Cox Constructions Pty Ltd v Dawes

DAWES v FHD AIR CONDITIONING PTY LTD and ORS
[1999] SASC 229

Full Court: Prior, Perry and Mullighan JJ

PRIOR J. I agree with the reasons published by Perry J and with the orders he proposed.
PERRY J. On 15 or 16 March 1988 (there is some uncertainty as to the date), Stephen Dawes (“Dawes”) was injured in an accident which occurred during the course of his employment by FHD Air Conditioning Pty Ltd (“FHD”) while he was on the roof of the Adelaide Stock Exchange building, in Exchange Place, Adelaide. The building was owned and occupied by Australian Stock Exchange (Adelaide) Ltd (“the Stock Exchange”). A building company which had been working on site was Cox Constructions Pty Ltd (“Cox Constructions”) and a firm of architects which was involved in some of the work was known as Stapledon McMichael Brandford Pty Ltd (“Stapledon McMichael”).
In an action instituted in this Court, Dawes sued all of the other four parties to which I have referred, that is, FHD, Cox Constructions, the Stock Exchange and Stapledon McMichael, for damages. All four defendants denied any liability to Dawes and blamed each other, and Dawes himself, for the accident. There was a plethora of contribution notices.
At some stage the action was transferred to the District Court.
In separate proceedings instituted in the District Court, Workers Rehabilitation and Compensation Corporation, which had paid out a considerable amount of compensation to Dawes pursuant to the Workers Rehabilitation and Compensation Act 1986, sought recovery pursuant to s54 of that Act from Cox Constructions, the Stock Exchange and Stapledon McMichael of the compensation which it had paid, and was liable to pay. The Corporation brought the action out of time, and sought an extension pursuant to s48(1) of the Limitation of Actions Act 1948.
Subsequently, the Corporation became WorkCover. I will hereafter refer to it as such.
In WorkCover’s action, the defendants denied liability and issued contribution notices between themselves and third party notices against FHD.
Both actions were tried together. In Dawes’ action, the learned trial judge exonerated the Stock Exchange and Stapledon McMichael. He dismissed the allegations of contributory negligence against Dawes. In the result, he apportioned the blame for the accident 80% against FHD and 20% against Cox Constructions.
In the other proceedings, the learned trial judge granted the extension of time sought by WorkCover, and held that it was entitled pursuant to s54 to recover from Cox Constructions the compensation paid and payable to Dawes.
From the District Court judgment there are four appeals to this Court and four cross-appeals.
Cox Constructions appeals against the judgment pronounced against it in favour of Dawes. In that appeal, FHD cross appeals.
In a separate notice of appeal, Cox Constructions appeals against the judgment pronounced against it in favour of WorkCover.
In the third appeal, Dawes appeals against the dismissal of his action against the Stock Exchange and Stapledon McMichael. In that appeal, there are cross-appeals by the Stock Exchange and FHD.
Finally, WorkCover brings an appeal against the dismissal of its action as against the Stock Exchange and Stapledon McMichael. In that appeal, there are cross-appeals by FHD and the Stock Exchange. The Stock Exchange cross-appeal is against the grant of the extension of time for WorkCover to bring the proceedings, and as to aspects of the assessment of damages.
Overall, the appeals challenge the findings as to liability and apportionment, the quantum of the assessment of damages, and the order granting an extension of time for WorkCover to institute its proceedings.

