AFA Airconditioning v Mendrecki - [2008] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
AFA AIRCONDITIONING PTY LTD v MENDRECKI & ORS; DOAN & ANOR v MENDRECKI & ORS
[2008] SASC 195
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)
17 July 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE - GENERALLY
TORTS - NEGLIGENCE - LIABILITY FOR OTHERS' NEGLIGENCE - INDEPENDENT CONTRACTORS
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
Appeals against findings of liability and award of damages – plaintiff was sub-contracted by the fourth defendant (an airconditioning contractor) to install airconditioning units in the house extension of the first and second defendant – plaintiff was injured when timber joist gave way and he fell from the roof area – fall caused by faulty fixing of timber joist – the fifth defendant (the carpenter) had positioned the timber joist – trial Judge apportioned liability at 10 per cent against first and second defendants, 10 per cent against the third defendant (the builder of the extension), 30 per cent against the fourth defendant and 50 per cent against the fifth defendant – appeals by the first, second and fourth defendants and cross-appeals by plaintiff and first and second defendants.
Statutory duties – whether first, second and fourth defendants were occupiers under s 17B of Wrongs Act 1936 (SA) (“Wrongs Act”) or s 4 of Occupational Health, Safety and Welfare Act 1986 (SA) (“OHSW Act”) – whether s 23 of OHSW Act provides for a private right of action – whether it imposes a non-delegable duty – whether it imposes a higher duty than at common law – whether s17C of Wrongs Act imposes non-delegable duty – whether fourth defendant deemed an employer pursuant to s 4 of OHSW Act - whether s 72 of Development Act 1992 (SA) applies.
Held: Appeals by defendants on liability allowed – first and second defendants were occupiers pursuant to Wrongs Act and OHSW Act but fourth defendant was not an occupier – section 23 of OHSW Act does not give rise to a non-delegable duty of care – whether the duty under s 23 of OHSW Act is more onerous than at common law will depend on the particular factual circumstances – whether a non-delegable duty is imposed by s 17C of Wrongs Act is determined according to principles of negligence – the fourth defendant was not deemed an employer pursuant to s 4 of OHSW Act by reason of him being a contractor – section 72 of the Development Act does not apply to damages for personal injury.
Common law duties – whether non-delegable duties imposed on sub-contractor at common law – whether non-delegable duty because of an inherent risk of harm – whether task inherently hazardous or dangerous – whether breach by all defendants of duty to inspect and duty to communicate – whether plaintiff contributorily negligent.
Held: Appeals by defendants on liability allowed –- judgments of trial Judge set aside and judgment entered against third defendant and fifth defendant who had not appealed – no non-delegable duty owed by fourth defendant as a contractor – the fourth defendant did not exercise actual control over the plaintiff – the task of installing airconditioning units three metres above ground was not inherently hazardous or dangerous – the defendants had not breached any duty to inspect – faulty fixing of the joint was a hidden defect not readily visible even with close scrutiny – the defendants had not breached any duty to communicate – further, the cause of fall was the hidden defect and not any failure by defendants to communicate – plaintiff not contributorily negligent.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES
Appeals by first, second and fourth defendants and cross-appeal by plaintiff – assessment of damages – mitigation of loss – whether refusal to have an operation unreasonable – effect of psychiatric condition – effect of operation on past and future loss – effect of appeal and lapse of time with no further evidence – calculation of past earnings; future earning capacity; and past gratuitous assistance.
Held: Cross-appeal by plaintiff allowed – plaintiff was suffering from psychiatric condition until time of delivery of judgment – unlikely plaintiff underwent operation before judgment – a reasonable person in the circumstances of the plaintiff would be justified in not undergoing the operation prior to judgment – six months allowed for operation after judgment – evidential onus placed on defendants for loss of earning capacity of plaintiff – not satisfied plaintiff capable of finding actual employment prior to judgment – error as to calculation of weekly loss of earnings – error did not affect assessment of past loss but affected future loss which was manifestly inadequate – error in calculation of past gratuitous services and special damages – judgment entered in the sum of $988,603.96.
Evidence Act 1929 (SA) ss 45A, 45B; Development Act 1993 (SA) ss 4, 72, 73; Occupational Health, Safety and Welfare Act 1986 (SA) ss 4, 4(2), 19, 23, 24(2a)(a); Wrongs Act 1936 (SA) ss 17B, 17C, referred to.
Burnie Port Authority v General Jones Pty Limited (1992-94) 179 CLR 520; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd and Henry [2001] SASC 199; CSR Limited v Della Maddalena (2006) 80 ALJR 458; Fox v Percy (2003) 214 CLR 118; Glavonjic v Foster [1979] VR 536; Jones v Bartlett (2000) 205 CLR 166; Kondis v State Transport Authority (1984) 154 CLR 672; Pledge v Roads and Traffic Authority (2004) 78 ALJR 572; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, applied.
Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 557, distinguished.
Dinko Tuna Farmers Pty Ltd v Markos (2007) 98 SASR 96; Griffiths v Kerkemeyer (1977) 139 CLR 161; Hodges v Frost (1984) 53 ALR 373; Leichhardt Municipal Council v Montgomery (2006) 153 LGERA 55; McVicar v S & J White Pty Ltd [2007] 97 SASR 160; Mendrecki v Doan & Pham & Ors [2006] SADC 140; Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; Wheat v E Lacon & Co Ltd [1966] AC 552, discussed.
AMF International v Magnet Bowling [1968] 1 WLR 1028; Baird v Roberts [1977] 2 NSWLR 389; Ferguson v Welsh [1987] 1 WLR 1553; Harvey v Electrolytic Zinc Co of Australasia Ltd [1980] Tas R 167; Margiotta v Michielan (1981) 91 LSJS 388; Mendrecki v Doan & Pham & Ors (No 2) [2007] SADC 9; O’Brien v McKean (1968) 118 CLR 540; Potter v State Government Insurance Commission (1990) Aust Torts Rep 81-051; Thomas v O’Shea [1989] Aust Torts Rep 80-251; Van Velzen v Wagener (formerly Robertson) (1975) 10 SASR 549; Woodhead v Barrow [1993] Aust Torts Rep 81-238; Yammine v Kalwy [1979] 2 NSWLR 151, considered.

AFA AIRCONDITIONING PTY LTD v MENDRECKI & ORS; DOAN & ANOR v MENDRECKI & ORS
[2008] SASC 195
Introduction
Approach of an appellate court
Relevant primary facts
Contractual arrangements between the parties
Contractual arrangements between the owners and the builder
Contractual relationship between the owners and AFA
Contractual relationship between AFA and the plaintiff
Contractual relationship between the builder and the carpenter
Communication between the parties about readiness for installation of airconditioning units
Communication between the owners and the builder
Communication between the owners and AFA
Communication between AFA and the carpenter
Communication between the plaintiff and other parties
Progression of building work before the incident
The day of the installation and the incident
Whether an observer could have seen that the joist was not finally fixed
The issues on liability raised by the parties
Preliminary observations as to the judgment
Issue 1 – Were the owners or AFA occupiers under s 17B of the Wrongs Act 1936 and s 4 of the OHSW Act?
The Wrongs Act
Occupational Health, Safety and Welfare Act 1986
Issue 2 – Interpretation of s 23 of the OHSW Act
Does s 23 of the OHSW Act provide for a private right of action in relation to a breach of the section?
Does s 23 of the OHSW Act provide by its terms a non-delegable duty?
Does s 23 impose a higher duty than at common law?
Issue 3 – Does s 17C of the Wrongs Act impose, by its terms, a non-delegable duty?
Issue 4 – Was AFA deemed to be an employer pursuant to s 4(2) of the OHSW Act and subject to the duties imposed by s 19 of that Act?
Issue 5 – Was there a non-delegable duty and/or vicarious liability imposed on the owners and/or AFA?
Issue 5.1 – Were the owners or AFA vicariously liable for any negligence of the carpenter pursuant to the OHSW Act or at common law?
Issue 5.2 – Was there a non-delegable duty at common law imposed on AFA by reason of the plaintiff being its subcontractor?
Issue 5.3 – Was there a non-delegable common law duty imposed upon either AFA or the owners because of an “inherent and high risk of harm”?
Issue 5.4 – Was the task or the performance of the task of the plaintiff inherently dangerous?
Issue 6 – Was there a duty on the owners and AFA to inspect and/or inquire whether it was safe to install the units?
The owners
The owners – duty to inspect
The owners – duty to communicate

AFA
AFA – duty to inspect
AFA – duty to communicate

Issue 7 – Was the plaintiff contributorily negligent?
Issue 8 – Did s 72 of the Development Act apply?
Conclusions on Liability
Appeal Against Assessment of Damages
Issue 1 - Had the plaintiff’s psychiatric/psychological state resolved by December 2004?
Issue 2 - Was there an unreasonable refusal by the plaintiff to undergo a fusion operation?
Issue 3 - What was the capacity of the plaintiff to earn and had he failed to mitigate his loss?
Calculation of the plaintiff’s earnings
Past loss of earnings
Future loss of earning capacity
Past gratuitous assistance
Special damages for psychiatric treatment
Appeal against costs orders
Final orders

