Eastside Scaffolding v Kazic

[2008] NSWCA 146

New South Wales

Court of Appeal

CITATION:	Eastside Scaffolding v Kazic [2008] NSWCA 146
HEARING DATE(S):	15/5/08
JUDGMENT DATE:	25 June 2008
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 2; Bell JA at 3
DECISION:	Appeal and cross-appeals dismissed with costs.
CATCHWORDS:	TORTS NEGLIGENCE – challenge to judge’s factual finding – alleged failure to give adequate reasons – parol evidence rule not applicable to claim - DAMAGES – significance of inaccurate history given to expert medical witnesses
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Workers Compensation Act 1987 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Codelfa Construction Propriety Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 Gordon v MacGregor (1909) 8 CLR 316 Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348 House v The King (1936) 55 CLR 499 Inglis v John Buttery & Co (1878) 3 App Cas 522 Jones v Dunkel (1959) 101 CLR 298 Moran v McMahon (1985) 3 NSWLR 700 Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 The King v The Inhabitants of Cheadle 110 ER 306
PARTIES:	Eastside Scaffolding and Rigging Pty Ltd (In Liquidation) (Appellant) Mesud Kazic (1st Respondent) GIO Workers Compensation (NSW) Limited (2nd Respondent) John Holland Pty Limited (3rd Respondent) Waco Kwikform Limited (4th Respondent)
FILE NUMBER(S):	CA 40746/07
COUNSEL:	M McCulloch SC / P Gow (Appellant) J Anderson / J Veloskey (1st Respondent) J Maconachie QC / S March (2nd Respondent) R Sheldon (3rd and 4th Respondents)
SOLICITORS:	Ebsworth & Ebsworth (Appellant) Martin Bell & Co Solicitors (1st Respondent) DLA Phillips Fox (2nd Respondent) Tress Cox Lawyers (3rd and 4th Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	585/05
LOWER COURT JUDICIAL OFFICER:	Johnstone DCJ
LOWER COURT DATE OF DECISION:	3/10/07

CA 40746/07
DC 585/2005

HODGSON JA
TOBIAS JA
BELL JA

Wednesday 25 June 2008

Eastside Scaffolding & Rigging Pty Limited (in liquidation) v Mesud Kazic & Ors

Judgment

1 HODGSON JA: I agree with Bell JA.

2 TOBIAS JA: I agree with Bell JA.

BELL JA :

Introduction

3 Mr Kazic was injured in the course of his employment on 23 February 2002 when he was struck on the head by a piece of scaffolding at a construction site at 1 Margaret Street, Sydney (the site).

4 Mr Kazic brought proceedings in negligence against GIO Workers Compensation (NSW) Limited (his employer, Capital Construction Group Pty Ltd, being in liquidation); John Holland Pty Limited, the head contractor on the site; Waco Kwikform Limited, who subcontracted to supply scaffolding to the site, and Eastside Scaffolding and Rigging Pty Limited, who subcontracted to provide labour to Waco Kwikform for the erection and dismantling of scaffolding on the site.

5 The trial came on before Johnstone DCJ. A central issue at trial was the identity of the employer of the scaffolder whose casual act of negligence led to the piece of scaffolding striking Mr Kazic. His Honour found that this individual was employed by Eastside.

6 His Honour found Eastside liable because the system that it employed for moving and stacking components of scaffolding inside the building was unsafe and, vicariously, for the negligence of its employee. His Honour found each of John Holland, Waco Kwikform and the Capital Construction Group to be liable in negligence for the unsafe system employed for moving and stacking the scaffolding. His Honour held that Eastside should bear 75 per cent of the responsibility. He apportioned 15 per cent of responsibility to Waco Kwikform and five per cent of responsibility to each of John Holland the Capital Construction Group.

7 His Honour assessed damages in accordance with the Civil Liability Act 2002 (NSW), making the adjustment required by s 151Z of the Workers Compensation Act 1987 (NSW), and gave judgment for Mr Kazic against GIO Workers Compensation for $345,320.00 and against the remaining defendants in the amount of $496,441.25.

