Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Gaskin v Ollerenshaw [2012] NSWCA 33
• Hearing dates: 17 August 2011
• Decision date: 07 March 2012
• Before: Basten JA at 1; Campbell JA at 65; Meagher JA at 1

Decision

(1) Allow the appeal and set aside order 3 (judgment for the defendant) and order 4 (plaintiff to pay the defendant's costs) made on 16 July 2010 and entered on 12 August 2010.

(2) Direct that there be a new trial in respect of liability and contributory negligence, but not in respect of the assessment of damages.

(3) Order that the respondent pay the costs of the appellant of the proceedings in this Court.

(4) Direct that the costs of the first trial await the outcome of the new trial, to be determined by the judge conducting the new trial.

(5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).

[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: APPEAL - civil - evidence - whether evidence supports inference asserted by plaintiff - whether finding critical to the judgment - whether the judgment should be set aside; TORTS - negligence - duty of care owed by owner of premises to person coming onto premises to carry out work - whether defendant owed an extended duty of care to plaintiff based on knowledge of condition of building - whether defendant had requisite knowledge - whether defendant should have carried out further investigation - whether plaintiff should have made his own investigation; TORTS - negligence - causation - representations and assurances - whether defendant represented to plaintiff that building was safe - whether, if made, representations were without any reasonable basis - whether, if made, representations caused injury - Civil Liability Act 2002 (NSW), s 5D, "necessary condition"
• Legislation Cited: Civil Liability Act 2002 (NSW), s 5D; Uniform Civil Procedure Rules 2005 (NSW), r 51.53
• Cases Cited: Baker v Gilbert [2003] NSWCA 113; Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134; Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1; Mobbs v Cain [2009] NSWCA 301; O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225; Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269; Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; Woolworths Ltd v Strong [2010] NSWCA 282
• Category: Principal judgment
• Parties: Leslie Francis Gaskin - Appellant; Matthew Ollerenshaw - Respondent
• Representation: Counsel: R W Seton SC/M J Maxwell - Appellant; R A Cavanagh SC/A J Nowen - Respondent; Solicitors: Brydens Law Office - Appellant; Holman Webb - Respondent
• File Number(s): CA 2006/266967

Decision under appeal

• Jurisdiction: 9111
• Citation: Gaskin v Ollerenshaw [2010] NSWSC 791
• Date of Decision: 2010-07-16 00:00:00
• Before: Garling J
• File Number(s): SC 2006/266967

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 30 December 2002 the appellant provided a quotation for painting the roof of a house that the respondent and his wife were purchasing. The respondent accepted the quotation and the appellant attended to carry out the work on 9 January 2003. While the appellant was performing the work, the verandah roof collapsed under his weight. The fascia boards, to which the verandah roof had been attached, were rotten. The appellant was seriously injured.

The appellant brought proceedings against the respondent, alleging negligence. The allegations of negligence were that the respondent (a) having obtained reports indicating "wood decay" in the fascia and "a high risk of concealed timber pest workings to roof timbers", assured the appellant that it was safe for him to stand on the roof, and (b) assured the appellant that the respondent had climbed onto the roof when he had not actually done so.

Garling J dismissed the proceedings. His Honour rejected much of the appellant's evidence in so far as it alleged that the respondent had made assurances as to the condition of the verandah roof.

The issues for determination on appeal were:

(i) whether the respondent was subject to an extended duty of care, flowing from special knowledge that aspects of the roof might be unsafe,

(ii) whether the respondent assured the appellant that the roof was safe, and

(iii) whether the respondent's assurances caused the appellant's loss.

The Court held (Basten and Meagher JJA, Campbell JA agreeing), allowing the appeal and ordering a retrial:

In relation to (i)

1. Even if the respondent had received the building reports (a finding for which there was significant objective evidence), the content of the reports did not provide any basis for an obligation to investigate further with respect to the verandah roof: [38]

2. Once it is accepted that the respondent neither was nor should in the exercise of reasonable care have been aware of the defective construction of the verandah roof, liability cannot arise on that basis. Further, an independent contractor coming onto premises in order to undertake a task within his or her professional competence will usually be expected to exercise reasonable care for his or her own safety, having regard to the possibility of risks which are not known to the respondent: [44]

O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225; Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 applied

In relation to (ii)

3. The trial judge's rejection of the appellant's evidence of the assurances made to him by the respondent was based on flawed reasoning. This finding was critical to the judgment reached and the orders made at trial: [60]

In relation to (iii)

4. There was evidence that supports could have prevented the accident. The appellant's evidence as to the supports that could have been used was not challenged in cross-examination and was inherently plausible. It did not require evidence from an expert and, if it did, the appellant had relevant expertise: [51]

5. For a causal factor to be a necessary condition of injury, it is sufficient that the court is satisfied that the factor was probably necessary. On any construction of Civil Liability Act 2002 (NSW), s 5D, it would be open to a trier of fact to find that the respondent's assurances were a necessary condition of the conduct which led to the accident: [58]-[59]

Woolworths Ltd v Strong [2010] NSWCA 282, Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269; Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134; Mobbs v Kain [2009] NSWCA 301 considered

Judgment

1 BASTEN JA and MEAGHER JA : In November 2002 Matthew and Kylie Ollerenshaw entered into an agreement to purchase a house on Solander Road, Kings Langley, a suburb of Sydney. On 30 December 2002 Mr Ollerenshaw invited Mr Leslie Gaskin, a painter and roof restorer, to provide a quotation for painting the roof of the house. The quotation was accepted and, on 9 January 2003, the day before the settlement of the property sale, Mr Gaskin attended at the premises to undertake the painting of the roof.

