Roofer falls off ladder
set up by home owner; Court orders home owner to pay $1.1m
Home owners are responsible for injuries to tradesmen
working on their home if they fail to protect them from
This is the lesson from an important decision on
occupiers’ liability: Hendrex v Keating  TASSC
20 decided this month.
Chief Justice Blow of the Supreme Court of Tasmania found
that that the home owners (Matthew and Lisa Keating) had
breached their duty of care for the safety of their
tradesman (Dale Hendrex), and awarded damages of $1,126,904.
What was the duty of care,
how was it breached, and did it cause the injury?
The Keatings wanted to replace the roof cladding at their
house in Pybus Street, Snug, South Hobart. They engaged
Hendrex, a roofing contractor they knew, and agreed to pay
him $25 per hour. Mr Keating, a neighbour and another friend
helped Hendrex, as unpaid volunteers.
Mr Keating set up his ladder on the concrete driveway at
the front of the carport so that Hendrex and the other
workers could travel to and from the roof of the house via
that ladder and the roof of the carport. The ladder was
erected in the “A” position, and not in the extension
position. The ladder was tendered as an exhibit at the
The duty of care
The Court was satisfied that the Keatings owed Hendrex “a
duty to take reasonable care to protect him from harm when
he was travelling up to and down from the carport roof.”
The Court did not explore whether or not the risk of
falling was obvious, and therefore whether the defence of
voluntary assumption of risk could be raised by the Keatings.
The breach of the duty of care
Each of the three requisites set out in s 11 of the
Civil Liability Act 2002 (Tas) were satisfied:
- It was reasonably foreseeable that “any
person travelling to or from the roof of the house that
day via the ladder and the carport could fall” and be
injured because the top of the ladder was 40 cm lower
than the carport roof. Because of the gap, an “awkward
manoeuvre” was necessary to step down onto the ladder
from the carport roof. Also, it was reasonably
foreseeable that “the ladder might tilt if it were
- The risk of injury was significant.
- A reasonable person in the position of Mr Keating “would
have taken precautions to avoid the risk of a man
falling and suffering injury” by setting up the ladder
in the extension ladder configuration so that the top
was above the carport roof (90 cm above is recommended),
and by securing the ladder with a rope or something
The requisite that the breach of the duty of care caused
the harm was satisfied for the purposes of s 13 of the
Civil Liability Act 2002 (Tas) -
“But for (a) Mr Keating’s failure to erect the
ladder as an extension ladder, with its top well above the
carport roof, and (b) his failure to secure the ladder with
a rope, [Hendrex] would have descended the ladder in a
The Court said that “it is clearly appropriate that the
scope of the Keating’s liability should extend to the harm
that Hendrex suffered”.
Was Hendrex contributorily negligent by failing “to take
reasonable care for his own safety” under s 23 of the
Civil Liability Act 2002 (Tas)?
The Court found that the injury was caused in this way:
Hendrex “elected to descend from the carport roof by
sitting on the edge of the roof, stepping face forward onto
the ladder, and descending the ladder without turning to
face the ladder”. “He lost balance on the way down, causing
the ladder to fall over”. He suffered severe head injuries,
fractured both of his wrists and injured his right shoulder
when he fell onto the concrete driveway.
The Court found that Hendrex was negligent, just as
Keating was - because he should have looked at the ladder
before he climbed it, and saw that it was not fully extended
and not secured, and either did so himself, or asked Keating
to do so.
The Court considered that Hendrex was more negligent than
Keating because he had descended the ladder frontwards, with
nothing to hang onto. Therefore the Court apportioned to
Hendrex 60% responsibility and to Keating 40% responsibility
for the fall. And so the damages awarded to Hendrex were
reduced by 60% because of his contributory negligence.
The damages were assessed on the basis that: Hendrex was
36 years old on the day of his fall and 44 years old at the
time of the trial; he had not done any paid work since his
fall; he was permanently unemployable as a result of his
fall; he was substantially incapacitated with brain damage:
memory impairment and headaches; and his wife had taken the
role of a carer, looking after him day and night.
This is how the damages were calculated:
Past loss of earnings $60,750
Future loss of earnings $180,750
Past gratuitous care $548,000
Future care $1,537,226
Past medical and pharmaceutical expenses $29,957
Future medical, pharmaceutical & misc. expenses $81,078
Pain and suffering and loss of amenities $210,000
Total of the above $2,647,261
Less 60% (contributory negligence) ($1,588,357)
Fund management expenses (17% of $400,000) $68,000
In addition the Civil Liabilities Act claim,
Hendrex pursued two other claims at the trial –
- Breach of the Workplace Health and Safety Act and
Regulations – the Court held that the Act did not
apply because Keating did not make available any part of
the premises to be used as a workplace; and Hendrex was
an independent contractor, not an employee; and AS 1892
- being the Australian Standard relating to portable
ladders - was not breached because there was nothing
unsuitable about the design or construction of the
ladder for this use.
- Breach of an implied term in the contract to provide
a safe system of work – the Court was not convinced that
without implying that term the contract lacked business
Ladder safety is a serious issue – look at the ACCC
webpages – Product Safety Australia and Safety Alert using a
The proceedings illustrate the importance of maintaining
Home Insurance, because of the Liability cover it contains.
This is a typical cover -
We cover the legal liability of you or your family
for: death or bodily injury to someone else, or loss or
damage to someone else’s property in an incident that
takes place in your home or at the site and for which
you or your family is responsible as an owner or
occupier of your home or the site. For example, you may
be liable when someone falls and is injured when
visiting your home.
This covers not only the damages award, but also the
legal cost of defending the proceedings.
And so unless a home owner has Liability insurance, they
are putting their property and their assets at risk every
time a tradesman visits, even if the tradesman has their own