Ciesla v Mosman Bay Construction Pty Ltd (in liq)
[2022] WADC 3
•21 JANUARY 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CIESLA -v- MOSMAN BAY CONSTRUCTION PTY LTD (in liq) [2022] WADC 3
CORAM: SHARP DCJ
HEARD: 31 MAY - 4 JUNE 2021
DELIVERED : 21 JANUARY 2022
FILE NO/S: CIV 398 of 2019
BETWEEN: JARRAD CIESLA
Plaintiff
AND
MOSMAN BAY CONSTRUCTION PTY LTD (in liq)
First Defendant
BROOKLEE PARK PTY LTD
Second Defendant
Catchwords:
Negligence - Occupier's liability - Duty of care owed by a building contractor to subcontractors - Subcontractor injured when he fell off a ladder - Scaffolding not in place in the work area - Whether a reasonable person in the builder's position would have removed scaffolding prior to completion of work - Duty owed by an employer to its employees to ensure that reasonable care is taken for their safety - Contribution - Apportionment - Damages
Legislation:
Civil Liability Act 2002 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)
Occupational Safety and Health Act 1984 (WA)
Occupiers' Liability Act 1985 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Judgment for plaintiff
Liability apportioned and damages assessed
Representation:
Counsel:
| Plaintiff | : | Mr T Lampropoulos SC |
| First Defendant | : | Mr G P Bourhill SC |
| Second Defendant | : | Mr G J Pynt |
Solicitors:
| Plaintiff | : | Bradley Bayly Legal |
| First Defendant | : | Kennedys |
| Second Defendant | : | Kott Gunning |
Case(s) referred to in decision(s):
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Best Bar Pty Ltd v Warn [2019] WASCA 15
Bowen v Tutte (1990) Aust Torts Reports 81-043
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
Geroheev Pty Ltd v Wheare [2004] WASCA 206
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Gregory Spencer Ward trading as Ward's Stock Transport v Watson [2021] WASCA 44
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16
Howells v Murray River North Pty Ltd [2004] WASCA 276
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Leichardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Montemaggiori v Wilson [2011] WASCA 177
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Panizza v Moir [2009] WADC 110
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Sydney Water Corporation v Abramovic [2007] NSWCA 248
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd [2015] VSC 58
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
SHARP DCJ:
Introduction
At all relevant times, including 15 May 2017, the first defendant (Mosman Bay) was the principal contractor responsible for the construction of two adjacent, but not identical, four‑storey homes at 6A and 6B Jubilee Street, South Perth (referred to in these reasons as, respectively, 6A and 6B). Construction of both 6A and 6B commenced in 2016.
6A and 6B are both four‑storey homes, each comprising a ground floor and first, second and third floors above the ground floor. I will refer to the four storeys as respectively the ground floor, the first floor, the second floor and the third floor.
Mosman Bay engaged various contractors to undertake the different works on 6A and 6B, including the second defendant, trading as DGA Windows Australasia (DGA) to undertake glazing work for 6B.
At the relevant time, Mr Ciesla was an employee of DGA. He was not an employee of Mosman Bay.
On 15 May 2017, while working as a glazier at 6B, Mr Ciesla fell from a ladder and sustained serious injuries.
By writ of summons filed 1 February 2019, Mr Ciesla seeks damages from Mosman Bay for:
•negligence; and
•breach of the Occupiers' Liability Act 1985 (WA) (OL Act); and
•breach of the Occupational Safety and Health Act 1984 (WA) (OSH Act)
in not providing scaffolding to enable Mr Ciesla to undertake his work safely.
Mr Ciesla also seeks damages from DGA, his employer, for negligence. He alleges that DGA failed to provide to him a safe system and place of work because DGA, amongst other things, failed to ensure scaffolding was in place to enable Mr Ciesla to undertake his work safely.
On 4 June 2020, Mosman Bay filed a notice of contribution against DGA and on 11 September 2020 DGA filed a notice of contribution against Mosman Bay.
The parties
Mr Ciesla
Mr Ciesla was born on 1 August 1992 and was at all material times working as a glazier.
Mr Ciesla holds:
(a)a Certificate II Business;
(b)a Construction Industry White Card;
(c)a Light Rigid Class Manual driver's licence; and
(d)an Elevated Work Platform Ticket.
Mr Ciesla commenced, but did not complete, a glass and glazing apprenticeship.
Mr Ciesla was employed by DGA on 26 August 2016 as a glazier/fixer/aluminium fabricator. Prior to that, Mr Ciesla worked for:
(a)Mclay Industries as a glazier/aluminium fabricator from 2009 to 2011;
(b)WA Facades as:
(i)a glazier/fixer/aluminium fabricator from 2011 to 2013; and
(ii)a factory leading hand for three years from 2013 until he was made redundant in August 2016.
Mosman Bay
Mosman Bay carried on the business of building or renovating 'high end multimillion dollar luxury homes': ts 132. It was the principal contractor for the construction of 6A and 6B.
As such, Mosman Bay engaged all of the tradespersons required for the two constructions.
In March 2016, Mosman Bay employed Mr Sam Martin Hallam as a full-time building site supervisor for the construction of 6A and 6B.
DGA
DGA at all material times carried on a glazing business. DGA was Mr Ciesla's employer.
DGA also employed Mr William Clements, who was one of DGA's three job supervisors.
Statement of claim
In his statement of claim dated 1 February 2019, Mr Ciesla says that on 15 May 2017, in the course of his employment with DGA as a glazier, he was required by Mosman Bay and by DGA to perform glazing work at 6B on a particular window configuration which was located over the combined height of the second and third floors of 6B. The window configuration was large, extending upwards over those two storeys from, at its lower end, the bottom of the second floor and upwards to the top of the third floor.
Mr Ciesla alleges that when he had previously attended for work at the site, scaffolding had been erected and was in place at that window configuration. However, on the day in question, 15 May 2017, there was no scaffolding there, Mosman Bay having caused or permitted that scaffolding to be removed during the preceding weeks.
He further alleges that when he raised the issue of the lack of scaffolding on 15 May 2017 with Mosman Bay's supervisor, Mr Hallam, he was directed by Mr Hallam to use a ladder to gain access to the top of the window configuration. Mr Ciesla says that, after a search at the site, he found a vertical ladder of about 4 m in height. He positioned that ladder and climbed it to gain access to the window configuration. The feet of the ladder slipped outwards, causing the ladder and Mr Ciesla to fall. He fell from a height of approximately 3 m onto the concrete pad beneath the window (the accident).
Mr Ciesla alleges that the accident was caused by the negligence of Mosman Bay and its servants and agents and by Mosman Bay's breach of its statutory duty.
He says that Mosman Bay and its servants and agents were negligent in that they caused and permitted the scaffolding which was previously erected at the part of the site of 6B where Mr Ciesla was working that day, to be removed when such scaffolding was required in order to carry out the glazing works. Mosman Bay failed to provide and erect scaffolding to enable Mr Ciesla to have safe access to the window configuration. It caused and required Mr Ciesla to use a ladder to gain access to the window configuration when it was unsafe to do so. It failed to allocate a worker to hold and stabilise the ladder whilst Mr Ciesla was using it and it failed to provide equipment for the purpose of securing the ladder so as to prevent it slipping.
Mr Ciesla says that Mosman Bay was also in breach of its duty of care to Mr Ciesla under s 5 of the OL Act and s 21B and s 21(2) of the OSH Act.
