Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk [2011] NSWCA 12 (15 February 2011)

Last Updated: 25 May 2011

Court of Appeal New South Wales

Case Title:	Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk
Medium Neutral Citation:	[2011] NSWCA 12
Hearing Date(s):	1 February 2011
Decision Date:	15 February 2011
Jurisdiction:
Before:	Allsop P at 1; Hodgson JA at 33; Whealy JA at 34
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - apportionment between tortfeasors - occupier's liability - apportionment; not unreasonably low
Legislation Cited:	Workers Compensation Act 1987 (NSW) s 151Z, Civil Liability Act 2002 (NSW) s 5R
Cases Cited:	Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Archer v Hall [1967] 1 NSWR 107 Bates v Parker [1953] 2 QB 231 Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 Mambare Pty Ltd trading as Valley Homes v Bell [2006] NSWCA 332 Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7 Pinborough v Minister of Agricultlure (1974) 7 SASR 493 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Unilever Australia Ltd v Pahi [2010] NSWCA 149 Wilsons & Clyde Coal Ltd v English [1937] UKHL 2; [1938] AC 57 Wright (WH) Pty Ltd v Cth [1958] VicRp 50; [1958] VR 318
Texts Cited:
Category:	Principal judgment
Parties:	Ilvariy Pty Ltd trading as Craftsman Homes (Appellant) Milan Sijuk (Respondent)
Representation
- Counsel:	Counsel: Mr M Williams SC, Mr D O'Dowd (Appellant) Mr L King SC, Mr G Bateman (Respondent)
- Solicitors:	Solicitors: James Tuite & Associates (Appellant) Martin Bell & Co (Respondent)
File number(s):	2009/297729
Decision Under Appeal
- Court / Tribunal:
- Before:	Hall J
- Date of Decision:	12 July 2010
- Citation:	Sijuk v Ilvariy Pty Limited, t/as, Craftsman Homes [2010] NSWSC 354
- Court File Number(s)	2002/297729
Publication Restriction:

Judgment

1. ALLSOP P: Mr Milan Sijuk was an experienced workman who carried out work as a brick-cleaner. He was employed by his wife Grozdana, who carried on business as Rosa's Cleaning Service. On Saturday 3 April 2004, Mr Sijuk suffered personal injury when he fell through a hole in scaffolding on a building site to a lower level while he was cleaning the outside brickwork of a nearly completed house at Cherrybrook NSW.
   
2. The primary judge (Hall J) concluded that both Mrs Sijuk (the employer) and the builder of the house with possession of the site (the defendant/appellant, Ilvariy Pty Ltd ("Ilvariy") trading as Craftsman Homes) breached duties of care owed to Mr Sijuk causing the injury. The primary judge assessed Mr Sijuk's contributory negligence as 15 per cent and Mrs Sijuk's responsibility as employer for the purposes of the Workers Compensation Act 1987 (NSW), s 151Z as 10 per cent.
   
3. Ilvariy appeals on the basis that:
   

(a) it owed no duty of care to Mr Sijuk;

(b) if owing a duty, it did not breach it;

(c) if there were a duty and if it were breached, such breach was not causative of the loss; and

(d) if (a) - (c) are not accepted, both the assessments of contributory negligence and the employer's share of responsibility were unreasonably low and outside the legitimate discretionary range of the learned primary judge.

4. For the reasons that follow the appeal should be dismissed with costs. Ilvariy did owe a duty to Mr Sijuk, it breached that duty, that breach was causative of the accident and the assessments of contributory negligence and the employer's responsibility were reasonably open.
   

