Allen v Merym Pty Ltd t/as EMCO Building [No 3]
[2023] WADC 55
•26 MAY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ALLEN -v- MERYM PTY LTD t/as EMCO BUILDING [No 3] [2023] WADC 55
CORAM: COMMISSIONER COLLINS
HEARD: 7-11 FEBRUARY, 9 MARCH, 5 MAY & 12 AUGUST 2022 AND WRITTEN SUBMISSIONS DATED 7, 10, 11 & 28 JANUARY, 14, 21 & 24 FEBRUARY, 8, 10, 11, 26, 29 & 31 MARCH, 7 & 8 APRIL & 2 MAY 2022
DELIVERED : 26 MAY 2023
FILE NO/S: CIV 1102 of 2019
BETWEEN: ROBERT PAUL ALLEN
Plaintiff
AND
MERYM PTY LTD t/as EMCO BUILDING
First Defendant
AXS ACCESS MANAGEMENT PTY LTD
Second Defendant
PAUL HOUGH AND GAETANA FUCILE t/as UNIQUE SCAFFOLDING
Third Defendant
Catchwords:
Torts - Negligence - Duty of care - Workplace injury - Whether breach of duty of care owed by building contractor to subcontractor employee - Whether breach of duty of care owed by scaffold supplying contractor to subcontractor employee - Whether breach of duty of care owed by scaffold erecting contractor to subcontractor employee - Contributory negligence - Whether subcontractor employee walked into protruding scaffold - Credit - Damages - Turns on own facts
Torts - Occupiers' liability - Duty of care - Whether occupier of building site breached duty of care owed to subcontractor employee
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) - Apportionment of liability between tortfeasors
Contract - Construction and interpretation - Indemnity clause - Obligation on subcontractor to indemnify head contractor - Obligation on sub-contractor to indemnity subcontractor
Legislation:
Civil Liability Act 2002 (WA)
District Court Rules 2005 (WA)
Evidence Act 1906 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)
Law Reform (Miscellaneous Provisions) Act 1941 (WA)
Occupiers' Liability Act 1985 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Judgment for plaintiff
Liability apportioned and damages assessed
Representation:
Counsel:
| Plaintiff | : | Mr D J Bayly |
| First Defendant | : | Mr J J Sheldrick |
| Second Defendant | : | Mr C C Rimmer |
| Third Defendant | : | Mr A A Nolan |
Solicitors:
| Plaintiff | : | Hoffmans Lawyers |
| First Defendant | : | Meridian Lawyers (Perth) |
| Second Defendant | : | Sparke Helmore Lawyers |
| Third Defendant | : | McCabes |
Case(s) referred to in decision(s):
Allen v Merym Pty Ltd t/as EMCO Building [2022] WADC 24
Allen v Merym Pty Ltd t/as EMCO Building [No 2] [2022] WADC 45
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Allianz Australia v Insurance Ltd v Kerr [2012] NSWCA 13
Andar Transport Pty Ltd v Brambles Ltd
Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
ASCIC v Westel Co-operative Ltd (1992) Aust Torts Reports 81-159
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Blacktown City Council v Hocking [2008] NSWCA 144
Carter v Railway Motel Pty Ltd [2016] WADC 102
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Child and Adolescent Health Service v Sunday John Mabior (by Next Friend Mary Kelei) [2019] WASCA 151
CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121
CSR Ltd v Eddy (2005) 226 CLR 1
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust trading as DM Civil v Karara Mining Ltd [No 6] [2021] WASC 410
D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87
East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1
Essaiyd v Saint [2021] WADC 61
Fox v Wood (1981) 148 CLR 438
Garnett v Qantas Airways Ltd [2021] WASCA 110
Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292
Girgis v Poliwka [No 6] [2019] WASC 230
Goode v Angland [2017] NSWCA 311
Gors v Tomlinson [2020] WASCA 164
GR Engineering Services Ltd v Investmet Ltd [2021] WASCA 136
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hamilton v Pharmacy Board of Australia [No 2] [2022] WASCA 155
Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111
Homestyle Pty Ltd v Perrozzi [2007] WASCA 1
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Report 81-192
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Martin v Minister for Health [2016] WADC 15
McKay v Commissioner of Main Roads [No 3] [2010] WASC 232
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96
Montemaggiori v Wilson [2011] WASCA 177
Newman v Nugent (1992) 12 WAR 119
Nikolich v Webb [2020] WASCA 169
Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460
Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19
Paul v Rendell (1981) 34 ALR 569
Pollock v Wellington (1996) 15 WAR 1
Presilski v Shepherd [2021] WASC 100
Rayney v The State of Western Australia [No 4] [2022] WASCA 44
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2016] WADC 22
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Sharman v Evans (1977) 138 CLR 563
Shaw v Thomas [2010] NSWCA 169
Stanton v Insurance Commission of Western Australia [2020] WADC 10
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Swain v Waverley Municipal Council [2005] HCA 4
Sydney Water Corporation v Abramovic [2007] NSWCA 248
The Thistle Company of Australia Pty Ltd v Bretz [2018] QCA 6
Thomas v O'Shea (1989) Aust Tort Reports 80-251
Thompson v J-Corp Pty Ltd [2018] WADC 164
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234
Tonich v Macaw Nominees Pty Ltd (Unreported, WASCA, Library No 940119, 11 March 1994)
Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212; (2012) 43 WAR 383
Veitch v Connor [2023] WADC 38
Wainwright v Barrick Gold of Australia [2014] WASCA 15
Wallace v Kam (2013) 250 CLR 375
Watts v Rake (1960) 108 CLR 158
Watts v Turpin [1999] WASCA 216
Westina Corporation Pty Ltd v BGC Contracting Pty Ltd [2009] WASCA 213
Wreford v Lyle [No 3] [2021] WASCA 20
Wyong Shire Council v Shirt (1980) 146 CLR 40
Younger v Reid [2010] WADC 84
Table of Contents
A. Overview
B. Background
C. Issues for determination
D. Approach to evidence
D.1 Generally
D.2 Witnesses for Allen
D.3 Paul Allen
D.4 Eric Wohlan
D.5 Kyle Wohlan
D.6 Witnesses for EMCO, AXS and Unique Scaffolding
D.7 Luke Morrison
D.8 Derrick Campbell
D.9 Alfredo Vitale evidence
D.10 Scott Vivian-Williams
D.11 Paul Hough
E. Overview of the case run at trial
F. Facts not in issue
G. What happened on 9 January 2017 - the parties' pleadings
H. Paul Allen's evidence
H.1 The circumstances of the Accident
H.2 Allen attended Sir Charles Gairdner Hospital for treatment
H.3 Allen attends on Dr Khoo on 11 January 2017
H.4 Allen attended the site on 11 January 2017 and spoke to Campbell
H.5 Allen completed a workers' compensation form
H.6 Allen attended various site meetings
H.7 Allen's resume
I. Eric Wohlan's evidence
J. Kyle Wohlan's evidence
K. Derrick Campbell's evidence
K.1 EMCO controlled the site and the scaffold
K.2 The scaffold
K.3 Campbell saw Allen on the day of the Accident
K.4 Campbell reported the Accident on Myosh
K.5 Campbell met with Allen on 11 January 2017
K.6 Campbell updated the Accident details on Myosh
K.7 Campbell inspected the scaffold 10 days after the Accident
L. Alfredo Vitale's evidence
L.1 Scaffold inspector
L.2 Scaffold inspection 28 October 2016
L.3 Vitale inspected the scaffold in December 2016
L.4 The scaffold
L.5 The Accident
M. Scott Vivian-Williams' evidence
N. Paul Hough's evidence
N.1 Agreement between AXS and Unique Scaffolding
N.2 Unique Scaffolding 2016/2017 - the Scaffold
N.3 The Accident - 9 January 2017
N.4 After the Accident - 10 January 2017
N.5 Site inspection 10 to 14 days after the Accident
N.6 Scaffold inspections
O. Google image and other evidence
O.1 Google image in support of the Accident - second evidentiary strand
O.2 Condition of the site in support of proving the Accident - third evidentiary strand
P. Rowan Stokes' evidence
P.1 Background
P.2 Rowan Stokes' evidence - background experience and qualifications
P.3 The design, erection and use of scaffolds
P.4 Google image
P.5 Scaffold tube on the west side of the scaffold
P.6 Height of tie protruding into scaffold walkway on southern side
P.7 Steps taken to manage the hazard
P.8 Conclusion
Q. Finding as to the Accident on 9 January 2017
R. Miscellaneous matters
S. Medical evidence
T. Facts not in issue - medical evidence
U. What injuries did Allen sustain on 9 January 2017?
U.1 The parties' pleadings
U.2 Allen's injuries on 9 January 2017
U.3 Findings on injuries occurring on 9 January 2017
V. What was Allen's pre-accident medical condition and lifestyle?
V.1 Background, education, vocational and qualifications
V.2 Allen's pre-accident medical condition
V.2.1 Left shoulder injury 2014
V.2.2 Heart condition
V.2.3 Miscellaneous health issues
V.3 Findings
W. Overview of Allen's symptoms following the Accident
X. Allen's heart condition - not causally related to the Accident
X.1 Allen's evidence
X.2 Dr Athula Karu
X.3 Dr Easton
Y. Allen's left shoulder injury and symptoms - not causally related to the Accident
Y.1 Allen's evidence
Y.2 Dr Booth - left shoulder
Y.3 Dr Hardcastle - left shoulder
Y.4 Dr Fairhurst - left shoulder
Y.5 Dr Sneddon - left shoulder
Y.6 Dr Easton - left shoulder
Z. Allen's right elbow injury and symptoms - causally related to the Accident
Z.1 Allen's evidence
Z.2 Dr Khoo - right elbow
Z.3 Dr Booth - right elbow
Z.4 Dr Hardcastle - right elbow
Z.5 Dr Fairhurst - right elbow
Z.6 Dr Sneddon - right elbow
Z.7 Dr Easton - right elbow
AA. Summary of findings as to Allen's physical condition following the Accident
AA.1 Cardiac condition
AA.2 Left shoulder
AA.3 Right elbow
AB. The relevant legislation
AB.1 Occupiers' Liability Act 1985
AB.2 Civil Liability Act 2002
AC. Did EMCO breach any duty of care it owed Allen?
AC.1 Allen's position
AC.2 EMCO's position
AC.3 Existence of a duty of care not in dispute
AC.4 EMCO's duty of care as occupier of the premises
AC.5 Did EMCO breach the duty of care it owed Allen?
AC.5.1 The gravity and likelihood of the probable injury - s 5(4)(a)
AC.5.2 The circumstances of Allen's entry onto the premises - s 5(4)(b)
AC.5.3 The nature of the premises - s 5(4)(c)
AC.5.4 The knowledge which EMCO had or ought to have of the likelihood of persons or property being on the premises - s 5(4)(d)
AC.5.5 Allen's age when entering the premises - s 5(4)(e)
AC.5.6 The ability of Allen entering the premises to appreciate the danger - s 5(4)(f)
AC.5.7 The burden on EMCO of eliminating the danger or protecting Allen from the danger as compared to the risk of the danger to Allen - s 5(4)(g)
AC.6 Condition Duty
AC.7 The Safe System of Work Duty
AC.8 Conclusions on liability under the OLA
AC.9 Section 5B of the CLA
AC.10 Did EMCO fail to take precautions against the risk of harm Allen?
AC.10.1 Was there a foreseeable risk about which EMCO knew or ought to have known?
AC.10.2 Was the risk not insignificant?
AC.10.3Would a reasonable person in the position of EMCO have taken precautions to safeguard against the risk - s 5B(1)(c) and s 5B(2)
AC.10.3.1 Probability of harm if care not taken
AC.10.3.2 Likely seriousness of harm
AC.10.3.3 Burden of taking precautions
AC.10.3.4 The social utility of the activity that creates the risk of harm
AD. Did AXS breach any duty of care it owed Allen?