Accordingly, Mosman Bay was negligent, and in breach of the OL Act and the OSH Act in:
•not providing scaffolding to enable Mr Ciesla to undertake his work safely; and
•requesting and/or permitting Mr Ciesla to use a ladder in the abovementioned circumstances but failing to allocate someone to hold and stabilise the ladder and failing to provide equipment to secure the ladder and prevent it from slipping.
Alternatively, Mr Ciesla says, the accident was caused by the negligence of DGA and its servants and agents. DGA was negligent in that it failed to inspect or to adequately inspect the construction site to detect the absence of scaffolding prior to Mr Ciesla commencing work on 15 May 2017. It failed to provide and erect scaffolding at the site of 6B for the use by Mr Ciesla to gain access to the window configuration or alternatively failed to cause Mosman Bay to provide and erect such scaffolding. It failed to provide Mr Ciesla with supervision at the site of 6B so as to prevent him from commencing the task of performing glazing work on the window configuration until scaffolding was provided and erected and thus caused and required Mr Ciesla to use a ladder to gain access to the window configuration when it was unsafe to do so. It failed to allocate a worker to hold and stabilise the ladder whilst Mr Ciesla was using it, it failed to provide and fit equipment for the purpose of securing the ladder so as to prevent it slipping, or alternatively it failed to cause Mosman Bay to provide and fit such equipment.
DGA was therefore negligent in failing to:
•provide a safe place of work;
•ensure scaffolding was in place to enable Mr Ciesla to undertake his work safely;
•properly supervise and instruct Mr Ciesla so that he did not attempt to undertake work without scaffolding, and did not attempt to use a ladder in such unsafe circumstances;
•provide a co-worker to hold and stabilise the ladder if that was the method to be used; and
•provide adequate equipment to undertake his work.
Mr Ciesla says that by reason of the accident and the negligence of and breach of statutory duty by Mosman Bay and by DGA as set out above, Mr Ciesla suffered pain and injury, particulars of which are set out later in these reasons.
Opening submissions
In his outline of opening submissions dated 7 May 2021, counsel for Mr Ciesla clarified in the following way the basis upon which it is claimed that Mosman Bay and DGA breached their respective duties of care and statutory duties to Mr Ciesla.
Mosman Bay
As the builder in charge of the site, Mr Ciesla says that Mosman Bay owed a duty of care to its contractors and its contractors' employees to coordinate and manage the work so as to avoid risks of injury arising from coordinating contractors and sequencing work on the site. Mr Ciesla relies on s 5B of the Civil Liability Act 2002 (WA) (CL Act) and J-Corp Pty Ltd v Thompson [2019] WASCA 173 (J‑Corp) as authority for that proposition. That duty, Mr Ciesla says, extended to coordinating the work of the scaffolders so that scaffolding was available for contractors (and their employees) undertaking work at heights on the site, in order to provide a safe means of undertaking their work and to preclude such work unless and until safe means of access had been provided.
Mr Ciesla says that, in the exercise of reasonable care, Mosman Bay should have taken steps to avoid or minimise the risk. Using an unsecured ladder at height creates a foreseeable risk of serious injury. However, if there was no alternative to the use of a ladder, the risk of using a ladder could have been minimised either by making a second person available at the base of the ladder to brace it whilst Mr Ciesla ascended the ladder or by providing other means of securing the ladder.
The risk, however, could have been entirely avoided if scaffolding had been erected, and the work undertaken from the platform on the scaffolding.
Mr Ciesla says that, as the occupier of the site, Mosman Bay was liable for hazards arising from the state of the premises or anything done upon the site, citing s 5 of the OL Act, Department of Housing and Works v Smith [No 2] [2010] WASCA 25 and Homestyle Pty Ltd v Perrozzi [2007] WASCA 16.
Further, Mr Ciesla says, the site of 6B was a worksite and a duty of care was imposed upon Mosman Bay under s 19(1), s 21B, s 22 and s 23D of the OSH Act.
DGA
Mr Ciesla says that DGA, as his employer, owed a non-delegable duty of care to Mr Ciesla to provide a safe place of work, proper plant and equipment and adequate instructions, training and supervision so as to enable him to safely undertake his work: Best Bar Pty Ltd v Warn [2019] WASCA 15 [38]; Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [4] and [113]; Gregory Spencer Ward trading as Ward's Stock Transport v Watson [2021] WASCA 44 (Ward's) [97].
Mr Ciesla says it is a high duty of care. Under s 3A of the CL Act, he says, the CL Act does not apply to an employer's duty of care: plaintiff's outline of opening submissions dated 7 May 2021, par 11.
Defence
Mosman Bay
In its opening submissions dated 24 May 2021, Mosman Bay asserts that there was scaffolding on site on 15 May 2017. It says that scaffolding was available to be erected upon request to its site supervisor. However, Mosman Bay says that no request was made by Mr Ciesla or DGA for the erection of scaffolding on site, and no prior notice was given to Mosman Bay of Mr Ciesla's attendance at the site on that day.
Mosman Bay says that it did not and would not direct Mr Ciesla to use a ladder and that it was not part of Mosman Bay's duty to direct DGA and its employees as to the manner in which DGA was to complete the contracted works on site: Mosman Bay's outline of opening submissions dated 24 May 2021, par 3.5.
Mosman Bay further alleges that Mr Ciesla was guilty of contributory negligence by:
(a)failing to notify Mosman Bay in advance of his requirement to use scaffolding to complete his work on site; and
(b) failing to ask Mosman Bay to erect scaffolding, instead electing to use the ladder notwithstanding that scaffolding was available on site to be erected upon request.
Mosman Bay says that Mr Ciesla in any event failed to exercise reasonable care while using the ladder, particularly a ladder that did not belong to him, by failing to secure the ladder.
Furthermore, Mosman Bay alleges that, as principal contractor, it owed only a duty to take reasonable care when coordinating the activities of trades at the premises to avoid unnecessary risks of injury or to minimise the risk of injury to those engaged in the activity it organised. Mosman Bay says that this duty does not require it to retain control of all working systems of the various trades on site. In particular, it does not extend to being required to instruct DGA's employees, such as Mr Ciesla, as to how they should safely perform their duties. Mosman Bay says that DGA took no steps to advise Mosman Bay prior to 15 May 2017 that Mr Ciesla would require scaffolding to perform his work on that day and took no steps to ensure that such scaffolding would be available. Mosman Bay says that, had DGA done so, it would have been 'an easy matter for [DGA] to arrange for such scaffolding to be erected and to be available when [Mr Ciesla] arrived': Mosman Bay's outline of opening submissions dated 24 May 2021, par 5.7.
Mosman Bay further submits that it was Mr Ciesla's decision alone to locate and use a ladder to perform work that could have been performed from scaffolding. It was his decision, Mosman Bay says, to use a ladder in an unsafe manner and it was his decision to erect the ladder with its feet on smooth concrete, apparently increasing the risk of the ladder slipping as in fact occurred.
Mr Ciesla was a glazier and, according to Mosman Bay, was familiar with the physical requirements of the performance of that work, including the requirement to work at heights. Mosman Bay says that Mr Ciesla ought to have known that the endeavour to perform the work that he was doing on the day of the accident by use of a ladder unsecured at its base was dangerous. Therefore, Mosman Bay says that he was negligent and his damages should be reduced accordingly.