DUGGAN J: I agree that the appeals and cross-appeals should be allowed.
I agree with the orders proposed by Layton J and the reasons for decision prepared by her
BLEBY J: I agree with the orders proposed by Layton J and with her reasons.
LAYTON J:
Introduction
These are appeals against two judgments given by a District Court Judge in relation to a negligence action. In the first judgment delivered on 22 December 2006,[1] His Honour found that the then plaintiff, now first respondent, Slawomir Mendrecki (“the plaintiff”) should recover damages in the sum of $797,897.22 against five named defendants as a result of sustaining personal injury and loss. The second judgment delivered on 15 February 2007 related to the contribution of damages between the defendants.[2]
[1] Mendrecki v Doan & Pham & Ors [2006] SADC 140.
[2] Mendrecki v Doan & Pham & Ors (No 2) [2007] SADC 9.
The parties to the action were:
·The plaintiff, who was an air conditioning sub-contractor contracted by AFA Airconditioning Pty Ltd, the fourth defendant, to install airconditioning units;
·Dr Tam Van Doan (“Dr Doan”), the first defendant and his wife Dr Thanh-Tam Thi Pham (“Dr Pham”), the second defendant (collectively “the owners”), who were the owners of the house in which the airconditioning units were installed;
·Mr Olinto de Ieso (“the builder”), the third defendant, who built the extension to the house in which airconditioning units were to be installed;
·AFA Airconditioning Pty Ltd (“AFA”), the fourth defendant, with whom the owners contracted to install airconditioning units. The agent for that company was Mr Kurda; and
·Lucio Belletti (“the carpenter”), the fifth defendant, who was sub-contracted by the builder to do the carpentry work on the extension.
The plaintiff sued for damages resulting from injuries he sustained when working in a roof area of the extension. The timber joist on which he was standing came away from the brick wall and he fell to the ground. The carpenter had positioned the timber joist.
The Judge found liability and contribution in the following proportions:
·The first and second defendants, the owners, for 10 per cent;
·The third defendant, the builder, for 10 per cent;
·The fourth defendant, AFA, for 30 per cent; and
·The fifth defendant, the carpenter, for 50 per cent.
All parties, save the builder and the carpenter, have either appealed, cross‑appealed or filed notices of contention in relation to both judgments. Counsel for the builder appeared at the appeal hearing and sought leave to withdraw, indicating that his client did not wish to play an active role in the appeal.[3] A solicitor acting for the carpenter sent a letter indicating that her client was taking no action in respect of the appeal and that her client did not seek representation on the appeal.[4] Numerically, between all appellants and cross-contenders, there were 53 specific contentions not including numerous sub-paragraphs.
[3] Appeal Transcript, 73.
[4] Letter from Margaret Minney to Gary Allison of Tindall Gask Bentley dated 24 October 2007.
The contentions of the parties on appeal concern not only liability and the contributions by the defendants, but also aspects of the quantum of damages awarded by the trial Judge. These contentions can be found in nine discrete documents filed by the plaintiff, the owners and AFA, and are supported by detailed written submissions filed by these parties in accordance with an order made by the Chief Justice.
Approach of an appellate court
The High Court has indicated the approach which should be followed by an appellate court when conducting a re-hearing of this nature.[5] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and the Judge’s reasons. Appellate courts are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions, giving respect and weight to the conclusion of the trial Judge.[6] A decision by a primary judge may be set aside where the appellate court considers that the judge has failed to use or palpably misused his or her advantage; where there are incontrovertible facts which demonstrate the findings to be erroneous; or where the evidence which was accepted was glaringly improbable or contrary to compelling inferences. In such a case, making all due allowance for the advantages available to the Judge at first instance, an appellate court must not shrink from giving effect to its own conclusions.
[5] Fox v Percy (2003) 214 CLR 118, [66]; Pledge v Roads and Traffic Authority (2004) 78 ALJR 572, [43]; CSR Limited v Della Maddalena (2006) 80 ALJR 458, [19] – [24].
[6] Pledge v Roads and Traffic Authority (2004) 78 ALJR 572, [43].
In the present case the Judge made primary findings of fact which were in particular respects reliant on his view of the credit of certain witnesses. Generally speaking, the parties did not challenge primary findings of fact. Rather, the main topics of appeal concerned the inferences which the Judge should have drawn from those findings, the Judge’s interpretation of relevant legislation and the Judge’s application of legal principles. In addition, it was submitted that on certain matters the Judge failed to make appropriate findings of fact which were relevant to the outcome of his decision.
The trial Judge’s findings of fact do not appear all in one place in the judgment. Unfortunately, they are somewhat fragmented and appear in different places throughout the reasons, often where specific topics or elements of fault were discretely considered. This made the process of ascertaining the Judge’s findings of fact a particularly difficult exercise.
As the facts form the essential framework around which the issues raised on appeal are required to be considered, I will set them out first. These facts comprise not only those found by the Judge (indicated either specifically or by reference to the paragraphs of the judgment), but also relevant facts not found by the Judge which appear not to be in issue between the parties and which I am satisfied meet the requisite standard of proof on the balance of probabilities. In addition, I will consider facts not found by the Judge which were the subject of differing contentions by the parties.
In setting out these facts, I have had regard to the Judge’s observations as to the credit of certain aspects of the evidence of the witnesses. Sometimes the Judge made adverse findings as to credit; on other occasions he indicated that certain evidence of particular witnesses was to be preferred where there was differing evidence given by another witness. Such instances include the following:
·The Judge appears to have generally accepted the evidence of the builder;[7] but made adverse findings as to the credit of the builder in regards to what he said to Dr Doan.[8]
·The Judge rejected the carpenter’s evidence as to what he had said to Mr Kurda and to Mr Nowak (who was working with the plaintiff);[9] however he accepted the carpenter’s evidence in relation to the carpentry work.[10]
·The Judge rejected certain evidence of Dr Doan as to whether the builder was required to supervise the installation of the airconditioning units,[11] but accepted other aspects of Dr Doan’s evidence.[12]
·The Judge appears, on the whole, to have accepted the written statements of Mr Kurda, who was unable to be called to give oral evidence.[13]
·The Judge appears to have accepted the plaintiff’s evidence about the events leading up to and including the fall,[14] but expressly rejected or accepted in a qualified form other evidence relating to the effect of his injuries, discussed hereafter.
[7] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [59]-[65].
[8] Ibid, [89].
[9] Ibid, [110], [111], [113], [130] and [133].
[10] Ibid, [113].
[11] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [61] – [62] and [120].
[12] Ibid, [87], [119] and [142].
[13] Ibid, [68], [88], [91], [92] and [122].
[14] Ibid, [20], [119], [123] and [124].
Relevant primary facts
The owners are the registered proprietors of a large house property situated at 100 Woodland Way, Teringie. In about 1996, the owners planned extensive additions to the house and other aspects of the property. This case concerned only the additions to the house, consisting of a number of bedrooms, family areas, a kitchen, music room and very large room called the ballroom. The particular incident giving rise to the plaintiff’s injury occurred in the roof area of the ballroom.
The first defendant conducted all of the negotiations with the builder on behalf of himself and his wife. Therefore, when I refer to Dr Doan being the first defendant, that is intended to include him acting on behalf of himself and his wife, the second defendant.
Contractual arrangements between the parties
Contractual arrangements between the owners and the builder
The contract between the owners and the builder, dated 23 July 1997, is contained in Exhibit D(3)43.[15] The builder prepared the contract after a number of preliminary meetings with the owners.[16] Following negotiations, the builder accepted a supervision fee of eight per cent above his costs, being less than the 10 per cent which he had sought.[17] The Judge found that it was part of the builder’s duties to organise the tradesmen whom he wished to bring on the site and, further, to coordinate those tradesmen with the tradesmen arranged by Dr Doan.[18] The builder was not asked to provide a quotation to supply and install airconditioning[19] and he did not agree to supervise the installation of the airconditioning units.[20]
[15]   Referred to by Trial Judge in Mendrecki v Doan & Pham & Ors [2006] SADC 140, [140].
[16]   Mendrecki v Doan & Pham & Ors [2006] SADC 140, [139].
[17] Ibid, [59].
[18] Ibid, [63].
[19]   See Exhibits D(3)41 and D(3)42; Mendrecki v Doan & Pham & Ors [2006] SADC 140, [59] and [60].
[20]   Mendrecki v Doan & Pham & Ors [2006] SADC 140, [61] and [139].

