De Bever v M B Marlow Engineering Pty Ltd

[2014] VCC 1373

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
GENERAL DIVISION

Case No. CI-12-00366

ADRIAN DE BEVER	Plaintiff
v
M B MARLOW ENGINEERING PTY LTD	First Defendant
and
MACKIE PTY LIMITED	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 13, 14, 18, 19, 20, 21, 22, 25, 26 and 27 November 2013,        3 and 4 December 2013
DATE OF JUDGMENT:	29 August 2014
CASE MAY BE CITED AS:	De Bever v M B Marlow Engineering Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 1373

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Plaintiff employed by sub-contractor engaged by principal contractor – plaintiff descending ladder and stepped onto windowsill which collapsed – liability of employer – liability of principal contractor – extent and content of any duty owed by occupier to employee of sub-contractor

Legislation Cited:     Occupational Health and Safety Act 2004; Occupational Health and Safety Regulations 2007; Wrongs Act 1958 (Vic); Accident Compensation Act 1985

Cases Cited:De Bever v M B Marlow Engineering Pty Ltd & Anor (Ruling No 3) [2013] VCC 1925; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349; Brown v Owners Corporation SP021532U & Anor (Ruling No 1) [2013] VSC 126; McLean v Tedman (1984) 155 CLR 306; Wyong Shire Council v Shirt (1980) 146 CLR 40; Boehm v Strongback Pty Ltd [2011] VSC 463; Central Goldfields Shire v Haley & Ors (2009) 24 VR 378; Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412; Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549; Leighton Contractors Pty Ltd v Fox & Ors; Calliden Insurance Ltd v Fox & Ors (2009) 240 CLR 1; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; Surfcoast Shire Council v Webb & Anor; Webb v Norquay Nominees Pty Ltd & Anor [2003] VSCA 162; Sijuk v Ilvarity Pty Ltd, trading as Craftsman Homes [2010] NSWCA 354; Victorian WorkCover Authority v Centro Property Management (Vic) Pty Ltd [2013] VSC 587; Fox v Wood (1981) 148 CLR 438; Papadopoulos v MC Labour Hire Services Pty Ltd & Anor (No 4) (2009) 24 VR 665.

Judgment:                 Judgment for the plaintiff.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A N Murdoch SC with Ms A L Wood	Shine Lawyers
For the First Defendant	Mr P D Elliott QC with Mr M K Clarke	Wisewould Mahoney
For the Second Defendant	Ms N Tsikaris (later with Mr W R Middleton SC)	Wotton Kearney

HIS HONOUR:

1       Adrian De Bever, who I shall refer to as “the plaintiff”, sues M B Marlow Engineering Pty Ltd, which I shall refer to as “the first defendant”, and Mackie Pty Ltd, which I shall refer to as “the second defendant”, for damages in relation to injuries suffered by him on 12 March 2008 when he stood on a windowsill which collapsed, causing him to fall into the void below and suffer injury and, in particular, a neck injury.

2       The place where the fall occurred is situated at 94 Market Street, South Melbourne, and consisted of a two-storey existing building which was once an office complex and later, a community centre.  The Bethany Church operated from the building for a while and decided to completely renovate the building into a new church facility.

3       The second defendant was engaged to perform the building work which, according to Cameron Stuart, the site manager employed by the second defendant, involved completely gutting the building, with just the exterior and some interior walls standing.  The building work involved installing new metal framework, a new roof and new interior floors.  (See generally exhibit 16 – the statement of Cameron Stuart dated 29 April 2008).

4       The second defendant contracted with the first defendant to undertake various steel fabrication works at the premises.

5       I refer to exhibit 13, which are the documents constituting the contract between the second defendant and the first defendant.  Such documents consist of:

§  a Letter of Intent from the second defendant dated 17 August 2007;

§  Invitation for Tender signed by what is referred to as the “subcontractor” – that is, the first defendant;

§  Instrument of Agreement for Project No C1049 signed by representatives of both defendants dated 21 August 2007; and

§  a letter of confirmation from the second defendant to the first defendant dated 6 September 2007, confirming that the second defendant has entered into a “subcontract” with the first defendant.

6       This proceeding commenced as a jury, but on 28 November 2013, I discharged the jury without verdict for reasons set out in a Ruling made on 6 December 2013.[1]

[1]See De Bever v M B Marlow Engineering Pty Ltd & Anor (Ruling No 3) [2013] VCC 1925

The pleadings

7       By way of a Second Further Amended Statement of Claim filed, by leave, on 8 November 2011, the plaintiff alleges:

·        That as at 12 March 2008, he was employed by the first defendant as a boilermaker, performing work at premises situated at 94 Market Street, South Melbourne (“the premises”).

·        That as at 12 March 2008, the second defendant was the occupier of the premises and was responsible for the care, control and management of construction/building work being carried out at the premises.

·        That as at 12 March 2008, the second defendant owed the plaintiff a “common-law duty of care to take such care as in all the circumstances was reasonable to see that the plaintiff, whilst at the premises, was not injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises”.

·        Furthermore, as at 12 March 2008, the first defendant and/or the second defendant owed the plaintiff “a duty to take reasonable care to ensure it was safe for him to work at the premises”.

·        On or about 12 March 2008, the plaintiff “stood on a windowsill at the premises which collapsed (‘the windowsill’), causing him to fall into the void below it and suffer injury”.  It is alleged that the windowsill:

“… was on the first floor of the premises and was approximately 40 centimetres wide and 40 centimetres high from the ground of the first floor and formed a box like ledge along the window.  The void was clear to the ground floor of the premises.”

At the time of the accident, the plaintiff was coming down a ladder and carrying a welder with cables attached to it which had become tangled on the ladder and around his legs.

· The ladder used by the plaintiff was subject to a “fall hazard” within the meaning of Division 2 of Part 3.3 of the Occupational Health and Safety Regulations 2007, in that he was working at a height of more than 2 metres.

·        The first defendant owed the plaintiff statutory duties:

–      to identify the tasks required of the plaintiff which involved a fall hazard (Regulation 3.3.3); and

–      to control the risk of the plaintiff falling by the means set out in Regulation 3.3.4.

·        The first defendant breached the statutory duties, in that it failed to identify the tasks required of the plaintiff which involved a fall hazard and to control the risk of the plaintiff falling by the means set out in Regulation 3.3.4.  In particular, the first defendant failed to control the risk of a fall, so far as was reasonably practicable, by ensuring that the task undertaken by the plaintiff was undertaken on a solid construction or a passive fall prevention device in the form of a mobile scaffold or scissor lift. 

The injury suffered by the plaintiff was caused by such breach of statutory duties.

·        Further, the “injuries, loss and damage” suffered by the plaintiff were caused by the negligence of the first defendant, its servants or agents.  The particulars of negligence alleged are:

(a)     failing to inspect the premises to ascertain it was safe for the plaintiff to work there;

(b)     failing to take reasonable steps to ensure it was safe for the plaintiff to work on the premises;

(c)     causing and/or permitting the welder to have loose cables;

(d)     failing to bunch and/or bind the cables on the welder together;

(e)     failing to instruct and/or advise the plaintiff not to stand on the windowsill;

(f)     failing to instruct the plaintiff in how to carry out his work at the premises;

(g)     failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the Regulations made thereunder and, in particular, Regulations 3.3.3 and 3.3.4;

(h)     failing to carry out a risk assessment or job safety analysis of the task which the plaintiff was undertaking at the time of the accident;

(i)     failing to carry out a risk assessment of that part of the premises in which the plaintiff was working at the time of the accident;

(j)     having in place an unsafe system of work whereby the plaintiff was required or permitted to descend a ladder while carrying a welder and cables and welding equipment in circumstances where it was foreseeable that the plaintiff could become entangled in such cables and be required to stand on an unsupported and unsafe windowsill;

(k)     having a system of work which required or allowed the plaintiff to stand on an unsupported and unsafe windowsill where no or no adequate inspection of the premises had been undertaken to determine the safety of the windowsill;

(l)     failing to have a system of work in place where a mobile scaffolding platform or scissor lift was used instead of a ladder, so that the risk of the plaintiff standing on an unsupported and unsafe windowsill was avoided;

(m)    failing by a system of inspection of the premises to detect the unsupported and unsafe nature of the windowsill;

(n)     failing to detect that the windowsill had been exposed to the elements as to render it unsafe, or more unsafe, to stand on;

(o)     failing to appreciate that if the windowsill had been exposed to the elements, as was the fact, it was likely to be an unsafe condition and any access to it should be prevented;

(p)     failing to make any enquiry of the second defendant as to the safety of the windowsill or as to whether any inspection or investigation in relation to same had been carried out prior to requiring the plaintiff to work in this proximity;

(q)     failing to make any or any adequate enquiry of the second defendant as to the safety of that part of the premises in which the plaintiff was working at the time of the accident or as to whether any inspection or investigation had been made of same;

(r)     allowing the plaintiff to work adjacent to a void which was concealed from the plaintiff by a windowsill which was therefore effectively unprotected;

(s)     failing to comply with the requirements of its risk assessment and work method statement in respect of attaching support and horizontal framing to the effect that the operator (the plaintiff) was to stay inside the cage of a scissor lift. 

·        Further, it is alleged that the “injury, loss and damage” was caused by the negligence of the second defendant, its servants or agents.  The particulars of negligence alleged are:

(a)   causing and/or permitting the windowsill to be inadequately secured;

(b)   failing to ensure the windowsill had a sufficiently strong frame;

(c)   failing to prevent access to the windowsill;

(d)   failing to have the windowsill cordoned off;

(e)   failing to have warning signs situated at or about the windowsill;

(f)    failing to instruct and/or advise the plaintiff not to stand on the windowsill;

(g)   causing and/or permitting the windowsill to be exposed to weathering;

(h)   causing and/or permitting the windowsill to be exposed to weathering for too long a period of time;

(i)    causing and/or permitting the welder to have loose cables;

(j)     failing to bunch and/or bind the cables on the welder together;

(k)   failing to inspect the premises to ascertain if it was safe for the plaintiff to work there;

(l)     failing to take reasonable steps to ensure it was safe for the plaintiff to work at the premises;

(m)     failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the Regulations made thereunder, and in particular, Regulations 3.3.3 and 3.3.4;

(n)   the plaintiff refers to and repeats Particulars (i), (m), (n), (o) and (r) subjoined to paragraph 11;

(o)   allowing the windowsill to be exposed to the elements in circumstances where such exposure was likely to lead to the windowsill becoming unsafe or more unsafe, such that any acts to it should have been prevented;

(p)   allowing the first defendant to have in place at the premises an unsafe system of work which required the plaintiff to descend a ladder while carrying a welder and cables of welding equipment in circumstances where it was foreseeable that the plaintiff could become entangled in such cables and be required to stand on an unsupported and unsafe windowsill;

(q)   failing to require the first defendant to have a system of work in place where a mobile scaffolding platform or scissor lift was used instead of a ladder, so that risk of the plaintiff standing on an unsupported and unsafe windowsill was avoided;

(r)    permitting a concealed trap in the form of an unsupported and unsafe windowsill to be in existence at the premises where such was detectable by inspection or investigation;

(s)   failing to inform the first defendant and the plaintiff that it had not undertaken any or any adequate inspection or investigation of that part of the premises in which the plaintiff was working at the time of the accident;

(t)    failing to erect a barrier around the windowsill prior to the accident of a type it erected after the accident;

(u)   failing to ensure that the first defendant complied with the requirements of the risk assessment and work method statement in respect of attaching support and horizontal framing to the effect that the operator (the plaintiff) was to stay inside the cage of a scissor lift.