Finally, Mosman Bay says that in the event that there is a finding of liability against Mosman Bay, it is Mosman Bay's contention that DGA is also liable and that DGA's culpability is at a much higher level than that of Mosman Bay.
DGA
DGA, on the other hand, alleges that there was insufficient scaffolding on site and, had there been enough scaffolding on site, Mr Ciesla's accident would not have occurred. DGA says that it was an express condition of its contract with Mosman Bay that Mosman Bay would supply and erect scaffolding required on site to enable DGA's employees to undertake glazing work. DGA accepts that it has a non‑delegable duty of care to Mr Ciesla and it does not suggest that it had somehow delegated that obligation to Mosman Bay. However, DGA says that if Mosman Bay had a safe system of work in place then DGA had satisfied its obligations to Mr Ciesla: DGA's outline of opening submissions dated 21 May 2021, pars 14 - 16.
DGA also alleges contributory negligence on the part of Mr Ciesla: DGA's outline of opening submissions dated 21 May 2021, pars 18 ‑ 19. DGA says that Mr Ciesla contributed to the accident by failing to insist that Mosman Bay erect scaffolding. Further, even without scaffolding, he could have avoided the accident if he had ensured that the ladder was properly braced by a co‑worker or properly secured or both.
DGA submits that if it is found liable to Mr Ciesla, then it claims against Mosman Bay a contribution towards damages. DGA says that Mosman Bay should bear the substantial portion of an apportionment of the damages because Mosman Bay controlled the worksite, owned scaffolding, refused Mr Ciesla's request for scaffolding and did not arrange for a ladder to be secured or held while Mr Ciesla used it.
Mr Ciesla's response to the defence of Mosman Bay and of DGA
Mr Ciesla says that because Mosman Bay was responsible for coordinating and sequencing the works and contractors on site, it had the ability to erect scaffolding at short notice. Its supervisor should have prevented Mr Ciesla from undertaking work until scaffolding had been erected, or it should have ensured that an adequate ladder was available, with proper means of it being secured, and a co-worker available to brace the ladder at its base, before any work was permitted. Mr Ciesla says that Mosman Bay cannot divest itself of its responsibility by ignoring the risk. It must not avoid responsibility by placing the onus upon a worker who comes on site to direct Mosman Bay's supervisor as to how to properly undertake Mosman Bay's responsibilities and discharge Mosman Bay's duty.
Further, Mr Ciesla says that Mosman Bay cannot rely on s 6 of the OL Act when it was their own negligence that caused the accident: Geroheev Pty Ltd v Wheare [2004] WASCA 206 [37] (Geroheev ). If Mosman Bay had not been negligent, the accident would not have occurred.
Turning to DGA, Mr Ciesla says that there was a foreseeable risk of serious injury. The employer's duty of care is non-delegable. It involves a high standard of care. He says that DGA is seeking to transfer its responsibility for the unsafe place of work, unsafe system of work, inadequate instruction and supervision, and inadequate plant and equipment, to its employee.
Mr Ciesla says that DGA failed to:
•ensure that scaffolding was in place before sending Mr Ciesla on site to undertake work at height;
•instruct Mr Ciesla not to undertake work unless scaffolding was on site;
•instruct Mr Ciesla not to attempt to undertake the work from a ladder;
•provide an appropriate ladder, if work was to be undertaken from a ladder, and means of securing the ladder so that it did not slide on the concrete; and
•provide a co-worker to assist Mr Ciesla.
Mr Ciesla says that DGA should have known that, having sent Mr Ciesla to the site to undertake work in those circumstances, he would attempt to undertake the work as best as he could (including using a ladder).
Mr Ciesla says that there was no deliberate misconduct on his part which would result in a finding of contributory negligence. He says that he was simply attempting to do his work as best as he could in the circumstances. He says further that there was a culture at DGA, which was not discouraged by DGA, by which workers undertook work at height without appropriate equipment and without adequate support. In all the circumstances, Mr Ciesla says that DGA must not shift some of the responsibility for its shortcomings to the worker.
Mr Ciesla further says that it follows that there is no proper basis for a finding of contributory negligence against him in relation to DGA's complete failure to discharge its responsibilities. To the extent there was any shortcoming on the part of Mr Ciesla, it arose from the negligence of DGA, and that would attract a greater contribution from DGA (if there were contribution proceedings between Mosman Bay and DGA).
Mr Ciesla's claim for damages
Mr Ciesla says that, by reason of the accident and his injuries, he required and received medical and hospital treatment. He has been put to expense and has suffered loss and damage. He has suffered past and future loss of earning capacity and superannuation benefits. He has required and received voluntary services to meet his needs caused by his accident. He will require services in the future to meet his needs caused by his accident, with resultant future expense. He says he has permanent and continuing disabilities and will in the future suffer economic loss.
It is not in dispute that the degree of permanent whole of person impairment suffered by Mr Ciesla as a result of the accident is not less than 25% as assessed in accordance with s 146A(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (WC Act).
It is not in dispute that on 22 January 2019 Mr Ciesla elected to retain the right to seek damages from DGA, which was recorded at WorkCover WA under s 93K(4) of the WC Act. Mr Ciesla says that he is accordingly entitled to recover damages from Mosman Bay and from DGA for his personal injuries.
He elected to retain his right to claim damages from his employer based on a permanent whole person impairment of more than 25% within the meaning of the WC Act. Damages are therefore uncapped against DGA, as well as Mosman Bay.
The statutory scheme
Civil Liability Act
Section 3A of the CL Act reads:
3A. Damages excluded from Act
(1)The provisions of this Act specified in the third column of an item in the Table to this subsection do not apply to damages of a class specified in the second column of that item or to claims for, or awards of, such damages.
Table
Item Damages Provisions that do not apply …
3.
Damages to which the Workers' Compensation and Injury Management Act 1981 Part IV Division 2 applies and the class of damages referred to in section 93B(3a) of that Act.
Parts 1A, 1B, 1C, 1D, 1E and 2 (other than section 10A and Division 4).
…
Section 5B (Duty of care) and s 5C and s 5D (Causation) of the CL Act (which are all in pt 1A) provide as follows:
5B. General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
5C.General principles
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
5D.Onus of proof
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Occupiers' Liability Act
Section 4, s 5 and s 6 of the OL Act provide as follows:
4.Application of s.5 to 7
(1)Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers -
(a)to that person; or
(b)to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.
(2)Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent.
5. Duty of care of occupier
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2)The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
(3)A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)the gravity and likelihood of the probable injury; and
(b)the circumstances of the entry onto the premises; and
(c)the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
6. Negligence of independent contractor
(1)An occupier is not liable under this Act where the damage is due to the negligence of an independent contractor engaged by the occupier if -
(a)the occupier exercised reasonable care in the selection and supervision of the independent contractor; and
(b)it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken.
(2)Subsection (1) does not operate to abrogate or restrict the liability of an occupier for the negligence of his independent contractor imposed by any other Act.
Occupational Safety and Health Act
Section 19(1) of the OSH Act reads:
19. Duties of employers
(1)An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall -
(a)provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and
(b)provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and
(c)consult and cooperate with safety and health representatives, if any, and other employees at the workplace, regarding occupational safety and health at the workplace; and
(d)where it is not practicable to avoid the presence of hazards at the workplace, provide the employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and
(e)make arrangements for ensuring, so far as is practicable, that -
(i)the use, cleaning, maintenance, transportation and disposal of plant; and
(ii)the use, handling, processing, storage, transportation and disposal of substances,
at the workplace is carried out in a manner such that the employees are not exposed to hazards.