The relevant contractual clauses are Clause 9, subclauses (a) and (b) and Clause 14 of the contract between the owners and the builder, which are discussed hereafter.
Contractual relationship between the owners and AFA
Dr Doan had used AFA for airconditioning work at an earlier time at his medical practice rooms.[21] In about August 1996, the owners were planning for AFA to supply and install the airconditioning for the extension.[22] Mr Kurda, as the manager for AFA, was responsible for all communications and negotiations with the owners. As early as 2 September 1996, Dr Doan sent a letter to Mr Kurda enclosing drawings for the extension and requesting a quote for suggested sizes of airconditioning units.[23] Plans were drawn up for the installation of airconditioning units, but significant modifications were made as the project evolved.[24] It was not until 28 April 1998 that Mr Kurda gave a written quotation for the units and their installation to Dr Doan.[25] This quotation was later revised in a letter from the first defendant to the fourth defendant, together with a typed account,[26] and by a further quotation dated 14 May 1998.[27] The builder did not participate in these negotiations.[28]
[21] Ibid, [57].
[22] Ibid.
[23]   Exhibits 1D58 and 4D58A.
[24]   Mendrecki v Doan & Pham & Ors [2006] SADC 140, [62].
[25]   Exhibit 1D59A.
[26]   Exhibit 1D60.
[27]   Exhibit 1D61; see also Exhibit 4D89, a copy of Mr Kurda’s statement to George Carabelas in which he confirms that the final quote submitted to Dr Doan was dated 14.5.98 and was for $24 770.
[28] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [62].
Unfortunately, Mr Kurda died on 24 January 2006[29] and therefore did not give oral evidence at the trial. Statements taken from Mr Kurda were tendered as evidence.[30] The Judge’s approach as to the relevance and weight of this evidence is indicated in his reasons.[31] In essence, the Judge tempered his reliance on this evidence where there were, for example, inconsistencies with other evidence.[32] The use which the Judge made of the statements is one of the topics of appeal raised by the owners.
[29] Ibid, [79].
[30] Exhibits 4D89, 4D90 and 4D91A, together with a bundle of related documents, and Exhibit 4D97, which is a group of composite documents.
[31] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [79] – [85].
[32] Ibid, [85].
Contractual relationship between AFA and the plaintiff
The plaintiff was an airconditioning sub-contractor employed by AFA to install the airconditioning units. The plaintiff had previously performed sub-contract work for AFA. There was no written contract between the plaintiff and AFA.[33] The arrangement was that the plaintiff would initially quote for the work and later send an invoice after completion of each stage. The plaintiff sent the invoice for the first fix, on 31 July 1998 and for the second fix, on 31 October 1998.[34] Another person, Mr Slavik Nowak, assisted the plaintiff with this installation.[35]
[33] Exhibit 4D97, interview with Mr Kurda.
[34] Exhibit P6.
[35] Exhibit 4D89 (Copy of Mr Kurda’s statement to Mr George Carabelas).
Contractual relationship between the builder and the carpenter
The builder sub-contracted the roof and ceiling carpentry to the carpenter. The carpenter was very experienced and there was a longstanding relationship between the two.[36] There was no written contract. The carpenter was sent site plans[37] and then provided a written quotation to the builder for the work.[38] This quotation was not available to be tendered before the Court,[39] but the evidence was that it was for an amount in the vicinity of $11,000 to $11,500.[40] The carpentry work on the extension included the erection of the roof and ceiling timbers for the whole extension, including the ballroom. The work specifically included the positioning of the ceiling joist which gave way.
[36]   Mendrecki v Doan & Pham & Ors [2006] SADC 140, [71].
[37] Trial Transcript, 2085 – 2086.
[38] Ibid, 2086.
[39]   Ibid.
[40]   Exhibit 1D45A; Trial Transcript, 2086.
Communication between the parties about readiness for installation of airconditioning units
Communication between the parties is of particular relevance because counsel for the plaintiff argued that the Judge erred in his decision, and should have found that there was negligence by all parties in failing to appropriately communicate between each other so as to ensure that it was safe for the plaintiff to install the airconditioning units.
The installation of the airconditioning units necessarily required some degree of coordination and exchange of information between the parties to determine when the units were to be installed. It was common ground that the airconditioning units could not be installed in the ceiling space until the roof timbers and ceiling joists were in place. This was because the platforms upon which they were to sit were to be fixed to those timbers and joists.[41] Further, the roof had to be in place at the time of the installation of the units in order to prevent exposure to rain damage.[42]
[41] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [66].
[42] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [66].
Communication between the owners and the builder
The Judge found that although the builder was not responsible for supervising the installation of the airconditioning units,[43] he knew that their installation had to be accommodated at some stage and that it had to be coordinated with his own building activities.[44] The Judge also found that the builder was required to indicate to the owners when the project had reached the stage where airconditioning units could be installed.[45] The Judge accepted that the builder was in regular attendance at the site to check on the work of his sub-contractors,[46] that he was in contact with Dr Doan from time to time to discuss the progress of the work,[47] and that the builder indicated to Dr Doan that the project was ready for the installation of the units.[48] These findings were appropriate on the evidence.[49]
[43] Ibid, [61], [62] and [66].
[44] Ibid, [67] and [69].
[45] Ibid, [69] and [86].
[46] Ibid, [89].
[47] Ibid.
[48]Ibid.
[49] See also discussion hereafter at paragraphs 152 - 155.
Communication between the owners and AFA
In relation to the owners and AFA the Judge found that, prior to the fall, Mr Kurda rang Dr Doan to find out if the project was ready for the installation of the airconditioning.[50] In relation to this communication, the Judge stated in his reasons:[51]
I cannot make any finding as to the precise words used. However, I find that [Dr Doan] indicated to Mr Kurda that that stage had been reached.
In a general sense that accords with Mr Kurda’s statement. According to that, Mr Kurda asked [Dr Doan] “… if it was alright for us to go ahead and install the air-conditioning units.” [Dr Doan] said, “Yes” (exhibit D(4)91A at p 7).
[50] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [87].
[51] Ibid, [87] and [88]
The Judge also found that Dr Doan did not ask Mr Kurda on the morning of the fall whether he had obtained the “green light” from the builder and the carpenter so as to proceed with the installation.[52]
[52] Ibid, [133].
In making these findings the Judge did not advert to Dr Doan’s additional evidence. The alleged failure to advert to this additional evidence was a ground of appeal by the owners, being a failure by the Judge to make appropriate findings as to facts.[53] It is convenient to deal with this ground of appeal at this point, as the Judge’s reliance on Mr Kurda’s statement affected primary findings of fact.
[53] See Submissions in Reply of the Appellant AFA Air Conditioning, [3] – [5.3].
The owners contended in their Supplementary Notice of Appeal that the Judge erred in admitting the written statements of Mr Kurda, pursuant to either ss 45A or 45B of the Evidence Act 1929 (SA) (“Evidence Act”).[54] Mr Kurda died on 24 January 2006. I note that this ground of appeal was not referred to in this form in their written submissions, nor in oral argument. The point was not formally abandoned. It is appropriate to decide it.
[54] See Supplementary Notice of Appeal filed by the Owners, [5].
The Judge, in his reasons for decision given on 22 December 2006[55] and also in his reasons for decision given on 16 February 2006, expressed why he admitted the statement given by Mr Kurda to Loss Adjusters Pty Ltd.[56] The Judge also discussed the circumstances giving rise to a compendium of documents agreed to by the parties regarding Mr Kurda’s position in providing the statements.[57] The Judge indicated that he would consider the documents as a whole and give such weight as he saw fit. He would also temper his reliance in the view of any inconsistencies, factual gaps and lack of examination and cross-examination, bearing in mind that Mr Kurda did not give evidence.[58]
[55] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [79] – [85].
[56] Exhibit D(4) 89.
[57] Exhibit D(4) 97.
[58] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [85].
In my view, the Judge was not in error in admitting the statement pursuant to the Evidence Act. Nor did there appear to be any inappropriate reliance on Mr Kurda’s statements, as discussed hereafter. Consequently, I would reject this ground of appeal.
Dr Doan’s additional evidence was to the effect that he told Mr Kurda that the carpenter had informed him that the main structure was complete, but that Mr Kurda would have to ask the builder himself whether or not it was ready.[59] Further, Dr Doan provided Mr Kurda with the builder’s and carpenter’s telephone numbers[60] and later contacted both the builder and the carpenter to advise them that Mr Kurda would be contacting them.[61] According to Dr Doan’s evidence, about an hour later he checked with the builder as to whether Mr Kurda had been in contact and was told that Mr Kurda had not.[62] Dr Doan did not check again before the fall occurred.[63] I note that this additional evidence of Dr Doan was not corroborated by any other evidence, notably from either the carpenter[64] or the builder.[65]
[59] Trial Transcript, 1574.
[60]   Ibid.
[61]   Ibid, 1579 –1580, 1697, 1919–1920.
[62]   Ibid, 1580, 1698.
[63]   Ibid, 1698.
[64]   Trial Transcript, 2102, 2152.
[65] Ibid, 1303 – 4.
Although the Judge did not expressly refer to and reject this additional evidence, His Honour’s indication that he “cannot make any findings as to the precise words used”,[66] coupled with the reference to Mr Kurda’s statement, suggest His Honour was not satisfied that such additional conversations took place. Such a conclusion would not be surprising given the absence of any corroboration touching on such communications from any of the relevant witnesses. In short, I do not consider any error by the Judge is disclosed and his finding was appropriately open on the evidence. I would reject this ground of appeal.
[66] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [87].
Communication between AFA and the carpenter
In relation to the communication between Mr Kurda and the carpenter, the Judge indicated in his reasons that he was not satisfied with the evidence given by the carpenter.[67] This dissatisfaction was mainly directed to the carpenter’s evidence about what he had told Mr Kurda when he had attended at the site on the Sunday before the fall, whilst the carpenter was working with his brother.[68]
[67] Ibid, [110], [111], [113] and [133].
[68] Ibid, [94], [109] – [115].
Instead, the Judge accepted that when Mr Kurda attended the site on that Sunday, he asked the carpenter when he could attend to install the airconditioning.[69] The carpenter told Mr Kurda, in effect, that “he had not completed the timber work in the area where he was working”.[70] Further, His Honour found that the carpenter “did not believe that airconditioning units were going where he was then working and the fact that he had not completed all of the work in the ceiling did not prevent those units being installed”.[71]
[69] Ibid, [109].
[70] Ibid, [113].
[71] Ibid, [113]; See also Trial Transcript, 2223, 2314 –2317.
Exactly what the Judge meant by the “area where he was working”, is unclear. It would appear that the Judge was adverting to the fact that the carpenter had not completed all of the necessary preparatory work for the ceiling to be attached. The underside of some of the rafters still needed to be packed in order to bring them to the same plane as the joists.[72] The area to be packed was adjacent to the area of the fall. Rafters adjoined the area of the joists but did not concern these joists.
[72] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [101], [112]; Trial Transcript, 2294 – 5.
The Judge additionally found that:
·the carpenter, when he left on the Sunday before the fall, knew that airconditioning contractors were planning to work in the roof void in the next few days and before he returned to complete the ceiling work;[73]
·there was no express warning given by the carpenter that no-one was to go into the roof void until he had finished;[74]
·there was no warning given by the carpenter to Mr Kurda that the ceiling area was not secure or unsafe;[75]
·the carpenter did not tell Mr Kurda to stay away until he, the carpenter, had completed the work;[76]
·the carpenter knew the joist had not been properly secured when he left on the Sunday and simply failed to turn his mind to it before leaving;[77] and
·the carpenter had not deliberately left the joist in an unsafe condition, it had “slipped his mind, he simply forgot”.[78]
[73] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [115].
[74] Ibid, [113].
[75] Ibid.
[76] Ibid, [115].
[77] Ibid.
[78] Ibid, [108].
These findings were not contested by any party at the appeal hearing. The carpenter was not represented at the appeal. In my view these findings were appropriately open on the evidence.
Communication between the plaintiff and other parties
The plaintiff was informed about the installation of the airconditioning units approximately a week beforehand.[79] The plaintiff attended the site on the day of the fall at Mr Kurda’s request.[80] On that day, there was a meeting in the morning between Dr Doan, Mr Kurda and the plaintiff. The Judge rejected Dr Doan’s evidence that he was not present on that morning and that it was not a pre-arranged meeting.[81] A layout of the sites of the airconditioning units was produced to the plaintiff for the first time at that meeting.[82] This resulted in a discussion of about 45 minutes,[83] involving input from the plaintiff on the position of the fan coils in the ballroom.[84]
[79] Ibid, [76].
[80] Ibid, [117].
[81] Ibid, [120].
[82] Ibid, [119].
[83] Trial Transcript, 130.17.
[84] Mendrecki v Doan & Pham & Ors [2006] SADC 140 at [119].
The Judge made no findings on the specific content of the discussion which occurred between the parties, nor on the repositioning of the airconditioners. I am satisfied on the evidence that the plaintiff made a recommendation to move the airconditioning units. The details of the repositioning are discussed later in my reasons at paragraphs 53-55. Mr Kurda agreed with these new locations and gave the plaintiff no instructions as to their installation. On the plaintiff’s own evidence, Mr Kurda regarded him as “the expert”.[85] The plaintiff proceeded with the installation.
[85] Trial Transcript, 144.36.
The Judge found the plaintiff “believed” that the ceiling rafter and ceiling joists were all completed.[86] In so finding, the Judge seems to have relied on his acceptance of the plaintiff’s evidence that it was not his practice to inspect a site before a fan coil was lifted into place[87] and that he never checked rafters.[88] The Judge expressly found that “[t]here was certainly no warning by anyone that one or more of the rafters/joists was not properly affixed”.[89] I am satisfied that these findings were appropriately open on the evidence.
[86]   Mendrecki v Doan & Pham & Ors [2006] SADC 140, [123].
[87]Trial Transcript, 326.15.
[88]   Ibid, 330.25-330.27.
[89]   Mendrecki v Doan & Pham & Ors [2006] SADC 140, [123].
Progression of building work before the incident
Prior to the incident, the carpenter had undertaken extensive roofing and ceiling work. He had already completed the roofing timber work and the ceiling work in the family room and part of the ballroom.[90] The roofing work, which was finished first, comprised trusses, rafters and gables.[91] At that point the carpenter left the work site to carry out another job and then returned to complete the installation of the ceiling joists in preparation for gyprock work.[92] The particular ceiling joist which gave way was installed during the erection of these ceiling joists.
[90] Ibid, [95].
[91] Ibid.
[92] Ibid.
The carpenter returned and worked on Saturday 12 July 1998 and Sunday 13 July 1998, being the weekend before the incident (which occurred on Wednesday 16 July 1998).[93] On the Saturday the carpenter and his brother fixed horizontal ceiling joists in the ballroom, and then on the Sunday they commenced fixing the ceiling joists on the sloped or raked section of the ballroom.[94]
[93] Ibid, [95] and [96].
[94] Ibid, [96].
The plan of the ballroom can be seen in Exhibit D(1) 21A.[95] The area of the ballroom is marked and includes the area marked “Bar and servery”. The carpenter and his brother commenced fixing horizontal ceiling joists in the flat section of the ballroom,[96] which spanned the centre section of the ballroom and ran the length of the ballroom, between the areas marked “verandah” and “Family Room”. These horizontal ceiling joists were positioned between two hanging beams which also ran the length of the ballroom. A hanging beam is a substantial piece of timber bolted to a steel beam. A portion of a hanging beam is depicted in Exhibit D(5) 28, photograph 7, and marked “A”.[97] The horizontal ceiling joists were “soldiered” to the hanging beams by using lengths of soft pine nailed to the beam in order to support the ceiling joists.[98] These horizontal ceiling joists did not go beyond the hanging beam on each side.[99]
[95] AB 15, 437.
[96]   Mendrecki v Doan & Pham & Ors [2006] SADC 140, [96].
[97]   Trial Transcript, 2107.
[98]   Ibid, 2107 – 2108.
[99]   Mendrecki v Doan & Pham & Ors [2006] SADC 140, [96].
On the Sunday they commenced fixing the ceiling joists to the vaulted or raked sections of the ballroom which were to the left and right of the ballroom.[100] These vaulted or raked sections were at each end of the horizontal ceiling joists and sloped down to the walls on either side at an angle of 22.5 degrees.[101]
[100] Ibid, [96].
[101] Ibid.
The fall occurred in the area depicted on Exhibit D(1) 21A on the side of the ballroom where the word “fire” is indicated on the ballroom plan.
In order to fix the ceiling joists in this vaulted section, it was necessary to initially ensure the correct slope and length of the ceiling joists. For this purpose two ceiling joists were used as guide joists.[102] The process followed by the carpenter was that, at first, a guide joist was placed into position adjacent to the “nib” of the wall. The “nib” of the wall can be viewed in Exhibit 5D 28, photograph 3, as being a portion of wall that juts out close to where the ladder in that photograph is positioned. The first guidepost was bevel cut so that the line of the cut was vertical when the joist sloped at 22.5 degrees.[103] It was then “tacked” to a “wall-plate” using two nails.[104] The wall-plate was a piece of timber fixed to the top of the wall. Further along the length of the wall, near the bar and servery, it was fixed to a section of steel beam.
[102] Ibid.
[103] Ibid.
[104] Ibid, [96] and [125].
It was the first guide joist which later gave way from the wall causing the plaintiff to fall. In Exhibit D(5) 28, photograph 1, the position of the man shown in the photograph is the position where the first guide joist gave way.

