduce, so as to endanger any person, the security or stability of any part of an existing building or structure or of a building or structure in course of construction, take all practicable precautions by shoring or otherwise to prevent danger to any person from the collapse of the building or structure or the fall of any part thereof;"

Regulation 74 had no relevance.

49 Zauner by its employee Mr McCallum, was in the course of setting up a hoarding consisting of what appeared from the photographs in evidence to be a row of large panels attached to a fixed plate at the top and apparently to one another. Whatever the precise way in which this was done, obviously in the course of being set up, the panel would at various stages be unstable and it was reasonably foreseeable that a panel or panels could fall down, if something broke or for other reasons. There was a clear danger to anyone close enough to be hit by a falling panel and it is quite clear from all the evidence, that it was recognised that while the procedure was going ahead people should not be within close proximity to the structure. Whether or not what happened was covered by the regulations, and I am inclined to think it was, any person standing near the panels when they were being erected was in danger of serious and foreseeable injury. Mr McCallum realised this when he saw what had happened. It could hardly be contested.

50 As the trial Judge said, it was a case of obvious negligence. He found that at about 8.15 am while Mr Harvey was waiting at Commercial's premises to watch a demonstration of the use of a dishwasher and in the course of his employment the temporary wall which had been put in place by Zauner's employee fell over and hit him and injured him. His Honour was satisfied that Mr McCallum knew, or ought to have known, that there were people in the vicinity and that he should have taken steps to ensure that no one was there. His Honour was satisfied that Zauner failed to take practicable precautions by ensuring there was no danger to people from the fall of the wall.

51 Commercial owed a duty to take all reasonable steps to ensure that the work area was safe to work in and must bear part of the responsibility. In Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALR 65 Hayne J, with whom the other members of the Court agreed, said at 68 in reference to Pt 3 of the Law Reform (Miscellaneous Provisions) Act 1965 and contributory negligence apportionment:

"This and other apportionment legislation is predicated upon a finding that a person suffers damage as the result partly of the person's own fault and partly of the fault of any other person or persons. No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494; Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16, but that is not the only element to be considered. Regard must be had to the `relative importance of the acts of the parties in causing the damage' (Podrebersek at 494) and it is `the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination' (Podrebersek at 494) (italics added).

No doubt also, as the Court said in Podrebersek `[t]he significance of the various elements involved in such an examination will vary from case to case' and `the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing damage will be of little, if any, importance."

52 In my opinion, in the present case there could be no doubt that the degree of departure from the standard of care of the reasonable person was far greater in the case of Zauner than in the case of Commercial and the acts of Zauner were relatively far more important in causing the injury to Mr Harvey. Whether this Court might have itself made a different apportionment more favourable to Zauner is beside the point. As the High Court said in Podrebersek at 494, apportionment involves an individual choice or discretion as to which there may well be differences of opinion by different minds. Such a finding, if made by a judge, is not lightly reviewed.

53 In my opinion, his Honour's apportionment was not so unfavourable to Zauner, bearing in mind the considerations to which I have referred, that the Court must conclude that it is vitiated by some erroneous understanding of the law or the facts. I would reject ground 3.

Ground 5

54 Not subject to appeal was the trial Judge's award of general damages of $130,000. This demonstrated the substantial injury Mr Harvey sustained. Mr Harvey, at the time of his injury, was working as a kitchen hand with prospects of promotion to being a full time chef. Quiet clearly, damages were assessed on the basis that he had good prospects of achieving this ambition although he was fifty-eight at the time of the accident. He had also worked for many years as a motor mechanic and Mrs Harvey, his wife, had been offered employment away from Albury in Canberra. His Honour made a deduction of 15 per cent for vicissitudes.

55 Dr Berry reported on 7 May 2002 that on the basis of that day's examination Mr Harvey "is permanently unfit for his pre-injury duties as kitchen hand and I would consider him permanently unfit to work as a motor mechanic. At most he would be able to do light sedentary duties which require very little right hand activity and given his age, I doubt he would be able to return to the work for full time."

56 Mrs Harvey was the National Manager, Service Delivery Operations, for the Commonwealth Rehabilitation Service and had made enquiries in relation to seeking work for Mr Harvey. She received a negative response. In cross-examination Mr Harvey was pressed about attempts that he had made to obtain part-time work and about work that it was suggested he was capable of undertaking. In response to the suggestion that having been certified for light duties he might undertake vegetable preparations some hours each day he replied: "Yeah, but it would take me all day to do what anyone else would do in an hour or two hours."

