Alananzeh v Zgool Form Pty Ltd
[2024] ACTSC 16
•26 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Alananzeh v Zgool Form Pty Ltd |
Citation: | [2024] ACTSC 16 |
Hearing Date: | 1-3 May 2023 |
Decision Date: | 26 June 2024 |
Before: | McWilliam J |
Decision: | (1) Judgment for the plaintiff against the first and second defendants in the sum of $243,900. (2) The first and second defendants are to pay the plaintiff’s costs. (3) The third defendant is to pay its own costs. (4) If any party notifies chambers within 7 days of the making of these orders that a different order in relation to costs is sought, Order 2 is stayed until further order. |
Catchwords: | CIVIL LAW – NEGLIGENCE – Personal injury – workers compensation – slip and fall at construction site – whether safe system of work provided and ensured – whether pre-existing undiagnosed spinal condition – whether breach of statutory duty – whether contributory negligence – damages awarded |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 40, 43, 44, 45(1), 99, 102 Factories, Shops and Industries Act 1962 (NSW) s 40 Legislation Act 2001 (ACT) ss 139, 148 Scaffolding and Lifts Act 1912 (ACT) Dictionary Scaffolding and Lifts Regulation 1950 (ACT) reg 73(1), 73(1)(b) Workers Compensation Act 1951 (ACT) Div 8.2.2 |
Cases Cited: | Aitkenhead v Kaufline (No 3) [2014] ACTSC 83; 66 MVR 479 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 347 Blackwood & Son Steel & Metals P/L v Nichols [2007] NSWCA 157 Central Darling Shire Council v Greeney [2015] NSWCA 51 Classic Constructions (Aust) Pty Ltd v Fischetti [2015] ACTCA 51 Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 D’Arcy v Caltex [2019] ACTCA 27; 347 FLR 367 Fatur v IC Formwork Pty Ltd [2000] ACTSC 14; 155 FLR 70 Hannan v MacLean (1989) 9 MVR 219 Hendricks v El Dik (No 4) [2016] ACTSC 160; 76 MVR 310 Jacob v Utah Constructions and Engineering Pty Ltd (1966) 116 CLR 200 John XXIII College v SMA [2022] ACTCA 32 Kallouf v Middis [2008] NSWCA 61 Kondis v State Transport Authority (1984) 154 CLR 672 Leighton Contractors Pty Ltd v Fox[2009] HCA 35; 240 CLR 1 Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 McDonald t/as BE McDonald Transport v Girkaid Pty Ltd [2004] NSWCA 297; Aust Torts Reports 81-768 Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336 Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96; 82 NSWLR 597 Nominal Defendant v Livaja [2011] NSWCA 121 Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380 Oliver v Roberts [2018] ACTCA 35; 85 MVR 259 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Aust Torts Reports 81-949 Rabay v Bristow [2005] NSWCA 199 Roberson v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution [2020] ACTSC 320 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Stojkoski v Belconnen Concrete Pty Ltd [2013] ACTSC 13; 274 FLR 316 Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 Sydney Water Corporation v Abramovic [2007] NSWCA 248 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2022] HCA 11; 273 CLR 454 Tattersall v Dormakaba Australia Pty Ltd [2023] ACTSC 390 Tsueneaki v Stewart [2013] ACTCA 34 Wallace v Kam [2013] HCA 19; 250 CLR 375 Watts v Rake (1960) 108 CLR 158 |
Parties: | Ahmad Alananzeh ( Plaintiff) Zgool Form Pty Ltd (First Defendant) Xmplar Formwork Pty Ltd (Second Defendant) Workers Compensation Default Insurance Fund Manager (Third Defendant) |
Representation: | Counsel D Shillington ( Plaintiff) A Muller (Second Defendant) K Martin (Third Defendant) |
| Solicitors Law Partners Personal Injury Lawyers ( Plaintiff) No appearance (First Defendant) Wotton & Kearney (Second Defendant) Moray & Agnew (Third Defendant) | |
File Number: | SC 90 of 2022 |
McWILLIAM J:
1․On 21 April 2021, Ahmad Alananzeh (the plaintiff) was working as a labourer at a construction site in Denman Prospect in Canberra. While carrying building materials on the fourth level of the site or level 4 (effectively the roof top) on what was a cold and frosty morning, he slipped and fell, injuring his back. He has brought proceedings in negligence against his former employer, Zgool Form Pty Ltd (Zgool), the first defendant, as well as the entity who contracted Zgool to perform work at the site, Xmplar Formwork Pty Ltd (Xmplar), the second defendant in the proceeding.
2․The third defendant is the Workers Compensation Default Insurance Fund Manager (default insurer) in the ACT. The involvement of the default insurance fund established under Div 8.2.2 of the Workers Compensation Act 1951 (ACT) (WC Act) arises because the first defendant failed to hold the requisite workers compensation insurance under that Act. The case proceeded on the basis of an earlier determination in the Magistrates Court that the plaintiff was a “worker of the Territory” for the purposes of ascertaining whether the applicable law was that of the ACT or NSW, and which workers compensation default insurance scheme applied.
The injury
3․The plaintiff was 26 years old at the time of this accident. He had not previously worked in paid employment in Australia due to visa restrictions, which had changed in December 2020 when he was granted a partner visa. He had been employed by the first defendant as a labourer for about 4 weeks and worked a single instance in Sydney before travelling to the site in Canberra in March. He had not been to the construction site before the day of the accident.
4․On that day, he attended the site shortly before 7.00am in the morning. He was given tasks which included carrying and lifting plywood and setting up formwork for concrete pours. He was directed to carry a piece of plywood across the top floor of the building, which was exposed to the elements. It was a cold, icy and damp morning. He was wearing a belt containing tools, including a hammer, at the time. As he was walking across the floor, the plaintiff slipped and fell heavily on his left side. He noticed immediate pain in his lower back, and in his left hip and leg.
5․The plaintiff was unable to get to his feet. He was advised by other workers on the site to remain lying down and was provided with a blanket to keep warm. The ambulance was summonsed and arrived approximately half an hour later. He was carried on a stretcher to the ambulance and provided with pain medication. He was conveyed to Canberra Hospital, where he was assessed and remained for almost 12 hours, but was ultimately not admitted. He was sent home on crutches.
The Claim
6․The essence of the plaintiff’s claim in negligence is that the defendants failed to provide a safe system of work: Zgool on the basis that it had a non-delegable duty of care to do so, as it was the plaintiff’s employer, and Xmplar on the basis that it was the host employer, being the sub-contractor who gave the instructions to Zgool in relation to the formwork, who had the ability to prescribe the system of work at the site under which Zgool operated, and who did in fact prescribe the system of work. The head contractor at the site, Core Building Group (ACT) Pty Ltd (Core), was not a party to the proceeding.
7․The precautions that the plaintiff asserts a reasonable person in the first and second defendants’ position should have taken against the risk of physical injury, in providing a safe system of work, were set out in the plaintiff’s amended statement of claim dated 2 May 2023. They include:
(a)Ensuring that plywood sheets were carried by two persons;
(b)Providing adequate supervision of the plaintiff’s duties;
(c)Providing adequate assistance, mechanical or otherwise to enable the plaintiff to undertake his duties safely;
(d)Not placing the plaintiff in a position of peril;
(e)Warning the plaintiff of the dangerous or unsafe nature of the work;
(f)Not exposing the plaintiff to a risk of injury which the defendants either “well knew or ought to have known”;
(g)Ensuring that the work surface was wiped down or otherwise free from moisture;
(h)Ensuring that the plaintiff could not access level 4 of the site until it was safe and not slippery; and
(i)Ensuring that the plaintiff did not walk on part of the site that was not slippery.
8․The plaintiff was directly supervised by Mr Ismail Zgool, an employee (and director) of the first defendant, who received instructions from a person who was an employee of Xmplar. The plaintiff alleged that through those employees, the first and second defendants failed to take the above precautions.
9․There was an additional further claim put in the alternative, which was based on a breach of statutory duty, pleaded as the failure to provide a safe means of access to all areas of the site, relying on the Scaffolding and Lifts Regulation 1950 (ACT) (Scaffolding Regulation).
10․The plaintiff claimed he sustained an initial injury to his head and lower back, with pain running down his left leg to his foot. He now suffers from ongoing back pain and a psychological condition as a result of the accident. As a result of the pain and discomfort, which have also restricted his movement, he now says he is unfit for employment and claims an amount of $2,250 per week in past and future lost earnings, along with ongoing domestic assistance, general damages and medical expenses. He currently relies on the support of his family and friends, as he is not eligible for Centrelink benefits. In total, he claimed approximately $600,000 in damages.
The Defences
11․Zgool did not file a defence and did not appear in the proceedings. The plaintiff sought that judgment be entered against the first defendant. The remaining defendants admitted the evidence was sufficient to establish that the plaintiff was employed by Zgool.
Second defendant’s defence
12․Xmplar agreed that it had a formwork subcontract with Core to perform the work at the site specified in the sub-contract, and that it had a labour hire agreement with Zgool for the provision of hired formwork labourers to work at the site.
13․However, Xmplar put in issue whether the accident happened in the manner alleged, as well as the resulting injuries being caused by any acts or omissions found against it.
14․Xmplar denied that it was negligent in failing to take the precautions alleged. It argued that the plaintiff was expected to undertake his duties in compliance with directions or instructions provided to him by the head builder, Core, including de-icing the decks prior to commencing work duties on the site.
15․Xmplar also pleaded that it was an implied term of its labour hire agreement that the formwork labourers provided were suitably experienced to undertake formwork and falsework at the site.