The second guide joist was positioned at the far end where the “bar and servery” is indicated on the plan.[105] After the two guide joists were positioned, stringlines were placed over their upper and lower edges to ensure that intervening joists could be positioned on the same plane.[106] The carpenter then fixed the joists between the first guide joist up to the second guide joist.[107] These joists can be viewed in Exhibit D(5) 28, photograph 1.
[105] Trial Transcript, 2112.
[106] Trial Transcript, 2112.
[107] Ibid.
In the portion where the wall-plate was attached to the wall,[108] the joists were notched so that the notches rested on top of the wall and were then fixed to the wall-plate by nails.[109] Not all of the joists were notched. Those in the foreground, where the wall-plate was fixed to the wall, were notched; but those in the background,[110] where they abutted a metal beam, were not.[111] The joists which were not notched were bevel cut in the same way as the first guide post and abutted the wall-plate above the steel beam.[112] However, unlike the first guide joist, those un-notched joists were “safely fixed” with skew nails.[113] Exhibit D(5) 28, photograph 8, depicts the large number of joists involved.
[108] Depicted in Exhibit 5D 28, photograph 5.
[109] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [97] – [99].
[110] Generally seen in Exhibit 5D 28, photograph 8.
[111] Trial Transcript, 2115.
[112] Ibid.
[113] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [103].
In short, the guide joist which gave way was neither notched nor safely nailed as it should have been.[114] It was not contested that if the joist had been notched and nails driven into each side of the joist into the wall-plate, then it would have been safely fixed.[115] This notching and nailing would have taken only a few minutes. Alternatively, some other method, such as a Triple-L Grip, could have been used.[116]
[114] Ibid, [103].
[115] Ibid, [99].
[116] Ibid.
It is not known whether it was the carpenter who tacked the guide joist or whether it was his brother. It was accepted by the parties that, either way, the carpenter was responsible for his brother’s actions.
The day of the installation and the incident
As indicated earlier in these reasons at paragraph 40, on the day of the installation the plaintiff recommended that the airconditioning units should be moved from the two locations indicated on the plan on the horizontal joists of the ceiling section, to two locations in the sloping ceiling section of the ballroom.[117] Part of the plaintiff’s reasoning for these changes included safety and that he regarded the proposed original positions of the units to be “stupid” and “foolish”.[118]
[117] Trial Transcript, 141-144; Exhibit P4.
[118] Ibid, 367.4.
In my view, as a matter of practicality, installing the airconditioning units in the raked portion of the ceiling overtly gave greater space for their installation and for any later work which may be required for their repair or maintenance. The repositioning required the plaintiff to build two horizontal platforms in the ceiling space.[119] The first platform was built in the position indicated in Exhibit D(5) 28, photograph 8, and took approximately 45 minutes to build.[120] This process was uneventful and involved the plaintiff walking on ceiling joists in that area.[121]
[119] Trial Transcript, 149.
[120] Ibid, 150.
[121] Ibid.
The work on the second platform above the section marked “fire” in the plan, also took approximately 45 minutes.[122] The second platform can be seen in Exhibit D(5) 28, photograph 1, to the right of the person, and is sited over joists 2, 3 and 4.[123] After building this platform, the fan coil,[124] which weighed some 60 kilograms, was lifted into place by the use of an hydraulic lift called a Genie.[125] The plaintiff and Mr Nowak both stood with legs apart on two ceiling joists adjacent to the failed joist and lifted the fan coil from the Genie hoist onto a platform.[126] Mr Nowak was closer to the wall than Mr Mendrecki, who was positioned further into the centre of the ballroom on the ceiling joists.[127] After the fan coil had been placed on the platform, the plaintiff walked around the back of the platform to the opposite side.[128] He started to undo the screws on the legs of the unit and, whilst doing so, was standing with his feet on the adjacent ceiling joist.[129] It was whilst he was performing this work that the ceiling joist gave way and he fell to the ground.[130]
[122] Trial Transcript, 151.10 and 152.30.
[123] Joist 2 being next to the guide ceiling joist which gave way.
[124] See Exhibit P5, photographs 1, 4 and 8.
[125] Trial Transcript, 154.
[126] Ibid, 154.6 – 155.17 and 506.21 – 508.12.
[127] Ibid, 904.28 – 905.26 and 907.23 – 910.17.
[128] Ibid, 905.21 – 906.2.
[129] Ibid, 156.15 – 157.21.
[130] Ibid, 157.
At the time of the fall neither Mr Kurda nor Dr Doan were present; they had already left.[131]
[131] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [128].
Whether an observer could have seen that the joist was not finally fixed
The Judge found that the joist had had the following features:
·It had been “tacked” into the wall-plate using two nails;[132]
·The joist was adjacent to a nib in the brickwork of the wall;[133]
·It was not notched;[134] and
·There was a “slight gap” between the bevel edge and the wall-plate.[135]
[132] Ibid, [96].
[133] Ibid, [100].
[134] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [99].
[135] Ibid, [100].
In addition, His Honour made a number of findings about the ability of an observer to discern that the ceiling joist was faulty. Many of these findings appear to be inconsistent. However, they may perhaps be explained when consideration is given as to who is the observer, the position of the observer, and the purpose of observation.
The Judge’s findings were as follows:
·The nature and extent of the danger arising from the state or condition of the premises was a “hidden trap”;[136]
·“...first is that there [was] a slight gap between the bevel edge and the wall-plate and that, from above, that joist may, on close inspection in good light, have appeared different from those near it. Secondly, this joist was adjacent to a nib in the brickwork of the wall such that any difference in its appearance from others near it would not have been readily apparent from above or below”;[137] and
·The joist amounted to a hidden or concealed trap for those persons who did not know the incomplete nature of the work.[138]
[136] Ibid, [56].
[137] Ibid, [100].
[138] Ibid, [104].
These observations were all made as general statements and not referrable to a particular party.
In relation to Mr Kurda and the plaintiff, the Judge made the following findings:
·“…it should have been obvious to Mr Kurda and the plaintiff that further work needed to be done past the hanging beam before the gyprock could be put up in that area. That is not to say, however, that anyone should have been alerted to the possibility of a joist not having been fixed in a proper manner”;[139]
·The difference of the joist would not have been readily apparent to the untrained eye, certainly from the ground or floor level. The fact that it was not notched was not unusual because half the joists were in that condition as they were sitting over a steel beam; [140] and
·The joist gave way at a point when it was immediately next to a brick nib which would have obscured it “from one side at least”. It was fixed with two nails and may have given the appearance of being secure.[141]
[139] Ibid, [101].
[140] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [125].
[141] Ibid.
In relation to Mr Kurda alone, the Judge additionally found that:
·A proper inspection of the ceiling joist would have revealed the inadequately secured joist.[142]
[142] Ibid, [116].
These findings concern four features of the site which were relevant to the ability of an observer to discern that the ceiling joist was faulty. Based on the evidence, I take these to be:
1The gap between the bevel edge and the wall-plate;
2The nib in the brickwork of the wall adjacent, which may have obscured the joist;
3The un-notched condition of the ceiling joist, in a situation where other joists were also un-notched and sitting over a steel beam; and
4The further work that needed to be done past the hanging beam.
However, the findings made by the Judge do not, in all instances, identify the particular feature to which he was directing his comments.
The Judge did not advert, or make reference to, an additional feature, which is disclosed in Exhibit D(5) 28 photographs 2, 5 and 6. These photographs revealed the presence of a “cable stringer”: a piece of timber running across the top of the wallplate to which electrical cabling was attached. There was no direct evidence as to when this cable stringer and associated cabling was installed, although the carpenter said that the photographs in Exhibit D(5) 28 depicted the state of the work as he saw it on the Sunday before the accident.[143]
[143] Trial Transcript, 2132.
The importance of this feature is that if that cable stringer and wiring had been in place on the day when the plaintiff was installing the unit, this would have even further obscured both the absence of a notching and the “slight gap” between the bevelled edge and the wall. As counsel for AFA submitted, the failure to clarify whether the cable stringer and cables were in place would be a greater hurdle for the plaintiff to overcome in order to prove that the parties, whether they had a trained eye or otherwise, could or should have noticed any flaw in the final fixing of that joist.
I will consider these findings as to visibility of the fixing defect of the ceiling joist later in these reasons after a discussion of the legal issues.
The issues on liability raised by the parties
The parties in their various appeals, cross-appeals and notices of contention raised a number of legal and related factual issues, namely:
1Were the owners or AFA occupiers under s 17B of the Wrongs Act 1936 (SA) (“Wrongs Act”) and under s 4 of the Occupational Health, Safety and Welfare Act 1986 (SA) (“OHSW Act”)?
2The interpretation of s 23 of the OHSW Act. Does the section:
2.1provide for a private right of action in relation to a breach of the section;
2.2    impose, by its terms, a non-delegable duty; and
2.3    impose a higher duty than at common law?
3Does s 17C of the Wrongs Act impose, by its terms, a non-delegable duty?
4Was AFA deemed to be an employer pursuant to s 4(2) of the OHSW Act and subject to the duties of an employer imposed by s 19 of that Act?
5Was there a non-delegable duty and/or vicarious liability imposed on the owners and/or AFA?
5.1Were the owners and/or AFA vicariously liable for any negligence of the carpenter pursuant to the OHSW Act or at common law?
5.2Was there a non-delegable duty at common law imposed on AFA by reason of the plaintiff being its subcontractor?
5.3Was there a non-delegable common law duty imposed upon either AFA or the owners on the basis that the installation task involved an “inherent and high risk of harm” to themselves and others?
6Was there a duty on the owners and AFA to inspect and/or inquire whether it was safe for the plaintiff to install the units? If so, what was the scope of that duty, was it breached, and did it result in injury to the plaintiff?
7      Was the plaintiff contributorily negligent?
8 Did s 72 of the Development Act 1993(SA) (“Development Act”) apply?
Preliminary observations as to the judgment
Before commencing to discuss each of the above issues, I make some preliminary observations about the trial Judge’s reasons for judgment. In my view, the Judge’s precise findings on the statutory duties set out in the Wrongs Act and the OHSW Act lack clarity. In particular, there is uncertainty as to whether the Judge specifically found that AFA had breached a statutory duty to the plaintiff by reason of being a deemed employer pursuant to s 4(2) of the OHSW Act. There is also a blurring as to exactly what test the Judge applied when considering the alleged breaches of statutory duty.
Early in his reasons for judgment the Judge discussed and made findings as to occupier’s liability pursuant to ss 17B and 17C of the Wrongs Act.[144] In those very early paragraphs the Judge concluded that the owners and the builder were in occupation of the premises,[145] and that by virtue of s 17C(2) the standard of care to be applied was the same as common law.[146] Immediately after so concluding, the Judge then discussed the topic: “Is this a case of non-delegable duty of care?”, citing excerpts[147] from Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd and Henry (“Complete Scaffold Services”).[148]The passages dealt, in general terms, with the issue of non-delegable duty.[149] Overtly contained within them were observations as to duties which may be imposed on employers and employees. After citing that judgment, the Judge indicated:[150]
Applying these principles, the view to which I have come is that this was a case of a non-delegable duty. The contractor was engaged to perform a task or perform a task in a manner “…that carries with it an inherent and high risk of harm to others”.
Then, the Judge found that the task of lifting or hoisting the airconditioning unit into the roof void amounted to an “inherent and high risk of harm”.[151] He thereafter concluded that the duty cannot be the subject of a delegation.[152]
[144] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [25] – [39].
[145] Ibid, [37].
[146] Ibid, [38] – [39].
[147] Ibid, [40] – [44].
[148] [2001] SASC 199.
[149] See Mendrecki v Doan & Pham & Ors [2006] SADC 140, [40] – [41] and a portion of paragraph [42].
[150] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [42].
[151] Ibid, [43].
[152] Ibid.
It is to be noted that in these passages of his reasons, His Honour appeared to be directing attention to the position at common law and under the Wrongs Act in respect of occupier’s liability, but doing so by reference to an employer’s liability.
The Judge then addressed s 23 of the OHSW Act, being the section concerned with occupier’s liability and made the following observations:[153]
Section 23 itself gives rise to a cause of action against an occupier. I have already concluded that the first and second defendants were occupiers for these purposes. The duties imposed are at least as onerous as those imposed at common law. On its face, s 23 gives rise to a non-delegable duty of care, that is, a duty to ensure that, so far as is reasonably practicable, reasonable care is taken for the safety of the plaintiff.
By virtue of s 4(2) of the OHSW Act, the plaintiff is deemed to be an employee of the fourth defendant, being the company to which he was sub-contracted. The duty imposed by s 19(1) of the OHSW Act, which flows from the relationship deemed pursuant to s 4(2), is a higher duty than is imposed at common law.
I therefore conclude that there is a non-delegable duty also imposed on the fourth defendant. The fourth defendant was a joint occupier with the first and second defendants of the extension area for the purpose of the installation of the air-conditioning. [References omitted.]
[153] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [46] – [48].
Subsequently the Judge, under the heading “Principles relating to the existence and content of duty of care in negligence; breach of duty” referred to the foreseeability test[154] and to a duty of the builder as “an occupier” to coordinate persons who came onto the extension site.[155] Thereafter, His Honour referred to the propositions relevant to AFA in relation to common law duties of sub-contractors in the context of an employer/employee environment,[156] citing Stevens v Brodribb Sawmilling Co Pty Ltd (“Stevens v Brodribb”).[157]
[154] Ibid, [49] – [53].
[155] Ibid, [53].
[156] Ibid, [54].
[157] (1986) 160 CLR 16.
Under the heading “Occupier’s Liability – Wrongs Act”, the Judge referred back again to the Wrongs Act and the standard of care under s 17C(2), which concerns occupier’s liability.[158] Following this, certain factual findings appeared under the heading “Some factual findings on the question of liability”.
[158] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [55] – [56].
My over-arching concern about the judgment is that, as a whole, it blurs common law principles and statutory principles in relation to occupier’s liability, employer’s liability and general liability. This merging of concepts, in combination with the different parties, led to legal and factual errors and deficiencies which I identify hereafter.
I also draw attention to some further problems at this stage. There was no analysis for the conclusions in paragraph 46 as to the interpretation of s 23 of the OHSW Act. In paragraph 47, there was a finding of a “higher duty” under s 19(1) of the OHSW Act which relates to duties as an employer, but nothing further was said about this topic. In paragraph 48 there was a reversion back to a non-delegable duty imposed on AFA as an occupier, citing Cox Constructions Pty Ltd v Dawes[159] and then a finding that AFA and the owners were both occupiers. Later, in paragraph 65 under the heading “Some factual findings on the question of liability”, the Judge found that AFA, the owners and the builder were all occupiers; but that the builder was in possession “for the purpose of discharging his contractual obligations to the [owners]”.[160] There is no attribution as to whether the Judge was considering common law or statutory matters.
[159] (1999) 73 SASR 557, [93].
[160] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [65].
I also make some preliminary observations about non-delegable duties imposed under statute or imposed by common law, in relation to employers and/or occupiers, as well as other relationships. There are many cases which have discussed these duties. However, what is apparent from the cases is that these matters need to be determined having regard to the provisions of the particular statute. In respect of common law, a non-delegable duty is dependant upon the nature of the relationship and other criteria and circumstances.[161]
[161] Dinko Tuna Farmers Pty Ltd v Markos (2007) 98 SASR 96, as discussed hereafter.
As to whether or not common law duties are “higher” than those imposed by statute, this issue has also been the subject of consideration and, more recently, it has been indicated that it is an unprofitable exercise to decide the issue. Instead, it is to be separately considered by reference to common law and the statute.[162]
Issue 1 – Were the owners or AFA occupiers under s 17B of the Wrongs Act 1936 and s 4 of the OHSW Act?
[162] See Slivak v Lurgi(Australia) Pty Ltd (2001) 205 CLR 304, [87] – [89]; Dinko Tuna Farmers Pty Ltd v Markos (2007) 98 SASR 96.
The Wrongs Act
The Judge concluded that the owners and the builder were joint occupiers of the site pursuant to the Wrongs Act.[163] The owners appeal against this finding. The builder is not a party to the appeal proceedings and the finding that he was an occupier is unchallenged.
[163] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [37].
Section 17B of the Wrongs Act defines “occupier and “premises” as follows:
“occupier” of premises means a person in occupation or control of the premises, and includes a landlord
“premises” means—
(a)     land; or
(b)     a building or structure (including a moveable building or structure); or
(c)     …
Section 17C of the Wrongs Act specifies the circumstances in which an occupier of premises is liable for injury, loss or damage caused by the dangerous state of the premises. This is discussed further in Issue 3 below.