AD.1 Allen's position
AD.2 AXS's position
AD.3 Existence of a duty of care not in dispute
AD.3.1 Duty of care as to the condition of the scaffold
AD.3.2 Duty of care as to AXS's supply and erection of the scaffold
AD.4 Section 5B of the CLA
AD.5 Did AXS fail to take precautions against the risk of harm Allen?
AD.5.1 Was there a foreseeable risk which AXS knew or ought to have known?
AD.5.2 Was the risk not insignificant?
AD.5.3Would a reasonable person in the position of AXS have taken precautions to safeguard against the risk - s 5B(1)(c) and s 5B(2)
AD.5.3.1 Probability of harm if care not taken
AD.5.3.2 Likely seriousness of harm
AD.5.3.3 Burden of taking precautions
AD.5.3.4 The social utility of the activity that creates the risk of harm
AD.6 Conclusion under the CLA
AE. Did Unique Scaffolding breach any duty of care it owed Allen?
AE.1 Allen's position
AE.2 Unique Scaffolding's position
AE.3 Existence of a duty of care not in dispute
AE.3.1 Duty of care as to the condition of the scaffold
AE.3.2 Duty of care as to Unique Scaffolding's construction of the scaffold
AE.4 Section 5B of the CLA
AE.5 Did Unique Scaffolding fail to take precautions against the risk of harm Allen?
AE.5.1 Was there a foreseeable risk which Unique Scaffolding knew or ought to have known?
AE.5.2 Was the risk not insignificant?
AE.5.3Would a reasonable person in the position of Unique Scaffolding have taken precautions to safeguard against the risk - s 5B(1)(c) and s 5B(2)
AE.5.3.1 Probability of harm if care not taken
AE.5.3.2 Likely seriousness of harm
AE.5.3.3 Burden of taking precautions
AE.5.3.4 The social utility of the activity that creates the risk of harm
AE.5.4 Conclusion under the CLA
AF. Were Allen's injuries caused by any breach of duty of care?
AF.1 Allen's claim
AF.2 Causation - legal principles
AF.3 Factual causation - was EMCO's, AXS's and Unique Scaffolding's negligence a cause of Allen's harm?
AF.4 Scope of liability
AG. Contributory negligence
AG.1 EMCO, AXS and Unique Scaffolding pleadings
AG.2 Legal principles - contributory negligence
AG.3 Did Allen contribute to the accident on 9 January 2017
AH. EMCO's claim against AXS
AH.1 EMCO's claims
AH.2 Contractual indemnity claim
AH.3 Breach of contract claim
AH.4 Indemnity, alternatively, contribution under the Contribution Act
AI. AXS's claim against Unique Scaffolding
AI.1 AXS's claim
AI.2 Disposition
AJ. Apportionment of liability between tortfeasors/contribution
AJ.1 Pleadings by EMCO, AXS and Unique Scaffolding as to liability/contribution
AJ.2 Legal principles
AJ.3 Findings on apportionment
AK. Damages
AK.1 Allen's claim
AK.2 Legal principles
AL. Life expectancy, retirement age and relevant discount multipliers and contingencies
AL.1 Life expectancy
AL.2 Retirement age
AL.3 Contingencies
AM. Assessment of non-pecuniary loss (General Damages)
AM.1 Allen's claim
AM.2 Legal principles
AM.3 Findings and assessment of damages for pain and suffering and loss of amenity of life
AM.4 Summary
AN. Assessment of past medical expenses (Special Damages)
AO. Assessment of Allen's past economic loss
AO.1 Allen's claim
AO.2 Legal principles
AO.3 Employment history prior to the accident in January 2017
AO.4 Evidence from employment, tax records and workers compensation
AO.5 Employment history post the accident in January 2017
AO.6 Findings on economic loss
AP. Interest on Allen's past loss of earnings
AQ. Assessment of Allen's past loss of superannuation and interest
AR. Assessment of Allen's future loss of earnings
AR.1 Allen's claim
AR.2 Findings and assessment on future loss of earnings
AS. Assessment of Allen's future loss of superannuation
AT. Assessment of Allen's past gratuitous services claim
AT.1 Allen's claim
AT.2 Legal principles
AT.3 Findings and assessment
AU. Assessment of Allen's interest on past gratuitous services
AV. Assessment of Allen's future assistance costs
AV.1 Allen's claim
AV.2 Findings and assessment
AW. Assessment of Allen's future medical treatment/expenses
AW.1 Allen's claim
AW.2 Legal principles
AW.3 Allen's evidence
AW.4 Findings and assessment
AW.5 Summary
AX. Total quantum of damages
AY. Conclusion
GLOSSARY OF SCAFFOLD AND MEDICAL TERMS
ANNEXURE 1 - PHOTOGRAPHS OF THE SCAFFOLD
Annexure 1A - Exhibit 1.9.15.1 - Photograph depicting the west side walkway (9 January 2017) as marked up by Allen:
Annexure 1B - Exhibit 1.9.4 - Photograph showing southern side of the scaffolding (25 October 2016)
Annexure 1C - Exhibit 4.3.06 - Photograph of western elevation taken by Alf Vitale 19 December 2016
Annexure 1D - Exhibit 1.9.12 - Photograph of the scaffolding on the west side (9 January 2017)
Annexure 1E - Exhibit 1.9.12.1 - Photograph from page 495 of Allen's book of documents as marked up by Stokes showing various dimensions of the scaffolding on the western side
COMMISSIONER COLLINS:
A. Overview
Robert Paul Allen (Allen) alleges that on 9 January 2017, he walked into a scaffold tube that protruded into a scaffold walkway at head height. At the time, Allen was working as a concrete form worker on the redevelopment of the Claremont Football Ground, located at Davies Road, Claremont. The three central issues in the action were, first, whether the accident occurred in the circumstances alleged, secondly, the scope of the defendants' duty to Allen and whether that was breached and, thirdly, Allen's damages.
B. Background
Merym Pty Ltd t/as EMCO Building (EMCO) was engaged to perform the redevelopment works at the Claremont Football Ground (Claremont Football Ground and/or the site). It was the head contractor at the building site (ts 29). EMCO contracted with Allen's employer, Chan Corporation, in relation to the provision of concrete works at the site (ts 35, ts 463).
In March 2019, Allen commenced an action against EMCO alleging that he damaged his right elbow when he walked into a tube protruding into the second level of the scaffold walkway (protruding tube) on the south side of the building site on 9 January 2017 (Accident). Allen claimed that EMCO breached the duties it owed him as the head contractor responsible for construction at the building site and breached its duty as occupier of the building site under the Occupiers' Liability Act1985 (WA) (OLA).
EMCO accepted that it owed Allen a duty as head contractor at the building site and as occupier of the building site, but denied breaching those duties at common law or under the OLA.
Allen later amended his writ of summons to name AXS Access Management Pty Ltd (AXS), and Paul Hough and Gaetana Fucile t/as Unique Scaffolding (Unique Scaffolding), as defendants and alleged negligence against them. As to these parties, EMCO had engaged AXS to supply the scaffolding that was used during the redevelopment of the Claremont Football Ground. AXS in turn engaged Unique Scaffolding to erect the scaffold.
I presided over the trial of this action between 7 and 15 February 2022.
At the end of the final sitting day on 15 February 2022, following the conclusion of evidence in the proceeding and after the parties had closed their cases, AXS's counsel applied for leave to amend AXS's statement of claim in the contribution and/or indemnity proceedings against Unique Scaffolding. For the reasons given in Allen v Merym Pty Ltd t/as EMCO Building [2022] WADC 24, I refused AXS's application.
In April 2022, some two months after the judgment was reserved, Allen brought an application for further and better discovery, which I heard on 5 May 2022. I granted the application with reasons given in Allen v Merym Pty Ltd t/as EMCO Building [No 2] [2022] WADC 45. Following the conclusion of Allen's application, orders were made requiring EMCO to give discovery of certain documents and a timetable was agreed.
On 12 August 2022, the parties gave closing addresses, which supplemented their written closing submissions.
Coming back to the trial in February 2022, on the first day of the trial, I was provided with a consolidated list of witnesses who would attend the hearing. The list was comprised of 10 experts and 10 lay witnesses. Ultimately, 12 witnesses gave evidence, comprising 8 lay witnesses and 4 experts.
The court was informed that the parties had conferred about an agreed list of issues but had not reached an agreement on that list (ts 5). In any event, the parties did not provide the court with an agreed list of issues. The parties had not conferred about a chronology (ts 5).
Allen gave evidence at the hearing of the matter. He also called two lay witnesses: Eric Carl Wohlan, Chan Corporation's site supervisor and his son Kyle Wohlan, also a Chan Corporation employee who was working with Allen on the morning of the Accident (ts 116, ts 134, ts 241, ts 426). For ease of reference, and intending no disrespect, I refer to the witnesses generally by their last names, and to Eric and Kyle by their first names.
At the start of the trial, Allen proposed calling seven doctors in support of his medical condition, diagnosis, treatment and prognosis: Allen Opening Submissions, par 34. Those doctors were:
(a)Dr Philip Calderbank (Allen's general practitioner (GP));
(b)Dr Philip Hardcastle (a consultant orthopaedic surgeon);
(c)Dr Andrew Fairhurst (a medico-legal consultant);
(d)Dr Grant Booth (Allen's treating orthopaedic surgeon);
(e)Dr Jeff Ecker (an orthopaedic surgeon);
(f)Dr Paul Khoo (an orthopaedic surgeon); and
(g)Dr Athula Karu (Allen's cardiologist).
For ease of reference, and intending no disrespect, I refer to all of the doctors by the designation 'Dr', and not Mr (which is often used by surgeons). No witness stood on ceremony and each was content to be referred to as Doctor.
As the trial developed, Allen led evidence from three doctors, with materials from two other doctors tendered by consent. I say more about these expert witnesses below.
Allen also called Rowan Stokes, who was a practising chartered structural and civil engineer and registered builder, in relation to the condition of the scaffold and the relevant parts of the scaffold (ts 307). Stokes prepared a report dated 4 November 2021.
In these reasons, scaffold ties, ties, scaffold tubes and tie offs, are used interchangeably.
EMCO called two witnesses. First, Luke Anthony Morrison, who was EMCO's compliance officer (ts 454). Secondly, Derrick Campbell, who was EMCO's site manager at the time of the Accident (ts 462).
AXS also called two witnesses. The first was Alfredo Vitale, who was a scaffolding inspector and supervisor with AXS (ts 550). The second was Scott Vivian-Williams, who was the managing director of AXS (ts 596).
Unique Scaffolding called one witness, Paul William Gerard Hough, a director of Unique Scaffolding with the day-to-day running of the business (ts 636).
As to Stokes' evidence, EMCO objected to the admissibility of his report: EMCO Opening Submissions, par 35. As a result, I heard an application about the admissibility of Stokes' report. I determined that Stokes met the criteria to give an opinion as set out in his report (ts 291 - ts 292). I say more about this below.
The parties tendered a bundle of medical reports and records without objection. Counsel agreed that the statements contained in those reports and records could be treated as evidence of the truth of the facts contained therein, subject to submissions as to weight and specific issues identified in cross-examination (ts 6 - ts 9). I have proceeded on that basis unless expressly stated otherwise.
The parties provided the court with numerous materials, including written:
(a)opening submissions by Allen (7 January 2022), EMCO (11 January 2022), AXS (28 January 2022) and Unique Scaffolding (13 January 2022);
(b)closing submissions by Allen (11 March 2022), EMCO (11 March 2022), AXS (11 March 2022) and Unique Scaffolding (11 March 2022); and
(c)submissions in reply by Allen (8 April 2022), EMCO (8 April 2022), AXS (8 April 2022) and Unique Scaffolding (31 March 2022).
