Boskov v Barclay Mowlem Construction Limited - [2006] NSWSC 168

CITATION: Boskov v Barclay Mowlem Construction Limited [2006] NSWSC 168

HEARING DATE(S): 20, 21, 22, 23, 27 March 2006

JUDGMENT DATE :
28 April 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Malpass at 1

DECISION: Findings; liberty to apply.

CATCHWORDS: Duty of care - head contractor and occupier - Regulation 73 - safe means of access to work place - delegation of duty - liability in tort of employer to head contractor.

LEGISLATION CITED: Construction Safety Regulations 1950
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1988

CASES CITED: Australian Paper Manufacturers Pty Ltd v Conyers (1962) 62 SR (NSW) 682
Dawson v Hall NSWCA (unreported, 27 July 1994)
Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423
Fox v Wood (1981) 148 CLR 438
H C Buckman & Son Pty Limited v Flanagan & Anor (1974) 133 CLR 422
Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267
Lenz v Trustees of the Catholic Church & Anor [2005] NSWCA 446
Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65
Multiplex Constructions (NSW) Pty Limited v Lopez & Anor [2004] NSWCA 319

PARTIES: Gregory Boskov (Plaintiff)
Barclay Mowlem Construction Limited (Defendant/First Cross-Claimant)
AMP General Insurance Limited (Second Cross-Defendant to Second Cross-Claim)
Murmac Services Pty Limited (Defendant to First Cross-Claim/Second Cross-Claimant)
GIO Workers Compensation (NSW) Limited (First Defendant to Second Cross-Claim)

FILE NUMBER(S): SC 20197/05

COUNSEL: Mr H Marshall SC & Mr D Morgan (Plaintiff)
Mr G Parker (Barclay Mowlem Construction Ltd & AMP General Insurance Ltd)
Ms J Oakley (Murmac Services Pty Ltd)
Mr W P Kearns SC & Mr S Marsh (GIO Workers Compensation (NSW) Ltd)

SOLICITORS: Beilby Poulden Costello (Plaintiff)
Ebsworth & Ebsworth (Barclay Mowlem Construction Ltd & AMP General Insurance Ltd)
McMahons National Lawyers (Murmac Services Pty Ltd)
Sparke Helmore (GIO Workers Compensation (NSW) Ltd)

LOWER COURT DATE OF DECISION: 03/20/2006

- 48 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

28 April 2006

20197 of 2005 Gregory Boskov v Barclay Mowlem Construction Pty Limited

JUDGMENT

1 His Honour: The plaintiff was born in Sofia, Bulgaria, on 20 February 1965 (he is now aged 41 years). In 1969, he came to Australia with his adoptive mother and lived in Perth.

2 In 1980, the plaintiff completed Year 10 and left school. He commenced work as a plasterer. He worked as, inter alia, a plasterer or a dogman until about 1990.

3 An unsuccessful marriage ended in 1995. There was a son of the marriage (he was born in 1991). The plaintiff then experienced alcohol and drug problems (involving the use of heroin) which brought an end to a mini skip business he had conducted. In 1996-97, he spent 10 months in rehabilitation.

4 The plaintiff had another unsuccessful relationship (from which a daughter was born). She is now seven years of age and lives with him and is looked after by his mother in his absence.

5 In 1997, the plaintiff commenced work as a scaffolder. During that time he worked for Perth Construction Hire (PCH). He did not do any off-shore rigging. He gave an untrue explanation for not doing it (his girlfriend was pregnant). In April 1999, he commenced employment with Murmac Services Pty Limited (Murmac). He averaged $925 net per week.

6 In September 1999, he was largely employed by Murmac to work on the Botanic Cove project (Stage 1A). This stage of the project was located between Karrabee Avenue and Victoria Road (the project site). It was a substantial project. The plaintiff described it as a large area sealed to the public. Murmac was a sub-contractor doing scaffolding work on the project. Exhibit 1 is a plan of stages of the project.

7 The plaintiff described the project as comprising 5-6 buildings with 10-12 units per building. There were underground car parks. He said that Murmac supplied some of the scaffolding, with other scaffolding being supplied by the defendant. He attended safety meetings conducted by John Gillen (who was said to be a safety officer and nurse). He worked with other trades.

8 The plaintiff’s evidence is to the effect that, at times, he was a member of a team of three (two scaffolders and a labourer). They were given an induction (basic safety rules within the site, including to use staircases, walkways and the like). He said that it was given by Mr Gillen. The plaintiff first denied that he had been given an induction by Peter Murphy. He later agreed that Mr Murphy did give him an induction (after being shown Exhibit 3). They were told by a supervisor or site manager of the defendant where and when they had to work and what work to do.

9 During his work on that project, he experienced work incidents on two separate days. He was then an advanced scaffolder. The first probably took place on 29 October 1999 (there is an issue of no significance concerning whether it happened earlier, on 27 October 1999). I shall refer to this as the first incident. Two incidents took place on 5 April 2000. I shall refer to the second of them as the second incident. I shall now recount the plaintiff’s evidence as to these incidents and what happened between them.

10 29 October 1999 was the first day that the plaintiff was working on that particular part of the site. A direction to do such work had been given that morning by a supervisor of the defendant. At about 11am he was moving scaffolding (“standards”) across a slab to a worksite. The ball of the plaintiff’s foot became jammed in a waste water hole.

11 In his evidence in chief, the plaintiff said, “my foot went into a waste hole, which caused me to trip and then I slammed my foot into a brick saw which had things leaning on it” (Tr 20.3.06, p20, 1-3). He said that the hole had a diameter of 200mm. It was wider than a hole depicted in tendered photographs (Exhibit A) and the insert was not there. He said that it was covered over with gaffer tape which was silver in colour. He said, “It was concealed. I could not see it” (Tr 20.3.06, p22, 11). He further said that it was covered by “[m]ainly formwork, dust and just building rubble” (Tr 20.3.06, p22, 15). He later described this material as flat red dust (from the cutting of formwork panels) that covered the slab over.

12 The plaintiff also said of the first incident that he had been paying attention to where he had been walking. He said, “I got jammed in there. It caused me to trip” (Tr 20.3.06, p24, 2). He said of the gaffer tape “It just pulled open” (Tr 20.3.06, p24, 5). He thought he fell forwards.

13 The plaintiff said that he hit his left knee on a brick cutter and it had bits of formwork leaning on it. He felt sharp pain in his left knee.

14 During his cross-examination, the plaintiff said that he and Steve Murdoch (the other scaffolder) were equals. He did not recall that there were three slabs. When asked what building he was working on at the time of the first incident, he said “I think it was C or D, could even have been E” (Tr 21.3.06, p46, 51). He agreed that he could have been working on scaffolding for the lift of D building on the second floor. One answer that he gave was that he did not remember whether it was the first trip or otherwise. He later gave evidence that “There was several trips” (Tr 21.3.06, p48, 20). He also said “I can’t recall any activities” (Tr 21.3.06, p47, 34). He said there were other persons with him, but he could not recall how many there were. He did not remember whether the incident took place during the morning or the afternoon.

15 During this evidence, the plaintiff also said that the ball of his foot went into the hole and got stuck. He described his fall as “Just like a fall forwards, sideways” (Tr 21.3.06, p49, 54).

16 He said that he reported the incident to Mr Gillen. Gillen treated and bandaged the plaintiff’s lacerated knee. He did not seek any other treatment. He remained at work. He said that he took Gillen back to the site of the incident (parts of the tape were still in situ). Gillen said that he would fix the problem. A few days later it was fixed (with “ramset formwork panels over the holes” (Tr 20.3.06, p25, 40).

17 The plaintiff had some time off work (about one week) when his family came across from Perth. The pain in his left knee lessened. He returned to work without disability. After the Christmas holidays, he returned to work on full duties. It was heavy work. Whilst he was able to cope with that work, he still experienced pain. He did not seek any medical treatment.

18 On 5 April 2000, it appears that he was erecting scaffolding on Building E (for a “car park riser”). He said that, in the morning, whilst kneeling and lapping boards, he experienced a sharp pain in his knee when he stood up. He said that he had not experienced that sort of pain before. It lasted about an hour. He had a break for about half an hour and had an early lunch. He was able to continue with the work. He didn’t recall a break because of rain.

19 At about 3.15pm, following completion of the day’s work, the plaintiff went to leave the site. He gave evidence of a normal route along the slab to the site office and car park. He said that he “had to take an alternative means of exiting” (Tr 20.3.06, p31, 21). He said that he saw his colleagues getting off the slab that way. He mentioned excavation work and big holes. He gave the following evidence:

Q. Was there another area for getting off the slab?

A. Yes, the one we took.

Q. When you say the one we took, did you see people getting off the slab ahead of you?

A. Yes, there was my colleagues.

Q. What way was that, where was that?

A. Next to the slab, the lowest point we could find, we just stepped off it.

Q. When you say the lowest point, what do you mean?

A. The lowest point of the slab to the ground.

Q. That measured the height from the slab to the ground?

A. Yes.

Q. The lowest point you could find, what was the height differential between the slab to the ground where you had to step down to?

