Apthorpe v QBE Insurance (Australia) Limited

[2019] NSWDC 135

District Court

New South Wales

Medium Neutral Citation:	Apthorpe v QBE Insurance (Australia) Limited & Ors [2019] NSWDC 135
Hearing dates:	25, 26, 27, 28 February and 14 March 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	Within 7 days of today’s date the parties are required to bring in short minutes with draft orders that reflect the monetary effect of my findings in these reasons.
Catchwords:	TORTS – workplace injury on a domestic building site – plaintiff roofing labourer fell to ground from roof height after stepping on unsecured bridging planks between roof and a scaffolding platform – determination of liability of builder, scaffolder, fascia and guttering contractor and plaintiff’s employer the tiling contractor – differing assessment schemes for employer’s liability and occupier’s liability; DAMAGES – assessment of claimed heads of damage – Workers Compensation Act 1987 and Civil Liability Act 2002
Legislation Cited:	Civil Liability Act 2002 (NSW), s 3, s 5B, s 5D, s 5R, s 5S, s 16 Evidence Act 1995 (NSW), s 60, s 67 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5, s 6 Workers Compensation Act 1987 (NSW), s 151G, s 151Z Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Bevillesta Pty Limited v Liberty International Insurance Co [2009] NSWCA 16 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Condos v Clycut Pty Limited [2009] NSWCA 200 Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Fabre v Lui [2015] NSWCA 157 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Hall v State of New South Wales [2014] NSWCA 154 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42 Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk [2011] NSWCA 12 Indigo Mist Pty Limited v Palmer [2012] NSWCA 239 Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 Laresu Pty Ltd v Clark [2010] NSWCA 180 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Miljus v Watpow Constructions Pty Ltd (2012) 82 NSWLR 572; [2012] NSWCA 96 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 Penrith City Council v Parks [2004] NSWCA 201 Perisher Blue v Nair Smith [2015] NSWCA 90 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34 State of New South Wales v Mikhael [2012] NSWCA 338 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Category:	Principal judgment
Parties:	Kenneth Charles Apthorpe (Plaintiff) QBE Insurance (Australia) Limited (First defendant) HTE (Aust) Pty Limited (Second defendant) Christopher Wright (Third defendant) Burtwin Pty Ltd (Fourth defendant)
Representation:	Counsel: Mr G Petty SC with Mr P Kirby (Plaintiff) Mr S McCarthy (First defendant) Mr D Lloyd with Ms L Beange (Second defendant) Mr N Polin SC (Third defendant) Mr L Morgan (Fourth defendant)   Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (First defendant) Clyde & Co (Second defendant) Hall & Wilcox (Third defendant) Moray & Agnew (Fourth defendant)
File Number(s):	2011/301709 & 2014/281269
Publication restriction:	None

Judgment

Table of Contents

Nature of case	[1] – [2]
Scene of the plaintiff’s fall	[3] – [4]
Parties	[5] – [8]
Causes of action pleaded	[9]
Issues	[10]
Documentary evidence	[11]
Witnesses who gave oral evidence	[12] – [13]
Credibility of testimony	[14] – [41]
The plaintiff	[15]
Mr Lavis	[16]
Inspector Hamilton	[17]
Mr Green	[18] – [24]
Mr Wright	[25] – [34]
Mr Nepia and Mr Lutelu	[35] – [38]
Mr JS Petty	[39]
Mr Burt	[40]
Mr Waddell	[41]
Factual background	[42] – [125]
(1) Plaintiff’s background	[43]
(2) Accident circumstances	[44] – [51]
(3) Relevant antecedent events on site	[52] – [95]
(4) Injuries and treatment	[96] – [97]
(5) Subsequent medical and allied reviews	[98] – [99]
(6) Disabilities	[100] – [108]
(7) Work effects	[109] – [116]
(8) Domestic effects	[117]
(9) Mitigation	[118] – [122]
(10) Plaintiff’s most likely pre-accident circumstances	[123] – [125]
Expert liability evidence form Mr Waddell	[126] – [140]
Issue 1 – The relevant risk of harm	[141] – [142]
Issue 2 – Respective duties of care	[143] – [164]
Duty of care owed by the occupiers	[144] – [161]
Duty owed by plaintiff’s employer	[162] – [164]
Issue 3 – Alleged breaches of duty of care	[165] – [231]
Consideration of whether first defendant was negligent	[170] – [189]
Consideration of whether second defendant was negligent	[190] – [201]
Consideration of whether third defendant was negligent	[202] – [214]
Consideration of whether fourth defendant was negligent	[215] – [231]
Issue 4 – Alleged contributory negligence	[232] – [257]
Contributory negligence alleged by first defendant	[237]
Contributory negligence alleged by second defendant	[238]
Contributory negligence alleged by third defendant	[239]
Contributory negligence alleged by fourth defendant	[240] – [241]
Essence of contributory negligence allegations	[242] – [243]
Consideration of contributory negligence allegations	[244] – [255]
Conclusion as to alleged contributory negligence	[256]
Issue 5 - Causation	[258] – [267]
Issue 6 – s 151Z of Workers Compensation Act 1987 (NSW)	[268] – [269]
Issue 7 – Apportionment between defendants	[270] – [282]
Issue 8 – Assessment of damages	[283] – [308]
Non-economic loss	[285] – [293]
Past economic loss	[294] – [296]
Past loss of superannuation	[297]
Future economic loss and superannuation	[298] – [303]
Fox v Wood	[304]
Future out-of-pocket expenses	[305] – [306]
Past out-of-pocket expenses	[307]
Summary of damages assessment	[308]
Interim orders	[309] – [310]

Nature of case

1. On the afternoon of Thursday, 18 September 2008, the plaintiff, Mr Kenneth Apthorpe, then aged 18 years, sustained facial fractures and other injuries in the course of his employment as a roofing labourer. He fell 6 metres to the ground, down a scaffolding void from a second storey scaffolding tower platform, on a residential building site at 7 Morna Point Road, Anna Bay, New South Wales.

2. The plaintiff’s fall occurred in circumstances where he had stepped onto unsecured timber bridging planks resting between the edge of the sloping roof of the building and the platform of an adjacent scaffolding tower. The plaintiff’s injuries have led to this multi-party consolidated litigation that is variously governed by the Civil Liability Act 2002 (NSW), the Workers Compensation Act 1987 (NSW) (“WC Act”) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”).

Scene of the plaintiff’s fall

3. The following post-accident photograph taken at roof level shows the general configuration of the area where the plaintiff was working, also showing the resultant void in the centre foreground after the bridging planks had fallen.

[Exhibit “C”, p 13]

4. The following post-accident perspective photograph taken from ground level shows the resultant void that was created by the movement of the planks after the plaintiff had fallen.

[Exhibit “C”, p 1]

Parties

5. The first defendant, QBE Insurance (Australia) Limited (“QBE”) has been joined pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) because the head contractor for the building works, JS Petty Pty Ltd, it’s insured, is in liquidation. The relevant director of that company was Mr John Petty. He did not give evidence in the proceedings because, despite extensive efforts on the part of the insurer, he could not be found.

6. The second defendant, HTE (Australia) Pty Ltd (“HTE”), was the contractor that erected the scaffolding on the site. The sole director of that company was Mr Christian Green, who gave evidence in the proceedings.

7. The third defendant, Mr Christopher Wright, was a self-employed fascia and guttering contractor who had carried out guttering work on the roof on the site. To carry out his work he had moved some of the timber bridging planks on the scaffold tower platform. Those works affected the safety of the site for other workers. Mr Wright gave evidence in the proceedings.

8. The fourth defendant, Burtwin Pty Ltd (“Burtwin”), was the roof tiling contractor for the site and it employed the plaintiff. At the time of his fall the plaintiff was removing and disposing of redundant roofing tiles from the roof of the building. He was carrying those tiles to the scaffolding tower platform and dropping them into a skip bin at ground level below. The principal of the fourth defendant was Mr David Burt. He did not give evidence in the proceedings.

Causes of action pleaded

9. The plaintiff’s pleaded causes of action against each defendant are framed in negligence. He alleges various breaches of the duty of care owed by each of the contractors on the site. The regime of the Civil Liability Act applies to the first, second and third defendants. The regime of the Workplace Injury Management and Workers Compensation Act and the Workers Compensation Act applies to the proceedings against the fourth defendant.

Issues

10. A review of the pleadings, the evidence and the submissions reveals the following issues as calling for decision in these proceedings:

1. The identification of the relevant risk of harm. My reasons for decision on that issue appear between paragraphs [141] and [142] of this judgment;

2. The duties of care owed by the respective defendants. My reasons for decision on that issue appear between paragraphs [143] and [164] of this judgment;

3. Whether the respective defendants were negligent. My reasons for decision on that issue appear between paragraphs [165] and [231] of this judgment;

4. Whether there was contributory negligence on the part of the plaintiff. My reasons for decision on that issue appear between paragraphs [232] and [256] of this judgment;

5. The cause of the harm suffered by the plaintiff. My reasons for decision on that issue appear between paragraphs [258] and [267] of this judgment;

6. The manner and extent, if any, for the provisions of s 151Z of the WC Act to be applied to the factual circumstances of this case. My reasons for decision on that issue appear between paragraphs [268] and [269] of this judgment;

7. The manner in which liability should be apportioned between defendants. My reasons for decision on that issue appear between paragraphs [270] and [281] of this judgment;

8. Assessment of the heads of damage claimed by the plaintiff in respect of the applicable statutory regimes. My reasons for decision on that issue appear between paragraphs [283] and [308] of this judgment.

Documentary evidence

11. The plaintiff tendered documentary exhibits and photographs in the series “A” to “AA”. The first defendant similarly tendered exhibits in the series “D1.1” to “D1.8”. The second defendant tendered exhibits in the series “D2.1” to “D2.6”. The third defendant tendered Exhibit “D3.1”. The fourth defendant tendered Exhibits “D4.1” and “D4.2”. Those exhibits will be referred to in these reasons where it becomes relevant to do so.

Witnesses who gave oral evidence

12. The following witnesses gave oral evidence:

1. The plaintiff gave brief oral evidence. The majority of his evidence substantially proceeded by way of his statement: Exhibit “F”. There were no material challenges to his evidence;

2. Mr Damien Lavis, who was on site when the plaintiff fell;

3. Mr Nathan Hamilton, the WorkCover Inspector who investigated the accident;

4. Mr Christian Green, the scaffolding contractor;

5. Mr Christopher Wright, the fascia guttering contractor;

6. Mr Geoffrey Waddell, an expert civil engineer retained by the third defendant to provide an expert report. He was called by the plaintiff and gave his evidence by a telephone link from a remote location.

13. In addition to the oral evidence given by those witnesses a number of witness statements were tendered.

Credibility of testimony

14. Before identifying my findings of fact it is necessary to say something about the credibility and the reliability of the testimony of the respective witnesses.

The plaintiff

15. My impression of the plaintiff was that he gave credible and reliable testimony on all matters traversed in his evidence. His evidence as to how the accident occurred was understandably within a limited compass. His description of his injuries and related disabilities, and how those matters affected him, was supported by the medical evidence. His evidence on those matters was obviously understated. The defendants accepted the plaintiff was an impressive and honest witness and conceded that his evidence should be accepted. I accept his evidence in its entirety.