16․To the extent that the Court found Xmplar had failed to take precautions, it denied that any such negligence on its part caused or contributed to the plaintiff’s injuries. Xmplar pleaded that instead, any injuries the Court found to have been sustained were contributed to by either Zgool as employer, or the plaintiff himself in contributory negligence.
17․Insofar as the claim of negligence against Zgool was concerned, it pleaded that it was Zgool who failed to provide the safe system of work, including as employer:
(a)failing to take precautions in the manner alleged by the plaintiff,
(b)failing to ensure the plaintiff’s safety,
(c)failing or take any or any adequate precautions for that safety,
(d)taking a short-cut, by failing to squeegee the entire deck in the location where the plaintiff and Mr Zgool were laying ply,
(e)failing to ensure the plaintiff followed instructions provided by Core’s safety officer and site foreman prior to commencing works, and
(f)failing to assist the plaintiff in carrying the timber ply.
18․Insofar as contributory negligence as a positive defence (either complete or partial) was concerned, Xmplar argued that the plaintiff failed to:
(a)avoid walking over an area he knew had the presence of icy frost;
(b)take reasonable care for his own personal safety;
(c)keep clear of the ice remaining on the deck;
(d)follow instructions to squeegee the ice/frost on the deck prior to commencing work;
(e)heed the advice given to him by the safety officer and site foreman for Core who identified the hazard of icy decks and provided specific instructions to the formworkers to squeegee the decks before works commenced on the morning of the incident;
(f)squeegee the deck adequately or at all, in the section where the plaintiff and Mr Zgool were allocated to lay ply before commencing work that morning;
(g)follow his induction training provided, which covered site safety rules and the need for the decks to be squeegeed and de-iced under cold/frosty conditions;
(h)Seek manual or mechanical assistance to carry the piece of plywood;
(i)Implement steps or minimise risks and hazards in the workplace such as refusing to carry the plywood if he deemed the system unsafe and/or considered that he required mechanical or human assistance;
(j)Adhere to training; and
(k)Follow usual practice and procedure for de-icing decks prior to commencing works on site.
19․Xmplar also put in issue the extent of the loss and damage claimed, relying on medical evidence to argue the plaintiff had a pre-existing undiagnosed spinal condition.
The default insurer’s defence
20․The default insurer denied the particulars of negligence against Zgool. It put in issue whether the plaintiff had sustained injuries, either as alleged or at all. It denied that any injuries sustained were contributed to by any negligence found against Zgool and similarly put in issue whether any economic loss or other damage was sustained.
21․The default insurer also raised contributory negligence against the plaintiff (similarly as a complete or partial defence), in failing to take reasonable precautions for his own safety and failing to keep a proper lookout for risks and hazards.
The issues
22․The following issues therefore arise:
(a)Whether the accident happened in the manner alleged by the plaintiff (Issue 1);
(b)What was the duty of care owed by Zgool and Xmplar (Issue 2);
(c)Whether Zgool as the plaintiff’s employer failed to take reasonable precautions to guard against the risk of an injury caused by falling on ice or a slippery surface at the site (Issue 3);
(d)Whether Xmplar failed to take reasonable precautions to guard against the same risk (Issue 4);
(e)Whether there was a breach of statutory duty committed by the first and second defendants, in failing to provide a safe means of access to all areas of the site (Issue 5);
(f)Whether any failure to take reasonable precautions caused the injuries and disabilities suffered (Issue 6);
(g)Whether there was contributory negligence – whether the plaintiff failed to take reasonable care for his own safety, and if so, to what extent (Issue 7);
(h)The nature of the plaintiff’s injuries, including whether the plaintiff would have been in the same position due to a pre-existing spinal condition (Issue 8);
(i)What damages flow (if any) as a consequence of the above findings (Issue 9); and
(j)Whether any apportionment of damages as between the first and second defendant is necessary (Issue 10).
Issue 1: Did the accident happen in the manner alleged?
23․The only person who gave evidence as to what occurred on 21 April 2021 was the plaintiff, who was born and educated in Jordan, and speaks Arabic. He arrived in Australia in January 2020, has a basic level of proficiency in English, but largely relied on an interpreter at the hearing, as well as at the time of the accident. The person who performed this role on the site in April 2021 was Mr Zgool, from whom he received directions from Xmplar in English and then communicated those instructions to the plaintiff in Arabic.
24․The plaintiff’s evidence was that there were over 100 people working at the site, in small teams, all completing formwork. His team consisted of only Mr Zgool and himself.
25․Initially a safety officer from Xmplar provided an induction. The officer gave instructions about the work hours, break times and the purpose of a particular building being for nurses, but it was Mr Zgool who told him what particular jobs he should do each day.
26․On 21 April 2021, the plaintiff arrived at the site to start work at 7.00am. It was a cold morning when he went to work and there was a layer of frost on the ground. He was given instructions to start work by the supervisor from Xmplar. The plaintiff’s evidence was that he was not given any instructions by either an Xmplar employee or Mr Zgool at the start of the day as to anything he should do to the floor on the site before starting work. He was expressly asked about whether he saw anyone using a mop at any time and he said no.
27․There were a number of small teams working on the rooftop on that day, completing formwork. The supervisor from Xmplar asked everyone to go to their work zone. He was directed to a work zone on level 4 on the top of the building. The flooring on one side of that level was plywood and on the other side was wood. Concrete was to be poured on top of the plywood.
28․The plaintiff said he was then directed by Mr Zgool to carry plywood, some being around 2.6 to 3m, and lay them in a certain area on level 4, where Mr Zgool was. The plaintiff was wearing a tool belt with tools such as a hammer in it. He estimated the plywood weighed at least 25 kg.
29․The only task he did that day was to carry sheets of plywood and timber beams on level 4 to where Mr Zgool was located on the level 4 rooftop. He had noticed that the surface of the deck was frosty. He was wearing work boots and a helmet. Initially he was walking slowly and carefully, but he said then, “they started pushing us like, ‘come on, come on’”. The plaintiff explained that the plywood had to be laid before the iron and cement could be poured and “they were in a rush” for them to finish the plywood phase of the work.
30․The plaintiff’s evidence was that he thought the accident occurred around 8.30 or 9.00am but he was not keeping track of the time. The Xmplar works incident report dated 21 April 2021 (WIR) recorded a more specific time of 7.55am. I accept that record as being a better indicator of the time of the accident, although nothing turns on whether the incident occurred at 7.55 or 8.30am.
31․The plaintiff’s oral evidence was that he was carrying a sheet of plywood, around 1.2 to 1.8m long, on his shoulder. Having completed between 4 to 5 trips to transport some plywood which had been previously gathered closer to where Mr Zgool was, he walked down to a far end of the site to gather more plywood and was coming back to where Mr Zgool was. He was walking on what he described as “wood with frost on top” of it. He slipped, fell on his left side, and felt pain in his leg and lower back. The pain in the left leg felt like an electric shock sensation, which was extremely painful.
32․It was put to the plaintiff that he was not sure what caused him to fall over, but the plaintiff maintained that he slipped on the ground because of the frost. Some corroborative support for that can be seen from the ambulance record, which records (emphasis added):
…Pt is a construction worker who states slipped over whilst car[ry]ing a sheet of formply due to over night rain/ice on the slippery surface. PT fell over backwards landing heavily on L hip region. PT was wearing a tool belt full of tools at the time. …
33․The Canberra Hospital notes in evidence also recorded the following:
his feet went out from under him and he landed on L hip/pelvis region
…felt pain in L hip, unable to wt [weight] bear at time
34․The plaintiff said thirty people were in front of him and ran towards him. He was told not to move. They thought he had broken his back or something worse. They gave him a blanket to put over himself because the weather was so cold. Someone called the ambulance. He was on the ground for about an hour and a half. When the paramedics came, they gave him some painkillers and more than one injection. They did not want to move his back, because they suspected that it was broken. They tied him on a stretcher and four people carried the plaintiff.
35․There was no serious challenge to the plaintiff’s account of how the accident occurred (as distinct from whether the detail of the account was sufficient to prove the elements of the plaintiff’s case). The plaintiff’s evidence was plausible and he appeared credible in the witness box on this aspect of the evidence. In that regard, I acknowledge the delay between hearing the witnesses and delivery of judgment, however I have been assisted by the notes I made at the time of the hearing and have reviewed again the transcript as part of finalising the judgment, which enabled recollection of the plaintiff’s evidence. This was not a case where there were competing oral accounts, where demeanour as between witnesses may have played a more significant role. The plaintiff’s account was broadly consistent with what was recorded on the WIR at the time, which stated (emphasis added):
Incident Type: Injury/Fall on deck
Names of affected …Sub-Contractor [the option circled]: [the plaintiff]
Detailed Description…: Ahmad fell on deck while carrying a piece of ply. There was moisture on ply. Felt pain in hip/leg [immediately].
Person completing this section: Jonathan Brereton 21 April 2021 9.45 am.
Risk Rating: …Low [the option circled]
Control Measures:
Details of Events after Incident … Reported fall to Core, [whose] management called an ambulance. Services arrived approx. 8.20, Ahmad taken to hospital for X-ray.
Corrective Actions Required: Asses[s] work areas each morning and continually for moisture, [squeegee] or sweep wet decks prior to work.
By Whom: Site team, Benny Mirto
When: Immediate [the option circled]
Person Completing this Form: Benny Mirto, 21 April 2021 9.45am
36․When the report is read as a whole, the WIR confirms there was moisture on the plywood deck, at the time the plaintiff slipped. I accept the plaintiff’s evidence of what occurred as set out above.
Issue 2: Was a duty of care owed by the first and second defendants?