At the trial, the owners relied on Clauses 9(a) and (b), as well as Clause 14(a)(i) and (ii) of their contract with the builder as evidence of the fact that they had passed control of the extension area to the third defendant:[164]
[164] AB 15, 552, 555-6.
9.(a) The Owner shall give the Builder possession of the site (in a vacant condition) and with suitable all-weather access from a public road to all places on the site where the works are to be carried out from the date of commencement until the time when the Owner becomes entitled to possession under paragraph 14.
(b)During such time the Builder shall have uninterrupted possession of and access to the site PROVIDED THAT the Owner and/or his duly appointed representative and, if applicable, the Lending Institution’s inspectors shall have access to the site providing they do not interfere with or prevent the Builder from carrying out the works.
…
14.(a) When the Builder considers that the works are practically completed he shall advise the Owner accordingly (and this act is deemed and herein called ‘practical completion’) and give the Owner a written claim or account for the unpaid balance of the contract price and all other monies to be paid under this contract and then the Owner shall within seven (7) days:-
(i)inspect the works and sign and deliver to the Builder a certificate of practical completion certifying the Owner’s satisfaction with the works except for the items detailed in the certificate; and
(ii)pay to the Builder the unpaid balance of the contract price and all other monies to be paid under this contract;
and thereupon the Owner shall be entitled to possession of the works.
The Judge found that the owners and the builder were joint occupiers of the extension, relying on the following authorities. His Honour referred to the reasoning of the High Court in Jones v Bartlett,[165] where Gummow and Hayne JJ applied the English decision of Wheat v E Lacon & Co Ltd.[166] Both cases indicate that the identification of a person as an occupier within the meaning of a statute depends on the particular facts, the nature and extent of the occupation and the control exercised by that person over the premises in question. In particular, that control is associated with, and arises from, presence in and use of, or activity in, the premises.[167]
[165] (2000) 205 CLR 166.
[166] [1966] AC 552.
[167] Jones v Bartlett (2000) 205 CLR 166, [150] cited in Mendrecki v Doan & Pham & Ors [2006] SADC 140, [34].
Having identified the necessary features, His Honour also correctly noted that there can be shared or joint occupation between a builder contractor and a site owner, citing AMF International v Magnet Bowling[168] and Ferguson v Welsh.[169]
[168] [1968] 1 WLR 1028, 1052.
[169] [1987] 1 WLR 1553.
On the facts in this case, the Judge noted that although Clause 9 gave the builder possession of the extension site from the date of commencement until the owners were entitled to possession, nonetheless the owners remained in active possession as the works progressed.[170] In particular, the owners excluded the supply and installation of the airconditioning units from the contract and specifically engaged AFA to install the units.[171] In so doing, the owners specifically authorised AFA to enter the premises for that purpose.[172] The owners also retained keys[173] to access the premises, as AFA were not the only sub‑contractors organised by the owners to do work on the extension. The Judge concluded that whilst Clause 9 gave “occupation and control” of the extension to the builder, the owners did not give absolute control of the extension to him.
[170] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [32].
[171] Ibid, [32].
[172] Ibid.
[173] Ibid, [35].
The owners’ argument on appeal was that the Judge should have found that the owners were not occupiers of the “ceiling space within the extension”, as AFA was the occupier of that portion of the premises. There is, in my view, no basis for excising this ceiling area from occupation by the owners. They had arranged for AFA to provide and install the airconditioning units into the ceiling. They were present when the repositioning of the airconditioning units was discussed. Further, such a limitation raises questions as to what part of the ceiling space is being referred to: was it the whole of the ceiling space, was it the portion of the ceiling space where the airconditioning units were to be installed and, if so, did that change when the location of the units changed?
I consider that, in all of the circumstances, the Judge was correct in considering the extension as a whole and not limiting it to portions of the extension. He was also correct in his finding that both the builder and the owners were joint “occupiers” of the extension for the purposes of the Wrongs Act. I would reject that ground of appeal.
Although the Judge made no specific finding as to whether AFA was an occupier as defined in s 17B of the Wrongs Act, he did make such a finding for the purposes of the OHSW Act. I consider that finding below. In my opinion, for the reasons expressed below, AFA was not an occupier as defined in s 17B of the Wrongs Act.
Occupational Health, Safety and Welfare Act 1986
The Judge concluded that the owners and AFA were joint occupiers of the extension site for the purposes of the OHSW Act.[174] I note that the owners and AFA submitted that the Judge was in error. There was no specific finding by the Judge that the builder was also an occupier pursuant to s 4(1) of the OHSW Act.[175]
[174] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [48].
[175] Ibid, [65].
Section 4(1) of the OHSW Act defines occupier as follows:
“occupier” in relation to a place means a person who has the management or control of the place.
In my view, the owners were “occupiers” for the purposes of s 4(1) of the OHSW Act for the reasons previously set out with regard to the Wrongs Act.
As to AFA, the Judge held:[176]
By virtue of s 4(2) of the OHSW Act, the plaintiff is deemed to be an employee of the fourth defendant, being the company to which he was sub-contracted. The duty imposed by s 19(1) of the OHSW Act, which flows from the relationship deemed pursuant to s 4(2), is a higher duty than is imposed at common law (see Complete Scaffold (supra) at para 56).
I therefore conclude that there is a non-delegable duty also imposed on the fourth defendant (see also Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 557 at para 93). The fourth defendant was a joint occupier with the first and second defendants of the extension area for the purpose of the installation of the air-conditioning.
[176] Ibid, [47] and [48].
There were no reasons given by the Judge as to how he came to the conclusion that AFA was an occupier, save the statement in the second paragraph quoted above which concludes that there was a non-delegable duty imposed on AFA as a deemed employer of the plaintiff. Such a finding would not of itself give rise to a finding that AFA is an occupier and is, in my view, a non-sequitur.
Applying the appropriate legal principles, namely consideration of the particular facts, the nature and extent of the occupation and the control exercised over the premises in question,[177] I note the following:
1The contract between AFA and the owners did not expressly or impliedly give AFA a right of occupation, possession or control of the extension. I agree with the submissions put on behalf of AFA that, at best, the contract gave AFA a licence to enter the premises to arrange for the installation of the units.
2AFA was not in control of the whole of the extension.
3Mr Kurda did not have a right to exclude other persons from entering the extension, or even the ceiling area where installation was to occur.
4Mr Kurda had only been present at the site for 45 minutes earlier on the morning of the fall, during which time the new siting of the airconditioning units was discussed. After that, Mr Kurda left the plaintiff to do the installation and he was not present when the accident occurred. I reject the argument put by counsel for the owners that AFA was in occupation of the ceiling area, for reasons previously given at paragraphs 86-87.
[177] Jones v Bartlett (2000) 205 CLR 166, [150].
In summary on Issue 1, the Judge was correct in finding that the owners and the builder were the joint occupiers of the extension pursuant to the Wrongs Act. Further, in my view, the owners and the builder were also joint occupiers of the extension pursuant to the OHSW Act, by parity of reasoning. The extent of the statutory duties of the owners as occupiers differed from AFA for reasons discussed under Issue 6. I would therefore reject that ground of appeal. However, I find that the Judge erred in finding that AFA was an occupier pursuant to the OHSW Act.
Issue 2 – Interpretation of s 23 of the OHSW Act
Section 23 of the OHSW Act provides for the duties of occupiers as follows:
Duties of occupiers
23. The occupier of a workplace must ensure so far as is reasonably practicable—
(a) that the workplace is maintained in a safe condition; and
(b) that the means of access to and egress from the workplace are safe.
Does s 23 of the OHSW Act provide for a private right of action in relation to a breach of the section?
The Judge found that s 23 gave rise to a cause of action, without citing any authority in support of that conclusion.[178] This Full Court in Complete Scaffold Services[179] expressed reservation as to whether breach of this legislation gave rise to an independent cause of action for damages[180] but was prepared to proceed as though there was such a cause of action. A similar approach had been taken by the majority of the High Court in Slivak v Lurgi(Australia) Pty Ltd (“Slivak v Lurgi”).[181] That case concerned the duties of designers in the context of the effect of a breach of duty in respect of workers. Gaudron J, who was in dissent as to the result in that case, expressed the view that s 24(2a)(a) of the OHSW Act conferred a right of civil action.
[178] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [46].
[179] [2001] SASC 199 (Doyle CJ, with whom other members of the Court agreed).
[180] Ibid, [46].
[181] (2001) 205 CLR 304, [27] – [29].
This Court was not provided with a full and detailed argument by the parties on this point. I therefore take a cautionary approach in this case, as did the Full Court in Complete Scaffold Services[182] and Debelle J in McVicar v S & J White Pty Ltd (“McVicar”),[183] and assume for the purposes of this case, that an independent cause of action is conferred by the section. If it does, it could only apply to an “occupier”, limited in this case to the owners and the builder.
[182] [2001] SASC 199.
[183] [2007] 97 SASR 160, [66].
Does s 23 of the OHSW Act provide by its terms a non-delegable duty?
The Judge found that s 23 “[o]n its face” gave rise to a non-delegable duty of care.[184] No authority was cited for this conclusion and no reasons were given. The Judge’s conclusion might appear to derive some support from the reasons given by Perry J in Cox Constructions Pty Ltd v Dawes (“Cox Constructions”)[185] with whom Prior and Mullighan JJ agreed. However, the finding in that case that s 23 gave rise to a non-delegable duty of care turned upon particular regulatory provisions applicable to an occupier of commercial premises. Such provisions have no application to this case. Doyle CJ, in Complete Scaffold Services,[186] with whom the other members of the Court concurred, provided a basis for qualified delegation of the duty to a competent independent contractor except where, for example, the performance of the task depends on a task which is inherently dangerous or hazardous, and there is a risk of harm of great significance or magnitude.[187]This same approach was again applied by the Chief Justice in McVicar,[188] with express rejection of a non-delegable duty by Anderson J.[189]
[184] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [46].
[185] (1999) 73 SASR 557, [77].
[186] [2001] SASC 199.
[187] Ibid, [41] and [42].
[188] (2007) 97 SASR 160, [53].
[189] Ibid, [91].
A more recent discussion of the general approach taken by courts in relation to non-delegable duties under statutory provisions has been expressed by Gleeson J in the High Court case of Leichhardt Municipal Council v Montgomery.[190] The discussion of Gleeson J, particularly at paragraph 23 of his reasons, suggests that a statutory duty to “ensure” that reasonable care is taken is unlikely to be extended to become a duty to ensure that no singular act of carelessness of an independent contractor occurs. Or, to put it another way, a duty that the contractor should be responsible for singular acts of carelessness of an independent contractor.[191]
[190] (2006) 153 LGERA 55.
[191] (2006) 153 LGERA 55, [9] – [10], [18] and [23].
Doyle CJ expressed this same approach in Complete Scaffold Services[192] when he indicated that he doubted whether s 23 applied to a passing incident which was a “casual act of negligence” and “carelessness”.[193] In that case, a scaffolder had been careless in putting two planks in place without making adequate enquiry as to their use and without considering whether the planks would shift. As will be seen below,[194] this case did not involve an extra-hazardous activity such as to attract a non-delegable duty of care. There was a risk of falling from the roof timbers, but that is a risk inherent in any aspect of building construction.
[192] [2001] SASC 199.
[193] Ibid, [55].
[194] Paragraphs 142 - 146.
In conclusion, I consider the Judge was in error in finding that s 23, in its terms, gives rise to a non-delegable duty of care in this case.
Does s 23 impose a higher duty than at common law?
His Honour did not specifically find that the duty imposed by s 23 was a “higher duty”. That finding was instead made in relation to his interpretation of s 4(2) of the OHSW Act, in combination with s 19(1) of the OHSW Act, which relates to deemed employers.
Whether the statutory duty under s 23 of the OHSW Act is more extensive or onerous than at common law has been the subject of differing judicial opinion.[195] In a recent Full Court decision in McVicar,[196] Anderson J doubted “… very much whether [s 23] imposes any more onerous requirements than the occupier’s duty at common law”.[197] However, in Cox Constructions[198] Perry J, with whom Prior and Mullighan JJ agreed, expressed the view that the duty under s 23, because of the particular regulatory requirements that applied to the building in that case, ought properly to be regarded as “more onerous than the duties at common law”.[199] However, as mentioned above, I note that was the result of stringent regulations which have no application in this case.
[195] See, for example, McVicar v S & J White Pty Ltd (2007) 97 SASR 160; Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 557, 570 (Perry J).
[196] (2007) 97 SASR 160.
[197] Ibid, [109].
[198] (1999) 73 SASR 557.
[199] Ibid, [92].
Section 19 of the OHSW Act (or its earlier equivalent) has been the subject of judicial consideration by this Court and the High Court. This section is concerned with the duties of employers, but it uses a similar phrase as does s 23 of the OHSW Act, namely “… ensure so far as is reasonably practicable”.
In Complete Scaffold Services[200] Doyle CJ stated that “… the duty imposed by s 19(1) is a higher duty than is imposed at common law, but it is not an absolute duty”.[201] I note that the provisions of ss 23 and 19 of the OHSW Act are differently worded. Although there is commonality in respect of the use of the expression “...ensure so far as is reasonably practicable...”, the duties of employers, as expressed in s 19, are more elaborate than those which are provided in ss 23(a) and (b). This may arguably suggest that the more detailed duties required of employers under s 19 are more onerous than that which is required of employers at common law. The High Court, however, seems to take a different approach to s 19.
[200] [2001] SASC 199.
[201] [2001] SASC 199, [56].
The High Court in Slivak v Lurgi[202] considered the construction of s 24(2a)(a) of the OHSW Act which is comparable to the current terms of s 19(1). Gaudron J was of the view that the statutory duty imposed by s 24(2a)(a) was significantly different from a general common law duty of care, which was not expressly limited to workers. Gaudron J concluded that the statutory duty was “different” from the common law duty and it was a duty to protect against “all risks” to workers “if that is reasonably practicable”.[203]
[202] (2001) 205 CLR 304.
[203] Slivak v Lurgi(Australia) Pty Ltd (2001) 205 CLR 304, [51].
Her Honour also gave consideration to the meaning of the words “reasonably practicable”. She indicated:[204]
The words “reasonably practicable” have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
·the phrase “reasonably practicable” means something narrower than “physically possible” or “feasible”;
·what is “reasonably practicable” is to be judged on the basis of what was known at the relevant time;
·to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk. [Footnotes omitted]
[204] Ibid, [53].
Callinan J in the same case also considered that s 24(2a)(a) imposed a “different” duty upon an employer than the common law, but it was not an absolute duty. In his view:[205]
The words “must ensure” produce that consequence. However the statutory duty is still not an absolute one. What the designer must do is to ensure that the safety of erectors is protected “so far as is reasonably practicable”.
The phrase "reasonably practicable" has been construed in the United Kingdom. In Marshall v Gotham Co Ltd Lord Oaksey said: "what is `reasonably practicable' depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved."
Lord Reid put the matter this way:
“ ... I do not find it helpful to consider whether this statutory duty is in every case the same as an employer's common law duty. I think it enough to say that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable.” [Footnotes omitted and emphasis added]
[205] Ibid, [87] – [89] (Callinan J).
Subsequently, this Court in Dinko Tuna Farmers Pty Ltd v Marcos[206] (“Dinko”) considered s 19 of the OHSW Act. In Dinko[207] Gray J, with whom the other members of the Court concurred, reached the following conclusions as to the interpretation of the words “reasonably practicable”:[208]
What is “reasonably practicable” is a question of fact for the trial Magistrate. Complaints before the Industrial Court and Magistrates Court under s 19(1) typically may be expected to involve consideration of matters such as: the magnitude of the potential harm; the likelihood that harm will arise; the availability of any measures that could be taken to eliminate or minimise the risk; the cost and time involved in those measures being taken and their effectiveness in addressing the risk.
The construction of s 19(1) is assisted by noting that the words “so far as is reasonably practicable”, modify the verbs “provide and maintain”. It is those verbs that provide and create the obligation. The obligation imposed by s 19(1) is not an absolute obligation. The words of qualification also prescribe the measure of the precautions to be taken to ensure “that the employee is, while at work, safe from injury and risks to health”. These observations draw directly on the reasoning of Brennan J in Chugg v Pacific Dunlop Ltd [(1990) 170 CLR 249 at 251].
Liability under s 19(1) should be determined by reference to the terms of the statutory provision. The statute obliges an employer to ensure – to make sure – that the employee is safe. The statutory duty is expressed in terms of reasonable practicability. The word “ensure” carries with it a heightened obligation for an employer under the statute.
The elements of the offence created by s 19(1) are to be found within the statutory provision. The obligation on the employer is to ensure safety so far as is reasonably practicable. That is an element of the offence.
In determining whether the complainant has proved beyond a reasonable doubt that the employer failed to ensure safety so far as was reasonably practicable, a number of considerations may be expected to arise. As Gaudron J observed in Slivak, the determination of this element involves a value judgment. Given the nature of the subject matter of s 19(1), it can be expected that similar considerations to those that arise in the determination of a breach of a common law duty may also arise when considering whether this element under s 19(1) has been proved. However, it would be a materially different matter to import into s 19(1) elements of the offence incorporating common law requirements.
I reject the submission as put by the defendant. In particular, I reject the contention that common law requirements are imported as elements of the statutory offence. However, as Gaudron J observed in Slivak, although the determination of this element of the offence – the ensuring of safety so far as is reasonably practicable – involves a value judgment, certain principles have been identified in the case law. The principles identified by Her Honour are set out earlier in these reasons.
In the ordinary case it can be expected that foreseeability of risk of injury is likely to be a subject matter for consideration by a court when reaching a determination as to whether the element of ensuring safety so far as was reasonably practicable, has been made out. However, such a consideration does not import common law requirements into s 19(1) as an element of the offence.”
[206] (2007) 98 SASR 96.
[207] Dinko Tuna Farmers Pty Ltd v Markos (2007) 98 SASR 96.
[208] Ibid, [38] – [44].