2 At the front, the house involved a single storey construction in an L-shape with a pitched fibro roof. Within the right angle formed by the two arms of the building, was the front door and verandah, over which was constructed a flat steel skillion roof. In order to paint the pitched roof of the house, Mr Gaskin put a ladder up to the verandah roof, onto which he climbed. The verandah roof was supported by three columns on the longer side away from the house and was, on two sides, affixed to the fascia boards below the guttering of the main roof. Unbeknownst to Mr Gaskin, the fascia boards were rotten and the verandah roof collapsed under his weight. He fell some three metres to the ground and was seriously injured.

3 Mr Gaskin (hereinafter "the appellant") brought proceedings against Mr Ollerenshaw (hereinafter "the respondent"). The particulars of negligence were manifold, but the claim ultimately turned upon what the respondent should have known, on investigation, of the state of the premises and assurances said to have been given by the respondent to the appellant that the verandah roof was safe to stand on without supports, known as "planking". It was alleged that the respondent had stated he had grounds for giving that advice, when in fact he did not, and that he gave the advice knowing that doubts had been raised by a builder's report as to the safety of the roof, requiring further investigation, which the respondent had not undertaken.

4 The matter was heard before Garling J in the Common Law Division in June 2010. His Honour delivered judgment on 16 July 2010 finding against the appellant on the question of liability and dismissing the proceedings: Gaskin v Ollerenshaw [2010] NSWSC 791.

Issues on appeal

5 The grounds of appeal, in broad terms, raised two issues; the first went to the scope of the respondent's duty of care to the appellant, which was described by the appellant as an "extended duty of care". By that was meant that the respondent had special knowledge, based on the builder's report, that aspects of the roof might be unsafe, so as to require him, in the exercise of his duty to the appellant, either to carry out further investigation, or to warn the appellant that the safety of the verandah roof was unknown.

6 This ground turned on questions of fact. That is to say, there was no real dispute as to the possibility of an enhanced or expanded duty of care depending on particular circumstances known to the respondent. The issue to be resolved at trial was precisely what the respondent knew or should have known when he spoke to the appellant. That depended on the following factual issues, namely:

(a) the contents and interpretation of the building inspection and pest reports;

(b) whether the reports obtained by the real estate agent before 13 December 2002 were provided to either of the Ollerenshaws before 30 December;

(c) if not provided, what, if anything, the respondent or his wife were told by the estate agent as to the contents of the reports, and

(d) the respondent's understanding as to what the reports did or might contain, based on the information provided to him.

7 The second broad issue raised on the appeal, again factual, turned on what was said by the respondent to the appellant prior to him commencing work. Because the appellant alleged that the statements made included reference to the respondent having himself climbed onto the verandah roof to clean the gutters, the likelihood of such statements having been made depended in part on whether or not the respondent had in fact taken such steps. Secondary factual issues thus arose.

8 In oral argument senior counsel for the appellant focused on the second of these issues. In doing so, he accepted that it was necessary to demonstrate error on the part of the trial judge in rejecting the appellant's evidence of the conversation which occurred on 30 December 2002

Issues identified at trial

9 While noting that certain of the factual issues were "on the margin of relevance" (at [72]), the trial judge identified the "disputed issues of relevance" in the following terms at [73]:

"(a) What were the intentions of the defendant and his wife when they purchased the Kings Langley house;

(b) When and in what circumstances did the defendant first obtain access to the Kings Langley house;

(c) Was any internal work being carried out on the Kings Langley house on 30 December 2002;

(d) When did the defendant or his wife receive the pre-purchase inspection reports; when did they learn of the contents of those reports;

(e) Did the defendant in the course of any conversation at the Kings Langley house on 30 December 2002 make the representations which are pleaded by the plaintiff, or else recounted by him in his evidence;

(f) Was the account given by Mrs Hobby, the plaintiff's daughter, of what occurred at the accident scene on 9 January 2003 accurate;

(g) Whether the account of the telephone calls from the defendant given by the plaintiff, his wife and daughter on 9 and 10 January 2003 are accurate."

10 Argument on the appeal focused on issue (e) and, to a lesser extent, issue (d) above. The appellant did not contest the correctness of the trial judge's finding with respect to issue (d) that the respondent and his wife were not provided with copies of the building inspection and pest reports. The other factual disputes were related but subsidiary to the determination of issues (d) and (e). It is convenient to start with the evidence and findings of the trial judge as to the representations.

11 There is no doubt that the appellant and the respondent attended at the property on 30 December 2002, at which time they had a conversation, at the conclusion of which the appellant provided a quote for the roof painting job which was accepted by the respondent. Apart from the ultimate price, there was no agreement as to the content of the conversation, nor as to where it took place. The appellant was adamant that the respondent then had access to the house and that work was being undertaken inside the house when he arrived. According to the appellant, the discussion took place partly on the verandah. According to the respondent, he did not have access to the house and only he and the appellant were present; they met to discuss the job on the street by the median strip. He said they did not walk onto the property at all that day: Tcpt, 17 and 18/06/10, pp 209(47)-210(5), 257(21)-(23), 258(25)-(30).