37․Negligence means the failure to exercise reasonable care and skill: s 40 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act). As a general guide to the task at hand, the Court considers first what constitutes reasonable care in the particular circumstances before it, and then considers whether what occurred constituted a failure to exercise such care.
38․However, that consideration assumes a preliminary step, which is to first establish that a duty of care was in fact owed by the particular defendant to the particular plaintiff.
Zgool’s duty of care as employer
39․In this case, insofar as the claim against Zgool is concerned, there was no controversy. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury: Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 (Czatyrko) at [12] and the case there-cited. That duty extends to devising a method of performance of a task in a workplace that eliminates the risk, or by providing adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. The employer must take reasonable care not to create a risk by failing to adopt a safe system of work: Czatyrko at [12]-[14].
40․The duty is to not only provide a safe system of work, but to ensure that one is provided: Kondis v State Transport Authority (1984) 154 CLR 672 at 688. Thus, if the employer relies on someone else to adopt or implement a safe system of work, and that person neglects to do so, then the employer is in breach of the duty to provide the safe system of work.
Did Xmplar owe a duty of care to an employee of an independent contractor?
41․In respect of Xmplar, although Xmplar admitted that it had an agreement with Zgool for the provision of hired formwork labourers to work at the Site and that the plaintiff was one of those labourers, the existence of any duty of care to the plaintiff was put in issue. There was some debate about whether Xmplar was in the position of a host employer or a sub-contractor. In the ultimate result, nothing turns on that distinction, although the discussion below is through the prism of Xmplar as sub-contractor.
42․Core was the principal on the project. As pleaded, Xmplar was in a sub-contractor relationship with Core and also with Zgool. The question is whether Xmplar owed a duty of care to an employee of a sub-contractor.
43․The duties of such a principal were authoritatively stated by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47-8 as follows (citations omitted, emphasis added):
An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.
44․The authoritative statement was confirmed in Leighton Contractors Pty Ltd v Fox[2009] HCA 35; 240 CLR 1 at [20]. The emphasised words are to highlight two matters of significance for the present case: first, the distinction between the duty owed by an employer and a sub-contractor who is organising an activity (in this case, formwork); and second, the duty does not extend to retaining control of a system of work if it is reasonable to engage the services of independent contractors who are themselves competent to control their system of work. In that regard, Xmplar pleaded an implied term of engagement with Zgool that the formwork labourers provided were suitably experienced to undertake formwork and falsework at the site.
45․Indicia of when a principal may owe a duty to an employee of a contractor were considered and referred to with approval in Classic Constructions (Aust) Pty Ltd v Fischetti [2015] ACTCA 51 at [71]-[72], adopting the following passage from Sydney Water Corporation v Abramovic [2007] NSWCA 248 at [98]-[99] (emphasis added):
98. However, the principal may also owe a duty to a worker who is an employee of an independent contractor. The legal question is to identify the criteria which must be satisfied to give rise to such a duty of care. The cases suggest that satisfaction of one of the following criteria may give rise to such a duty:
(a) the principal directs the manner of performance of the work;
(b) the work requires the coordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;
(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.
99. The operation of criteria (a) and (b) is reasonably clear, but they were not engaged in the present case. The operation of (c)-(e) is not so obvious, nor is it clear that there may not be additional criteria. For example, the degree of control which the principal retains over the workplace and the statutory responsibility with respect to safety at the workplace, both of which existed in Crimmins, may be critical considerations in relation to criterion (e).
46․The above passage was later approved in Central Darling Shire Council v Greeney [2015] NSWCA 51 at [32]-[33]:
32. In Wooby v Australian Postal Corporation [2013] NSWCA 183; 233 IR 471 at [27], Basten JA emphasised the non-exhaustive nature of this list. So far as the principal’s control of the work was concerned, his Honour observed that what had been important in Sydney Water Corporation v Abramovic was the “degree of control in fact exercised by the principal”, as distinct from the mere existence of a right to exercise a degree of control (at [25]). This reflected the approach taken in Plexvon Pty Ltd (in liq) v Brophy [2006] NSWCA 304; 158 IR 221 at [13] in reliance upon R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurance Ltd [1952] HCA 10; 85 CLR 138 at 151.
33. Basten JA’s observations are consistent with the “multifactorial” approach of Allsop P (with Basten JA and Simpson J concurring) in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649. Whilst this case did not concern the relationship of principals to subcontractors or their employees, Allsop P stated principles of general application to the identification of duties of care. In particular, his Honour identified many features of potential relevance, of which only the following need be mentioned here:
“(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant ...” (at [103]).
47․These are the principles to be applied to the present case.
48․Xmplar argued that there was insufficient evidence to establish that Xmplar had any obligation to direct the system of work adopted by Zgool or its employees, to supervise the activities of the plaintiff in terms of the particular tasks he was called upon to perform, to provide him with manual or mechanical assistance, and to manage the surface on which the plaintiff was called upon to walk.
49․Xmplar pleaded in its defence that it was contracted to provide formwork services at the site by Core, pursuant to a document described as the Major Works Subcontract – Design and Construct (ACT and NSW) between Xmplar and Core dated 15 January 2021. Xmplar pleaded that it “relies upon the terms and conditions of the Formwork Subcontract as [if] fully set out herein”. Such document would likely have detailed Xmplar’s responsibilities under the contract and the degree of supervisory control it was obliged to exercise over its sub-contractors. However, having relied on the document, Xmplar did not then attach the document to the pleading, nor adduce it in evidence, nor did anyone else put that document into evidence, nor was it apparent from the further and better particulars in the Court Book that anyone had even asked for the contract.
50․The Court is left with a number of documents from which inferences may be drawn, and the contents of Xmplar’s Defence. Those documents are:
(a)a Core risk assessment form,
(b)the Xmplar WIR (referred to above),
(c)an email sent by Core to other Core employees on 21 April 2021 at 4.39pm,
(d)an Xmplar record of a toolbox meeting, and
(e)several insurance claim forms.
51․As to the first document, being the Core Pre-Job Risk Assessment Form, it is dated 21 April 2021 at 6.45am. It was filled out by a Core supervisor by the name of Mr Brendan Taylor. There was a daily pre-job checklist which included a number of tasks, one of which was that the Safe Work Method Statements (SWMS) were onsite, accurate and signed by all relevant personnel.
52․None of the boxes were ticked to say that had been done. However, on the next page of the Core Pre-Job Risk Assessment Form, among other things, there are two headings:
SAFETY
· Make sure all work areas are cleaned daily!!
· Hard hats must always be worn!!
· Tool box talk every week
· All worker [sic] must sign in daily to the covid sheet
· [EXCLUSION] ZONE IS ATTACHED BETWEEN A1/A2 GROUND FLOOR
Key Work Activities for the Day
A1· Finish Top Steel
· Finish stairs
· Clean deck
· Engineer inspection
A2
· Form Work, day 4
53․This page was followed by a list which on its face was a record confirming who attended a Pre-Start meeting. At the top of the document, this statement appears (emphasis added):
WORK GROUP MEMBERS and VISITORS:
I have participated in this Pre-Start meeting explaining the Safe Work Method Statements (SWMSs), Temporary Traffic Management Plans for this job and understand the hazards, risks and control measures necessary for the safe completion of the job. I agree to follow the conditions of this Pre-Job Risk Assessment. Should safety conditions change I shall stop work and immediately inform my supervisor. I will at all times observe the safety direction of the Safety Observer from any utility when present. I am not taking any prescription medication or suffering any physical or mental impairment which will prevent me from complying with the conditions of this Pre-Job Risk Assessment. I am not under the influence of illicit drugs or alcohol.
54․Underneath that statement is a series of six signatures, against different company names, times and with different numbers written in a column headed “Workers”.
55․Relevant to the present case, at 6.30am, Xmplar is listed among the signatories in the company column. The name of the person signing for Xmplar was Benny. I infer from the signatures and the names on the Xmplar WIR set out above that Benny is a reference to Benny Mirto. Under the workers column, the number 20 appears. I infer from the handwriting that Benny had attended the pre-start meeting and had the SWMs explained to him, including the control measures necessary for the safe completion of the job (whatever they were). Further, Mr Mirto’s confirmation that he had 20 workers on site that day is an indication that he was responsible for communicating the information he had received to those 20 people.
56․It is also reasonable to infer from Mr Mirto’s signature that he had a sufficient degree of control to stop work if the safety conditions changed.
57․The second document is the Xmplar WIR, the relevant parts of which have been set out above.
58․The third document was an email sent by the Core Project manager for the Marlu development in Denman Prospect on 21 April 2021 at 4.39pm. Its recipients included, relevantly here, Mr Brendan Taylor (it may be recalled he was the Core supervisor dealing with Xmplar as a sub-contractor at the Pre-Start meeting that morning). The contents of the email were as follows (emphasis in original, underlining added):
Good Afternoon All,
Please see below the procedure to be followed when accessing formwork decks that are deemed to be icy, frosty and wet;
All access points will be isolated with yellow chain and ‘no access’ signage attached at each access point to the affected deck.
CORE site management will assess the condition of the formwork deck each morning to ensure safe access/egress is available and the surface does not present a slip, trip or fall hazards [sic] for workers.
· This assessment will be undertaken in conjunction with all trade supervisors that require access to the formwork deck each day.
Example: Formwork, Plumbing, Electrical, Steel Fixers/Stressors supervisors.
· Information relating to isolated work areas will be discussed & documented in the prestart meeting.
Once all affected groups agree the form work deck is safe to access, the yellow chain will be removed until the end of shift that day or if the working environment changes or is considered unsafe.
NOTE: trade supervisors must maintain constant supervision and monitoring of their work area to ensure that safety is prioritised and maintained during the working day. If the working environment changes that will affect the health & safety of workers then work is to stop immediately, and CORE management is to be contacted ASAP.