8 Eastside appeals from the whole of the judgment on 21 grounds. The first nine grounds challenge the primary judge’s finding that it employed the negligent scaffolder. Further challenges to this finding are advanced in ground 10 (the parol evidence rule contention), ground 11 (the Jones v Dunkel contention) and ground 12 (the insufficiency of reasons contention). Grounds 13 and 14 complain of error in the apportionment of liability to Eastside. The remaining grounds allege error in the assessment of damages.

9 John Holland and Waco Kwikform have brought cross-appeals that are confined to the assessment of damages.

The challenge to the finding on liability

10 The facts found by the primary judge relevant to the issues raised by the appellant in grounds 1 – 9 and 11 are set out below.

11 The construction being carried out at the site was a multi-million dollar project involving some 50 subcontracts and many hundreds of supply contracts. (Red 70.E)

12 Mr Kazic was working on level 10 at the time of the accident. Various people were working on that level at the time, including electricians, “air-conditioning people”, gyprock fixers and scaffolders. A team of four gyprock fixers, supplied by Capital Constructions, was enclosing vertical shafts with gyprock sheets at the corners of the building. The team included Mr Kazic and his brother, Huska, who were working on a shaft at one corner of the floor, and Mr Krasnic and Mr Husic, who were working on a shaft at another corner. A team of scaffolders were working near Mr Kazic moving scaffolding components. Scaffolders on the outside of the building were passing the components through an open window to another scaffolder, who was stacking them inside the building in preparation for their removal. The smaller components were stacked in a rack or on the floor.

13 Longer components, such as planks and round steel piping, were leant against the wall near the lift. The scaffolders were wearing orange t-shirts. The scaffolder who was working on the inside of the building and receiving the components and stacking them, was young and tall. He had his hair in a pony tail and bore a resemblance to Bob Marley.

14 The only eyewitness to the accident was Mr Krasnic, who observed the incident in its entirety. The primary judge accepted Mr Krasnic as a reliable witness and extracted his account as follows: (Red 71.J-O):

“At that point in time I was with my partner being busy with our tasks and every now and then we just stop and chat, it’s part of the job we’re doing. Nearby there was a pile of material that we were using and we were just happen to be discussing part of our tasks that were lying ahead of us. Two of these guys that were bringing in these parts of the scaffolding, one of them was younger and skinnier, he was pretty tall with the long hair, he had a pony tail, his hair, and the other guy who was passing these metal pipes was chubbier, stronger person. From where he was standing he was chucking them on that pile that was actually leaning against the wall with the other metal pipes. Then I saw for some reason Mr Kazic was bent forward, probably he was doing something on the floor. Then I saw that guy throwing that metal plank against the wall. It bounced and hit Mr Kazic and hitting Mr Kazic (witness indicates).”

15 There was conflicting evidence as to whether the component that hit Mr Kazic was flat or round and as to whether it was thrown against the wall and bounced off it or was pushed up against the wall and then fell. His Honour considered that the resolution of these issues was unimportant. He found that a long piece of scaffolding, which the scaffolder with the pony tail was attempting to stack against the wall, fell, bounced, and struck Mr Kazic on the head as he was leaning over to retrieve a tool from the floor. The component was either a tube or a beam, more probably a tube, but it was not a Jetmesh panel.

16 His Honour noted Eastside’s submission that it was possible that the employer of the negligent scaffolder was R & K Donnelley, since the subcontract between R & K Donnelly and Waco Kwikform was in the same terms as its own subcontract with Waco Kwikform. Robert Damiani, the Operations Manager for Waco Kwikform responsible for overseeing the scaffolding work at the site, gave evidence that Eastside carried out the dismantling of the scaffolding and R & K Donnelly were engaged to install and remove the Jetmesh.