57 I have summarised the trial Judge's findings about Mr Harvey's injuries and his work prospects, before and after he was injured, at paras 19 - 24. He was left with little use of his right arm and significant problems with his left arm. After the accident he had done what he could to obtain work but clearly with his disabilities his prospects of doing so were very very low. This was confirmed by the attitude of those responsible for his rehabilitation. By comparison, his prospects before the accident, of becoming and working until he chose to retire as a chef were excellent.

58 In submitting that the award for future economic loss was excessive, Mr Hislop said that on the evidence, Mr Harvey had been promised a job by the club chef once he had completed his course but in fact had been employed as a kitchen hand and there was no guarantee that if he had not been injured he would have become a chef at the club. Reference was made to the award rates to suggest that the net rate of $500 a week was too high. It was pointed out that Mr Harvey went back to light duties with the club but resigned in order to go to Canberra with his wife. Mr Hislop submitted that the trial Judge assessed damages without allowing for the fact that Mr Harvey did not have a job as a chef and might never have obtained one and that he did have a retained capacity to work and expressed an intention to seek out and endeavour to get work. Further, it was said only to be a possibility that he would have worked beyond the age of sixty-five. There was the further possibility of disruption caused by changes in Mrs Harvey's career.

59 Mr Dooley, who appeared for Mr Harvey, made extensive reference to the evidence. Mr Harvey had undergone four significant operations to his right arm and one to his left arm. He had lost significant use of his right arm and with respect to his left arm could probably lift only about five kilograms. He had made proper and reasonable attempts to rehabilitate himself and return to the workforce but his rehabilitation provider had ceased to assist him as a result of its inability to obtain suitable work for him having regard to his age and disability. In cross-examination, employment positions were suggested with unrealistic qualifications. One example was a suggestion that he could perform sales or retail sales of spare parts and that the work could be done with the assistance of fellow employees for the heavier work. As Mr Harvey rightly pointed out, he would have to find an employer who was prepared to allow this to happen which his interrogator accepted. Mr Harvey gave the following evidence:

Q. You were asked about going up and looking for work and looking at someone in the eye and shaking their hands. Does it hurt you to shake hands on occasions. A. Yes it does.

Q. Do you often have to shake hands with the left hand rather than the right? A. I have done quite often at different times.

Q. You were asked about being a spare parts salesman I think or whatever, if you had to lift even small boxes and put them at above shoulder or above height how would you go doing that? A. Wouldn't be able to.

Q. What about going down low and getting them out with both hands would you be able to do that? A. No I could go down and get it out with my left hand but my right hand don't go.

Q. So if the parcel is one that you couldn't grip with just your left hand you wouldn't be able to lift it is that right? A. That's right.

Q. Now in terms of being a console operator, how would you operate a cash register, would you be able to do it with your right hand? A. No.

Q. Any you are right handed is that right? A. Yes.

Q. If you had to replace stock would you be able to do that? A. If it wasn't heavy lifting or above shoulder height.

Q. Well you've seen those fridges in-- A. No.

Q. In the service stations, would you be able to restock them? A. Bottom shelves yes but not--

Q. What about the other shelves from about halfway, if I can put it like that, up the top? A. About from waist height up is a problem.

Q. Now you've looked for jobs is that right? A. That's correct.

Q. Do you tell the Court you've used your best endeavours? A. I beg your pardon.

Q. Do you tell the Court you've done your best, you've done your best looking for work? A. I have, I look at the paper and as I said I have made a couple of approaches.

Q. Have you spoken to your wife and discussed what options you might have for work? A. I have.

Q. And is she the national manager of service delivery operations for the Commonwealth Rehabilitation Service? A. That's correct."

60 In evidence Mr Harvey explained his difficulty in putting a shirt on. His evidence about his disability was never challenged. He explained why he proposed to work until the age of sixty-eight and that was not significantly challenged. The evidence demonstrated the calculation of over $700 per week gross that he would have earned as a chef. This was the basis for the $500 net weekly amount used by the trial Judge. The work provided for him after the accident by Commercial was to assist in rehabilitation.

61 In my opinion, the findings made by the trial Judge and his assessment of damages for future economic loss were justified and no ground is shown for this Court to intervene with them.

Orders

62 The appeal should be dismissed with costs.

63 McCOLL JA: The facts and issues are set out in the reasons for judgment of Sheller JA. I agree with Sheller JA's reasons and the orders his Honour proposes. I would add a few words of my own in relation to Ground 2 concerning cl 8.8 of the Lump Sum Contract for Simple Building Works made on 6 July 1998, the details of which are set out in Sheller JA's judgment.

64 Clause 8.8. provides:

"OCCUPATION

Should the Proprietor or any tenant or other person authorised by the Proprietor enter into occupation of the Works or any portion thereof and/or use the same before Practical Completion of the Works, then in respect of injury to or death of persons and damage to property, including the Works, the Works shall be at the sole risk of the Proprietor."