CORE will not be held responsible for unsafe work areas due to subcontractors failing to follow safe working procedures onsite. Any subcontractor that fails to follow the above process will be issued a Non Conformance Notice and formal warnings issued.
Could you please ensure that all your respective trades provide a toolbox talk for this week covering no access to icy/frosty/wet formwork decks. This will be a requirement in all weekly toolbox talks during the winter period. …
59․The words underlined draw attention to the fact that the principal considered the formwork deck to be a matter of safe access/egress, which is a matter of significance to the breach of statutory duty claim discussed separately below.
60․The fourth document is the Xmplar toolbox talk meeting record which includes the following:
Supervisor/Foreman Benny Mirto Date 21 /4/ 21
Subject Discussion …Fall on deck Duration 10 minutes
61․Under a heading dealing with issues raised or discussed the following appears:
Tool Box men on ice deck
Go through SWM on water on deck or ice.
Man slip on ice or water that was on deck
…
Each day to be look[ed] at by Xmplar Forman (sic) and Core before work. Core will give instruction off (sic) when deck work can START.
62․There were 16 signatures recorded on that document, from which I infer that those were the people for whom Xmplar was responsible and who had attended the toolbox meeting.
63․This record occurred sometime on the day after the accident, as it refers to the incident. The timing of the record is not otherwise critical, although it may be that it occurred directly after Mr Taylor received the email from the Core Project Manager and presumably passed the information on to Xmplar among others. The contents of the toolbox talk reflect the procedure identified in the email, including the request for there to be a toolbox talk about the issue. However, those inferences are more contextual, rather than being material to any findings on duty or breach.
64․I have exercised caution in respect of those two records made following the incident, being mindful that a response to an accident may not be indicative of the division of responsibilities or obligations before the accident. Such caution is appropriate to guard against hindsight bias in fact-finding generally, quite apart from hindsight reasoning on a breach of duty of care, which is a separate consideration.
65․Making allowances for that, the procedure that was either adopted or that was already in existence and explained to the workers, included not just Core personnel but the Xmplar foreman taking responsibility for when work was able to start, which is not inconsistent with the plaintiff’s evidence that before the accident, the person from Xmplar was the person who told him to start work.
66․It may also be inferred that Xmplar had responsibility for communicating the relevant safety measure (SWM on water on the deck) to its numerous sub-contractors immediately after the plaintiff’s fall on the deck, which again is consistent with Xmplar having the responsibility for safety measures on site, reinforced by the fact that only Mr Mirto from Xmplar attended the safety briefing given by Core (not sub-contractors to Xmplar such as Mr Zgool), as recorded on the Pre-Job Risk Assessment Form.
67․In relation to the insurance claim forms later completed by Xmplar, these carry less weight than the more contemporaneous documents. However, in the absence of any oral evidence from Xmplar, I have taken into account a reference on the general liability claim form lodged by Xmplar, the description of the incident is as follows:
Ahmad slipped and fell on the deck whilst carrying a sheet of 1200mm x 1800mm plywood. The workers had been instructed to squeegee the deck prior to working in their areas as the decks were wet due to ice. Ahmed and Ismail (his employer) carried out work on areas they had not squeegeed and as such these areas should not have been walked on.
68․The above record makes it clear that Xmplar knew as a fact before the accident occurred that the decks were wet due to ice.
69․The plaintiff’s evidence, which I have accepted, was that he was not told by anyone from Xmplar to do anything to the flooring. Xmplar sought to make something of the fact that the plaintiff spoke Arabic and obtained his instructions from Mr Zgool effectively as interpreter. However, there was insufficient evidence to establish that Xmplar actually explained any particular measure about drying or mopping the deck even to Mr Zgool to make that ‘lost in translation’ submission relevant.
70․Even the description in the claim form does not go far enough to establish that Mr Zgool and the plaintiff were part of the group referred to as “the workers”, or when any instruction may have occurred, or even who gave the instruction (for example, the reference to the workers having been instructed may equally be a reference to Core instructing Xmplar as part of the SWMS discussion).
71․To the extent that Xmplar wished to contradict the plaintiff’s evidence, for example, by calling Mr Mirto to explain that he did in fact tell Mr Zgool to squeegee the deck, that was a matter within the province of the second defendant to do so. Xmplar submitted that there were gaps in the evidence and that it was not for a defendant to call someone to fill in those gaps. However, as submitted by the plaintiff, there was no explanation for Xmplar’s failure to call anyone to give evidence to contradict the above. Generally, a party will be expected to call a person as a witness if that person is likely to be able to provide admissible evidence regarding facts in issue: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 347 at [168]-[169], [263] and [266]. I draw the inference that nothing Mr Mirto would have said in relation to his responsibilities at the site, any communication he had with Mr Zgool or the plaintiff, or the content of that communication, would have assisted Xmplar’s case.
72․Even if the description on the worker’s compensation form were given more significance as to Xmplar providing the instruction about squeegeeing the decks, that would serve to demonstrate that Xmplar believed it had exercised a degree of instructive control over Zgool employees in respect of the work areas Xmplar was co-ordinating before the incident. Such an inference is supported by the worker’s injury claim form filled out by the plaintiff, in which he names Xmplar as the employer responsible for the workplace.
73․Drawing the information from those documents together with the plaintiff’s account and the defence pleaded, the following facts are found:
(a)Xmplar held a Major Works Subcontract with Core to perform formwork at the site.
(b)Xmplar was in a position of coordinating the activity of formwork between a number of different sub-contractors; on the day in question, up to 20 workers were within its coordination, only two of which came from Zgool.
(c)Xmplar was responsible for receiving the safety control measures from Core at the pre-start meeting on the morning of 21 April 2021.
(d)Whether as part of that briefing or independently, Xmplar knew as a fact that there was ice or water on the decks that day which needed to be wiped down (given that it told its insurer that directions had been given in respect of that matter). That is, Xmplar was aware of an unnecessary risk of injury arising from the general work area in which it was going to direct that work be performed.
(e)Xmplar was the entity which had accepted, by Mr Mirto’s signature, the obligation (that is, the responsibility) to stop work and inform the supervisor if safety conditions changed.
(f)Xmplar was the entity which directed where Zgool, as one of its sub-contractors, was to work on the site that day, and the entity which directed Mr Zgool and the plaintiff to start work (being the plaintiff’s evidence).
(g)Xmplar was thus in a position of being able to exercise control over when the plaintiff started work, where the plaintiff worked, and what needed to occur at a particular work area before work started.
74․Applying the authorities as set out above, those indicia are sufficient to identify and establish the requisite duty of care owed by Xmplar to the plaintiff. There was a level of oversight that might be described as creating a risk. Xmplar was coordinating the activities of the formwork sub-contractors and directing them to start work on an area that was exposed to the elements. Xmplar had attended the pre-job risk assessment meeting and had received knowledge that its sub-contractors did not have in that regard. By directing sub-contracted labour hire workers to commence work on level 4, Xmplar was putting those workers in a position where there was a foreseeable risk. Xmplar therefore assumed a duty to exercise reasonable care with regard to the safety of the area in which it was directing work to be undertaken.
75․Given the rolled-up way in which negligence was pleaded against the defendants collectively, it is necessary to make an additional finding that the duty of care did not extend to telling the plaintiff how to carry the building materials (with 1 or 2 men) or how to lay them, or to providing mechanical assistance to undertake the work. Those are matters that it was reasonable for an independent contractor to expect the sub-contracted employer to manage and supervise.
Issue 3: Did Zgool fail to take reasonable precautions for the plaintiff’s safety?
76․Any assessment of whether reasonable precautions were taken requires consideration of two preliminary matters: first, of the standard of the duty owed and second, of the risk against which there was a duty to guard, so as to work out what precautions were reasonable in response to the risk.
The standard of the duty owed
77․The standard of care required of Zgool was that of a reasonable person in the particular defendant’s position, who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose: s 42 of the Wrongs Act.
78․In this case, such information includes knowledge that on 21 April 2021, there had been a frost overnight and that Zgool’s employees would be carrying heavy items by walking on a part of the site (level 4) that had been exposed to the elements.
What was the risk of harm that Zgool had a duty to guard against?
79․Under s 44(a) of the Wrongs Act, “the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible”. It is therefore not necessary to descend into the detail of the precise character of the injury, or the precise events leading to the injury: see Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2022] HCA 11; 273 CLR 454 at [107]-[109] and the authorities cited therein.
80․The risk of harm here was the risk that while carrying out building work on the site, a person may slip and fall on a surface that was wet or icy and suffer physical injury as a result.
81․On the plaintiff’s pleaded case, there was also a further discernible risk of harm involved in the case, that being the risk of physical injury resulting from a person slipping and falling while carrying heavy building materials by themselves. While that risk of harm, and the precautions that were reasonable to take to guard against it, was pleaded in respect of both Zgool and Xmplar, in light of the limit on the content of the duty of care that I have found above, that aspect of the claim only arises against Zgool as the direct employer.
What were the reasonable precautions to take?
82․The precautions pleaded as being reasonable to take (and which Zgool was pleaded not to have taken) have been set out at [7] of the reasons. One of those matters was a failure to warn. However, as the plaintiff was walking in daylight, on a deck that on the plaintiff’s evidence was visibly frosty or wet, I do not think this is a failure to warn case.
83․Nor do I think that the particular of placing the plaintiff in “a position of peril” meaningfully assists in articulating what precautions were reasonable to take in ensuring a safe system of work for the plaintiff. It only begs the question.