A. About 800 to 1200 millimetres, in between 800 and 1200.

… … …

Q. How did you get off the slab on this day?

A. I stepped off.

Q. Can you describe how you stepped off?

A. One hand down and leapt over the edge.

Q. As you put one hand down and leapt over the edge did you land on one or both of your legs?

A. Both, I think.

Q. Did anything happen to you?

A. I hit the ground. My left knee just gave way and I went to the ground.

Q. The ground where you landed, what was the area of the ground, was it a walkway, footpath?

A. Footpath and roadway, footpath to the roadway.

(Tr 20.3.06, pp31-32)

20 The ground where the plaintiff landed was also said by him to have just been graded and made of “loose material”. He later described it as compacted road base.

21 He described his pain as intense and sharp. He said that he was unable to get up. He was carried to the site office. He spoke to Mr Gillen and told him what had happened. His further evidence was that Mr Gillen said that he would have a look at the situation. He was later taken to a bus stop. He got the bus and went straight home.

22 The plaintiff gave this evidence:-

Q. You said earlier that he knew about the situation?

A. He knew which particular area it was.

… … …

Q. And you have said earlier that he knew about this, and I want to ask you what he had said to you that led you to say he knew about the height differential?

A. Well, there was some bunting there---

Q. I am asking you what he said to you, do you understand? What did Mr Gillan

say to you that allowed you to conclude that he knew about it, what did he say?

A. “Is that the area that you were working?”

Q. To which you responded?

A. “Yes”.

Q. And what did he say, or did he say anything about that?

A. I don’t recall him saying anything---

(Tr 21.3.06, pp12,13)

23 In cross-examination, the plaintiff described the building that they were working on as “either C, D or E, it was towards the end of the buildings” (Tr 22.3.06, p58, 56). He agreed that it could have been building E. He thought that they were moving a lift up a bit higher for the bricklayers to start on another level. He was not sure whether or not they worked all day on the project. They got on to the slab though the normal access. He agreed that his only recollection is of the injury when he stepped off the slab. He gave this evidence:

PARKER: Q. There is no real doubt, is there, that there was an alternative; that is to say, go down the car park?

A. There could have been scaffold off, there could have been work proceeding there, anything could have happened.

Q. But you don’t say that you have any recollection that that is the case, do you?
A. No, but what I’m saying is that if there was an alternative I’m sure we would have taken it.

24 He gave this further evidence:-

Q. You have no recollection of there being any obstruction to the access to this slab through the car park, correct?

A. No recollection, sir, no.

Q. You agree that absent some reason why you couldn’t use that means of access, you could readily have gone off that site through the car park, correct?

A. I presume so, sir, yes.

Q. I think you agreed with me at an earlier point of time that you could have in fact simply walked along from slab E to slab D and back up to A, correct?

A. Yes.

(Tr 21.3.06, p62)

25 These passages from the transcript are not intended to present all of the evidence given by the plaintiff on this matter. Rather, they present a sample. There are other passages (including evidence given at Tr 22.3.06, p76, 78). The sample indicates, inter alia, the conflicting nature of what was often said by the plaintiff in evidence.

26 The plaintiff also said during his cross-examination that Mr Gillen removed bunting (which was used as a warning) at the time they were about to go home. He gave this evidence:

Q. And on this particular occasion you saw Mr Gillan

take it away?

A. Yes, and----

Q. What did he do with it?

A. He moved it aside and indicated that that would be the way we would get off the slab when we finished our work.

Q. What, he came over and told you that?

A. He shouted up to us.

Q. Can you remember, as best you can, what words he used?

A. No.

Q. The effect of what he said?

A. Just indicated that this is the way out.

Q. So he said something like, “This is the way out”?

A. “This way out”.

Q. And that’s where you jumped off?

A. That’s the point we jumped off, where he had the bunting cleared off.

Q. Are you quite certain of that?

A. Yes.

Q. Are you quite certain it was Mr Gillan?

A. Yes.

Q. And you would recognise Mr Gillan?

A. I would.

(Tr 21.3.06, p64)

27 In cross-examination, the plaintiff also gave conflicting evidence as to the distance between the slab and the ground (Tr 22.3.06, pp77-78). He said that he thought it was higher than in the order of 500-600mm. He later came to say it was about 600mm.

28 The plaintiff reported the incident to Mr Gillen. He saw a medical practitioner (Dr DeSilva). He was given medication and had physiotherapy (for about three weeks).

29 On 7 April 2000, he made a claim for compensation. It contained the following under the heading “What happened” (Exhibit D):-

Walking of

slab of concrete hit ground wrong way and damaged knee.

30 On 14 April 2000, the plaintiff attended a meeting concerning his injury management progress. Also present was Mr Murphy (of Murmac) and Cassandra Smithies. The plaintiff signed a statement (Exhibit 2).

31 The statement contains the following:-

I was working on a 2.5-4m scaffold during the morning and I felt a sharp intense pain in my (L) knee. As I stood up, this pain was evident. I then continued to work through the day as I thought that the pain was short term and due to the position I was kneeling in. During the afternoon it started to rain and after

it had been raining for about ½ hour we finished work. We then climbed down, and as I stepped down 1200mm to the ground I felt the

same intense pain.

32 The plaintiff had time off work and did not return to employment with Murmac (during that period he said that he could not have performed full duties). The swelling had subsided and he thought that his knee had improved.

33 He saw a general practitioner in Casuarina, Western Australia, on 16 April 2000. He was certified as being fit for work. He said that he saw the doctor so as to get off compensation and the doctor did not touch his leg.

34 The plaintiff was offered a six month contract in Nhulunbuy Gove (Northern Territory). He said that he had been thinking about this offer before the second incident. He commenced in about May 2000. The job involved vigorous work with active use of his left knee (working more than eight hours per day up to seven days per week). He was paid $2,100 gross per week. His left knee soon became painful and began to swell. He gave up the job after about three to three and a half months. He said that by that time, his knee was worse than it had been on 5 April 2000. He sought medical treatment and was referred to Dr Peter Gray (an orthopaedic surgeon) in Sydney. The plaintiff ceased work on 25 July 2000. He said that he was then unable to work.

35 He said that his intention was to return to scaffolding after having the respite of performing light duties.

36 The plaintiff saw Dr Gray on 16 August 2000. He was diagnosed as having a medial meniscus tear. He was put on an exercise regime and referred for physiotherapy.

37 The plaintiff made an unsuccessful attempt at scaffolding sub-contracting (about four weeks). Apart from an unsuccessful attempt (four to five months) at working at a kitchen hand in 2005, he has not worked since. He has done some computer courses, but did not like that work. He gave evidence to the effect that he had poor reading skills. The material was relied on, inter alia, to demonstrate unfitness for clerical work and to explain inconsistency in incident descriptions. It is said on his behalf that his capacity has been either eradicated or substantially taken away.

38 In 2002, the plaintiff was approached to do overseas work (by, inter alia, Mr Anderson). His evidence is that he would have taken up the offer had he been able to do the work.

39 It was work that took up eight months per year. The plaintiff said that, but for his knees, he would have sought work as a scaffolder during the other four months.

40 He has remained under the care of Dr Gray. On 19 October 2000, Dr Gray performed an arthroscopic partial medial meniscectomy. He continued with the physiotherapy. His left leg improved.

41 The plaintiff has given evidence of incidents of his left knee collapsing. He had no recollection of telling doctors of such a problem prior to September 2002. He gave evidence of an incident which he said took place in October 2002. This evidence was somewhat confused. Initially, he said that he stepped off a kerb and that his right knee gave way. He then corrected this so as to say that it was his left knee. Questioning revealed an unclear recollection of the incident. He gave the following history to Dr Gray (recorded in a report dated 29 July 2003 and included in Exhibit E):-

Mr Boskov has informed me that on a number of occasions lately when he has pivoted on his leg his leg has given way, the last episode occurring last week. He does not recall any specific injury to date the onset of these episodes of giving way.

42 He returned to Perth to live with his mother. He said that his left leg began to weaken. In October 2002, the plaintiff’s left knee gave way and he heard a large crack in his right knee. He sustained a twisting valgus injury to the right knee. He later suffered further pain when he pivoted to open a door. Dr Gray made an additional diagnosis of tear to anterior cruciate ligament in the plaintiff’s right knee. On 8 November 2002, he underwent an arthroscopic partial medial meniscectomy and debridement of the anterior cruciate stump of right knee. On 31 January 2003, he had a third operation to the right knee (anterior cruciate ligament reconstruction). On 4 August 2003, he had a fourth operation (an arthroscopic debridement of anterior cruciate stump and removal of soreus).