Allen also filed damages schedules with the court dated 28 January and 3 August 2022.
For the reasons that follow, I find in favour of Allen and award damages in the sum of $554,115, as set out below.
C. Issues for determination
In opening, counsel for Allen submitted that there were two central issues for Allen to prove at trial. First, whether there was a 'protruding scaffold tie as at 9 January 2017'. And secondly, whether Allen's 'head hit the scaffold tie and caused him to suffer injury to his right arm'. Allen's counsel submitted that if he did not prove that there was a 'protruding scaffold tie', his client's claim would fail (ts 26 ‑ ts 27). A similar submission was made in closing: Allen Closing Submissions (Allen CS), par 32.
Depending on the outcome of those questions, the next main issues to be determined concerned the scope of EMCO's duty to Allen and whether EMCO had breached that duty. Similar questions arose with respect to AXS and Unique Scaffolding.
As to EMCO's liability to Allen, Allen's counsel submitted that EMCO was liable to Allen because it was the head contractor and occupier of the building site where Allen was injured (ts 29).
As to AXS's liability to Allen, Allen's counsel submitted that AXS had a duty to ensure that the scaffold was constructed without hazards which created foreseeable risks of injury. Allen's counsel submitted that that duty involved a continuing obligation to inspect the scaffold to ensure that it was safe (ts 29). That obligation was said to arise both at common law, and by virtue of the contract between AXS and Unique Scaffolding (ts 30 - ts 31).
As to Unique Scaffolding's liability to Allen, Allen's counsel submitted that because Unique Scaffolding erected the scaffold with a tie protruding into the scaffold walkway, it created a risk of injury to invitees to the site, including contractors, subcontractors and employees of those contractors (ts 31).
Turning then to the submissions for the defendants, they shared common ground with respect to three matters. First, each of the defendants accepted that they owed Allen a duty of care, though the content of the duty differed. Secondly, each of the defendants put in issue the circumstances of the Accident and in particular, whether Allen hit his head (helmet) on a tie protruding into the scaffold walkway as alleged. Thirdly, the defendants submitted that if there were a finding of negligence on one or more of them, then Allen was contributorily negligent in failing to keep a proper lookout.
Counsel for EMCO opened following Allen's opening. EMCO's counsel submitted that, as to liability, EMCO was not a scaffold expert. Insofar as there was a defect in the erected scaffold, that defect was the responsibility of AXS and/or its subcontractor, Unique Scaffolding (ts 36). Similarly, EMCO's counsel submitted that once the scaffold was erected, if there was anything wrong with it or it was dangerous, the responsibility for identification and rectification of any defects lay with AXS and/or Unique Scaffolding (ts 36): the principal reason for this was that they were the 'specialist scaffolding contractors' (ts 36).
EMCO's counsel accepted that his client owed Allen a duty of care under the OLA, but stated that the OLA prescribed the extent of the duty, which was limited by s 5 (ts 39). In exchanges with the bench, EMCO's counsel summarised his client's duty in the following terms (ts 41):
SHELDRICK, MR: It's a duty to take reasonable care in respect of dangers that are due to the state of the premises or something that is done or not done on the premises. And for which the 1st defendant is by law responsible. That's what the Occupiers' Liability Act says.
EMCO's counsel submitted that in the present matter, his client discharged its obligations to Allen under the OLA by engaging a competent contractor (being AXS) (ts 42 - ts 43). EMCO's counsel supported his submission by reference to the decision of Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 (Leighton Contractors), particularly [21] and [59].
EMCO denied the existence of the protruding tie but submitted that if it were found that there was a protruding tie, then pursuant to s 5F of the Civil Liability Act 2002 (WA) (CLA), EMCO was not under a duty to warn Allen of the protruding tie because of s 5N - that is, because it was an obvious risk of which Allen was presumed to be aware. As EMCO had not pleaded that defence, EMCO's counsel informed the court that he proposed preparing a minute of an amended defence for the court's consideration (ts 45). EMCO did not provide the court with an amended defence and so is not able to rely on that defence.
As to EMCO's claim against AXS in the contribution proceedings, EMCO's counsel put its case three ways: first, on the basis of an indemnity relying on two contractual provisions; secondly, on the basis of damages for breach of contract; and thirdly, on the basis of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act1947 (WA) (Contribution Act) (ts 45).
As to EMCO's claim against Unique Scaffolding, EMCO's counsel submitted that its case was limited to the Contribution Act (ts 45). EMCO's counsel informed the court that, even though it had pleaded a claim in contract against Unique Scaffolding, it did not maintain that claim as there was 'no contract' between EMCO and Unique Scaffolding (ts 45).
Counsel for AXS opened following EMCO's opening. AXS's counsel accepted that his client owed a duty of care to Allen. AXS contended that it did not breach the duty it owed Allen. Further, AXS's counsel submitted that it discharged its duty of care by contracting with Unique Scaffolding for the erection of the scaffold and by engaging a scaffold inspector to inspect the scaffold from time to time (ts 48 - ts 49).
As to AXS's liability to EMCO should Allen's claim succeed, AXS's counsel submitted, in summary, that the contract between it and EMCO did not, on a proper reading, give rise to a liability on the part of AXS. This was because the relevant contractual provision had no application on the facts of the case (ts 50).
As to AXS's liability to Unique Scaffolding should Allen's claim succeed, AXS's counsel submitted that the contract between it and Unique Scaffolding contained a provision which was very broad and provided AXS with an indemnity with respect to its potential liability to Allen (ts 50 - ts 51). In addition to this, AXS's counsel submitted that it had a tortious claim under the Contribution Act should it fail in the above contractual claim against Unique Scaffolding (ts 51).
Counsel for Unique Scaffolding opened last. AXS's counsel accepted that his client owed Allen a duty of care (ts 52). That duty was as follows: 'to take reasonably practicable steps to ensure that [Allen] wasn't exposed to foreseeable risk of injury as a consequence of the scaffold that it erected' (ts 52). However, Unique Scaffolding put in issue whether there was a protruding tie in the scaffold walkway at the time of the Accident, as alleged (ts 51).
As to the contractual claims against Unique Scaffolding, Unique Scaffolding's counsel submitted that, in effect, the main issue involved the proper interpretation of the relevant clauses of the contract (ts 52).
As to the contribution proceedings between the parties, counsel for Unique Scaffolding submitted that the issue fell to be determined in the 'ordinary tortious way', noting that if Allen failed to establish liability, that the contribution claims against Unique Scaffolding would fall away (ts 52 - ts 53).
Having regard to the parties' pleadings and oral and written closing submissions, the issues that arise for determination are as follows:
(a)What occurred on 9 January 2017?
(b)What injuries did Allen sustain in the accident?
(c)What symptoms did Allen experience on and after 9 January 2017?
(d)What was Allen's pre-accident medical condition and lifestyle?
(e)Did EMCO owe a duty of care to Allen; if so, what was that duty of care, and if a duty was owed, did EMCO breach that duty?
(f)Did AXS owe a duty of care to Allen; if so, what was that duty of care, and if a duty was owed, did AXS breach that duty?
(g)Did Unique Scaffolding owe a duty of care to Allen; if so, what was that duty of care, and if a duty was owed, did Unique Scaffolding breach that duty?
(h)If one or more of EMCO, AXS or Unique Scaffolding breached its duty of care to Allen, did one or more of their breaches cause Allen's injuries?
(i)How should liability be apportioned between the defendants?
(j)Was Allen also negligent and if so, how is liability to be apportioned?
(k)What quantum of damages is Allen entitled to?
The parties provided the court with a glossary of terms in respect of the scaffold and various medical issues. A copy of the glossary is annexed to the judgment.
In this decision, I generally refer to the scaffold as the erected structure whereas I refer to scaffolding to describe the components used to construct the scaffold.
D. Approach to evidence
D.1 Generally
During his oral opening address, EMCO's counsel informed the court that the key factual issue between the parties involved whether there was a tie protruding 60 cm - 80 cm into the scaffold walkway at the time of the Accident. EMCO's counsel informed the court that the issue did not turn on Allen's honesty, but rather, the reliability of Allen's evidence (ts 46 - ts 47). This position was common to all of the defendants.
At trial there was a conflict in the evidence of Allen, Eric and Kyle on the one hand, and Campbell, Vitale and Hough on the other, as to the existence of a protruding scaffold tie on the second level of the walkway on the south side of the site on the date of the Accident. Counsel for Unique Scaffolding summarised the dispute in his closing submissions in the following way: 'there are two diametrically opposed counts of evidence and to find for one will require the rejection of the other' (ts 806).
It was common ground at the trial that the resolution of the conflict in the evidence involved credibility findings with respect to the witnesses. Although the defendants put Allen's credibility in issue, this was because of the reliability and accuracy of his evidence. The defendants disavowed any attack on Allen's honesty.
In Hamilton v Pharmacy Board of Australia [No 2][2022] WASCA 155, the court (Fraser AJA, with whom Buss P & Mazza JA agreed) at [34] explained how the acceptance of a conflicting version of events was not a sufficient basis to justify a finding of dishonesty:
The arguments advanced by Ms Hamilton's counsel accorded with those particulars. Counsel argued that there is an important distinction between not accepting a witness's evidence and a finding of dishonesty (Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd Combined Projects (Arncliffe) Pty Ltd), such a finding should be made carefully (Smith v NSW Bar Association), and it should not be based upon 'inexact proofs, indefinite testimony, or indirect inferences'. It is a matter of ordinary experience that human memory is fallible (Watson v Foxman), and simple acceptance of a conflicting version of events is an insufficient basis for making a finding of dishonesty (Royal Guardian Mortgage Management Pty Ltd v Nguyen at [279] (Ward JA)).
(citations omitted; emphasis added in italics)
The evidence in this case concerns events that occurred, and practices that were said to have been followed, in 2016 and 2017, being about five or six years ago.
Against that background it is unsurprising that Allen's counsel sought to emphasise the importance of contemporaneous documents in resolving conflicts in the evidence: Allen CS, pars 33 - 35.
The approach to resolving conflicts in written and oral testimony has been the subject of recent decisions in this State including: DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust trading as DM Civil v Karara Mining Ltd [No 6] [2021] WASC 410 [56] - [57] (Vaughan J); Girgis v Poliwka [No 6] [2019] WASC 230 [116] - [123] (Vaughan J); Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5 (Belgravia Nominees) [26] (Tottle J).
For convenience, I have set out below some of the principles contained in Tottle J's decision in Belgravia Nominees at [26] that are relevant to the present matter:
(b)The need for careful scrutiny may be greater where the person giving evidence of the conversations has a self-interest.
…
(f)The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case. Reliance on contemporaneous documents is preferable in cases involving events which occurred long before the litigation. Often the only safe course in such cases is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities and the contemporaneous documents. Documents will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation, this is particularly so when the documents are accepted as genuine and were prepared by a person with no reason to misstate the facts in the documents.
(g)Contemporaneous statements and documents are likely to be a more accurate reflection of events than later statements when false memories can intrude, especially when the person recalling events has tried to assemble recollections logically so that what happened can have some rational explanation in the person's mind - memories are fluid and malleable being constantly rewritten whenever they are retrieved.
(h)The court must be alive to reality that the spoken word is capable of bearing different and potentially opposed meanings depending on subtle differences of nuance and emphasis. An appreciation of the significance of nuance and emphasis must necessarily be considerably diminished if there is a significant elapse of time between the date when the conversation took place and the hearing at which the evidence of that conversation is given.
(i)The court must recognise that:
Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.
(citations omitted)
D.2 Witnesses for Allen
Evidence was given by Allen, Eric and Kyle in support of Allen's claim as to the circumstances of the Accident.