84․The critical precaution the plaintiff submitted was a simple one to take, and which should have been taken, was to not allow the plaintiff to undertake the work until it was safe to do so. That could have been achieved by either ensuring the surface was dry before carrying building materials across it, or ceasing work until the surface was not slippery. I accept that each of those alternatives was a reasonable precaution to take to guard against the risk of slipping on a wet or frosty deck.
85․Other precautions, such as having two people carry the sheet of plywood, adequately supervising the plaintiff’s duties, or providing mechanical or other assistance to enable the plaintiff to undertake his duties safely, may also have been reasonable to take, but ultimately, those measures are relevant only to the second aspect of the risk of injury arising against Zgool, and in light of the findings below, they do not need to be addressed.
Did Zgool fail to exercise reasonable care (by failing to take reasonable precautions)?
86․The assessment of whether there was a breach of duty is governed by ss 43 and 44 of the Wrongs Act which are in the following terms:
43Precautions against risk—general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
44Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
87․In the present case, Zgool knew that its employees would be carrying heavy items as that was an integral part of the job of laying formwork. Zgool further knew (through its director on site that day) that the task for its employees involved working in an area that had been exposed to the elements overnight. The possibility that the surface may be slippery due to frost, ice or even dew was not only reasonable, it was likely. Further, (although it is perhaps not necessary to go this far) that such a possibility had materialised on the surface that day was also within Zgool’s knowledge, as the surface where the employees were to be working could be seen by Zgool’s director being on site. The risk of an employee slipping on a wet or frosty surface on 21 April 2021 was plainly foreseeable.
88․If a person were to slip on the surface, the likely seriousness of the harm was not insignificant. The seriousness is greatly enhanced by the fact that the employer knew or ought to have known that the risk may materialise when a person was carrying heavy building materials.
89․The burden of taking precautions was minimal. There was no suggestion that using a squeegee or a mop to dry the surface, or otherwise wiping it down to dry it, was in any way a burden. Refraining from commencing work until the surface was dry may have cost time on the job, but again, it was not suggested that any delay was in any way a burden making it unreasonable to take such a precaution, or disproportionate to the risk involved. While the subsequent procedure that was implemented immediately, which in substance took those very measures, is not of itself a matter that affects liability or indicative of any omission (see s 44(c) of the Wrongs Act), that such measures were quickly and easily introduced is relevant to demonstrating that the burden of the measure was not disproportionate to the risk.
90․The social utility of the activity is not a factor that carries significant weight in the particular circumstances of this case.
91․In the circumstances, I find that a reasonable employer in Zgool’s position would have taken those precautions for its employees and further, that Zgool failed to take those reasonable precautions. Negligence (as defined in the Wrongs Act) is established against Zgool.
Issue 4: Did Xmplar fail to take reasonable precautions to guard against the risk of harm?
92․The same reasoning applies to Xmplar. The fact that Zgool as employer owed a non-delegable duty of care to the plaintiff simply means that Zgool could not discharge its obligation to exercise reasonable care for the plaintiff’s safety by contracting or otherwise delegating that duty to someone else. However, it does not mean that where there is an overlapping duty of care in respect of a worker’s safety, the sub-contracting entity is absolved from taking reasonable steps to discharge its separate duty.
93․In the particular circumstances here, I have found that Xmplar had assumed a duty of safety for its sub-contractors insofar as it related to the conditions of the site where those subcontractors were being directed to work. The same analysis conducted in respect of Zgool’s duty applies to Xmplar. Xmplar was in at least the same position of knowledge and foreseeability as Zgool.
94․The reasonable precautions for a sub-contractor in Xmplar’s position to take involved the step of ensuring that the surface of level 4 was safe to walk on for those sub-contractors that were required to walk on it, which could have been achieved by any one of a number measures that were low cost and within the bounds of a reasonable burden, such as use of a squeegee, or a mop, or a towel if it achieved the same outcome. Any delay in commencing work on level 4 due to drying measures being carried out could have been managed by a simple barrier where workers were not permitted to walk for areas that had not been addressed or checked. For example, clearing a safe path to walk with materials across to level 4 would take less time than squeegeeing the whole area of the deck.
95․It was not established that Xmplar took any steps to deal with the relevant risk of harm.
96․Even if I had found, on the basis of the workers compensation description, that Xmplar had taken the step of telling Zgool as employer to squeegee the deck, I may not have accepted that a single instruction in those terms without any follow up to see that the direction had been understood and complied with, before people walked on the surface, was sufficient to discharge its duty to maintain safe conditions in respect of the areas where it had directed sub-contractors to work. In that regard, I would have accepted the third defendant’s submission that even if prior directions were appropriately given, Xmplar failed to discharge its duty of supervision to ensure that action was actually taken.
97․Negligence is thus also established against Xmplar.
Issue 5: Was there a breach of statutory duty?
98․Before dealing with the question of damages, it is appropriate to deal with the asserted breach of statutory duty, which was pleaded against each of Zgool and Xmplar. Such a claim is distinct from the tort of negligence but is equally a claim in tort: Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at 259 at [130], cited by Refshauge J in Stojkoski v Belconnen Concrete Pty Ltd [2013] ACTSC 13; 274 FLR 316 (Stojkoski) at [87].
The Duty relied upon
99․The statutory duty pleaded was reg 73 of the Scaffolding Regulation, which relevantly states (emphasis added):
(1)Any person who directly or by his or her servants or agents (including every independent contractor from time to time engaged in that work) carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and prevent injury to the health of the persons engaged in the building work and for this purpose, without limiting the generality of the foregoing, the person shall –
100․Reg 73(1) goes on to include among specific measures required (emphasis added):
(b)provide and maintain safe means of access to every place where any person has to work at any time; …
Arguments of the parties
101․The defendants argued that this regulation did not apply, as on the facts, the plaintiff had accessed his work location and was moving about on level 4. In support of its submission that reg 73(1)(b) did not apply because the plaintiff was injured after he had reached his place of work, Xmplar relied on Blackwood & Son Steel & Metals P/L v Nichols [2007] NSWCA 157 (Blackwood) at [82]-[85].
102․The plaintiff argued that the above regulation applied, relying on Roberson v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution [2020] ACTSC 320 (Roberson) and Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336 (Meyer) as cases in this jurisdiction which involved access to a place of work after the relevant worker had arrived at the place where the person had to work.
What constitutes a statutory duty?
103․The parties did not separately address the opening words to reg 73(1), and in particular, the words emphasised at [99] above. It might be thought that standing alone, the introductory words create a statutory duty, applying to any person who carries out “any building work” – that is, the initial words operate to create an enforceable right, separately from, and in addition to, the specific measures that follow.
104․The source of the regulation is the Scaffolding and Lifts Act 1912 (ACT) (Scaffolding Act), in which “building work” is defined to mean:
work in constructing, erecting, adding to, altering, repairing, equipping, finishing, painting, cleaning or demolishing that, when done in relation to a building or structure, is done at or adjacent to the site of the building or structure and that, when done in relation to a ship, is done on or adjacent to a ship in dock or on slips.
105․By virtue of s 148 of the Legislation Act, that definition applies to the Scaffolding Regulation. There is no doubt that the plaintiff here was carrying out building work.
106․Unguided by authority then, it may not be clear why the plaintiff’s case on breach was tied specifically to reg 73(1)(b). However, it has previously been held that the opening words of an earlier version of the relevant regulation were too broad or vague to be enforceable of themselves: Jacob v Utah Constructions and Engineering Pty Ltd (1966) 116 CLR 200 at 210, 212 per Barwick CJ and 215-216 per McTiernan, Taylor and Owen JJ. The issue of when a duty imposed by statute to take measures for the safety of others will confer a private right was discussed in D’Arcy v Caltex [2019] ACTCA 27; 347 FLR 367 by the Court of Appeal at [107]-[110]. For the point of significance here, the Court discussed where a provision prescribes the end but not the means, stating that “[i]f the provision does not identify any specific precaution or measure which an occupier should take for the safety of others, it should not be construed as conferring a private cause of action”, citing McDonald t/as BE McDonald Transport v Girkaid Pty Ltd [2004] NSWCA 297; Aust Torts Reports 81-768 at [177]. In this jurisdiction, in Bertram v Armstrong (1978) 23 ACTR 15, Davies J held at 21 that the introductory words of reg 73 did not provide a statutory duty which may be relied upon in a civil action for damages for breach. I have proceeded on that basis.
107․One further matter in relation to the particular statutory duty under consideration here is that such duty is in fact higher or more stringent than that at common law, as explained in Fatur v IC Formwork Pty Ltd [2000] ACTSC 14; 155 FLR 70 at 75, where Miles CJ said of reg 73 (references omitted):
…There is nothing that restricts the scope of the duty to what is practicable or reasonable. A means of access is unsafe if it is a possible cause of injury to anybody acting in a way that a person may be reasonably expected to act in circumstances which may reasonably be expected to occur.
108․That understanding was expressly adopted by Refshauge J in Stojkoski at [95], and Mossop AsJ in Meyer at [68].
The proper interpretation of “safe means of access to every place where any person has to work”
109․The key issue for resolution in determining whether reg 73(1)(b) applies is whether the frosty deck on which the plaintiff walked was a “means of access” to a place where the plaintiff had to work, that was unsafe.
110․For reasons that follow, absent precedent to the contrary, I would have accepted the plaintiff’s submission that the regulation applied to the circumstances of the present case. However, having traversed what appears to be a well-worn path in working out the meaning of a safe means of access, on the evidence and as interpreted by superior courts of authority, reg 73(1)(b) does not apply to the circumstances of this case.