65 The appellant relies upon cl 8.8 to contend that in the circumstances of the second respondent's staff having entered the kitchen area from about 7.45 am on the morning of the accident, the second respondent had entered into occupation or use of the kitchen area so that the "sole risk" of injury had passed to the second respondent.

66 The appellant argued that the contra proferentem maxim applied because the contract had been "prepared" by Mr Simmons, the second respondent's architect. On that basis it submitted that, to the extent of any ambiguity, cl 8.8 should be construed against the second respondent.

67 The appellant referred to cross-examination of Mr Simmons in which he agreed that the contract had been provided by him to the appellant following the tender process and the awarding of the contract to the appellant. Earlier, however, Mr Simmons had acknowledged in response to a question put in cross-examination by counsel for the appellant that the lump sum contract was a standard form obtained through the Royal Australian Institute of Architects. Mr Simmons also pointed out that when the work was tendered, the conditions of contract advised the builder that the Lump Sum Contract for simple building works would be the form of contract for the works for which he was tendering.

68 The contra proferentem maxim, simply stated, involves the proposition that "words in a contract (particularly exclusion clauses) are construed against the person for whose benefit they are inserted": Lewison, The Interpretation of Contracts (Sweet & Maxwell 1997, 2nd Ed at 6.07). The maxim has, historically, been the subject of differing interpretations, as Campbell J explained in his comprehensive treatment of the subject in North v Marina [2003] NSWSC 64 at [56] ff.

69 It is not necessary to embark upon an elaborate dissertation of the maxim for the purposes of this case. In my view the appellant's submission concerning the applicability of the maxim in the present context is best met by referring to Pearson LJ's judgment in Tersons Limited v Stevenage Development Corporation [1963] 2 Lloyd's Rep 333 at 368. Dealing with a submission that the contra proferentem maxim should be applied in respect of General Conditions to civil engineering contracts, his Lordship stated:

"In my view, the maxim has little, if any, application in this case. The General Conditions are not a partisan document or an `imposed standard contract' as that phrase is sometimes used. It was not drawn up by one party in its own interests and imposed on the other party. It is a general form, evidently in common use, and prepared and revised jointly by several representative bodies including the Federation of Civil Engineering Contractors. It would naturally be incorporated in a contract of this kind, and should have the same meaning whether the one party or the other happens to have made the first mention of it in the negotiations."

70 This passage from Pearson LJ's judgment was referred to with apparent approval in Jennings Construction Limited v Q H & M Birt Pty Limited (1986) 8 NSWLR 18 at 25 per Smart J.

71 His Lordship's statement is clearly applicable to the Lump Sum Contract used in this case. It was not a document "prepared by" the second respondent's architect as the appellant submitted. Rather, it was a contract appropriate to the works at hand which was procured by Mr Simmons from the Royal Australian Institute of Architects. It was not a partisan document nor drawn up by the second respondent in its own interests and imposed on the appellant.

72 I would also add, however, that even if the maxim could have any relevance in the present context, it would be appropriate to have regard to two other aspects of the maxim. The first is that it "is not a legitimate use of the maxim to say that two meanings of a particular contractual provision are possible, and that the meaning unfavourable to the proferens should be chosen, if one of those alternative meanings is an unrealistic or unlikely construction of the contract": North v Marina, above, at [75]. As will be apparent from what appears below, the construction the appellant seeks to place upon cl 8.8 is both unrealistic and unlikely.

73 Secondly, the contra proferentem maxim is "a principle of last resort": Judges should seek to apply principles of construction first rather than use "mechanical formulae" to resolve such issues: McCann v Switzerland Insurance Australia Limited [2000] HCA 65; (2000) 203 CLR 579 at 602 [74] per Kirby J. In my view a sensible meaning can be given to cl 8.8 applying those principles. It is not necessary to resort to the contra proferentem maxim.

74 I turn then to the proper interpretation of cl 8.8. As Sheller JA has observed, counsel did not refer the Court to any authorities which might cast light upon the proper construction of that clause.

75 The appellant submitted that cl 8.8 applied because, on its literal interpretation, the second respondent had, at least, used a portion of the works before practical completion. On that basis the appellant contended that the entirety of the Works should be at the second respondent's "sole risk", notwithstanding the fact that the appellant was still performing the contract. Indeed, immediately prior to its collapse, the appellant's employee was bracing the wall which fell on the first appellant. The appellant's submissions went so far as to embrace the proposition that if somebody on the builder's side of the wall had fired a rivet gun and the missile had penetrated the wall and struck the first respondent in the kitchen area, cl 8.8 would apply.