12 According to the appellant, there was a conversation about whether the roof of the verandah required "planking". Planking involved placing a plank underneath the roof on supports and then placing a further plank across the top of the roof to stand on. Although he had planks he would have needed to hire supports. The appellant said that he raised the question of planking, which the respondent rejected as unnecessary, in order to reduce the cost of the work. The appellant stated, at Tcpt, p 20(45):

"I said 'We might have to plank it'. He says 'No you won't, this is gall and steel, it's as solid as. I was up there cleaning off the leaves'. He said 'It's as good as gold, I've had a building inspection on all of this, it is 100%. All I want to do is paint it so I can sell it quickly, clean it up'."

13 According to the appellant, there followed negotiations as to the number of coats required and as to the overall cost. He suggested that as it was fibro it would need six or seven coats and he would need to get insurance as well as pay for scaffolding supports. As recounted by the appellant, the respondent said he wanted no more than two coats of primer and two of topcoat, that the appellant would be covered by his insurance and that there was no need to incur the costs of scaffolding. On the basis of that discussion, he reduced the quotation from "about 2 grand to do it properly" to $1,200. That price was accepted: Tcpt, p 21(40).

14 There was no dispute that a building inspection report and a pest report had been obtained by the real estate agent, on the instructions of the Ollerenshaws, as purchasers. The respondent denied he had seen the reports at the time of the conversation with the appellant. The trial judge accepted that denial (at [133]-[134]) and that finding was not challenged on appeal. The content of the two reports will be considered further below, but neither revealed the defects which caused the collapse of the verandah roof.

15 In addressing the assurances said by the appellant to have been given on 30 December 2002, the trial judge commenced with the representations pleaded in the second further amended statement of claim: at [135]-[137]. He referred to the absence in the building report of comments about the timber fascia boards to which the verandah roof was attached: at [138]-[139]. He then set out the substance of the evidence in respect of the conversation at [140]-[142]. At [143] he gave reasons for rejecting the appellant's evidence as to the representations of the kind alleged, in the following terms:

"(a) A very specific representation was pleaded in par 4 of the second further amended statement of claim, no doubt based on instructions from the plaintiff. No evidence was led to substantiate such a representation. I infer that the plaintiff was unable to substantiate it in evidence because the representation in the terms pleaded did not ever occur;

(b) The various accounts of the conversation which I have set out above are not, when considered carefully, consistent one with the other. The plaintiff appears to confuse specific conversations with his own thoughts and with assumptions that he made at the time.

(c) The versions of the plaintiff seem to me to substantially depend upon the proposition that the defendant had climbed on to and walked on the front verandah roof in order to clean it of debris. This was specifically denied by the defendant. Having regard to the fact that, as at 30 December 2002, the defendant and his wife did not have the keys to the Kings Langley house, and were not in occupation of it, I think it highly unlikely that on 30 December 2002 or else before that time, the defendant would have had any reason, or opportunity, to climb on to the front verandah roof to clean it and I am unpersuaded that he did so. I am also unpersuaded that the defendant would have any reason to lie to the plaintiff to pretend that he had climbed on the roof and cleaned it when in fact he had not. It follows that I cannot accept the plaintiff's version of this conversation."

16 It will be necessary to return to the substance of these reasons in order to evaluate the criticisms made of them by the appellant on appeal. However the further discussion on this topic immediately following the statement of reasons should also be noted:

[144] I think that the most likely course of events is that since, at some time before 30 December 2002, the defendant had been informed that the pre-purchase reports had not shown any matters of concern, he informed the plaintiff that he had received such reports and that they had not disclosed any matters of concern.

[145] From this, the plaintiff has assumed, as he said in cross examination, that there was no obvious defect or structural concern with the front verandah roof. That was entirely consistent with what he in fact observed himself during his inspection on 30 December 2002. His own observations, combined with information to the effect that the defendant had received the pre-purchase reports which had not disclosed any matters of concern, formed the basis for the assumption that he made that the roof would be safe to walk upon when he returned to undertake his painting contract.

[146] In light of this, if such a representation was made by the defendant, it would be neither inaccurate nor negligent. It fairly represented what the defendant knew. It also fairly represented the actual contents of the pre-purchase reports.

[147] It follows that I am not satisfied that the representations pleaded in pars 8(k) and 8(l) of the second further amended statement of claim were ever made in the terms pleaded. I am not satisfied that the conversations of which the plaintiff gave evidence as having taken place on 30 December 2002, in the terms referrable to the structural integrity of the front verandah roof and the house generally occurred in the way he asserted."

Challenges to findings with respect to representations

(a) the pleaded representations as to the building report

17 The first reason identified above for rejecting the appellant's evidence was that his oral evidence as to the representations did not accord with the pleading, which was in the following terms:

"4 The Defendant represented to the Plaintiff that a building report obtained previously showed that the roof was 'weatherproof' and 'waterproof', and was in proper, safe order.

5 In fact, the Defendant had previously obtained a building report which found 'prior white ant activity'."

18 The particulars of negligence also included the following allegations at paragraph 8:

"...

(k) Saying to the Plaintiff that a building inspection report had been obtained which reported that the verandah roof was structurally safe when in fact the report specifically stated that 'no inspection was carried out from on the roof';

(l) Saying to the Plaintiff that it was safe for him to stand on the verandah roof for the purpose of painting the fibro roof in circumstances where the Defendant knew, or ought to have known, that the inspection giving rise to the building inspection report stated that the timber fascia boards, to which the verandah roof was attached, showed signs of 'wood decay'."