D.3 Paul Allen
Allen gave evidence about working on the redevelopment of the Claremont Football Ground during 2016 and early 2017 and the injury he sustained on 9 January 2017. At the time, he was employed by Chan Corporation. Allen explained that during 2016, he worked for Chan Corporation as a concrete form worker on the redevelopment at the building site. He said that Chan Corporation had between 12 and 20 people working on the site. Eric was his supervisor, but he was on leave over the Christmas period. Frank Paulo (Paulo) took over the role and was his supervisor at the time of the Accident (ts 66 - ts 67). Allen said that he generally worked Monday to Saturday (ts 113).
Allen explained the circumstances of the Accident on 9 January 2017. His evidence was corroborated by Kyle. Immediately after the Accident, Allen went to the Sir Charles Gairdner Hospital for treatment. The hospital's medical records are consistent with Allen's explanation of the Accident.
I accept that Allen was an honest and credible witness. I have generally accepted his evidence.
D.4 Eric Wohlan
At the time of giving his evidence, Eric was working as a concrete form worker for Allstyle Concrete, working 'on the tools' (ts 241). His role involved forming up concrete for multistorey buildings, which involved lots of carpentry and scaffolding so as to form the concrete - the work involved 'lots of manual labour' (ts 241).
As to his background, Eric commenced work with Chan Corporation in 2005 as a concrete form worker (ts 242). In 2013, Eric became a supervisor with Chan Corporation. He was the supervisor on the redevelopment of the Claremont Football Ground and worked on that project during, relevantly, the period between October 2016 and January 2017 (ts 242). However, he went on leave from Christmas 2016 until Monday 16 January 2017 when he returned to the site (ts 242).
I accept that Eric was an honest and credible witness and have generally accepted his evidence. His evidence was broadly consistent with Allen's evidence. However, in circumstances where Eric did not witness the Accident, I have placed limited weight on his evidence.
D.5 Kyle Wohlan
At the time of the hearing, Kyle was a construction manager for Allstyle Concrete, where he had been working for three years (ts 427).
In his evidence, Kyle said that on the day of the Accident, he was at the site working for Chan Corporation as a supervisor (ts 427, ts 437). It was the first day back from holidays and he was 'filling in' for his father, Eric, until Eric came back from his holidays (ts 427, ts 438).
Kyle gave evidence of his encounter with Allen immediately after the Accident occurred, about inspecting the protruding scaffold tie which Allen had hit his head on, and the state or condition of the scaffold walkways. Kyle's evidence was largely unchallenged on the first two issues. His evidence corroborated Allen's evidence as to the circumstances of the Accident and the existence of the scaffold tie protruding into the scaffold walkway on the south side of the site.
I accept that Kyle was an honest witness and, subject to one issue, that his evidence was reliable.
D.6 Witnesses for EMCO, AXS and Unique Scaffolding
Morrison, Campbell, Vitale, Vivian-Williams and Hough gave evidence for the defendants.
D.7 Luke Morrison
Morrison was EMCO's compliance officer (ts 455). He had worked for EMCO since August 2014 (ts 454). By way of background, Morrison said that he had a Bachelor of Applied Science in Architecture and a Masters in Architecture and Project Management (ts 455).
Morrison gave evidence about how he had located between 1,000 to 2,000 photographs of the site on EMCO's computer system which he provided to EMCO's solicitors. Morrison was shown EMCO's book of documents and asked to explain how the photographs came to be included in that book. Morrison explained that he selected a time period which identified about 50 photographs of the site. The period was approximately August 2016 to March 2017 (ts 458 ‑ ts 459). Morrison did not say how or why he chose the 50 or so photographs, other than by reference to the above date range and the site. He also said that he did not review the properties of all of the other photographs (ts 459).
Allen included some of the 50 or so photographs in his book of documents, several of which he tendered as exhibits.
Morrison's evidence was largely limited to the above matters. I accept that Morrison was an honest and credible witness.
Nearly two months after judgment had been reserved, Allen made an application for further and better discovery in relation to the 1,000 to 2,000 photographs which Morrison had referred to in his evidence. I presided over Allen's application on 5 May 2022. As set out above, I granted the application with reasons given in Allen v Merym Pty Ltd t/as EMCO Building [No 2] [2022] WADC 45. Following the conclusion of Allen's application, orders were made requiring EMCO to give discovery of certain documents. Ultimately, the matter was not taken further.
D.8 Derrick Campbell
In his evidence, Campbell said that he had been employed by EMCO since about 2001 (about 21 years). Prior to that, Campbell had worked in the construction industry as a site manager for Delcon Constructions. Campbell was a qualified carpenter/cabinetmaker (ts 462). He was not a qualified scaffolder (ts 467). He said that no‑one from EMCO had a scaffolding licence (ts 467).
Campbell was EMCO's site manager since the commencement of the project in 2014/15 and continued in that role until the conclusion of the project in about June 2017 (ts 462 - ts 463).
As EMCO's site manager, Campbell's role included the supervision of the various trades that came onto the site. He said that his role involved operating the site in a safe way, so that if he observed something that was dangerous or hazardous, then he would take steps to bring it to the attention of others on site and if appropriate, close off the relevant area (ts 462 - ts 463).
Campbell's evidence in this regard was uncontroversial and I accept it.
Campbell gave evidence to the effect that he met Allen shortly after the Accident on 9 January 2017 and thereafter went and inspected the Accident scene. He did not photograph the scene of the Accident or call Vitale to arrange an inspection of the scaffold. He could not remember meeting Allen two days after the Accident on 11 January 2017.
I have accepted some parts of Campbell's evidence, because it was corroborated by another witness, or contemporaneous materials or because it was plausible and/or consistent with objectively established facts. However, I do have some concerns about Campbell's credibility. I also have concerns about the reliability of Campbell's evidence. From my observations during the trial, Campbell had little recollection of the events that took place during 2016 or 2017 at the site. This was not surprising, given that the events in question occurred more than six years ago.
In the absence of a positive finding, I should not be taken as having accepted Campbell's evidence.
D.9 Alfredo Vitale evidence
Vitale was employed by AXS. He said that AXS erected and dismantled scaffolding on commercial sites - typically multistorey developments 'all over the place' (ts 551). He had been employed by AXS for eight years. His current role was as a superintendent. He explained that if AXS was erecting or dismantling scaffolding, he would supervise about 25 AXS employees to make sure that they were doing everything in a 'safe and correct way' (ts 551 - ts 552).
Prior to working with AXS, Vitale said that he had his own scaffolding business, which erected and dismantled scaffolds on construction sites. Vitale had worked in the scaffolding industry for about 30 years (ts 552 - ts 553).
Vitale's evidence in this regard was uncontroversial and I accept it.
In broad terms, Vitale said that he attended the site in October 2016 and undertook an inspection of the scaffold. He used a checklist to record matters that required attention. He identified various issues with the scaffold that required rectification, including scaffold ties that protruded into the walkways on the western elevation in excess of the permitted Australian Standard. Vitale said that those scaffold ties were rectified in the ordinary course. He recalled again attending the site in late December 2016, but was unable to locate a copy of his inspection report. Vitale could not recall attending the site thereafter.
Vitale gave his evidence in a refreshingly candid manner. He readily accepted that the events in question happened more than six years ago and that this was one of the reasons why he had some difficulty remembering details about his involvement in the redevelopment of the site.
I accept that Vitale was an honest witness. Subject to the need for caution because of the elapse of time, I generally found Vitale's evidence to be reliable.
D.10 Scott Vivian-Williams
Vivian-Williams was the managing director of AXS. He gave evidence to the effect that he started AXS in 2012 and had been in the scaffolding industry for about 40 years (ts 596).
Vivian-Williams explained that AXS provided scaffolding to the construction industry. It also employed scaffolders to erect and dismantle scaffolding. However, back in 2016/2017, AXS did not provider scaffolders, the direct labour, to erect or dismantle scaffolding. AXS relied on labour service contracts to provide the necessary labour (ts 596 - ts 597).
I accept that Vivian-Williams was an honest and credible witness.
D.11 Paul Hough
Unique Scaffolding carried on the business of providing labour to erect, dismantle and modify scaffolding on commercial building sites in Western Australia: Unique Scaffolding Opening Submissions, par 7. Hough gave evidence to the effect that he was one of two directors of Unique Scaffolding. The other was his wife, Gaetana Nicole Hough (also referred to as Gaetana Fucile). Unique Scaffolding had been in operation for about 15 years and he had been a director since its inception. He worked full time at Unique Scaffolding running the business on a day-to-day basis. This involved administrative tasks such as invoicing and the like. He also said that he 'occasionally' spent time 'on the tools', supervising, erecting, dismantling and modifying scaffolding, but not as much as previously (ts 636 - ts 637).
Ms Hough was also involved in the Unique Scaffolding business. Hough explained that Ms Hough dealt with some administrative tasks, such as staff wages and hiring of staff (ts 636 - ts 637).
Prior to running Unique Scaffolding, Hough worked as a scaffolder at various places of employment, including at Alcoa's mine sites (ts 636). In total, Hough said that he had worked as a scaffolder for about 21 years (ts 637).
Hough was asked about his qualifications as a scaffolder. Hough explained that before he could work as a scaffolder, he needed to obtain his 'ticket'. Tickets were, in effect, certificates of competency, namely: basic, intermediate and advanced. Hough held all three scaffolding certificates (ts 637).
Hough's evidence in this regard was uncontroversial and I accept it.
By way of summary, Hough gave evidence about his role and involvement at the site and about attending the site after the Accident. Hough was not on site on the day of the Accident. Having watched Hough give his evidence closely, I am not convinced that he could recall his visits to the site during 2016 and 2017. Much of the evidence he gave was about his usual practice, when asked about his recollection of the material events in question.
I have accepted some of Hough's evidence, because it was generally supported by contemporaneous materials or because it was plausible and/or consistent with objectively established facts or was corroborated by another witness. However, I have some concerns about Hough's credibility and reliability.
E. Overview of the case run at trial
It was not disputed at the trial that that there were no witnesses to the Accident on 9 January 2017, and nor was the Accident scene photographed by anyone. Further, it was uncontroversial that the Accident allegedly occurred on the second level of the scaffold on the south side of the site. Much of the evidence at the hearing concerned other parts of the site, in particular, the scaffold on the western side of the site.
The scaffold walkway in question was 1.2 m wide and 2 m high. Evidence was led that scaffold ties were customarily attached to the underside of a platform at a height of about 1.9 m. In contrast, the scaffold tie that Allen said he hit was at a height of 1.71 m or thereabouts.
I observe that Allen's counsel appeared to run a case that involved three main evidentiary strands as follows:
(a)direct evidence in support of the Accident;
(b)Google images in support of the Accident; and
(c) photographs and evidence as to the condition of other parts of the site in support of the Accident,
even though this was not expressly articulated.
During his opening address, Allen's counsel submitted that Allen hit his head on a scaffold tie protruding into the second level walkway on the south side of the site on 9 January 2017. Allen was, at the time, walking east to west (ts 25). Allen sought to prove his case by his direct evidence, together with the secondary evidence of Eric and Kyle by way of corroboration.
Each of the defendants put in issue the circumstances of the Accident and in particular, whether Allen hit his head (helmet) on a tie protruding into the walkway on the south side of the site as alleged. Contradictory evidence principally came from Campbell, Vitale and Hough.
As to the second evidentiary strand, during his opening address, Allen's counsel referred to what appeared to be a screenshot of a Google image/photograph allegedly taken in October 2016 which recorded the south side of the building site at 2 Davies Road, Claremont (Google image). Counsel submitted that the Google image was a 'photo taken by Google Maps' in October 2016 and sought to use the image (MFI 2, page 481) and progressively enlarged images of that image (MFI 2, pages 482 - 484), for several purposes, which I expand on below at [408]. Ultimately the Google images were not tendered as exhibits but marked for identification as an aid to the court (MFI 2) (ts 92 - ts 94).