8       By its Defence, the first defendant admits that the plaintiff was employed as a boilermaker on or around 12 March 2008 and was working on that date for the first defendant at the premises.  The first defendant, although admitting it owed a duty not to expose the plaintiff to a foreseeable risk of injury, denies negligence and any breach of statutory duty.  Further, the first defendant relies ultimately on the following particulars of contributory negligence:

(i)    failing to exercise his commonsense and experience;

(ii)   standing on a windowsill which the plaintiff knew or ought to have known was unsafe;

(iii)   standing on a windowsill which the plaintiff knew or ought to have known was not strong enough to take his weight;

(iv)   …

(v)   …

(vi)   …

(vii)     carrying the welding power unit over his shoulder whilst performing the welding work on the ladder;

(viii)   carrying the welding power unit over his shoulder whilst performing the welding work on the ladder when not required to do so;

(ix)   failing to leave the welding power unit on the floor whilst performing the welding work on the ladder;

(x)   ascending and descending the ladder whilst carrying the welding power unit over his shoulder;

(xi)   failing to ensure that the welding cables did not become entangled with the ladder or himself when performing the welding work and/or descending the ladder;

(xii)     failing to secure the welding cables in such a way to prevent them becoming entangled.

9       The first defendant initially pleaded further particulars of contributory negligence but after argument, such particulars were limited to what I have recorded.

10      By its Defence, the second defendant admits that the plaintiff was working at the premises on 12 March 2008 but denies it breached any statutory duty said to be owed to the plaintiff, and further, denies that it was negligent.  The second defendant also alleges contributory negligence against the plaintiff with similar particulars as those pleaded by the first defendant.

11      There are also contribution proceedings between the defendants.

Evidence of the Plaintiff

12      The plaintiff gave evidence that he is a sixty-three-year-old[2] now single man with three adult children from earlier marriages.  He completed Year 9 at secondary school, after which he commenced a boilermaker apprenticeship, which he completed in 1972 at the age of twenty-one.  He is naturally right handed.

[2]Born May 1951

13 The plaintiff tendered his employment history,[3] and also gave evidence about various jobs that he has performed over the years. Although he has worked as a boilermaker/welder for various periods over the years, he has also been employed as a barman, performing caring work, operating a milk bar and take-away business in Clunes[4] for approximately seven or eight years, and also running a hardware store in that area.  He also has been self-employed, performing building renovations, including carports and pergolas.

[3]See exhibit 1

[4]Near Ballarat

14      When working at Freighter Industries, he suffered a “minor” neck injury, which he recovered from “very quickly” and had no ongoing problems in his neck.  It was after this injury that he commenced to operate the mixed business in Clunes.

15      When working for Reads Waste, which was involved in asbestos removal, he was assaulted, which caused him a “slight neck injury”, the physical consequences of which affected him for “a matter of weeks” with no lasting effect.  However, such assault did have a psychological effect, causing him to increase his alcohol intake, which remained problematical until 2011, when he ceased drinking alcohol.  After the assault, he was off work for a period of time and then commenced work as a carer with Paraquad, where he remained for about a year, after which he was unemployed for approximately eighteen months or two years, before commencing work with A Bending as a boilermaker, manufacturing very light steel gates and hospital beds.  He remained with that organisation for about twelve months, after which he commenced work with Bullseye Microtunnelling as a sub-contractor/ boilermaker, and remained with that organisation for approximately one year.  In or about 2007, that work ceased as a result of Bullseye Microtunnelling going “broke”.

16      At the time of giving evidence, the plaintiff was living in a residential caravan park in Beaconsfield and had been there for about twelve months.

17      In or about October of November 2007, the plaintiff commenced to perform work for the first defendant as a “sub-contract boilermaker”.  Such work involved an “average week” in the vicinity of 38 hours, but sometimes “45 hours with overtime”.

18      The plaintiff obtained such employment by responding to an advertisement in the newspaper, and, once engaged, he mostly dealt with Mr Matthew Marlow, the manager and a director of the first defendant.

19      His work involved building and fabricating steel trusses, beams and columns to be used in factories, offices, schools and churches for various customers of the first defendant.

20      When he commenced such work, most of it was performed in a factory at Carrum Downs but on various occasions, he was sent to various worksites where the first defendant had already fabricated some steel and he was required to make some repairs to the work already done.

21      In mid November 2007, he was sent to the premises where he was required to undergo an “induction” which involved explaining safety procedures.  The induction was undertaken by Mr Cameron Stuart, the site manager employed by the second defendant at the premises.  Such site induction was completed on 13 November 2007 and the plaintiff acknowledged, on that day, that he understood the site safety induction form.[5]

[5]See exhibit 3, consisting of the site induction contractor employee details dated 13 November 2007

22      The plaintiff describes the premises as consisting of a ground floor and a first floor.  In particular, when he attended the site on 13 November 2007, it was clear to him that work had started on that site “well prior to me being on the site”.[6]  He described that there was no roof on the premises at that time, although he was unable to say when the roof was removed.  The first floor of the premises was a “mess”.

[6]Transcript (“T”) 138, L29

23      After his induction in November 2007, the plaintiff returned to the premises on “four, five, six occasions” performing welding of purlins and cleats in various places.  He described a purlin as light fabricated pressed steel which sits on top of steel beams and houses the roofing iron.  The steel beams, which are much heavier than the purlins, are attached to heavy steel columns.  The plaintiff described a “cleat” as a piece of steel which is welded to the top of a beam to enable you to bolt purlins, which in turn enables you again to hold the roof.  The steel work on this floor was fabricated by the first defendant in its workshop.

24      In 2008, the plaintiff asserts that he was “asked” to become an employee (rather than a contractor) of the first defendant and an agreement was signed on 22 February 2008, being a contract of employment between him and the first defendant.[7]

[7]See exhibit 4

25      Pursuant to that contract, the plaintiff was to be paid at a rate of $29 per hour, together with superannuation at 9 per cent of gross earnings.  The plaintiff tendered payslips for the weeks ending 12 March 2008 and 19 March 2008.[8]  For each week, the plaintiff grossed $1,102.00, made up of 38 normal hours, together with a travel allowance.

[8]See exhibit 5

26      During the early part of 2008, the plaintiff was working at the workshop, together with working on a site at a chicken farm, which involved strengthening that building with columns of beams for supporting exterior walls and roofing. 

27      On Wednesday, 12 March 2008, the plaintiff commenced work at the premises at about 7.00am.  Prior to that day (although not immediately before), he had attended the premises, bolting various beams in place, and had commenced to put purlins on the beams.  The crane which was on site had lifted the beams into place and a scissor lift based on the ground floor was used to assist in the bolting of the beams. 

28      On 12 March 2008, the plaintiff was welding cleats on beams on the first floor to enable purlins to be attached to them.  In order to undertake such work, the plaintiff described that he needed a 240-volt power portable welder, and on being shown exhibit 6, the plaintiff identified that as a typical mobile arc welder.[9]  The plaintiff also identified exhibit 7 to be the handset of the welder in which you placed the “electrode”, which was described as the “long stick”.[10]  The orange lead of the handset connects to the arc welder.  The black strap attached to the welder enables you to carry it on a job and the black lead attached to the welder has to be attached to a power source or another long lead.  The plaintiff also described that there is another cable that came out of the arc welder – described as an “earth lead” – which had to be clamped onto “the piece of steel you are about to weld to create a circuit to enable you to weld”.  The plaintiff described such lead as an orange lead with a spring-loaded clamp attached to the end of it to allow it to be attached to the steel.  The plaintiff also described that he had a welding shield which is placed on the top of your head and pulled down to enable you to weld and avoid any eye injury, together with leather gloves to prevent you getting burnt when welding.  The plaintiff also referred to having a “chipping hammer” to chip off excessive weld.  The beam on which he was welding cleats was approximately “2 metres” above floor level, and the plaintiff accessed the area where he was welding by the use of a ladder which belonged to the first defendant.

[9]See exhibit 6

[10]See exhibit 7

29      In particular, the following evidence was given:

Q:“Why did you use a ladder to do that job?‑‑-

A:Well, it was suggested to me by Matthew to – to do – use a ladder.  Also the fact that there was nothing else on site that was appropriate to enable me to – to get up that high.

Q:What was the state of the roof at that time that you were doing this work?‑‑-

A:There was no – there was no roof.

Q:Before this day had you done such welding tasks in the course of your engagement with Marlow?‑‑-

A:Yes.

Q:Had you done it with any other employer over the years?‑‑-

A:Yes.

Q:When you were with Marlow had you previous – how had you previously got to the necessary height in order to carry out the welding task?‑‑-

A:We generally had what they call scissor lifts or portable scaffolding.”[11]

[11]T147, L29 – T148, L10

30      The plaintiff was referred to Photograph 7 of exhibit 2,[12] which he described as a photograph of the north wall of the second floor of the premises.  The plaintiff marked such photograph, indicating a “purlin”, a “cable box”, a “tie beam”, a “raker” and a “prop”.

[12]At the request of Senior Counsel for the plaintiff, Senior Counsel for the first defendant ascertained and confirmed that the photographs contained in exhibit 2 were taken at the premises on 29 April 2008.

31      The plaintiff described placing the extension ladder against a beam which he believed was probably the beam that he marked on the photograph.  After placing the extension ladder in that position, he gave evidence as follows:

Q:Just explain to the jury, having placed your extension ladder up against that beam, what was the next thing that you did?‑‑-

A:I picked up the welder off the ground, I threw it – threw it over – the strap over my shoulder.

Q:Which shoulder?‑‑-

A:Left shoulder.  And obviously the welding shield.  I put three or four electrodes in my overalls to enable me to weld.  A cleat in the back pocket and I had gloves on and with a chipping hammer and I went up the stair – the ladder.

Q:How many hands were you able to use on the ladder as you went up?‑‑-

A:It was only the right hand I was able to because my left hand was holding the welder and the leads and chipping hammer.