In nominating that list of occupations, Mr Oborn importantly indicated that he had only had cursory regard as to whether the plaintiff had the physical functional capacity to actually carry out these tasks and that this would have to be the subject of further evaluation.[366]
[366] Report of Mr Oborn, 18 February 2004 (AB14, 190).
Mr Oborn concluded that the plaintiff was an able person with considerable potential for meeting the demands of an occupational adjustment, but that at the time of his assessment, namely 18 February 2004, he was currently unable to meet the usual demands of employment. In his words: [367]
Given the usual dynamics of a disputed rehabilitation outcome and Mr Mendrecki’s perception of his likelihood of achieving meaningful employment, I consider it very unlikely that significant adaptive change could be made before any settlement is ultimately reached. Further, given the apparently well-entrenched nature of the features discussed in the body of this report, I would be surprised to see significant progress in occupational re-engagement, let alone achieving productive duties, even into the medium and longer term. Working for an employer would most likely be an unwelcome development for Mr Mendrecki, and hence amount to a further impediment.
In answer to the specific question you pose on page 2 of your letter, I would regard his incomplete Associate Diploma of Engineering studies of realistically supplying only background or conceptual help in obtaining work other than manual labour. He has effectively had only a very restricted employment experience in a particular field of work. This does not amount to much in the way of applicable transferable skills. Hence for any position likely to fall within his functional limitations, he will be, for all practical purposes, be starting afresh. The achievement of productive levels of output will be difficult to achieve, and this process will not be helped overmuch by largely unpracticed skills obtained some time ago in his engineering studies.
Mr Mendrecki has exhibited significant initiative in setting up his own business relatively early in his life and with little in the way of experience or formal qualification. It is therefore a matter of hope that these qualities will ultimately find expression in the discovery of an occupational outlet affording both income and satisfaction in the longer term. [Emphasis added.]
[367] Ibid, (AB14, 190 and see also 185).
In my opinion, it is likely that at the time when the plaintiff gave evidence, he had lost his pre-accident earning capacity and he was unable to meet the usual demands of employment for the reason given by Mr Oborne. As discussed earlier, as at the date of judgment, the plaintiff had not had an operation and it is likely that he still would have been unable to meet the usual demands of employment. This finding is relevant to the assessment of past loss until the time of the judgment.
The plaintiff’s counsel is correct in his submission that once it is proved that the plaintiff has lost his pre-accident capacity to earn, there is an evidential onus on the defendants to show the value of any residual earning capacity of the plaintiff.[368] No evidence was led on this point. In my view, the evidence before the Judge was such that in relation to past loss, the Judge could not be satisfied on the balance of probabilities that the plaintiff was capable of obtaining actual employment and earning money at any time prior to judgment being delivered in December 2006.
[368] See Thomas vO’Shea [1989] Aust Torts Rep 80-251; Potter v State Government Insurance Commission (1990) Aust Torts Rep 81-051; Baird v Roberts [1977] 2 NSWLR 389, 398; Van Velzen v Wagener (formerly Robertson) (1975) 10 SASR 549, 550; Yammine v Kalwy [1979] 2 NSWLR 151; Woodhead v Barrow [1993] Aust Torts Rep 81-238, 62, 469.
As to the future thereafter, even with a satisfactory subtaloid fusion, it is likely that although the symptoms and limitations of the plaintiff would improve, the plaintiff would only be able to manage work which does not require having a flexible heel. This would limit his capacity for employment. He would not have a capacity to perform work which required walking on uneven ground or on roofs.[369] He would never be able to return to his previous employment as a self-employed airconditioning installer.[370] In addition to these factors, there is still the need to have regard to other factors such as finding an appropriate job, being able to be either re-trained or have some work-hardening which would give him a capacity to do the work. Further, as Mr Oborn indicated in his report, the plaintiff would require very particular and distinct features in any nominated occupation if he was to persist and derive satisfaction from it.[371]
[369] Report of Dr Bauze, 11 April 2002 (AB17, 792).
[370] Report of Mr Dracopoulos, 28 November 2000 (AB14, 148).
[371] Report of Mr Oborn, 18 February 2004 (AB14, 186).
As to future loss, for reasons which I have expressed earlier, that situation would, in my view, be likely to continue into the future for at least a period of six months after judgment, allowing time for him to have an operation. Thereafter, contrary to the submissions made by the plaintiff, it was appropriate for the Judge to have regard to the evidence that the plaintiff would have a residual capacity for work after a successful operation. The Judge found that the plaintiff had a capacity to work as an estimator for the supply and installation of airconditioners; an airconditioning salesperson; an accounts clerk; a car rental officer; cashier or draftsman.[372] Allowing a period for recovery after the operation, future loss of capacity must necessarily be assessed as the loss of a chance.
[372] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [243].
For the above reasons, I consider that the Judge erred in his findings as to the capacity of the plaintiff to be employed prior to judgment. However, the Judge did not err in relation to his assessment that the plaintiff had a residual capacity to earn in the future. That, however, then leads to the question of what assessment should have been made for past loss and future loss of earnings.
Calculation of the plaintiff’s earnings
AFA through counsel, Mr Bell, addressed the damages aspects of the appeal by AFA. He submitted that the Judge was in error in his assessment both as to past loss of earnings and future earning capacity.
In relation to past earning capacity, Mr Bell’s first argument was that the Judge had inappropriately mixed concepts of gross income before deduction of business expenses, net income before tax, and then net income after tax, which led to error. Secondly, the Judge appeared to have inappropriately relied on the earnings of Mr Nowak to assist his assessment of the plaintiff’s loss. And thirdly, the Judge did not apply his findings on the failure of the plaintiff to mitigate his loss to the assessment of loss of earnings.
The Judge, when expressing the calculation process as to past loss of earning capacity, first referred to the plaintiff’s “gross earnings” for the years ending 1995 to the year ending 1998.[373] The figures which he set out as the “gross earnings” were not gross earnings but taxable income, namely, net income before tax. No figures were set out by the Judge as being the plaintiff’s net income after tax over those years. Past loss of earnings is required to be calculated on the basis of net income after tax.
[373] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [224].
In order to illustrate this point, AFA provided a schedule of the summary of the plaintiff’s tax returns through the particular years.
Mendrecki – summary of tax returns