Factual Circumstances

In the following account of the factual circumstances, I have not referred to the evidence of all of the witnesses, but it may be assumed that I have taken into account the evidence of the witnesses to whom I do not make specific reference.
At the time of the accident, Dawes was aged about 29 years. He was a well qualified refrigeration and air conditioning mechanic.
About seven or eight months before the accident, he left his employ with another company which was operating at Alice Springs, to accept an offer of a job by FHD, following which he came to Adelaide to work for them. FHD was a company conducted by Anthony Fox (“Fox”). The company was an air conditioning contractor, engaged in both service and installation. Dawes was employed largely on the maintenance side of the business, servicing installations in large buildings in the city.
In about 1982, the Adelaide Stock Exchange building in Exchange Place was damaged by fire. Stapledon McMichael were engaged as architects to supervise the restoration of it. From then on, whenever the Stock Exchange needed architectural services, they called upon Stapledon McMichael.
The employee of Stapledon McMichael who had most to do with the Stock Exchange was Brian Nelson (“Nelson”). Although not a qualified architect, he was a very experienced architectural draftsman.
From 1983 until he left in 1990, the general manager of the Stock Exchange was Alan Cunningham (“Cunningham”). Cunningham developed a close working relationship with Stapledon McMichael, more particularly with Nelson. To use Cunningham’s words in evidence:
“When I first started it became quite clear we had a beautiful building that had been restored in its old splendour. The committee of the exchange at the time wanted to make sure it was maintained in an excellent condition. Therefore we engaged the firm of Stapledon McMichael Brandford basically to ensure that happened. Anything to do with the building, whether it be the building of a cupboard, the installation of a new booth on the trading floor or any major renovations that we did in the building, they were involved, and closely involved.”
There was a handyman whose trade was that of a carpenter, Jim Hunt (“Hunt”), who worked for the Stock Exchange from time to time. If it was a small job, the Stock Exchange’s office manager, Bernie Franzon (“Franzon”), would contact Hunt. If it was a larger job, he was engaged through Nelson.
For larger jobs to be executed by Hunt, Nelson would sometimes draw up a plan and show it to Cunningham, for his approval. Hunt was invariably engaged as an independent contractor. He provided his own tools and equipment and billed the Stock Exchange separately for each job.
In 1987, the Stock Exchange undertook some major building works. The main project was the construction within the building of a mezzanine floor. A secondary undertaking was the building of a computer room on the ground floor. There were one or two other associated works which it is unnecessary to detail.
For the mezzanine project, Nelson drew up plans which he put out to tender. Cox Constructions were the successful tenderer.
FHD was a nominated sub-contractor to Cox Constructions to install the air conditioning equipment for the mezzanine floor. FHD was well known to the Stock Exchange and was familiar with the building in that it had been responsible for the maintenance of the air conditioning plant in the building since about 1983.
Towards the end of 1987, when the mezzanine floor was nearing completion, Cunningham first discussed the computer room job with Nelson. The task was to alter partitions and walls so as to enlarge the room. As Cox Constructions’ work with the mezzanine floor was satisfactory, the Stock Exchange asked Cox Constructions to do the computer room job. They agreed to do it on a “charge up” basis. Stapledon McMichael was to provide normal architectural services, inspect Cox Constructions’ work and process their claims for progress payments.
The new computer room required its own new air conditioning plant. The Stock Exchange asked FHD to quote on the computer room air conditioning. The Stock Exchange accepted their price, and engaged FHD direct to perform that work.
There was a slight overlap between the two jobs. The construction of the mezzanine floor was substantially completed when the computer room work was commenced early in 1988.
Part of the plant for the air conditioning for the computer room, and for that matter for the mezzanine floor, were condenser units to be mounted on the roof of the building. The condensers were to be installed on a concrete plinth situated on the north side of the roof. The roof was a galvanised iron pitched roof with a centre ridge. The sloping surfaces were at an angle of about 27. The low point of the iron and the guttering adjoined a concrete balustrade which surrounded the top of the building. From the balustrade to the ridge measured about 25 feet.
The entrance to the work area was through a hatch or manhole on the south side of the roof. First it was necessary for workmen to enter the roof cavity of the building, from which the hatch or manhole in the roof itself could be reached by steps or a fixed ladder.
Having reached the hatch, it was necessary to push it aside, pull oneself up onto the roof and then climb the south side of the roof. The hatch or manhole was a considerable distance from the ridge. Once on the apex of the roof, it was then necessary to slide or crawl down the north side of the roof to the concrete plinth.
About a week before the accident, Dawes answered a request communicated to him by Fox to go to the Stock Exchange building to assist with the installation of the air conditioning system for the computer room. It does not appear from the evidence that he had any previous experience working on the building.
When he attended, he was referred to Franzon, who took him up into the roof space through an access door opening from Franzon’s office. Franzon entered the roof space with him, but left him to make his way on from there. Dawes climbed up to the roof through the hatch. There was no means of access to the apex of the roof other than by crawling up it, which he proceeded to do, gaining some purchase from the screws holding down the roof iron, which he describes as “tech screws”. Once at the apex, he saw the concrete plinth where the two new condensers were resting in boxes, ready for installation. He slid down to the concrete plinth on his backside. Once there, he took some measurements and worked out a suitable position in which the condensers could be mounted and from which the various pipes would run.
On the same day, Dawes spoke with Fox. He complained of what he perceived to be an inadequacy in the means provided for access to the plinth. Dawes evidence as to this was:
“I explained to Mr Fox that there were no ladders there. I explained to Mr Fox I had to crawl up on my feet and hands to the ridge cap and slide down onto the plinth. I also complained to him that there were no safety measures made on the plinth and then went on to describe what I had to get and the materials I had to get for the job.”
Dawes did not remember what response Fox made to his complaint.
At all events, the next day when he returned with a quantity of equipment which he took down onto the plinth, there was what he described as an aluminium ladder up against the hatch or manhole and extending up past the apex of the roof by one or two feet. Despite his recollection that the ladder was aluminium, the preponderance of the evidence in the case is to the effect that it was in fact a wooden ladder.
Be that as it may, the ladder was not anchored at either end. While the ladder improved the ability to reach the apex of the roof, there was no ladder or other means of access provided down to the plinth on the north side of the roof.
Dawes spent the best part of a morning bringing equipment, including gas bottles weighing about 30 kilograms, up into the roof cavity and then onto the roof itself, where he made his way up the ladder with the equipment and then down the other side onto the plinth.
A day or so later, Fox attended on the site. Dawes could not recollect in his evidence whether it was either the Friday afternoon of the week when he commenced work, or the Monday of the following week. He thinks that Ivan Cakebread (“Cakebread”), FHD’s manager or supervisor, might also have been present. Dawes says that on this occasion he “complained bitterly” at the fact that there were no safety rails around the plinth, from which there was a sheer drop straight down to the street, and that there was no ladder on the north side down to the plinth. As for the ladder on the south side, he says that he complained that it was just “thrown in place and not attached or secured to the roof”. According to Dawes, Fox said he would “get straight onto it” the moment he left. Fox did not, however, suggest to Dawes that the latter cease working on the roof until any further steps were taken.
Dawes gave evidence of others coming onto the roof while he was working on it and before the accident. He asked for some assistance at one stage, and an apprentice named Stephen White came, he thinks on the Monday of the week of the accident. If the accident occurred on 15 March, which seems likely, the accident was on the following Wednesday. White gained access via the ladder on the south side and sliding down the roof on the north side, as Dawes had done.
On the Tuesday, an electrician, another sub-contractor, came to work on the plinth. Having got to the apex of the roof, he tried to walk down it, but his feet, according to Dawes, “went from underneath him and he ended up on his backside, coming down the roof on his backside”.
In fact, there was no change made in the access arrangements on the roof before Dawes had finished the work which he was doing. It was then necessary for him to remove the equipment from the roof down to ground level. The process which he followed in executing that task was described by him in evidence as follows:
“I would basically throw everything onto my left shoulder and I would take a run up the roof, placing my boots on the tech screws on the roof. Then I would get to the apex of the roof and I would grab the ladder with my right hand and steady myself. Then I would place my right foot on the ladder and kind of squat down and walk down the ladder, sliding - once I got to the hatch, I would slide the bottle off (a gas bottle) my shoulder and into the hatch, into the roof space.”
It was while Dawes was removing equipment from the roof that the accident occurred. He describes the immediate circumstances as follows:
“The nitrogen bottle is one of the last bits of equipment to come off the roof. I once again slung it up on my shoulder and took a run up the roof. I got to the top of the roof. Once again steadying myself on the apex of the roof, I then placed my right foot onto the ladder, then started to transfer weight onto it to step onto the ladder. However, the ladder not being secured, slipped and fell off down the roof. As I started to fall, I pushed the nitrogen bottle off my shoulder and rolled down the roof, ending up in the gutter up against the parapet wall. Thinking that was bad enough, the nitrogen bottle followed me down the roof and slammed into the lower part of my back.”
So far I have confined myself mainly to the account given by Dawes. A number of other witnesses spoke of problems of access across the roof. But given the lapse of time between the accident and the trial, some ten years, it is not surprising that there were discrepancies as to dates and times when things were said or done.
One of the other witnesses was Graham Rose (“Rose”), then an electrician with FHD. He went onto the roof on a number of occasions while the work was progressing on the construction of the mezzanine floor. If he was right about that, this would necessarily have been some time before Dawes first went onto the roof.
At all events, Rose’s evidence was that he came upon an apprentice removing some gear from the roof. At that stage there was what he described as a “rickety wooden ladder” running from the hatch up the roof, which was in the same position as that described by Dawes. Rose thought it unsafe for an apprentice to be on the roof in that condition, and assisted him to remove some gear from the roof. He then instructed the apprentice not to return to the roof until it was made safe.
Rose also removed some equipment of his own from the area where the condensers were mounted. Like Dawes, he slid down the roof on the north side to the plinth and then ran up it on the return journey. While working on the job, he had on occasions used a rope or cord to pull gear up to the ridge cap.
Rose’s evidence was that he spoke to the site foreman from Cox Constructions, a man named Meyers, complaining of the lack of safe access across the roof. According to Rose’s evidence, he told Meyers that “the roof area was black”, that it was too unsafe to work on and that he (Rose) was not going back there again. He says that he also reported the unsafe condition to either Cakebread or Fox, more likely Fox. Fox said he was “going to follow it up”.
Rose said in evidence that, as best he could remember, his conversations with Meyers and Fox took place some weeks before Dawes' fall. He said elsewhere that it was late February or early March 1988, but that is difficult to square with Meyers’ evidence. From his daily report sheets, Meyers was adamant that the mezzanine contract work was virtually completed by the end of December, and that he did not return to the site after going on annual leave in December. Meyers did not recall, in giving his evidence, Rose saying that the roof was “black” or that Rose would not be returning to the roof, although he remembered a complaint from the architect, presumably Nelson, that the ladder within the roof space giving access to the manhole was too short.
Christopher Cox, who gave evidence on behalf of Cox Constructions, had very little contact with the work being performed at the Stock Exchange building and was not able to throw any light one way or the other on the issues raised as to the access across the roof.
I have already referred in part to the evidence of Cunningham, the then general manager of the Stock Exchange. He recalled an occasion when Nelson spoke to him about problems of access on the roof. He had a recollection that the term “black ban” was used. His evidence was that he could not recall the exact conversation, but if there was any work to be done, he would have expected Nelson to recommend it to him. Given their relationship and his trust in Nelson, he was sure that his response would have been “do whatever you need to do to get it fixed”.
In the course of his cross-examination he said that when he learned from Nelson that there was a problem of access to the roof, he was not sure if he took any steps about it. He said that he was not aware that it was their responsibility to do so. It is clear from his evidence that he and the Stock Exchange left matters of that kind to Nelson.
Although understandably he was unable to be precise as to when the conversation with Nelson took place as to the question of access to the roof, he thought that it was before he heard about the accident.
Nelson’s evidence was more specific. He denied that Stapledon McMichael was responsible for supervising the air conditioning, either of the sub-contract work done by FHD in connection with the mezzanine floor, or the work done by them on a direct contract basis with the Stock Exchange for the computer room. He was at pains to point out that Stapledon McMichael had no expertise in air conditioning and relied upon FHD, and in the case of the mezzanine contract, the consulting engineers, Lincolne Scott, to supervise that aspect of the work.
He did, however, recall taking a telephone call from either Fox and Cakebread or both during the course of the work on the computer room in early 1988. In the course of the conversation, Fox, supported by Cakebread, said that it was very difficult working on the roof and that there should be some better access on the roof. Nelson’s evidence was that he said that it was their responsibility, that is, FHD’s responsibility, to provide safe access for the workmen, but he was prepared to give the Stock Exchange a ring to see what they were prepared to do about it. He did not recall either Fox or Cakebread saying anything about the site being declared black.