Duty, breach and causation

5. The relevant facts are not complex. The essential facts that were not controversial on appeal were as follows. Mr Sijuk was 54 years old at the date of the accident on Saturday, 3 April 2004. He had worked as a brick cleaner since 1997, and since 2003 had been employed by his wife. Mr Sijuk had undertaken a lot of brick cleaning jobs for Craftsman before April 2004. On the Wednesday or Thursday before the accident, Mr Storrier, a supervisor employed by Craftsman, called Mrs Sijuk and told her that the job would be ready for Sijuk to do the brick cleaning work on Saturday. After the accident Mr Kalanj, a cousin of Mrs Sijuk who was called after the accident, attended the site and saw a square piece of scaffolding missing. Mr Cowling, the expert called in the case for the plaintiff, said that Mr Sijuk should have inspected the scaffolding before starting work. Mr Sijuk was found underneath the scaffolding by a neighbour, Mr Thompson. The scaffolding was erected by Uni-Roof (Hire) Pty Limited. It had a sign on it that said it was safe, which Mr Sijuk saw before climbing on to the scaffolding and which gave him a level of comfort as to its safety. When Mr Storrier inspected the scaffolding on Wednesday it was in a satisfactory condition. The primary judge described this evidence of Mr Storrier as unreliable. When Mr Storrier attended the site on the Monday after the accident he found a 600 mm x 600 mm piece of scaffolding had been taken out and was sitting on the lower level of the scaffold. The carpenters, Mr Reid and Mr Henderson, had worked on the site on Wednesday, 31 March. They did not see any pieces of scaffolding missing when they were on site. Their evidence did not, however, support a conclusion of a detailed inspection by them. His Honour found (in respect of which finding there was no challenge) that between Wednesday afternoon and Saturday morning an unknown person moved a 600 mm x 600 mm piece of scaffolding from its position thereby leaving a gap or hole in the scaffold. The site of the scaffolding was not secure from public access. No person worked on the site between Wednesday afternoon and Saturday morning.
   
6. Central to the arguments put on appeal about Ilvariy's responsibility or not was whether it, through Mr Storrier or another suitable person, was obliged to exercise reasonable care to make the site safe for workmen who were invited on to do work. It was submitted on appeal (and this was the essence of the primary judge's conclusion) that this duty was breached by Ilvariy failing to inspect the scaffolding on the morning of Mr Sijuk's work and before he commenced. Another way that the matter was put on appeal by the respondent was that Ilvariy had a duty of co-ordination of the tradesmen working on the site in connection with the site itself to exercise reasonable care to organise and co-ordinate a safe site upon which they could work, which duty was breached by the failure to inspect the scaffolding before Mr Sijuk commenced work on Saturday.
   
7. The primary judge's factual analysis (about which there was no complaint on appeal) is contained in [136]-[159] of his reasons. Relevantly he found as follows. The evidence of the arrangement between Mrs Sijuk and Mr Storrier was "imprecise". Ilvariy had engaged Mr and Mrs Sijuk previously. The usual practice adopted by the defendant for engaging the plaintiff and his wife's business was quite informal without much in the way of record keeping. The arrangement involved a phone call and the issue of a purchase order. The brick cleaning was to be done on a day when no-one else was required to work on site because of the need to use diluted acid solution for the purpose of cleaning the brickwork. On Mr Storrier's evidence, it would have been quite acceptable to him for the plaintiff to have done the work on the Thursday, Friday or Saturday of the week in question (there apparently being no other trade work on those days). Mrs Sijuk said that it was common practice for such work to be done on Saturdays. It is reasonable, in those circumstances, to infer that both Mrs Sijuk and Mr Storrier would have considered the Saturday as, at least, an equally likely day for the plaintiff's attendance at the site as the Thursday or Friday. As Saturday was the day brick cleaning was often done, if anything, Saturday 3 April presented as the likely day on which the plaintiff would attend the site.
   
8. The defendant/appellant argued that Mr Storrier was not told, as he should have been, when Mr Sijuk would do the work. If Mr Storrier had been told he would (he said) have had the site (including the scaffolding) inspected before Mr Sijuk undertook his task. The latter part of that evidence was relevant to the question of duty and breach.
   
9. The primary judge said the following at [140]-[143]:
   

"[140] Mr Storrier's evidence was to the effect that, in his phone call, the site was available from the Wednesday. He did not specify any particular day on which he required the work to be done. Further, he did not say in evidence that he told Mr Sijuk to notify him in advance as to the day on which her business would do the work. There was evidence to the effect that, before the job in question, the defendant had, on other occasions, expressly specified or required Rosa's Cleaning Services to advise it in advance of the day when work would be performed. There was, however, no documentary or other evidence that established that any such requirement, if there had been one, had been communicated to Rosa's Cleaning Services before the firm was engaged for the job in question. Mr Storrier's evidence was simply that he said to Mr Sijuk that the carpenters were finishing on the Wednesday and that 'the brick cleaning was right to go from the Thursday onwards' .