1995 1996 1997 1998

Vol 14/202 Vol 14/204 Vol 14/210 Vol 14/220

{37 wks}

Business income 82,739 88,686 82,478 54,210

Cost of sales 17,859 11,758 14,193 8,607

Depreciation 4,491 4,159 6,043 4,616

External labour 582

Motor vehicle 5,095 8,549 7,149 4,029

Other 8,857 12,568 9,837 7,449

Repairs and maintenance 100 744 36

Superannuation 480 764 1,031

Wages 12,006 15,279 17,179 13,080

Total expenses 49,370 53,177 56,176 37,817

Expenses as % bus income 60% 60% 68% 70%

Net bus income 33,369 35,509 26,302 16,393

Other income 242 1,667 1,225 773

Other expenses 107 124 165

Total gross income 33,504 37,052 27,362 17,166

Tax 7,414 8,620 5325 2353

Net income pa 26,090 28,432 22037 14813

Net income pw 502 547 424 400

The figures which the Judge referred to in his judgment at paragraph 224 are those which appear above as “Total gross income” in that schedule, being the gross “Business income” less the business expenses.
In order to understand these figures it is necessary to note that in the 1998 tax year, the plaintiff took three and a half months away from his work on holiday, hence the reference to 37 weeks for that year. It was agreed that if the plaintiff had worked the entire year, that would have represented a gross income of about $24,234 which would have meant that the line headed “Business income” for that year would otherwise have been $61,278 and not $54,210.[374]
[374] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [225].
Having referred only to the net income before tax, the Judge then indicated that he found “some assistance” in assessing the plaintiff’s loss of earnings by looking at the earnings of Mr Nowak, who took over the plaintiff’s business in October 1998.[375] The Judge indicated that the figures were only able to be used as a guide, partly because he was not paying wages to anyone in those years (whereas the plaintiff was paying wages to Mr Nowak in the years referred to above), and further because Mr Nowak had, over those same years, worked as a subcontractor to other airconditioning companies, not simply AFA.
[375] Ibid, [227].
The Judge then set out the income details of Mr Nowak as follows:[376]
[376] Ibid.

Year ended 30/6

Gross income

Net income

Net per week

Net per annum

1999

(9 months only)

$38,432

$21,226

$452.75

23,543
(12 months)

2000

$63,125

$46,236

$767

$35,152

2001

$51,311

$28,623

$444

$23,088

2002

$53,435

$38,005

$567

$29,484

2003

$70,754

$53,170

$759.50

$39,494

2004

$72,795

$59,670

$881.50

$45,838

In this schedule, “Gross income” was the total business income. “Net income” was net after business expenses but before tax. The “Net per annum” was net income after deduction of notional tax and expenses. The “Net per week” was the net income after tax divided by the number of weeks. Therefore the figures shown by the Judge in relation to Mr Mendrecki did not refer to the net income after tax whereas the schedule in relation to Mr Nowak did.
The Judge, when arriving at the figure for the past loss of earnings, indicated that it was necessary to balance competing contingencies.[377] He referred specifically to reduced earnings because of sickness or unrelated injury, or on the other hand, the potential for a larger amount of more lucrative work to have come his way. He also took into account that the plaintiff’s income may fluctuate with the area of work becoming more competitive, but at the same time there may be more of it.[378]
[377] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [227].
[378] Ibid, [229].
The Judge made the following findings as to the net loss of earnings which he set out as follows:[379]
[379] Ibid, [231].
I find the net loss of earnings to be as follows:
1999  $ 15,000
2000  $ 28,000
2001  $ 20,000
2002  $ 22,000
2003  $ 30,000
2004  $ 36,000
2005  $ 40,000
2006  $ 44,000
2007 (6 months only)             $ 23,000
  $258,000
The Judge also awarded interest on the past loss of earnings of $258,000 which he fixed at $70,000. He indicated that in doing so he used a commercial rate of 6.5 per cent averaged over the period of 8.5 years. He then concluded that there should be an award of $328,000 for past loss of earning capacity including interest.[380]
[380] Ibid.
AFA contended that the loss of earnings calculation by which the figure of $258,000 was arrived at over the 1999-2007 period was in error. Not only was it in error because of a failure to take into account certain aspects of mitigation dealt with earlier, but the rates which the Judge applied in relation to the various years were also in error. AFA further contended that the Judge did not indicate the nature of the “assistance” he got from Mr Nowak’s earnings over the period.
The submissions of AFA were that Mr Nowak’s earnings could not provide any appropriate guidance as to the past loss of earnings of the plaintiff because they were more variable than those of the plaintiff. In particular, the percentage of business income which was expended on business expenses was much less than that of the plaintiff, as Mr Nowak did not employ anyone. Whereas the expenses of the plaintiff expressed as a percentage of the business income varied between 60 per cent to 70 per cent of his income, Mr Nowak’s business expenses were mostly at around the level of 16 per cent to 19 per cent and occasionally 34 per cent to 35 per cent. Further, a schedule was produced by AFA which illustrated that on the Judge’s finding, the plaintiff had been compensated on the basis that he had suffered a net income after tax loss of between 64 per cent and 87 per cent of Mr Nowak’s net income after tax.
There are some concerning features about the process adopted by the Judge with regard to assessing past loss of earnings. The failure to relate the earlier net income after tax of the plaintiff to the process of assessing the loss of earnings after injury, indicates an erroneous approach. This should have at the very least been part of the process of arriving at the loss of earnings set out in paragraph 231 of his reasons.
Past loss of earnings
In calculating past loss of earnings, I consider that an appropriate starting point is his average net income for the years 1995 to 1998, which is approximately $24, 000 per annum.
It can be noted from the schedule summarising the plaintiff’s tax returns that his best year was in 1996 when both his gross income and his net income after tax was higher than in any other year. For the years 1995 to 1998 his net income for that period was otherwise flat, if not declining. This was probably because the plaintiff, being a single man, led a lifestyle where he was quite happy to make sufficient income to provide for his day-to-day care and attend to his other interests. The trial Judge, in his reasons, made the following observations:[381]
There were times of the year when the plaintiff was busy, predominantly the summer season, and there were times when he was not busy. When not so busy he would work on his van and that gave him a greater opportunity to involve himself in a cross-section of sports that he enjoyed.
[381] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [186].
The probabilities are that the plaintiff’s income would have hovered around the $24,000 mark, with no incentive to increase it, unless there were changes in the circumstances of his life. One such change in the plaintiff’s circumstances came in 2003 when he married. Thus it is likely that in subsequent years the plaintiff would have had the incentive to take on more work so as to provide for his new wife and later his child.
Turning now to Mr Nowak's net income. Over the 1999 to 2004 period there has been a general upward trend. The percentage increase in Mr Nowak’s net income is as follows:

Year Percentage increase

1999-2000 49%

2000-2001 -34%

2001-2002 31%

2002-2003 31%

2003-2004 16%

If one looks at the percentage increases in Mr Nowak’s net income, the lowest percentage increase for the years 1999 to 2004 was 16 per cent. Mr Nowak’s net income was generally increasing within this period. Mr Nowak was working in the same industry as the plaintiff; he had taken on work which the plaintiff would otherwise have done. This increase suggests that, within the airconditioning industry, there was a general trend of increasing net income. Whilst I acknowledge that the plaintiff and Mr Nowak conducted their businesses differently, nevertheless it is possible to glean from Mr Nowak’s net income a general trend which the plaintiff would have also experienced within the airconditioning industry.
In calculating the plaintiff’s past loss of earnings, I consider it appropriate to have regard to Mr Nowak’s lowest percentage increase in net income, namely 16 per cent, as a guide to the increase that the plaintiff could reasonably have achieved to his net income after getting married and consequentially taking on more work. This percentage increase is on the conservative side and, in my view, would be sufficient to cover contingencies such as sickness, unrelated injury and competition in the industry. Thus, in my view, Mendrecki’s past loss of earnings would reasonably have been assessed as follows:

FINANCIAL YEAR

NET INCOME

1998 –1999

$24,000

1999 – 2000

$24,000

2000 – 2001

$24,000

2001 – 2002

$24,000

2002 – 2003

$27,840

2003 – 2004

$32,294

2004 – 2005

$37,462

2005 – 2006

$43, 455

2006 - 2007 (six months)

$25,204

TOTAL

$262,255

FINANCIAL YEAR	NET INCOME
1998 –1999	$24,000
1999 – 2000	$24,000
2000 – 2001	$24,000
2001 – 2002	$24,000
2002 – 2003	$27,840
2003 – 2004	$32,294
2004 – 2005	$37,462
2005 – 2006	$43, 455
2006 - 2007 (six months)	$25,204
TOTAL	$262,255

It will be immediately obvious that the total amount differs little from that found by the Judge, which was $258,000.00. Therefore, this component of his assessment of damages, albeit arrived at from a different perspective, was within range and his assessment of that loss should not be disturbed. It was appropriately found as $328,000.00, which included interest. The net result, after the above calculations, is that the Judge’s assessment of the plaintiff’s past loss of earnings was within the ballpark and was neither manifestly excessive, nor manifestly inadequate.
Future loss of earning capacity
The Judge in his reasons for decision,[382] correctly reflected the relevant legal principles. For reasons which I have provided earlier, I consider that the plaintiff’s capacity for earning in the future is to be based upon the likelihood of him undergoing a successful fusion operation.
[382] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [235] – [237].
I have already noted the Judge’s findings as to the sort of occupations which the plaintiff would have the capacity to perform.[383] However, no evidence was led as to the likely earnings of any of those occupations. In those circumstances, I cannot assume in favour of the defendants that they would have been higher than the earnings of an airconditioning installer. There is a possibility that they would have been less, but the plaintiff has not proved that.
[383] Ibid, [245].
In this unsatisfactory state of this evidence, the only guide as to the plaintiff’s loss of future earning capacity is what he could have earned as an airconditioning contractor, subject to a number of significant contingencies.
The Judge correctly referred to contingencies which needed to be taken into account and, in my view, the inferences which he drew were appropriate on the evidence, namely: [384]
Notwithstanding my views, there is a need to seek a balance between competing contingencies. There is some risk that the plaintiff will be unable to find suitable alternative employment (with or without re-training but after the fusion operation) or that such employment as he does find would not be as well paid as that of an installer of air-conditioning. He could become ill or injured unrelated to any tortious injury. There could be a downturn in his former area of work or contracts could dry up, although I doubt whether either would happen. On the other hand, he had the ability and capacity to build his own business once married and with the responsibilities of a family. The common experience is that there is an increased use of air-conditioning systems and consequently increased work for those that install them.
I intend to proceed upon the basis that the plaintiff would work until aged 65 years. His date of birth is 4 November, 1962, such that he is now 44 years of age. On that basis, I propose to calculate this component of loss for a period of 21 years. He has only been married for a few years with a young child. There may be another child or children. He has little by way of assets. Uninjured he would have needed to work until aged 65 years, but he would do less in the later years.
[384] Ibid, [249] – [250].