19 The trial judge made a comparison between the evidence led and the representation pleaded in paragraph 4. On the basis of his conclusion that no evidence was led to substantiate that representation, the trial judge inferred that a representation in those terms was not made. That reasoning does not, however, address the representations pleaded in paragraphs 8(k) and (l) or provide a basis for inferring that the appellant was unable to substantiate those representations. On the contrary, as the trial judge noted at [137], those representations were to the effect that the front verandah roof was structurally sound and safe for the plaintiff to stand upon and the appellant gave evidence which would substantiate representations to that effect: see [137], [140].

20 Furthermore, the relevant parts of paragraph 4 asserted that the respondent had stated that (i) he had obtained a building report which (ii) showed that the roof was in proper, safe order. The appellant gave evidence of statements by the respondent that he had a building inspection "on all of this, it is 100 percent": extracted at [140]. How far that evidence departs from the allegation pleaded in paragraph 4 is a point on which minds might differ, but to state that "no evidence was led to substantiate such a representation" was not correct. Nor was it in conformity with the findings made by the trial judge, on the basis of the evidence that a building report had been obtained, that the respondent had been informed that it "had not shown any matters of concern" and that he had disclosed that fact to the appellant: at [144]. The pleading at paragraph 4 was not put in terms of direct speech and has the appearance of being a lawyer's paraphrase of what was much more likely to have been colloquial language. Finally, counsel for the appellant noted that the wording of paragraph 4 had not been put to him in cross-examination.

21 To the extent that the pleading was inadequate, no objection was taken to it. Accepting that the evidence departed from the pleading, that too was not the subject of objection; there was no suggestion of any element of procedural unfairness in the conduct of the trial. If there were some suggestion of recent invention in the comment of the trial judge, that was not put to the appellant.

(b) inconsistent accounts, representations and assumptions

22 The second reason for rejecting the appellant's evidence relied on internal inconsistency in the accounts of the conversation given by the appellant and, separately, confusion of specific conversations with assumptions he made at the time.

23 Neither the passages of evidence given by the appellant, set out by the trial judge at [140] and [141], nor the totality of his evidence provide self-evident support for the criticism of inconsistency. Variations in expression were minor and did not go to the substance of the dispute. No material elements of inconsistency were identified in submissions in this Court.

24 As to the second matter, the conclusion that the appellant had confused things he had been told by the respondent about the structural integrity of the verandah roof with assumptions he had made as a result of his own inspection, does not appear from the evidence extracted by the trial judge at [140] and [141].

25 There was no dispute that the inadequate use of nails to join the verandah roof to the fascia boards, which had in turn weakened through dry rot, were not visible on inspection from the verandah. An observation which did not identify any defects with respect to the integrity of the verandah roof might well have led the appellant to make an assumption that he was told that which he believed to be the case or, alternatively, to accept a representation which was in fact made, and was not contradicted by his visual inspection. As the trial judge noted in the first passage extracted at [141], it was true that at one stage the appellant gave evidence of a visual inspection and continued (Tcpt, p 65(35)):

"...I was looking at the interior of the roof for the timbers along the edge that the skillion was attached to. ... They looked in good order. The timbers did. There didn't seem to be any damage anywhere and by that I took it that when Mr Ollerenshaw said he'd been on the roof, the roof was solid as could be."

26 The second passage extracted by the trial judge at [141] (Tcpt, p 68(16)) does not bear the same implication. It makes clear the distinction between the statements made to the appellant and his observations. In the third passage extracted by the trial judge at [141] (Tcpt, p 71(4)), the appellant gave the following evidence:

"Q. You didn't ask him whether he had actually been on the roof doing that, did you?

A. No, he told me.

Q. Was that an assumption you had made that he had been on the roof when he cleaned the leaves?

A. He told he had been on the roof cleaning the leaves off of it, 'the roof was as solid as'.

Q. Did you understand that when he said 'the roof was as solid as' -

A. Yes.

Q. That it had not fallen down?

A. I assumed that he had been walking around on it and he found no problem because he had not fallen down and he had not fallen off it."

27 In this passage, the appellant first rejected the suggestion that he had made "an assumption", and when asked as to his understanding based on the representation expressly identified, he described an assumption in words which went beyond the representation, but did not undermine his evidence of the representation.

28 Finally, the primary judge extracted at [141] the following excerpt (Tcpt, p 73) (emphasis in judgment):

"Q. That is what you did on that occasion?

A. No. Mr Ollerenshaw told me he had been on the roof. He also told me that he had had a building inspection on the whole place and everything was solid as, which meant that the roof was good, the whole structure was good, there was no problems to worry about.

Q. Even on your own evidence, I suggest to you that no statement was made by Mr Ollerenshaw that the builder report referred to the verandah being solid as?

A. He told me that the place was a hundred percent, there was no problems anywhere, and seeing as we was discussing the verandah at the time I took it to be involved in that builders report."