[141] Mr Storrier's recollection of any practice as to a requirement to notify in advance was, as earlier stated, imprecise and was unsupported by other evidence. It was contrary to Mrs Sijuk's evidence. I accept her evidence that:-

(1) The usual practice was that she would receive two to three days' notice from the defendant for a brick cleaning job. This was contrary to Mr Storrier's evidence that he usually tried to give one week's notice. (2) The plaintiff had previously done work for the defendant on Saturdays. Mr Storrier agreed that Saturdays were days upon which brick cleaning work was carried out. (3) There was no requirement in place as at the time of the job in question for safe work statements to be supplied by her to the defendant. There was no credible evidence to the contrary. (4) She had previously advised the defendant when her husband would attend the site but that would usually occur at the time when she had received notification of a job.

[142] Whilst it was common practice for brick cleaning to be carried out on Saturdays, Mr Storrier's evidence was he himself did not work on Saturdays. He said that it was generally his role to inspect scaffolding before a particular contractor started a job. On Saturday 3 April 2004, as he was travelling to the country, even if Mr Storrier knew in advance that the cleaning work was to be done on the Saturday, he would not, on his evidence, have been in attendance on that day to have inspected before the plaintiff commenced work. There was no evidence of any one else having responsibility for doing so in his absence.

[143] Finally, when Mr Storrier spoke to Mrs Sijuk on the phone after the accident, there was no suggestion in the evidence that he expressed any surprise to her that the plaintiff had been cleaning the brick work at the site (even though, in evidence, said he had not expected the plaintiff to have been there). The fact that he did not express any surprise is, at least, consistent with Mrs Sijuk's evidence and his own, that it was common for brick cleaning to be Saturday work."

10. The above findings are to be understood in the light of the evidence of Mrs Sijuk (which was generally accepted by the primary judge) as to the timing of the work (T p75; Combined Book p 69):
    

"Q. And he, if he told you that the site was to going to be clear of other people after Wednesday and that he can do it on Thursday or Friday, for example, then you would tell him what day Milan would come?

A. Yes.

Q. On this particular occasion, I suggest to you that at no point after you were first notified of the job did you let Mr Storier [sic: Storrier], that is Nick, know what day Milan could attend to do that job?

A. He call and he said it will be ready for Saturday.

Q. I suggest to you that you are mistaken about that. See you don't even remember who it was that took this call, do you?

A. Because he told me he go on Saturday because he must go on a Monday on Winmallee job."

(emphasis added)

11. At [157] of his reasons, the primary judge said:
    

"The arrangements made by the defendant with Mrs Sijuk for the plaintiff to attend the site were informal and imprecise. Those arrangements left open the prospect that the plaintiff would perform the work on the Saturday when Mr Storrier would not be available to inspect the scaffolding on the Saturday before he started his work as Mr Storrier was travelling to the country that day. On the evidence, there was no one else other than Mr Storrier who was assigned the tasks of liaising with Mr Sijuk and inspecting the site on behalf of the defendant."

12. Thus, although his Honour did not find that Saturday was the agreed and arranged day for the work to be performed, nevertheless, Mr Storrier knew that it was distinctly possible that the work would be performed on Saturday.
    
13. As to duty, the primary judge said the following at [151]-[153]:
    

"[151] The defendant, as the on-site builder and organiser of sub-contractors, had the principal responsibility to take reasonable care to make the site safe for the performance of work by such sub-contractors including Rosa's Cleaning Services and the plaintiff.

[152] The duty of care in that respect extended to the provision of safe means of access for sub-contractors, including the scaffolding on site.

[153] The defendant's duty of care extended to those who might reasonably be expected to perform work on Saturdays."

14. As to breach, the primary judge said the following at [158]-[159]:
    

"[158] Accordingly, the factual matters included, firstly, the absence of any clear arrangement for the performance of work including the failure by the defendant to co-ordinate the plaintiff's work for a particular day, secondly, a failure to carry out an inspection of the site and, thirdly, the existence of a gap or hole in the scaffold.

[159] The evidence, in my opinion, clearly establishes a breach by the defendant of its duty of care to provide a safe place of work and a safe means of access to the work to be performed by the plaintiff. That breach of duty was causative of the plaintiff's accident."