111․Ultimately though, the case does not turn on my findings as to whether the Scaffolding Regulation applies. Due to the earlier findings made with respect to negligence at common law, and my finding later in these reasons in respect of contributory negligence, the outcome for the plaintiff is the same as if the breach of statutory duty claim had succeeded.
The text
112․The established starting point for working out the meaning of a statute is the text itself, which must be read in its context and with regard to the purpose of the legislation: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14].
113․In this jurisdiction, s 139 of the Legislation Act 2001 (ACT) (Legislation Act) provides that the interpretation that would best achieve the purpose of the Act (not a particular provision) is to be preferred to any other interpretation. Section 140 of the Legislation Act provides that the provisions of the Act must be read in the context of the Act as a whole. The reference to an ‘Act’ includes statutory instruments: s 136 of the Legislation Act.
114․On the ordinary meaning of the words “safe means of access to every place where any person has to work”, there is nothing discernible from the text itself to warrant reading down the regulation to limit its application only to access to the building structure itself, such as via scaffolding, excluding from its operation access to different areas of the building on which building work is being done.
115․However, in the decision of Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96; 82 NSWLR 597 (Miljus), Whealy JA (with whom Bathurst CJ and McColl JA agreed) considered the question (at [111]):
what meaning should be given to the words “provide and maintain safe means of access to every place at which any person has to work at any time”?
116․His Honour found at [112]-[114] (emphasis added):
112. In my opinion, the natural meaning to be afforded to the language of the Regulation, in its overall context and having regard to the beneficial nature of the legislation under which the Regulation making power was conferred, is that an obligation was intended to fall upon, in this case, the head contractor and occupier to take all measures that appear necessary or advisable to minimise accident risk, and to prevent injury to a person delivering goods to the site, once he is at the site and may be properly said to be involved in the construction process. The practical content of this, in the present case, is that, prima facie, Regulation 73(2) would have application at the time when the process of passing the concrete through the pump systems was engaged. The obligation, of course, is one of providing safe access but logically it would extend to the place where the pump was located, even though it was immediately adjacent to the building site and not upon it.
113. The conclusion from this analysis may be briefly stated: I do not think the Regulation has any operation in relation to the delivery vehicle's passage along a public road as it makes its way to the construction site. The word "access" can, of course, be broadly used and is often used to mean "a way or means of approach to a place". It is defined by the Oxford English Dictionary to be: "a means of approach; a route by which a place may be accessed; an entrance".
114. In this regulatory framework, especially having regard to the statutory landscape, it is appropriate to confine the meaning of the regulation to its ordinary meaning of entrance to or egress from a work site. That is, generally speaking, the way it has been interpreted: Australian Iron & Steel Pty Ltd v Luna; F & D Normoyle Pty Ltd v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture [2005] NSWCA 193; 63 NSWLR 502; Ballina Shire Council v Daley (supra). Mr Gross was unable to point to any authority which supported his proposition that the regulation has scope beyond the perimeters of the construction site, or at least the area immediately adjoining or adjacent to the construction site. Even if such a possibility could be envisaged, it would not extend to the circumstances of this case.
117․As pointed out by Whealy JA, access to the work site or place of work includes, but is not necessarily limited to, the building site as a whole. Even so, the emphasis is very much upon entering and leaving the work site or place of work. As Xmplar submitted, the authorities have drawn a distinction between a worker who is injured at his place of work and one who is injured while gaining access to it: Blackwood at [82], citing Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 (Australian Iron).
118․However, once it is accepted that access within a work site or to areas adjacent to a construction site, may constitute “access” to a place of work falling within the definition, it becomes difficult to work out where the line is to be drawn.
119․The competing views of the line are seen in Australian Iron, a decision of the High Court cited in both Blackwood and Miljus. That case involved s 40 of the Factories, Shops and Industries Act 1962 (NSW). The language under consideration mirrored that in reg 73 of the Scaffolding Regulation, being concerned with a “safe means of access to every place at which any person has at any time to work”.
120․As part of a 3:2 majority in the High Court, Barwick CJ stated at 309 (emphasis added):
…the means of access, to which the Act refers, cannot necessarily be confined to a means of access to the factory or plant at which the employee is generally employed. It clearly and at least covers means within the factory or plant by which an employee moves from the place where he has performed one job of work to a place where he is to perform another job of work.
121․Barwick CJ held that the area over which the employee will reasonably be expected to range was “the place” at which the employee is to work, stating at 310 (emphasis added):
…Allowing for the fact that the statute is designed, speaking generally, to promote safety of working conditions, I do not think that by this section the legislature intended to impose a statutory obligation upon employers in respect of all surfaces over which an employee might move in the performance of the work he is employed to do. There must be a great range of operations in industry in which the performance of the assigned job of work requires the employee doing it to move from one place to another, places perhaps proximate to each other, or perhaps distant apart. … Can the floor as a whole be said to be a means of access or is it as a whole a place at which the person is to work? In my opinion, it cannot. As the contrast for which the section calls is between the place at which a job of work is to be performed and the means of access to that place, it follows, in my opinion, that for the purpose of applying this section, it is necessary to determine what was the job of work currently to be performed. The area over which the employee will reasonably be expected to range in the performance of that work will, in my opinion, be the place at which he is to work within the meaning and for the purpose of the application of s 40.
122․In dissent, Kitto J stated at 313 (references omitted, emphasis in bold added):
I am afraid I take a different view [from the majority] of the meaning of the section. Its concern is with the safety of a “means of access to every place at which any person has at any time to work” in a factory. Such cases as Hopwood v Rolls Royce Ltd and Rolland v United Glass Manufacturing Co Ltd establish that the means, whether it be a tract of earth or floor or a ladder or anything else, whereby a worker has to move to a place where he is to work is a means of access to that place even if, since his use of it is part of his duty as a worker, it may itself be properly described as a place where he has to work. But the section applies to such a means because of its character as a way to a destination, and the argument that is put before us in the present case is that the unsafe condition of which the worker complains was a condition of a tract of earth along which he had to pass, not to a place at which he had to work, but within an area which as a whole was the only relevant place at which he had to work.
123․Kitto J went on to state at 314 (emphasis added):
…The section in the plainest terms fastens upon “every place at which any person has at any time to work”. I am not prepared to whittle down the generality of “every place”, or the generality of “any time”, for I find in the Act no warrant for doing so. In ordinary language a place at which, in a factory, a man has to work at any time is the space that at that time he occupies as he works.
The purpose of the Scaffolding Regulation
124․The words emphasised in the above extracts are to draw attention to the purpose of the regulation and the particular examples used by Barwick CJ and Kitto J that are on point in the present case. The parties in the present case did not direct any submissions or analysis to the interpretation of reg 73(1) by reference to what was said in Australian Iron. Appreciating that statutes are always speaking, and the approach to statutory interpretation has evolved since Australian Iron was decided in 1969, including the application of provisions of the Legislation Act, it may be that a purposive approach directed to the statute as a whole is more consistent with the interpretation preferred by Kitto J in the minority, namely, an approach which does not supplant the expressly broad words of the text (“every place”) with an arguably artificial concept of an area in which a person will reasonably be expected to work or range (being the language used by Barwick CJ).
125․That appears to be how the matter was approached in Roberson, where Crowe AJ considered work performed to the internal part of a switchboard in equipping a building, with the plaintiff climbing in and out of trenches. His Honour found (at [276]) that the plaintiff required safe access to the switchboard and held that the posture required of the plaintiff to access the switchboard was unsafe.
126․Similarly, in Meyer, Mossop AsJ (as his Honour then was) found at [67]-[68] that the duty to provide and maintain a safe means of access applied to repairs to a computer connected to an air-conditioning system in a ceiling space of a building and that an unsecured ladder into the ceiling space constituted an unsafe means of access: Meyer at [70].
127․In each case, the worker involved had already entered the building, and needed to access a part of the work site to perform the work. Comparing those circumstances with the facts of the present case, a person required to lay plywood sheets to create a floor may have already reached a particular level of a building, but may then be expected to move such material from where it is stockpiled to the place where the floor was then to be laid. There is little difference, to my mind at least (and similarly that of Kitto J in Australian Iron above), in whether the means to access the place of work is by climbing an unsecured ladder up to a ceiling, or walking along a deck that is frosty. In the present case, as seen in the document set out at [58] above, the principal, Core, considered that frost on the deck was a matter of ensuring “safe access/egress is available”. In my view, that is clear evidence of the words of reg(1)(b) applying to the area in question.
128․As a matter of logic, it would not make sense for a duty of a safe means of access to attach when a person carries building materials and tools up scaffolding and deposits them at the top level, but for the duty to cease when a person picks up the same building materials from that site in one area, and walks across an area to move those materials to the part of the building site where the building materials must be used at a different time. The words of the regulation are to “every place” where a person has to work “at any time”. The person may pick up materials at one location, and use them in the construction at another location.
129․Yet, on the express authority of Barwick CJ in Australian Iron above, including the example the Chief Justice gave of a whole floor not being a means of access (because it might be viewed as part of an area of work over which a person could reasonably be expected to range), I feel bound to find that the statutory duty contained in reg 73(1)(b) does not apply.
Issue 6: Was any failure to take reasonable precautions a necessary condition of the happening of the harm?
130․Section 45(1) of the Wrongs Act governs this question. It is in the following terms:
45General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
131․The second and third defendants argued here that the plaintiff had not discharged the onus of proving the causal mechanism of the injuries, in that it may equally have been the “awkwardness” of the large plywood sheet he was instructed by the first defendant to carry. However, having accepted the plaintiff’s version of events, it has been established that on the balance of probabilities, the plaintiff slipped on a surface that had moisture on it, whether that was actual frost, or water from melted frost. There was no suggestion that the plaintiff’s footwear was inadequate or that there was some other cause for the plaintiff losing his footing, being what he reported to the hospital (that his feet went out from under him) or slipping.