Mr Lavis

16. Mr Lavis, a tiler working on the site saw the plaintiff fall and went to his assistance. He provided a contemporaneous statement to WorkCover Inspector Hamilton, which was recorded at page 87 of his notebook. On 3 December 2008 he participated in a recorded interview with WorkCover Inspector Walker: Exhibit “Q”. He had also given evidence of the events of the accident in the Industrial Court on 23 August 2011. Those accounts were closer in time to the events than the telephone evidence he gave at the hearing of these proceedings. The other parties variously conceded that Mr Lavis gave his evidence in a straightforward and frank way, and that his evidence should be accepted. I accept the submission made on behalf of the plaintiff that the substance of his evidence as given in the Industrial Court (at Exhibit “P”, pp 103-106) is more likely to be correct and should be accepted.

Inspector Hamilton

17. WorkCover Inspector Hamilton arrived at the scene of the accident at about 4.45pm. He was suitably qualified and experienced in the investigation of industrial safety issues. In the course of his factual investigation he made sequential notes (Exhibit “Q”) and took a series of photographs, 34 of which were collated and annotated. Those contemporaneous photographs were tendered in evidence (Exhibit “B” and Exhibit “C”) and serve as a reliable record of what he saw. Plainly, his approach to the investigation was thorough and professional. He gave his evidence with careful attention to factual details and was not materially challenged in cross-examination. I concluded that his evidence should be accepted in its entirety.

Mr Green

18. Mr Green was responsible for the scaffolding. His contemporaneous conversation about the events of the plaintiff’s accident was noted at page 87 of Inspector Hamilton’s notebook. Those details were not challenged. Although the events occurred over 10 years ago, there is little room for doubt that those events would have been a significant and sentinel occurrence for Mr Green (his interview with the WorkCover inspector took place within a month of the accident), yet, as was observed in the plaintiff’s submissions, he could recall virtually nothing about it: T138 – T140.

19. Mr Green’s reaction to being informed that the wooden planks on the scaffolding platform had not been secured was curious. He apparently did nothing on the day of the accident or on the following day to investigate that allegation. The plaintiff has submitted, correctly in my view, that he did not need to make an inspection along those lines because he already knew the truth of that allegation. I accept the plaintiff’s submission that in his evidence, Mr Green seemed reluctant and non-committal.

20. I consider that Mr Green’s evidence on disputed matters of fact should be regarded with great circumspection. Mr Green was not present when the plaintiff’s accident occurred. Without first-hand knowledge of the circumstances of the plaintiff’s accident he was nevertheless dismissive of the suggestion that he might be in any way responsible for that accident.

21. On behalf of the second defendant, that is, Mr Green’s company, it was submitted that there were no issues with the credibility of Mr Green’s testimony. That submission did not sit well with the objective facts.

22. In his evidence, Mr Green retreated to a position of a lack of recall on matters of significance including an argument he had with Inspector Hamilton about the need, or lack of need, for tying down the platform planks.

23. Mr Green’s evidence was to the effect that after the scaffolding tower had been raised, it was possible for the timber bridge between the roof and the tower to have been fully planked: T122.9 – T122.17. Whilst it was submitted that in cross-examination on this topic (at T129.21 – T130.12), that evidence was not challenged, I nevertheless decline to accept it because it was plain that Mr Green had proffered that evidence on the basis of a flawed and inaccurate reconstruction of the events.

24. Accordingly, I do not accept his evidence on disputed matters of fact.

Mr Wright

25. Mr Wright was the fascia and guttering contractor. I formed the view that his evidence was of limited reliability concerning a number of disputed matters of fact, and except on one matter, his evidence should be regarded with considerable reservation as to its reliability.

26. That exceptional matter which I considered to be reliable was Mr Wright’s candid evidence that he had moved the platform planks before the plaintiff’s accident. He did so in order to effectively carry out his own work. He said that he had easily pushed back the central planks of the scaffolding platform or timber bridge planks because those planks had not been secured. That evidence was consistent with the observations of Inspector Hamilton and Mr Lavis as to the absence of any evidence of wire ties or their remnants at the base of the scaffolding tower.

27. On the other matters, Mr Wright’s evidence had elements of unreliability in that he had provided differing accounts as to if and when he had returned to the site after having worked there on 18 September 2008.

28. In fairness to Mr Wright, his account was given to the WorkCover Inspector Walker on 15 January 2010, which was some 16 months after the plaintiff’s accident: Exhibit “J”. In that account, he said he had returned to the site some weeks later, that is, between 17 November 2008 and 16 December 2008, which was months later, not weeks later: Exhibit “J”; answers to questions 36, 43, 51, 52, 53. In contrast, in his evidence given in the Industrial Court on 23 August 2011, Mr Wright repeatedly denied having returned to the site on 18 September 2008: Exhibit “H”.

29. Mr Wright also gave vacillating evidence as to whether he had an assistant on the site. He later conceded that he could have been on the site on 18 September 2008: Exhibit “H”, pp 144-145. Somewhat curiously, in his recollected account given in these proceedings, Mr Wright claimed a recollection of working on the site on the day of the accident, including as to the detail of the work that he had undertaken on that occasion. Those variations in the described circumstances did not sit well together.

25. Mr Wright’s reliance on the content of his invoice dated 15 September 2008 as proof of the assertion that he was not on the site on 18 September 2008 was not probative. It is curious that although ultimately he admitted he was on site on the 18th, there was no invoice for his work on that date.

26. There was a stark contrast between Mr Wright’s evidence given in the Industrial Court in August 2011 when compared to his evidence in these proceedings. In my view, this was explicable in terms of Mr Wright’s perception of risk of sanctions to himself in the former proceedings. In these proceedings (at T201.25 – T202.5), Mr Wright accepted he had given incorrect evidence in the former proceedings about not being on the site on 18 September 2008: T203.10 – T203.26; T203.34 – T203.37.

27. Incredibly, in my view, Mr Wright claimed that his memory of the events at the time of the hearing in February 2019 was better than when he gave an account of events to WorkCover Inspector Walker some 18 months after the accident: T202.8 – T202.23.

28. There was much force to the submissions made by the first defendant to the effect that Mr Wright’s evidence should not be accepted as being reliable on account of the vacillating versions he has given of the events in question, including to WorkCover Inspector Walker, his evidence in the Industrial Court, and his evidence in this Court, such that his evidence should not be accepted without corroboration: Written submissions of first defendant, paragraphs 17-23.

29. I consider that on disputed matters of fact, except as to the matters described at [26] above, Mr Wright’s evidence should not be preferred when compared to other credible evidence.

Mr Nepia and Mr Lutelu

35. Mr Nepia and Mr Lutelu, who were the scaffolders working on the site, provided contemporaneous statements about the plaintiff’s accident. Those statements were admitted into evidence because they were unavailable to attend to give evidence. Due notice of this was given pursuant to s 67 of the Evidence Act 1995 (NSW).

36. In those statements (Exhibit “D2.2” and Exhibit “D2.3”), they claimed, without explanatory detail, to have secured the wooden planks and kickboards, and according to them, another scaffolder on site, a Mr McCrombie, was involved in a final inspection of their work.

37. The plaintiff makes the point, validly in my view, that neither Mr Nepia or Mr Lutelu could be cross-examined and therefore, their untested statements should be viewed with considerable reserve because at the time those statements were made, they must have known that their actions would be the focus of a WorkCover investigation. No explanation was given for the failure to call evidence from Mr McCrombie. I conclude that the evidence of Mr Nepia and Mr Lutelu should not be accepted where their evidence conflicts with other witnesses whose evidence was tested by cross-examination.

38. Accordingly, the plaintiff seeks the obvious inferential finding that the evidence of Mr Nepia and Mr Lutelu to the effect that the wooden planks and the adjacent kickboards were secured should not be accepted in the face of compelling and persuasive evidence to the contrary. I accept that submission.

Mr JS Petty

39. The builder, Mr JS Petty, could not be located despite extensive efforts to locate him. His statements to the WorkCover inspectors were tendered as admissions. The plaintiff submitted, correctly in my view, that little weight should be given to the exculpatory portions of those statements given the statements could not be tested and also having regard to the circumstances in which those statements were made. I accept that submission.

Mr Burt

40. The tiling contractor, Mr Burt, who was the plaintiff’s employer at the time of the accident, although available, was not called to give evidence by telephone, as was earlier intimated: T29.7; T160.30. The admissions he had made to the WorkCover inspector were also tendered. The plaintiff submitted, as with the statements of Mr JS Petty, that the exculpatory portions of Mr Burt’s statement should be given little weight in view of the fact that his evidence could not be tested, and having regard to the circumstances in which his statement was obtained. I also accept that submission.

Mr Waddell

41. Mr Waddell is a civil engineer who was engaged on the plaintiff’s behalf. He gave his evidence through a telephone link. His training, qualifications and experience included workplace safety. His evidence was not contradicted by any expert of like qualifications. He considered and analysed a number of possible explanatory scenarios. His ultimate opinion served to support the plaintiff’s case in an appropriately balanced and reasoned manner. His explanations were not inherently improbable. I accept his evidence in its entirety. My analysis of his report will be set out before my consideration of the issues calling for decision.

Factual background

42. Unless otherwise stated, in the paragraphs that immediately follow, I set out my findings of fact on the topics of: (1) the plaintiff’s pre-accident background; (2) the accident circumstances; (3) relevant antecedent events that took place on the site; (4) the plaintiff’s injuries and treatment; (5) subsequent medical and allied reviews; (6) the plaintiff’s remaining disabilities; (7) work effects; (8) domestic effects; (9) mitigation; (10) the plaintiff’s most likely circumstances but for the subject accident.

(1) Plaintiff’s background

43. The plaintiff is presently aged 30 years. He and his wife have children aged 4 and 2 years. He obtained his HSC in 2007. He had excelled in sports and was physically fit. He sought active outdoor work. He obtained work as a labourer in the third defendant’s roof tiling business. The proprietor, Mr Burt was a family friend. The subject accident happened on the plaintiff’s first day at work in that employment.

(2) Accident circumstances

44. On 18 September 2008, the plaintiff arrived at the work site with his employer, Mr Burt, at about 7.30am. During the early part of the day he had been directed to work at ground level, handling tiles and tending to a tile elevator that was being used to convey tiles to roof level. In the afternoon Mr Burt allocated him to work on the roof to assist the tilers to deal with remnants of tiles that had been stripped off the roof.

45. That work required the plaintiff to dispose of tile off-cuts and broken tiles by dropping them into an open skip bin located at the base of an adjacent scaffolding tower located near the building at ground level, and rising to the level where he was working. In the course of that work, one such bin had become filled, so he decided to drop tiles into another nearby and similarly located bin which was not as full.

46. Initially, in the course of that work, the plaintiff had been standing on the roof and was working in conjunction with others to form a human chain, where tiles and pieces of tiles were being passed down the chain by hand for ultimate disposal. In the events immediately preceding his fall he was dropping redundant and broken tiles into skip bins below.

47. At about 3.30pm that afternoon, whilst the plaintiff was working at the roof edge, he was able to drop tiles to a skip bin below until that bin became full. He saw another less filled skip bin on the ground near the base of the scaffolding tower. He then decided to proceed to a position on the nearby scaffolding platform to enable him to aim and drop the tiles intended for disposal into that bin located on a concrete surface some 6 metres below.