29 That quotation needed to be read in context. The questioning commenced with the premise that the appellant had indeed formed his own view based on his inspection from under the roof: Tcpt, p 72(40). He said that he had formed such a view, namely that it would be safe to get up on the roof without planking, on the basis of his own inspection "[a]nd from the information that Mr Ollerenshaw had delivered to me": Tcpt, p 72(50). The passage which the trial judge relied upon was preceded by the specific question "You would form your own view?", to which he had answered "Yes". He then denied that that was what he had done on that occasion. It will be recalled that, during his evidence in chief, the appellant had asserted that the representation included the following statement, "I've had a building inspection on all of this, it is one hundred percent": Tcpt, p 20(47). The assumption to which he referred (Tcpt, p 73(12)) was that the inspection so identified included the verandah roof. He did not assert in his evidence in chief that the representation had specifically identified the building report as referring to the verandah roof, but it was obviously a necessary assumption on his part, otherwise the representation would have been irrelevant. Thus, the appellant acknowledged an assumption drawn from a representation, but it was not an example of a visual impression being recast as a representation made by the respondent.

(c) respondent not climbing onto verandah roof

30 The third set of reasons involved a matter of inference on the part of the trial judge. His Honour found, being a finding not disputed on appeal, that the respondent had not in fact climbed onto the front verandah roof to clean debris from it. He inferred that, because the event had not happened, it was "highly unlikely" that the respondent would have said that he had done it: at [43].

31 There are a number of difficulties with this reasoning. First, it provided no reason for rejecting a representation based on a builder's report which, his Honour accepted, had been obtained on behalf of the respondent and his wife prior to the conversation on 30 December 2002. Secondly, although his Honour might not have accepted it, the conversation as to the need for planking (see [140]), and its associated cost, did provide a reason for the respondent to misrepresent that he had climbed on the roof and cleaned it. Thirdly, in rejecting such a possibility, his Honour needed to take account of the following cross-examination of the respondent at Tcpt, p 260:

"Q. Did you say 'I want it done as cheaply as possible, I just want to clean it up and sell it'?

A. I can't recall saying I want it done as cheap as possible to clean it up and sell it. I don't recall that.

Q. Are you denying you said those words or you just don't recall now?

A. I'm not denying it.

...

Q. You agree, don't you, there was a negotiations, that is you were attempting to reduce the cost of the work to you in a discussion with Mr Gaskin?

A. I just wanted his quotation and his best quotation.

Q. His best quote. What I'm suggesting is there was a discussion about the value of the work and an attempt by you to get the best possible price, isn't that so?

A. Well, yes."

32 The conclusion of the trial judge at [145] (set out at [16] above) has to be understood by reference to the observations the appellant said he had made. That raises two matters which the trial judge also needed to address when considering whether the appellant's evidence as to the conversations should be accepted. First, the reference in [145] to the appellant's "own observations", as counsel for the appellant pointed out, involved an implicit acceptance of the appellant's account that he had visually inspected the roof from below, which can only have taken place if he went onto the verandah. That account was in direct conflict with the respondent's evidence that the conversation had taken place outside the fence on the median strip (presumably referring to the grass verge of the footpath): Tcpt, p 210(5), 257(23), 258(21). Secondly, the finding that the respondent had made reference to "pre-purchase reports" involved a rejection of the respondent's evidence that he had not made any reference to a building report on the house: Tcpt, pp 257(46).

(d) contents of building reports

33 The statement at [145] also requires consideration of whether the representation accepted in respect of the building report involved negligence on the part of the respondent.

34 Exchange of contracts in respect of the purchase of the property occurred on 30 November 2002. A pest report (dated 6 November 2002) and a building inspection report (dated 6 December 2002) were obtained by the agent on behalf of the purchasers . The trial judge found that the respondent and his wife both knew of the existence of the reports during the cooling-off period under the contract, which ended on 13 December 2002: at [144]. His Honour also found that the agent had told Mrs Ollerenshaw by telephone that there was "nothing in these reports that needed to concern them": at [116] and [133]. The respondent had that information prior to the meeting with the appellant on 30 December 2002: at [117].

35 The building inspection report noted under the heading "External" that "all external viewing was made from the ground or by standing on a 3.6m ladder leant against the building. In accordance with safety regulations, no inspection was carried out from on the roof itself". In respect of "fascia and barges" the report noted:

"The timber fascia/barge boards have evidence of paint peeling/wood decay and some sections require repairs/replacement to obtain a satisfactory finish."

There was no comment on the roof over the front verandah.

36 The pest report was equally uninformative. Under the heading "Roof cavity", it noted, "Skillion/flat style roofing (no access to concealed rafters, joists and battens) ... severely restricted inspection of the roof cavity areas. NOTE : there is a high risk of concealed timber pest workings to roof timbers. See Further investigation recommendations." Under the heading "Risks of concealed timber pest attack/damage" the report noted:

"The inspector believes the premises has concealed Timber Pest workings/damage due to present conditions allowing concealed entry and usually due to timber pest activity being noted within the property. A further more invasive inspection is warranted and recommended."

37 Two points are noteworthy: first the cause of the collapse was not termite damage but a combination of the failure to affix the verandah roof to the truss rafters of the main roof, rather than, as had been done, nailing the verandah roof to the fascia boards. Secondly, the absence of flashing had allowed water to seep through into the fascia boards, causing dry rot. There was no indication of termite damage above the verandah, although that was not known to the respondent or the appellant, in part because the building report had not revealed the condition of the boards or the method of affixing the verandah roof to the house. Accordingly, his Honour's conclusion (at [145]) that a building inspection report had been obtained and did not disclose any matter of concern was correct. Further, a representation to that effect would have accurately revealed the state of the respondent's knowledge at the relevant time and would not have misrepresented the contents of the reports. However, to say that an inspection, subject to identified constraints, had not revealed concerns is one thing; to say that the report affirmatively asserted the solidity of the structure is quite another.