As to the third evidentiary strand, Allen's counsel sought to prove the condition of the second level of the walkway on the south side of the site by reference to the condition of the scaffold walkways on the western side of the site, both through witnesses and photographic evidence. During oral closing submissions, Allen's counsel submitted that because at one time, there were ties protruding into the scaffold walkways on the western side, there 'must be' scaffold ties that protruded into the southern walkway: it was a 'logical inference' (ts 907).
Allen referred to photographic evidence of the site produced during these proceedings. It was not disputed that the generic photographs were taken contemporaneously and showed various parts of the site between October 2016 and January 2017. They were not however, photographs taken because of Allen's Accident or recording the scene of the Accident.
I say more about the second and third evidentiary strands at the conclusion of the lay evidence.
F. Facts not in issue
During the trial, it became evident that there were matters that were either uncontroversial and/or were not in dispute to any significant degree. Some of these related to the medical evidence. For convenience, I have kept them together and refer to them later in the judgment when dealing with my findings as to Allen's injuries.
In the circumstances, I make the following findings of fact.
By a document dated 19 July 2016, EMCO engaged AXS under a written agreement to provide all plant, material, labour and equipment to supply and erect all scaffolding requirements in relation to the redevelopment of the Claremont Football Ground (Scaffold Supply Agreement) (exhibit 3.1.1).
By documents dated 14 December 2015 and 29 September 2016, AXS engaged Unique Scaffolding to undertake scaffold works at the site (Scaffold Works Agreement) (exhibits 5.3 and 1.7.7).
Unique Scaffolding erected the scaffold, which ultimately reached a height of six levels (e.g. see Campbell ts 466).
Scaffold was erected at the site on three sides: north, west and south (also referred to as three elevations, being the south, the north and the western elevations).
The scaffold walkway on the south side of the site was 1.2 m wide with a height of 2 m between scaffold levels (e.g. see Hough, ts 641; Allen ts 123, ts 201).
If a scaffold tie protruded at 60 cm - 80 cm into the scaffold walkway on the south side at about head height, it was unlikely that that tie complied with the relevant Australian Standards (ts 622).
On Monday, 9 January 2017, Allen was injured at the site, damaging his right elbow (olecranon).
There were no witnesses to the Accident.
The scene of the Accident was not photographed by anyone. Accordingly, there were no photographs before the court that showed the location of the Accident site on the relevant date.
G. What happened on 9 January 2017 - the parties' pleadings
Allen alleged that on 9 January 2017:
(a)EMCO had control of the site and a duty to make the site a safe place of work;
(b)AXS and/or Unique Scaffolding had erected the scaffolding surrounding the building on the site;
(c)he had been working at the site for Chan Corporation for approximately 5 months;
(d)he was required to access a scaffold walkway located on level 2 of the southern side of the building in order to make his way to the western side of the building to strip formwork off concrete columns;
(e)prior to the material date, he had not accessed the walkway located on level 2 of the southern side of the building;
(f)he was wearing a sun visor and a hard hat;
(g)the walkway of the scaffold at level 2 had some areas of floor made from plywood and he was watching his step;
(h)he was walking along the walkway on level 2 of the scaffold when he collided with a 60 cm - 80 cm horizontal section of scaffold tubing that was protruding into the walkway;
(i)the section of protruding scaffold should have been removed so as not to pose a hazard to users of the walkway;
(j)the section of protruding scaffold was at a height that was just above the rim of his hard hat;
(k) the collision with the section of protruding scaffold knocked him off balance and he started to fall;
(l)he attempted to control his fall by grabbing hold of a vertical section of the scaffold with his right hand; and
(m)as he broke his fall with his right arm he felt a 'ripping' sensation at his right elbow and felt immediate pain in the right elbow: statement of claim (SOC), par 11.
Allen claimed that his injury was caused by the negligence of EMCO, and AXS and/or Unique Scaffolding, their employees, servants or agents.
The defendants deny the Accident occurred in the circumstances alleged. In the alternative, the defendants claim that Allen contributed to the Accident by failing to keep a proper lookout and was therefore, contributorily negligent.
H. Paul Allen's evidence
H.1 The circumstances of the Accident
During his evidence, Allen explained and I accept that on 9 January 2017, he arrived at the site at between 6.00 and 6.30 am. He said that he was working with Kyle. He said that Paulo, his supervisor at the time, instructed him and Kyle to go and 'strip the columns' on the 'west side of the building', which was his first job that morning (ts 67 - ts 68).
Allen explained that his reference to the west side of the building was a reference to the western side of the grandstand building. And similarly, Allen's reference to stripping the columns, was a reference to removing formwork from existing concrete columns. This involved taking timbers off the outside, and plywood, and removing screws that were holding the timbers together. He also confirmed that the relevant columns formed part of the main entrance on the western side of the main grandstand building (ts 68, ts 133 - ts 134). I accept Allen's evidence and find accordingly.
Allen explained that because Eric was on leave at the time, Paulo was Chan Corporation's site supervisor at the time of the Accident (e.g. ts 67). I accept this evidence.
Allen thought his last working day before Christmas was 22 December 2016, though he was not sure (ts 68).
Allen explained and I accept that after being told by Paulo to go and strip the formwork off the concrete columns on the western side of the grandstand building, he went and collected his 'tech gun'. He and Kyle had already collected the other tools that they needed to begin work. While Allen was collecting his tech gun, Kyle went ahead to commence work stripping the concrete columns on the west side (ts 68). I make that finding.
Allen explained and I accept and find that once he had collected his tech gun, he went to the south-east side of the building and entered the stairwell there and climbed to the second level of the scaffold on the south side where he entered the scaffold walkway and began heading in a westerly direction (ts 68 - ts 69).
Allen was asked to explain the condition of the scaffold walkway (ts 69). In response, Allen stated that:
And what did that look like?---As far as the scaffold itself it was quite - - -
Yes?---It was quite - quite bowed actually. It was - it was - the housekeeping on that site was very, very bad. There was scaffold boards still lying around. There was ledges on the scaffold. There was plywood. There was different levels of heights on the scaffold. There was - yeah, it was pretty, pretty average.
When you say the scaffold, what part of the scaffold?---On the walkway.
On the scaffold walkway?---That's right, yes.
Allen said that the scaffold walkway also contained 'pans', being in effect, excess scaffold boards that were used to make the scaffold walkway (ts 70).
Allen was shown a photograph depicting the west side walkway as at 9 January 2017 (exhibit 1.9.15, page 498). The photograph was one of several photographs discovered by EMCO and included in Allen's and EMCO's trial bundles.
Allen was asked about the photograph. In response, Allen said that what he saw in the photograph was very similar to what he saw when he entered the second floor walkway on the south side (ts 68, ts 70). He was asked 'what's similar?' In response, Allen stated:
Well, as far as all the stuff, all the - the pans laying - laying across, the ledges further down. You can see things actually going across the scaffold. There's old silicone tubes. There's rubbish. It was - it was very average, the condition of that walkway.
Unique Scaffolding's counsel objected to the tender of the photograph on the grounds of relevance (ts 70). While the parties accepted that the photograph was taken on 9 January 2017 (ts 73), the objection was as to the relevance of the evidence contained in the photograph.
In response, Allen's counsel told the court that one of the central issues in the case was where Allen was looking at the time of the Accident. This was said to be relevant to the defendants' claims of Allen's contributory negligence. Allen's counsel also said that the photograph was representative of the scaffold walkway on 9 January 2017 on the south side of the site (ts 71).
In the circumstances, I allowed the photograph to go into evidence. The photograph was obviously relevant to the circumstances of the Accident, the defendants' contributory negligence claims and Allen's response to those claims.
The photograph was also included in EMCO's book of documents at page 122 (being image 1,120). EMCO's Morrison explained how he selected about 50 photographs from between 1,000 to 2,000 photographs of the site. However, Morrison was not able to say who took this photograph (ts 458). An issue might have been raised concerning the provenance of the photograph under s 79C(2a) Evidence Act 1906 (WA), but none of the defendants raised an objection on that basis.
Allen was asked to identify the pans shown in the photograph (ts 70 - ts 74). Allen marked up the photograph in red pen (exhibit 1.9.15.1). The photograph is set out at Annexure 1A.
As may be seen, Allen marked up two pans. The first pan is a metal pan forming part of the middle of the scaffold walkway. The second pan is to the right of the scaffold walkway. In response to a question from his counsel, Allen said that 'that's what I call a pan. There it is. It's lay[ing] upside down on top of the scaffold walkway' (ts 74).
It was not disputed that the photograph pictured a scaffold walkway on the western side of the site, not the southern side, where Allen claims he hit a protruding tie (see e.g., ts 75).
Allen was asked to compare the condition of the scaffold walkway on the south side with the walkway shown in the photograph (ts 76). The following exchange occurred:
And what you saw on the southern walkway, what does it look like compared to that photograph?---Very similar. It was just - there was just junk everywhere. There was rubbish, there was pans, there was timbers, there was all sorts of stuff lying around.
Turning then to the circumstances of the Accident, Allen explained the Accident in the following way (ts 76 - ts 77):
Now, what were you wearing?---On the day I was wearing a - a hard hat, my boots, shorts and a long sleeve high vis shirt at the time.
Yes. And after you left the stairwell and entered the scaffold walkway, where were you looking?---When - when I was - started to walk on the walkway, is that the question?
Yes?---Yeah. Obviously I was watching where I was walking, because of the debris and the things that was on the - on the walkway. I was heading towards the - the west side.
And what happened?---Well, as I was walking towards the west side, like I said, I was probably somewhere in - in the middle of the walkway, just walking down, but watching where I was stepping because - trying to avoid the pans and everything. I - I was walking down and all of a sudden I just felt a big thump on my head and I lost - that's when I lost my balance, and I went to - as I went forward, I went to reach out and grab the handrail, and what I did, I scratched all my forearm on the concrete that dries on the handrails. It just - once it's been poured from upstairs, it sits on it and dries and it's there for a long time. They hardly ever clean them. Anyway, I scraped all my forearm and as I was going forward - you can't see on this one - my hand got stuck between the horizontal and the vertical, the standard and the handrail. There's like little clips that lock them together, and that's where my hand got stuck in between, like in the corner of that, and I went forward and landed on my right knee and that's when my - I heard my elbow go pop and snap.
Allen was challenged about his explanation of the Accident and falling forward. I found Allen's explanation as to the circumstances of the Accident plausible. His recollection was consistent with his dealings with Kyle and medical professionals, whom he spoke to shortly after the Accident. It was also consistent with Campbell's evidence, who said that he met and spoke to Allen shortly after the Accident. I accept Allen's evidence.
At the time of the Accident, Allen said that he was on the second floor (which was also referred to as the second level) (e.g. ts 68, ts 70 and ts 107). Allen said that prior to the Accident, he had not accessed 'that level 2 previously ... Because there was no concrete poured on that level, and I only go where the concrete is poured' (ts 126). I accept Allen's evidence.
In response to a question about where he was looking at the time of the Accident, Allen said (ts 79):
I was looking at the - at the walkway because of - because of the - the amount of rubble and pans and things and timber and whatever was on the - on the walkway, your Honour.
And what - what happened?---Well, as I - I proceeded to walk down the walkway watching where I was stepping, I hit my head with a hard thud, and that's what made me lose my balance. And then I reached out to grab the handrail and hence my arm got stuck.
After hitting the protruding tie, Allen examined it, as he explained in his evidence, which I accept (ts 80):
And after you grabbed the handrail, what happened?---After I grabbed it - well, after my hand got stuck in the handrail, I fell down onto my right knee. I sort of - I didn't know what happened because I was still in a bit of a - bit of a daze. I hit my head - well, my helmet quite hard and I didn't know what happened. So I untangled my hand for starters, I got back up and sort of got my faculties together and I looked up and I saw the stub tube sticking out, which is what I hit, your Honour.