43 He gave this further evidence. He has returned to a full exercise regime. He continues to suffer daily from pain. He takes pain relieving tablets.

44 The plaintiff has also come under the care of a psychiatrist (Dr Ross Manners). The treatment has provided counselling and medication. He has continued to consult Dr Manners since 28 August 2001 (every three or four weeks). A diagnosis of adjustment disorder with depressed mood has been made. He is said to be presently in a state of partial remission, but it is further that this may change in the future.

45 The hearing commenced on 20 March 2006. After an opening of the case, counsel for the plaintiff moved to file a second further amended statement of claim. The application was opposed by the defendant. The defendant was the head contractor or builder on the site. It had brought a cross-claim against Murmac (the first cross-claim). Murmac has brought a cross-claim (the second cross-claim) against both GIO Workers Compensation (NSW) Limited (GIO) and AMP General Insurance Limited (AMP). GIO is the compensation insurer. AMP is the insurer of the defendant.

46 In the first cross-claim, the defendant had sought indemnity and contribution from Murmac on the bases of both tort and contract. GIO admits that it has agreed to indemnify Murmac in respect of the tort only. It disputes any liability to indemnify in respect of claims founded on contract. In the second cross-claim, Murmac seeks indemnity from GIO in respect of that part of the claim that is founded on contract. It also seeks indemnity against AMP. The claim is founded on s48 of the Insurance Contracts Act 1984 and a waiver of subrogation.

47 A lengthy argument took place concerning the proposed amendment. The court was then confronted with a time-consuming problem which bristled with difficulty.

48 The amendment application could have and should have been made well prior to the commencement of the hearing. It had ramifications for all other parties (involving the need to also amend other process). The plaintiff was said to be in difficult financial circumstances and had come from Perth for the hearing (as had other witnesses). There had been changes in representation. This may or may not have been responsible for non-service on the cross-defendants of medical reports and an expert’s report (Mr Simpson).

49 After the lengthy argument, the course was taken of allowing the amendment and proceeding on the basis that consideration would be given to any difficulty concerning the other parties if and when such a need should arise. As it happened, the trial proceeded and no such difficulties cropped up.

50 I have closely observed witnesses during the giving of evidence. In assessing reliability and credibility I had regard both to demeanour and evidence.

51 The plaintiff was the first witness in his own case. He also called Mr Anderson. Mr Anderson is the managing director of Brunel Technical Services (Brunel). In addition, he called Mr Murdoch (a fellow employee of Murmac). He has also relied on documentation (including medical reports, a report from Mr Simpson and a building agreement between Keppel Land Development Pty Limited (the proprietor of the site) and the defendant (Exhibit F)).

52 I shall now record certain of the evidence given by Messrs Anderson and Murdoch.

53 Brunel is said to be the largest offshore manpower company in Australia. Mr Anderson had previously been employed with PCH. During that employment, the plaintiff was a fellow employee. A statement made by Mr Anderson has been admitted into evidence (see Exhibit B). He had been an experienced rigger and scaffolder. The statement provides, inter alia, material concerning the earnings of riggers in offshore projects. Mr Anderson gave evidence that riggers gave up that work at about the age of 45 years and then moved to a supervisory level.

54 He described the work of riggers as being difficult and very dangerous. He said that their working age was between 25 years of age to perhaps 40. He said that normally, a rigger with that much experience would look to elevate himself to the supervisor or foreman position. He said that they still had people working for Brunel today at 55 or 60, but normally in supervisory positions.

55 During his cross-examination, Mr Anderson gave this evidence:-

Q. It is just common sense, that is what scaffolders work at, getting up and down scaffolding, judging distances, and the steps and things?

A. Yes.

Q. If it were the case that a competent scaffolder, such as Mr Boskov, was confronted with the requirement to get off a work slab, a concrete slab where he had been constructing scaffolding and, you would expect him to be able to assess safe means of getting off that concrete slab, is that right?

A. Yes.

Q. If one of the choices was should he jump off a 800 millimetre edge onto a roadway, you would expect him to be able to assess whether that was safe or an unsafe thing to do, would not you?

A. Yes.

Q. Part of his responsibility as, for example, a leading hand in terms of his team, would be making sure that the team got safely on and off a concrete slab where the work was being done?

A. Yes.

Q. And you would expect him, if he was confronted with a jump of 1.2 metres, to be able to make a judgement on behalf of the team as to whether or not that was an appropriate way to exit the slab, is that right??

A. Yes.

Q. In your opinion it would be inappropriate for an experienced scaffolder to jump off a 800 millimetre concrete slab, would it not? I will start again. If an experienced scaffolder was trying to get off a scaffold and he was confronted with the prospect of having to jump down 800 millimetres, you would expect him to come to the conclusion that was an unsafe jump on his part, would not you?

A Not at that particular height, no, I would say that would be reasonably common, 800 millimetres.

Q. It would be reasonably common for scaffolders taking care for their safety to jump off an 800 millimetre slab?

A. I would say it would not be uncommon.

Q. I think you said reasonably common, is that what you meant?

A. Yes.

Q. You would, as an experienced scaffolder, not regard that as an unsafe practice as an employee getting off that slab, is that right?

A. I would say that would be acceptable to me.

Q. Acceptable to you. If we expand the distance of the drop to one metre what would your attitude be then, assume that he comes to a slab and he wants to get off it and the jump is one metre, would you regard that as a safe distance for an experienced scaffolder to jump down?

A. I do not regard a metre to be a big problem.

(Tr 22.3.06, pp101-102)

56 Mr Anderson saw no problem until after a height of 1m. After that, the scaffolder would take a different approach to it. He said that a safe way other than jumping would be to sit on the edge and then there is only 300-400mm to go to the ground from there.

57 Mr Murdoch said that he was employed as a leading hand scaffolder with Murmac. He had worked with the plaintiff at PCH. He commenced work on the Botanic Cove project at the same time as the plaintiff. There was a team of three “full-timers” (Mr Murdoch, the plaintiff and another man. The other man was a labourer called Carl).

58 He also gave evidence of the following matters. The conduct of the Botanic Cove project saw the defendant giving the overall directions. It gave specific instructions to do work at various places on the site. It had on the site a project manager, a site manager, supervisors and foremen. Largely, the work was done by employees of the sub-contractors (including Murmac). Murmac employees would take the scaffolding to a site and build it. In so doing, they had regard to a scaffolding plan.

59 Mr Murdoch was present at the time of the first incident. He said that he witnesses the incident. He gave this evidence:-

Q. What do you remember about that accident, what did you see?

A. We were walking some scaffolding across a newly laid slab to do a job in a lift shaft, as my recollection and as far as I recollect, and Greg was sort of next to me as we were walking and then he put his foot down, like, a penetration or big hole that had been covered over with a black, black plastic and a, like, a film of cement over it so just, like, part of the slab. He toppled over awkwardly and hurt his knee in the process.

(Tr 23.3.06, p179)

60 The plaintiff picked himself up. He did not need assistance but he did complain of a sore knee. Two to three trips were made before the incident.

61 Mr Murdoch did not recall dust on the slab. He later came to see plywood put over the penetration or hole. He reported the incident to the site supervisor. He could not recall if he went with the plaintiff to report the incident to Mr Gillen.

62 Mr Murdoch was also present when the second incident took place. He described it as a cloudy day with a few scattered showers. Initially, he said that he believed they were working on building B (but he was not absolutely sure). Later, he came to think it was C. There was bunting in places, preventing exiting from the edge of the slab adjacent to Karrabee Avenue. He said that he had a 50 per cent recollection of what work they were doing (dismantling scaffolding) and where it was being done. The work took most of the day. He said that they got to the site by the normal route (around the back of the buildings on the Victoria Road side).

63 Mr Murdoch had no recollection of any occasion when the plaintiff stood up and complained that he had pain in his left knee after getting down from scaffolding. He did not recall any significant interruptions to the work caused by rain.

64 He said that, because of excavation (which was going on everywhere) and other work, entering and exiting from the site was becoming harder and harder. He said that it got progressively worse over a couple of days. He further said that, when they had finished work, the usual route taken to exit the site was no longer available. He said that there was no bunting where they got off the slab. He did not remember whether all or part of the bunting had gone from B. He said that he just knew that he didn’t remove any to exit.

65 He gave this evidence:-

Q. Did you look for another way off the slab at going home time?

A. We tried to walk down the stairways into the car park and also down on to Karrabee Avenue but they were all blocked for some reason and so we decided to go back to where the lowest point was and exit that way.