Section 21B of the OSH Act provides as follows:
21B. Duty of body corporate to which s.23D, 23E or 23F applies
(1)If section 23D, 23E or 23F makes any other provision of this Act apply to a body corporate as if it were the employer of a particular person, this section and section 21C apply to the body corporate at such times as the other provision is made to apply.
(2)A body corporate to which this section applies shall, so far as is practicable, ensure that the safety or health of a person is not adversely affected wholly or in part as a result of -
(a)work that has been or is being undertaken by -
(i)the body corporate; or
(ii)a person carrying out work under the direction of the body corporate;
or
(b)any hazard that arises from or is increased by -
(i)the work referred to in paragraph (a); or
(ii)the system of work that has been or is being operated by the body corporate.
Section 22 of the OSH Act is as follows:
22. Duties of persons who have control of workplaces
(1)A person that has, to any extent, control of -
(a)a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or
(b)the means of access to and egress from a workplace,
shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.
(2)Where a person has, by virtue of a contract or lease, an obligation of any extent in relation to the maintenance or repair of a workplace or the means of access to and egress from the workplace, the person shall be treated for the purposes of subsection (1) as being a person that has control of that workplace or that means of access or egress.
(3)A reference in this section to a person having control of any workplace or means of access to or egress from a workplace is a reference to a person having control of that workplace or that means of access or egress in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not).
[(4) ‑ (6)deleted]
(7)This section does not apply to a person whose duties are set out in section 20.
Section 23D of the OSH Act reads as follows:
23D. Contract work arrangements
(1)This section applies where a person (the principal) in the course of trade or business engages a contractor (the contractor) to carry out work for the principal.
(2)Where this section applies, sections 19 and 19A have effect -
(a)as if the principal were the employer of -
(i)the contractor; and
(ii)any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned,
in relation to matters over which the principal has the capacity to exercise control; and
(b)as if -
(i)the contractor; and
(ii)any person referred to in paragraph (a)(ii),
were employees of the principal in relation to matters over which the principal has the capacity to exercise control.
(3)Where this section applies, the further duties referred to in subsection (4) apply and sections 20A, 23H and 23J have effect -
(a)as if the principal were the employer of -
(i)the contractor; and
(ii)any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned;
and
(b)as if -
(i)the contractor; and
(ii)any person referred to in paragraph (a)(ii),
were employees of the principal.
(4)The further duties mentioned in subsection (3) are -
(a)the duties of an employee under section 20; and
(b)the duties of an employer under sections 23G(2) and 23I(3).
(5)An agreement or arrangement is void for the purposes of this section if it purports to give control to -
(a)a contractor; or
(b)a person referred to in subsection (2)(a)(ii),
of any matter that -
(c)comes within section 19 or 23G(2); and
(d)is a matter over which the principal has the capacity to exercise control,
but this subsection does not prevent the making of a written agreement as mentioned in section 23G(3).
(6)A purported waiver by a contractor of a right that arises directly or indirectly under this section is void.
(7)Nothing in this section derogates from -
(a)the duties of the principal to the contractor; or
(b)the duties of the contractor to any person employed or engaged by the contractor.
Workers' Compensation and Injury Management Act
Section 93K(4) of the WC Act reads:
(4)Damages in respect of an injury can only be awarded if -
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
Section 146A(1) of the WC Act provides as follows:
(1)Subject to sections 146B, 146C, 146D and 146E, a worker's degree of impairment is to be evaluated, as a percentage, in accordance with the WorkCover Guides.
Issues
From the pleadings and submissions, the following issues arise:
1.Did Mosman Bay owe a duty of care to Mr Ciesla?
2.If so, what was that duty of care?
3.If a duty of care was owed, did Mosman Bay breach its duty of care to Mr Ciesla?
4.Did DGA owe a duty of care to Mr Ciesla?
5.If so, what was that duty of care?
6.If a duty of care was owed, did DGA breach its duty of care to Mr Ciesla?
7.Did either or both of those breaches cause Mr Ciesla's injuries?
8.If either defendant is liable, was Mr Ciesla also negligent?
9.On what basis should damages be assessed?
10.What damages is Mr Ciesla entitled to for medical treatment?
11.What damages is Mr Ciesla entitled to for economic loss?
12.What general damages is Mr Ciesla entitled to?
13.What final orders are appropriate?
Background facts
The following facts are not in dispute between the parties and I make these findings of fact.
Construction of both 6A and 6B commenced in 2016. The works for 6B started first. The construction of the two homes was in each case an independent project: ts 132.
DGA was engaged by Mosman Bay on 24 June 2016 to supply and install 'aluminium joinery' at 6B in accordance with two quotations provided by DGA (Exhibit 1).
DGA's quotation for the glazing work at 6B was $104,500 plus GST. An express term of the quote was that Mosman Bay would supply and erect scaffolding required on site to enable DGA's employees to undertake the glazing work.
The exact wording which appears on the quotation is as follows:
Access, scaffoldings & craneage supplied by client at no additional cost to DGA.
The quote was accepted by Mosman Bay (Exhibit 2). In particular, Mosman Bay employed a scaffolder to erect, dismantle and move scaffolding: ts 137.
This is a photograph of 6A and 6B as they were in March 2017, looking from Jubilee Street. 6A and 6B are the buildings encased with scaffolding and 6B is on the left.
The plans of 6B (Exhibit 6) show that, looking from Jubilee Street, about halfway along the right-hand side of the building there is a ground floor balcony which extends upwards for two storeys, that is, from the bottom of the ground storey to the top of the first storey of the house. The height of the balcony is approximately 6 m. Above that, there is a concrete landing and then another balcony, also approximately 6 m in height, which also extends upwards for another two storeys, this time from the bottom of the second storey to the top of the third storey. Access to these two balconies is gained from the inside of the house, the upper of the two by way of an internal staircase.
This is a photograph of the lower of the two balconies, also as at March 2017, which was tendered and marked Exhibit 5 during the trial. The caption was presumably inserted by a workmate of Mr Ciesla and can be disregarded. The one above, where the accident occurred, is substantially the same although, obviously, two storeys higher.
DGA's quotation included the glazing of these balconies.
When DGA installed the windows in 6B, it utilised the scaffolding that had been erected around the house by Mosman Bay.
By May 2017, the roof had been completed and the glazing, including the glazing in the balconies, had been installed.
However, the glazing was not entirely complete and, in particular, final glazing tasks were required in the balconies, including silicon still needing to be applied to gaps between the glass and the window frames.
Mr Ciesla arrived at the site on 15 May 2017 to complete some of these tasks and it was on that date that the accident occurred. Mr Ciesla was applying silicon to the gaps between the glass and the frames of the windows on the higher balcony, the balcony which was constructed on the second and third storeys of 6B. As I have said, from top to bottom, this balcony is approximately 6 m or around 20 feet. In order to reach the top of the glazing, Mr Ciesla was using a 4.5 m (around 15 feet) single ladder which he had leaned against the wall of the balcony.
When he was on the ladder, it slipped from under him and he fell to the ground (that is, the concrete pad at the bottom of the higher balcony).