In fact, he went further than he suggested to Fox and Cakebread that he would do. He rang Cunningham and spoke to him and suggested that the Stock Exchange provide two ladders on the roof, to be joined at the top and to hang down on either side of the apex. Nelson and Cunningham discussed the fact that FHD had the maintenance contract for all of the air conditioning, so that there was some ongoing necessity for safe access. Cunnigham authorised him to go ahead and to contact Hunt to get him to do the work.
The same day, Nelson prepared a rough sketch and put it in the post to Hunt. The same night, presumably before Hunt received the sketch, he rang Hunt and explained what was needed. Hunt was to purchase the ladders, bolt them together and put them on the roof. According to Nelson, he asked Hunt to do so as soon as possible.
It is clear that it was a little later than that night when Nelson heard of Dawes’ fall.
On the whole of the evidence it seems clear enough that, despite some uncertainties of recollection as to just when the issue of the safety of the access across the roof was raised, it was raised on at least two discrete occasions. It seems likely to have first been raised while Meyers was still in attendance, which necessarily would have been during the execution of the mezzanine floor construction, probably late in December 1997. Rose was the author of the complaints then, when there was talk of declaring the roof “black”.
There are conflicts between the evidence of the witnesses as to whether the wooden ladder was placed on the roof then or later after Dawes made his complaints, or indeed, whether it had been there all along. At the end of the day, I do not think it matters. What is important is that there was an earlier complaint, and after Dawes came onto the job, another complaint from Dawes to Fox which in turn resulted in a telephone call from Fox, and possibly Cakebread, to Nelson. Nelson discussed the matter with Cunningham, as a result of which the action to which I have referred was taken, involving Nelson’s communications with Hunt. This second phase of the matter must have unfolded over a period of days only, as Dawes was on the job only for a period of a week or so before he finished the work and the fall occurred.
What is equally clear, is that although Nelson told Hunt to put the ladders up as soon as possible, he did not, pending the installation of the ladders, take any steps to keep workmen off the roof, and neither did he see to it that the work was done quickly enough to prevent the unfortunate accident which did occur.
Against that background, it is appropriate to have regard to the learned trial judge’s finding on the issue of liability.