Q. When you say we, who do you mean?

A. Myself, Steve Hutton and Greg.

Q. Where ultimately did you exit the slab?

A. In front of building B.

Q. Could you mark with an X roughly or as best you can where you exited?

A. Sure.

Q. (Counsel approached) I have mark over it with a red pen, are you satisfied that is the right place?

A. Yes.

66 He gave this evidence in chief:-

Q. And the point where you chose to exit, why did you choose to exit there?

A. Because that was the lowest point of exit.

Q. When you say the lowest point?

A. Less height, the least height.

Q. Are you able to say what the height differential was?
A. Around one metre.

67 Mr Murdoch gave the following evidence in cross-examination:-

Q. Do you recall where you had your lunch that day?

A. We would have had it in the normal place, in the crib room.

Q. Do you recall whether you were working before you went to the crib room for lunch, or not?

A. No.

Q. Do you recall how you got to the crib room for lunch?

A. We would have walked there, the normal route.

Q. When you say “the normal route” that is getting off on the southern side, the Victoria Road side of slab B?

A. Yeah and walking around the back of the buildings, yeah.

Q. Was that building available to you at the end of the day?

A. No.

Q. That is correct, is it?

A. That is correct, yeah.

68 He said that the normal route they would walk was the easiest route to get to the site offices. He did not dispute that they could walk form the lift area in building C (which he marked with an “L” on Exhibit C) up Karrabee Avenue. He described it as a fairly rough old road. It involved walking up a hill and then to the site office. He said that “It was easier to walk around the back, and safer” (Tr 23.3.06, p202). Mr Murdoch wasn’t sure or could not say whether they could have got off B in the usual way, turned towards A and then walked around to Karrabee Avenue. He didn’t know or could not recall whether there was access from B to A. He gave this evidence:-

Q. If you are on slab A you can walk off either into Karrabee or around the back?

A. I can't remember - it was restricted in some way.

Q. You cannot remember what sort of restriction?

A. No.

69 Mr Murdoch was the first to leave the site. He was followed by Steve Hutton. The plaintiff was the last to leave. They left the slab on the Karrabee Avenue side. Mr Murdoch said he saw the plaintiff get off the slab “out of the corner of [his] eye” (Tr p186, 8). He said that when the plaintiff “hit the ground he slid a little and then he went down and then he sort of crushed [sic] his knee” (Tr p186, 11-12). He had described his own leaving the site as putting his hand on the slab and stepping off. The plaintiff got up with assistance from them. He was not really able to walk unassisted. He was in a great deal of pain.

70 During the course of his evidence, Mr Murdoch said that he had a fairly good recollection. Initially, he had been under the mistaken belief that he commenced work on the project in August. He was then confidently of the view that it was not September (because he had been recently looking at some old notes). He later came to volunteer that he was in error. He did not recall going through an induction process at the Botanic Cove site.

71 At one stage, he agreed that it was possible they were erecting scaffolding between buildings E and D for bricklayers to build a car park exhaust for E in the afternoon.

72 During later cross-examination he conceded that on 5 April 2005 the three men had been erecting scaffolding between buildings D and E for the purpose of the erection of the car park exhaust and that this had involved the effort of three men for three hours. This information was contained in an entry made in the records kept by Mr Murdoch (see Exhibit 1A). When the matter was first raised with him, he said that it was possible that work was done in the afternoon. He then said it could have taken part of the day (50 per cent of what was done that day). He concluded with the view “I believe in the afternoon we were working where I said we were working” (Tr 23.3.06, p210, 38).

73 Mr Murdoch did not recall whether he had been working on the day before 5 April and between 6 April and 13 April.

74 The defendant called Mr Gillen and relied on documentary material. It did not tender any medical material (even though the plaintiff was twice seen by Dr Harrison).

75 Mr Gillen remains in the employment of the defendant. He is now a tower crane operator. In 1999-2000, his full title was “Occupational first aider, chairman of the safety committee, union delegate on site” (Tr 27.3.06, p213, 35).

76 His duties comprised maintaining general safety on the job. At the time of the two incidents, his employment had him concerned with the safety and occupational health of the workers in and around the site. He did not give directions to subcontractors.

77 Mr Gillen had a limited recollection of the incidents. He completed the report of injuries forms. The information contained therein was supplied by the plaintiff. He may have made some mistakes (including the date of the first accident and a reference to the right knee).

78 Mr Gillen gave evidence of a sub-contractor (a plumber) using grey tape to protect penetrations before the pouring of a slab. It would later be removed. He had inspected taped penetrations. He said that the tape was strong (layers were used) and that one could walk on it. It had two purposes (to keep rubbish out and to stop people from going into it). He said that he seemed to recollect that the plaintiff put his foot into an uncovered penetration. He said that he would have done something to rectify the problem. He did not recollect being taken back to the hole by the plaintiff after the latter had related the incident to him.

79 In relation to the second incident, Mr Gillen gave this evidence:-

Q. Can you listen to this passage of earlier evidence? Mr Boskov said in answer to a question (page 63 line 15):

"... the whole slab and the end was usually bunted off with bunting and this particular time John Gillan had taken that bunting off, so that was the only means of access of getting off at that time."

Did you take off that bunting?

A. No.

Q. This is 5 April 2000 I am talking about?

A. No.

Q. Did you tell Mr Boskov that he should step off the slab where he did on this occasion that he hurt his knee?

A. No.

Q. Did you shout something towards Mr Boskov and his fellow employees like, (page 64 line 35) "This is the way out"?

A. No.

Q. Do you recall Mr Boskov showing you where he had his accident on 5 April 2000?

A. No.

(Tr 27.3.06, pp222-223)

80 Mr Gillen remained firmly of this view during cross-examination. It was consistent with other evidence that he gave. The evidence of the plaintiff on this matter was not supported by Mr Murdoch. Indeed, the evidence of the latter was not only inconsistent with that of the plaintiff, it had startling differences.

81 He did not know what access there was to slab C on 5 April 2000. Whilst there was evidence that the defendant put the bunting in place, the evidence of Mr Gillen is that the foremen were in charge of it. He was not aware of any gaps in the bunting along the slabs on 5 April 2000. Mr Gillen had a memory that the distance between slab C and ground level (Karrabee Road) was “about 500-800mm” (Tr 27.306, p237, 6).

82 He gave this further evidence:-

Q. And if I suggested to you that it was the height differential was between 800 and 1.2, I take it you could not disagree with that from your recollection?

A. No, not off hand.

(Tr 27.3.06, p237)

83 He was not asked and did not give any evidence as to whether or not there was any other means of access from the slab.

84 Unfortunately, in an endeavour to convey the nature and the flavour of the evidence upon which this case has to be determined, it has been necessary to recount (including excerpts from the transcript) evidence in what might be thought to be excessive detail.

85 The plaintiff presented as an unimpressive witness lacking in reliability and credibility. To a substantial degree, his evidence could be described as comprising that which was vague and/or conflicting. He gave the impression of having limited recollection of many matters (including of and concerning the incidents). By way of example, in relation to the second injury, he gave an answer that his only recollection was of the injury when he stepped off the slab. In contrast to this presentation, at times, his recollection could be detailed and precise. Evidence that fell into this category conflicted with evidence given by others (such as by Messrs Murdoch and Gillen). He gave evidence which was untrue. Largely, in the absence of corroboration, I do not accept the plaintiff’s evidence (including his versions of the incidents). It was a case in which corroboration was not easily found.

86 His evidence was redolent with conflict or inconsistency (be it during evidence in chief or in cross-examination). I shall briefly refer to certain matters of conflict or inconsistency. It is not intended to be exhaustive. What was said in cross-examination conflicted with what has been said in evidence in chief (including evidence concerning the second incident). He gave histories, inter alia, to Dr DeSilver (jumping or stepping of scaffolding) and Dr Gray (stepping off scaffolding) which conflicted with his evidence in chief concerning the second incident (the plaintiff saw Dr DeSilver on 6 April 2000). His statement of 14 August 2000 also conflicted with his evidence. His evidence also conflicted with particulars that had been supplied by his solicitors in Western Australia. I do not consider that the magnitude of the conflict or inconsistency can be explained away by, inter alia, lapse of time, carelessness and/or lack of literacy skills.

87 The plaintiff was cross-examined as to the history given to Dr Gray. He said that he was asked a lot of questions. He gave this evidence:-

Q. You were truthful with your answers?

A. To the best of my knowledge, I suppose I did, yes.

(Tr 22.3.06, p137, 46-47)

88 The evidence the plaintiff gave concerning the removal of the bunting and what was allegedly said by him thereafter had the character of recent invention. It had a precision that was not consistent with the general tenor of his other evidence. It was not raised in chief. It did not appear in earlier versions. It was volunteered during cross-examination. It was inconsistent with the earlier evidence given by him (Tr 21.3.06, pp12,13). I do not accept it.