48. To do so, the plaintiff had to walk on timber planks that bridged the gap between the sloping roof of the building and the timber planked surface of the scaffolding tower platform so that he could obtain access to the scaffolding platform deck to conveniently drop the tiles into the less filled bin below.

49. The plaintiff recalls picking up some tiles and whilst carrying them in his arms, he stepped onto the timber bridging planks with the intention of positioning himself on the scaffolding deck to be able to drop the tiles into the bin below from his position on the deck. The plaintiff then fell, although he does not actually recall the fall.

50. At about 3.50pm, an ambulance arrived at the site to assist the plaintiff. He was then taken to hospital. His next recollection was of being in John Hunter Hospital undergoing x-rays.

51. The plaintiff stated, and I accept, that beforehand, no-one had warned him against using or accessing the timber bridging planks to gain access to the scaffolding deck. He said there was no fence or barrier preventing him from accessing the deck. The planked platform seemed to him to be a natural access route for him to conveniently position himself to drop the redundant tiles down into the skip bin below.

(3) Relevant antecedent events on site

52. In the antecedent events that preceded the plaintiff’s accident a number of significant events occurred on the building site, as now follows.

53. At all material times, Mr JS Petty, the builder and head contractor for the site, retained the overall control and the responsibility for engaging and coordinating the on-site trades and building sub-contractors. In that context, the following background events occurred.

54. Between 3, 4 and 8 September, and possibly also on 9 September 2008, the scaffolder Mr Green and his employees were on the site erecting scaffolding around the perimeter of the building. In addition, an adjacent scaffolding tower had also been erected as an independent structure to be used for storing undamaged tiles that were intended to be salvaged for use on another site. The plan was for those tiles to be given to a friend of Mr Green for use on another construction site. The builder permitted those works and knew of the detail of those works. The original plan was for the redundant tiles to be temporarily stored on the platform of the scaffolding tower and to be removed later with the assistance of a mechanical crane. Subsequently, that plan was abandoned and the tiles were to be discarded. This was made known to the builder.

55. The original height of the scaffolding platform was positioned so that the fascia and guttering contractor, Mr Wright, could carry out his work on the site. However, the scaffolding and the platform were later raised to a greater height.

56. In those events, the builder and head contractor appears not to have taken into account that the erection of the adjacent scaffolding tower was to a height that blocked working access for some other tradesmen to undertake their work, particularly the fascia and guttering work to be carried out by Mr Wright at the front right corner of the roof of the premises.

57. As a result, when Mr Wright attended the site on 15 September 2008, he determined that the bridging planks between the edge of the roof and the scaffolding platform had to be moved so as not to impede his work: T219.37. Ultimately, Mr Wright moved those planks in order to facilitate his work on the site.

58. Before those events, when the scaffolding work was completed the scaffolders placed a “scaff tag” on the scaffolding ladder which would ordinarily serve to inform the builder, or other trades, and anyone looking at it, that all the work carried out by the scaffolder was safe and fit for its intended purpose.

59. The conclusion that the scaffolding was erected as being fit and suitable for its intended purposes might have ordinarily applied but for the fact that there was no visible writing on those tags, which were supposed to be marked with an indelible pen. Although it was asserted that the tags had been appropriately marked, nothing was found to have been written on them when they were inspected after the plaintiff’s accident. The proffered explanation was that an incorrect pen had been used by the scaffolders and that rain had washed away the writing. In my view, that explanation was unlikely to be true where experienced scaffolders knew that an indelible pen should be used on such tags.

60. Turning then to the configuration of the planks bridging the gap between the edge of the roof and the scaffolding platform, in my view, the compelling conclusion to be drawn from the circumstances is that the bridging planks had not been tied down or secured. Notwithstanding some untestable evidence to the contrary, and based on that part of Mr Wright’s evidence in which he stated that he had moved the planks because they had not been tied down (T224), and which I accept, and the evidence of WorkCover Inspector Hamilton which I also accept to the effect there were no residual signs anywhere on the site of tie wire having been used to secure those planks, I find the bridging planks had not been secured either by tie wire or by any other means.

61. In that regard, I do not accept the submissions made by the second defendant that Inspector Hamilton’s evidence and that of Mr Wright should be rejected on this point. I do not accept the submission that the absence of evidence of tie wire remnants on site was an irrelevant matter. I do not accept the untested statements of Mr Nepia and Mr Lutelu as being reliable on this issue. I consider that Mr Wright, who admittedly moved the planks, could not have done so and would not have done so if they had been tied down or otherwise secured by the scaffolders. I find that the unsecured state of those bridging planks meant that they could readily be moved by manual means to other positions on the scaffolding if someone so required, as was described by Mr Wright.

62. In those circumstances, once Mr Wright had moved the planks he made no effort to barricade, block access to, rope off, or warn other persons likely to be on the site, by signs or otherwise, to indicate that the bridging planks between the roof and the scaffolding platform were hazardous in that they had not been secured, and were therefore unsafe as a means of access to the scaffolding platform. Furthermore, no-one informed the builder of those circumstances: T222.09 – T222.19. This meant that the hazard Mr Wright had created went unchecked and continued to remain unabated.

63. It was asserted in evidence that the bridged area between the roof edge and the scaffold platform had been fully planked. The second defendant submitted, based on an assumed acceptance of Mr Green’s evidence, that it was possible to fully plank the area once the scaffolding had been raised: T122.9 – T122.17. I find that evidence to be flawed and I find that it should not be accepted. This is because it was based on an inaccurate reconstruction of the events of the accident that did not sufficiently allow for the gap in the configuration that necessarily remained between the scaffolding platform and the roof of the building, after the vertical component of the raised scaffold had been left in situ. The statements of Mr Nepia and Mr Lutelu were not fully descriptive of the circumstances and I find that they are not reliable on this issue.

64. The fact that the plaintiff did not notice the gap in the bridging planks when he was working in the vicinity (T51.29 – T51.32) is explicable by reason of his primary attention being directed to other tasks, and not the configuration of the bridging planks, the latter being the function of the defendants, including his employer. It was submitted that Mr Lavis did not observe a gap in the bridging timbers: T81.3. I considered Mr Lavis’ evidence in that regard to be unreliable in that it was based on assumptions, namely: “Well Yeah. I’d say that’s a fair point”. His evidence in that regard appeared to have been based upon his suggestibility on that topic. His evidence given in the Industrial Court proceedings on 23 August 2011 confirms the tenuous basis for his observations and views, where he said he did not notice anything unusual about the scaffold tower: Exhibit “P”, p 98.5. I consider that the evidence of Mr Lavis was not determinative or reliable on that issue. He was unskilled in that regard.

65. At the time of the plaintiff’s fall, Mr Lavis had just turned to see the plaintiff, and he immediately then saw him falling straight down into the emergent void after having taken a step forward: Exhibit “P”, p 104.27-104.44. When Mr Lavis was interviewed by WorkCover Inspector Walker, he described the bridging planks that fell down into the void with the plaintiff, as having come from the centre of the platform: Exhibit “O”, Q73. This meant that the fallen planks had not come away from the edges of the bridging structure but instead, from the centre section.

66. In Mr JS Petty’s record of interview with the WorkCover inspector he acknowledged that his role had been to keep the site safe: Exhibit “K”, Q67, Q177, Q384. There is no dispute that it was also his role to supervise and coordinate the works and in the course of doing so, it was also his duty to give consideration to safety issues relating to the contemplated works on site, and in relation to the safety of the workers on site who might be affected by those works, irrespective of whether or not they were his employees, or whether they were sub-contractors or the employees of sub-contractors.

67. On 15 September 2008, Mr Wright the guttering contractor, carried out some fascia and guttering work on site. It appears that he did not entirely complete the contracted work on that date, and he therefore returned to the site on 18 September 2008 in order to continue with that work.

68. In the meantime, on 16 September 2008, Mr Green had told Mr JS Petty that he no longer intended to seek to salvage the tiles that were to be removed from the roof. That salvage plan was therefore abandoned: Exhibit “K”, Q265 – Q269. On the same day, Mr Green’s scaffolders had attended to raise the level of the perimeter scaffolding but this did not alter the configuration of the scaffolding tower or the arrangements for the placement of the bridging planks to be used as a means of access between the roof and the scaffold platform. Thereafter, the scaffolding tower and the bridging planks continued to block access to the edge of the roof where Mr Wright was to carry out his fascia and guttering work.

69. On 16 September 2015, as is evident from statements obtained by WorkCover, three scaffolders employed by Mr Green, namely Mr Nepia, Mr Lutelu and Mr McCrombie, attended the site to raise the height of the scaffolding to suit the next stage of the works: Exhibit “D2.2” and “D2.3”.

70. I accept the submission made on behalf of the plaintiff that those scaffolders could not have helped but notice that an obvious space or gap had been left in the configuration of the bridging planks because of the presence of a section of upright scaffolding comprising a metal post that they had left to visibly protrude proud of the level of the other platform planks.

71. Before Mr Wright came onto the site to carry out his work on the fascia and the guttering, the scaffolding tower had been raised to a sufficient height to enable both him and the roof tiling contractor, Burtwin, and their various employees, to access the roof, the guttering and the fascia areas, subject to the obstacles created by the scaffolding planks and the associated platform.

72. When Mr Wright came onto the site, it was evident to him that the bridging planks between the roof and the scaffolding tower had been left in a position that would impede his work. Mr Wright therefore proceeded to move all but the two edge planks to push them back onto the platform in order to carry out his work. Those facts were known to Mr JS Petty, who had already told Mr Wright that the scaffolding tower would no longer be used by the roof tilers to reclaim the old tiles as was previously planned: T217.14. It therefore seemed reasonable to Mr Wright to move those planks without further reference to Mr JS Petty.

73. On behalf of the first defendant, it was argued that Exhibit “D1.7” indicated that Mr Wright’s work had been left in an incomplete state on 15 September 2008, which was why he had returned on 18 September 2008, and even then, after the plaintiff’s accident, his work had also been left in an incomplete state on that day. It is immaterial as to whether this work occurred on 15 or 18 September 2008. The uncontroverted fact was that Mr Wright was on site at the same time as the tiling team and was working on the guttering in the vicinity, on 18 September 2008, which explains why he had moved the bridging planks before the plaintiff’s fall.

52. Mr Wright said that he had not replaced or re-positioned the bridging planks into their original position at any stage either during or after he had completed any part of his work. This was because he was of the opinion that those planks were resting on an uneven sloping tile surface and therefore to replace them into that position would be unsafe: Exhibit “J”, Q71. When the scaffolders returned to the site on 16 September 2008 the position of those planks, as altered by Mr Wright, must have been plainly apparent to them notwithstanding that their statements were to the contrary effect.

53. I find that the scaffolders most probably moved and re-positioned the bridging planks when they carried out the work of raising the scaffolding on 16 September 2008. It is noteworthy that in their statements comprising Exhibits “H”, “D2.2” and “D2.3”, neither Mr Nepia nor Mr Lutelu described the detail of the work they had undertaken on 16 September 2008. They said they had simply re-inspected the modification work on that day: Exhibit “H”; “D2.2” par 14; Exhibit “H”, “D2.3” par 13.

54. I find that when the scaffolders moved the bridging planks they did so in a way that left at least one of those planks in a precarious position which no-one had recognised as hazardous before the plaintiff attempted to access the tower via the bridging planks at the time he fell.