Trial Judge’s Findings as to Liability

The learned trial judge referred to the fact that FHD had serviced the air conditioning plant in the Stock Exchange building over a number of years and must be taken to have had a “working knowledge of the building”. While that is true in a general sense, the evidence does not make it entirely clear whether the regular servicing of the air conditioning plant before the mezzanine floor construction commenced would have taken FHD’s employees onto the roof of the building as opposed to other parts of it.
Be that as it may, there is no doubt that at the time when the work was executed in association with the construction of the mezzanine floor, FHD must be taken to have been well aware of the situation on the roof, given that a condenser to do with the mezzanine floor air conditioning was mounted on the roof. At that stage, FHD, more particularly Fox and Cakebread, owed a duty to make themselves familiar with the roof area and ensure that it was a safe working environment. The learned trial judge found that, in any event, Rose made his complaints known not only to Meyers but also to Fox “some weeks before the plaintiff’s fall”. The learned trial judge further found:
“Clearly, Mr Rose raised the issue of a black ban on the site. Mr Meyers and Mr Nelson could not recall such a statement, but on the other hand, Mr Cunningham believes some person told him of the roof being declared ‘black’, which is support for the evidence of Mr Rose. I accept Mr Rose’s allegation that Mr Fox was annoyed by his complaint about the site.”
The trial judge took a most unfavourable view of Mr Fox’s evidence. He said:
“Mr Fox, on the other hand, was a very unsatisfactory witness. I place no reliance on his evidence at all. I believe it is mainly reconstruction favouring his company.”
Except perhaps for the possible placing of the ladder on the roof, as to the timing of which, as I have explained, the evidence is unclear, it is clear that Fox was only spurred into doing something about the matter when Rose’s earlier complaints were followed up by the complaints made by Dawes. Clearly enough, Fox, and possibly also Cakebread, then spoke to Nelson, with the consequences to which I have referred.
But this was too little, too late. FHD had the responsibility from the outset of ensuring the safety of the work place, which included the provision of a safe means of access to and from the concrete plinth. If Fox had been acting responsibly, he would have removed his workmen from the site until appropriate arrangements were in place.
Clearly, the learned trial judge’s finding of negligence against FHD was correct.
The learned trial judge’s finding that Cox Constructions was also negligent is more problematic. The findings by the learned trial judge with respect to Cox Constructions are brief:
“I accept that Mr Rose complained to the foreman, probably Mr Meyers. Mr Meyers believed the provision of safe access was solely the responsibility of FHD. No doubt the fact that the Cox construction work was almost completed meant that they viewed the problem of access as solely the responsibility of FHD.
FHD was the sub-contractor whose employees would in the main be working on the concrete plinth. The concrete plinth was part of the building contract and Cox had an obligation under the mezzanine contract to inspect the site and consequently consider access to all persons. It could not simply say that safe access was a sub-contractor’s problem. The mezzanine plans proposed by Lincolne Scott show the placement of the condenser on top of the lift machine room with the comment:
‘Power supply 20AMP/Phase 30 supply. The Builder will provide a weather isolating switch adjacent to the ACC/M. The mechanical service contractor will connect to the unit and wire to the ACC-M.’
Such work on the platform had to be checked, or approved by Cox and the designing engineers, and Cox in this respect owed a duty of care to ensure safe access to the concrete platform.”
In my opinion, there is much in the argument advanced by Mr Howard for Cox Constructions on the hearing of the appeal, that the learned trial judge did not in that finding have sufficient regard for the fact that Cox Constructions’s work on the mezzanine floor had been completed before the accident occurred. While it is true that FHD was a sub-contractor to Cox Constructions for the performance of its work related to the construction of the mezzanine floor, FHD contracted direct with the Stock Exchange for the installation of the air conditioning plant for the computer room.
I have already referred to Meyers’ evidence based on his time sheets, that he was engaged on other construction sites to the exclusion of the Stock Exchange building when he resumed work after the Christmas break in January 1988. A certificate of practical completion for the mezzanine construction work could not issue until the air conditioning of the mezzanine floor had been completed, as to which FHD were running late in the sense that they had not kept pace with the early completion of the building work associated with the mezzanine floor performed by Cox Constructions. Be that as it may, a certificate of practical completion issued with respect to the mezzanine floor on 18 February 1988.
There is no evidence to support the view that Cox Constructions had any active involvement with respect to the installation of the air conditioning for the computer room, their work in that respect being confined to the ground floor. Given, as I have said, that FHD contracted direct with the Stock Exchange for that work, I find it difficult to justify a finding that Cox Constructions was in any way responsible for any deficiencies in access across the roof which might have confronted FHD’s workmen at that stage.
In my opinion, the finding of negligence against Cox Constructions cannot be sustained.
As I have said, the learned trial judge exonerated both the Stock Exchange and Stapledon McMichael. As to his findings with respect to both of them, I regret that I would also come to a different conclusion from that reached by the learned trial judge.
The central finding as to his exoneration of the Stock Exchange appears in the following passage in the learned trial judge’s reasons for judgment:
“After the allegation by FHD about inadequate access the Stock Exchange, promptly on the suggestion of the architect and at their expense, directed their general handyman place a ladder on each side of the sloping surface, bolted at the top. This action does not impose any legal liability on the Stock Exchange. If the Stock Exchange had not so acted it would have been incumbent on FHD and/or Cox to place similar ladders on the roof at their expense for the safety of their workmen.
........
I do not believe that the Stock Exchange is in breach of any provision of the Occupational Health, Safety and Welfare Act and Regulations. Those provisions very much mirror an occupier’s common law obligation.”
In my opinion, those comments pitch the obligations of the Stock Exchange under the Occupational Health, Safety and Welfare Act 1986 (which in this part of my reasons I refer to as “the Act”) and Regulations too low.
In the first place, there is no suggestion by anyone that the action of the Stock Exchange in arranging for the two ladders, bolted together, to be placed at the top of the roof operated to “impose any legal liability on the Stock Exchange”. On the contrary, the real question is whether the Stock Exchange is liable for having failed to take that measure or a similar measure earlier, and in failing to prevent access to the roof until the ladders were placed in position.
The relevant section of the Act is s23 which provides:
“The occupier of a workplace shall ensure so far as is reasonably practicable-
(a).... that the workplace is maintained in a safe condition;
and
(b).... that the means of access to and egress from the workplace are safe.”
In s4 of the Act, “occupier” is defined as follows:
“‘occupier’ in relation to a place means a person who has the management or control of the place:”
Clearly, the Stock Exchange was the occupier of the roof.
While the situation may be different if the owner of premises otherwise in occupation of them yields temporary occupation to a builder during the currency of a building contract, here, there was no exclusive occupancy given to Cox Constructions or to FHD, and the Stock Exchange remained in effective occupation of the building, including the roof, at the time of the accident.
What is more, the Stock Exchange exercised effective control of access to and from the roof by reason of the fact that the key to the door which led to the only means of access to the ceiling space was held by Franzon.
In the same section, there is a definition of “workplace”:
“‘workplace’ means any place ... where an employee works and includes any place where an employee goes while at work.”
The duties imposed by s23 are extended by regulations passed under the Act, and in particular the Occupational Health, Safety and Welfare (Commercial Safety) Regulations 1987.
Regulation 5 provides in part:
“(1).. The occupier of commercial premises must-
(a).... do all things as are necessary to ensure compliance with the Act and these regulations;
and
(b)... take all reasonable precautions to ensure the health and safety of any person who works in or about the premises.
(2)... ......”
Regulation 7 provides in part:
“(1).. The occupier of commercial premises must provide and maintain a continuous means of access to the premises-
(a).... to enable persons to move conveniently and safely throughout the premises in the performance of their normal duties;
(b) to afford safe and rapid egress from the premises in an emergency;
and
(c) to give safe access for the servicing and maintenance of any plant in the premises.”
“Commercial premises” are defined in the regulations (see Regulation 3(1)) in terms which would apply to the premises know in question. Counsel did not suggest otherwise.
Of course, what is “reasonably practicable” within the meaning of s23 and what are “reasonable precautions” will vary according to the circumstances, which in turn may differ greatly from one case to another.
However, Regulation 7(1) is expressed in absolute terms and suggests that the obligation to “... provide and maintain a ... means of access ... to enable persons to move conveniently and safely throughout the premises” in the circumstances postulated by the regulation is unqualified.
I do not pause to deal with a number of authorities referred to by counsel on the issue of liability, more particularly as to the liability of the Stock Exchange in its capacity as occupier of the building. Authorities such as Northern Sandblasting Pty Ltd v Harris[1] and LeCornu Furniture and Carpet Centre Pty Ltd v Hammill and Anor[2] turn on their own particular facts and are of limited relevance.
[1] (1995-97) 188 CLR 313.
[2] (1998) 70 SASR 414.
Here, it seems to me that the duties of the Stock Exchange pursuant to the relevant statutory and regulatory provisions ought properly to be regarded as more onerous than their duties at common law. Whether the statutory or regulatory provisions apply, and if so whether they are non-delegable, are questions the answers to which turn on the construction of the particular provisions.
I have no doubt that they apply here, and their content is self-evident. Furthermore, in my opinion, they gave rise to a non-delegable duty of care.
In this particular case, I think that the statutory and regulatory provisions serve to reinforce rather than supplant the common law duty of care. Furthermore, it seems to me that whatever more general duty was imposed upon the Stock Exchange by reason of the statutory and regulatory provisions to which I have referred, was in this case overtaken once the Stock Exchange was informed of the complaints about access across the roof for FHD’s workmen.
Before those complaints were made, the Stock Exchange was obliged under the Act and Regulations to see to it that a safe means of access across the roof was provided. I am not so sure that at that stage there was a corresponding common law duty.
But in respect to the statutory and regulatory provisions, and any possible concurrent common law duty, once the complaints were made by Dawes, which unquestionably were passed on by Nelson to Cunningham, a positive duty then devolved upon the Stock Exchange, both at common law and pursuant to the statute, to respond appropriately to the complaints and ensure that any potential situation of danger to which the workmen might have been exposed was appropriately dealt with. At that point, both the statutory and the parallel common law duties converged.
The response which was required on the part of the Stock Exchange was in the first place to ensure that access was denied until the situation of danger which had been identified was rectified. Given the Stock Exchange’s control of access to the roof, and its possession of the key to the door leading to the roof space, this was easily achieved. The next step was to install a safe means of access across the roof, such as was eventually achieved by the installation of the ladders.
While the Stock Exchange set in motion the steps necessary to achieve the second result, the principal ground upon which I would hold them negligent is in their failure to address the first requirement.
While it might have been perfectly reasonable for Cunningham to rely upon Nelson to do what was necessary to remedy the situation, this did not relieve the Stock Exchange of its duty as building owner and occupier, at common law and pursuant to the statute, to see to it that appropriate remedial steps were taken.
Given that Nelson became the Stock Exchange’s agent to carry out whatever was required to address the problem, responsibility may be sheeted home against the Stock Exchange on two bases. In the first place, by reason of their non-delegable duty, at least under the statutory and regulatory provisions, to ensure the safety of the premises for the work being carried on by FHD. In the second place, by reason of vicarious responsibility for the negligence of Nelson in failing to act with a sufficient sense of urgency and promptly enough to remove the risk.
I think that the Stock Exchange was misled by Nelson in that he was suggesting that it was FHD’s sole responsibility to provide for its workers, although the Stock Exchange could, if it wished, do something about the situation, given that there were ongoing servicing responsibilities. This was an understatement, indeed a serious misstatement, of the Stock Exchange’s position as owner and occupier.
As to Stapledon McMichael, it is true that there was no duty of supervision by Stapledon McMichael over FHD’s work with respect to the installation of the air conditioning. But once the complaint had been made to Nelson of the problem in securing access, given the Stock Exchange’s ongoing reliance on Nelson to look after their interests in that respect, made abundantly clear by the evidence of Cunningham, and given the willingness of the Stock Exchange to do whatever within reason Nelson might have recommended, Nelson owed a duty to Dawes and any other workmen involved, to act promptly and effectively to remedy the situation.
As well, there was an overarching responsibility on the part of the Stock Exchange to see that he did so.
Clearly, the only effective and proper way to remove the risk was to suspend access to the roof until the ladders which were eventually put in place, had been installed. In my opinion, the failure to take the steps necessary to ensure that result should have led to a finding of breach of duty of care, both on the part of the Stock Exchange and Stapledon McMichael through Nelson.
For these reasons, I would substitute findings that both the Stock Exchange and Stapledon McMichael were liable to Dawes.
The learned trial judge refused to find that Dawes was guilty of contributory negligence. In my opinion, that conclusion was clearly correct.
The trial judge took a favourable view of Dawes and clearly regarded him as a capable worker, endeavouring to perform the task at hand in a conscientious manner. Not only thinking of himself, but also of others on the site, he went as far as he could to try to persuade his employer to improve the safety of the access across the roof. There was little else he could do, short of refusing to work until the situation was rectified.
While this case is not quite the same as those cases where there is an error of judgment resulting “from a conscientious, perhaps over-conscientious application to the task in hand”,[3] or a question of momentary inadvertence, both of which are situations in which the courts have been loath to place blame on the employee, it is analogous to those situations.
[3] Gypsum v Broken Hill Pty Co Ltd (1985) 120 LSJS 458 (Full Court) per King CJ at 460.
Clearly, there was a limit to the extent to which Dawes could complain about the situation without risking his job. Having taken what steps he could, he then made the best fist he could of coping with the exigencies of the removal of the copper piping and other equipment in the course of clearing up. This is not a case where it would be appropriate to hold him guilty of contributory negligence in persisting, as he did, with the task at hand.