Q:You have told us you have engaged in that approach previously.  Is that so?‑‑-

A:Yes.

Q:Were there alternatives to that approach as far as you were concerned?‑‑-

A:Yeah, there were – would have been alternatives if the alternatives were available.

Q:You have mentioned a scissor lift.  Was there any possibility of using a scissor lift in these circumstances?‑‑-

A:A scissor lift could have been used, however it would [have] taken too – too much time and that’s what Matthew Marlow was concerned about, the time factor.

Q:Was there any other possibility?‑‑-

A:Yes.  Other possibilities would have been scaffolding.  A mobile scaffold.  They’re aluminium.  You can rent them, hire them in various different sizes.  You assemble them yourself to whatever width and height you require.  The beauty about that thing is the fact that it’s mobile and you can place it basically anywhere.

Q:Was there any reason one could not have been used in this situation?‑‑-

A:One could have been used there.

Q:Was there any discussion involving you concerning the use of any such mobile scaffold ‑ ‑ ‑?‑‑-

A:No there was none.”[13]

[13]T151, T30 – T153, L1

32      The plaintiff then gave the following evidence:

Q:So you were coming down the ladder, what happened then?‑‑-

A:As much as I tried to prevent the leads tangling, they got caught on one of the rungs of the ladder, which in turn caused them to tangle around my feet.

Q:How far down the ladder had you descended when that happened?‑‑-

A:Approximately a metre, a metre point - yeah, 1.5.

Q:What did you do then?‑‑-

A:I noticed the windowsill, I was somewhere in the vicinity of two - 20 rather, 20 to 30 centimetres above the windowsill, so instead of me falling off the ladder, I - I just thought it'd be better for me to put my feet on the windowsill and untangle myself and get the leads off the rung.

Q:So what happened?‑‑-

A:Once I did that, I placed my left foot - sorry, my right foot on the windowsill, followed by my left foot but before my left foot could get to the sill that's when I fell through.

Q:When you say you ‘Fell through’, what happened?‑‑-

A:Well the sill gave way.

Q:What happened to you?‑‑-

A:Well as a result of the weight of the welder and weight - and the weight of myself, the quickness of it, the shock of it, just a sudden drop and my legs kind of buckled from underneath me because of the sudden drop and then stopping suddenly.

Q:So what if anything, broke your fall?‑‑-

A:I placed my right hand on the what I thought was the windowsill and slid and my right elbow hit the corner of what was the windowsill I thought.”[14]

[14]T157, L17 – T158, L13

33      The plaintiff was referred to Photograph 1 in exhibit 2 and he identified that as showing the hole created in the windowsill where he fell.  The plaintiff also confirmed that the webbing depicted in several of the photographs of exhibit 2 was not there at the time of his fall and he did not know precisely when the webbing was placed in that position.

34      The plaintiff was also again referred to Photograph 3 of exhibit 2 and in particular, to what was referred to as some “objects” at a “diagonal to the windows from floor to somewhere above ceiling level” and questioned whether he knew what they were and whether they were there at the time of his fall, to which the plaintiff responded he had absolutely no idea what they were and they were not present at the time of his fall.

35      The plaintiff was also taken to Photograph 5 of exhibit 2, which depicts the hole caused by his fall and gave evidence that the depth of the hole was approximately 40 centimetres.

36      At the time of his fall, another person named Minh, also employed by the first defendant, was in the vicinity, and immediately after the fall, asked the plaintiff whether he was okay, but, according to the plaintiff, added:

“I didn’t see anything.  I don’t know anything because I don’t want to lose my job.”[15]

[15]T166, L25-26

37      Immediately after the fall, the plaintiff described feeling “a little shook up” and his right elbow was throbbing and he felt a slight “strain” in the shoulder and neck region.  At that time, it was almost “smoko” and he went down to the ground floor and approached Matthew Marlow and informed him that the windowsills were not solid and that he had “found out that they were hollow”.  The plaintiff gave evidence that Matthew Marlow was in the process of bolting a couple of beams together and the plaintiff could “sense” that he was not really paying attention, because he was concentrating on what he was doing.

38      After that, the plaintiff went up to the smoko room and spoke to the site manager, Mr Cameron Stuart, of being aware of the windowsills and also mentioned about his right elbow and neck.  The plaintiff took Cameron Stuart to the first floor and showed him where he had fallen.  According to the plaintiff, Stuart informed him that he would highlight that there was a problem in that area.

39      The plaintiff completed work that day but that evening, he experienced a tingling sensation in his thumb, forefinger, middle finger and down his right arm, with some discomfort in the right elbow.

40      He worked on the Thursday and Friday and at the end of work on Friday, he returned to his cabin in Carrum Downs, where he had been living.  Late that afternoon, he received a telephone call from Matthew Marlow, who enquired whether he could come and see him, and the plaintiff assumed he was coming over to enquire about how his neck and arm was.  Later that afternoon, Matthew Marlow, his wife and their daughter came to the cabin and the plaintiff was informed that:

“… they weren’t happy with my services and to put it in plain facts, sacked me.”[16]

[16]T170, L25-26

41      There was no discussion between the plaintiff and the Marlows about what had happened on Wednesday, 12 March 2008 and, according to the plaintiff, no reason was given about their unhappiness with his services.

42      At the time of being “sacked”, the plaintiff had arranged to attend his general practitioner, Dr Peter Williams, in Cranbourne, but the first available appointment was Saturday morning at the Duff Street Medical Clinic.  When seen by Dr Williams on the Saturday morning, the plaintiff felt “fairly uncomfortable” in the area from his right elbow to his fingers, and a throbbing effect in his neck.

43      Dr Williams diagnosed painkillers and arranged nerve conduction studies and later referred him to a surgeon, Mr Nigel Broughton, who he saw about four weeks after the occurrence of the injury.

44      He was also prescribed physiotherapy, which did not help at all.

45      Some four or five months after the accident, the plaintiff was referred by Dr Williams to the neurosurgeon, Mr Craig Timms.  Prior to seeing Mr Timms, he had also been referred to a Dr Kempster and also underwent an MRI scan of the neck.

46      Mr Timms initially proposed surgery, to which the plaintiff was very apprehensive.  He described feeling “quite depressed” as he has always been a man who wanted to work and now he was frustrated that he could not work.  In particular, his drinking increased to the point where he was drinking “quite heavily”.

47      The plaintiff ultimately underwent surgery by Mr Timms in April 2009, which required four to five days in hospital and resulted in a surgical scar on the right-hand side of his neck.  The plaintiff described that after the surgery, his symptoms caused more restrictions and he again saw Mr Timms, who suggested that he undergo surgery to his right elbow, which was ultimately undertaken in August 2009.  The plaintiff does not consider that that surgery improved any of his symptoms.

48      The plaintiff came under the Commonwealth Rehabilitation Service, which required him to see people at that service on a weekly basis at the Narre Warren office.

49      The plaintiff obtained a job in December 2009 with Spa Industries on responding to an advertisement in a newspaper.  Such job involved maintenance of a production line where they manufactured spouts and some light steel fabrication.  The plaintiff was employed there for five or six months and earned $18,507.00 gross, from which $2,850.00 was deducted for taxation.

50      The plaintiff describes that although he was determined to work, he did not “cope very well” because of his bodily restrictions.  In particular, he had difficulties with lifting, moving, standing in one place for any period of time and even welding.

51      Ultimately, the plaintiff resigned his employment with Spa Industries, because of his difficulties.  He gave evidence that if he had been fit, he would have continued in that employment, which he enjoyed, and which was convenient to where he was living.

52      In or about August 2010, he commenced work with Wastech, where he remained for three months or so and earned $13,800 gross, from which $3,000 was deducted in tax.  In that employment, he was manufacturing small industrial rubbish bins and again, he had difficulty performing the work because of his elbow and neck.

53      In particular, the plaintiff gave the following evidence:

Q:      “In what way were they interfering?‑‑-

A:The fact that I – I’d lost quite a lot of strength in my right arm but the elbow was very tender and it is to this very day if I bump it the wrong way.  And then of course then I’ve got the - the neck issue where you know, turning and looking up and down and just normal day to day things apart from working have affected me.

Q:Was there any welding involved in that Wastech job?‑‑-

A:Yes.

Q:How were you able to manage with the welding?‑‑-

A:I managed but again, taking a lot of painkillers.

Q:What sort of painkillers were you using at that time?‑‑-

A:Primarily Panadeine Forte.

Q:Who was giving you the Panadeine Forte?‑‑-

A:Peter - Dr Peter Williams was prescribing them.”[17]

[17]T178, L19 – T179, L2

54      At that time, the plaintiff was also taking anti-depressants, prescribed by Dr Peter Williams, as he felt depressed, in that his body was not allowing him to do what he wanted to do.

55      The plaintiff gave evidence that he had had problems with depression in the years before his accident and had taken anti-depressant medication of a “mild” nature prior to the accident.  Such psychological problems were “on and off” before the accident and on occasion, took him to psychologists and psychiatrists for assessment and treatment.  At the time of working for the first defendant, he was receiving no treatment from any psychologist or psychiatrist.

56      The plaintiff also described that over the years, he has had problems with “back pain” – that is to say, pain in the lower back, which he first experienced in the early 1980s.  The plaintiff described that “occasionally” the back pain would flare up and he would just continue working through with it.

57      In particular, when he commenced with the first defendant in the latter part of 2007, the plaintiff described that his lower back pain was not a problem and also was not a problem during the course of his work with the first defendant.

58      After ceasing work with Wastech, he worked as an assistant cleaner, working with a lady by the name of Erin, who was his next-door neighbour.  He worked as a cleaner for two to three months, which involved cleaning windows, which he could not cope with, and later he went on to cleaning houses.  Window cleaning caused a lot of stress to his arm and neck and cleaning houses, which involved cleaning new houses after being completed by builders, entailed dusting and backing and scraping excess paint off windows on the interior and exterior, which he found difficult.

59      The plaintiff described not being able to cope with the cleaning work because of its repetitive nature and once again, he became quite depressed after ceasing that work.

60      In particular, he gave evidence that he attended the Casey Hospital Emergency Department on 10 May 2011 after an attempted overdose of medication (Panadeine Forte and temazepam, a sleeping tablet), together with excessive alcohol.  He had been prescribed temazepam by Dr Williams for some years prior to the accident.

61      When queried as to why he took an overdose in May 2011, the plaintiff stated:

“Frustration, the fact that all this was taking so long, the frustration at the fact that I couldn’t work, I wanted to work.  Again as I said earlier, I needed to make money to enable me to keep my unit, pay the mortgage, and I tried various different jobs to bring in an income, so the frustration of not able to do anything that I wanted to do.”[18]

[18]T181, L27 – T182, L3

62      The plaintiff believes he earned about $4,000 to $5,000 when cleaning, after which he worked for a company called Whitlock Bull Bars in June 2011 for about four days but had to cease because he could not do the lifting.  Whitlock Bull Bars apparently manufactures bull bars for trucks, cars, and there is some welding involved.