17 His Honour made the following findings:

“[18] I found Mr Damiani to be an impressive witness. He gave his evidence in a precise, succinct way, and there was nothing to indicate a bias, or any tendency to prevaricate. His recollection was clear and there was nothing about him or his evidence that indicated his version of events was unreliable. I prefer the oral evidence of Mr Damiani as to what actually happened over any inferences that might be drawn from the contract, which has every appearance of being a form document, not necessarily reflective of the actuality. I am satisfied that in respect of its subcontract to provide the scaffolding for this site, Waco Kwikform only provided scaffold components, and did not provide its own labour, but hired labour from Eastside Scaffolding to carry out the dismantling and removal of the scaffolding.
[19] The evidence establishes the employees from Eastside scaffolding were working on the site that day (Ex 2D3 at Tab 15.3). In my view the evidence as to the clothing worn by the scaffolders and the number of men involved is equivocal. There being no direct evidence of employees of other companies having been involved in the dismantling and removal of the scaffolding on that day, in my view the only inference that can be drawn is that the scaffolders involved were from Eastside Scaffolding. It was open to Eastside Scaffolding to call positive evidence to contradict that inference, but it did not.” (Red 72.N-V)

18 His Honour’s reference at [19] above to the evidence as to the clothing worn by the scaffolders and the number of men involved being equivocal is at the heart of Eastside’s challenge to his ultimate conclusion. In Eastside’s submission the number of scaffolders working on level 10 at the time of the accident and the colour of their clothing were cogent items of direct evidence which did not admit of the conclusion that Eastside was the employer of the negligent scaffolder. In my opinion, the challenge to his Honour’s factual finding is unsustainable. It is necessary to refer to a deal of the evidence in order to demonstrate why that is so.

The evidence touching on the identity of the negligent scaffolder

19 The evidence that Waco Kwikform had a contract with R & K Donnelly Pty Ltd in the same terms as its contract with Eastside was important to the way Eastside put its challenge. The contracts were in common form. Each provided as follows:

“WHEREAS
A. Waco Kwikform Limited (“Waco Kwikform”) has entered into an agreement for the provision of scaffolding equipment and scaffold labour services in respect of the Project.
B. The Subcontractor has agreed to enter into a subcontract with Waco Kwikform for the provision of scaffold labour for the Project.
…
1. Definitions and Interpretations
(a) Unless the context requires otherwise in this agreement the following words and expressions shall have the meanings assigned to them respectively:
…
(viii) Works means the Scope of Works set out in Schedule 2;
…
2. Provision of Scaffold Labour
(a) The Subcontractor agrees, with effect from the date of this agreement, to provide to Waco Kwikform scaffold labour services for the Project in accordance with the Works and Drawings and on the terms and conditions set out in this agreement.
(b) The Subcontractor agrees that it will on receipt of instructions from Waco Kwikform, commence and perform the Works on the Date of Commencement set out in the Contract Particulars or such other date as specified by Waco Kwikform and in accordance with the programme as stipulated by Waco Kwikform from time to time.”

20 Each contract nominated Robert Damiani as the contract supervisor.

21 The scope of works in each contract set out in Schedule 2 was in identical terms.

22 One difference between the contracts is that the contract sum agreed between Waco Kwikform and Eastside was $140,000, whereas the contract sum agreed between Waco Kwikform and R & K Donnelly was $80,000.

23 R & K Donnelly submitted a quotation to Waco Kwikform, dated 29 November 2001, which is described as a “Revised Quotation for John Holland Construction 1 Margaret Street, Sydney”. Relevantly, the quotation was for the following work:

“LUMP SUM PRICE TO INSTALL, REMOVE AND TRANSPORT JETMESH MATERIALS TO AND FROM THE SITE.
MATERIALS TO BE RAISED AND LOWERED BY HAND BEWTEEN FLOORS USING THE EXISTING BUIDLING LIFTS.
SCAFFOLDING IS AS INDICATED ON DRAWINGS 2168*01, 2168*03. HIRE OF JETMESH IS OVER 14 WEEKS, BUT SOME OVER-RUN IS ACCPETABLE, AS PER DISCUSSIONS WITH ROBERT DAMIANI.
LUMP SUM PRICE, INCLUDING GST = $88,000.00.” (Blue 97)