132․Although the consequences of the harm may have been more severe because of what was being carried at the time, that does not take away from the essential finding that the slippery surface was a necessary condition of the slip and fall. It was the moisture on the surface of the deck where the plaintiff was walking that caused him to slip and fall.
133․I do accept that the frost or moisture may not have been the only contributing factor to the fall and the injuries suffered as a result of the fall. It is reasonable to infer that the size and weight of what was being carried by one person at the time is likely to have contributed in a number of ways, whether by affecting the plaintiff’s balance, or the ability to steady himself, or increasing the impact of any minor slip. As a matter of common sense, if a person is holding something heavy and they happen to slip, for whatever reason, it will be very difficult to get their hands free in sufficient time to break their fall.
165․Appreciating the condition was degenerative, the plaintiff was fairly young and fit, and may otherwise have continued to undertake manual labour work in Australia for some duration were it not for the injury. However, I accept that there was some possibility that the plaintiff would have suffered an aggravation rendering his degenerative condition symptomatic, and have taken that into account in the assessment of quantum that follows. The evidence before the court was not of sufficient detail to permit any precision in a calculation based upon percentage-chances: see Malec at 640.
166․Doing the best that I can with the evidence that is before the Court, I consider that a less artificial and fairer approach is to deal with that accepted possibility as warranting a greater discount when taking account of vicissitudes (25% rather than the discount of 15% commonly applied in this jurisdiction). Sickness is part of the vicissitudes of life and there is a real likelihood that this injury would have occurred regardless of the negligence, particularly where the work involved was heavy physical work in the construction industry, an occupation which is unlikely to sustain longevity of employment in the same way as less physically demanding jobs.
General Damages (Non-economic loss)
167․Relevant to the present case, the damages for non-economic loss that were sought include compensation for the plaintiff’s pain and suffering, and his loss of amenities of life. If the Court reached a point of determining damages, the plaintiff sought $120,000 in general damages, while the defendant submitted that $100,000 was an appropriate figure. The assessment relies heavily on the impression made by the plaintiff: Tsueneaki v Stewart [2013] ACTCA 34 (Tsueneaki) at [30].
168․The plaintiff has suffered pain and restriction of movement as a consequence of his injuries. Dr Bodel’s evidence was that he has been moderately compromised. His prognosis for the future was expressed as uncertain and guarded, but it was noted that the plaintiff did not intend to have surgery. A degenerative condition that has been rendered symptomatic, along with a disc rupture, is not an injury that lends itself to a finding that the plaintiff will achieve a total recovery. Given his evidence that he has good days and bad days, I think it is likely that he will suffer ongoing but intermittent back pain for the rest of his life, with some improvement through rehabilitation and regular physiotherapy, but not surgery. The pain and some movement restriction will be a condition that he will manage, rather than one from which he will fully recover.
169․The plaintiff was cross-examined extensively as to whether he was exaggerating the extent of his pain and physical limitations, with video evidence taken at various times during 2023, depicting the plaintiff entering and exiting his residence in Sydney, driving, walking, smoking and socialising with friends. Xmplar adduced video footage uploaded by the plaintiff on his personal Tiktok account which it alleged included the plaintiff driving his car, performing exercises at the gym and dancing in a carpark. This did not cause me to have concerns about the plaintiff’s credibility or evidence, as he did not say that he could never do those things. He said there were good days. He said he was able to drive, but not for more than 20 to 30 minutes at a time. Xmplar sought to make something of the fact that the plaintiff had been travelling to and from Sydney every day of the hearing, but passengers can move about in a vehicle in a way that the driver cannot. Again, I was not overly concerned that such evidence affected the plaintiff’s credibility. I accept the plaintiff’s evidence that he experienced difficulty in sleeping due to the pain, at times requiring sleep aids. There was some doubt in relation to timing of other evidence of the plaintiff dancing and I have put that to one side.
170․There are two matters that did make me form a view that the plaintiff’s evidence of his current condition was exaggerated. The first was a contested issue about whether certain footage depicting the plaintiff attending the gym and lifting weights was in fact the plaintiff’s brother. I have accepted that the evidence recorded the plaintiff and have not accepted the plaintiff as credible on that point. The second was how the plaintiff presented in the witness box, including my observations of how he was walking in the courtroom. From what I observed, including the slight limp, I felt there was a bit of a performance being given. However, those matters did not cause me to have concerns about the evidence given by the plaintiff on what occurred, discussed at the outset of these reasons, as opposed to tempering my views about what his present condition and state of disability was.
171․Overall, I accept that the plaintiff is not significantly debilitated, although he may have flare-ups, and that he is functioning and socialising, but that the loss of the employment does bring a degree of isolation and further (on balance), that one of the consequences of the incident was that he does not do positive cultural activities such as participating in the drum group with which he was previously associated. Fortunately for this plaintiff, there was no significant accompanying psychological injury.
172․As stated in John XXIII College v SMA [2022] ACTCA 32 at [226], the Court generally eschews a detailed comparison of symptoms between plaintiffs, as each case must be decided on its own facts. In part, that is because of the caution expressed in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125 not to be “overborne by what other minds have judged right and proper for other situations”. Nevertheless, s 99 of the Wrongs Act permits the Court to refer to earlier decisions for the purpose of establishing the appropriate award in the proceeding. Although no party referred the Court to any cases on general damages, for transparency I record that I have given consideration to cases such as McCauley v City Steelfixing (ACT) Pty Ltd and Australian Post Tensioning Systems Pty Ltd [2013] ACTSC 185, which involved an aggravation of a back injury, and where it was found that the injury was of a similar kind, being one which was manageable with treatment and rehabilitation to reduce symptoms and pain, short of surgery. A figure of $90,000 was awarded, although that case was decided over 10 years ago.
173․General damages of $100,000 will be awarded, with just over half of that amount allocated to the past and half to the future. Counsel for the plaintiff argued for two-thirds apportionable to the past, and I have taken into account that much of the compensation for non-economic loss is for the accident itself and its immediate aftermath, but this is balanced against the age of the plaintiff at the time the accident occurred and the many years that he will now have a symptomatic back injury in the future.
174․Interest has been claimed. The purpose of the interest component is to compensate the plaintiff for losses suffered from not having that money during the relevant period: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663. I have used the figure of $50,255 as the basis for calculating interest at the rate of 2% on the past component, for the period from 21 April 2021 to 26 June 2024. Rounding to the nearest dollar, an amount of $3200 will be awarded for interest.
Past Treatment Expenses
175․The plaintiff attended physiotherapy sessions regularly, initially paid for by insurance, but ceased in around early 2023 as he could not afford the sessions. He reported that physiotherapy helped to minimise the amount of pain in his leg and lower back, but that the lower back pain never really went away.
176․The plaintiff led evidence of out-of-pocket expenses in the sum of $12,196.52. Of those, $10,945.52 were funded by Insurance and Care NSW, or iCare NSW, pursuant to the workers compensation claim which was accepted by the NSW workers compensation insurer of Zgool. Given that the state of connection was later found to be the ACT, those payments appear to have been made when iCare had no legal liability to do so.
177․Xmplar argued that there was no notice of a claim for recovery for payments made by iCare. Further, due to the state of connection being the ACT, there was no evident right of recovery under statute. There was no evidence of iCare agitating for repayment on some equitable basis of payment by mistake. I have proceeded in the assessment of damages on the basis that the plaintiff does not have to repay iCare. If iCare seeks repayment at a later date, the consequences can be addressed between the parties at that time. Taking into account the amount already funded by iCare, I will award $2,000 inclusive of interest for past treatment expenses by way of a buffer.
Future Treatment Expenses
178․The plaintiff claimed a buffer of $10,000 for future treatment expenses, including medication, specialist visits, pain management and an allowance for surgery. The defendant submitted that a buffer of $3,000 was appropriate.
179․In around May 2021, the plaintiff was referred to Dr Geoffrey Rosenberg, an orthopaedic surgeon, who suggested the plaintiff receive a nerve block injection in his spine, and potentially surgery if the pain did not subside. The plaintiff has not opted to undergo the nerve block treatment due to fear of the needle used, particularly as the pain may increase following the procedure and there was no guarantee it would work. I have taken into account that surgery is presently unlikely due to the plaintiff’s attitude.
180․Taking into account the plaintiff’s age, and the cost of pain management, which may include regular physiotherapy for strengthening exercises as well as minimising pain (which he has previously undertaken but ceased due to being unable to afford the service), over the entire course of the plaintiff’s life, $10,000 is an appropriate figure to award by way of a buffer.
Economic Loss
181․The principles applicable to assessing economic loss, and in particular, future economic loss, were set out in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 (Kerr) and were summarised in Oliver v Roberts [2018] ACTCA 35; 85 MVR 259 at [41]:
(a) An award of damages for future economic loss (including by way of a buffer) does not compensate the claimant for lost income; rather, it compensates the claimant for diminished capacity to earn income (the lost chance to earn): [Singh v Cooper [2016] ACTCA 55] at [65], Allianz per Basten JA at [24].
(b) Any award for future economic loss involves a discretionary judgment that takes into account a range of real possibilities and does not depend on the proof of probabilities: per Heydon JA in State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, cited in Allianz by Basten JA at [25] and [27].
(c) Income earned prior to the accident may be the best evidence of pre-accident earning capacity. Post-accident income may be (but often is not) a good indicator of current capacity. Usually, it is necessary to consider the extent to which pre-accident and post-accident capacity might have been and may be expected to vary in the future: Allianz per Basten JA at [24].