63      The plaintiff gave evidence that he had another attendance at the Casey Hospital Emergency Department in August 2011 involving a further overdose of medication, and also excessive alcohol.  The plaintiff described “frustration”, annoyance and depression at that time and that he was going through a “fairly rough period of time” with a breakdown of his third marriage and his inability to work.

64      Following this episode, he gave up drinking and has been abstinent since then.  In 2011, he was granted the Disability Pension and continues to receive that income.

65      He presently attends Dr Williams, his general practitioner, and also sees a mental health nurse called Ayeta Bennett, who assists him to keep a positive outlook about life.

66      The plaintiff describes his present daily routine of medication to involve taking two Panadeine Forte in the morning, one OxyContin in the morning, together with one anti-depressant (Lovan).  He also takes medication for sugar diabetes, which commenced about eighteen months ago, together with medication for high blood pressure over the last four or five years.  After breakfast, he takes another form of medication in regard to urinal problems, and then with lunch, he takes a further two Panadeine Forte and further medication for his diabetes.  During the day, he takes a further Lovan, and a further OxyContin tablet in the evening.

67      The pain-relieving tablets are primarily for his neck and right arm and although the tablet medication dulls the pain, it does not disappear totally.  The plaintiff described that at one stage, his medication was not under control and he was taking more tablets than prescribed, but Dr Williams has now set up an appropriate regime, which he adheres to.  He continues to also take two temazepam at night to assist in his sleeping.

68      The plaintiff described difficulties in driving a car for a long period, which causes stiffness, particularly in his neck, inability to play sports such as golf or tennis, and a recent attempt at ten-pin bowling in 2012 was unsuccessful, because he could not manage the weight of the ball.  Furthermore, prior to the accident, he hoped one day to have some land to run and have some “ponies” which he had an interest in as a younger person.  He does not believe he could ride now.

69      Prior to him living in the caravan he was living in a unit on which he had performed some renovation work and a little bit of painting but was largely assisted by his nephew, who put down a floating floor in that unit.  Furthermore, a carpenter was engaged to do various other renovations on the unit.

70      The plaintiff gave evidence that absent this accident, he would have continued working until at least sixty-five, if not longer, as he would have had to pay out the unit.  When queried about what he considered his prospects of working in the future were, he described them as “absolutely zero, zilch”.  When queried why he was of that view, the plaintiff stated:

“Because the amount of times that I have tried to go back to work myself trying different forms of employment, it just brings it home very quickly that I’m not capable.”[19]

[19]T191, L3-6

71      The plaintiff expanded by saying it is not only difficult to get jobs, but it is difficult for him to do jobs. 

72      The plaintiff also gave evidence that he was convicted of theft involving stealing $1,000 from Bunnings several years ago.  According to him, he has not been in trouble since then.

73      The plaintiff produced taxation returns for the financial years ending 30 June 2005 through to and including the financial year ending 30 June 2012.[20]  The plaintiff explained that the taxation returns from 2008 onwards were completed on 15 August 2013 as he was informed by the Taxation Department to get all his “taxes up to date as I was behind”.  An absence in any of the taxation returns of income earned from the cleaning work was explained by the plaintiff on the basis that although informing his accountant of such income, the accountant “forgot to include it”.  The plaintiff also produced a PAYG payment summary in relation to his employment with Spa Industries for the year ending 30 June 2010, and such was tendered.[21]

[20]See exhibit 6

[21]See exhibit 9

74      The plaintiff was also shown a further document which depicted a mobile scaffold.  The plaintiff described such scaffold to be made of aluminium and constructed to whatever height you want and capable of being in square or long form.  Such mobile scaffolds are on wheels and can be dismantled.  Such diagram was tendered.[22]

[22]See exhibit 10

75      Under cross-examination by Counsel for the first defendant, the plaintiff was shown exhibit A – an architectural plan of the premises, with a major heading “First Floor Plan”, and the plaintiff agreed that the first floor of the premises was a “mezzanine” floor.[23]  He also accepted that as you look at the first floor plan, the wall on the left of the offices was where he was working at the time of the accident, and in particular, where the windows were and the windowsill.  The plaintiff marked on the diagram where he was approximately along that wall.

[23]See exhibit A

76      The plaintiff was also referred to Photograph 7 in exhibit 2, and he accepted that the windows depicted in such photograph were the windows along that wall facing out onto Ballantyne Street.

77      The plaintiff accepted that at the premises, he was “under the – for safety, under the direction and supervision of the site foreman, which was Mr Stewart [sic]”.[24]

[24]T204, L27-29

78      On the day of his accident, the plaintiff gave evidence that he commenced at 7.00am and was instructed to do the work on the mezzanine floor, which he performed for nearly a couple of hours when the accident occurred at about 9.00am or a quarter to 9.00.  Over the time that he worked that morning, he would have moved the ladder about four or five times to perform work and had been working in the last location for approximately ten minutes prior to descending the ladder.  He returned to work on the mezzanine floor in the afternoon and on the Thursday and Friday before his employment was terminated.  During that time (Thursday and Friday), he was working on the ground floor using a scissor lift.  In particular, the plaintiff gave evidence under cross-examination by the first defendant that the day of his accident was the first day that he had worked on the mezzanine floor.

79      The plaintiff was shown a document which he accepted was his Injury Claim Form signed on 7 April 2008.[25]  When queried about one of his responses on the Claim Form wherein he suggested that his accident was caused or contributed to by there being no safety rail or told of a possible danger around the windowsill, the plaintiff accepted that at the time of the accident, he had the belief that the windowsill was safe to stand on.[26]

[25]See exhibit B

[26]T211, L7-10

80      Furthermore, when queried about whether Mr Marlow, in particular, knew of any injury as a result of the fall when he came round on Friday evening to sack him, the plaintiff gave evidence that he “certainly” had told Mr Marlow that he had knocked his elbow when falling on the Wednesday morning.  When pressed by Counsel for the first defendant, the plaintiff gave evidence that he did not think there was much of an injury at that time but did say something to Mr Marlow when he spoke to him on that Wednesday morning.

81      The plaintiff accepted that he did not say anything to Mr or Mrs Marlow about being injured when they attended him at his caravan on Friday evening to terminate his employment, as he was “in shock” of “being fired at my own address”.

82      The plaintiff accepted that he made a statement to investigators of 24 April 2008, and such statement was produced and tendered.[27]  In particular, the plaintiff was referred to this part of the statement:

“We can’t get up on top of the roof structure to do the welding, and there were no scissor lifts or other equipment practical for working on that particular task.  I had no problems with doing the welding or working with the ladders.”

[27]See exhibit C

83      When queried about these comments, the plaintiff gave evidence a portable scaffold or even a scissor lift could have been used but “the time factor to get the crane to lift a scissor lifts [sic] in place, it just wouldn’t have been logical”.[28]

[28]T224, L23-25

84      When it was put to the plaintiff that a scissor lift could not be used on the mezzanine floor because such floor was made of wood and was not strong enough to bear the weight, the plaintiff disagreed.

85      The plaintiff was also directed to Photograph 3 of exhibit 2, which depicts what was referred to as large beams or props leaning against the wall at an angle.  The plaintiff, although accepting that such props seemed to be propping up something, and most likely the walls, he asserted that such props were not there at the time of his accident.

86      The plaintiff also disagreed when it was put to him that shortly prior to his accident, he was welding what was referred to as “the raker” rather than cleats.  When it was suggested to him that the cleats were already there, the plaintiff responded that some cleats were missing, which had to be re-welded onto the appropriate beam.

87      The plaintiff also disagreed with the suggestion that at the time of his accident, there were a number of partitions still in place on the mezzanine floor, and asserted that there was only one partition there, together with base plates left on the floor from other removed partitions.  Such base plates rose about 10 millimetres above the floor.[29]

[29]See generally T235

88      When put to the plaintiff that because of the props and the partitioning, you could not have manoeuvred a mobile scaffold in the mezzanine area, the plaintiff disagreed.  In particular, he again asserted that he did not recall the props and, in any event, even if there were props:

“I’m only guess [sic], a distance from the base of the prop to the outer edge of the mezzanine floor to enable you to walk around and relocate equipment, … .”[30]

[30]T236, L13-16

89      When queried as to how a mobile scaffold could be brought to the mezzanine floor, the plaintiff responded:

“It comes in a flat pack and you just carry it up the stairs, very light aluminium pipe, and you assemble it.”[31]

[31]T239, L9-13

90      When queried about the circumstances surrounding his termination, the  plaintiff accepted that on occasions he was “possibly” an argumentative type of person and may have had anger problems in the past.  Furthermore, he was again taken to his statement[32] wherein he said, at the beginning of any day –

“… the site foreman for Mackie would give me instruction[s] at the beginning of the day about what he wanted me to do for the day, as well as instructions from Matthew Marlow.”[33]

[32]See exhibit c

[33]T242, L18-21

91      Furthermore, he was also taken to that part of the statement where he stated:

“Matthew and I had never got along very well as I found him to be arrogant and rude most of the time”[34]

and described such language as being “a little over the top”.[35]

[34]T243, L22-24

[35]T243, L25-26

92      The plaintiff was referred to Photograph 6 depicting the mobile arc welder, and he stated that such welder could “possibly” weigh 5.8 kilograms.  He went on to explain the various points of the welder and in particular, described a “blue knob” which controlled the power supply to the welder, and in particular, controlled the amount of amps.  Furthermore, the plaintiff explained, in relation to the earth lead, that a “far better circuit” is created if the earth is clamped to the actual piece of steel that you are welding.  Although accepting that the earth lead could have been clamped to steel on the ground before climbing the ladder, he considered that it was a better circuit the closer the clamp is to the actual piece of steel that you are welding.[36]

[36]See generally T266 – T268

93      The plaintiff also accepted that you can, depending on the circumstances, perform welding up a ladder with the power box sitting on the ground.  He stressed it depends on what height you go and what length of lead you have.  The plaintiff also asserted that it is better to have the power box with you as this permits you to either decrease or increase the amps on the machine.

94      The plaintiff also explained, in cross-examination, if a mobile scaffold had been available, he would have taken the welder and the various cords up onto the platform initially and thereafter, would leave that material there, descend the ladder of the platform to move the platform to the next area where welding would have to be done and ultimately, when all the welding was completed, he would descend the ladder with all the equipment.