15. The cause of the creation of the danger was dealt with by the primary judge at [154] as follows:
    

"The site was not secured or fenced off so as to prevent third parties or strangers from entering the construction site. Whether a person who had lawfully been on site or some other person who entered the site removed or dislodged the 600 mm by 600 mm piece of scaffolding is unknown. That piece was probably removed at some point in time between the Wednesday preceding the accident and the time of the plaintiff's accident. There is no suggestion that the plaintiff removed it."

16. The fall and its circumstances were described by the primary judge at [145]-[147] as follows:
    

"[145] After setting up for work on the scaffold, the plaintiff commenced to carry out cleaning duties over a period of about half an hour moving progressively along as he did so. The effect of his evidence was that he did not notice or detect any defect in the scaffold, including, in particular, on the first level from which he worked. In particular, he said he did not notice any gap or hole in the scaffold in the relevant area. He said that he simply fell three and a half to four metres.

[146] In analysing the evidence to determine the cause of the accident, I note:

• It is clear that the plaintiff, by some means, fell from the scaffold whilst working on it and he came to rest directly underneath the scaffold.
• There is no apparent explanation for the fall other than that the structural integrity of the scaffold was in some way impaired.
• On the Monday morning, Mr Storrier found a piece of scaffold 600 mm by 600 mm out of place. That is consistent with the evidence of Mrs Sijuk and Mr Kalanj who said that they noticed a hole or gap in the scaffold in the area in which the plaintiff had evidently been working.
  

(3) Findings on liability in negligence

[147] The evidence of Mrs Sijuk, Mr Kalang and Mr Storrier establishes on the probabilities that between Wednesday afternoon and Saturday morning, a person or persons unknown moved a piece of scaffolding measuring 600 mm by 600 mm from its position thereby leaving a gap or hole in the lower level of the scaffolding. The plaintiff's accident occurred after he had performed work for about 30 minutes when he fell through a gap/hole in the scaffold. At that time, it is likely that his vision would have been impaired by an accumulation of material on his work goggles. It is unclear as to whether the gap or hole was clearly visible before the plaintiff's fall."

17. The first criticism on appeal was that the primary judge misdirected himself as to duty in [159] by positing a duty in terms of that owed by the employer. This was said to be contrary to established principle in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424; Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7; Mambare Pty Ltd trading as Valley Homes v Bell [2006] NSWCA 332; Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406; and Unilever Australia Ltd v Pahi [2010] NSWCA 149.
18. It was submitted that the only duty owed by the appellant was to co-ordinate trades and that since the question of trade co-ordination had nothing to do with the accident there was no duty, breach, or possible causal link.
19. I reject these submissions. The appellant was the builder in occupation of the building site, including the scaffolding. I agree that co-ordination of trades had nothing to do with the accident. The accident was caused by the dangerous state of the scaffolding which bore a reassuring sign that it was safe. The question is whether the appellant, as the builder having possession of the site, owed any duty to tradesmen such as Mr Sijuk to exercise reasonable care to make the site safe for them to work upon. Putting Papatonakis to one side for the moment, none of the cases relied on by the appellant concerned the duty of a builder as occupier of the site to exercise reasonable care in respect of the safety of the site upon which men and women would be invited to work. A building site and scaffolding on a building site can be dangerous places. People work at heights, machines are in use and other dangers exist. As the occupier with possession of the site for the undertaking of its contractual obligations for its own commercial benefit, a builder owes a duty to exercise reasonable care to avoid the exposure of persons coming on to the site to risk of injury from the dangerous condition of the site. In seeking to gainsay the existence of the duty of an occupier, the appellant referred to what Brennan and Dawson JJ said in Papatonakis at 30:

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

20. The logical syllogism that the appellant sought to engage from this statement was that since Mr Sijuk should, in the exercise of due care for his own safety, have examined the scaffolding before he began work, any defect that he would have found was a defect in the premises that tradesmen such as Mr Sijuk were accustomed to meeting and safeguarding themselves against.
21. I reject this submission. This way of putting the matter transforms contributory negligence into a complete defence to the claim. It is not a fair application of what Brennan and Dawson JJ were saying. Tradesmen of Mr Sijuk's class are not accustomed to dealing with dangerous scaffolding, especially scaffolding that was said by a sign to be safe. Undoubtedly an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with. That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession. The cases to which Brennan and Dawson JJ referred were: Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141 - window cleaners on the building of a club where the defect in the lower sash was a common recognisable danger of everyday experience to window cleaners against which the window cleaning company should guard; Bates v Parker [1953] 2 QB 231 - window cleaners on a building where it was left to the contractor how to perform the work in circumstances where the occupier was not aware of the particular risk involved in the cleaners' method; Archer v Hall [1967] 1 NSWR 107 - a welder working on defendant's premises threw a metal pole from where he worked fouling power lines below; Wright (WH) Pty Ltd v Cth [1958] VicRp 50; [1958] VR 318 - a crane driver on occupier's land; Pinborough v Minister of Agriculture (1974) 7 SASR 493 - pest controllers at a cold store falling through the weaker part of a roof, being a hazard commonly encountered by pest controllers in their work.
22. These cases involved a relevant category of entrant and are affected by the special duties there relevant - especially to an invitee and "unusual danger". Care, of course, must be exercised in their utilisation. The relevant question here is a factual one that feeds into a legal one: whether or not a duty of care exists. The scaffolding was dangerous; someone had made it so. The state of the scaffolding was within the control of the builder (though, of course, it could be checked by tradesmen working on the site).
23. No doubt, in some respects, a person who retains an independent contractor can expect the latter to decide how to do the task and what safeguards to put in place. This does not include leaving it to the contractor to find the danger in scaffolding at a building site that reasonable care by the builder/occupier would have found and eliminated.
24. Though not conclusive, the practice of Mr Storrier reinforces my conclusion. His practice was to inspect scaffolding before any tradesmen began to use it. This accorded with Mr Cowling's view of good practice. In my view it accorded with reasonable common sense and the exercise of reasonable care to reduce the risk of injury on a building site by the condition of the site.
25. It was said that Mr Sijuk and his wife did not tell Mr Storrier when Mr Sijuk would be working. Mr Storrier, however, knew that it was a distinct possibility that it would be Saturday. He had no mechanism or system in place to identify the day and to inspect on the relevant day. Had he done so, the accident would not have happened.
26. The primary judge used language to describe the duty and breach that was redolent of the duty of an employer. Nevertheless, the appellant owed a duty of care as occupier and breached that duty.

Contributory negligence and contribution by the employer

27. As to contributory negligence, the learned primary judge referred to the Civil Liability Act 2002 (NSW), s 5R and a number of authorities. No error of legal principle was attributed to his Honour, thus no discussion of principle is called for.
28. The primary judge dealt with contributory negligence at [166]-[170] as follows:

"[166] In the present case, the issue of contributory negligence is confined to the narrow issue as to whether or not, before the plaintiff started work, he ought to have carried out an inspection of the scaffolding or seen the gap/hole as he progressed with his work.

[167] The plaintiff entered the site in circumstances in which he considered the scaffolding provided a safe means of access to the brickwork to be cleaned. His belief in that respect was based partly upon the fact of the certification that the scaffolding was 'safe' .

[168] The plaintiff, to an extent, was also entitled to act upon the basis that the defendant had fulfilled its responsibility for safety on the site and, in particular, had provided safe scaffolding for the work of sub-contractors and workers as himself.

[169] The fact that the plaintiff did not see a hole or gap in the scaffold whilst performing work was probably partly due to the fact that, on the evidence, his vision would have been impaired by the build-up of the residue of material on his goggles resulting from the brick cleaning.

[170] In the whole of the circumstances, any failure by the plaintiff to take care for his own safety would, in my opinion, be confined to not checking to see if the scaffolding provided by the defendant appeared to be safe as it ought to have been before starting work. As indicated above, there is a basis as to why he could reasonably have expected that the scaffolding was in a 'safe' condition as certified. His obligation was not to carry out a detailed inspection as would a ticketed scaffolder. A limited examination by looking generally at it would be sufficient before proceeding. To the extent that he did not do so there is evidence of a failure to take care to that limited extent. In all the circumstances, I consider that the plaintiff's contributory negligence should be assessed at the lower end of the scale, namely, at 15%."