89 There has been no attack on the evidence of Mr Anderson. It seems to me that he should be regarded as a reliable and credible witness.

90 I formed the opinion that Mr Murdoch held an unjustified confidence in his recollection. Generally speaking, I formed the impression that his recollection was not good. Although it was not good, it was perhaps more reliable than that of the plaintiff. Whilst he conceded some matters of faulty recollection, he persisted with others. His evidence also threw up significant conflict or inconsistency. I do not regard him as a reliable witness and there is a considerable amount of his evidence that I do not accept.

91 It is not said that Mr Gillen’s evidence should be rejected and I am of the view that he should also be regarded as a reliable and credible witness. Generally speaking, I accept his evidence (including his denial of removing bunting and directing the means of egress to be adopted by the three).

92 The only evidence put forward by Murmac was of a documentary nature. GIO did not lead any evidence at all.

93 I should mention certain of the contents of two tendered documents (Exhibits 1 and C). Both are a copy plan of stages of the project. Exhibit 1 was initially used by the defendant during cross-examination of the plaintiff. It contains, inter alia, the plaintiff’s representation as to the location of the two incidents. It shows two blue circles marked by the plaintiff to represent the alternative sites of the incident of 29 October 1999. It shows a red cross marked by the plaintiff to represent the site of the incident of 5 April 2000.

94 Exhibit C was initially used by the plaintiff during Mr Murdoch’s evidence in chief. It contains, inter alia, markings made by Mr Murdoch (inter alia, a yellow dot for the site of the incident on 29 October 1999, a blue “L” for the site of work on scaffolding for the bricklayers on 5 April 2000 and a red cross for the point of exiting on that day).

95 The evidence concluded on the afternoon of 27 March 2006. The parties addressed. Addresses on the matters to be decided at that stage were completed by the afternoon of 29 March 2006.

96 Before proceeding further, I should mention one particular question of admissibility of evidence. It produced strong opposition from the plaintiff. The defendant tendered a medical certificate (Exhibit 5). The plaintiff objected to the tender. The document was a Workers Compensation Medical Certificate. The plaintiff had seen a general practitioner (Dr G Chong Wah) at Casuarina in the Northern Territory. He had been on compensation. He said that the purpose of the certificate was to enable him to return to work. The certificate had been produced to the court in response to a subpoena to produce documents.

97 It was argued by the plaintiff that it was a document that should have been served as an expert’s report pursuant to Rule 31.18 of the Uniform Civil Procedure Rules 2005. It was further said that in the absence of service, it should only be admitted if leave was granted pursuant to that provision. The Rule provides that leave is not to be given unless the court is satisfied that there are exceptional circumstances that warrant the granting of leave.

98 There is authority that such a rule does not have application to an expert report that is produced under subpoena at the trial (see, inter alia, Dawson v Hall (NSWCA, unreported, 29.7.94)).

99 In my view, the Rule has no application in this case. Rule 31.17 contains definitions (see, inter alia, the definition of “expert witness”). It manifests the intention that an “expert” for the purposes of the Rule is one engaged for one of the two purposes specified therein (to provide a report or give opinion evidence) for use in proceedings or proposed proceedings.

100 I consider that, when regard is had to these definitions, the medical certificate could not be regarded as an expert’s report that was required to be served pursuant to Rule 31.18. The general practitioner was not engaged for either of those purposes.

101 Agreement was reached as to certain matters of compensation. The plaintiff has been paid compensation in the sum of $129,707.26. Medical expenses have been paid in the sum of $46,381.77. The Fox v Wood ((1981) 148 CLR 438) component is $21, 265.25.

102 I now turn to the case propounded by the plaintiff pursuant to the second further amended statement of claim. The first cause of action is founded on negligence. It concerns both the first incident and the injury allegedly sustained by the plaintiff when leaving the site on 5 April 2000. It pleads, inter alia, that the defendant was the head contractor and/or occupier of the project. There is also a cause of action which is said to be one of breach of statutory duty (failure to provide and maintain a safe means of access to the worksite as required by Regulation 73(2) of the Construction and Safely Regulations). It relates to the said 5 April 2000 injury.

103 It is submitted by the plaintiff that the duty of care owed by that of a head contractor and an occupier is similar. The allegations relied on are that there was a breach of a duty of care to ensure that the work premises were reasonably safe and to ensure that there was a safe means of access to and from the site.

104 The plaintiff’s claim for damages comprises the following components:-

1. non-economic loss
2. past out of pocket expenses
3. future out of pocket expenses
4. past economic loss
5. interest on economic loss
6. future economic loss
7. future care
8. Fox v Wood component
9. loss of superannuation.

105 The plaintiff contends that his injury falls within the category of 50 per cent of a most extreme case. A claim is made for $208,000.

106 Past out of pocket expenses have been paid by GIO. As at 21 March 2006, the sum of $46,381.77 has been paid.

107 The claim for future out of pocket expenses is comprised of the costs of prospective surgery to both knees, prospective medication and prospective physiotherapy. A claim is made in the sum of $59,587.50.

108 The claim for past economic loss falls into three components. There is a period from 6 April 2000 to 6 May 2000. A claim is made in the sum of $3,700 (being four weeks at $925 per week). The second component is for the period 26 July 2000 to 31 December 2001. It is in the sum of $77,700 (being 84 weeks at $925 per week). The third component is for the period 1 January 2002 to 23 March 2006. It involved a claim of two amounts ($101,750 and $257,400). The former sum is calculated at the rate of $925 for 110 weeks. The latter sum is calculated at the rate of $2,340 for a period of 110 weeks. The total claim for past economic loss is $440,550.

109 Interest is claimed on past economic loss (the sum being $313,274 at the rate of 5 per cent over 5.5 years). The amount claimed is $43,075.17.

110 Future economic loss has been calculated on the basis that the plaintiff would retire at the age of 65. An allowance has been made for a residual earning capacity assessed at 25 per cent. The total claim is $907,520.55. The approach taken is similar to that adopted in respect of past economic loss, however, the sum claimed for offshore earnings is now $3,200 net per week.

111 A claim was made for future care in the sum of $203,169. It is founded on what was said in a report prepared by Dr Bodel.

112 The Fox v Wood component is, as mathematically agreed, $21,265.25.

113 The loss of superannuation claim is in the sum of $202,500.

114 During submissions made on behalf of the defendant, it became clear that it would be unrealistic to continue to hear submissions on matters of quantum until the findings on liability had been first made. Accordingly, the course was adopted of deferring further submissions on that matter.

115 There is dispute between the parties as to whether or not the defendant owed a duty of care as alleged to the plaintiff in the circumstances of this case. The plaintiff relies on a number of authorities (including Multiplex Constructions (NSW) Pty Limited v Lopez & Anor [2004] NSWCA 319). The defendant looks to other authority (including Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267).

116 The authorities establish that a duty of care is not owed to all independent contractors. It arises in a category of cases (such as where there is a need for directions to be given as to when and where work is to be done and for the co-ordination of various activities). The duty of care is to take reasonable steps to ensure that the site is safe.

117 In the present case, the defendant, as head contractor, was involved in the co-ordination of a number of trades working on a project that was of significant size. It was the defendant that gave the direction as to when and where work was to be done.

118 Exhibit F (clause 3.04 thereof) gave the defendant an entitlement to possession of the site. There is evidence of occupation during the conduct of the building works. In my view, it should be regarded as an occupier.

119 It is also a case where the defendant assumed the role of having responsibility for general safety on the site. This is established by the evidence of, inter alia, Mr Gillen.

120 The relevant provisions of Regulation 73 of the Construction Safety Regulations 1950 are as follows:-

73 Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work

… … …

(2) provide and maintain safe means of access to every place at which any person has to work at any time …

121 The allegation of breach pleaded against the defendant is one of failure to provide and maintain a safe means of access “to the said work site” (these words appear to the referable to “the said building site”).

122 The provision has application to a person who carries out any construction work. The opening words require the taking of all means that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work. The relevant sub-regulation involves the provision and maintenance of safe means of access to every place at which any person has to work at any time.

123 The authorities establish that the opening words of the Regulation are too vague to create a right of action for breach. A cause of action will arise only if a breach of one of the sub-regulations is established.

124 The ambit of the sub-regulation has not been the subject of submission and it appears to have received limited consideration in the authorities. The purport of the provision is to ensure safe means of access to a workplace.

125 The dictionary meaning of “access” (as opposed to “egress”) connotes “coming to”, “admittance” or “approach”. If that be the proper meaning to be given to the word in the context of this Regulation, then the sub-regulation would have no application in this case. The work had been completed and the plaintiff had left the work site.