55. Although the subject of dispute, I am satisfied that those bridging planks had not been secured, either by tie wires, or otherwise. I make that finding, notwithstanding the untested content of the WorkCover statements to the contrary by Mr Nepia and Mr Lutelu. In that regard, I prefer that part of the evidence given by Mr Wright who said he found there was no tie wire in place securing the planks when he came onto the site after the scaffolding had been raised. This is also consistent with the evidence of Inspector Hamilton, who found no residual evidence of tie wires having been used on the site.

56. The work diary of Mr JS Petty (Exhibit “X”) showed that it had been raining on site on the morning of 17 September 2008, and that windows had been delivered in the afternoon and stored on site. I infer from Mr JS Petty’s work diary that no other substantive building work was carried out that day before the tilers and the plaintiff arrived on site early on the morning of 18 September 2008.

57. In Mr JS Petty’s version of events as given to the WorkCover Inspector, some 2 months after the plaintiff’s accident, he claimed that about 2 days before the plaintiff’s accident, he had inspected the scaffolding tower on the site by viewing it from ground level, and at that time had observed that all of the bridging planks were there: Exhibit “K”, Q307, Q311 and Q314. An inspection from that positon on the ground would not have revealed the presence of tie wires securing the planks if in fact tie wires had been used.

58. I consider that Mr JS Petty’s ground level inspection, if it occurred, was inadequately performed because it must have been undertaken from a point on ground below, at an apparent distance of about 6 metres. If such an inspection had been performed from roof level, it most likely would have become readily apparent, even to the casual observer, that there was a partial void, gap or space in the configuration of the bridging planks to accommodate the portion of the vertically protruding and visible scaffolding component. I also consider that in those circumstances a proper inspection by the head contractor builder who was also responsible for safety on site would have revealed that the bridging planks, which formed part of the structure, had not been secured by tie wires or by any other means.

59. If Mr JS Petty had properly inspected the scaffolding and the surrounds, it is most likely that he would have responded by seeking to neutralise the dangerous state of those bridging planks by taking prudent precautions, by at least providing appropriate warnings to those persons who were likely to be affected by the risks and dangers, and by securing the area to prevent access by other workers on the site.

60. In my view, the need for such precautions became relevant at that time because by 18 September 2008, when the tilers were on the site, Mr JS Petty would have known they would be working near the scaffold platform and that they would be likely to be accessing the bridging planks to the scaffolding platform in the course of carrying out their work of disposing of redundant tiles and related disused building materials.

61. Mr JS Petty, whilst knowing that those works would proceed, took no steps to barricade, fence, warn, rope off or otherwise prevent walking access to the scaffolding platform before the plaintiff’s fall. As a consequence, the bridging planks were left in an unsafe state. I accept the expert opinion of Mr Waddell that the bridge to the scaffold would have been in an unsafe state at that time, and that it would not have been considered acceptable or safe if it had been properly inspected before the plaintiff’s accident: Exhibit “Z”, paragraphs 7.17-7.18.

62. The unsafe position of the bridging planks was a circumstance that could have been readily recognised through a simple visual inspection by each of Mr JS Petty, Mr Green, Mr Wright, and Mr Burt, had they taken the time and made the basic effort to carry out an adequate inspection from the roof level, rather than simply looking up at the structure from the ground level, which normally required looking up from an angle which would not be revealing of the safety problem that should have been evident to them.

63. Mr Burt said that he knew nothing of any hole or gap in the bridging timbers and had no concerns: Exhibit “Y”, Q149 – Q150. In my view, this evidence indicates that he did not carry out an adequate inspection of the area where he had allocated his employees to do their work on that afternoon. Furthermore, he did not properly supervise them. Mr Burt’s position in that regard, and Mr JS Petty’s evidence to the effect that he saw nothing wrong with the bridging planks when viewed from the ground (Exhibit “K”, Q242 and Q312), indicates that any inspections that might have been carried out by them at the time, were inadequate to the safety demands of the circumstances that were well evident to an ordinarily experienced eye on the site.

64. Mr JS Petty had intimated to Mr Wright, either by his words or his silence, that the scaffolding was in a suitable state for Mr Wright to carry out his work in that area. On accessing the area, Mr Wright recognised that in order to carry out his work, he had to move the bridging planks to enable him to complete installation of the perimeter guttering. I accept Mr Wright’s evidence that if he had seen tie wires in situ on the bridging planks, he would not have removed them, and instead, he would have called on Mr JS Petty to attend to the issue of access to enable him to do his work: T224.38. I am persuaded by, and accept the plaintiff’s submission that it was the apparent ease with which Mr Wright could move the bridging planks which led to his decision to do so.

65. I find that Mr Wright had simply left the bridging planks in the position to which he had moved them. I consider that the most likely and correct explanation for this was that at the time of the plaintiff’s injury, Mr Wright’s work in that area was yet to be completed and he therefore still needed the access space he had created by moving the bridging planks. I also find that in doing so, he did not inform Mr JS Petty of the altered configuration in which he had left those bridging planks in juxtaposition to the protruding vertical scaffolding post: T222.09 – T222.19.

66. The effect of Mr Wright having pushed back the bridging planks was that this had created a void of about 1.8m in width and between 1.5m to 2m in depth at that point, where there was some scaffolding below. I find that it would have been highly improbable that Mr JS Petty would not have acted to take precautions to neutralise the danger posed by the existence of that void had he taken the time and the opportunity to undertake a proper inspection of the area before other workers on the site were permitted to have access to that area.

67. A question arises as to how the bridging planks became located around the protruding scaffolding components after the scaffolding had been raised. The competing possibilities are that the scaffolders had left the planks in that position unsecured, or that Mr Wright did so in order to carry out his work. Given that neither of the scaffolders’ statements refer to the protruding vertical scaffolding component, despite the fact that the post had undoubtedly been left there by them after they positioned the planks, I consider the most likely circumstance was that the scaffolders left the bridging planks arranged around the protruding scaffolding component, thereby exposing a gap to accommodate that post. It was because the planks had been left in that state that Mr Wright found it necessary and possible to move them in order to carry out his work.

68. Those were the background events to the plaintiff entering that part of the site and gaining unrestricted access to the bridging planks and scaffolding platform to carry out the work described at [45] to [49] above. Mr JS Petty acknowledged that it was likely the tilers would use the deck of the platform in the manner which the plaintiff had intended: Exhibit “K”, Q271 – Q273, Q289, Q304 and Q306. It follows that the bridging planks were foreseeably likely to be used as a means of access to that platform or deck.

69. The plaintiff was carrying tiles or parts of tiles in his arms when he adopted that means of access. In doing so, he was obviously required to concentrate on multiple tasks. It was in those circumstances that Mr Lavis saw the plaintiff fall, along with four bridging planks that had fallen with him: Exhibit “O”, Q71.

70. The first defendant argued correctly, in my view, that the plaintiff, being unaware of Mr Wright’s alterations to the configuration of the bridging planks, and being unaware of the unsafe condition of those planks, thought he was walking onto bridging planks. Those planks ought to have been secured. Instead, the plaintiff stepped onto an area that became open space whilst carrying tiles in a manner where the tiles were placed in front of his line of sight as he walked down the pitch of the roof, whilst either gaining or maintaining walking momentum, which would have impaired his vision for what was immediately in front of him: T53.42.

71. This meant that as a consequence, the plaintiff walked down the pitch of the roof, and then stepped onto an unsecured plank and then into open space. In those circumstances his momentum would have propelled him against and past the loose bridging planks as he fell. In those circumstances he would most likely have reached for or brushed against the loose planks, that were overhanging the area, and in the process they probably became unbalanced, dislodged, and then fell down to the ground with him.

72. On that scenario, which I accept as most probably correct, the first defendant, joining with the plaintiff, argued there should be no contributory negligence on the plaintiff’s part. They also argued that there should only be notional liability on the part of the plaintiff’s employer.

73. The plaintiff argued that his fall occurred because of the complete failure of the central planked area of bridging planks on the first occasion that area had been used by him to access the scaffolding platform. The plaintiff also argued that the danger of collapse of the bridging planks had been created by the scaffolders, and that if the bridging planks had been properly secured, they would not have collapsed. It was also argued that if the planks had been tied they would not have collapsed under the plaintiff’s weight, and more importantly, from the perspective of a causation analysis, beforehand, Mr Wright would not have been able to move those planks in the first place.

(4) Injuries and treatment

96. The plaintiff’s injuries were identified by the attending ambulance and hospital personnel. They noted the plaintiff had sustained fractured facial bones which were later identified as comprising a comminuted blow-out orbital fracture, a right eye injury, a laceration to his occiput, and tenderness of the lumbar spine. The plaintiff was transported to John Hunter Hospital for assessment and treatment: Exhibit “D”, p 1;

97. Between 18 September 2008 and 21 September 2008, the plaintiff remained as an inpatient at John Hunter Hospital. He underwent CT scans which revealed a severely comminuted and depressed fracture through the medial wall of the right orbit with an associated fracture of the orbital wall, and significant surrounding soft tissue injuries. He underwent surgical treatment for a fracture of his right orbital floor and the medial wall of his right eye socket and the repair of lacerations to the right eyelid: Exhibit “D”, p 2;

(5) Subsequent medical and allied reviews

98. The chronology of the plaintiff’s subsequent assessment and treatment is as follows:

1. On 23 September 2008, at the referral of John Hunter Hospital, the plaintiff was assessed by Dr Barry Reed, an oral and maxillo-facial surgeon for evaluation of his grossly comminuted and grossly displaced orbital/mid-facial (nasoethmoidal orbital) fractures. Dr Reed recommended an open reduction and fixation with titanium plates and screws: Exhibit “D”, pp 6-7;

2. On 29 September 2008, Dr Reed noted that the plaintiff’s extensive right eye swelling prevented the planned surgery from proceeding. It was then postponed to 7 October 2008. Dr Reed also sought an ophthalmic review for the plaintiff: Exhibit “D”, p 7;

3. On 10 October 2008, at Lake Macquarie Private Hospital, Dr Reed undertook surgical repair of the plaintiff’s facial fractures. The plaintiff remained in that hospital until 16 October 2008: Exhibit “D”, pp 8-10;

4. On 24 October 2008, the plaintiff was readmitted to hospital for wound debridement and removal of the surgical sutures: Exhibit “D”, pp 11-12;

5. On 24 February 2009, the plaintiff was seen by Ms Bernadette Cross, a consultant psychologist, for treatment of his adjustment issues consequent upon his injuries. She diagnosed post-traumatic stress disorder (“PTSD”) characterised by irritability, anger outbursts, intense fear, persistent re-experiencing of the underlying event, with recurrent intrusive and distressing recollections, avoidant behaviour, and difficulties concentrating, and social withdrawal. She predicted a treatment regime over 1 – 2 years was required: Exhibit “D”, pp 19-25;

6. On 10 June 2009, at the request of the workers’ compensation insurer, the plaintiff was assessed by Dr Graham Vickery, a consultant psychiatrist: Exhibit “D”, pp 48-54. After reviewing the plaintiff’s history and presenting complaints, Dr Vickery carried out a mental state assessment and then addressed a series of questions that he had been asked to consider. After noting the plaintiff’s downcast and despondent state, and avoidance of eye contact, Dr Vickery noted the plaintiff’s symptoms would not have otherwise developed but for the accident; the plaintiff was suffering from resolving PTSD; he had depression and anxiety entirely related to the subject injury. Dr Vickery believed (without supporting reasons) that the plaintiff’s prognosis was optimistic for a full recovery: Exhibit “D”, pp 52-54;