What did it look like?---It was - it's a - it's a - it's a scaffold tie. It's very similar to the ones that you can see in the pictures. It's about two to three inches in diameter. This one was - had bits of grey and it was rusty and - because I remember as soon as I - I hit it, I remember looking - getting up and looking at it. I couldn't believe it. Yeah. Couldn't believe that it was there.
And where did it - where was the start of the scaffold tie?---It was - the - the scaffold tie? This one was actually underneath a beam, and it ran through the clip - so from the building, it had like a U clamp around the beam underneath - under the side of a beam and ran underneath it. It had clamps and ties and it had a clip onto the standard of the - to the standard of the scaffold.
And where was the other end of the scaffold tie?---The other end of the scaffold tie was in - in the walkway.
How far into the walkway was it?---Well, I - I would say it was at least halfway into the walkway.
(emphasis added)
Once he had regained himself, Allen said, and I accept, that he proceeded to the west side of the scaffold where Kyle was working because he knew that his arm was 'buggered' (ts 80). Allen said that:
And I just yelled out to him, 'Kyle, I think I've stuffed my arm up'. Probably not in those words, but I - he's climbed down - he climbed down the - the scaffold to come and see me and - and I told him what happened. And then we headed back to report to Frank.
How long after you've suffered your injury did you see Kyle?---It would have been within two minutes. Yeah, definitely.
And what did Kyle do?---Well, he'd come down - like I say, he'd come down from his level. He had a look at my arm and he goes, 'Yeah, it looks pretty buggered'. And I told him - then when I said, 'I've got to go and report it to Frank'. And then we started heading back to talk to Frank and as we walking through - back along the walkway, I pointed - - -
Allen said that he showed Kyle the protruding tie as he was walking back to report the incident to Paulo (Chan Corporation's supervisor ts 119). Allen's evidence was as follows (ts 81 - ts 82):
Okay. So when you got Kyle what did you do?---Well, when Kyle came down I - I obviously showed him my arm and it was all cut and my shirt was ripped. But my elbow - I couldn't pull my shirt back because I still had the ring on - on my - it was quite you wrist height and I couldn't get it past my swollen elbow. So in - in the end I had to cut it when I got down but that was - that was later. But when Kyle come down I just showed him and he goes, 'Yeah, looks like you've stuffed it.' And then I said, 'Well, we'd better go and tell Frank.' So we headed back from the west side of the scaffold around to the south side and as we're walking back I pointed out the tube that I hit to Kyle and then I ventured on to see Frank and report the - report the incident.
And what did you say to Kyle about the tube?---I said it's - it's head - I - what's it - I just couldn't believe it was there. I said, 'How come it's so far into the walkway?' That's - that was my first initial thought when I first saw it. I thought, 'What the - what the hell is this doing here? It shouldn't even be here.' But yeah, if - if it - if it's there or if it goes straight across it should be flagged - bunted, safety hazard should have been - should have been put up there. And especially the condition of the scaffold, this - I got upset about it because I - this has really stuffed up my life. And for an accident, yeah, I was there but for this tube to get out and do what it's done to me, I - - -
Allen got quite emotional while recalling the circumstances of the Accident (ts 82). It was obvious to me that the Accident had taken a toll on him. I accept Allen's evidence.
At various times during the parties' evidence, the protruding tie or scaffold tie was referred to by other terms. By way of example, Allen also referred to the protruding tie as a 'stub tube' (e.g. ts 106). He also said that they could be called 'tie rods'. Allen said that the purpose of the tie rods was to hold the scaffold to the building and to support and stabilise the scaffold (ts 106). This was not controversial.
Allen said that there were multiple ties protruding out different distances along the walkway on the south side of the site (ts 220 ‑ ts 221).
It was not disputed that there were workers from a number of different companies on the site. Allen gave evidence about these matters. The workers included electricians, plumbers, and crane operators, among others (ts 226).
Allen was not asked whether he spoke to Campbell on the day of the Accident.
In cross-examination, Allen said that at the time of the Accident, he was watching where he was walking (ts 128); Allen said that the walkway was not clear; he was looking down so as to avoid falling over something in the walkway; the reason he was looking down was because 'there was that much stuff on the ground. I had to watch where I was walking' (ts 129).
It was put to Allen in cross-examination that there were no plywood boards where his injury occurred, which Allen refuted (ts 130, ts 132).
It was put to Allen in cross-examination that the real reason that he fell was because he was not looking where he was walking. In response, Allen said that he was looking where he was going, but he did not expect 'something' being in the walkway at head height 'without any bunting, flagging or hazard warning' (ts 132).
Under cross-examination, Allen repeated that at the time of the Accident the scaffold walkway contained timbers, junk, rubbish (including concrete and bits of twigs and things) and pans (ts 158).
In cross-examination, Allen accepted that if the scaffold tie was protruding 60 cm - 80 cm into the scaffold walkway, then it would be protruding about halfway to two thirds across the walkway (ts 204).
In cross-examination, it was put to Allen that there was only plywood where columns were located and there were no columns on the scaffold on the south side of the site where the Accident occurred. Allen rejected that assertion as well (ts 204 - ts 205).
During cross-examination, Allen said that the scaffold changed and evolved 'all the time with the job' (ts 225). This included adding new levels to the scaffold, lowering levels of the scaffold, as well as removing scaffolding from the site and adding new scaffolding to the site. Allen was not challenged on that evidence (ts 225).
I accept and find that Allen showed Kyle the protruding tie when he was walking back to report the incident to Paulo. His evidence was consistent with Kyle's.
Having regard to Allen's evidence, I accept and find that he hit his head on a scaffold tie protruding 60 cm - 80 cm into the scaffold walkway on the second level of the scaffold on the south side of the site on 9 January 2017. I set out below my reasons for reaching this conclusion.
I find that the walkway on the second level of the south side of the site on 9 January 2017 contained material to one degree or another including scaffold boards, pans, timbers (including plywood) and other debris. I am not able to find how much material was on the walkway, but I accept Allen's evidence that exhibit 1.9.15.1 is representative of the material on the walkway at the time of the Accident. I make that finding because:
(a) I generally accept Allen's evidence on this matter. It was plausible and logical. He was not shaken during cross‑examination;
(b)Kyle gave similar evidence. I do not place a significant amount of weight on Kyle's evidence because he later gave evidence which appeared to differ to his earlier evidence; and
(c)Eric gave similar evidence. However, because his evidence concerned the condition of the walkway seven days after the Accident, I do not place any great weight on his evidence.
I also accept Allen's evidence and find that at the time of the Accident, that he was watching where he was walking. I make this finding because:
(a) I accept Allen's evidence that at the time of the Accident, he was trying to avoid stepping on material in the scaffold walkway;
(b)I have found that the walkway on the second level of the south side of the site on 9 January 2017 contained construction materials and debris including to one degree or another scaffold boards, pans, timbers (including plywood) and other debris;
(c)leaving aside the Christmas period where Campbell claims there was a site-wide clean-up, it was not materially in issue that there were scaffold boards, pans, timbers (including plywood) and other debris located on the scaffold walkways located on the western elevation with which Allen was more familiar (leaving aside whether the walkways were open or closed) (e.g. ts 483, exhibit 4.3.06; see also ts 529);
(d)Allen gave evidence to the effect that he had not accessed the scaffold walkway on the south side before (e.g. ts 199). In the circumstances, even if there was no material in that scaffold walkway, because Allen had not accessed that walkway previously, I accept that it would be natural for a person to look down at their feet from time to time while walking on metal planks to avoid trip hazards, and because of inconsistencies or unevenness in the walkway;
(e)I accept Allen's evidence and find that the Accident occurred closer to the south-eastern end of the scaffold walkway, rather than the western end. That evidence is consistent with entering the stairwell from the south-east side of the building as Allen explained. In effect, Allen walked into a scaffold tube shortly after leaving the stairwell on the south-east corner and entered the scaffold walkway;
(f)in context, Allen's evidence was to the effect that he was looking down at the time of the Accident, not necessarily at his feet, but more down than ahead. That was not surprising, given the evidence about the scaffold walkways generally; and
(g)he was wearing a hard hat and sun visor and at the same time, Allen would not be expected to be keeping a lookout for a tie protruding into the scaffold walkway at head height.
H.2 Allen attended Sir Charles Gairdner Hospital for treatment
Allen said that after reporting the incident to Paulo, he went to Sir Charles Gairdner Hospital (ts 83). There, he attended the Emergency Department (ED) and was ushered through to see a nurse and then a doctor. Allen told the doctor that he hit his head (helmet) on a scaffolding tie and lost his balance (ts 83).
Allen tendered the ED Medical Notes of Sir Charles Gairdner Hospital (exhibit 1.4.4, pages 220 and 221). The notes state - visit date: 9 January 2017; time: 9.01; and record that the ED doctor was Dr J Pocock. The notes record, among other matters (on page 220):
Fall at work this am. Brushed head against scaffold (wearing hard hat at the time). Spun around and tripped and fell, landing on right arm.
On the bottom left-hand corner of the note (page 220) is the heading 'Discharge Diagnosis'. Under that heading is written 'fractured arm'.
On page 221 of the notes is recorded, among other matters, the following:
Fell at work this morning. Hit head on scaffolding. Fell forward. Caught arm on metal cross bar. Injuries - right elbow.
Although the wording in the medical records is not precisely the same as Allen's oral testimony, the medical records are materially consistent with Allen's oral testimony. It would be surprising if the records were in exactly the same terms. I accept and find that they record what Allen told the medical professionals at the relevant time.
AS. Assessment of Allen's future loss of superannuation
Allen claimed future loss of superannuation (with the 15% Jongen v CSR deduction) assuming a high gross weekly income of $3,500 (less his retained earnings as a carer $329 (I note that Allen has mixed gross come with net income
)) with the superannuation reference rate separated into four periods to account for the incremental changes in the Australian Superannuation rate culminating in a rate of 12% as of 1 July 2025.The four periods changing were as follows, from:
(a)10.5% in the financial year 1.07.22 - 30.06.23;
(b)11% in the financial year 1.07.23 - 30.06.24;
(c)11.5% in the financial year 1.07.24 - 30.06.25; and
(d)12% for the financial year post 1 July 2025: Allen CS, par 187.
I calculate Allen's future loss of superannuation as follows:
7 May 2022 - 30 June 2023 (1 year)
$518 x 10.5% x 85% x 50.7 (6% multiplier for 1y)
$2,344 1 July 2023 - 30 June 2024 (1 year)
$518 x 11% x 85% x 47.8101 (6% multiplier, 1y deferred 1y)
$2,316 1 July 2024 - 30 June 2025 (1 year)
$518 x 11.5% x 85% x 45.123 (6% multiplier, 1y deferred for 2y)
$2,285 1 July 2025 - 30 June 2026 (1 year)
$518 x 12% x 85% x 42.588 (6% multiplier, 1y deferred for 3y)
$2,250 1 July 2026 - 30 June 2027 (1 year)
$518 x 12% x 85% x 40.1544 (6% multiplier, 1y deferred for 4y)
$2,121 1 July 2027 - 30 June 2028 (1 year)
$518 x 12% x 85% x 37.8729 (6% multiplier, 1y deferred for 5y)
$2,001 1 July 2028 - 30 June 2029 (1 year)
$518 x 12% x 85% x 35.7435 (6% multiplier, 1y deferred for 6y)
$1,888 Total $15,205 Applying 10% deduction for contingencies -$1,520 Total $13,685
As with the above calculation, I have used $518 net per week, being the difference between Allen's net weekly income of $1,374 and his weekly net income as a carer of $856 (at working 37.5 hours at $27.40 per hour).