95      The plaintiff accepted that prior to his accident, he had had some “problems” with his neck and low back.[37]  In particular, he was cross-examined about the following matters:

[37]T280, L6-8

(a)   He accepted that he suffered a neck strain when he was lifting a steel plate on 16 January 1988 and was off work for about three or four weeks;[38]

[38]T281, L2-6 and T281, L31 – T282, L5

(b)   He accepted that in 2002, he suffered some degree of neck injury as a result of being assaulted and believes he was getting some physiotherapy in relation to his neck in 2003.  Furthermore, following the assault, he accepted that was when any psychological treatment first commenced for what he believes was “Major Depression”.  He believed he was on WorkCover for some weeks and the psychological effects of the assault persisted for some months;[39]

[39]T281, L14 – T282, L16

(c)   He asserted that from about the late “’80s” he first complained about low-back pain brought about, he believed, from the nature of boilermaking work.  He further accepted that he has continued to suffer with back problems over the years, “periodically”;[40]

[40]T283, L1-9

(d)   He accepted that he was seeing a Dr Pereira at the Casey Hospital in relation to his low back in 2005 and underwent a CT scan of his low back on 29 September 2005.  Further, he accepted that he underwent several scans and that he was advised that he had a disc protrusion at the L4-5 level of his low back.  When it was suggested that such back pain had not gone away, the plaintiff answered “my back’s fine”;[41]

[41]T283, L31

(e)   He accepted that he attended the Casey Hospital on 28 April 2006 to have an MRI scan of his low back because of ongoing low-back pain.  He recalled that he was told that he has degenerative changes in his low back, together with disc bulging at L4-5.  Furthermore, he accepted that he was getting some pain down the back of his leg or legs in 2006, causing him to attend hospital on 17 May 2006.  In particular, he accepted that he was advised at that time “not to do as heavy work as I had been in the past”;[42]

[42]T285, L3-5

(f)    He accepted that he had a spinal nerve root steroid injection in his lumbar spine on 24 June 2006 because of low-back pain and that he had probably had two or three such injections over the years;

(g)   On being referred to a note by a Dr Fayisa Kasia at the Duff Street Medical Clinic on 17 May 2006 wherein it is recorded that the plaintiff stated his back was killing him and that boilermaking was making it worse and he would change jobs, the plaintiff said he could not remember saying that but accepted, if it had been recorded, he must have said it.[43]  The plaintiff also accepted that he was being prescribed Tramal tablets at that time and he was also receiving medical certificates certifying him being unfit for work in May 2007.  He accepted that although he was no longer taking Tramal, he does take Panadeine Forte for his back, and in June 2007, was prescribed Mobic, anti-inflammatory tablets;

[43]T287, L22-27

(h)   He also accepted that he was having psychological problems towards the end of 2006, but could not recall an attendance at the Thompson Clinic on 7 December 2006 requesting that he would like to see a psychiatrist because he thought he had Bipolar Affective Disorder;

(i)    He accepted that he was getting psychological treatment in 2006 and later, psychiatric treatment from 2007.  He further accepted that at that time, he had had suicidal thoughts, was taking sleeping tablets most nights, his appetite was poor, as was his energy, concentration and memory were poor and he was “tired of life”.  The plaintiff also accepted in that period, up to 2007, that he sometimes has “lied to big note himself or for self-preservation when he’d done the wrong thing”;[44]

[44]T297, L25-31

(j)    He accepted that he was attending Alcoholics Anonymous in March 2007 and that back pain was spreading to his legs;

(k)   He had some recall of being referred to a neurologist, Dr Peter Kempster, in June 2007 because of complaints about dementia;

(l)    He accepted that in July 2007, and September 2007, he was obtaining various tablets for low-back pain;

(m)     He accepted that on 1 December 2007, he attended a doctor with “osteoarthritis” in his spine and hypertension and was prescribed Panadeine Forte with two repeats;

(n)   That during the course of his work with the first defendant, he was prescribed “a low dose” of Panadeine Forte for his back and on 23 December 2007, he was given a prescription for Temaze tablets for insomnia;

(o)   He had some memory of attending Dr Peter Williams on 20 January 2008 complaining of problems with his left elbow, his neck and some numbness in his hands and forearm for which he was referred for x-ray of both the neck and the left elbow;

(p)   He accepted that on 1 February 2008, he attended Dr Tarik Albir in relation to sleep problems, backache and tooth infection, and was prescribed Panadeine Forte, Temaze and Augmentin Duo Forte (an antibiotic);

(q)   He accepted that he attended Dr Peter Williams on 1 March 2008 (eleven days prior to the accident) complaining of back and knee pains, together with insomnia, and was prescribed Panadeine Forte tablets and Temaze;

96      The plaintiff was referred to his earlier evidence-in-chief where he denied that when he started with the first defendant he had any low-back pain or indeed, during the course of his employment with the first defendant, that he had any low-back pain.  In response to such proposition, the plaintiff answered:

“Well, all I can say to that is the fact that it may have been a minor issue, but it certainly didn’t prevent me from working.”[45]

[45]T312, L5-7

97      The plaintiff was also referred to his earlier evidence-in-chief in relation to the two attempted suicides[46] – the first on 10 May 2011 and the second on 2 August 2011.  It was put to him that both suicide attempts were prompted by relationship breakups.  The plaintiff accepted that both attendances did involve relationship breakup, and also asserted:

“It was a multitude of things.  Again, as you pointed out yourself just then in regards to not being able to do things that I used to be able to do.  The frustration of that, amongst other things.”[47]

[46]T181, L14ff

[47]T325, L21-30

98      The plaintiff asserted that he has not been in a relationship since 2011 and now sees the psychiatric nurse about every three or four weeks.

99      The plaintiff accepted that on 6 April 2004, he successfully completed a testing and tagging of portable electrical appliances course undertaken at the Box Hill Institute.  Such course involves electrical testing and tagging of kitchen utensils such as pots and electric frypans and toasters.  Subsequent to the course he undertook, and after the accident, the plaintiff attempted to set up a business involving that activity but was only able to obtain one customer.  The plaintiff described how he obtained an Australian Business Number (ABN) and circulated various flyers about the type of work he was prepared to undertake.  He persisted for about six to eight weeks but did not really get any replies. 

100     The plaintiff gave evidence that prior to his employment with the first defendant, he was in the “throes” of purchasing a unit, although he was living in a caravan park at the time of the accident.  He moved into the unit in April 2008 and was living, at that stage, with his third wife, who was ill and living in one of the spare bedrooms.

101     The plaintiff described the means of purchase as putting a deposit down with the intention of paying monies directly to the vendors for a period of time and then coming to some arrangement with a bank.

102     The plaintiff accepted that when in such unit, he did some minor renovations over a three-and-a-half to four-year period leading up to vacating the premises in October 2012.  The minor renovations consisted of some painting and a little plastering, which was done on and off.  He was assisted by his nephew in placing a floating floor over the existing floor.  He was also assisted to put in certain parts of his fence, lay a driveway and build a back patio at the unit.

103     Ultimately, the plaintiff broke the terms of the contract in relation to the purchase of the unit and it was sold, netting him $12,000.

104     The plaintiff also gave evidence that he was assisting his then third wife at a stall in the market in 2011 until February 2012 on a Sunday. 

105     When queried as to what his intentions were when “this case” was completed, the plaintiff accepted that he may attempt to get some sort of part-time work of a lighter nature involving delivering newspapers or flyers, things of that nature.  The plaintiff did describe himself as being “unfortunately” effectively retired, since he was unable to find any work fit for his limitations.  When queried about such limitations, the plaintiff stated:

A:“Well, I can’t do things over a long period of time, as in standing or lifting, or anything of that nature, anything physical, because if I do something for say, 20 minutes or half an hour, my body lets me know that you shouldn’t be doing this.

…

Q:When you say your body lets you know, what in particular, Mr De Bever?‑‑‑

A:Well primarily my right arm and, of course, my neck.”[48]

[48]T358, L30 – T359, L9

106     The plaintiff also asserted that he has no computer skills and does not own a computer.

107     When queried about his taxation returns, the plaintiff considered that the income from cleaning had been declared (save for work for which cash was paid) but income from Spa Industries was not declared because he was unable to obtain, or had misplaced his group certificate.

108     Under cross-examination by Counsel for the second defendant, the plaintiff was shown Interrogatories numbered 26, 27(a) and 31 of the second defendant’s Interrogatories for the examination of the plaintiff dated 3 January 2013 and the plaintiff’s Answers to such Interrogatories sworn on 25 March 2013.[49]  The thrust of his Answers to such Interrogatories is that he was not suffering from any physical or mental disability in the twelve months prior to the accident.  The plaintiff accepted that such sworn answers were wrong.

[49]See exhibit AA

109     The plaintiff accepted that after the induction undertaken by Cameron Stuart at the time he commenced work at the premises, he did not have a “great deal” to do with Stuart.  He further accepted that he was answerable to Matthew Marlow and it was Marlow who told him to weld the cleats on the day of the accident.

110     Counsel for the second defendant also queried the plaintiff about the use of a scissor lift on the first floor, and the following evidence was given:

Q:“… Indeed, there’ll be evidence from Mr Stewart [sic] that, firstly, you can't get a scissor lift on the first floor, on the mezzanine, you'll agree with that?‑‑‑

A:It could have but it would have been ridiculous.

Q:Yes.  The timber floor, it just wouldn't support the scissor lift, isn’t that right?‑‑‑

A:I’m just trying to – once again, I’m contradicting myself.  I can’t remember if it was a timber floor or a concrete floor.

Q:In your evidence you said it was a timber floor?‑‑‑

A:I know I said timber floor, yes.  So – but regardless, it wouldn’t – wouldn’t have been practical to have a scissor lift up there.”

HIS HONOUR: 

Q:“Sorry, wouldn't have been practical to have a scissor lift up there, full stop, or practical for the type of work you were doing?‑‑‑

A:For the top – well, full stop.”[50]

[50]T384, L10-25

111     The plaintiff also accepted that there was no discussion about using mobile scaffolding because there was none available on the site at the time of his accident.[51]  However, the plaintiff did give evidence that he had seen a mobile platform at the site on the ground floor at an earlier time.[52]

[51]T384, L5-7

[52]T386, L24-28

112     When queried about partitions on the mezzanine floor, the plaintiff confirmed that he thought one was left.[53]  He also confirmed there was evidence of what he referred to as “remnants” which were about 5 to 10 millimetres high.  He disputed with Counsel that you cannot move a mobile scaffold along a timber floor with the “remnants” still in place.

[53]T384, L27-28

113     In response to a query from the Court, the plaintiff gave evidence that a mobile platform has four wheels at its base, with each wheel having a rubber cover and each wheel having a diameter in excess of 6 inches.  In answer to a query from the Court, the plaintiff estimated that there would be a distance of 1.5 to 2 metres between where the prop on the mezzanine floor hit the floor to the end of the mezzanine floor within the building – that is to say, on the opposite side of the mezzanine floor to where the window and windowsills were situated.