7. On 14 July 2009, Dr Reed carried out a number of periorbital incisions on the plaintiff’s head for treatment of his residual facial deformity, globe depression, residual diplopia and medial canthal displacement following significant bone resorption after the earlier surgery: Exhibit “D”, p 14;

8. On 13 August 2009, Ms Cross again reviewed the plaintiff. She noted his depressive symptoms had increased significantly. She also noted increased anhedonia, disinterest, amotivation, fatigue, insomnia, depressed mood, difficulty thinking clearly, indecisiveness and feelings of hopelessness. Ms Cross suggested the plaintiff’s general practitioner review the plaintiff’s medication options for those uncharacteristic symptoms, including his acopia: Exhibit “D”, p 26;

9. On 25 September 2009, Dr Reed reviewed the plaintiff and suggested further surgery aimed at improving the cosmetic appearance of the right orbital region and facial deformity, with associated double vision: Exhibit “D”, p 13;

10. On 10 December 2009, Ms Cross reviewed the plaintiff and informed the workers’ compensation insurer and the plaintiff’s general practitioner that the plaintiff was experiencing significant suicidal thoughts, which indicated a need for a crisis plan which, after implementation, resulted in a decrease in his symptoms. She outlined the need for the plaintiff to have more psychological treatment and occupational rehabilitation support to assist with a return to work: Exhibit “D”, pp 27-28;

11. On 3 May 2010, Dr Reed referred the plaintiff to Dr Anthony Maloof, an ophthalmic surgeon, for further assessment and for corrective surgical treatment of the global depression of the right eye, and his medial canthal deformity: Exhibit “D”, pp 14-15;

12. On 11 May 2010, the plaintiff saw Dr Maloof at the referral of Dr Reed. Dr Maloof recommended a three-staged surgical approach to first, repair a telecanthas with plating of the orbit and canthus reconstruction; secondly, repair of a nasolacrimal mucocoele; thirdly, lower eyelid wound revision and an associated canthus elevation procedure: Exhibit “D”, pp 61-62;

13. On 18 June 2010, Dr Maloof wrote to the workers’ compensation insurer to identify a likely recovery period of about a month following the first suggested surgery. However, he stated that there would not be a return to an entirely normal appearance: Exhibit “D”, p 63;

14. On 5 August 2010, the plaintiff again consulted Dr Maloof. Dr Maloof’s clinical notes concerning his 12 consultations with the plaintiff between 5 August 2010 and 16 August 2011 were tendered: Exhibit “D”, pp 55-60;

15. On 11 August 2010, Dr Maloof performed the first stage of his planned surgery. This involved a scalp incision, and the insertion of a temporal bone graft to elevate the right orbit after removal of the old plates: Exhibit “D”, p 64;

16. On 26 October 2010, Dr Maloof referred the plaintiff to Dr Neil Rowe, another specialist ophthalmic surgeon, for a further opinion on the management of the plaintiff’s persistent hypertropia and for squint surgery: Exhibit “D”, p 65;

17. On 14 December 2010, the plaintiff consulted Dr Rowe at the referral of Dr Maloof. Dr Rowe planned for squint surgery to take place after the already planned medial orbital remodelling and lacrimal surgery that was scheduled for February 2011: Exhibit “D”, pp 77-78;

18. On 10 February 2011, Dr Maloof reviewed the plaintiff and wrote to Dr Rowe asking him to undertake the squint correction surgery: Exhibit “D”, p 66;

19. On 28 March 2011, Dr Rowe referred the plaintiff to Professor Glen Gole, a tertiary ophthalmic surgeon, for consideration of further management and treatment: Exhibit “D”, p 76;

20. On 27 April 2011, Ms Cross reported to the general practitioner that the plaintiff was working well in what was by then his new apprenticeship, and that he was overall, coping with the frustration and anxiety relating to having to wait for his next surgery. She noted some improvements concerning the plaintiff’s problems with alcohol dependence, sleep difficulties, and cognitive acceptance of his facial changes and disfigurement: Exhibit “D”, pp 29-30;

21. On 22 June 2011; Dr Maloof wrote to the workers’ compensation insurer to seek approval for the three-stage surgery he had previously suggested: Exhibit “D”, p 67;

22. On 20 July 2011, Dr Maloof undertook further surgery on the plaintiff which he described as right (eye) wound revision, debulking of orbital floor calvarial bone graft, endoscopic dacrocystorhinostomy, sub-mucus resection of the nasal septum, and middle turbinectomy: Exhibit “D”, p 68;

1. On 2 August 2011, Dr Maloof again reviewed the plaintiff. He suggested the plaintiff proceed to squint surgery in about one month: Exhibit “D”, p 69;

2. On 19 August 2011, Ms Cross prepared a psychological treatment report for the plaintiff’s solicitor: Exhibit “D”, pp 31-39. In that report (at pp 33 – 34), she noted the details of the plaintiff’s wide-ranging and ongoing symptoms, and (at pp 35-37), she identified the fact that the plaintiff’s PTSD is a severe disorder that is typically difficult to treat and was generally chronic and unremitting. She also noted (at pp 38-39), that the plaintiff had already attended some 36 psychological treatment sessions and she recommended the plaintiff continue to receive psychological intervention, particularly for adjustment symptoms relating to physical symptoms, psychological issues, including social anxiety due to his facial disfigurement, and his distress about his pending surgeries;

3. On 23 August 2011, Dr Maloof again reviewed the plaintiff as a prelude to further surgery: Exhibit “D”, p 70;

4. On 29 August 2011, Dr Rowe wrote to Dr Maloof explaining the details of the surgery planned for 17 October 2011, namely a right sided superior rectus muscle resection: Exhibit “D”, p 79;

5. On 28 September 2011, Ms Cross provided the plaintiff’s solicitor with an updated psychological treatment report: Exhibit “D”, pp 40-44. She noted (at p 41), that the plaintiff’s chances of a full recovery were blocked by the ongoing need for repeat facial surgeries that set him back both physically and psychologically, instigating a potential long-term chronic condition. She also noted (at p 42), that full recovery was also largely blocked by the likelihood of the plaintiff’s permanently altered facial appearance, body image distress, and related self-esteem issues, which she set out in persuasive detail. She recommended that the plaintiff be provided with ongoing psychological treatment for several years: Exhibit “D”, pp 42-43;

6. On 13 October 2011, Dr Rowe wrote to the workers’ compensation insurer seeking approval for the plaintiff’s surgery to improve his cosmetic appearance and visual function: Exhibit “D”, p 80;

7. On 17 November 2011, the plaintiff was booked for and received squint surgery on his right eye that was undertaken by Dr Rowe at the Epping Surgery Centre: Exhibit “D”, pp 75-76, p 81;

8. On 6 December 2011, Dr Rowe arranged for a clinical meeting with other ophthalmic consultants to discuss further management of the plaintiff’s condition, which was described as a frozen right orbit: Exhibit “D”, p 82;

9. On 1 March 2012, Dr Rowe wrote to the plaintiff to advise of the outcome of the clinical review meeting, namely that he should be referred to Professor Glen Gole, a specialist in Brisbane: Exhibit “D”, p 83, p 85;

10. On 16 April 2012, Dr Rowe ordered an MRI scan of the plaintiff’s right orbit: Exhibit “D”, p 84;

11. On 25 June 2012, Dr Rowe wrote to the medical records department of Westmead Hospital for details of the metal implants used in the previous surgery: Exhibit “D”, p 86. He then also referred the plaintiff to Professor Gole: Exhibit “D”, p 87;

12. On 1 November 2012, Dr Maloof wrote to the plaintiff’s solicitor to describe the treatment he had provided until this time: Exhibit “D”, p 71;

13. On 17 January 2013, Dr Rowe wrote a detailed report to the plaintiff’s solicitor: Exhibit “D”, pp 88-92. That report summarised the treatment the plaintiff had received to that point. Dr Rowe identified the plaintiff’s ongoing problems with double vision and an upturning right eye, a right on left vertical tropia and right extropia and reduced downward eye movements, and the plaintiff’s aesthetic concerns. He summarised the plaintiff’s problems as being a frozen orbit consequent upon the previous orbital blow-out fractures, with soft tissue fibrosis and muscle scarring. Dr Rowe noted that post-injury surgeries had most likely exacerbated limitation in vertical eye movements;

14. On 1 February 2013, the plaintiff consulted Dr Michael Delaney, a consultant ophthalmic surgeon, at the request of his solicitor: Exhibit “D”, pp 123-128. Dr Delaney considered the plaintiff’s condition had not stabilised at that time: Exhibit “D”, p 126;

15. On 11 April 2013, at the request of the plaintiff’s solicitor, he was examined by Dr Hunter Fry, a plastic and reconstructive surgeon: Exhibit “D”, pp 96-103. Dr Fry was pessimistic about cosmetic improvement. He considered (at p 98), that the plaintiff had a significant cosmetic disability, plus ophthalmic problems. He identified a severe disadvantage in the plaintiff’s industrial capacity;

16. On 2 May 2013, Dr Rowe wrote to Professor Gole seeking further advice on possible treatments, including amniotic membrane re-placement surgery: Exhibit “D”, p 93;

17. On 27 June 2013, Dr Maloof wrote to Professor Gole summarising the treatment to date, noting that the planned squint surgery had not yet taken place: Exhibit “D”, p 72;

18. On 10 December 2013, Professor Gole reviewed the plaintiff and wrote to Dr Rowe with his further surgical management of his visual problems. Professor Gole identified the plaintiff’s problems as being in “the too hard basket”: Exhibit “D”, p 103;

19. On 28 March 2014, Dr Rowe wrote to Professor Gole to enclose further medical records to assist him in the management of the plaintiff’s condition: Exhibit “D”, p 94;

20. On 2 June 2014, Professor Gole asked Professor Tim Sullivan to see the plaintiff in Brisbane for advice as he felt he could not perform any useful squint surgery in view of the fibrosis that was identified as being present at exploratory surgery: Exhibit “D”, p 104;

21. On 28 October 2014, Professor Sullivan wrote to Professor Gole advising he would need to see further imaging scans before he could advise further: Exhibit “D”, p 105;

22. On 3 November 2014, Dr Rowe wrote to Professor Sullivan in relation to the plaintiff’s treatment: Exhibit “D”, p 95;

23. On 5 January 2015, Professor Sullivan wrote to Professor Gole advising it would be reasonable to have exploratory surgery for removal of all or part of the calvarial bone graft and titanium plates. He also suggested some related tests and procedures: Exhibit “D”, p 106;

24. On 11 June 2015, the plaintiff underwent surgical removal of an orbital plate and revision of the orbital floor fracture repair, performed by Professor Sullivan: Exhibit “D”, p 107;

25. On 24 June 2015, Professor Sullivan wrote to Professor Gole to report on the recent surgery, noting post-operative improvement in horizontal eye movements and in most vertical movement: Exhibit “D”, p 108;

26. On 14 October 2015, Professor Sullivan wrote to Professor Gole regarding a further dacrocystorhinostomy procedure carried out on this date: Exhibit “D”, p 109;

27. On 9 November 2015, Professor Sullivan wrote to Professor Gole suggesting a further surgical repair to try and achieve cosmetic symmetry: Exhibit “D”, p 110;

28. On 7 December 2015, Professor Sullivan performed right tarsal strip surgery on the plaintiff’s right lower eyelid to correct an ectropion: Exhibit “D”, p 111;

29. On 4 April 2016, Professor Sullivan reviewed the plaintiff, noting that his residual problems involved a significant eye motility disturbance, with some excess upper eyelid skin. He noted the plaintiff needed regular ongoing review, and he returned the plaintiff to the care of Professor Gole: Exhibit “D”, p 112;

30. On 19 July 2016, the plaintiff was re-examined by Dr Delaney: Exhibit “D”, pp 128-132. Dr Delaney considered (at p 130), that at that time, the plaintiff’s visual system had by then stabilised to the point of maximum medical improvement, and noted (at p 131), that the plaintiff would be subject to occupational restrictions.