29. The substantive complaint was that his Honour was unreasonably low in his estimate. I disagree - low it was, out of the range, it was not. A range of 80 - 90 per cent urged by the appellant is unrealistic. Mr Sijuk should have inspected; he did not; to a degree he relied on the statement that the scaffolding was safe: 15 per cent was within the range, albeit at the lower end.
30. As to Mrs Sijuk's responsibility vis- -vis the builder, the primary judge, after reviewing authorities not in issue (and thus not discussed here) said the following at [178]-[179] and [181]-[188]:

"[178] In making the assessment of the relevant responsibilities of the defendant and Mrs Sijuk, as employer, it is necessary to bring to account a number of factors. The first is that the defendant was the entity with control over and responsibility for managing the on site construction including, in particular, the scaffolding for the use of sub-contractor's employees. As such, its responsibility was to ensure that the site and means of access for the performance of work was reasonably safe. The minimum required in this respect of the defendant was to ensure that there was a proper inspection undertaken before a new contractor was invited on site to perform work.

[179] The defendant, in addition, had the responsibility for properly co-ordinating contractors. This responsibility would involve proper arrangements being made at the outset and before a contractor entered on site. It was, in this respect, the defendant's responsibility to confirm the likely sequence of events leading to the actual commencement of work by a contractor on site. This was essential if a reasonable inspection of the site was to be programmed before the plaintiff entered the site thereby identifying any defects or risks before the contractor (or its employee) commenced work.

...

[181] In these proceedings, the plaintiff was the only employee of Rosa's Cleaning Services and, in that firm, he was the only person with specialist knowledge and experience in the occupation or trade of brick cleaning. Before Rosa's Cleaning Services was established, he had operated in his own name in that field (before 2003/2004) and, for whatever reason, he and his wife decided to restructure the earlier method of contracting for such work by interposing a business entity of which Mrs Sijuk was the sole proprietor.

[182] Mrs Sijuk, the plaintiff and the defendant had developed an arrangement whereby Rosa's Cleaning Services (Mrs Sijuk) provided the plaintiff to do brick cleaning work for the defendant. That was, as earlier stated, a very informal arrangement. There is no doubt that Mr Storrier understood that he was dealing with a husband and wife team and that, whilst Mrs Sijuk was engaged as a sub-contractor, it was her husband and not her that had on-site brick cleaning experience.

[183] In those circumstances, the defendant (In particular, through Mr Storrier) may be taken as knowing that Rosa's Cleaning Services was an unsophisticated entity (consisting of Mrs Sijuk) and that the plaintiff's safety onsite would be its responsibility and, insofar as he was responsible for taking reasonable care for his own safety, the plaintiff's responsibility to exercise reasonable care for his own safety.

[184] The arrangement between the defendant and Mrs Sijuk did not, as I have earlier found, involve any request or requirement by the defendant for Mrs Sijuk to submit a statement as to safe work practices before work commenced. On the evidence, any such practice was adopted after, and not before, the plaintiff's accident.

[185] Accordingly, the material circumstances included the fact that the defendant knew it was dealing with an unsophisticated sub-contractor (the wife of the plaintiff), that she did not exhibit or profess to have any particular knowledge of on-site work or safety procedures, that there had not been any inspection of the scaffolding by the plaintiff's wife and that the defendant assumed responsibility for on-site safety.

[186] As the principal (or builder), the defendant had the responsibility for co-ordinating site safety between contractors. There is no evidence of any acts of co-ordination before the accident by or between the defendant and sub-contractors (including Mrs Sijuk) on matters of site safety or work practices.

[187] The arrangement between the defendant and Rosa's Cleaning Services in terms of both the initial contracting stage and the implantation stage was a very loose and unstructured one.

[188] The notional liability of Mrs Sijuk, as 'employer' of the plaintiff, is to be evaluated in the context of the circumstances of the case. On that basis, I do not consider that Mrs Sijuk's alleged failure with respect to her duty of care can be said to have had a causal consequence to any marked degree. Her liability, in my assessment, is to be assessed as at the low end of potential liability which I assess to be 10%."

31. The appellant stressed what Lord Wright said in Wilsons & Clyde Coal Ltd v English [1937] UKHL 2; [1938] AC 57 at 84 in respect of the importance of the non-delegability of the duty of the employer. That can be accepted. What was being addressed was not Mrs Sijuk's liability to her husband, but the relative responsibility between tortfeasors. Even if there was some apparent influence in [186] of the reasons of the irrelevant factor (co-ordination of trades) the reasons given to balance the relevant responsibility of Mrs Sijuk and the appellant legitimately base a conclusion (albeit low, but not impermissibly so) of 10 per cent.
32. I would dismiss the appeal with costs.
33. HODGSON JA: I agree with Allsop P.
34. WHEALY JA: I agree with Allsop P.

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