76 The proper meaning of cl 8.8 does not turn upon a mechanistic and literal approach to the words used in the provision. Rather, interpreting cl 8.8 involves determining the meaning it would convey "to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract": Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; (2001) 210 CLR 181 at 188 [11] per Gleeson CJ, Gummow and Hayne JJ.

77 The only "background knowledge" available to this Court is that to which I have already referred, namely that the parties used a standard form building contract. The determination of the document's meaning must, therefore, be found within its four walls. Regard must be had to the whole contract, rather than, as the appellant's approach indicated, merely to the words of cl 8.8.

78 In that context I would note the following matters. First, as observed by Sheller JA, the contract contemplated three stages of Practical Completion. Accepting the appellant's literal approach to cl 8.8 leads to the "absurd" consequence as Sheller JA has pointed out (at [43]) that cl 8.8 would apply even if the second respondent went into occupation of one stage in respect of which Practical Completion had been achieved, even though the contract contemplated two further dates for Practical Completion of the remaining two stages.

79 Secondly, acceptance of the appellant's literal construction involves the proposition that even a comparatively minor and transient "use" of the Works prior to Practical Completion shifted responsibility for the entirety of the Works to the second respondent. This would seem to involve the proposition that the contract contemplated that nobody other than the appellant was permitted to "use" the site prior to Practical Completion. That is an unrealistic and unlikely proposition which, having regard to the contract, cannot be sustained. The contract does not give the builder possession of the site to the exclusion of any persons. Clause 3.4 which deals with possession provides:

"Whilst the Site remains in the Builder's possession, such possession shall include the right to exclude or remove unauthorised persons therefrom."

80 Clause 3.4 clearly contemplates that authorised persons can enter the Site during the execution of the works, without the "sole risk" referred to in cl 8.8 passing to the Proprietor. That was what happened on the day of the accident. The appellant had arranged the dishwasher demonstration the first respondent was attending and had clearly authorised the attendance of the participants.

81 Further guidance to the proper construction of cl 8.8 can be found in the definition of "Practical Completion" in cl 1.2.9 which provides:

"Practical Completion - The stage of being substantially complete and fit for use and/or occupation by the Proprietor."

82 As can be seen, the definition of "practical completion" uses the same expression "use and/or occupation" as appears in cl 8.8. In my view that assists in demonstrating that cl 8.8 is intended to operate in circumstances where the Proprietor, by itself or by authorising others including tenants, has occupied and/or used all or a portion of the Works to the exclusion of the builder. That would most commonly occur when the builder had finished executing the Works, had made them available to the Proprietor for use and/or occupation but the Architect had not formally notified that they were practically complete as contemplated by cl 9.1 of the contract.

83 Clause 8.8 has no application, however, in the present circumstances. The Works had not reached practical completion either formally or informally as Sheller JA has explained. Secondly, while the Proprietor had "used" the Works, it was the appellant which, by arranging for the demonstration of the dishwasher on the day in question, permitted that use. An entry authorised by the Builder rather than the Proprietor did not, in my view, constitute "use" of the site for the purposes of cl 8.8.

84 Such a construction of cl 8.8 is consistent with the conclusion reached in CSR Limited v Elliott (Court of Appeal, unreported, 23 June 1994, BC9404968). In that case Priestley JA (with whom Kirby P and Handley JA agreed) considered the meaning of cl 20(c) of a standard form building contract which was substantially similar to cl 8.8. It provided:

"Should the Proprietor or any tenant or other person authorised by him enter into occupation of the Works or any portion thereof and use the same the Builder shall not be liable for any injury to or death of any person or loss or damage to property (including the Works) which may be occasioned by such occupation and use."

85 Priestley JA held that cl 20(c) only applied "to a situation where the proprietor, tenant or authorised person had entered into occupation of the Works or some part of the Works and used them to the exclusion of the Builder, or otherwise in such a way as to justify the conclusion that the control of the Works or the particular part of the Works had past from the Builder". His Honour also construed the clause to relieve the Builder of liability for personal injury which was "occasioned by" the "occupation and use" into which the Proprietor, tenant or other person had entered at a time until which the Builder was in possession of the Site of the Works.

86 The plaintiff tripped over a piece of raised felt in the foyer of a building being refurbished pursuant to the contract. The felt had been placed over the floor of the foyer, presumably for protection. In such circumstances, Priestley JA was of the view that cl 20(c) did not apply because the Builder was still in possession of the Site of the Works and it was the protruding felt he had left which had occasioned the relevant injury.

87 Applying that reasoning to this case, it is plain that the second respondent had not used the Works in a way which justified the conclusion that the control of the Works, or even the part in which the dishwasher demonstrated was being conducted, had passed from the appellant.

88 GROVE J: I agree with the judgment of Sheller JA.

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LAST UPDATED: 14/05/2004