Resolution of issues on appeal

38 Although the focus of the grounds in the notice of appeal was the failure of the trial judge to accept an extended duty of care, based on the contents of the building inspection report and the pest report, the arguments presented did not support the challenge. There was, as the written submissions for the appellant contended, significant objective evidence to support a finding that copies of the reports had been supplied by the agent to the respondent himself, during the cooling-off period. Alternatively, if the agent had discussed the reports by telephone, it was unlikely to have been with Mrs Ollerenshaw. However, this issue need not be resolved: the content of the reports did not provide any basis for an obligation to investigate further with respect to the verandah roof. His Honour's findings in that regard at [218]-[235] were not erroneous.

39 The relevant error of the trial judge identified above was limited to his reasons for rejecting the appellant's evidence of the assurances, said to have been made by the respondent on 30 December 2002. In that context the trial judge also did not address the two respects in which the findings he proposed to make involved a rejection of significant aspects of the respondent's evidence as to where those conversations occurred and as to what was said

40 In the event of a finding that the rejection of the appellant's evidence as to the assurances was flawed, the respondent argued (both in this Court and below) that the appellant's account of the negotiation and the accompanying representations was, nevertheless, inherently implausible. That submission was, in effect, based on two propositions. The first was that the appellant's evidence as to the circumstances occurring when he attended the house on 30 December 2002 was implausible and was properly rejected by the trial judge. That evidence included statements that there were several people working on the property at the time he arrived. The appellant claimed that that evidence was supported by the fact that Mrs Ollerenshaw had taken out an insurance policy with GIO General Ltd at 7.42am on that morning in respect of the house. The trial judge was not persuaded that this evidence supported the correctness of the appellant's recollection and rejected his evidence that there were four men working at the house on 30 December. He considered it more likely that the appellant was transposing his memory of work he had seen being carried out when he attended the property on 9 January 2003: at [110]. However, that temporal transposition did not, of itself, render the appellant's account of the conversation he had with the respondent on 30 December 2002 improbable or implausible. It was only relevant in that it provided limited and indirect support for the proposition that the respondent was seeking to undertake a quick, limited and inexpensive refurbishment, for the purposes of resale at a profit.

41 The second proposition relied upon by the respondent was the unlikelihood of the respondent himself having been on the verandah roof, cleaning off leaves, if he proposed to pay the appellant to do that (presumably as part of painting the pitched roof, although that was not expressed by the respondent to be part of the contract, nor was it self-evidently necessary). That proposition was certainly put to the appellant in cross-examination (Tcpt, p 56(10)-(25)), to which the appellant had responded, reasonably one might think, that he did not know why the respondent had undertaken such a task. It was not put to the appellant that there were indeed quantities of leaves on the roof, the presence of which would be inconsistent with recent cleaning. In any case, the question whether the respondent made the representation relied on by the appellant, in the event that he had not cleaned the roof himself, was a matter which was addressed by the trial judge and has been discussed above. In truth, the appellant did not give evidence that the respondent had been on the roof, but only that he said he had been. The relevance to the assurance of the event not having occurred has been addressed above. The errors identified above cannot be disregarded for the reasons propounded by the respondent.

42 Oral argument on the appeal focused on the findings with respect to the representations or assurances. In order to determine the consequences which may flow from the criticisms of the findings made by the trial judge, it is necessary to identify with greater precision the nature of the duty owed by the respondent to the appellant and the manner in which it was said to have been breached.

43 In Baker v Gilbert [2003] NSWCA 113, Ipp JA (with the agreement of Hodgson and Tobias JJA) reviewed a number of authorities involving accidents which had befallen visitors to residential homes. His Honour concluded at [38]:

"A review of the abovementioned authorities indicates that there is no rule of law to the effect that householders, who do not know of the existence of a defect in their property that might cause danger to lawful visitors - but who are aware of circumstances which would alert a reasonable person to the danger from the defect may, without negligence on their part, ignore the existence of the defect. The measure of the discharge of the duty of care owed by occupiers to visitors remains what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. The circumstances may well require, by way of reasonable response, an inspection of the property (or part of it), and a removal or repair of the defect."

44 Once it is accepted that the respondent was not, and should not in the exercise of reasonable care have been, aware of the defective construction of the verandah roof, liability cannot arise on that basis. Further, an independent contractor coming onto premises in order to undertake a task within his or her professional competence will usually be expected to exercise reasonable care for his or her own safety, having regard to the possibility of risks which are not known to the respondent: see, eg, O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 at 229-230, applied in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [62] (Heydon JA, Meagher JA and Foster AJA agreeing). That, of course is not to preclude the possibility of negligent non-disclosure on the part of the occupier.

45 The complaint in this case fell into a different category; it concerned assurances given (according to the appellant) by the respondent in respect of the safety of the verandah roof as a platform from which to work without supporting planking, which statements were made without any reasonable basis and therefore demonstrated lack of reasonable care for the safety of the appellant. Thus, if the respondent had merely said "The roof looks stable to me", or "I have a building inspection report which doesn't suggest any weakness in the roof" there could have been no complaint. On the appellant's case the assurances went further, involving an affirmative claim as to the safety of the structure as a working platform.