AT. Assessment of Allen's past gratuitous services claim
AT.1 Allen's claim
In his particulars of damage dated 28 January 2022, Allen claimed past gratuitous services totalling $8,820 comprising:
(a)household duties (including cleaning, washing, shopping, preparing and cooking meals, working, ironing, including transport) provided by his partner and friends at 2 hours/day for 10 weeks from the date of the Accident = 140 hours;
(b)household duties provided by his partner, friends and family at 2 hours/day for two weeks from 3 May 2017 (when Dr Booth operated on his right elbow) = 28 hours; and
(c)household duties provided by his partner, friends and family at 2 hours/day for six weeks from 10 April 2018 (when Dr Ecker operated on his right elbow) = 84 hours;
Totalling 252 hours at $35 per hour = $8,820
In his closing submissions, Allen reduced his claim to $8,316, with some minor changes to the named household duties. Allen claimed the same number of hours, but changed the dollar amount to $33 'net per hour'. Allen did not explain the change.
The defendants denied Allen's claim and submitted that no award should be made for past gratuitous services. This was because:
(a)Allen's claim was not supported by evidence and Allen did not establish the need for the services because of his incapacity to look after himself: EMCO CS, pars 209 - 212;
(b)Allen did not lead evidence to support the finding sought: AXS CS, pars 174 - 175; and
(c)Allen did not lead evidence as to the costs incurred in providing the services; there was no evidence about the number of hours involved in the provision of the services or whether Allen undertook those household duties prior to the Accident; there was no evidence as to who provided the services to Allen: Unique Scaffolding, CS, pars 163 - 168.
AT.2 Legal principles
In Veitch v Connor, Gething DCJ summarised the relevant common law principles as follows:
266At common law, a plaintiff who, as a result of negligently caused injuries, becomes in need of services may recover damages for the value of the services rendered to her gratuitously by friends and family members. The compensation is for the plaintiff's incapacity to look after herself as demonstrated by the need for the services provided to her. 'The assessment of damages, though governed by principles which are calculated to provide the plaintiff with full and fair compensation in respect of the needs created by the tortious infliction of injury, is necessarily imprecise'. The award of damages under this head is subject to the over-riding requirement that the component attributable to this head 'will be scrutinised against the test that the total verdict must be reasonably proportionate to the magnitude of the loss suffered by the plaintiff'. In determining the compensation payable, the court first determines what services are required to satisfy the plaintiff's need resulting from the defendant's wrong and then determines the value of those services. 'The services must have been reasonably required by the plaintiff because of her physical condition attributable to the accident'.
(citations omitted)
Damages for gratuitous services are limited by s 12 and s 13 of the CLA.
Sections 12(1) and (2) provide:
12(1)This section deals with the awarding of damages for gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is sought by a member of the same household or family as the person.
12(2)No damages are to be awarded for the services if the services would have been, or would be, provided to the person even if the person had not suffered the personal injury.
Under s 12(3), the amount of the gratuitous services sought must exceed the relevant threshold (Amount B). Under s 13(3), the relevant amount of Amount B is $7,000: Government Gazette, 18 June 2021, page 2,525.
AT.3 Findings and assessment
I am not satisfied that an award for past gratuitous services should be made. I summarise my reasons for this conclusion as follows.
First, Allen claimed $8,316 at $33 net per hour for past personal assistance with cleaning, laundry, shopping, preparing and cooking meals, ironing and transport. In his evidence, Allen did not say that he performed these duties prior to the Accident or who ordinarily performed those duties. Other than a passing reference to cleaning, Allen did not give evidence about these matters after the Accident. Neither did he quantify the amount of time others spent on these duties.
Secondly, under s 12(2) of the CLA, damages for gratuitous services cannot be awarded if the services would have been provided to Allen in the ordinary course. i.e. even if Allen had not suffered the injury. In the absence of evidence, it is not possible to determine the nature or level of services that were provided to Allen because he was unable to look after himself or attend to his normal domestic duties by reason of his injury.
Separately, I note that if Allen was able to care for himself, albeit with some pain or discomfort, an entitlement to gratuitous services would not be made out. The pain and discomfort would be compensable under the heading non-pecuniary loss: see e.g. Newman v Nugent (1992) 12 WAR 119, 123 - 124. An entitlement to gratuitous services relies on Allen being unable to care for himself by reason of pain or discomfort.
Thirdly, Allen did not identify the individual(s) who allegedly provided the services, or when, or for how long, they did so post the Accident.
Fourthly, Allen did not support his claim by reference to any medical evidence as to his incapacity to look after himself or his need for domestic or nursing assistance by reason of his injury during the relevant periods claimed.
I observe that Allen appeared to be a reasonably stoic and independent person, who did not need a great deal of medical assistance post the Accident, as evidenced by his attendance on the various medical practitioners and others he saw at the relevant time (I have dealt with this in some detail under the heading of future medical treatment). That conduct was consistent with his conduct after the Accident, when upon injuring his right elbow, he spoke to Paulo and then went to Sir Charles Gairdner Hospital. The number of hours Allen claimed for the past personal assistance appears excessive in light of his independence.
I make no award for past gratuitous services. There is insufficient evidence to support a claim which would exceed the statutory threshold.
AU. Assessment of Allen's interest on past gratuitous services
Given my finding above, I do not accept this claim.
AV. Assessment of Allen's future assistance costs
AV.1 Allen's claim
In his particulars of damage dated 28 January 2022, Allen claimed future assistance costs totalling $44,648, comprising:
(a)cleaning expenses at $45 per week, totalling $45 x 686.9 = $30,910; and
(b)gardening expenses at $20 per week, totalling $20 x 686.9 = $13,738.
In his closing submissions, Allen changed the value of his claim, and claimed $31,941: par 195:
(a)cleaning expenses at $25 per week, totalling $25 x 709.8 = $17,745; and
(b)gardening expenses at $20 per week, totalling $20 x 709.8 = $14,196.
In his schedule of quantum filed 3 August 2022, Allen claimed $31,941 on the same basis. However, Allen referred to Dr Fairhurst's report of 18 January 2022 in support of his claim (exhibit 1.2.9).
The defendants denied Allen's claim and submitted that no award should be made for future assistance costs. This was because:
(a)Allen's claim was not supported by evidence: EMCO CS, par 227;
(b)Allen did not lead evidence to support the claimed expenses or as to why Allen could not perform those tasks himself or that he had performed those tasks prior to the Accident: AXS CS, pars 175 - 181;
(c)Allen did not lead evidence as to the costs of gardening or cleaning expenses, the number of hours that might be required or the extent to which Allen undertook those activities prior to the Accident: Unique Scaffolding, CS, par 170.
AV.2 Findings and assessment
In order to succeed in a claim for future assistance costs, it seems to me that Allen had to, at a minimum, demonstrate that:
(a)he performed the relevant activity prior to the Accident and the amount of time spent performing the activity;
(b)because of the Accident, he was unable to perform the same activity; and
(c)as a result of the Accident, he required the future assistance sought: Griffiths v Kerkemeyer (1977) 139 CLR 161.
The evidence before the court on this subject was limited.
Beginning with Allen's claim for cleaning expenses, Allen gave evidence to the effect that he currently paid for a cleaner to clean his home. Allen did not provide any receipts or evidence showing the expenditure incurred. And he did not say how much he paid the cleaner (ts 236 - ts 237). And he did not provide any bank records to show the amount he paid the cleaner.
Allen said that he could do the 'small stuff' but needed a cleaner because he could not scrub floors and he found it difficult to do the 'mopping and sweeping without pain' (ts 104).
Allen did not identify the cleaning activities that he did prior to the Accident or the amount of time he spent on those activities.
Allen referred to Dr Fairhurst's report of 18 January 2022 in support of the claim (exhibit 1.2.9). In that report, Dr Fairhurst was asked the following question (exhibit 1.2.9, pages 81 and 82):
8. Whether it is reasonable that my client employs a cleaner for the heavier household cleaning duties on a, say, fortnightly basis?
Your client advised me that activity aggravates the neuropathic right hand pain and he is limited in repetitive manual duties. I do note that his domestic situation is complicated as his partner is also disabled. It is entirely appropriate that he employs a cleaner for the heavier domestic responsibilities and is currently doing so on a fortnightly basis.
Dr Fairhurst does not state when Allen first engaged a cleaner and nor does he state why that was the case. It may have been due to Allen's domestic situation, his left shoulder injury, or his heart condition, rather than due to his right arm. The fact that Allen may employ a cleaner does not establish these matters.
At the same time, AXS submitted that Dr Hardcastle had given evidence that there was nothing medically precluding Allen from sweeping with a broom: AXS CS, par 178. In response to a question about whether there was anything medically precluding Allen from sweeping a kitchen using a broom, Dr Hardcastle responded, he would 'be encouraged to do it' (ts 367). It seemed implicit in Dr Hardcastle's evidence, that there was nothing precluding Allen from performing domestic cleaning activities.
On balance, Allen has not satisfied me that his engagement of a cleaner was due to his injured right arm. At the same time, I have reservations about whether Allen is unable to perform domestic cleaning activities, as claimed. I do not accept this claim.
Turning to the gardening expense claim, I have already referred above to the limited evidence that Allen gave about his gardening activities. The nature and duration of the activities were not specified (other than weeding). And Allen did not lead evidence about the gardening activities he performed prior to the Accident or the amount of time he spent on them. Allen did not provide any bank records to show the amount he paid the gardener or any receipts or invoices from the gardener.
With respect to Dr Fairhurst, he was asked the following question (exhibit 1.2.9, page 82):
9. Whether it is reasonable that my client employs a gardener to perform gardening duties on a monthly basis?
Your client advises me that he periodically employees a gardener due to his manual limitations and again it is entirely reasonable that he receives help on a monthly basis.
Dr Fairhurst did not state the nature of activities that Allen could not perform and nor did he state why Allen was in need of future assistance because of his injury. The fact that Allen may have engaged a gardener is not demonstrative of these matters. Again, there may be other reasons, unrelated to the Accident.
In the circumstances, I am not satisfied that Allen is need of future assistance with respect to gardening because of his injury. I make no award for future personal and domestic assistance.
AW. Assessment of Allen's future medical treatment/expenses
AW.1 Allen's claim
In his particulars of damage dated 28 January 2022, Allen claimed future medical expenses on the following basis:
(a)visits to general practitioner: six per annum at $500 per annum or $83 each; or $41.66 per week, totalling $41.66 x 686.9 = $28,616;
(b)consultations with specialists: say $1,000 per annum or $83.32 per week, totalling $83.32 x 686.9 = $57,232; and
(c)medication expenses: say $500 per annum or $41.66 per week, totalling $41.66 x 686.9 = $28,616.
In total, Allen claimed $114,454. I observe that the calculation was replete with errors.
In his closing submissions, Allen claimed the following: par 196:
(a)visits to a general practitioner: six per annum at $500 per annum or $9.62 per week, totalling $9.62 x 709.8 (6% multiplier for 27 years) = $6,828.28;
(b)consultations with specialists: say $1,000 per annum or $19.23 per week, totalling $19.23 x 709.8 (6% multiplier for 27 years) = $13,649.45; and
(c)medication expenses: say $500 per annum or $9.62 per week, totalling $9.62 x 709.8 (6% multiplier for 27 years) = $6,828.28.
As set out above, the 6% multiplier for 27 years reflects that according to the Cumpston Sarjeant Life Expectancies Table for 2022, Allen has a life expectancy of about 27 years.
In total, Allen claimed $27,306.01. Allen's claim was not supported by reference to any submissions or any evidence.
In his schedule of quantum filed 3 August 2022, Allen claimed $27,306 on the same basis. However, Allen referred Dr Fairhurst's report of 18 January 2022 in support of the claim (exhibit 1.2.9).