After the accident, Mr Ciesla sought help from Mr Hallam. Mr Hallam telephoned DGA and Mr Ciesla was taken to Fiona Stanley Hospital where he was admitted for treatment.
The evidence at the trial
Mr Ciesla and Mr Hallam gave evidence at the trial.
Evidence about Mr Ciesla's injuries was given by:
•Mr Alex O'Beirne (a hand, wrist, elbow and shoulder surgeon), Mr Gerard Hardisty and Mr Anthony Jeffries (both consultant orthopaedic surgeons);
•Mr Lip Teh (a plastic and reconstructive surgeon);
•Dr Evan Jenkins (a medico-legal consultant);
•Dr Alan Home (a consultant occupational physician) (by video link);
•Dr Thomas Lee (also a consultant occupational physician); and
•Professor Charles Mulvey of LabourNet Australia Pty Ltd.
As has been mentioned, DGA employed Mr William Clements as a supervisor. Mr Clements had an involvement in this matter. However, Mr Clements was unavailable and did not give evidence at the trial.
Mr Ciesla's evidence
Mr Ciesla says that when he was engaged by DGA in August 2016 he was employed as a glazier to do '[a]ll sorts of work. Installing glass, yeah, fixing …': ts 18. He would sometimes help out in the workshop, 'but not very often': ts 18. The bulk of his work was '[s]ite work': ts 19.
He said that some of his work on sites involved working at heights, but he said that most of the buildings he worked on were single‑storey houses: ts 19.
Mr Ciesla usually took with him a three-step stepladder, being roughly a metre in height: ts 19 and ts 20.
He says that when he first went to 6B in November 2016, he went with a Mr Richard Johnson. He and Mr Johnson had been sent there by Mr Clements who 'sort of ran through the job with us … when the time come to get the job done type thing': ts 20.
At that visit in November 2016, Mr Ciesla met Mr Hallam, the site supervisor, to get an understanding of the work involved in 6B and to inform Mr Hallam of the readiness or otherwise of the building from the point of view of installing the windows: ts 20 and ts 21.
Mr Ciesla did not return to the site until February 2017, this time with Mr Clements, to start lifting a window in place: ts 21. He said that he returned to the site perhaps once or twice after that. He said that Mr Hallam was 'always there': ts 22.
The last time Mr Ciesla was on site prior to the day of the accident was on 5 May 2017. He was there with Mr Clements to start 'the job of siliconing between the steel column and the window' on the higher of the two balconies. They 'started from the top of the window, where the scaffolding was set up': ts 22. Mr Ciesla and Mr Clements both worked from a scaffolding work platform. He said that they did not make much progress, perhaps a metre to a metre and a half down and then they left the site for the day: ts 22.
They did not return on the days that followed, instead attending to other, unrelated, jobs for DGA.
Mr Ciesla recalls a conversation that Mr Clements had with Mr Hallam about the glazing work still to be done, but he is unclear as to whether this was at the time of his and Mr Clement's visit to the site in February 2017 or whether it took place while they were working together at the site on 5 May 2017. His evidence was (ts 52) however that he did not see Mr Hallam when he left the site on 5 May 2017.
It is Mr Hallam's evidence that this conversation took place on or around 12 May 2017 or the morning of the accident.
I prefer Mr Hallam's evidence on this issue and I find that it is more likely that this conversation occurred on 12 May 2017. Mr Ciesla's evidence was that he was not on site on 12 May 2017 and therefore he could not have been a party to that conversation.
Mr Ciesla says that, irrespective of when that conversation took place, he could not recall whether the conversation was entirely about the work that they were intending to do but, upon reflection, he says that he thought that it would have been: ts 51. They did not, however, discuss what might be needed for the work because 'from the ‑ from what I remember what we were doing, everything was there. We were just telling him what would …': ts 51. By 'everything was there', Mr Ciesla explained that he was talking about scaffolding: ts 51. He said that they did not talk about ladders because he 'didn't need a ladder. It was just a scaffold, yeah': ts 51. He says that his recollection is that in February and on 5 May 2017, the scaffolding was already there: ts 51.
Mr Ciesla says that then on Friday 12 May 2017, he was instructed by Mr Clements to attend at 6B on the following Monday, 15 May 2017, to finish the silicon work on that window: ts 23.
It was Mr Ciesla's understanding that the work that needed to be done by him on that morning of 15 May 2017 was to finish the sealing of the windows in the higher of the two balconies: ts 53. He understood that his only job that day was to apply silicon to the gaps: ts 58.
Accordingly, on 15 May 2017 Mr Ciesla returned to 6B as he had been instructed. He went straight from home to the site and he had with him his hand tools and his stepladder. He said that a full‑sized ladder would not have fitted into his motor vehicle: ts 24. He went direct to the upper balcony of 6B by way of the internal staircase where he and Mr Clements had previously been working and discovered that there was no scaffolding in place. He said that he had expected that scaffolding would be there so he could complete the work 'but it wasn't': ts 25 and ts 53.
He located Mr Hallam and asked him why the scaffolding was not there. He says that Mr Hallam told him that he, Mr Hallam, had thought that the job was finished and so the scaffolding had been dismantled sometime prior to that day: ts 25. Mr Ciesla says that Mr Hallam asked 'how are we going to get it done then', and, 'can we do it from a ladder?': ts 25 and ts 26. Mr Ciesla said that when Mr Hallam said this, he was 'upset', 'angry', 'he looked peed off': ts 26. Mr Ciesla said that he told Mr Hallam that he would 'give it a go': ts 26. Mr Ciesla said that he knew however that DGA 'weren't big on using ladders, as such': ts 49.
Mr Ciesla said that he then looked around and found a basic, straight, fixed 4.5 m ladder downstairs: ts 26. He believed that it was a scaffolding ladder, that is, a ladder 'used to tie off to scaffolding': ts 26.
Mr Ciesla leaned the ladder against the wall and then went back up to the upper landing. From there, he reached down and pulled the ladder up. He positioned the ladder vertically against the wall but there was nothing to tie the ladder to. The ladder had rubber feet on it and the feet were resting on a 'raw concrete pad, so like an unfinished concrete': ts 27. He tested the ladder by climbing it without tools. He then went up the ladder with the silicon gun and proceeded with his work. Once that work was complete, he moved the ladder to the 'next sort of column', of which he thought that there were four in total: ts 28. While he was working on the second column, the tube of silicon ran out and he then descended the ladder to get another tube and water, towels and a scrapper to clean off the excess silicon. When he climbed the ladder again, it 'just slipped out from underneath me … the bottom legs kicked out away from the window, and I rode the ladder down': ts 29. He landed on his wrists first, then his 'elbow, face and knee': ts 29. He said that the accident happened at about 10.00 am: ts 46.
He got up with some difficulty and went to find Mr Hallam: ts 29. He found him next door at 6A: ts 30.
Mr Hallam understood that the 'boss', the owner of DGA, Mr Trevor Dutton, was in the area and called him. Mr Dutton arrived at 6B shortly after he received that call and he drove Mr Ciesla to Fiona Stanley Hospital: ts 30.
Mr Sam Hallam's evidence
Mosman Bay employed Mr Sam Hallam in 2016 as a full‑time building site supervisor on the sites for 6A and 6B. He was on site each week from Monday to Friday inclusive and sometimes on Saturdays and Sundays: ts 132.
By the time Mr Hallam commenced employment at the site, the ground floor brickwork on 6B had commenced. By May 2017, the main roof on each of 6A and 6B had been installed.