24 At the date of the trial, Robert Damiani was no longer employed by Waco Kwikform. He said that it had been his role to “overview the job” at the site. (Black 150.C). This entailed:

“Overviewing it was to start with let the contracts to subcontractors to do the work, ensure that the contractors were doing the work, were turning up to site, doing what they were supposed to do, making sure the material that was required to do the job came to site and dealt with any questions, et cetera, that came up from the builder.” (Black 150.D-F)

25 Mr Damiani attended at the site two to three times a week, maybe once or twice a week, depending on what stage the job was at. In the month prior to the accident the job was starting to wind down and he may have been attending the site once a week. (Blue 150.U) Waco Kwikform had a contract with John Holland for the erection of scaffolding on the site. All the labour engaged in erecting and dismantling the scaffolding was hired. The scaffolding was a heavy duty steel system. The first component consisted of the universal beams, on which the scaffold sits. The scaffolding itself consisted of steel tubes, which were the second component. The third component was Jetmesh sheeting. Jetmesh is a welded mesh fence panel that has shade cloth woven into it. It was not normal to erect scaffolding on levels below the level at which the works are being carried out because of the danger of materials falling on the workers below. A section of scaffold would be completed from, say, level five to level 10 and then the people who install the Jetmesh would come in and install it. (Black 159.G-I) The Jetmesh was the first component of the scaffolding to be removed.

26 Mr Damiani had been responsible for letting the contract for the supply of labour for dismantling the scaffolding at the site. This contract had been let to Eastside (Black 152.W). He had let a contract to R & A Donnelly for the installation and removal of Jetmesh at the site. (Black 153.B-N)

27 Mr Damiani said that he had “gone through” the scope of works, including the requirements for dismantling the scaffolding, with David Tai of Eastside. (Black 164.N-P) He had been present and observed scaffolding being brought from the outside to the inside of the building, where it had been laid on the floor or put up next to the lift. Smaller components had been laid up against the wall. (Black 165.P-166.C)

28 Mr Damiani gave the following evidence in chief:

“Q. Had you seen scaffolding being removed at 1 Margaret Street before 23 February 2002?
A. Yes.
Q. By whom?
A. Eastside.
Q. When you say Eastside you mean employees of Eastside?
A. Yes.
Q. How do you know they were employees of Eastside?
A. They were – I’d seen them working on a site previous to that, a knew some of them by name.
OBJECTION (McCULLOCH). NON-RESPONSIVE. Allowed.
Q. Of those whose names you knew, can you tell us what those names were?
A. The only one that sticks in my memory to this date is Warren.
Q. Is?
A. Warren Brown.” (Black 154.E-N)

29 In the course of cross-examination by Mr McCulloch SC for Eastside, Mr Damiani gave this evidence:

“Q. Did you observe from time to time that what in fact occurred on this site was that the jet meshing crews and the scaffolding crews were following one another in the dismantling process on any particular floor?
A. Yes, sometimes yes.
Q. So that sometimes there would be members of the jet meshing crew who might be performed in dismantling scaffold?
A. I never saw them dismantling scaffold but I can’t say no to that.
Q. You can’t say it didn’t happen?
A. I don’t know.
Q. You had seen them working in the same vicinity, that is the jet mesh crews and the scaffolding crews?
A. The jet mesh crews – depends on which function we’re talking about. Are we talking about dismantling or erection?
Q. Dismantling?
A. The jet mesh crews would go in first, then the scaffold crew would follow behind.
Q. It was often the case that with these particular crews that, to your observation, they cooperate in trying to get the dismantling job done?
A. Of course.
Q. So that sometimes the jet meshing crew might lend some of their staff to the scaffolding crew to assist in the dismantling of scaffold?
A. The jet meshing crew was a very small crew, it was only a two of three man crew in total, whereas the scaffolding crew was anything up to a dozen men, so there was – actually the scaffolders would work faster than the jet meshing crew so the jet meshing crews were having problems keeping up with the scaffolders. So therefore to say that the jet meshing crews would assist with dismantling scaffold would in the main be not correct.
Q. But you don’t disagree that it may have happened?
A. I can’t say. I don’t know.” (Black 171.E-V)