114     Counsel for the second defendant extensively cross-examined the plaintiff in relation to him descending the ladder with his welding gear shortly prior to his accident.  In particular, it was put to the plaintiff that when descending the ladder, it would have been preferable for him to coil up the leads in a neat bundle so that there was not going to be the risk that they would get tangled in his feet.  In response, the plaintiff stated:

“In foresight you think about it and - well, it would have been - but when you think and you’ve got that many jobs you want to do, you don’t think of these things.  It’s just an automatic thing, and you don’t expect welding leads to be tangled around your feet.  It’s purely an accident.  It happens.”[54]

[54]T393, L2-10

115     Under re-examination, the plaintiff was queried about the times that he big noted himself, and he considered there was an association between such “big noting” and his alcohol consumption. 

116     The plaintiff was also queried about the symptoms he was complaining of on 20 January 2008 to his general practitioner – numbness in his hands and forearm and difficulties with his left elbow – and said such symptoms only lasted for a day or three and he had no problem with numbness in his hands or forearms at the time of his accident.

The evidence of Dr Peter Williams

117     Dr Peter Robert Williams was called on behalf of the plaintiff.  He described himself as a legally qualified medical practitioner carrying on general practice at the Duff Street Medical Clinic situated in Cranbourne West.  He has been a general practitioner since 1973.

118     He gave evidence that he had been the plaintiff’s general practitioner “off and on for a period of fifteen years”.

119     Dr Williams gave evidence that over the last eight months prior to the accident, the plaintiff had attended him complaining of back problems and left sciatica, for which he was obtaining analgesia for low-back pain.  He also attended with complaints of anxiety, insomnia and erectile dysfunction.

120     When queried about any treatment for alcohol consumption, he noted that the plaintiff had attended the clinic on 5 June 2007 (with another doctor) and had reported that he had cut out alcohol for six months at that stage.

121     Dr Williams also gave evidence of the plaintiff attending at the clinic on 20 January 2008, at which time he reported that he had separated from his wife and was having some trouble with numbness in his left hand, forearm and left elbow, and his neck on the left side.  Although Dr Williams sought to investigate such complaints by x-ray, the x-ray was not undertaken and after that date, there were no complaints about those types of symptoms.

122     Dr Williams gave evidence that the plaintiff attended him on 15 March 2008, when he gave a history that he had fallen at South Melbourne and hurt his right arm, armpit, elbow and right thumb area.  In particular, the plaintiff apparently described pins and needles in the right arm and he also had some redness and swelling there.

123     Dr Williams initially diagnosed a soft-tissue injury and some nerve injury as a result of falling.  He was subsequently examined by another doctor at the clinic on 18 March 2008, when he continued to complain of a tingling sensation to the right arm and his right arm grip was weak and there was tenderness around the right elbow on the outer side.  At that time, he was prescribed an anti-inflammatory.

124     When seen by Dr Williams on 22 March 2008, the plaintiff complained that his right arm was “stuffed” and that he had tingling in the right arm.  At that time, Dr Williams ordered an ultrasound of the right shoulder and an x-ray of his right neck, and referred him off for physiotherapy.

125     When later reviewed, the ultrasound revealed that he had a tear of his right shoulder supraspinatus tendon and a swelling of the bursa in the shoulder.

126     Dr Williams also referred the plaintiff to an arm surgeon, Mr James Leong, and prescribed Lyrica, which is used for nerve damage problems.  The plaintiff was also referred to Mr Russell Rollinson, a neurologist who performs nerve conduction studies.

127     Dr Williams also referred the plaintiff to the orthopaedic surgeon, Mr N Broughton, in relation to his shoulder complaint, and later, to the neurosurgeon, Mr Craig Timms.  He was referred to Mr Timms because a CT scan of the neck had shown a “nerve prolapse in the cervical spine”.  Furthermore, in August or September 2008, the plaintiff’s symptoms had not settled at all, which was suggestive of a “more serious pathologic problem than just a soft tissue injury”.

128     Dr Williams noted that the plaintiff underwent a microdiscectomy of the neck by Mr Timms in April 2009, which gave relief, but there was still ongoing pain around the right shoulder, his elbow and around the neck.

129     Towards the end of 2009, Dr Williams was prescribing Panadeine Forte, the anti-depressant; Avanza, the sleeping tablet; Stilnox and a Norspan (morphine) patch in relation to his ongoing pain and depression.  At this time, the plaintiff was “frustrated and angry” and depressed about his pain and that he was not getting better.  Dr Williams was specifically asked what role, if any, did his low-back pain play in 2009.  Dr Williams answered:

“As far as I know he never mentioned his lower back pain during 2009, that it wasn’t contributing to his ongoing pain problems.  His pain was centred on his upper limb.”[55]

[55]T428, L26-29

130     Dr Williams gave evidence that he has continued to consult with the plaintiff.  In particular, the following evidence was given:

Q:“In general terms, how did Mr De Bever and his situation develop over the years that have passed since 2009?‑‑‑

A:Since 2009, he’s – he – he deteriorated for a period of time in 2011 due to family problems, and domestic problems and ongoing pain, and getting addicted to alcohol and Panadeine Forte.  And he was subsequently put – referred to a mental health nurse and also put on a pain management program where he was taken off the – where he was controlled rigidly on the Panadeine Forte and put on OxyContin with – on restricted doses and he seemed to stabilise that.  And he continued to be depressed at – at one stage he had taken an overdose of tablet and gone to Casey Hospital, and – and was referred to the – to the mental health nurse after that.

Q:That is at your practice?‑‑‑

A:At our practice, she was visiting at our practice.  And he continued to be depressed, continued to have pain, but he seemed to stabilise in the – and he – after a period – he’s claimed that after a period of time he wasn’t drinking after seeing the mental health nurse.  He’s – he had reduced and he said that he had stopped drinking alcohol in the last six months.

Q:As far as his pain goes, how has that developed since 2011 as far as you’re aware?‑‑‑

A:The – the pain has stabilised, it hasn’t increased, and I would say it would be in the order of three to six out of 10 most days.

Q:Where does he have the pain, as you understand it?‑‑‑

A:He has the pain in – in the right neck and the right shoulder, and some pain around the right elbow.

Q:Are there other symptoms that he’s complained of to you concerning his right arm over the last two years?‑‑‑

A:He’s complained of numbness and – still in the right arm at times.

Q:Do you have a view as to what’s causing that?‑‑‑

A:Yes, my view is that he’s still got some pressure on some nerves in the – some nerve injury in the neck to – because of ongoing – ongoing impingement on nerves in the neck causing symptoms in the right arm.”[56]

[56]T429, L8 – T430, L13

131     Dr Williams was of the opinion that the plaintiff could not perform work as a boilermaker as such work does require lifting heavy objects and weld.  He considered that to perform such work would be “unsafe” as his pain would be aggravated and intensified and that it was likely he would have further injuries because he would not be able to lift equipment, carry equipment around or move freely and efficiently.

132     Dr Williams was of the opinion that the plaintiff has some work capacity in the construction industry and could work as “maybe” a supervisor, inspector or advisor.  There had been some discussion between Dr Williams and the plaintiff as to his future work capacity and the plaintiff had indicated that he may try and do some voluntary work but was concerned that the painkillers and the analgesia that he was taking would interfere with his ability to think clearly and concentrate if working.

133     Dr Williams stated that the plaintiff is presently prescribed the following medication:

(a)   OxyContin, which he described as a slow-release form of morphine and which he takes 25 milligrams in the morning and 25 milligrams at night;

(b)   Panadeine Forte occasionally in very small amounts if his back pain is stirred up by any activity;

(c)   Sleeping medication and anti-depressants;

(d)   Some anti-inflammatories, although the painkilling medication does relieve his pain.

134     When queried about the regime of medication, Dr Williams described it as a medium regime but the pain is quite a “significant problem”.

135     Dr Williams was of the opinion that his symptoms will “stay about the same” as long as he does not hurt himself again.

136     Dr Williams was shown a report from the neurologist, Dr R Rollinson, in relation to nerve conduction studies undertaken on or about 26 March 2008.[57]  When referred to the conclusion of Dr Rollinson that there was evidence of a “moderate ulnar nerve lesion at or around the elbow of the right side”, Dr Williams was of the opinion that such condition was consistent with his accident.

[57]See exhibit 12

137     Dr Williams also gave evidence that he considered that the “general outlook” of the plaintiff has improved over time, together with his mood.  Dr Williams organised for the plaintiff to undergo a further CT scan of his neck in October 2013 because the plaintiff was still complaining of substantial pain in his neck.  Dr Williams gave evidence that the CT scan substantiated that the plaintiff did have “arthritis in his neck and also some pressure on some nerves in the neck at the C5-6 level”.  When pointed out that such level was one level above where he had undertaken the neck surgery, Dr Williams commented:

“It’s not unusual to have an injury and have a partial injury to the levels above and below or nearby.”[58]

[58]T434, L21-24

138     Under cross-examination by Counsel for the first defendant, Dr Williams was referred to a report dated 28 July 2009 written by him at the request of the solicitors acting for the plaintiff.  He was taken to part of the report wherein he said:

“Adrian has a capacity to do administrative duties only.  In my opinion, he could work in human relations in areas of employment in which he has had past experience.”[59]

[59]T436, L18-23

139     Dr Williams confirmed his earlier opinion that the plaintiff, using “his experience”, could perform “non-physical type work”.

140     Counsel for the first defendant took Dr Williams to various extracts in the notes:

(a)   Dr Williams confirmed that on 4 April 2007, the plaintiff attended at the clinic and saw Dr Tarik Albir, who records that the plaintiff was to undergo a CT scan in relation to a discal problem at L3-4 level;

(b)   On 15 April 2007, the plaintiff saw another doctor at the clinic, Dr Sing Lok, and on 24 April 2007, he saw Dr Ayesha Chothia, both of whom noted he was getting back pain and was taking Tramadol for pain;

(c)   On 17 May 2007, the plaintiff again attended Dr Chothia, and Dr Williams confirmed that she wrote “says back is killing him and boilermaking is making him worse and will change jobs”.  Dr Williams accepted that, given the comments of changing job, it was not a minor type of issue;

(d)   On 28 May 2007, the plaintiff saw another doctor at the clinic, Dr Ahmed Sabet, and Dr Williams confirmed that there was a record of the plaintiff worried about becoming “demented” and again there is a record, as at 31 May 2007, that Dr Sabet referred the plaintiff to a neurologist, Dr Peter Kempster, and that there was a CT scan of the brain pending.