Mosman Bay owned all of the scaffolding utilised at 6A and 6B and employed licensed scaffolders: ts 127 and ts 137. Mosman Bay had a dedicated scaffolder at 6A and 6B 'for the majority of the construction phase': ts 137.
At times, there was an insufficient supply of scaffolding having regard to the work required to be undertaken at both 6A and 6B. Mr Hallam was aware of that shortage: ts 155.
A scaffolder was on site at 6A on 15 May 2017: ts 143.
Mr Hallam says that on or around 12 May 2017 ('within the couple of preceding, work days, [of Mr Ciesla's accident] from memory') (ts 153) he spoke to Mr Clements and told Mr Clements that he wanted DGA to finish, amongst other things, the application of the silicon on the windows: ts 123 - ts 124 and ts 153. This is the conversation referred to at [95] and by Mr Ciesla in his evidence where he was unclear as to the date when it took place.
Mr Hallam said that Mr Clements had told him that he would send someone to 6B 'shortly' to finish the sealing of the windows: ts 155. Mr Hallam accepts that he knew that one of DGA's employees would be attending on site 'within about a week' to work on the balcony on the second and third storeys of 6B: ts 155.
It was Mr Ciesla's evidence, set out at [101] - [102], that, on the morning of the accident, he reported to Mr Hallam soon after he arrived at the site. That much is accepted by Mr Hallam: ts 124 and ts 143. Mr Ciesla said that Mr Hallam told him that he had thought that the work had been completed and then asked whether Mr Ciesla could complete that work by using a ladder. Mr Ciesla said that he had told Mr Hallam that he would 'give it a go': ts 26.
Mr Hallam, on the other hand recalled some of those events differently. He said that he told Mr Ciesla that if he needed anything, he should come and find him: ts 124. Mr Hallam said that on that morning he and Mr Ciesla discussed the work that was still to be completed and that he had anticipated that Mr Ciesla was to be on site for a number of days: ts 144. Mr Hallam was confident that he would not have asked Mr Ciesla to use a ladder because of the height and the fact that ladders were not used: ts 146. Mr Hallam's understanding was that Mr Ciesla had been advised by Mr Clements as to what was to be done and he said that the conversation between himself and Mr Ciesla was brief: ts 156.
In my view, where the recollections of Mr Ciesla and Mr Hallam differ as to the events of the morning of the accident, Mr Ciesla's evidence is to be preferred. Accordingly, I accept Mr Ciesla's version of what was discussed between him and Mr Hallam that morning. That is not to say that I consider Mr Hallam to be an untruthful witness. However, Mr Hallam in his evidence made it quite clear that he had little actual recollection of the events leading up to the accident, whereas Mr Ciesla was entirely positive that his memory of the conversation was accurate.
Mr Ciesla's injuries - the evidence of Mr O'Beirne, Mr Teh, Mr Hardisty, Dr Jenkins and Mr Jeffries
Reports from Mr O'Beirne (Exhibit 13), Mr Teh (Exhibit 14), Mr Hardisty (Exhibit 15), Dr Jenkins (Exhibit 16) and Mr Jeffries (Exhibit 17) were all tendered and admitted by consent. None of those witnesses gave any oral testimony.
The details of Mr Ciesla's injuries which follow have been drawn from those reports and from the other medical evidence given at the trial. None of these details are contested, nor the subject of any evidence to the contrary. I make these findings.
Two days after Mr Ciesla's admission to Fiona Stanley Hospital following the accident on 15 May 2017, he was transferred to St John of God Hospital in Murdoch where he came under the care of Mr Alex O'Beirne, a hand, wrist, elbow and shoulder surgeon. Mr O'Beirne performed an open reduction and internal fixation of both fractured wrists. He inserted metal hardware into Mr Ciesla's left elbow and wrists. Mr Ciesla had further surgery to his left wrist on 24 May 2017, utilising a bone graft harvested from his left hip. Mr Ciesla also complained of pain in his right forearm, which turned out to be a fracture. Mr O'Beirne treated that with a splint.
Mr Ciesla subsequently complained of pain in his left knee and pain and ache in his right shoulder. Mr O'Beirne referred Mr Ciesla to Mr Gerard Hardisty for treatment.
Mr Ciesla also suffered a fractured right eye socket, with displacement of the eyeball. Mr Lip Teh, a plastic and reconstructive surgeon, performed surgery upon Mr Ciesla at St John of God Hospital, during which a pericranial wafer graft was harvested from his right calvarium and used to reconstruct the floor and push the eyeball back into position.
Mr Hardisty performed arthroscopic surgery on Mr Ciesla's left knee on 19 July 2017. He found some damage to the lateral facet/kneecap and that was repaired. However, Mr Ciesla continued to have pain in his left knee and continued to suffer significant right shoulder pain.
In November 2017, Mr O'Beirne performed further surgeries to remove the metal hardware in Mr Ciesla's right wrist and to remove some bone. In March 2018 he removed the hardware from Mr Ciesla's left wrist and elbow and excised some osteophytes. Mr Ciesla continues to have pain in his left elbow and pain and weakness in his wrists and there is evidence of progressive degeneration in his right wrist.
I accept that, as a result of the accident, Mr Ciesla, in summary, suffered fractures in his right wrist, left wrist, left elbow, forearm, right shoulder and right orbit, as well as ligamentous, tendon and soft tissue injuries, and injuries to his left knee. Those injuries have necessitated various forms of surgery and have resulted in permanent disabilities in his right arm, left leg and scarring.
From the reports of Mr O'Beirne, I also accept that Mr Ciesla continues to experience ongoing symptoms and has suffered permanent disabilities in his right shoulder, right wrist, left elbow, left wrist and left knee. I further accept that he requires ongoing treatment. He has surgical scarring over the anterior aspect of the left hip. He has scarring over the radial aspect of the left elbow, the right distal forearm, the left dorsal wrist and the left distal forearm.
I note Mr O'Beirne's opinion, which I understand is not disputed, that Mr Ciesla will not be able to return to heavy manual labour but that he is able to perform light manual labour or clerical duties.
Dr Jenkins provided the reports which are Exhibit 16, concerning Mr Ciesla's whole of body impairment which he says has not stabilised. He also provided his opinion of the nature and amount of Mr Ciesla's future medical expenses.
I will refer to the evidence given by Dr Home, Dr Lee and Professor Mulvey later in these reasons.
Did Mosman Bay owe a duty of care to Mr Ciesla?
Mr Ciesla is not an employee of Mosman Bay. He is an employee of DGA, an independent contractor engaged by Mosman Bay.
The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe: Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 [20] (Leighton).
In Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 (Stevens), Brennan J stated that this duty of care imports a duty to take reasonable care when coordinating the activities of trades to ensure that a system of work for one or more independent contractors is safe and to avoid unnecessary risks of injury or to minimise the risk of injury to those engaged in the activity it organised.
It is useful to set out precisely what Brennan J said in Stevens, which is this (at (47) - (48)):
An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.
(citations omitted)
Eventually Mr Ciesla gained employment with an organisation named 'Enable WA', providing support to people with disabilities. He commenced that employment in October 2020.
His hours with Enable WA 'varies …, anywhere from, yeah, 15 to 30 hours': ts 35. He endeavoured to work shifts during evenings and weekends because the pay was better.