Apportionment

FHD as the employer of Dawes must bear the major responsibility for his injuries. The manner in which Dawes was expected to lug equipment across the ridge of the roof, including the heavy gas bottles and the copper piping, seems to me to be indicative of a crudely inadequate system of work. Furthermore, the means by which it might be rendered safe were clearly not expensive or time consuming. Fox’s inadequate response to the complaints about the lack of a safe means of access across the roof emphasises the shortcomings in his concern for the well-being of his employees.
While, for the reasons which I have given, the Stock Exchange was guilty of negligence, in one sense it acted reasonably in leaving it to Nelson to attend to the situation. The Stock Exchange, like any owner of a large building, cannot be expected to have an intimate knowledge of their responsibilities when work is performed on the premises, or to be aware of precisely how and when any such work might be performed. It is understandable that they should leave matters of that kind to a firm of architects.
However, for the reasons which I have given, those considerations do not relieve them of their statutory and regulatory responsibilities, and furthermore, whatever more particular duty of care at common law arose upon them being made aware of the situation which had arisen.
So far as Stapledon McMichael is concerned, in my opinion, Nelson, on their behalf, did not fully appreciate the urgency of the situation, the position of the Stock Exchange having regard to the statutory and regulatory provisions, and the desirability of preventing access to the roof while the obviously unsafe condition was rectified.
In all the circumstances, I consider an appropriate apportionment to be as against FHD 70%, Stapledon McMichael 20% and the Stock Exchange 10%.

Appeals as to Assessment of Damages

The damages as assessed by the learned trial judge, as expressed in the reasons for judgment published by him on 5 February 1998, were as follows:

PAST

FUTURE

Pain and suffering

   40,000

          50,000

         Interest on pain and suffering

          15,000

         Economic loss

120,000

          350,000

         Interest on past economic loss

          26,000

         Special damages

          19,128

         Future medical expenses

          10,000

         Gratuitous services

__________

          5,000

  TOTAL

$220,128
=======

$415,000

=======

TOTAL

$635,128

=======

After publication of the reasons for judgment, it was pointed out to the learned trial judge that a lump sum payment had been made by WorkCover to Dawes on 30 May 1990 of $21,030. As a result of that information, the learned trial judge reduced the allowance for interest on the award for past pain and suffering from $26,000 to $4,000.
Between them, the various notices of appeal attack the awards for past and future non-economic and economic loss.
As I have already pointed out, at the time of the accident, Dawes was 29 years of age. At the time of trial he was 39.
Some time before the accident, while working for FHD, he pulled some muscles in his back while removing a crank shaft from a large compressor in a city building. He was off work for about four or five days, but fully recovered and returned to his normal work.
The immediate consequence of his fall now in question was lower back pain, which spread to his right leg and ankle. The level of pain increased to a point when he was advised to have an epidural steroid injection. This indicated the desirability of fusion of the lower lumbar spine at the level of L4 to S1. He undertook that procedure in November 1988. The fusion was reinforced with internal fixation. This was not particularly successful, and Dawes continued to suffer considerable pain and discomfort and limitation of movement.
In late 1990, the metal fixation became loose, as a result of which it was removed in another procedure carried out in February 1991. In July 1992, an experienced orthopaedic surgeon, Mr Fry, expressed the view that the fusion had not been successful, but that Dawes would not benefit from any further surgery. He continued to have problems and increased pain in both his back and right leg.
The learned trial judge’s award of damages for non-economic loss was predicated upon the following findings which I quote from his reasons:
“... the plaintiff has been devastated by this injury. Prior to the accident he was a very fit 30 year old competent refrigeration mechanic with an assured financial future. His health was extremely good and he was enjoying a full social life involving himself in all manner of recreational and sporting activities. The probabilities at that time were that he would in time establish a family. In fact that did occur. His wife, Tania, is a competent and attractive young lady and they now have three young children. There would be little doubt in saying that in 1987-88 his future was well assured, both in the financial and social areas.
The accident intervened and has totally devastated his life rendering him in this economic climate as almost unemployable, and, forcing him to endeavour by his own efforts to earn income accompanied by much pain. He is unable, except in a very limited manner, to engage in his sporting and recreational activities and as well has significant restrictions in his personal and family life.
In assessing his pain and suffering it has been an ongoing situation for almost 10 years and no doubt while he endeavours to continue with his current roof restoration business he will continue to have much pain. Such is the nature of the man to endure his pain problems to support his family. If he becomes less active as I have no doubt he should he will suffer lack of income and be placed on assistance levels which clearly he is loath to do.
The plaintiff has accepted all medical advice, undergone fusion surgery then further corrective surgery which unfortunately has not been successful. There is the possibility that further surgery may assist but he cannot be criticised for accepting both Mr Hall and Mr Morrison’s opinion of the marginal value of such a procedure.
The plaintiff is now aged 39 with a permanent and significant back problem assessed by Mr Morrison as having ‘a residual disability amounting to loss of 35% of the function of the lumbo-sacral spine’. The specialists have postulated that his work efforts will or should cease by age 50. Bearing in mind the nature of the plaintiff, I believe his strenuous work efforts or attempts will continue which in itself will mean more suffering and to some slight extent affects his future economic loss award, but must reflect under a pain and suffering award.”
It should not be overlooked that the award for past non-economic loss applies to a period of the order of ten years over which Dawes has suffered very considerably.
He is still relatively young, and will continue to suffer pain and loss of amenities for many years.
In all the circumstances, I consider that the learned trial judge’s assessment for past and future non-economic loss to be modest. No ground has been made out for interference with either component.