141     Dr Williams was taken to other notes in June 2007 when the plaintiff complained of symptoms consistent with low-back pain and anxiety.  In particular, on 1 December 2007, Dr Williams diagnosed the plaintiff to be suffering osteoarthritis in his spine based on symptoms of pain in that area, together with stiffness and limited movement of the spine.

142     Dr Williams was also referred to an entry on 1 March 2008, which he confirmed recorded that the plaintiff complained of “back and knee pains and insomnia” and further, Panadeine Forte and temazepam was prescribed.

143     Dr Williams gave evidence that the plaintiff attended at the clinic in relation to low-back problems on:

§  5 August 2008, requesting Panadeine Forte for his low-back pains;

§  24 December 2009, when he was seen by Dr Singh, who diagnosed left sciatica with ongoing pain and a prescription written for Celebrex;

§  14 September 2010, when seen by Dr Sabet, when the plaintiff complained of, amongst other things, neck and back problems and was prescribed the sleeping tablet, Stilnox;

§  1 December 2010, when seen by Dr Kabir, when it is recorded that the plaintiff was suffering low-back pain since March 2008;

§  26 September 2011, when there were prescription for temazepam; and

§  on 26 November 2013, when the plaintiff attended on Dr Williams complaining of low-back pain and right leg sciatica which caused Dr Williams to arrange for the plaintiff to undergo a CT scan of the lumbosacral spine which ultimately was never undertaken.

144     Counsel for the first defendant queried Dr Williams as to his understanding of the “mechanics” of the injuries to his neck, right shoulder and right elbow”.  Dr Williams stated:

(h)   I find that the windowsill was made of plasterboard with steel struts underneath it.[148]  Photographs 1, 2 and 5, and especially Photograph 6, do show “deterioration” as described by Stuart in his statement dated 29 April 2008.[149]  I find that based on those Photographs and the description of Stuart contained in his statement, bearing in mind that the windowsill had been exposed to the elements for at least four months, it either was or should have been apparent to each of the defendants that the windowsill was:

[148]See evidence of Stuart at T813, L6-7

[149]See exhibit 16

(i)     not designed to be exposed to the elements

(ii)     made of plasterboard

(iii)    something that someone who worked in the area was likely to stand on

(iv)    something, if stood on, would be unlikely to support weight, even if in good condition

(v)     something that the condition of which had deteriorated over a period of months such that it would be further weakened

(vi)    was of an appearance which indicated its (plasterboard) construction was unlikely to support weight;

(vii)   at the very least required investigation as to its capacity to support weight or access to it should have been prevented;

(i)    I find that Stuart was the site manager employed by the second defendant and that he was involved with:

(i)     deciding when contractors were to come on the site to perform work[150]

[150]T706, L8-13

(ii)     deciding what contractors do on site[151]

[151]T709, L5-6

(iii)    making sure that trades had the right labour and material on site[152]

[152]T796, L30-31

(iv)    co-ordinating the trades and ensuring compliance with the project program[153]

[153]T708, L17-18; T794, L4-9 and T796, L27-29

(v)     discussion and planning as to when tasks were done by subcontractors on site[154]

[154]T840, L26-31; T841, L1-7

(vi)    discussion and planning with subcontractors how tasks would be done on site[155]

[155]T868, L9-17; T869, L21-22

(v)     providing “special admission” to subcontractors to do things on site.[156]

[156]T759, L10-15; T768, L31; T769, L1-6

I find that Stuart had some management and control of the plaintiff and his knowledge of the system of work and equipment being used by the plaintiff on 12 March 2008, in that Stuart knew:

(i)     what the plaintiff was doing on site[157]

[157]Exhibit 16, page 2, paragraph [2]

(ii)     where the plaintiff was working on site[158]

[158]Exhibit 16, page 2, paragraph [2]

(iii)    how the plaintiff was performing his work[159]

[159]T864, L26-27

(iv)    what equipment the plaintiff was using to perform his work;[160]

[160]T864, L26-27

(j)    I also find that Stuart was the safety officer on site.[161]  In particular, I find Stuart was:

[161]T797, L1-2

(i)     in charge of safety[162]

[162]T815, L22-27

(ii)     responsible for the overall occupational health and safety management[163]

[163]T818, L24-25

(iii)    responsible for ensuring the subcontractors complied with site safety[164]

[164]T818, L26-29

(iv)    took an active part in the safety of the site[165]

[165]T819, L8-9

(v)     conducted safety monitoring,[166] plant inspection,[167] safety inspections[168] and site inductions;[169]

[166]T820, L8-10

[167]T823, L11-27; T825, L3-24

[168]Exhibit 4, Site Safety Plan from Mackie Pty Ltd – various pages

[169]See exhibit 3

(k)   Stuart was involved in the decision-making process as to what was to be used on the mezzanine floor.  In particular, he stated:

“We looked at whether we could get a – a mobile or a scissor there, we can’t get either there.”[170]

(l)    I find that the premises was a small site, and on 12 March 2008, there were a total of five workers on site plus presumably Stuart himself. 

[170]T869, L22-23

365     I accept the submission made by both the plaintiff and the first defendant that the factual circumstances surrounding this matter are different to those in Leighton, where the principal contractor in Leighton in occupation of the site, engaged a competent contractor and left the contractor to do the job at hand.  All the factual circumstances surrounding this matter make clear, in my view, that the second defendant owed to the plaintiff a duty to take reasonable care to ensure that there was safe access to and egress from the place where he was carrying out the welding tasks.

366     Having made such findings, I am satisfied that:

(a)   The first defendant breached its common-law duty of care to the plaintiff by not providing mobile scaffolding from which he could perform the welding work on 12 March 2008.  I am further satisfied that such breach of duty was a cause of the injury suffered by the plaintiff on that day.  If the platform had been used on that day, it would have obviated the risk of injury to the plaintiff because:

(i)     the plaintiff would not have been required or permitted to carry the welder and associated cables up and down a ladder as the equipment would have stayed up on the mobile scaffold platform until the welding tasks were entirely completed.  At that time, the welder and cables could have simply been placed by the plaintiff on the platform without the need to carry them up a ladder at all, and at the end of the task they could have been lowered by hand one by one to the floor;

(ii)     the ladder which would have formed part of the mobile scaffold would not have been immediately adjacent to the windowsill, as was the ladder from which the plaintiff was working shortly prior to his accident.  The ladder in the mobile scaffolding could be internal to the frame of the scaffold and in such circumstances, any descent from the mobile scaffold would have been well away from the windowsill and, as such, make it unlikely that he would stand on the windowsill;

(iii)    in any event, he would not have been carrying a welder and cables down a ladder, as the welder and cables would have remained on the platform of the scaffold and could have been placed there or retrieved without the need for them to be carried up and down the ladder.

In such circumstances, I am satisfied that such breach of duty was a cause of the injury suffered by the plaintiff.

(b)   Secondly, I am satisfied that the first defendant has also breached its duty of care to the plaintiff in any event by permitting the plaintiff to work in an area where it was reasonably foreseeable he would stand on the windowsill.  The first defendant failed to provide a safe place of work, in that inspection would have revealed a deteriorating windowsill in the context that such windowsill had been exposed to the elements for over four months.  Again, I am satisfied that such breach was a cause of the injury suffered by the plaintiff on 12 March 2008;

(c)   Thirdly, I am also satisfied that the first defendant also breached Regulation 3.3.4, because I consider that it was “reasonably practicable” to have mobile scaffolding in place to perform the welding on 12 March 2008. 

Furthermore, for the reasons already recorded, I consider that the breach of such statutory Regulations was a cause of the injury suffered by the plaintiff.  If the mobile scaffolding was in place, the risk of injury was dramatically reduced.

367     I also find that as an occupier, the second defendant breached its duty of care to an entrant, being the plaintiff, in that it knew or ought to have known that the windowsill which had been exposed to the elements for at least four months, was deteriorating and at the very least, should have been examined and checked as to whether or not it was weight bearing.  For the reasons I have already advanced, I consider that it was foreseeable that an entrant in the circumstances such as the plaintiff, could well have stood on the windowsill.  Again, I consider such breach by the occupier to be a cause of the injury suffered by the plaintiff. 

368     Furthermore, I consider that the second defendant has also breached a general duty of care which has been created by the circumstances existing between the second defendant and the plaintiff.  In this respect, I consider that the second defendant breached its duty of care by being privy to and accepting that it was appropriate for the plaintiff to work from a ladder on the mezzanine floor rather than utilising mobile scaffolding.

369     I also find, in the circumstances of this matter, that there is no contributory negligence on the part of the plaintiff, as he was performing a system of work which was reasonable in the circumstances and certainly not objected to by his employer.  Furthermore, in response to any suggestion that even allowing for that system of work, he should have wound up the cords before descending the ladder shortly prior to his fall, I consider, in the circumstances of the matter where he was under some degree of pressure, that amounted to no more than mere inadvertence or thoughtlessness.  In particular, I refer to his evidence when questioned about it being preferable to coil up the leads when descending the ladder:

“In foresight you think about it and - well, it would have been - but when you think and you’ve got that many jobs you want to do, you don’t think of these things.  It’s just an automatic thing, and you don’t expect welding leads to be tangled around your feet.  It’s purely an accident.  It happens.”[171]

[171]T393, L2-10

Damages

370     After a consideration of all of the evidence, I make the following findings. 

371     As a result of the accident, the plaintiff suffered the following injuries:

(a)   An injury to the C6-7 disc which resulted in a prolapse, requiring the plaintiff to undergo a cervical discectomy and fusion at the C6-7 level performed by a neurosurgeon, Mr Timms, on 20 April 2009, which has been technically successful.  Both the treating surgeon and the two medico-legal orthopaedic surgeons (Mr Doig and Mr Dooley) support the relationship between the fall and the advent of the prolapse requiring surgery;

(b)   Traumatic injury to the right ulnar nerve in the region of the elbow.  In this respect, all doctors, save for Mr Dooley, accept that the accident was a cause of such injury which resulted in a neurolysis being undertaken on 17 August 2009 by Mr Timms.  I consider that such injury is related to the fall, as it is supported by the treating neurosurgeon in particular, and also the mechanics of the fall involved striking the right elbow when he fell.  Furthermore, nerve conduction studies undertaken in March 2008[172] confirm an abnormal study and an ulnar nerve lesion at or near the right elbow.  Accordingly, on balance, I relate such injury to the fall on 12 March 2008.

[172]See exhibit 12

Notwithstanding the suggestion of Mr Doig that the plaintiff may well require a transposition of such ulnar nerve, I accept the opinion of the treating neurosurgeon that such surgery would be inappropriate;

(c)   I also accept that the fall on 12 March 2008 played some role in the aggravation of a pre-existing psychological condition and, to some extent, rely on the evidence of Dr Petrulis, the psychologist, who treated the plaintiff briefly after the fall and considered that the pain and the frustration associated with such injury were one of the causes of his ongoing psychological condition.