Mr Ciesla says that currently both of his wrists constantly hurt, his elbow 'hurts not all the time, but generally'. His shoulder 'pretty much always hurts. And knee, just when I use it a lot, it starts to flare up a lot': ts 36. With respect to his right forearm, he said that he could 'just feel the spot it actually broke': ts 36. He confirmed that he takes a lot of 'over-the-counter pain medication': ts 37.
Mr Ciesla said that before the accident he played golf, volleyball, he 'used to walk a lot' and he played cricket. However, he said that since the accident he avoids many of these activities because 'it just hurts too much afterwards': ts 38. He says that he can still walk but after around a kilometre 'it's just very painful': ts 38.
Mr Ciesla gave evidence that he and his girlfriend in September 2020 bought a house together, but he is unable to contribute to any gardening or 'heavy cleaning' because it 'just fires up my wrists': ts 39.
Mr Ciesla says that he needs further surgery on his right wrist and his left knee which Mr O'Beirne and Mr Hardisty are respectively attending to.
Dr Lee's evidence
Dr Thomas Boon Sing Lee is a specialist consultant occupational physician. He gave oral evidence at the trial. One of Dr Lee's roles is to assess workers when they get injured and help them in their treatment and rehabilitation in going back to work: ts 67.
Dr Lee was asked to assess Mr Ciesla in early 2020 which he did on 17 February 2020 and he produced reports which are Exhibit 10.
Dr Lee assessed Mr Ciesla as being 185 cm tall, weighing 114 kg and having a BMI which places him in the 'obese' range.
Dr Lee's opinion is that as a result of his injuries Mr Ciesla is unfit to return to his 'pre-injury role' as a glazier. He says that Mr Ciesla's 'prognosis to return to heavy manual work as a glazier is poor'. He said 'the prognosis is one of ongoing pain, permanent restricted movement and restricted capacity'. However, he says that Mr Ciesla is fit for his then current full‑time supervisory duties with DGA and he is currently lifting more than what is stipulated in the reports which have been provided to Dr Lee.
Dr Lee expects that Mr Ciesla's symptoms are 'likely to worsen in regards to his right wrist and left wrist, degenerative arthritis progresses with time'. He says that there is no end point to degeneration or progression of arthritis.
Dr Lee says that Mr Ciesla will likely require further surgery to his right wrist and considers that in the future he may require domestic assistance with the advancing age, estimated to be four hours per week, and handyman assistance with the advancing age, estimated to be four hours per week. He explained that 'by advancing age' he is referring to a period of time after 10 years from now.
Under cross-examination, Dr Lee accepted that the damage to Mr Ciesla's wrist is the most debilitating. Mr Ciesla's employment prospects are, in Dr Lee's opinion, limited to work which does not involve any lifting.
Professor Mulvey's evidence
Professor Mulvey is the managing director of LabourNet Australia Pty Ltd. He prepared a report dated 14 May 2021 which is Exhibit 11. He gave oral testimony at the trial.
Professor Mulvey is engaged in researching the earnings, employment availability and job characteristics of occupations in order to assist in the resolution of disputes over workers' compensation and personal injury claims: ts 82. Professor Mulvey, quite properly, concedes that he is not a medical practitioner but an economist. He has never met Mr Ciesla, nor has he seen any of the medical reports about Mr Ciesla.
Professor Mulvey has however reviewed Mr Ciesla's payroll advices between 15 June 2017 and 6 May 2021. It is Professor Mulvey's opinion that Mr Ciesla was being 'paid premium rates': ts 83. His explanation for this is that Mr Ciesla may have been paid as an aluminium fabricator rather than as a glazier.
Professor Mulvey says that, subject to Mr Ciesla being physically fit to 'do the work', he 'stands a good chance of securing work as an electronic or light assembly worker within a reasonable period of time', but he considered that he reached this conclusion on the assumption that Mr Ciesla would present at interview as a physically capable person: ts 86 - ts 87.
Dr Home's evidence
Dr Alan Home is a specialist occupational physician and is an approved medical specialist under the Worker's Compensation legislation. Dr Home provided a number of reports which are collectively Exhibit 12 and gave oral evidence at the trial by video link.
Dr Home's opinion is that Mr Ciesla is unable to be involved in any form of employment which requires any physically demanding work. For example, Dr Home considers that Mr Ciesla is capable of holding a job as a carer, so long as he was not required to do any 'particularly heavy work': ts 103. He would be able to undertake customer service work and even factory manual work, so long as that work did not involve a high rate of repetition or 'heavier process work': ts 102.
Dr Home's report stated that:
[Mr Ciesla] will be restricted to sedentary, semi-sedentary or light manual work in the future. He will be unable to perform work that involves heavy bimanual lifting, the use of impact tools and bimanual overhead reaching. He will be limited in his scope of employment.
Dr Home went on to say that as Mr Ciesla cannot perform work for which he has previous educational training and experience, he will require vocational retraining and assistance with placement.
In summary, it is Dr Home's view that Mr Ciesla can undertake light manual work.
Dr Home's opinion is that Mr Ciesla's WIP (whole person impairment) has increased from 25% ‑ 27%: ts 97.
Past losses
As I have said, there is no significant disagreement between the parties about the quantum of Mr Ciesla's past losses.
The one disagreement concerns Mr Ciesla's claim for past gratuitous services. Mosman Bay questions Mr Ciesla's claim for $20,889 for past gratuitous services (and therefore the amount claimed for interest on that figure). Mosman Bay says that this figure is based on a requirement for 3 hours per week of domestic assistance over a period of 211 weeks. Dr Home's evidence at the trial was that Mr Ciesla only required 12 hours per week for the 12 weeks immediately after the accident and 3 hours per fortnight thereafter (Exhibit 12). I accept Dr Home's opinion and, applying a rate of $33 per hour as adopted by Mr Ciesla, I agree with Mosman Bay that Mr Ciesla's entitlement to past gratuitous services is $14,602.50, being $4,752 for the period of 12 weeks after the accident and $9,850.50 thereafter. These are the sums I have used to arrive at the total at item 5 of the table at [248] below.
DGA does not expressly agree or disagree with the quantum of Mr Ciesla's claim for past losses. DGA does however take issue with Mr Ciela's claim that he was, for the 7 months before the accident, earning $1,255 net per week. DGA says that the correct net weekly salary was $1,356.38.
I consider however that Mr Ciesla's figures are correct, and I accept those figures.
Accordingly, I find that the following amounts for Mr Ciesla's past losses are reasonable and I would allow these amounts:
Item No
Description
Amount
1
Past loss of earnings from 15 May 2017 to 31 May 2021
$141,008.00
2
Tax paid on weekly compensation payments
$15,966.00
3
Past loss of superannuation
$17,284.00
4
Hospital visits from family and friends
$3,500.00
5
Past gratuitous services
$14,602.50
6
Past special damages being medical expenses and vocational rehabilitation paid by DGA's workers' compensation insurer
$113,376.00
7
Interest on past loss of earnings
$11,633.00
8
Interest on past loss of superannuation
$2,095.00
9
Interest on past gratuitous services
$1,736.69
10
Travel expenses (past and future)
$2,500.00
Total
$323,701.19
Future medical expenses
Mr Ciesla is entitled to recover his reasonable future medical expenses: Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563, 573 - 574 (Sharman). In assessing reasonableness, the court will balance the health benefits to the plaintiff against the cost of the treatment proposed: Sharman (573) - (574).