Economic Loss

The total award under this head was $470,000, $120,000 for the past and $350,000 for the future.
The learned trial judge described Dawes efforts to work after the accident as “exceptional”. That view is supported by Dawes own evidence as to the efforts which he had made, and by comments made by the medical witnesses.
Clearly, Dawes is highly motivated and eschews WorkCover payments and social security, to the extent that he is able to produce an income from his own exertions. A contributing factor in his endeavours in that respect is the need for him to support his wife and three young children.
Before the accident, Dawes had decided that the employment offered by FHD, on the basis of which he left a job at Alice Springs in order to come to Adelaide, had not met his expectations. He had already made contact with Tom Kelly who was the proprietor of another business known as TK Enterprises, which was largely concerned with the installation of air conditioning ducting as opposed to the installation of air conditioning plant. Dawes intended to leave FHD and take up employment with TK Enterprises as soon as he had finished one or two projects with which he was involved with FHD.
The accident supervened.
Kelly was called to give evidence which corroborated that of Dawes that corroborated that of Dawes that they had reached an understanding that Dawes was to come to work for him. Although Dawes was to commence with duct work, Kelly saw the employment of Dawes as an opportunity to expand his business into the mechanical side of air conditioning. Kelly said in evidence that Dawes “had a good name in the industry”.
In the events which happened, Dawes’ injuries rendered him unfit for work as a refrigeration mechanic, or even as an installer of ducting.
During the first year or two after the accident, Dawes subsisted on WorkCover payments. However, he eventually obtained work in a supervisory role with Carrier Air Conditioning, which continued in 1991. In 1993, he obtained employment with Tecair, and in 1994 he worked as a shop assistant, which required him to stand on his feet all day as a salesman in a fish supply shop.
Some later employment with a firm called Statewide Roof Restorations led to him deciding, in August 1997, to go into partnership with two others in a business known as DKS Roof Restorations.
The learned trial judge received evidence of the income and expenditure of that business for the four months between August and November 1997. Although Dawes and his partners had been drawing $565 gross a week, the learned trial judge made the following observations:
“I doubt when the partners had their initial drawings that any attention was given to statutory deductions, taxation and general and prudent running costs. The actual books of record and summary disclose what I would call a fairly (sic) break even point to say the least. It is clearly a venture where the work is strenuous. It involves lifting heavy cans of paint and roof work. The plaintiff is obviously a person who does not want to admit that he has problems and his sympathetic partners accept him and his disabilities.
Whilst the plaintiff did draw the sums he mentioned in evidence the brief company records cast doubt on its viability despite the early and best intentions of the plaintiff and his partners. In any event the nature of the employment is far from suitable for the plaintiff bearing in mind his disabilities. However, the plaintiff is preoccupied with endeavouring to support himself and his family. I believe such endeavours will be temporary not only because of the apparent lack of viability of the business but also his own health.”
There is no reason to disturb that finding.
The award classification for the plaintiff, if he had remained in employment as a refrigeration mechanic, was known as a Level II award, which in 1982 provided for a gross weekly wage of $433.60. By the time of trial, the base rate had risen to $533.80 per week.
During the eight months or so when Dawes had been employed by FHD he grossed $15,838, or something of the order of $500 per week, substantially above the award. Clearly, his decision to seek employment with Kelly was motivated in part by the expectation that he would earn more with Kelly than he had been earning with FHD.
Kelly’s evidence was that some duct installers were grossing in excess of $50,000. Dawes own evidence was that he hoped to earn $15,000 to $20,000 more per year with Kelly than he had been earning with FHD.
As to the pre-accident loss of earning capacity, the learned trial judge made the following findings:
“The evidence of Mr Kelly is that some of his duct installers grossed from $40,000 to $54,000 a year and these incomes have been fairly consistent to the present time. If the plaintiff had worked for Mr Kelly from March 1988 and using a gross of $40,000 a year the net amount he would have earned to this date would be in the region of $270,000. If he had grossed $50,000 his net income would have been about $323,000. I view the plaintiff as a person who would have grossed more than $40,000 and my assessment proceeds on this basis. However, he has had a net income in this period of about $190,000 including a sum of $54,592 which is repayable to Work Cover and a small sum to the Department of Social Security.
Bearing in mind the nature of the plaintiff’s work ethic and abilities and various contingencies, I propose to allow a lump sum of $120,000 for his past economic loss.”
It seems that the learned trial judge adopted a figure closer to $50,000 per annum than $40,000. If one was to take the learned trial judge’s estimate of $323,000 as representing the net income on an assumption of a gross annual income of $50,000, and deduct the figure of $190,000 representing the net income which in fact he earned during that period, the relevant figure is $133,000. The allowance of $120,000 for past economic loss represents a discount of about 10% on that figure.
Ordinarily, one would have expected a substantial increase in annual earnings in most trades over a ten year period. But the evidence of Kelly, which the learned trial judge accepted, was that in 1987 and 1988, duct installers earned over the $50,000 mark, and that there had been little change since then.
Given the fact that the evidence clearly established that Dawes had impressive credentials as a refrigeration mechanic and a solid dedication to his work, in my opinion, that award, while generous, has not been shown to be excessive.
It is, however, wrong in principle to deduct from the award the amount repayable to Work Cover and the amount paid by the Department of Social Security, which should be included in the judgment. The amount on this head should therefore be $179,410.28.
As for future economic loss, the learned trial judge had before him an actuarial calculation certifying that as of 2 December 1997 the value of $1 per week payable in the case of a male of the age of Dawes to age 65 was $906.
Although one of the specialists (Mr Fry) diagnosed a degenerative back condition before the accident, which may or may not have become symptomatic, the learned trial judge found that there was nothing to suggest that Dawes would not have worked until aged 65. In reaching that conclusion, he must be taken to have rejected Mr Fry’s view. There is no reason to disturb that finding.
As with the past economic loss calculations, the learned trial judge based his assessment on a gross income in excess of $40,000. $40,000 would yield approximately $770 gross per week, or say $550 net, clear of tax. Applying the multiplier of $906, would yield an amount of about $500,000.
The learned trial judge specifically indicated that “the plaintiff’s residual work capacity, health, retrenchment in a non-compensable situation and other normal contingencies have to be borne in mind”.
Against that background, the award of $350,000 for future economic loss is modest and there is no reason to interfere with it.

The Appeals against the Order in favour of WorkCover made under the Limitation of Actions Act