Thereafter, the Judge, after adverting to Mr Nowak’s earnings, drew the following conclusion: [385]
Even on the plaintiff’s case there is a proven capacity for work. The necessary calculation is not capable of mathematical precision. Using a net weekly loss of $880, interest at 3 per cent per annum to age 65 for a male now aged 44 and a multiplier of 786, comes to $695,000. That is very much a starting point that I reduce for contingencies to $375,000. I award $375,000 for loss of future earning capacity.
[385] Ibid, [252].
In my view, for the first year following judgment, the plaintiff’s capacity to earn would be unlikely to differ from that indicated as his past loss during the six months of 2006-2007, namely, a net weekly loss of $969. This amount significantly differs from the net weekly loss of $880 assessed by the Judge, which in my view is manifestly inadequate. Using the same multiplier as the Judge, discounted at an interest rate of 3 per cent per annum to age 65, for a male aged 44, the calculation comes to $761,634. This, in my opinion, should have been an appropriate starting point.
Thereafter, I note that the Judge makes a very large deduction of approximately 46 per cent for contingencies. The plaintiff contends that this percentage was too high and reflects uncertainty of the Judge as to his calculations.
On the evidence, I consider that some contingencies which would need to be taken into account would be that the employment which the plaintiff had at the time of his injury necessarily required a significant level of fitness and the ability to work above ground and sometimes in hot and cramped positions.[386] This may not have been an occupation which he would have been able to continue up until the age of 65. Assuming that he had continued as an airconditioning contractor, it could be expected that at some point, he would have modified the type of work he did within the airconditioning installation industry to become more sedentary. This change would be more in keeping with the limitation which he is likely to have with a fused foot.
[386] Mendrecki v Doan & Pham & Ors [2006] SADC 35,[186]
Further, account needs to be taken of other ordinary contingencies such as potential unrelated injuries and sickness and the possibility that, in some other employment, he might not be as well paid as in his previous business. At the same time, I note that the plaintiff was previously a very fit man and had the initiative and capacity to commence and to build his own business. Bearing in mind these features, I consider the percentage deduction for contingencies to be too high and a more appropriate reduction to be in the order of 30 per cent. I would assess the future loss of earning capacity of the plaintiff, after allowing for contingencies, to be $533,000.
Past gratuitous assistance
The trial Judge made the following remarks when he awarded damages for gratuitous assistance:[387]
I am prepared to make some allowance for gratuitous services from the time the plaintiff left the hospital until he and his wife moved into the Northgate house, but not thereafter. The plaintiff needed intense support initially, but less as he learned to cope with the injury over the following years.
Exhibit P38 is from “Dial an Angel”, a national agency specialising in home and family care. I propose to use that as a guide on a referral basis, averaged across a period of four years, seven days per week. During 2001, he seems to have been without gratuitous assistance. Allowing $40 per day comes to $5,824. Interest on that amount is fixed at $200. I award $6,024 for gratuitous services including interest.
[387] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [255]–[256].
The plaintiff alleges that the trial Judge expressly made an allowance for gratuitous services for the period beginning August 1998 (the time when the plaintiff left hospital) to September 2003 (when the plaintiff and his wife moved into their Northgate home), excluding the year 2001. This was at a rate of $40 per day, seven days a week for four years. However, the trial Judge awarded only $6,024 inclusive of $200 as interest. The plaintiff alleges that this amount was manifestly inadequate.[388] The plaintiff further alleges that the trial Judge wrongly refused to award gratuitous assistance for the period after September 2003.[389]
[388] Plaintiff’s Notice of Cross-appeal [7] (AB18, 1002); Plaintiff’s Submissions on Quantum [21.1].
[389] Plaintiff’s Notice of Cross-appeal [8] (AB18, 1003).
By contrast, AFA submitted that it is difficult to know from the judgment how the trial Judge calculated the figure for gratuitous assistance. AFA submitted that an allowance of $40 per day, seven days a week, for four to five years was clearly excessive having regard to the nature of the plaintiff’s injury and his refusal to mitigate its effects by having the fusion operation.[390]
[390] AFA Submissions in Reply of the Appellant [6].
If His Honour’s award of $5,824 plus $200 interest were divided by $40[391] it would only allow gratuitous services for a period of 145.6 days. This is not the period of 4 years which His Honour indicated. I note that if His Honour had calculated the allowance at $40 per day over the 4 year period, it would have amounted to $58,240.[392] It would appear that in assessing the amount at $5,824, a decimal error unfortunately occurred in His Honour’s calculation. The parties did not advert to this error, probably because they were absorbed in the legal principles of the appeal. This decimal error, in part, explains the small allowance for gratuitous services.
[391] Report of Dial an Angel, 1 December 2004 (AB 15, 487 – 492). (the daily rate calculated from an average of the figures provided by Dial an Angel)
[392] That is $40 x 7 x 52 x 4.
In Griffiths v Kerkemeyer,[393] Gibbs J explained the situation in which gratuitous services are available:[394]
The matter should, as it were, be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrongdoer? If not, the damages are recoverable.
[393] (1977) 139 CLR 161.
[394] Griffiths v Kerkemeyer (1977) 139 CLR 161, 168 – 169.
In Hodges v Frost,[395] Kirby J made a comprehensive description of gratuitous or voluntary services:[396]
(1) The services must be reasonably necessary. That is, they must go beyond the mere arrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment.
(2) The services must be such that, but for the gratuitous and benevolent activities, it would have been necessary to secure assistance at a cost. Obviously, this will be a matter of judgment and degree to be determined upon the facts of each case.
(3) Where gratuitous services have been given, it must be considered whether they should be discounted so that they do not amount to a windfall for the wrongdoer. The plaintiff is not relieved from the general obligation to mitigate loss and to avoid unnecessary costs and extravagance. In some cases of minor residual injuries, sensible re-arrangements in the home will be reasonably expected and will relieve the wrongdoer from liability. [Footnotes omitted]
[395] (1984) 53 ALR 373.
[396] Hodges v Frost (1984) 53 ALR 373, 380 – 1.
After being discharged from hospital the plaintiff was in severe pain and was taking medication.[397] The plaintiff stayed with his cousin, Elisha, for two weeks, during which time she provided his meals and looked after him generally.[398] The plaintiff then returned to his townhouse in Keswick. Thereafter his former girlfriend, Ella Wrobel, came every day to assist with shopping, cooking, cleaning and washing.[399] In around 1999/2000, Ella Wrobel moved in with him and continued to give him the same assistance until she moved out around December 2000/January 2001.[400] The plaintiff was unable to drive for a period of 18 months to two years and Ms Wrobel also drove him around.[401] After Ms Wrobel left, the plaintiff lived by himself. From time to time he was assisted by friends and family members and sometimes Ms Wrobel, who came to clean for him.[402] Throughout 2001 the plaintiff appeared to limit his activities and avoid doing any work around the house.[403] In December 2001, the plaintiff met Helen Kiezeck who later became his wife on 5 October 2003.[404] She provided care and assistance for him initially at her mother’s place before they moved to their current home in Northgate at the end of September 2003. This assistance included cooking and cleaning, although the plaintiff did his own washing.[405]
[397] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [190].
[398] Trial Transcript, 188 – 9.
[399] Ibid, 190 – 1.
[400] Ibid, 261 – 2.
[401] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [190].
[402] Trial Transcript, 263-4.
[403] Ibid.
[404] Ibid, 264.
[405] Ibid.
Based on that background, I would award damages for gratuitous assistance for the period commencing August 1998 (when the plaintiff was discharged from hospital) to the end of September 2003 (when he moved in with his current wife to their home in Northgate). I will exclude the period in 2001 when the plaintiff lived alone, as although he had needs, only occasional voluntary assistance was provided to him by others. I have calculated the gratuitous assistance provided to the plaintiff at a rate of $40 per day, seven days a week for four years (2001 excluded). This amounts to $58,240. I would discount this amount by thirty per cent to take into account the fact that as the plaintiff became increasingly more mobile he required less and less assistance. I would award $40,768 with $1,340 interest, a total of $42,108 for past gratuitous assistance.
I do not consider that the plaintiff is entitled to an award for past gratuitous assistance for the period after September 2003. By this time, the plaintiff was living with his current wife and I agree with the trial Judge’s finding that by this time the plaintiff was able to do most things, albeit at a slower rate.[406]
[406] Mendrecki v Doan & Pham & Ors [2006] SADC 140, [254].
Special damages for psychiatric treatment
The special damages awarded by the Judge were those which were agreed, and also the costs of the operation. Those agreed were a sum of $9,649.96. The operation was at a cost of $8,500. The Judge did not make an allowance for future psychiatric treatment and this was due to his conclusion that “the plaintiff’s psychiatric condition, such as it was, has long resolved”.[407]
[407] Ibid, [234].
For reasons previously expressed, I consider this conclusion is erroneous. The evidence of Dr Czechowicz was that the plaintiff would require ongoing support from a psychiatrist three to four times a year.[408] At $150 per hour three to four times per year, this would amount to $450 to $600 per year. For a period of at least five years, this would amount to a figure of $2,625. Taking a midline figure which, after discount by 3 per cent, this would result in a figure of $2,546. This, in my view, should be added to the quantum of special damages.
[408] Reports by Dr Czechowicz, 4 April 2003 (AB14, 175) and 15 November 2004 (AB14, 178). See also Trial Transcript 622 – 4.
In conclusion, I consider that the plaintiff should have been awarded the following:

Pain and suffering (including interest)

        $     64,800.00*

Past economic loss (including interest)

        $   328,000.00

Loss of future earning capacity

        $   533,000.00

Past gratuitous assistance (including interest)

        $     42,108.00

Special damages - agreed

        $      9,649.96

Operation

        $      8,500.00

Psychiatric consultations

        $      2,546.00

        $   988,603.96

* This is the amount which the Judge awarded and which was not challenged on appeal.

Appeal against costs orders

The plaintiff appealed against certain orders of the trial Judge made on 15 February 2007 in relation to costs. The plaintiff submitted that the Judge erred in that he should have awarded the plaintiff solicitor/client costs against each of the defendants from 14 days after the 31 March 2005, and that he had erred by having regard to irrelevant material considerations in the exercise of the discretion to award costs. The owners also appealed and contended that the Judge erred on a number of grounds in relation to his finding on costs, in particular regarding their settlement offers. They also submitted that the Judge erred in relation to the exercise of his discretion upon the issue of costs on various grounds. Given the outcome of this appeal, I consider it necessary for the issue of costs to be addressed by further submissions.
Final orders
I would therefore make the following orders:
1. That the appeals and the cross-appeals be allowed.
2.That the judgment be set aside and in lieu thereof judgment be entered against the third and fifth defendants.
3. That judgment be entered in the sum of $988,603.96.
I would hear the parties further as to the costs of the action and of this appeal.

1995	1996	1997	1998
Vol 14/202	Vol 14/204	Vol 14/210	Vol 14/220
{37 wks}
Business income	82,739	88,686	82,478	54,210
Cost of sales	17,859	11,758	14,193	8,607
Depreciation	4,491	4,159	6,043	4,616
External labour	582
Motor vehicle	5,095	8,549	7,149	4,029
Other	8,857	12,568	9,837	7,449
Repairs and maintenance	100	744	36
Superannuation	480	764	1,031
Wages	12,006	15,279	17,179	13,080
Total expenses	49,370	53,177	56,176	37,817
Expenses as % bus income	60%	60%	68%	70%
Net bus income	33,369	35,509	26,302	16,393
Other income	242	1,667	1,225	773
Other expenses	107	124	165
Total gross income	33,504	37,052	27,362	17,166
Tax	7,414	8,620	5325	2353
Net income pa	26,090	28,432	22037	14813
Net income pw	502	547	424	400

Year ended 30/6	Gross income	Net income	Net per week	Net per annum
1999 (9 months only)	$38,432	$21,226	$452.75	23,543 (12 months)
2000	$63,125	$46,236	$767	$35,152
2001	$51,311	$28,623	$444	$23,088
2002	$53,435	$38,005	$567	$29,484
2003	$70,754	$53,170	$759.50	$39,494
2004	$72,795	$59,670	$881.50	$45,838

Year	Percentage increase
1999-2000	49%
2000-2001	-34%
2001-2002	31%
2002-2003	31%
2003-2004	16%

Pain and suffering (including interest)	$ 64,800.00*
Past economic loss (including interest)	$ 328,000.00
Loss of future earning capacity	$ 533,000.00
Past gratuitous assistance (including interest)	$ 42,108.00
Special damages - agreed	$ 9,649.96
Operation	$ 8,500.00
Psychiatric consultations	$ 2,546.00
$ 988,603.96