There is also no disagreement between the parties on the quantum of Mr Ciesla's claim for the cost of his future medical services. I consider that the amounts claimed are reasonable and I would allow the following amounts:
Item No
Description
Amount
1
Future surgery
$20,000.00
2
General practitioner's fees
$5,271.00
3
Radiologist's fees
$2,742.00
4
Gym membership for rehabilitation treatment
$500.00
5
Physiotherapist's fees
$2,640.00
6
Orthopaedic surgeon's fees
$2,468.00
7
Cost of medication
$5,727.00
Total
$39,348.00
Future domestic and gardening services
In respect of domestic services, Mr Ciesla says that he requires assistance for 4 hours per week. In respect of external gardening and handyman services, he says he requires assistance for two hours per week.
He claims a total of $169,920 for future domestic services and $84,960 for future gardening services.
In making those claims, he relies on the report of Dr Lee dated 30 April 2021 at page 19.
However, Dr Lee's opinion is predicated on Mr Ciesla's needs increasing as he advances in age and Dr Lee concedes that this increased need may not arise for 10 years or more: ts 77.
Dr Home, as I have said in respect of my consideration of past expenses, considers that the necessary domestic services are 2 hours a fortnight and that necessary gardening services are 1 hour a fortnight. Dr Home has been dealing with Mr Ciesla since 2018 and I accept his evidence.
In my opinion a reasonable claim for the cost of Mr Ciesla's domestic and gardening services is together $100,000 and I would allow that amount.
Future loss of earning capacity
There is no agreement between the parties about the amount of compensation for loss of earning capacity in the future.
Mr Ciesla's claim in respect of his future loss of earning capacity to age 70 (the appropriate multiplier being 813.4) is $1,366,512. He concedes that this amount should be reduced to take account of his retained earning capacity.
I agree with the submissions of both Mr Ciesla and Mosman Bay that it is unlikely that Mr Ciesla will return to his full-time pre‑accident employment as a glazier by reason of his injuries. He is currently employed with Enable WA as a community support worker. I note that he is not currently working full-time hours, but that Dr Lee considers that he has no restriction in working in this role on a full-time basis. Dr Home also considers that he can work full-time hours.
Mosman Bay is of the view, and I agree, that Mr Ciesla's future loss of earning capacity should be considered in the light of his current and continuing employment with Enable WA.
As I have found, Mr Ciesla's pre-accident earning capacity was $1,255 net per week. Mr Ciesla's claim is based on a figure of $1,680 net per week, based on an assumption that Mr Ciesla would by now be a foreman glazier or a glazier project manager. However, I accept both DGA's and Mosman Bay's view that Mr Ciesla's loss of earning capacity should not be based on that of a project manager, because there is no evidence to suggest that this promotion would have been awarded. I therefore consider that the starting point should be the weekly net figure of $1,255.
I note the submission of Mosman Bay that, in the light of Mr Ciesla's earnings with his current employer, if Mr Ciesla worked full‑time hours, he is in a better position than pre-injury and as such has not suffered any loss of future earning capacity. However, I consider that I should proceed on the basis that Mr Ciesla's future loss of earning capacity should be considered in light of his current and continuing employment with Enable WA. Accepting that Mr Ciesla cannot work with clients of Enable WA with high dependency or physically challenging behaviours, I consider that he should be regarded as only being capable of working part-time hours. I do not consider that he should be regarded as being capable of full-time work because of that limitation.
Mr Ciesla's average net weekly earnings is $894.20 per week. The difference between his net pre‑accident earnings and his current average weekly net earnings is $360.80. His future loss of earning capacity to age 70 is therefore $293,474.72.
On this basis, I consider that Mr Ciesla's claim for loss of future superannuation is $26,192.62, reduced by 15% for tax and management fees which equals $22,263.73.
General damages
Turning to general damages, Mr Ciesla says that the award for general damages should be substantial. He says that he suffered serious fractures in his right wrist, left wrist, left elbow, forearm and right orbit, as well as ligamentous, tendon and soft tissue injuries and injuries to his left knee. Those injuries, Mr Ciesla says, have necessitated various forms of surgery and resulted in permanent disabilities in his wrists, right arm, left leg as well as scarring at a relatively young age. Those disabilities and symptoms are permanent and he will suffer from them for an extended period of time. Indeed, Mr Ciesla says, his condition will deteriorate in time and with the aging process. He has degenerative arthritis in both wrists. His recreational activities and enjoyment of life have been adversely affected.
I accept those submissions. In my view, in all of Mr Ciesla's circumstances, an appropriate award for general damages is $150,000.
Apportionment of damages
Both Mosman Bay and DGA say that if both Mosman Bay and DGA are liable to Mr Cielsa in negligence then, pursuant to s 7(1)(c) and s 7(2) of the Contribution Act, each should contribute towards the liability to Mr Ciesla in an amount the court deems just and equitable.
In determining what is 'just and equitable', the court must consider the degree to which each of Mosman Bay and DGA has departed from the standard of conduct required of them and the relative causal effect of the acts of each of Mosman Bay and DGA.
This involves questions of balance and relative emphasis, the weighing of different considerations and the exercise of value judgements. The whole conduct of each negligent party must be considered and the relative importance of the acts of the parties in causing the damage considered: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492.
In my view, the primary obligation rests with DGA. They were Mr Ciesla's employer. They had primary responsibility for his safety at work. An employer owes a personal, non-delegable duty to its employees to take all reasonable care to institute a safe system of work and to ensure that it is carried out so that its employees will not be exposed to unnecessary risk: Kondis [689].
DGA was fully aware of the scope of the work which Mr Ciesla was to carry out. DGA was aware of the heights involved and the situation with regard to scaffolding. Mr Clements had been on site previously and had seen for himself the situation on the ground. DGA therefore ought to have known that it was reasonably foreseeable that to perform the tasks which he was to undertake, Mr Ciesla would be required to work at height. DGA, however, did not provide any training and gave Mr Ciesla no specific instruction as to what to do in circumstances where he found that scaffolding had not been erected, nor did DGA direct him not to conduct any work at height until scaffolding was in place. DGA left it entirely at Mr Ciesla's discretion as to how he should deal with Mr Hallam. DGA's system of work was therefore, in my view, unsafe.
Mosman Bay was the independent contractor responsible for the construction of 6A and 6B. Mosman Bay was aware of the various jobs to be done in the course of that construction, the situation with regard to scaffolding, and the numerous occasions upon which the various subcontractors would need to work at height. There is no evidence to suggest that Mosman Bay had informed DGA that there may be occasions when scaffolding was not erected at a particular part of the site where work was to be carried out, nor did Mosman Bay give any direction to DGA about how any DGA employee was to go about arranging for scaffolding to be erected.
In those circumstances, I would apportion liability as 40% to Mosman Bay and 60% to DGA.
Conclusion
In conclusion, I find that Mosman Bay and DGA are liable to Mr Ciesla in respect of his injuries caused by the accident. I assess Mr Ciesla's damages in the sum of $928,787.64. However, Mr Ciesla's damages should be reduced by his own contribution of 25%, making that liability $696,590.73. Of that amount, Mosman Bay is liable for 40% ($278,636.29) and DGA is liable for 60% ($417,954.44).
Orders
I will hear from the parties with respect to the final orders to be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Sharp
21 JANUARY 2022
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