46 Perhaps curiously, the appellant's case was stronger if the respondent had not been on the roof himself, than if he had. Seeking to reassure the appellant as to the safety of the roof by relying on an assertion that it had in fact been tested by him, when it had not, was more likely to demonstrate a lack of reasonable care for the appellant's safety than if the test had in fact been carried out. That issue was not, however, addressed by the trial judge, who limited his consideration of the issue to the unlikelihood of the respondent saying he had been on the roof if in fact he had not.

47 If the representations relied on by the appellant were made, there was an arguable case of breach of the duty of care concededly owed by the respondent to the appellant. In that event, a further issue arose as to whether or not the appellant relied upon them. On the one hand, acceptance of his evidence as to the course of the negotiations would indicate that he did place reliance upon the stability of the roof, because he reduced his proposed price for the work to take account of the lack of any need to provide scaffolding support. However, before the primary judge (Tcpt, 21/06/10, p 365) and in this Court the respondent contended that the appellant did not rely upon any representations he may have made. He pointed to evidence given by the appellant (Tcpt, 16/06/10, pp 68-70), in the course of which counsel elicited from the appellant acceptance of various propositions as to the state of the roof, which the appellant had inferred, on the basis of his own observations. Accepting those concessions, the evidence was not all one way. The cross-examination on that topic concluded with the following exchange (Tcpt, p 73):

"Q. So it was your normal practice that if a homeowner told you 'I have been up on that roof before', that you would simply rely on that homeowner in terms of whether or not it was safe for you to perform work on the roof?

A. No.

Q. You would form your own view?

A. Yes.

Q. That is what you did not that occasion?

A. No. Mr Ollerenshaw told me he had been on the roof. He also told me that he had had a building inspection on the whole place and everything was solid as, which meant that the roof was good, the whole structure was good, there was no problems to worry about."

48 If his Honour's rejection of the appellant's evidence as to the conversation which took place on 30 December 2002 is flawed, it cannot be said that there was no substantial miscarriage of justice because there was no basis to find reliance being placed upon those representations. The appellant's evidence undoubtedly formed a basis upon which reliance could be found, although it did not necessarily compel acceptance.

49 It is clear that, even if the reasoning of the trial judge in rejecting the appellant's evidence were accepted, there remain live issues which turn on questions of credibility. These are not issues which it is possible for this Court to resolve, not having seen the witnesses. While it is clear that his Honour made unfavourable findings in respect of the appellant's credibility, it is also apparent that he accepted significant aspects of the appellant's evidence, including some of his evidence in respect of what happened on 30 December 2002, in preference to the contrary evidence given by the respondent: see [32] above. Further, his Honour made no finding in respect of causation which, again, involves a factual element turning upon acceptance of the appellant's evidence.

Causation

50 Counsel for the respondent argued on the appeal that, even if the appellant's account of the events of 30 December 2002 were to be accepted, the Court would not be satisfied that the respondent's assurances were "a necessary condition of the occurrence of the harm" within the meaning of s 5D(1)(a) of the Civil Liability Act 2002 (NSW).

51 The respondent also sought to argue that as a matter of fact the "planking" would not have prevented the accident. Counsel noted that there was no expert evidence to support a finding that it would. The absence of expert evidence, however, was not critical: the appellant gave evidence that planking involved two elements, namely the laying of a plank across the top of the cliplock roof, so as to distribute the worker's weight and, more importantly, the placing of a plank under the roof, with supports, which, like the columns on the outer side, it may be inferred, would hold the roof up should it detach from the house: Tcpt, pp 54-55. That evidence was not challenged in cross-examination and was inherently plausible. It did not require support from an "expert" and, if it did, the appellant had relevant expertise based on his experience as a roof restorer and painter.

52 The respondent's argument in respect of s 5D was that material contribution no longer had a part to play in terms of causation in negligence. In other words, if there were two reasons for a particular course of action, so that it could not be said that the event would have occurred "but for" the tortious conduct, no liability arose. In the present case, the argument proceeded, the appellant relied both upon what was said to him by the respondent and his own assessment of the stability of the roof. Even if it were accepted that the assurances contributed in a material way to his decision not to plank the roof, the evidence was inadequate to establish that, but for the assurances, he would have planked the roof.

53 The appellant's evidence, in relation to the negotiations over price, if accepted, suggested that his initial view was that planking would be necessary and he included the cost in his first indicative quote. It was, he said, the respondent's assurances which persuaded him that the cost was unnecessary, so that he omitted it from the final price quoted and, presumably on the same basis, did not take such steps when he returned to undertake the work on 9 January 2003. An assessment of the causal significance of the assurances may depend upon whether the appellant made his own assessment before or during the negotiations as to price.

54 If the resolution of the factual issues is a task which cannot be undertaken in this Court, the precise scope of s 5D of the Civil Liability Act need not be determined in these proceedings, except to the extent that a restrictive construction of s 5D might render the appellant's case unsupportable on any view of the evidence and accordingly render a further trial futile.

55 The respondent submitted that this Court had adopted a construction of s 5D(1) which precluded a finding of causation based on material contribution, absent persuasion that the tortious conduct was a necessary condition of the harm, in the sense that the harm would not have occurred "but for" the tortious conduct: see Woolworths Ltd v Strong [2010] NSWCA 282 at [48] (Campbell JA, Handley AJA and Harrison J agreeing).