These appeals may be disposed of shortly, as they were not seriously pressed by counsel.
Pursuant to s54(7)(g)(ii) of the Workers Rehabilitation and Compensation Act 1986 (in this part of the judgment referred to as “the Act”), recovery proceedings pursuant to the section must be instituted by WorkCover “within 3 years after the date of the trauma...”.
The relevant proceedings were instituted in the Industrial Court on 12 November 1991, about eight months after the expiration of the period of three years. The proceedings were instituted in the District Court by WorkCover on 5 July 1996, over five years after the expiration of the relevant period of limitation.[4] Apparently it must have been conceded before the learned trial judge that the relevant date was the date of the institution of proceedings in the Industrial Court, even though those proceedings were not before the learned trial judge.
[4] The point was taken by Cox Constructions in its defence to the WorkCover proceedings in the District Court that the extension was for a period in excess of five years. [See AB1/110].
An officer of WorkCover, Mr Walsh, was called, and outlined the reasons for the delay. There were changes in the administrative procedures within WorkCover pursuant to which recovery proceedings of this kind were handled during the period of the limitation in question. Mistakes were made by the WorkCover personnel responsible for giving instructions for the issue of the proceedings. Put shortly, the matter was overlooked.
In determining the application for an extension, the learned trial judge correctly regarded s48(1) of the Limitation of Actions Act as being of application.[5]
[5] See Baulderstone Pty Ltd and Anor v WorkCover Corporation and Male (1995) 64 SASR 519 and WorkCover v Mapstone (1993) 60 SAIR 801.
The learned trial judge’s conclusion as to this aspect of the matter finds expression in the following passage from his reasons:
“One would have thought that as the Corporation was established in 1986-87 such an important area as recovery would have been well established by say 1991. However, I have to say the delay is not very long and by the time of the institution of the Industrial Court proceedings the defendants were then on notice. The hardship to the plaintiff is self-evident in that it would fail to be indemnified for the payments to Mr Dawes.
I do not consider the defendants had adduced any evidence of prejudice in the manner that word was used by the former Chief Justice in Ulowski v Miller.[6] It was said a prejudice was that if the order was made it revives a statute barred action. I do not see that as being prejudice to the defendants. The delay has not in any way prevented or harmed the defendants in the presentation of their respective cases. The defendants have been on notice of the plaintiff’s claim within the statutory period.”
[6] (1968) SASR 227.
Nothing has been put before this Court which would justify interference with the exercise by the learned trial judge’s discretion under s48 in favour of WorkCover.
The appeals as to this aspect of the matter should, in my opinion, be dismissed.

Interest

Interest should be awarded on past pain and suffering at 4%.[7] If allowance is made for the lump sum payment by WorkCover on 30 May 1990, that approximately halves the award of past pain and suffering of $40,000. Given that the award for pain and suffering relates to a period of time, it is normal either to halve the interest rate or halve the period.
[7] See Wheeler v Page (1982) 31 SASR 1.
It is impossible to attempt any precise calculation. In all the circumstances, in my opinion, there should be a lump sum award for interest on the award for past pain and suffering of $4,000, which, insofar as any supporting calculation is necessary, could be justified on the basis of 4% on $20,000 over five years.
The award for past economic loss bears interest at commercial rates. Again, allowance should be made for amounts paid to Dawes, even if they have been paid by a third party.[8] Here I think it proper to allow a lump sum based on a calculation of 10% over five years on an amount of $120,000. On that footing, the lump sum award should be $60,000.
[8] See Batchelor v Burke (1981) 148 CLR 448.
I do not deal with the criticisms advanced of the trial judge’s treatment of interest. In view of my suggested restructuring of the award, it is better simply to indicate what interest should be awarded on the basis of the revised assessment.

Questions of Costs

Appeals have been brought against various cost orders made by the learned trial judge. Arguments were put before this Court as to the propriety of those orders.

Necessarily, the trial judge’s orders for costs were predicated upon the basis of the orders which he made disposing of the two actions which were before him.
For the reasons which I have given, I would make significant variations to the orders made by the learned trial judge. If a majority of the Court is in favour of the views which I have expressed as to the appropriate outcome of the appeals, rather than addressing the contentions put forward in the context of the orders made by the learned trial judge, as with the question of interest, it would be better to consider afresh the question of the costs of the proceedings before him and before this Court, within the framework of the orders disposing of the appeals, but bearing in mind the arguments as to costs advanced during the hearing of the appeals.
I would suggest that the reasons for judgment of the members of this Court be published sufficiently far ahead of the making of the orders disposing of the appeals for counsel to be heard further if they should wish to do so as to the questions of costs, both at first instance and appeal, at that stage.
Before dealing more specifically with the question of costs, I register my concern at the delay involved in bringing these proceedings to trial.
Dawes’ proceedings were not instituted until the very last day, having regard to the three year limitation period. They were issued on 15 March 1991 by a summons issued out of the Supreme Court.
Following the transfer of the proceedings to the District Court, the trial commenced in that court in 1 December 1997, some six years and eight months later, or nearly ten years after the accident had occurred.
Although there was a multiplicity of parties, the pleadings were not complex. The defences were what might be described as “pro forma”. The contribution proceedings were in conventional terms. There was no substantial quantity of documents to be made the subject of discovery.
When almost a decade goes by after an accident before matters come to trial, the courts and the system of justice is thrown into disrepute. Understandably, the public cannot understand why there should be such delays.
The delays in this case were inexcusable. Ordinarily, a plaintiff owes a duty to get on with proceedings. If he or she fails to do so, the failure may be taken into account in the award of interest.
It is sometimes said that this should not be so because the defendant has had the use of the money in the meantime. With respect to those who hold that view, that has not been the law since the High Court decided Batchelor v Burke.[9] The High Court held in that case that:
[9] (1981) 148 CLR 448 per Gibbs CJ at 455.
“Interest is awarded to compensate the plaintiff for the detriment he has suffered for being kept out of his money and not to punish the defendant for having been dilatory in settling the plaintiff’s claim.”
The High Court affirmed that expression of principle in MBP (SA) Pty Ltd v Gogic:[10]
[10] (1991) 98 ALR 193.
“The function of an award of interest is to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period. ....”[11]
[11] See the joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 196.
Those statements of principle were applied by the Full Court of this Court in Osborne v Kelly and Anor[12] where it was held that, given that interest is awarded to compensate plaintiffs for being kept out of their money, it follows that if the plaintiff is kept out of his or her money by the plaintiff’s own default, interest should not be allowed for that period. The only reason that the plaintiff’s default in Osborne v Kelly and Anor did not have that consequence was that the plaintiff was unable to conduct his own affairs due to the accident injuries.
[12] (1993) 61 SASR 308.
Applying those principles in this case, if the delay in prosecuting the action was due to Dawes, and ordinarily a plaintiff is to be held accountable for a failure to get on with proceedings, interest should not be allowed for the period of the delay.
It does not appear that the point was taken in this case. It was not raised by counsel on the appeal. In those circumstances, I do not pursue the matter further, except to indicate that, in my view, the courts should now take a more active role with respect to failures to prosecute actions promptly. In particular, courts should, of their own initiative, raise the question of delay where it has been, as was the case here, inexcusable and, where appropriate, reduce the amount of interest to be awarded. Furthermore, in my opinion, the stage has been reached at which the courts should more actively consider the making of orders for costs against solicitors who have been shown to have been dilatory in the prosecution of proceedings.
Unassisted by further argument from counsel, I would be inclined to order as to costs at both stage of the proceedings as follows.