31. On 17 May 2017, at the request of his solicitor, the plaintiff was assessed by Dr Christopher Bench, a consultant psychiatrist: Exhibit “D”, pp 113-122. Dr Bench diagnosed (at p 120), that the plaintiff’s PTSD was in partial remission, with a Major Depressive and alcohol dependence episode in remission. Dr Bench considered (at pp 120-121), that the plaintiff’s prognosis was guarded, with ongoing effects of self-consciousness due to facial scarring and asymmetry, difficulty socialising, which presented the plaintiff with lifelong implications;

32. On 28 November 2017, at the request of the solicitor for the first defendant, the plaintiff was assessed by Dr Robert Lewin, a consultant psychiatrist: Exhibit “D1.6”. Dr Lewin reviewed the plaintiff’s ongoing symptoms and (at p 10), considered “the residual features are insufficient to diagnose any psychiatric condition”. His opinion was that the plaintiff’s PTSD, his depressive condition and drinking problem was largely in remission. Dr Lewin accepted (at pp 10-11), that the plaintiff needed some allowance for future treatment;

33. On 2 October 2018, Dr Maloof wrote to the workers’ compensation insurer advising of the need for the plaintiff to have a re-opening of earlier surgery with a revision endoscopic dacrocystorhinostomy, seeking approval for same: Exhibit “D”, p 73;

34. On 21 February 2019, Dr Maloof prepared a supplementary letter which identified likely replacement intervals of approximately 5 years for the plaintiff’s plastic tear duct drainage tubes, with associated costings. He attached some illustrative explanatory photographs to his report: Exhibit “U”.

99. I accept that the plaintiff’s account of his problems was truthfully provided to the various practitioners who examined him, as summarised above.

(6) Disabilities

100. In light of my acceptance of the plaintiff’s historical accounts as were provided to those persons who examined him, I consider that in addition to his oral evidence and the evidence within his statement comprising Exhibit “F”, it is appropriate to draw upon the various reports summarised above as evidence on relevant factual matters, particularly on matters of background, injuries, treatment and the plaintiff’s ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142]–[143]; s 60 of the Evidence Act 1995.

101. The plaintiff’s remaining disabilities are of a physical, cosmetic and psychological nature.

102. The result of the fractures and the multiple surgeries the plaintiff has had is that he has a significant right sided facial deformity. This includes a ptosed, drooped or downward looking right eye, due to anatomical alteration to the structures of his right orbit, and a related neurological disability. This in turn has left him with an abnormality in his gaze and vision due to a squint, which persists despite 10 attempts to date at remedial surgery, with the prospect of further surgery being required in the form of repeat or revision dacrocystorhinostomy.

103. The plaintiff has significant post-operative scarring not only around the right orbit, but a semi-circumferential scar on his scalp, from ear to ear, resulting from remedial surgery to gain appropriate internal access to his fractures in order to better reduce them. The plaintiff’s scarring, especially the latter scar, is disfiguring. It is embarrassing to him. With his receding hairline and his need to wear his hair close cropped because of his work, it is an obvious cosmetic defect that affects him in that he is very self-conscious about his altered appearance.

104. The plaintiff’s post-injury headaches have receded in frequency in recent times, but he still experiences them occasionally. The plaintiff has difficulty with spatial and distance judgments, and occasionally mispositions objects and difficulty trying to catch objects. He is unsafe on uneven ground due to his visual problems. He needs to wear corrective glasses for reading and driving.

105. The plaintiff finds he cannot watch television for prolonged periods due to the onset of headaches. His right eye is constantly watery and chronically bloodshot in appearance. He needs to periodically clean his lacrimal drainage tube. He has difficulty working in poor lighting conditions and needs to take more care to concentrate on his surroundings. This slows him down in comparison to his work colleagues. He has problems using some hand tools, such as hammers, due to his poor visual and spatial judgment. He can no longer work safely at heights.

106. In addition to those matters, the plaintiff has PTSD, presently largely in remission, but this underlying condition is prone to recrudescence given exposure to certain triggers. He also suffers from depression, which varies in its intensity, and he experiences social withdrawal.

107. The plaintiff still occasionally experiences vivid nightmares. His nihilistic thoughts have receded in recent years. At times he wakes in a sweat at night and this causes him to feel distressed. This recurs about once a month. He remains self-conscious about his facial appearance. This frustrates him and interferes with his social and sporting activities. He no longer enjoys sport as was previously the case.

108. These are all deleterious matters of great significance to the plaintiff. Those matters will be taken into account in assessing his claim for damages for non-economic loss and loss of earning capacity.

(7) Work effects

109. The medical evidence makes various references to the effect of the plaintiff’s injury on his future employment.

110. At an early stage, Dr Vickery noted that the plaintiff would be unlikely to undertake activities involving heights: Exhibit “D”, p 54. Dr Bench endorsed that view from the psychiatric perspective, and extended that restriction to involve working near windows or work with ladders: Exhibit “D”, p 121.

111. Dr Fry noted that the plaintiff had a loss of capacity for work involving multiple first time contact with members of the public or any work requiring binocular vision: Exhibit “D”, p 98.

112. Dr Lewin noted that the major barrier to the plaintiff working was his physical condition and its consequences. He described the plaintiff’s considerable apprehension about working at heights, with manifest symptoms of anxiety which impairs his function in that regard. Dr Lewin considered the plaintiff’s capacity to work in the open labour market was affected by apprehensiveness and discomfort if he was required to work at heights or on scaffolding.

113. Dr Lewin felt that the plaintiff was otherwise completely unrestricted in his capacity to work: Exhibit “D1.6”. In my view, that latter opinion was somewhat discordant with the other medical opinions. It will be revisited in connection with the assessment of the plaintiff’s damages for future economic loss.

114. Dr Delaney was of the view that because of the plaintiff’s limited binocular single vision he would have to take great care when working at heights or when he might be required to be near moving machinery. Dr Delaney also observed that the plaintiff would need to be slower than normal in carrying out some occupations, noting that it would be preferable that the plaintiff did not work at heights. Dr Delaney was also of the view that the plaintiff’s day-to-day difficulties would extend to driving due to reduced depth perception, stereopsis and double vision: Exhibit “D”, p 126.

115. Significantly, Dr Delaney noted that at present, the plaintiff is fortunate to have an understanding employer willing to accept the plaintiff’s work restrictions. He added:

“…Exposure to dust and debris when working underground exacerbates all his symptoms and if at all possible he would benefit from an occupation where he was not exposed to dust or noxious fumes in order to reduce his watering and its subsequent effects on his vision. It would therefore be preferable if he could find work in an environment where he was not exposed to these irritants. Mr Apthorpe should also avoid work at heights or near moving machinery due to his double vision and the risk of further injury, but with care and diligence he can continue working in such situations but will definitely be slower than normal.”

[Ex “D”, p 131]

116. The significance of the above matters will be revisited when assessing the plaintiff’s claim for economic loss damages.

(8) Domestic effects

117. The plaintiff’s physical and work restrictions will also have some carry-over effects on his capacity to perform some commonplace domestic tasks. This will undoubtedly give rise to a degree of an accident-related need for domestic assistance. The plaintiff makes no claim for such damages.

(9) Mitigation

118. Insofar as the claim for damages assessed pursuant to the Civil Liability Act is concerned, there is no statutory requirement relating to mitigation of damage. However, the plaintiff is under a common law duty to mitigate his loss. The defendants carry the onus of showing a relevant failure to mitigate the plaintiff’s claim brought under the Civil Liability Act. No challenge was made to the plaintiff’s evidence in that regard.

119. Insofar as the plaintiff’s damages are assessed pursuant to the work injury damages scheme, the plaintiff is under a duty to mitigate his damage and he bears the onus of showing that he has taken all reasonable steps to do so. In that regard, s 151L of the Workers’ Compensation Act provides:

151L Mitigation of damages

(1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages.

(2) In particular, the court must consider the following matters:

(a) whether the injured worker has undergone appropriate medical treatment,

(b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment,

(c) whether the injured worker has duly complied with the worker’s obligations under Chapter 3 of the 1998 Act (Workplace injury management),

(d) whether the injured worker has sought appropriate rehabilitation training.

(3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)–(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps.

(4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker.

120. I find that the plaintiff has satisfactorily demonstrated that he has fulfilled all of the reasonable requirements of his duty to mitigate his damage irrespective of which scheme applies to the assessment of his entitlement to damages.

121. In that regard, he has pursued reasonable treatment options, he has accepted successive recommendations for surgical treatment and has undergone those recommended surgeries. He has also accepted advice and obtained psychological counselling. More importantly, he obtained alternative mitigatory employment at the first opportunity.

122. It has not been suggested that he has unreasonably failed to mitigate his damage.

(10) Plaintiff’s most likely pre-accident circumstances

123. Section 13 of the Civil Liability Act requires that in these reasons I identify my assumptions for making an award of damages for future economic loss including the required adjustments.

124. Before the accident the plaintiff was a fit and healthy young man who was not subject to any restrictions in his ability to compete for, gain and sustain, employment on the open labour market. In those circumstances, the plaintiff had at least average intelligence, and was well motivated to find suitable work. But for his injury, he would most probably have sought out physical work commensurate with his physical ability, including within a wide range of potential indoor and outdoor occupations in his locality, if not beyond. That said, at his age and with his unfettered state of health and wellbeing, he also had the unrestricted ability to explore and exploit possibilities for his economic advantage. Those circumstances have changed significantly, to his detriment.

244. I therefore reject the claim of contributory negligence based on the fourth defendant employer’s pleadings.

245. As the second defendant scaffolder no longer presses the plea of contributory negligence, it remains to analyse the contributory negligence claims against the plaintiff as argued by the first defendant builder and the third defendant fascia and guttering contractor.

246. The essence of those remaining claims relates to allegations about keeping a proper lookout and the taking of precautions.

247. In my view, the only precaution the plaintiff could reasonably have taken in the circumstances of the work as allocated to him was to exercise his common sense and to keep a safe foothold and watch to see that he was walking on walkable surfaces. A handhold was not possible because his work required him to carry tiles in both arms.

248. The appearance of the bridging and scaffolding planks, by their size and position or placement, obviously indicated they were intended to be stood upon and walked upon by workers on the site. They were not roped off from access. Having been allocated to work on the roof, and without specific instruction to the contrary, the plaintiff was entitled to assume that the structures had been inspected by his employer, if not by the other contractors who were engaged in work in that proximity.