(d) Commonly, a mathematical assessment of loss of earning capacity is reduced by 15 per cent for “vicissitudes” for the fact that, regardless of the defendant’s negligence, the claimant may have suffered a diminution in earning capacity during their working life: Allianz per Basten JA at [29].
(e) Where the evidence enables a mathematical approach to the assessment of future economic loss, such an approach is preferable: Singh at [61], Allianz per McColl JA at [9] and Macfarlan JA at [72].
(f) However, the reduction in earning capacity may be difficult to determine other than by a broad approach: Allianz per McColl JA at [6]–[9]. It may be “so fraught with uncertainty that the preferred course is to award a lump sum as a buffer”, rather than engaging in an artificial exercise of reducing a precise figure by a precise percentage: Allianz per Basten JA at [30].
(g) The assessment of a buffer may be somewhat intuitive: Singh at [61]. However, considerations informing the outcome should be articulated: Singh at [77].
Past Economic Loss
182․The plaintiff had only been working in Australia for 4 weeks at the time of the injury. The agreed rate of pay was $45 per hour, less expenses for food, accommodation and travel. There were no payslips in evidence, or evidence of any earnings the plaintiff may have before coming to Australia. The plaintiff’s visa conditions prevented him from working until December 2020. As soon as he could work, he appears to have made efforts to obtain a job through his personal connections. The plaintiff submitted he was told the job he had secured with Zgool would be a long job, but there was no evidence as to what ‘long’ meant. He submitted that the past economic loss should be assessed on the basis that he would continue to have earned what he earned in the four-week period before the accident.
183․Perhaps in deference to the preferred approach outlined in the principles above of a mathematical calculation where the evidence enables it, the parties each contended for damages for past economic loss of between approximately $40,000 to $125,000 based on hourly rates of between $25 and $35 nett per hour and full working weeks. Those figures were inclusive of the weekly compensation paid by iCare, which totalled $17,576.65, and were to the time of trial, but the delay from hearing to judgment has been taken into account in what follows.
184․The defendant argued a failure to mitigate loss, but I have not accepted that submission due to the fact that it was not pleaded and only raised after the plaintiff had given evidence.
185․In a case where the plaintiff had only 4 weeks of work, in a job without formality or permanency, with no records to support the figures claimed, with speculative amounts estimated as to nett working rates and no clear evidence that superannuation would have been payable had the arrangement, such as it was, continued, I consider that there are too many imponderables in this case to take a mathematical approach to economic loss.
186․I have allowed a buffer of $100,000 for past economic loss, inclusive of any superannuation that would have been payable and any interest. The considerations that have informed that amount are:
(a)An approximate average weekly earnings figure of $800 nett. Some weeks he may have worked more and earned more, but some weeks he may have earned nothing). For example, the employment obtained by the plaintiff is unlikely to have involved payment for holidays or for down time on a construction site when manual formwork could not be completed due to scheduling or other construction delays, or matters outside the plaintiff’s control, such as weather or pandemic lockdowns, noting that this is precisely what occurred in Canberra later in 2021.
(b)An approximate overall working period in the construction industry from the date of the accident of about 3 years, due to the vagaries and uncertainties of the industry itself and the type of work the plaintiff was doing.
(c)Any superannuation payable is likely to have been modest at best;
(d)The iCare figure of $17,576.65 which has already been paid and which I have accepted does not need to be repaid, which also has the consequence that no component for the tax component (Fox v Wood damages) arises.
Future earning capacity
187․In Tsueneaki at [38], the Court of Appeal referred to Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Aust Torts Reports 81-949 (Pollard) at [84], where the circumstances in which it may be appropriate to award damages by way of a buffer were described (by McColl JA, with Mason P and Beazley JA agreeing) as follows (emphasis added):
As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). ...
188․The Court of Appeal in Tsueneaki then stated at [39]-[40]:
39. The essence of those decisions is that the future is difficult to predict. If there is impairment of earning capacity the economic loss it will produce will be, in many cases, impossible to calculate with precision. In those circumstances the chance of loss can only be compensated for by the award of a lump sum or “buffer”.
40. The quantification of that sum, as this Court pointed out in O’Brien v Noble [2012] ACTCA 13, must have an apparently rational basis. …
189․The plaintiff sought a buffer for future economic loss of $250,000. The defendants argued that the plaintiff had a residual earning capacity. Xmplar argued for an award of $58,292 being for a period of 12 months.
190․The defendant bears an evidential onus concerning the issue of whether the respondent has a residual earning capacity that he is practically capable of exercising: Rabay v Bristow [2005] NSWCA 199 at [73], cited in Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357 at [20] and Kallouf v Middis [2008] NSWCA 61 at [50]. The Court must assess earning capacity measured by reference to the individual, when viewed with all his characteristics in the labour market: Nominal Defendant v Livaja [2011] NSWCA 121 at [65].
191․In this case, the plaintiff graduated from a university in Jordan with a degree in Special Education and had worked there as a teacher for several years with children with special needs. That is work that involves lighter or less physical duties.
192․Xmplar argued that this type of employment was available in Australia and that all the plaintiff really needed to do to make himself employable in that field was to become proficient in English sufficiently to take the requisite International English Language Testing System, known as the IELTS test.
193․The plaintiff confirmed that he did intend to take the IELTS test, which would assist his employment prospects, including resume working with special needs persons in Australia. He indicated that it would not be exactly the same work he did in Jordan, which involved a degree of physicality, as he was not able to do that with his movement restrictions. Significantly, the plaintiff did not submit that he had no capacity to work. Indeed, he impressed me as an intelligent man who is capable of work.
194․The plaintiff’s underlying rationale for a buffer for future economic loss was essentially that the plaintiff needs funds and time to retrain, whether that was in the English language or other training in a field of employment and that a period of 2 years was an appropriate amount of time.
195․I accept the plaintiff’s language skills in English are a significant barrier, although I am cognisant that a plaintiff who is injured and in pain, with no money to attend to his medical treatment and relying on friends for accommodation, will equally have no money to undertake English language or training courses. Following the accident when he was housebound, the plaintiff indicated that he would revise words in English to improve his vocabulary.
196․I consider that the accident and the subsequent symptoms have likely delayed the plaintiff attending to his retraining or English tuition, and that it may take 2 years to get the plaintiff back in a properly employable position in the open labour market. I have allowed a buffer of $100,000 inclusive of superannuation, on the basis that such funds will provide him with the money to retrain, and give him some money to live on while he does it, for a period of two years.
197․In making the decision to include superannuation as part of the buffer, I have had regard to the plaintiff’s submission that on other occasions, the Court has seen fit to award superannuation as an additional component. However, as cases such as Tattersall v Dormakaba Australia Pty Ltd [2023] ACTSC 390 at [121] demonstrate, that is not always the case. Here, where the buffer is inherently imprecise and the rationale for the buffer based on delay in retraining and upskilling, I was not persuaded that embarking upon a mathematical calculation of superannuation on top of a buffer was the appropriate course.
Domestic Assistance
198․The plaintiff reported difficulties with the activities of daily living, relying completely on his brother and his friend to do the cooking, cleaning and carrying his groceries, both of whom gave evidence that they had provided such assistance. I am prepared to accept that there was a period of time when the plaintiff required help and that an amount of $5000 inclusive of any interest is a fair reflection of the time involved historically (a little over one hour per week for a little over 2 years at a commercial rate of $45 per hour).
199․In terms of future domestic assistance, given that I have found the plaintiff’s symptoms will reoccur periodically but that they will be assisted by medication and management, I do not accept that there is any need for domestic assistance on a continuing basis and the evidence did not establish a case for that type of assistance. I do accept that there will be times where his back pain becomes debilitating, and that other people are likely to be called upon on an ad hoc basis over the years. Accordingly, I will also award a buffer of $5000 for those occasions over the remainder of the plaintiff’s life.
Summary of Damages
200․In summary, the plaintiff is entitled to damages under the various heads as set out below:
General Damages
$100,000
Interest on past component
$3,200
Past economic loss (inclusive of superannuation and interest)
$100,000
Future economic loss (inclusive of superannuation)
$100,000
Fox v Wood
$0
Domestic Assistance (past and future)
$10,000
Out of pocket expenses (past and future)
$12,000
Discount for vicissitudes 25%
-$81,300
Total Damages
$243,900
Issue 10: Apportionment
201․The plaintiff has established liability against each of the first and second defendant. The third defendant’s position is that in those circumstances, the plaintiff is entitled to enforce the totality of the judgment against the second defendant. Pursuant to s 170 of the WC Act, the plaintiff cannot claim as against the default insurer. I accept that submission.
202․In the event that the first defendant had some funds to meet to the plaintiff’s claim, Xmplar submitted that there may need to be consideration of apportionment as between the two. I would have found that notwithstanding the first defendant was the employer, in the circumstances of this case, each defendant was equally negligent, resulting in apportionment in a ratio of 50%.
Costs
203․The plaintiff has been successful against the first and second defendants. Exercising the judicial discretion on the ordinary basis that costs follow the event, I will make a costs order in the plaintiff’s favour against those defendants. However, as there may be matters outside the Court’s knowledge, if either party seeks a different costs order, they are to do so within 7 days.
Orders
204․For the above reasons, the following orders are made:
(1)Judgment for the plaintiff against the first and second defendants in the sum of $243,900.
(2)The first and second defendants are to pay the plaintiff’s costs.
(3)The third defendant is to pay its own costs.
(4)If any party notifies chambers within 7 days of the making of these orders that a different order in relation to costs is sought, Order 2 is stayed until further order.
| I certify that the preceding two hundred and four [204] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: |
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