A.Costs of the proceedings at first instance.
(i) Costs recoverable by Dawes

If the judgment in the District Court is varied to reflect what I suggest should have been the outcome, Dawes recovers against FHD, Stapledon McMichael and the Stock Exchange and fails against Cox Constructions.
There is no reason why a Bullock order should not be made, as in my opinion, he was justified in suing Cox Constructions.
There should be an order in favour of Dawes against FHD, Stapledon McMichael and the Stock Exchange for Dawes costs of action, to be taxed. Cox Constructions should have an order for its costs of action to be taxed as against Dawes, but Dawes should be entitled to recover his liability for costs to Cox Constructions against the other three defendants.
I would not think it necessary to make separate costs orders on the various contribution proceedings, and I would make no order as to the costs of those proceedings.
There is no reason why the incidence of costs as between the defendants should not be borne on the same percentages as I would apportion liability.
(ii)... Costs in the WorkCover Action
I must say that my first impression was that there seemed to be no reason why WorkCover needed to institute proceedings, or at least to be present at the trial, in view of the fact that it had a first charge on any damages payable by any of the defendants sued by Dawes to the extent of “compensation paid or payable”.[13]
[13] See s54(7)(e) of the Workers Rehabilitation and Compensation Act 1986.
Mr White QC, who appeared for WorkCover on the hearing of the appeal, when that aspect of the matter was raised with him, responded by submitting that WorkCover has its own cause of action that it was entitled to assert and maintain against the defendants other than FHD. Furthermore, WorkCover was not to know that Dawes would pursue his claim to the end. As Mr White QC put it during the course of argument:
“Mr Dawes was free at any time to compromise his claim or to abandon it or to discontinue it on such terms as to him seemed to be appropriate. WorkCover was not to know whether that would happen, it was entitled to come to court and maintain its own causes of action and set about proving its own entitlement.”
There is the added reason in this case that WorkCover had to come to court to establish its right to an extension of time to institute the proceedings, although, of course, if it had simply relied on its charge, that would not have been subject to any limitation of time.
There is a further interest which WorkCover had in the course of the proceedings, in that it was important for it to establish that some person other than FHD was liable to Dawes.
In all the circumstances, I think it was justified in instituting the proceedings and taking an active part in the trial.
Having done so, I think that costs should have followed the event, in the sense that WorkCover should now, having regard to the terms upon which I would vary the judgment pronounced in the District Court, be entitled to an order for its costs against the Stock Exchange and Stapledon McMichael, they being the two defendants against whom WorkCover should succeed in its action.
Furthermore, I see no reason, given the considerations which prompt me to recognise an entitlement on the part of Dawes to a Bullock order, why there should not also be a Bullock order in favour of WorkCover with respect to the costs which it ought to be ordered to pay to Cox Constructions, as against whom, on the revised judgment which I suggest should be entered, it will fail.
There is a further factor to be considered to do with WorkCover’s costs. WorkCover’s entitlement to recover extends to both the amount of compensation “paid” and the amount of compensation “payable” under the Act. [See s54(7)(d).] One reason for this is that the obligation of WorkCover to maintain payments of compensation to Dawes is unaffected by any recovery which Dawes might make against third parties, such as in this case Stapledon McMichael and the Stock Exchange.
By letter dated 28 November 1997, WorkCover gave notice to the solicitors for Cox Constructions that it had paid compensation to that date amounting to some $95,633.57, and that it estimated its potential liability in respect of future payments at $160,000, a total of $255,633.57.
Mr White QC contended that there was no dispute as to the quantification of that amount, and indeed, there does not seem to have been any issue raised at the trial concerning its accuracy. However, in the judgment which he pronounced in favour of WorkCover, the learned trial judge simply expressed its entitlement in these terms:
“The court orders:
1...... ........
2.That the plaintiff is entitled to recover, pursuant to Section 54(5) and (7) of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) from the first defendant by way of a first charge on the damages payable by the first defendant to Stephen John Davies Dawes the plaintiff in action no. 1195 of 1994 in this Honourable Court, the compensation paid or payable by the plaintiff pursuant to the Act to the said Stephen John Davies Dawes.”
His Honour did not quantify the “compensation paid or payable” referred to in the formal order.
If it is to be quantified at $255,633.57, this is in excess of a formal Rules of Court offer filed by WorkCover pursuant to R 41.01 of the District Court Rules on 7 November 1997, in which WorkCover gave notice to all of the defendants which it had sued that it would accept in satisfaction of its claim $202,037.67 plus its costs of action.
The offer was not accepted, with the result that under DCR R 41.04, the defendants against whom WorkCover effects a recovery are liable to pay the whole of WorkCover’s costs of action to be taxed as between solicitor and client.
In the circumstances, there would appear to be no reason why that consequence should not be visited upon Stapledon McMichael and the Stock Exchange, although I think that their counsel should be given be given an opportunity to comment on the figure of $255,633.57 if they wish to do so.

B.Costs of the appeals

If an order is made along the lines which I suggest, Cox Constructions will have been successful and should recover its costs of and incidental to its appeals, to be taxed.
Dawes and WorkCover should have their costs of the appeals respectively brought by them against the Stock Exchange and Stapledon McMichael.
I would hear counsel as to whether there should be a Bullock order as to the costs of the appeals in both instances.

Conclusions

If the variations are made as to the assessment of damages and interest as suggested by me, the quantum of Dawes’ claim, including interest, would be assessed as follows:

PAST

FUTURE

Pain and suffering

   40,000

          50,000

         Interest on pain and suffering

          4,000

         Economic loss

179,410

          350,000

         Interest on past economic loss

          60,000

         Special damages

          19,128

         Future medical expenses

          10,000

         Gratuitous services

__________

          5,000

  TOTAL

$302,538

415,000

   302,538

$717,538

=======

There is a complication with respect to Dawes’ entitlement to judgment against FHD. Section 54(1)(b) of the Workers Rehabilitation and Compensation Act 1986, as it stood at the relevant time, provided that no liability attached to an employer arising from the employment except either a liability under the Act or “ liability at common law for non-economic loss or solatium”.
Applied to this action, that subsection has the result that Dawes’ recovery against FHD is subject to a ceiling of the total of the amounts for pain and suffering, together with interest, namely, $94,000.
In view of that ceiling, it seems to me appropriate that the judgment in Dawes’ action as against the other two defendants against whom I consider he should succeed, namely, the Stock Exchange and Stapledon McMichael, should be subject to contribution as between those two parties in the ratio of the contributions which would apply to them in the event that liability was shared between all three defendants.
That means that if Dawes’ judgment was to be met as to $94,000 by FHD, the balance of his judgment should be apportioned as between Stapledon McMichael and the Stock Exchange on a two-thirds and one-third basis respectively, with the usual order as to contribution between them accordingly.
This means then that while the total amount of the judgment against Stapledon McMichael and the Stock Exchange should be $848.128, their entitlement to contribution from FHD would likewise be limited to $94,000, with rights between themselves for any balance of the judgment to be apportioned on a two-thirds and one-third basis.
I would dismiss Dawes’ action against Cox Constructions.
In WorkCover’s action, I would give judgment for WorkCover against the Stock Exchange and Stapledon McMichael for $255,633.57, to operate as a charge against the moneys payable to Dawes by those parties in Dawes’ own proceedings.
I would dismiss WorkCover’s action against Cox Constructions.
The above is subject to counsel confirming that there is no dispute as to the amount of $255,633.57.
As to costs, I would make the orders which I have foreshadowed in my reasons, but I would give to counsel a further opportunity to be heard as to the amount and the incidence of any costs orders in the light of the judgment as re-constructed in accordance with my reasons.
I would also hear counsel as to the costs of the appeals and whether, on the appeals, a Bullock order in similar terms to that which I would make with respect to the trial costs, should be made.

MULLIGHAN J. I agree with the conclusions reached by Perry J and with the orders which he proposes for substantially the reasons which he has given.
No issue was raised on appeal or before the learned trial Judge as to whether there should be any reduction in interest on the award of damages in favour of Mr Dawes and the allowance for interest should be as proposed by Perry J. It appears that there was delay in bringing the action to trial but no information was placed before us as to the reason for that delay or as to who is responsible. Therefore, I am unable to join in the conclusion that the delay is inexcusable.
As no issue about delay has been raised, this is not, in my view, an occasion for a pronouncement by the Full Court as to what should be the response of the Court to delay in this context. It is usually better to consider such a matter in an established factual context and after hearing argument.

PAST	FUTURE
Pain and suffering	40,000	50,000
Interest on pain and suffering	15,000
Economic loss	120,000	350,000
Interest on past economic loss	26,000
Special damages	19,128
Future medical expenses	10,000
Gratuitous services	__________	5,000
TOTAL	$220,128 =======	$415,000 =======
TOTAL	$635,128 =======

[1999] SASC 229

17 June 1999