126 In Australian Paper Manufacturers Pty Ltd v Conyers (1962) 62 SR (NSW) 682 at p684 it was said:

It is a question of fact in every case whether safe means of access – not a safe means of access – was provided. If a place of work is readily accessible from any direction, but some avenues are unsafe, provisions of safe means of access may involve the exclusion of the unsafe avenues by fencing or by prohibitive orders or warnings. If a place of work is inaccessible except by one means it is necessary to ensure that that access is safe. If the lack of safety may be overcome by the use of safety devices, such as ropes or planks, then these must, at least, be made available to the employees whose protection is envisaged by the regulation.

127 The defendant disputes that it was engaged in construction work. For present purposes, I shall proceed on the assumption that it was carrying out construction work in the relevant sense. The overall coordinating role on the site has been regarded as carrying out such work.

128 The defendant also contends that it is not liable for breach of the Regulation because there was a complete delegation of the relevant task to Murmac. It looks to provisions in the subcontract and a number of decided cases in support of this contention (reference will be made to them in due course).

129 The subcontract was for scaffold labour in respect of stage 1A of the project. It was dated 24 March 2000. The commencement date for the work was 16 September 1999.

130 Under the heading, “Scope of works”, the subcontract contained the following:-

Except as may be expressly excluded in the Subcontract, the Subcontractor shall

all

in accordance with the Subcontract and as necessary for the Builder to complete its work under the Head Contract for the Botanic Cove Stage 1A Project, including, without limitation, all incidental and ancillary items and performance of work necessarily inferred for the completion of the Works.

131 In Lenz v Trustees of the Catholic Church & Anor [2005] NSWCA 446 at paragraph 63, Mason P observed as follows:-

Furthermore, when a head contractor delegates a particular aspect of building work, circumstances may arise that require preliminary steps or ancillary work to be undertaken to ensure the safety of those who will be working on the delegated task. The task of doing the work necessary to complete the preliminary steps or ancillary work may not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. It is a question of fact in each case as to whether the sub-contractor has been instructed to perform the preliminary steps as well as the work the subject of the express instructions (

at 446 (Jacobs J);

at [26]-[29],

at [72];

at [27]).

132 In paragraph 58 of Multiplex Constructions, the following observation was made:-

This requires, in the words of Barwick CJ in H C Buckman & Son Pty Limited v Flanagan & Anor (1974) 133 CLR 422 at 427 that Multiplex, must be “the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts”. The Chief Justice found (at 424) that the head contractor was carrying out one aspect of the construction work, and in that aspect was in breach of reg 73. One of its employees had cut off and removed the bolt heads in a concrete footing in order to re-site a steel stanchion. This led to the collapse of the stanchion when Flanagan leaned his ladder against it, injuring him in breach of reg 73.

133 The Court of Appeal (in, inter alia, Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65 and Kolodziejczyk) has expressed the view that what was said by Mason and Jacobs JJ in H C Buckman was not inconsistent with what was said by Barwick CJ.

134 The following observations were made in both decisions (Kolodziejczyk at [70]:-

Jacobs J pointed out that, where a head contractor instructs some other person to carry out part of the building work, circumstances may arise that require preliminary steps to be taken to ensure that the work which the other person is instructed to do can be done safely. The issue then arises as to the responsibility for those preliminary steps. It must be a question of fact in each case as to whether the other person has been instructed to perform the preliminary steps as well as the work, the subject of the express instructions.

According to Jacobs J, the head contractor will only be regarded as having instructed the other person to perform the preliminary steps if that person was particularly directed to do the specific work ‘necessary in order to fulfil the [head contractor's] statutory duty’. That is to say, according to his Honour, the head contractor will only avoid having a statutory duty in regard to the preliminary steps if the head contractor particularly directs the other person to take those steps. Additionally, the other person ‘must be provided with all material, assistance and supervision necessary’ to ensure compliance with reg 73.

These remarks have to be seen in the context of the statement by Barwick CJ that under the regulations a head contractor owes no duty thereunder in respect of work delegated by it. Jacobs J was merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe. His Honour observed that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps. Nothing in this approach departs from that of Barwick CJ.

It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task. In that event, the task of doing the work necessary to complete the ancillary work or preliminary steps may well not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. The strictures expressed by Jacobs J are designed to prevent such a gap from opening. To ensure that the policy of the legislation, as enunciated by Barwick CJ, is fulfilled, the approach of Jacobs J should be adopted.”

135 In the present case, Murmac had completed the job that it had been directed to do (the workmen had completed their scaffolding duties). They had left that work site. They were proceeding towards egress from the project site. They were not then involved in ancillary work or preliminary steps. It may be added that this was not a case where there had been the requisite provision of material, assistance and supervision to ensure compliance.

136 I have examined the provisions of the subcontract relied on by the defendant. In my view, those provisions do not make out its contention. The delegation extended to “all material and ancillary items and performance of work necessarily inferred for the completion of the Works”. This extension did not cover their activities at the time of the incident. In my view, in this factual context, there was no delegation, express or implied.

137 I now turn to questions of breach. This is one of those cases that have to be decided in circumstances where much of the relevant evidence is lacking in reliability and credibility. The passage of time can at best only in part explain this situation. There is a bewildering lack of commonality in the versions presented by the evidence. In some respects, the differences were startling.

138 At the time of the incident on 29 October 1999, the plaintiff and others were carrying material and proceeding to a work site. It was the first day on which they had been involved in work on that part of the project site.

139 The three witnesses have adduced conflicting evidence as to the presentation of the hole at the time of the incident. The evidence of both the plaintiff and Mr Murdoch is to the effect that the presence of the waste hole was concealed. Although both the plaintiff and Mr Murdoch remembered that the hole was concealed, otherwise their evidence as to its presentation stands largely in conflict. One says it was covered with, inter alia, dust. The other says it was covered by a concrete film. Mr Gillen seems to be under the impression that it was uncovered. However, this evidence needs to be treated with care as he may not have inspected the hole after the incident and may merely have formed an impression from what had been said to him by the plaintiff and/or others. Whilst both the plaintiff and Mr Murdoch saw a tape covering, a different colour was observed by each.

140 The common threads are that the plaintiff’s foot made contact with a hole, that this caused him to lose his balance and suffer injury and that subsequently, the hole was covered with other material.

141 There is evidence from Mr Gillen of the purposes for using the tape and as to its strength. If the hole was covered, the evidence supports a finding of failure of the tape in this particular instance. There may a number of explanations for failure (including the usual practice not being followed).

142 Whatever be the position, I accept that the presence of the hole was concealed. In the circumstances, it seems to me that the hole posed a risk of injury of the kind sustained by the plaintiff and that reasonable steps were not taken to ensure that the project site was safe. There was, inter alia, no evidence of prior inspection. In the circumstances, I consider that the plaintiff has proved breach of the duty owed to it by the defendant.

143 In respect of this incident, the defendant does not make any submissions in respect of the defence of contributory negligence. I do not consider that any such defence is maintainable on the evidence either.

144 There is conflict in the versions given by the plaintiff as to whether the second incident took place after alighting from scaffolding or a slab. It is just another area of uncertainty thrown up by the plaintiff’s evidence. I shall put this question aside as the former is not part of the plaintiff’s case. I shall proceed and consider the plaintiff’s case on the assumption that he alighted from a slab. There is also conflicting material as to how he came to alight and did alight from the slab. I do not accept the evidence of the plaintiff or the version given by Mr Murdoch as to how they came to alight from the slab. The versions given by the plaintiff as to how he alighted include leaping, jumping and stepping off the slab. In my view, the plaintiff has failed to establish that he stepped off it.

145 I do not regard any of the evidence as to the distance between the slab and ground level on 5 April 2000 as being reliable. It may be added that, ultimately, it does not seem to me to matter whether it was 500mm or 1.2m. I accept the evidence of Mr Anderson concerning this matter. He did not regard it as being unsafe.

146 I take a similar view as to the reliability of evidence given and relied on to establish unsafe means of access and that what they did in alighting from the slab was the only means of egress then available.

147 Generally speaking, the evidence on means of access or egress is redolent with conflict. It abounds with confusion. I do not accept the evidence advanced on behalf of the plaintiff to establish his case on this question.

148 The plaintiff’s case as pleaded is that at the end of the day he “was leaving the site”. What “the site” means in this context remains somewhat unclear. It is further alleged that “to exit the site the plaintiff was required to step off the concrete slab from a significant height on to the footpath”.

149 The evidence demonstrates that in the normal course of events they could have left this particular work site and made their way off the project site by a number of routes. Conflicting evidence was given as to a route which was regarded as their normal means of exiting.

150 The plaintiff’s evidence appears to adduce at least two conflicting versions of events. One is that they had to take an alternative to the normal means of exiting. In this version, he said that he followed his colleagues and stepped off the slab at the lowest point (stepping off was described as being executed by placing one hand down and leaping over the edge). Another version was to the effect that he obeyed a direction given by Mr Gillen to get off the slab at a point where the latter “had the bunting cleared off”. This version has the men jumping off at that point.