In broad terms, the defendants denied Allen's claim and submitted that there was an absence of proof underpinning the claim:
(a)EMCO submitted that Allen's the assessment for future medical treatment should be $10,000: EMCO CS, 221;
(b)AXS submitted that a reasonable award for future medical treatment was $1,000: AXS CS, 192; and
(c)Unique Scaffolding submitted that if an allowance was to be made, the allowance should not exceed a range of between $1,000 and $2,500: Unique Scaffoldings RS, par 24.
AW.2 Legal principles
Allen is entitled to recover his reasonable future medical expenses from the defendants, assuming the proposed treatment is related to the injuries attributable to the Accident: CSR Ltdv Eddy (2005) 226 CLR 1 [31] (Gleeson CJ, Gummow & Heydon JJ) (CSR), [31]; Sharman v Evans (1977) 138 CLR 563, 573 - 574 (Gibbs & Stephen JJ). In assessing reasonableness, the court must balance the health benefits to Allen against the cost of the proposed treatment: Sharman (573) ‑ (574); D'Souza [596] (Gething DCJ).
AW.3 Allen's evidence
In support of his claim, Allen referred to Dr Fairhurst's report of 18 January 2022. Allen did not identify the parts of Dr Fairhurst's report that he relied upon. I have identified the relevant parts of Dr Fairhurst's report that seem applicable.
Medication expenses: Dr Fairhurst was asked whether it was reasonable that Allen be prescribed medication. Dr Fairhurst stated that Allen took regular amitriptyline 10 mg at night for the neuropathic pain and occasional Panadol. Dr Fairhurst stated that that would be required for the foreseeable future at an annual cost of $500.
Visits to a general practitioner: Dr Fairhurst was asked, in relation to Allen's future treatment requirements, how frequently he expected Allen to visit a general practitioner. Dr Fairhurst stated that Allen was likely to require six visits per annum for prescriptions of amitriptyline at a total cost of $500.
Consultations with specialists: Dr Fairhurst was asked about whether it was likely that Allen would need to consult a specialist about his right elbow and if so how frequently. Dr Fairhurst stated that Allen was unlikely to benefit from further surgery. However, Dr Fairhurst stated that Allen should consider specialist pain management noting that three appointments per annum may be required at a cost of $1,000, i.e. $333 each.
AW.4 Findings and assessment
Overview: in my view, the evidence does not support Allen requiring the extent of treatment for which payment has been sought. I summarise my reasons for this conclusion as follows.
First, the consensus of the medical evidence, which I accept, was to the effect that Allen did not require further surgical treatment in relation to his right elbow injury. See e.g. Drs Sneddon (exhibit 5.30, page 162); Easton (exhibit 5.32, page, 202); Fairhurst (exhibit 1.2.9, page 82); Hardcastle (exhibit 1.2.4, page 46).
Secondly, Allen gave evidence to effect that he had not seen Dr Ecker since about October 2018 (being the surgeon that conducted the transposition of the ulnar nerve in April 2018) (ts 138). Further, Dr Ecker recommended that Allen attend the Hand and Upper Limb Centre, which he did on five occasions for some exercises (ts 138). Allen confirmed that he had not been to the Centre since around June 2018 (ts 138).
Thirdly, Dr Hardcastle gave evidence to the effect that when he saw Allen on 17 December 2021, Allen told him that he had not received any further specific treatment to his elbow apart from some exercises shown to him by his physiotherapist (ts 383; exhibit 1.2.4). Dr Hardcastle had last seen Allen in May 2020.
Similarly, Dr Sneddon, who saw Allen on 11 April 2019, stated in his report that Allen had not had any physiotherapy since mid‑2018 and the only medications that he was taking consisted of over the counter anti-inflammatory medication, namely, Nurofen (exhibit 5.30, page 159).
Fourthly, although Allen attended his GP on numerous occasions between April 2019 and early June 2021, his right elbow did not appear to be a concern (exhibit 1.4.3).
Against that evidence, I make the following assessments.
Medication expenses: there is no doubt that Allen suffered pain as a result of the Accident and has some residual pain as a result of his residual injuries. The defendants put in issue the extent of the pain Allen alleges he suffered. The defendants point to the fact that Allen medicated with Nurofen, Ibuprofen and Panadeine Forte from time to time, during the majority of the period post his Accident, save for when he took other medications for his heart condition and his left shoulder. It was only in recent times that Allen took amitriptyline 10 mg for neuropathic pain. On my review of the evidence, I accept the defendants' submission. In my view, a reasonable allowance for medication is $200 per annum.
Visits to a general practitioner: EMCO submitted that the claimed number of visits should be reduced to two per annum on the basis that it was likely that Allen would have visited his GP for other general health issues (including because of his left shoulder and heart issues). Given Allen's medical history, I agree with EMCO's submission.
Further, Dr Fairhurst does not state for how long Allen should take amitriptyline. In any event, the frequency with which it has been prescribed appears inconsistent with Allen's evidence about his management of pain since the injury, which was largely limited to taking Ibuprofen every two or three days and Panadeine Forte twice a month if the pain was severe (Dr Hardcastle, exhibit 1.2.3.1, page 4 of 14; Dr Fairhurst, exhibit 1.2.7, page 58).
Consultations with specialists: the consensus view of the doctors was that Allen did not require any specific treatment. And if there was any doubt about that, I prefer the view of Dr Hardcastle, a specialist orthopaedic surgeon, to that of Dr Fairhurst.
Further, since Allen had the operation on his right elbow in April 2018, he did not seek or undergo any significant treatment to his right elbow. In the circumstances, I am not convinced that Allen would consult with specialists and undergo recommended treatment in any event, and certainly not to the extent envisaged by Dr Fairhurst. Against that background I must weigh the fact that Allen did consult with some experts in relation to his ulnar neuropathy. Given this, I would allow one consultation per year at a notional amount of $333.
Applying a discount for contingencies of 10%, I will allow the following amounts on account of future medical treatment:
(a)visits to a general practitioner: two per annum at $166 per annum or $3.19 per week, totalling:
$3.19 x 709.8 (6% multiplier for 27 years) x 90% = $2,038
(b)medication expenses: say $200 per annum or $3.85 per week, totalling:
$3.85 x 709.8 (6% multiplier for 27 years) x 90% = $2,459
(c)consultations with specialists: say $333 per annum or $6.40 per week, totalling:
$6.40 x 709.8 (6% multiplier for 27 years) x 90% = $4,088
The total equals $8,585, which I have rounded to $8,600.
AW.5 Summary
I assess damages for future medical treatment post 7 May 2022 in the amount of $8,600.
AX. Total quantum of damages
For the reasons set out above, I assess the damages to which Allen is entitled at $554,115, as follows:
Non-pecuniary loss (general damages) $40,000 Past medical expenses (special damage) $51,736.14 Past economic loss $268,174 Interest on past loss of earnings $6,456 Past loss of superannuation $22,109 Interest on past loss of superannuation $3,542 Future loss of earnings $139,813 Future loss of superannuation $13,685 Past gratuitous services - Interest on past gratuitous services - Future assistance costs - Future medical treatment / expenses $8,600 TOTAL $554,115
AY. Conclusion
There will be judgment for Allen. I award Allen damages in the amount of $554,115. I will hear from the parties as to whether there should be an award of interest under the Supreme Court Act1935 (WA).
I will hear from the parties as to the orders sought and costs.
GLOSSARY OF SCAFFOLD AND MEDICAL TERMS
Scaffold Terms
'Bay' or 'scaffold bay' - the area between two consecutive standards.
'Braces' - diagonal tubes that extend from one standard to the next.
'Beam clamp' - a clamp securing a tie to a beam.
'Coupling', 'coupler' - metal clamp like device comprising a nut and bolt used to secure one piece of scaffolding to another.
'Hop up' - an extension to the width of a platform in a certain area to allow work to be carried out to the building itself.
'Ledgers' - round tubes positioned horizontally between standards.
'Lifts' - the height between the various platforms of the scaffold.
'Node' or 'star' or 'cup' - point at which a ledger or tie is attached to a standard.
'Pan' or 'board' or 'planks' - the horizontal boards making up the walkways of the scaffold.
'Platforms' or 'walkway' or 'working deck' - that part of the scaffold where workers walk and work when using the scaffold.
'Standards' - the upright or vertical tubes of the scaffold.
'Tie' or 'tie tube' or 'stub tube' or 'tie off' - a piece of scaffolding tube spanning the distance between the building and a standard. Ties are affixed to the building and the standard using a coupling.
'Transom' - a t-shaped, flat horizontal bar placed between standards. The boards of the platform sit on top of a transom.
'Working platform' or 'open platform' - a walkway of the scaffold that was accessible and able to be used by workers on site.
Medical Terms
'Callosity' - a thickening or hardening of the skin.
'cardiac arrest' - when the heart to stops beating.
'clawing' (in the context of fingers) - a condition where fingers are bent into a claw like shape.
'Dupuytren's contracture' - a condition involving the subcutaneous tissue of the palm, whereby the patient experiences a thickening of the skin on the palm of the hand which results in the fingers of the hand being pulled in a downward direction toward the palm of the hand and the patient being unable to straighten the fingers of the hand. A form of clawing of the fingers.
'Dynamometer' - a medical device used to measure grip strength.
'extension' - insofar as it relates to the elbow, is when the forearm moves away from the body by bending at the elbow. The opposite of elbow flexion.
'EMG test' - Electromyography. A diagnostic procedure used to detect abnormality in the nerve/s.
'fasciculation' - a twitch or contraction of the muscle. A clinical sign of ulnar neuropathy.
'finger abduction' - spreading of the fingers.
'fixed flexion deformity' - the inability to fully straighten or extend.
'flexion' - insofar as it relates to the elbow, is when the forearm moves toward the body by bending at the elbow.
'GPMP' - General Practitioner (GP) Management Plan.
'hypercholesterolemia' - high cholesterol.
'hypertension' - high blood pressure.
'hypothenar eminence' - muscle on the inside of the hand that controls the movement of the little finger.
'interossei' - muscles between the metacarpals of the hand.
'Ischemic heart disease' - a progressive disease causing narrowing of the arteries of the heart.
'lateral' - away from the body/on the outside of the arm.
'malunion of the olecranon process' - the bone has healed, but not in the right position.
'medial' - toward the body/on the inside of the arm.
'metacarpals' - bones of the hand that connect the wrist to the fingers.
'muscle atrophy' - muscle wasting through disuse.
'Myocardial infarction' - commonly referred to as a heart attack.
'Olecranon' - the bony tip of the elbow.
'Owestry Questionnaire' - a self-assessment tool that requires a patient to identify perceived disabilities in pre‑set activities of daily living.
'rotator cuff' - group of muscles and tendons that surround the shoulder joint.
'Ulnar nerve' - a nerve passing from the neck, down the arm and to the hand. At the elbow the ulnar nerve passes near the olecranon. The ulnar nerve effects motor function to the little and ring fingers of the hand and potentially the thumb. The ulnar nerve also effects sensory function to the ring and little finger and potentially half of the middle finger of the hand.
'ulnar neuropathy' - a malfunction of the ulnar nerve that can result in pain, tingling or numbness to the hand.
ANNEXURE 1 - PHOTOGRAPHS OF THE SCAFFOLD
Annexure 1A - Exhibit 1.9.15.1 - Photograph depicting the west side walkway (9 January 2017) as marked up by Allen:
Annexure 1B - Exhibit 1.9.4 - Photograph showing southern side of the scaffolding (25 October 2016)
Annexure 1C - Exhibit 4.3.06 - Photograph of western elevation taken by Alf Vitale 19 December 2016
Annexure 1D - Exhibit 1.9.12 - Photograph of the scaffolding on the west side (9 January 2017)
Annexure 1E - Exhibit 1.9.12.1 - Photograph from page 495 of Allen's book of documents as marked up by Stokes showing various dimensions of the scaffolding on the western side
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate to Commissioner Collins
25 MAY 2023
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