249. In my assessment, having regard to the requirements of s 5B of the CL Act, the first, second and third defendants have not discharged the burden of establishing contributory negligence on the part of the plaintiff.

Conclusion as to alleged contributory negligence

256. For the above reasons, I have therefore concluded that each of the defendants has failed to prove the claims that there had been contributory negligence on the part of the plaintiff.

257. I now turn to my consideration of the issue of causation of loss.

Issue 5 – Causation

258. The question of whether the plaintiff’s injuries were relevantly caused by the negligence of the respective defendants must be determined according to the requirements of s 5D of the CL Act, which provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

259. The factual findings in this case of the successive failures of each defendant to observe and to discharge their duties of care indicates this is a case where there was a presence of more than one set of conditions necessary for the occurrence of the plaintiff’s injury: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [20], apply s 5D(1)(a) of the CL Act.

260. Where such separate conditions are shown to exist, factual causation, the first step in a s 5D analysis of causation, must be demonstrated in relation to each nominated defendant for the liability of each defendant for damages to be established: State of New South Wales v Mikhael [2012] NSWCA 338, at [96].

261. In my assessment, in undertaking the causation analysis permitted by Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124], on the balance of probabilities, the irresistible conclusion is that, were it not for the negligence of the respective defendants, the bridging planks to the scaffolding platform would not have been left in an unsecured state, those planks would not have collapsed and fallen away when the plaintiff placed his weight upon them, and therefore, but for those circumstances, the plaintiff would not have fallen from the roof and sustained his injuries: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32]; Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48, at [53].

262. The separate elements relative to each of the defendants and which satisfy the requirements of s 5D(1)(a) of the CL Act are:

1. The failure of the builder to conduct a relevant inspection, and the related failure to arrange safe coordination of the works of the multiple trades on site, allowed the unsecured and inviting bridging planks to be left in that state for foreseeable but unsafe use;

2. The failure of the scaffolding contractor to secure the planks allowed those unsafe conditions to continue so that employees within other trades on site would foreseeably make use of the bridging planks;

3. The failure of the fascia and guttering contractor to inform the builder and other contractors that he had moved the bridging planks and left them unsecured allowed the unsafe condition of those bridging planks to remain in that unsafe state:

4. The failure of the plaintiff’s employer to undertake an inspection from an appropriate height before requiring the plaintiff to work at roof level also primed the scene for the occurrence of an accident of the kind incurred by the plaintiff;

5. The confluent failure of all of those three defendants to isolate, barricade, place warning signs and advise each other as to the compromised safety conditions permitted the unsafe circumstances to remain so.

263. The findings set out in the preceding paragraph are sufficient to establish causation according to common law requirements in relation to the plaintiff’s claim against his employer, the fourth defendant.

264. In my assessment, the same conclusion also applies to the element of factual causation that is required to be established as against the first three defendants, namely that the individual failures of those respective defendants each constituted a necessary condition of the harm suffered by the plaintiff: s 5D(1)(a) of the CL Act.

265. In relation to the claim against the first, second and third defendants, it remains necessary to consider the scope of the statutory requirement of whether it is appropriate for the negligence, as found, to extend to apply to the harm suffered by the plaintiff: s 5D(1)(b) of the CL Act.

266. In that regard all of those three defendants were, for financial reward, carrying out potentially dangerous commercial and industrial operations on the site. This necessarily mandated that in the conventional manner, they were required to comply with and to reasonably discharge the duty of care that rested upon each of those defendants. In those circumstances, there is no sound reason that emerges from the evidence for not extending the liability of those defendants for the harm suffered by the plaintiff: s 5D(1)(b) of the CL Act. There are no exceptional circumstances for excluding the defendants from liability for the negligence that has been found: s 5D(2) of the CL Act.

267. I therefore find that the plaintiff has established all of the elements required for findings of factual and legal causation to make all four defendants liable for his damages.

Issue 6 – Consideration of s 151Z of Workers Compensation Act 1987 (NSW)

268. Section 151Z of the Workers Compensation Act provides:

151Z Recovery against both employer and stranger

(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,

(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker’s injury under this Act, and the worker is not entitled to any further compensation,

Note. See also section 151N of this Act and section 10 of the Law Reform (Miscellaneous Provisions) Act 1965 in relation to the application of other laws concerning contributory negligence.

(c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),

(e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages,

(e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment,

(f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission.

(1A) In the application of subsection (1) (b) in relation to a worker who recovers motor accident damages to which Part 4 of the Motor Accident Injuries Act 2017 applies in respect of an injury:

(a) the liability of the worker to repay the amount of compensation already paid does not include any amount of compensation already paid under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of this Act in respect of the injury concerned, and

(b) the liability of the worker to repay the amount of any permanent impairment compensation and pain and suffering compensation already paid is limited to the amount of any damages recovered for non-economic loss.

(1B) Any amount that is excluded under subsection (1A) from the amount that a worker is liable to repay out of damages is excluded from the indemnity to which a person is entitled under subsection (1) (d).

(2) If, in respect of an injury to a worker for which compensation is payable under this Act:

(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,

(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:

(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and

(ii) if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.

(3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury.

(4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses.

(5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement.

269. As was flagged during the course of the final submissions (at T256.50), the practical application of the provisions within s 151Z(2) of the Workers Compensation Act will be dependent upon the findings made as to the apportionment of responsibility for the plaintiff’s damages as between the respective defendants. The consideration of that issue now follows.

Issue 7 – Apportionment between defendants

270. As observed at sub-paragraph (5) of [262] above, the plaintiff was injured because of a confluence of negligent actions by each of the respective defendants. [T257.44 – T257.47]

271. The first three defendants have exchanged cross-claims which seek an apportionment of their respective liabilities to pay damages to the plaintiff pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). There was no cross-claim by the employer against the other defendants. The cross-claims are as follows:

1. The amended first cross-claim by the builder’s insurer QBE, was against the scaffolder, the fascia contractor and the employer where the allegations were essentially that:

1. The scaffolding contractor erected the scaffolding but failed to carry out a full re-inspection after the scaffold was raised and failed to ensure the timber planks were properly positioned and secured, failed to secure the safety of other workers on the site and failed to prevent access to the scaffold tower platform;

2. The fascia contractor moved the timber planks on the platform so as to enable the installation of guttering, and in doing so, made unauthorised modifications to the scaffolding, failed to advise the builder of the changes made, failed to install warning signs of the modifications so made, and failure to prevent access to the scaffolding tower;

3. The employer failed to institute and maintain a safe system of work for the plaintiff, including failure to inspect the scaffolding, failure to identify hazards, failure to implement a safe system for disposing of the redundant roof tiles;

2. The amended second cross-claim by the scaffolding contractor against the builder’s insurer, QBE, the fascia contractor, and the employer, where the allegations were essentially that:

1. The builder, as site controller, site manager and site supervisor failed to undertake precautions, inspections or require remedial scaffolding work, failure to ensure safe access and monitoring of the works and general systemic failure to manage safety issues on the site;

2. The fascia and guttering contractor made unauthorised alterations to the bridging planks arrangement and failed to ensure the platform planks were left properly positioned and secured, failure to provide barriers to access, failure to warn other contractors on site of prevailing safety issues, failure to provide inspection and safety compliance;

3. The employer failed to institute and maintain a safe system of work for the plaintiff, and allegations along the lines outlined at sub-paragraph (1)(c) of [270] above;

3. The amended third cross-claim by the fascia and guttering contractor was against the builder’s insurer, QBE, the scaffolding contractor, and the employer, where the allegations were essentially that:

1. The builder failed to coordinate the trades and sub-trades on the site and failure to communicate with those persons and provide reasonably safe premises for those persons to carry out their work;

2. The scaffolding contractor failed to provide appropriate and safely secured scaffolding components, failed to comply with applicable standards and failed to prevent access to unsafe areas;

3. The employer’s failure to provide a safe system of work for the plaintiff including along the lines outlined at sub-paragraph (1)(c) of [270] above.

272. All of those cross-defendants filed defences which resist the allegations made in respect of each of the cross-claims.

273. The principles that apply to the apportionment process are well settled, and require a comparison of the respective culpabilities according to the degree of departure from the required standard of care, including the importance of the respective acts of the parties that caused the plaintiff to suffer damage. The ultimate question is one of the causative potency of their respective actions: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34, at [494].

274. The parties made disparate submissions on the appropriate degrees of apportionment of liability as between the respective defendants. In summary, those submissions were to the following effect:

1. On behalf of the plaintiff it was submitted that the scaffolder should bear the “lion’s share” of the responsibility because it created the danger which involved an egregious departure from the standard of care owed by that defendant, whereas the respective failures of the other defendants comprised failures to appropriately react to the danger created by the scaffolder. On behalf of the plaintiff it was also submitted that the employer’s responsibility should be assessed at 10 per cent as it had the least opportunity to identify and deal with the danger created by the scaffolder;

2. On behalf of the first defendant, it was submitted that, giving effect to the decision in South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312, the respective responsibilities of the defendants should be in the following proportions:

1. The scaffolder – 40 per cent;

2. The fascia and guttering contractor – 40 per cent;

3. The builder – 10 per cent;

4. The employee – 10 per cent;

3. On behalf of the second defendant, two alternative scenarios were advanced, namely:

1. Scenario 1, assuming that the direct acts of the fascia and guttering contractor caused the accident:

1. The employer – 20 per cent

2. The scaffolder and the builder – 80 per cent divided equally;

2. Scenario 2, assuming that the actions of the fascia and guttering contractor were the direct cause of the accident, but that the other defendants were contributors, as follows:

1. The scaffolder – 50 per cent;

2. The fascia contractor – 20 per cent;

3. The builder – 20 per cent;

4. The employer – 10 per cent;

4. On behalf of the third defendant, it was submitted that:

1. The scaffolder – 70 per cent;

2. The builder – 30 per cent;

3. The fascia and guttering contractor – zero per cent;

4. The employer, an unstated proportion, but by deduction – zero per cent;

5. On behalf of the employer, it was submitted that:

1. Total liability rests with the builder, the scaffolder and the fascia contractor in unspecified proportions;

2. The employer, no more than 10 per cent.

275. The apportionment analysis must start from the premise that none of the respective defendants can avoid a degree of responsibility for the harm suffered by the plaintiff as they each had a material role in causing that harm, as determined in the consideration in respect of Issue 5.

276. There is no reliable evidence to suggest, on the balance of probabilities, either by an available finding of fact or the drawing of an available inference, that any of the defendants delegated their duty of care in relation to the site to any other party as discussed in Condos v Clycut Pty Limited [2009] NSWCA 200, at [61], applying Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, at [53], [68].

277. It is convenient to commence the analysis with a consideration of the employer’s culpability. In my view, the causative potency of the employer’s negligence is on a far lesser scale of culpability compared to the other defendants. This is because by the time the plaintiff’s employer came onto the site and had the opportunity of carrying out a safety inspection of that part of the site where the tiling workers would be working, the scene had already been rendered unsafe by the successive failures of the first three defendants. The employer was reasonably entitled to expect that adequate safety information, or information about the lack of safety would have been provided to him, and that did not occur. If the employer had inspected the site from roof level, his attention ought to have been attracted to the bridging planks, which, even to the limits of his expertise, should have led him to enquire of the builder, as the head contractor, as to how if at all the bridging planks, which his employees might foreseeably use, were secured. In my view, the employer’s failures in that regard are on a relatively minor and far lesser scale of culpability when compared to the other three defendants.