151 In addition to this conflicting material, there is other contrasting evidence which appears to concede that there were other means of leaving the work site at the time of the incident.

152 The evidence from Mr Murdoch stands in conflict with the two versions given by the plaintiff. Mr Murdoch’s evidence also has its conflicting aspects. It also has concessions as to the existence of other means of leaving the work site at the time of the incident.

153 I consider that if they did alight from a slab, why they did so falls within the area of speculation. One possibility may be that it was seen as an easier means of egress from that particular work site.

154 I do not regard the issue as to the means of egress as being one where the facts were exclusively or peculiarly within the knowledge of the defendant. The plaintiff had personal knowledge of the relevant matters and was probably in a better position than the defendant to give evidence on those matters.

155 Both the plaintiff and Mr Murdoch were at the time experienced as scaffolders. They had earlier made their way safely to and from the work site on that day. They were familiar with the project site and the available routes. If the version of events given by Mr Murdoch was to be adopted, in effect, a discussion took place and a decision was made by the three men to step off the slab. The evidence does not suggest that they had any concern about this being unsafe. They had the knowledge and experience to negotiate such an alighting from the slab with safety. The handling of whatever height was involved was part of daily experience in working on scaffolding. It was not a means of egress provided by the defendant for workmen on the site and this was known to them. Indeed, they knew that there had been bunting to warn that such a means of egress should not be so used. In any event, it was safely managed by both Messrs Murdoch and Hutton (apparently without any difficulty).

156 The plaintiff bears the onus of demonstrating the alleged breaches of duty on the balance of probabilities. In the circumstances of this case, I am not satisfied that the defendant was in breach of either common law or statutory duty in respect of what happened on 5 April 2000.

157 I should add that if the sub-regulation does apply in this case, I consider that the evidence fell short of establishing that means of access provided by the defendant were unsafe.

158 I am left in doubt as to how the plaintiff came to suffer injury after leaving the slab. He has given competing versions of what happened. Mr Murdoch had limited vision of how the plaintiff landed. The nature of the injury suffered in this incident is a debatable matter. How it came about remains unclear. The better view may be that it arose after leaping or jumping.

159 The defendant submits that if it is found contrary to its primary submission that duty of care as alleged is owed, then there was no breach of its duty as occupier because of the following matters:-

i. Mr Gillen was present and he was the First Aid Officer.

ii. There was a site induction attended by all persons on the site.

iii. The evidence is that there was bunting in position. There is no evidence that the bunting was defective or inadequate.

iv. The responsibility for safety in respect of the individual employees of sub-contractors was delegated to the sub-contractor himself.

v. There was a Safety Committee.

vi. There were regular Tool Box Meetings.

vii. The house keeping activities of the sub-contractors were supervised by Mr Gillen.

viii. Mr Gillen made regular walks around the site area.

160 In considering questions of breach of duty, I have had regard to these submissions.

161 In dealing with these questions, I have had regard also to the report from Mr Simpson. However, it gave me little assistance. I shall briefly make certain comments concerning it. These are not intended to be exhaustive. I was not satisfied that masking tape had been used to cover the hole. I do not consider that Australian Standard AS 1657-1992 has application in the circumstances of this case. It is a standard for “Fixed platforms, walkways, stairways, and ladders – Design, construction and installation”. Section 1 makes it clear that AS 1657 has no such application. It contains the following:-

1.1 SCOPE This Standard sets out requirements for the design, construction, and installation of fixed platforms, walkways, stairways, and ladders which are intended to provide means of safe access to and safe working at places normally used by operating, inspection, maintenance, and servicing personnel.

The Standard does not apply to situations where special provision is made in appropriate building or other regulations, e.g. means of escape from fire. Requirements for portable ladders are not included in this Standard.

162 I now turn to the question of what injury has been suffered by the plaintiff as a consequence of breach. To deal with this question, it is necessary to refer to the medical evidence (in particular, the reports of Drs Gray and Bodel). Although all of it has been provided by the plaintiff, it throws up conflicting opinion.

163 A report from Dr Gray dated 30 July 2002 contains the following:-

I suspect that the changes on the medial femoral condyle occurred when he hit the front of his knee on the frame of the brick cutter in January 2000

The squatting and subsequent twisting injury at work on the 5 April 2000 resulted in his tearing his medial meniscus. It is impossible to know if events in his working, domestic or recreational activities, prior to this, caused minor asymptomatic tearing thus predisposing him to the significant tearing sustained at work on 5 April 2000 culminating in his presentation to me.

164 A further report from Dr Gray dated 30 July 2004 contains the following:-

In summary therefore, in his accident at work on the 29th October, 1999, I suspect that Mr. Boskov sustained a soft tissue injury only to his knee with a possible shearing injuries to the articular cartilage of the medial compartment of his knee. He may also have sustained a stable tear to his medial meniscus to account for his ongoing discomfort.

The two incidents described on the 5th April, 2000 I suspect produced a further tearing of the medial meniscus and produced a large unstable flap tear of the medial meniscus and accounted for the symptoms of which he complained when he consulted me on the 16th August, 2000. This left medial meniscus tear was treated by arthroscopic surgery on the 19th October 2000. Following on from this surgery, and despite time and physiotherapy, Mr. Boskov failed to regain normal quadriceps control of his knee. This was the cause of ongoing symptoms in this left knee. In late October of 2002 as a consequence of the ongoing disability in his left knee, this knee gave way. As he went to steady himself on his right knee he sustained a twisting valgus injury to the right knee with giving way. As a consequence of this injury I believe he tore his anterior cruciate ligament and his medial meniscus. In November of 2002, he underwent an arthroscopic partial medial meniscectomy and debridement of the anterior cruciate stump and in January of 2003 he underwent a four strand hamstring graft to his anterior cruciate ligament. Unfortunately, he sustained a further tear to the anterior cruciate ligament graft on the right knee some six months following his reconstruction. He currently has an anterior cruciate deficient right knee.

With regards to a prognosis, Mr. Boskov is at risk of developing earlier than normal osteoarthritis in his left knee as a consequence of the tear to the medial meniscus and the shear stress to the medial femoral condyle. However, the timing to the onset of symptomatic osteoarthritis is a little unpredictable. Should symptomatic osteoarthritis develop, then he may well require further surgery and depending on the onset and clinical picture, the operative options open to him would be either a high tibial osteotomy, a unicompartmental knee replacement and probably culminating in a total knee replacement.

On the right side, again he has an anterior cruciate deficient knee with a meniscal injury. He is at risk of further episodes of giving way. This can result in further chondral damage and tearing to the lateral meniscus which may necessitate further arthroscopic surgery. Ultimately, he will develop earlier than normal degenerative changes in that knee culminating in a total knee replacement if his symptoms dictate. In the meantime, Mr. Boskov should continue with a regular quadriceps strengthening exercise programme and range of movement exercises and to this end walking, swimming and bike riding would be an ideal exercise regimen.

With regards to Mr. Boskov’s capacity to work, prior to his injuries Mr. Boskov worked as a rigger on construction sites. I doubt that he will be able to safely return to this work with his unstable right knee and painful left knee. Giving way whilst working at height could easily occur resulting in further injury to the knees and obviously other parts of his body. Mr. Boskov is not unemployable in the sense that he could perform clerical duties, but I am unsure that he has the training to be employed in this area. At the end of the day, however, I would encourage Mr. Boskov to engage in all activities that he feels comfortable and safe to perform.

I have already answered question 7 in my summary. As best one can assess with hindsight the initial tear injury on the 29th October, 1999 resulted in a stable medial meniscal tear and the subsequent injury resulted in an unstable meniscal tear which was obviously more symptomatic. I am unable to apportion in percentage terms the responsibility between these injuries and I agree with you that it is difficult and somewhat arbitrary in trying to apportion such responsibility in percentage terms and sadly I am not clever enough to do this. Clearly however, it was the second injury that produced an unstable meniscal tear necessitating surgical intervention.

With regards to question 8, I believe that the right knee injury was a direct consequence of the left knee injury. The ongoing pain and disability in the left knee caused this knee to fail, placing undue stress on the right knee and precipitating significant force to result in a tear to his anterior cruciate ligament and tear to the medial meniscus.

165 In a report dated 15 November 2004, Dr Gray said as follows:-

I have seen many patients over the years develop a symptomatic meniscal tear when rising from the squatted position. I cannot however recall anybody sustaining a chondral shear fracture from such an action. I therefore cannot totally agree with the assumption that if the first injury on the 29th October, 1999 had not occurred the resultant injuries in April of 2000 would not have produced any or very limited injury. The meniscal tear could have arisen from the injuries in April of 2000, but the articular cartilage shear fracture could not have been produced alone by the injuries in April of 2000. I therefore do not agree with the contention that it is more probably than not the latter two injuries in April 2000 would not have occurred in the absence of the first injury on the 29th October, 1999.