56 This proposition gives rise to a number of difficult issues. First, it may require consideration of whether the statements in Woolworths were consistent with other authority in this Court, including Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [89]; Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [59] and Mobbs v Kain [2009] NSWCA 301 at [107]. Secondly, it raises questions as to how s 5D operates in different circumstances. For example, causal relationships may involve either sequential or concurrent elements or conditions, or both. Thirdly, the causal relationship can operate through different kinds of medium: on the one hand, a negligently constructed building may collapse through ordinary physical processes, causing injury, or, on the other hand, a negligent representation may only operate through the conscious assessment and decision-making processes of an individual, as in this case. Fourthly, the requirements of s 5D(1) apparently operate as the general rule, with flexibility being permitted "in an exceptional case" where the general rule is not satisfied: s 5D(2).

57 It is also commonplace to analyse causal factors as being necessary or sufficient, or both. 'The straw that broke the camel's back' is a necessary, but not sufficient, causal factor. Each grain of sand put in the balance against a one gram weight is necessary to tip the balance at a particular point: none alone is sufficient. For a factor not to be a necessary one, the event must have occurred absent that factor.

58 The foregoing analysis is, of course, inaccurate in terms of civil litigation. To be a necessary condition, it is sufficient that the court is satisfied that the factor was probably necessary. Once satisfied that the particular factor was operative (in the present case, on the mind of the appellant) it may be but a small step to conclude that it was also necessary. Inferences derived from the course of negotiation may be sufficient in that respect. In the example of physical causation noted above, each grain of sand may constitute a material contribution to the tipping of the balance and each will satisfy the 'but for' test.

59 For present purposes, the evidence of the appellant, if accepted, could properly have led to an inference that the respondent's assurances were, in the sense discussed, a necessary condition of the conduct which led to the accident. On no sensible construction of s 5D, could it be said that such a conclusion was not open to the trier of fact. Alternatively, sub-s (2) may be available. Accordingly, questions of causation should not preclude an order for a new trial.

Conclusions

60 The appellant has successfully contended that the critical finding of fact, by which the trial judge rejected the appellant's evidence of the assurances made to him by the respondent, was based on flawed reasoning. The finding should be set aside. A different finding would not necessarily have led to a different outcome, but it was critical to the judgment reached and orders made at trial. Accordingly, the judgment must be set aside.

61 Although the trial judge did not make specific findings that particular witnesses were credible or otherwise (often an exercise undertaken at a level of generality which is unhelpful to the resolution of specific conflicts) there can be little doubt that his Honour paid attention to the manner in which the evidence was given and thus enjoyed advantages in fact-finding which are not available to this Court. Accordingly, it is not open to this Court, which has not heard the witnesses, to substitute a finding for that set aside. It follows that, if satisfied that there has been "some substantial wrong or miscarriage" the appropriate order is for a new trial: Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1). There will be some substantial wrong or miscarriage if the appellant has been deprived of an opportunity for a different outcome which was reasonably available to him in all the circumstances. That will not be so where the Court is not satisfied that a different outcome is reasonably open. The Court should be so satisfied in the present case, for the reasons explained above.

62 There remains a question as to whether the new trial should be at large or subject to constraints. It is clearly not possible to limit the issues raised in respect of liability, but the trial judge also dealt in a precautionary fashion and in accordance with the guidance of the High Court in Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1, with questions of contributory negligence and damages. Given the finding on liability, it was not strictly necessary for the respondent to contest those findings. Nevertheless, it is not uncommon to find defensive cross-appeals on questions of damage in such circumstances. Unless the respondent seeks, by motion filed within 14 days to vary the orders of this Court to raise some issue in respect of the quantification of loss, the findings on damages should not be the subject of a new trial.

63 A different view may properly be taken in respect of contributory negligence. The trial judge was of the view that contributory negligence had not been established: see discussion at [237]-[244]. However, the discussion was silent as to the assumptions concerning the negligence of the respondent. If, as seems plausible, the appellant, assuming acceptance of his evidence, took into account both his own assessment of risk, his knowledge of relevant safety regulations and the assurances of the respondent, there would be scope for a finding of contributory negligence on his part. A different view would have been open if the negligence of the respondent had been a breach of an extended duty of care requiring that he undertake investigations in respect of suspected defects in the structure of the building. The statement at [241] that "the plaintiff did not know of the existence of the defect at the time of his accident" and that he was "not alone in that position of ignorance" suggests that his Honour was assessing contributory negligence against such an extended duty of care and not against an assumption of assurances as asserted by the appellant. In these circumstances, it is appropriate that the new trial be permitted to include reconsideration of the question of contributory negligence, being a matter closely related to that of liability.

64 We would propose the following orders:

(1) Allow the appeal and set aside order 3 (judgment for the defendant) and order 4 (plaintiff to pay the defendant's costs) made on 16 July 2010 and entered on 12 August 2010.

(2) Direct that there be a new trial in respect of liability and contributory negligence, but not in respect of the assessment of damages.

(3) Order that the respondent pay the costs of the appellant of the proceedings in this Court.

(4) Direct that the costs of the first trial await the outcome of the new trial, to be determined by the judge conducting the new trial.

(5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).

65 CAMPBELL JA : I agree with Basten and Meagher JJA.

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Decision last updated: 14 March 2012