278. That conclusion conveniently leads to a consideration of the relative culpability of the first, second and third defendants. I start that part of the analysis by identifying my conclusion that the causative potency of those three defendants was not equal amongst those three defendants.

279. In that sequence of events I consider that the causative potency of the scaffolder’s conduct was proportionally much greater than all other individual defendants. This is because he and his employees had the expertise and the duty of ensuring that the scaffolding and any related structures, including the bridging planks, were suitably secured to make those structures safe for foreseeable uses on the site. Not only were those bridging planks left unsecured, which enabled the fascia and guttering contractor to easily move them to a different position, but the head contractor builder was not informed of that prevailing and unsafe condition. Those considerations and the failure to adequately communicate with the builder requires that the scaffolder should bear a greater share of the responsibility compared to the builder and the fascia and guttering contractor individually.

280. In my view, the remaining consideration of the causative potency of the culpability of the builder and the fascia contractor should be seen to be on an equal par between them so that their culpability should be seen to have contributed equally to the plaintiff’s harm. This is because in each instance, the respective failures of the first, second and third defendants was essentially a failure to inspect and coordinate on the part of the builder, and a failure of the fascia and guttering contractor to inform the builder, and the others, of the effect of his actions in moving the bridging planks in terms of site safety .

281. In balancing those factors, I consider the fair, just and equitable apportionment of liability as between the four respective defendants, in descending order of proportion, to be as follows:

1. The scaffolder – 40 per cent

2. The fascia and guttering contractor – 25 per cent

3. The builder – 25 per cent

4. The employer – 10 per cent.

282. The practical monetary effect of these findings must be determined after the plaintiff’s damages have been assessed.

Issue 8 – Assessment of damages

283. In view of my findings that all of the defendants were negligent and that their respective negligence had causally contributed to the plaintiff’s damages, it becomes necessary to assess the plaintiff’s entitlement to damages both according to the requirements of the CL Act, and according to the WC Act. The following table identifies the heads of damage claimed by the plaintiff and the differentiation in the claimability of those heads of damage under those two statutory assessment schemes:

Head of damage	CL Act	WC Act
(a) Non-economic loss	Claimable	Not claimable
(b) Past economic loss	Claimable	Not claimable
(c) Past loss of superannuation	Claimable	Claimable
(d) Future economic loss and superannuation	Claimable	Claimable
(e) Fox v Wood	Claimable	Claimable
(f) Future out-of-pocket expenses	Claimable	Not claimable
(g) Past out-of-pocket expenses	Claimable	Not claimable

284. The claim for non-economic loss damages is not maintainable against the plaintiff’s employer, the fourth defendant. Only damages for past and future loss of earnings are claimable against the fourth defendant: s 151G of the WC Act. The consideration of the claimable heads of damage now follows.

Non-economic loss

285. The plaintiff’s claim for non-economic loss is limited to the claim against the first three defendants. It must be determined according to the requirements of s 16 of the CL Act, according to a comparison to a most extreme case.

286. Non-economic loss for the purpose of that section relevantly means any one or more of the elements of pain and suffering, loss of the enjoyment of the amenity of life, and disfigurement: s 3 of the CL Act. The assessment of non-economic loss requires a factual determination of the representative percentage compared to a most extreme case, rather than a discretionary assessment as would be the case in an assessment of common law general damages: Hall v State of New South Wales [2014] NSWCA 154, at [31]-[32]. The monetary assessment is then necessarily dictated by the percentage assessment.

287. The parties made disparate submissions on the appropriate percentage assessment for s 16 damages. On behalf of the plaintiff, the submitted assessment was 55 per cent: MFI “3”. On behalf of the first defendant as supported by the second and third defendants, the submitted assessment was 30 per cent: MFI “5”.

288. The assessment of non-economic loss should not involve considerations of reward, generosity or parsimony, but instead, it must represent fair compensation for the plaintiff’s pain and suffering and for the loss and interference with the amenity and the enjoyment of his life.

289. Those losses include the loss of satisfaction and sense of achievement that would ordinarily flow from advancement in a chosen career, and the satisfaction and sense of achievement in taking up economic opportunities. Those losses stand apart from the plaintiff’s claim for loss of earning capacity for which he will be separately compensated. The matters emerging from the medical evidence, as summarised at [109] to [115] above, compared to his most likely pre-accident circumstances, as summarised at paragraphs [123] to [125] above, are clear indications that the plaintiff’s current and future work restrictions provide a reasonable basis for viewing this component of loss as being significant.

290. Having regard to all the factors that aggregate to inform the assessment of non-economic loss, I consider that the assessed percentage should be significant. This is because of the nature of the medical impact the plaintiff’s injuries and treatment have had upon him as already summarised at [96] to [99] above, and the identified ongoing disabilities already identified at [100] to [117] above.

291. The aggregated factors, which comprise physical, visual, cosmetic and psychological sequelae, significantly, adversely and permanently affect the plaintiff’s daily life and his experiences and interactions with others. At his present age of 29 years, he has a statistically estimated median life expectancy of a little over 56 years.

292. Having undertaken the required survey of comparative considerations that arise in a s 16 assessment I have concluded that the defendant’s submitted percentage of 30 per cent of a most extreme case represents an inadequate comparative assessment of the matters identified, which will always be within the plaintiff’s conscious thinking. His visual impairment requires that he be constantly on guard to avoid the risk of harm due to his limited vision. Additionally, he faces the inconvenience and the risks of repeated future interventional treatment to his damaged right eye. Instead, I consider the appropriate assessed percentage should be 50 per cent of a most extreme case.

293. The current maximum gazetted amount for s 16 damages is $635,000, and 50 per cent of that amount is $317,500. I therefore assess the plaintiff’s damages pursuant to s 16 of a most extreme case in the amount of $317,500.

Past economic loss

294. The plaintiff’s submissions on past loss of income totalled $76,558, which were then rounded down to $76,500: MFI “3”.

295. That sum comprised an initial period of absence from work between 19 September 2008 and February 2010 at an average rate of $648 per week gross or $587 per week net, and then for various differences between part time and full time employment, and various periods off work for the 10 surgeries the plaintiff had undertaken before the hearing. The plaintiff’s present income is $1,279 net per week.

296. It is not necessary to dissect and analyse the plaintiff’s claim for past economic loss because the defendants have conceded that the plaintiff’s past loss of income is in the net amount of $77,685. I therefore assess the plaintiff’s damages for past economic loss in the net amount of $77,685.

Past loss of superannuation

297. Based on the defendant’s concession as to the plaintiff’s past economic loss of $77,685 at the conventional rate of 11 per cent, I assess the plaintiff’s damages for past loss of employer funded superannuation in the amount of $8,545.

Future economic loss and superannuation

298. The parties are in agreement that the plaintiff’s claim for damages for future economic loss should be the subject of an award by way of a lump sum cushion that is not precisely calculable, rather than seeking to project a precise recurring weekly monetary loss: s 13 of the CL Act.

299. Although the plaintiff has succeeded in obtaining relatively well paid mitigatory employment in the mining industry and has maintained employment initially since 2010 and then again from 2014 to date. He has nevertheless suffered a permanent impairment to his otherwise unfettered and unrestricted earning capacity. On behalf of the plaintiff it was submitted that the appropriate sum to be awarded for this head of damage should be $200,000. In contrast, on behalf of the defendants, it was submitted that the appropriate amount should be $100,000. Each of those approaches included allowances for loss of future superannuation.

300. For a claim for damages for future loss of earning capacity to be monetarily assessable, it is not only necessary for the plaintiff to show that he has suffered an impairment in his earning capacity, but it is also necessary for him to show that such an impairment also has the ongoing deleterious effect of causing a financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48.

301. In my view, the plaintiff’s ongoing disabilities as outlined at [100] to [108] above, compared to his pre-accident situation as outlined at [123] to [125] above, as supported by the medical evidence summarised at [98] above, and [109] to [115] above, mandate that a significant allowance be made for damages for future loss of earning capacity.

302. An impairment of earning capacity does not require demonstration of a present and ongoing calculable weekly loss. The absence of a recurring weekly loss does not mean that the plaintiff will not suffer a diminution in his earning capacity. The medical evidence as to the plaintiff’s future and disadvantageous work restrictions are identified and summarised at [109] to [115] above. In such cases, as difficult as the task might be, an assessment must nevertheless be undertaken, even if only in the form of a lump sum economic buffer: State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133; Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.

303. On that approach, doing the best I can to be fair to the plaintiff and not unfair to the defendants, I assess the plaintiff’s damages for future loss of earning capacity, including superannuation, in the amount of $200,000.

Fox v Wood

304. The plaintiff is entitled to damages that account for the tax that was deducted from his weekly workers’ compensation payments: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41. The parties have accepted a rounded down “rule of thumb” approach of 20 per cent to identify those payments, which I therefore assess in the amount of $2,300.

Future out-of-pocket expenses

305. The plaintiff submitted that an award for future treatment expenses should be allowed in the amount of $30,000. That sum comprised three elements, those being first, an annual amount of $500 for treatment to flush the plaintiff’s lacrimal drainage tubes, secondly, an allowance of $5,000 as a lump sum for further surgical replacements of those drainage tubes, and thirdly, reviews of unspecified frequency by the plaintiff’s local medical officer. The defendants’ submissions accepted that an allowance of $25,000 should be made for this head of damage.

306. Given the plaintiff’s relatively young age and the likelihood of further treatment being required from time to time, I consider the amount claimed by the plaintiff to be reasonable in the circumstances. I therefore assess the plaintiff’s damages for future treatment expenses in the amount of $30,000.

Past out-of-pocket expenses

307. The plaintiff has identified an amount of past out-of-pocket expenses in the amount of $152,437 to which there was no demur. In final submissions it was indicated that amount was likely to require upward adjustment for recent treatment, the cost of which has not yet been identified. In those circumstances leave was given for the final figure for past out-of-pocket expenses to be updated before the entry of final judgment: T257.13 – T247.24. In the interim, the plaintiff’s past out-of-pocket expenses are assessed in the provisional amount of $152,437.

Summary of damages assessment

308. My assessments of the plaintiff’s damages are summarised as follows:

Head of damage	CL Act	WC Act
(a) Non-economic loss	$317,500	Nil
(b) Past economic loss	$77,685	$77,685
(c) Past loss of superannuation	$8,545	$8,545
(d) Future economic loss and superannuation	$200,000	$200,000
(e) Fox v Wood	$2,300	$2,300
(f) Future out-of-pocket expenses	$30,000	Nil
(g) Past out-of-pocket expenses	$152,437	Nil
Total	$788,467	$288,530

Interim orders

309. The plaintiff has established his entitlement to damages awards under both damages schemes. Before entering judgment in his favour I will hear from the parties as to the appropriate orders to be made in light of s 151Z of the WC Act and my findings as to apportionment between the defendants and as to the appropriate orders for costs.

Orders

310. Within 7 days of today’s date the parties are to bring short minutes with draft orders that reflect the monetary effect of my findings in these reasons.

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Decision last updated: 18 April 2019