166 In a report dated 24 November 2004, Dr James Bodel said as follows:-

Mr Boskov first suffered an injury to his left knee at work on 29 October 1999. He reports that he was carrying lengths of scaffolding tubing, on a concrete deck when he suffered his injury. He reports that in the concrete deck there was a waste hole penetration which is about 250 millimetres in diameter. He reports that a length of PVC piping passes through the penetration but that the edge of the opening has a champher on it. He reports that the opening was covered over with “Gaffa tape” and was covered in no other way. He was walking in the area when he inadvertently stood on the edge of the hole and that caused him to fall forward. He struck the front and inner aspect of the left knee on the sloping edge of the hole.

… … …

On 05 April 2000 he was kneeling down at work. He reports that he was kneeling down on one knee with the other leg up. He cannot recall whether he was taking weight on the right knee or the left knee but as he stood up from this position he felt sharp pain on the inner aspect of the left knee. He reports that he had suffered some minor similar symptoms prior to that and he reported to his co-worker the problem with the left knee and so he took an early lunch.

He then completed the shift with some difficulty and at the end of the day there was a further aggravation of the symptoms when he jumped down a distance of about 1.3 metres as he was leaving to go home. He states that the normal access point for leaving the building site was blocked at that time and he had to lean down on the edge of the ground and come down that 1.3 metres and he landed on his leg and jarred the knee.

………

In response to your specific questions I would indicate that this gentleman’s history and clinical findings are as observed above. The diagnosis is a torn medial meniscus and articular cartilage damage in the medial compartment of the left knee following the original injury at work and the subsequent injury on 05 April 2000. Historically, it appears more likely that the articular damage occurred in the injury on 29 October 1999 because of the mechanism of that injury and the torn medial meniscus is more likely to have occurred when rising from the squatting position in the episode on 05 April 2000. Historically, the episode in April 2000 was more significant than the one in October 1999 as he had to go off work immediately and he had a very swollen knee. The injury on 29 October 1999 probably predisposed him however to the subsequent meniscal pathology in the injury on 05 April 2000.

Overall this gentleman has a guarded prognosis in both knees and the right side is more guarded that the left because of the instability on that side.

Further surgery is inevitable but the exact nature of what will be needed is difficult to predict at this time. I strongly suspect that he will need to have a further surgical stabilisation of the right knee to stop that deteriorating at a more rapid rate.

This gentleman will never be fit to return to work as a scaffolder or rigger. It would be most inappropriate for him to return to work that requires prolonged standing, kneeling, squatting or climbing, particularly at heights such as on a multi-story building site or walking on rough ground, again such as on a building site. He should be able to tolerate at least part-time semi-sedentary work even with his current level of discomfort.

It also appears likely that the problem with the right knee is indirectly related to the problem with the left knee based on the history that he gives of the left knee giving way causing the injury to the right knee.

[Reports contained in Exhibit E]

167 A perusal of this material reveals the problems. The conflicting opinions have not been explained or tested by oral examination. The material confronts the court with the unenviable task of resolving conflict thrown up by pieces of paper. The submissions that have been made do not presently assist me in its resolution.

168 There is a consensus in the medical evidence that the incident on 29 October 1999 caused injury. The question of what it was has its difficulties on the evidence. If it be necessary to determine that question, it will have to be, inter alia, the subject of further submissions.

169 For completeness, it may be added that the question of what injury was sustained when the plaintiff alighted from the slab is also the subject of competing medical evidence from his own experts and that there is the further difficulty of distinguishing the effect of two injuries that may have been sustained on 5 April 2000. My findings make the pursuit of these matters unnecessary.

170 Before dealing with all of the issues thrown up by the first cross-claim, it is convenient to consider certain of the submissions made on behalf of GIO. If these submissions were to be accepted, it would dispose of certain of the first cross-claim issues.

171 These submissions required the court to consider whether or not Murmac has any tortious liability. Any such liability is as a joint tortfeasor, pursuant to s5(1) of the Law Reform (Miscellaneous Provisions) Act 1946. It provides, inter alia, as follows:-

5 Proceedings against and contribution between joint and several tort-feasors

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):

… … …

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

172 The effect of those provisions is that there must first be a liability in damages to the plaintiff, if sued by the plaintiff. This means that a breach of duty has to be demonstrated and that a liability in damages must also be demonstrated (the damages being the same damages).

173 The question of breach of duty is fatal to this aspect of the cross-claim. I consider that any claim brought by the plaintiff against Murmac in respect of what happened on either of the two days would have failed. I do not consider that a claim for breach of duty could be made out.

174 I now briefly turn to the question of damages. It can be readily seen that, even if a different view had been taken on liability, formidable problems would still lie ahead for the defendant.

175 These proceedings were commenced after 27 November 2001. The plaintiff’s entitlement to recover damages against his employer is governed by a statutory regime (see Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423).

176 The relevant provisions may be found in Division 3 of Part 5 of the Workers Compensation Act 1987. An award of damages against an employer is to be assessed in accordance with that Part. The Part limits the damages that are recoverable. In particular, the provisions of ss151G and 151H are of importance. These sections provide that the only damages that the plaintiff may recover against his employer are damages for past and future economic loss and that damages for economic loss are not recoverable unless the plaintiff has at least a 15 per cent permanent impairment within the meaning of s151H. The degree of permanent impairment is to be assessed in accordance with Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1988 (s151H(4)). The plaintiff has not sought to pursue a claim for common law damages against the defendant.

177 Section 151Z of the Workers Compensation Act controls the assessment of any contribution to be made by Murmac. The assessment pursuant to s151Z is to be done as if the whole of the damages payable by Murmac to the plaintiff were assessed in accordance with Part 5 (s151Z(2)(d)).

178 It may be added that, in the circumstances, any liability in damages had to the plaintiff by Murmac could not have been the same as that had by the defendant.

179 Accordingly, I consider that the alleged tortious liability made against Murmac in the cross-claim fails.

180 What remains is the quantification of the plaintiff’s damages, the contractual component of the defendants’ cross-claim and the other cross-claim.

181 It might be thought that these remaining areas could be resolved by consensus between the parties. If this cannot be brought about, the parties have a liberty to apply.

**********

CITATION:	Boskov v Barclay Mowlem Construction Limited [2006] NSWSC 168
HEARING DATE(S):	20, 21, 22, 23, 27 March 2006
JUDGMENT DATE :	28 April 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	Findings; liberty to apply.
CATCHWORDS:	Duty of care - head contractor and occupier - Regulation 73 - safe means of access to work place - delegation of duty - liability in tort of employer to head contractor.
LEGISLATION CITED:	Construction Safety Regulations 1950 Law Reform (Miscellaneous Provisions) Act 1946 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1988
CASES CITED:	Australian Paper Manufacturers Pty Ltd v Conyers (1962) 62 SR (NSW) 682 Dawson v Hall NSWCA (unreported, 27 July 1994) Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor; Brimac Pty Ltd v Johnston & Anor [2005] NSWCA 423 Fox v Wood (1981) 148 CLR 438 H C Buckman & Son Pty Limited v Flanagan & Anor (1974) 133 CLR 422 Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267 Lenz v Trustees of the Catholic Church & Anor [2005] NSWCA 446 Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65 Multiplex Constructions (NSW) Pty Limited v Lopez & Anor [2004] NSWCA 319
PARTIES:	Gregory Boskov (Plaintiff) Barclay Mowlem Construction Limited (Defendant/First Cross-Claimant) AMP General Insurance Limited (Second Cross-Defendant to Second Cross-Claim) Murmac Services Pty Limited (Defendant to First Cross-Claim/Second Cross-Claimant) GIO Workers Compensation (NSW) Limited (First Defendant to Second Cross-Claim)
FILE NUMBER(S):	SC 20197/05
COUNSEL:	Mr H Marshall SC & Mr D Morgan (Plaintiff) Mr G Parker (Barclay Mowlem Construction Ltd & AMP General Insurance Ltd) Ms J Oakley (Murmac Services Pty Ltd) Mr W P Kearns SC & Mr S Marsh (GIO Workers Compensation (NSW) Ltd)
SOLICITORS:	Beilby Poulden Costello (Plaintiff) Ebsworth & Ebsworth (Barclay Mowlem Construction Ltd & AMP General Insurance Ltd) McMahons National Lawyers (Murmac Services Pty Ltd) Sparke Helmore (GIO Workers Compensation (NSW) Ltd)
LOWER COURT DATE OF DECISION:	03/20/2006