(d)   I do not accept that any carpal tunnel syndrome suffered by the plaintiff has been caused or worsened by the fall.  Although Mr Doig considered there was a relationship, Mr Dooley was of the strong opinion that there was no relationship and indeed, the treating neurosurgeon accepted that there could be many causes for such condition.  On balance, I am not prepared to accept such condition, to the extent that it now exists, as being caused by the accident.

(e)   There may well have been also some minor shoulder injury which brought about a referral to an orthopaedic surgeon, but there appears to have been little treatment for such condition. 

372     I also accept the plaintiff is undergoing a moderate regime of drug medication to control pain in both his neck and right arm or right elbow, although some of that medication is also being taken for his pre-existing lower back discal problems.  I also accept that the plaintiff has some limitation of movement of both his neck and right arm.

373     Furthermore, although I accept he has some ongoing psychological problems, such condition is multi causal, with one of the causes being the injuries suffered by him on 12 March 2008.

374     Taking all of these matters into account and bearing in mind that the plaintiff is now sixty-two, I would assess “pain and suffering damages”, within the meaning of the Accident Compensation Act 1985, to be $200,000.

375     In relation to pecuniary loss, Counsel for the plaintiff submits that the plaintiff is entitled to:

Past loss of wages(a)   

As at the date of his accident, he was capable of earning $856.00 net per week (based on his earnings with the first defendant).  Making allowance for a loss of such sum from 12 March 2008 to date (in the original submission the calculation was taken to 25 November 2013, whereas I have taken it to the date of judgment), is $286,760.00, being 335 weeks multiplied at a loss of $856.00 per week.

Furthermore, for the purpose of superannuation, 9 per cent of the gross amount of $1,102.00 is $99.18.  Making allowance for a loss of such sum from 12 March 2008 to date, is $33,225.00, being 335 weeks at a loss of $99.18 per week. 

Accordingly, the total past loss amounts to $319,985.00.  From this should be deducted the sum of $32,049.00, being the net amounts earned by plaintiff since his injury, to which should be added the Fox v Wood[173] amount of $2,787.00.

[173](1981) 148 CLR 438

Future loss of earning capacity(b)   

On the basis of that the plaintiff would have continued working to the age of sixty-five years, he has approximately a year-and-a-half of working life.  Based on a gross figure of $1,140.00 (being $30 per hour for a 38-hour week as indicated by Marlow), the net sum is $925.65 net per week.  I will not refer to the discount factors submitted by the plaintiff as they have been overtaken by the effluxion of time.  However, taking a “broad-brush” approach, a loss of $925.65 from this date for a period of 78 weeks to the age of sixty-five, amounts to $72,200.00, from which a very modest amount should be discounted for present payment and the vicissitudes of life.

376     The first defendant, although accepting the net amounts and the basis for the calculations, submits that it would be inappropriate to allow the plaintiff a total loss for the past and future on the basis that absent the subject injuries, he would have continued working as a boilermaker over that period of time, up to the age of sixty-five.  The first defendant submits that any allowance for past loss of earnings ought to be discounted by 50 per cent, having regard to the following:

(a)   The employment of the plaintiff was terminated on 14 March 2008 (prior to him submitting a WorkCover claim);

(b)   The plaintiff’s criminal conviction for theft whilst an employee at Bunnings;

(c)   The plaintiff’s inconsistent work history:

–      the plaintiff has never remained an employee of a company for a period of more than four years;[174]

[174]See exhibit 1

–      the plaintiff was off work for a period of time after he was assaulted in the workplace in 2002;[175]

[175]See T132

–      the plaintiff was off work for approximately eighteen months to two years before starting work with A Bending;[176]

[176]See T134

–      the plaintiff’s taxable income from personal exertion in the period 2005 to 2008[177] was as follows:

[177]According to exhibit 8

Year	Amount
2005	$3,947.00
2006	Nil
2007	$43,418.00
2008	$32,398.00

–      the plaintiff’s pre-existing back injury;

–      the plaintiff’s pre-existing psychiatric injury and suicide attempts following the breakdown of his relationship with Erin.

377     The first defendant also submits that there ought be no allowance for future loss of earnings, or alternatively, any allowance ought be nominal in view of the matters listed and on the basis that in recent years, the plaintiff has made no attempts to return to the workforce despite his treating general practitioners, Dr Williams, and treating surgeon, Mr Timms, being of the view he has the capacity for light work.  Reference is also made to Transcript 358, whereat the plaintiff confirms that the last time he looked for work would be “some years now” and that he has effectively retired.

378     Counsel for the second-named defendant submits that allowing a past loss of $856.00 net per week “overstates” what the plaintiff was capable of earning and a figure ranging between $635.00 to $685.00 is more reflective of his loss.  Consistent with the position of the first defendant, Counsel for the second defendant submitted the plaintiff had been terminated by the first defendant and had a chequered employment history, with periods of unemployment and a criminal conviction for theft.  Furthermore, it was submitted that the plaintiff has had significant problems with his back, with extensive degenerative changes present in his back, and had been given advice to change working as a boilermaker and he had told his general practitioner he was thinking of giving up boilermaking.  Furthermore, he has also had extensive psychiatric problems, for which he has been treated by psychiatrists and psychologists in the twelve months before the incident.

379     It was submitted by Counsel for the second defendant that the plaintiff would have stopped work due to unrelated health issues before the age of sixty-five and it was more likely that he would have retired around the age of sixty.

380     Counsel referred to the evidence of Mr Doig:

Q:     “So we are talking about a significant back condition, aren’t we?‑‑‑

A:     Yes.

Q:     One where in May 2006, less than two years prior to his injury, he is advised not to do that heavy work of a boilermaker?‑‑‑

A:     Yes, but he was.

Q:     Really, what I am suggesting to you Mr Doig is that his days as a boilermaker were probably numbered in any event, weren’t they?‑‑‑

A:     They may have been.”[178]

[178]T577, L28 – T578, L4

381     It was ultimately submitted by Counsel for the second defendant that past loss of earnings should only be allowed up to 26 May 2011, a period of three years and two months, and that such loss should be calculated on the basis of a net loss of $635.00 to $685.00.

382     I make the following findings:

(a)   That based on the medical evidence of Mr Timms, Mr Doig and Mr Dooley, the plaintiff has been, and will continue to be, incapable of resuming his trade as a boilermaker;

(b)   Although I accept and do find that prior to his injury, the plaintiff had a significant history of low-back pain, involving a discal injury, he seemingly lost no time off work with the first defendant as a result of that condition, or indeed any psychological condition;

(c)   On balance, I do consider that the plaintiff was terminated, seemingly for reasons unconnected with the circumstance of injury on 12 March 2008.  At one level, I do find it remarkable that on 22 February 2008, he became an employee of the first defendant, and that on 15 March 2008, his employment was terminated, which just happened to be three days after the occurrence of injury on 12 March 2008.  Furthermore, the plaintiff asserts that at the time of his fall, he did inform Marlow of the situation but believed Marlow may have been distracted.  In any event, the evidence establishes that shortly after the fall, the barricade was erected on the mezzanine floor and that Marlow worked on the balance of the Wednesday, Thursday, but not the Friday.  Marlow asserts that he only became aware of the circumstances of the fall on the following Monday when talking to Stuart.  Both Marlow and the plaintiff accept that there was no discussion about the fall or any injuries when the meeting took place on Friday afternoon, at which time the plaintiff was terminated.  I should add that it would appear that both Marlow and the plaintiff were of the view that they did not get on overly well with each other and indeed, according to Marlow, that was the basis of the termination;

(d)   Absent the injury, the plaintiff had a reason to continue working to help pay off the unit which he had purchased and was renovating;

(e)   I accept that the plaintiff, at least initially, made some attempt to obtain employment but certainly, consistent with his own evidence, no attempts at employment have been made for some years;

(f)    I find that it is likely that the plaintiff has been off alcohol for some period, which perhaps may enhance his chances of employment, and indeed, the plaintiff indicated that when this case is over, he may try and look for some work delivering pamphlets or the like.

383     After considering all these matters, I find that in relation to loss of earnings(including past loss of superannuation), that the plaintiff would have earned, absent the injury, $159,992.00 net, being approximately 50 per cent of what he would have earned if he had been employed as a boilermaker from 12 March 2008 to date.  In general, I accept the submissions of the first defendant that it is unlikely that he would have worked as a boilermaker continuously over this period given his past employment history and past medical and health problems, all of which I find would impact on the likelihood of him being fully employed as a boilermaker through this time.  From the sum of $159,992.00 must be deducted what the plaintiff has earned over this period of time, being $32,049.00 net, and to which must be added the sum of $2,787.00, which is the agreed Fox v Wood component.

384     Accordingly, I find that the plaintiff is entitled to past loss of earnings of $130,730.00 (subject to any deduction of weekly payments of compensation).

385     In relation to damages for future loss of earning capacity, I have taken a broad-brush approach.  I make an allowance of $10,000.00, taking into account the following:

(a)   Very modest discounts of the sum of $72,200.00 for present payment and the vicissitudes of life;

(b)   A more significant discount for the likelihood that, in any event, the plaintiff would not have been working as a boilermaker, or indeed engaged in much employment at all;

(c)   That his employment capacity may well have improved slightly by him now being off alcohol and his stated intention that he may seek to do some relatively mundane work which would earn him a modest income.

Contribution between Defendants

386     I have found each defendant liable to the plaintiff:

–      the first defendant on the basis there has been a common-law breach of duty of care and also on the basis of a breach of statutory duty; and

–      the second defendant on the basis that it has breached a duty of care created not only by its occupation but also a duty of care which involves a general duty of care as outlined in this judgment.

387     I accept the submission of Counsel for the second defendant that issues of contribution are not to be approached mathematically or by the application of some formula and questions of apportionment involve questions of balance and relative emphasis.[179]

[179]Papadopoulos v MC Labour Hire Services Pty Ltd & Anor (No 4) (2009) 24 VR 665 at paragraph [79]

388     After a consideration of all of the evidence and the matters put to me by Counsel, I consider that an appropriate apportionment between the first defendant and the second defendant would be:

First defendant:            60 per cent

Second defendant:      40 per cent.

389     Notwithstanding that I have found that the second defendant breached a general duty of care which I have found it owed to the plaintiff, I consider that the first defendant, the employer of the plaintiff, should bear the larger contribution given that it has a non-delegable duty of care and on the facts so established, in my view, was the party which directed the plaintiff to perform that type of work on that day.

390     I will allow the parties to consider my various conclusions and formulate appropriate orders.

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