30 Sejad Husic, a gyprocker, who was employed by Capital Constructions, had been working with Mr Kazic at the time of the accident. He had seen people who appeared to be dismantling scaffolding. He said that one of them was inside and a few of them were on the outside. (Black 64.W) Mr Husic’s evidence in chief continued:

“Q. Were the people who were working inside the building taking scaffolding components that were being passed to them from people working outside the building?
A. Yes, one of them, one worker was taking those apart.
Q. Did those people who were handing the scaffolding, were they wearing any form of distinctive uniform?
A. Even now these do wear shirts with a shirt belongs to different companies, so clothing didn’t mean much anyway.
Q. Were you able to identify their employer with reference to anything else about their appearance, such as anything on their hat or similar?
A. Very few companies do have distinctive clothing if that’s what you are asking.
…
Q. Was there anything about the appearance of these men handling the scaffolding components by which you were able to tell who they worked for?
A. Could be two distinctive orange t-shirts that they were wearing but it didn’t mean much to me because you’re just kind of used to it.
Q. You said there was one man taking the scaffolding being passed to him from other men outside the building, correct?
A. * Yes*.” (Indicating this answer was not given with the assistance of an interpreter). (Black 65.D-Q)

31 Mr Damiani was recalled and was further cross-examined by Mr McCulloch, as follows:

“Q. On the occasions on which you saw Eastside personnel performing works on the site in the period leading up to the accident, are you able to recall whether they were wearing any form of uniform? By that I mean the same sort of coloured clothing?
A. Different people were wearing different clothes. I mean, they were all wearing their PPE.
Q. You had better tell us what a PPE is?
A. Person Protective Equipment. You know, safety boots, helmet, et cetera.
Q. To your observation was it the custom of Eastside Scaffolding personnel to wear a metallic grey as opposed to fluorescent orange garb?
A. Well no fluorescence comes to mind so I’m assuming they’re darker colours.
Q. You did see other persons on the site who in fact wore those sort of fluorescent shirts that you can no doubt buy at Lowes.
A. Yes. (Black 184.H-P)

32 Eastside wrote to Mr Damiani by letter dated 12 October 2001 listing its employees. (Blue 14) D Tai was one of the names in the list.

33 On 24 April 2002 David Tai wrote to Mr Damiani, attaching a handwritten schedule setting out the amounts owing to Eastside by way of site allowance in relation to work done at the site in the period between 6 November 2001 and 23 April 2004. Mr Tai signed the letter as a “director” of Eastside. The schedule records that on 23 February 2002 Eastside had six men at the site and that they worked an eight-hour shift.

34 Minutes of a meeting held on 26 February 2002 which concerned safety walk 12, held on 19/2/2002 at the site include the following:

Area	Hazard	Action
...
Level 10 –	Powermaster not wearing hats	Powermaster
Scaffolders should lay down props and rods	Eastside
Skyrise to tag chargers	Skyrise
Capitol to wear hearing protection when cutting steel	Capitol

35 On 14 March 2002 David Tai wrote to Mr Damiani as follows (Blue 45):

“Dear Rob:
I am writing to you, in regards to Invoice 37B. The progress payment indicated on that invoice is defined as followed.
1. $2592,00 for the Dismantle of Scaffold for Level 11 to Level 5.


2. $2592.00 for the moving of Material.

Making the total $5184.00.

I apologise for the inconvenience in regards to this matter.

Sincerely,

David Tai
Director”


Attached to the letter is a document on Eastside’s letterhead described as a tax invoice dated 25/2/02, addressed to Waco Kwikform and marked to the attention of Robert Damiani, claiming the amount of $5,184.00, being a progress payment in relation to “John Holland Citibank” (Blue 46).

The submissions – the identify of the negligent scaffolder

36 Eastside’s argument proceeded as follows:

(i) The subcontracts between Waco Kwikform and R & K Donnelly and Eastside left open that either firm may have been responsible for dismantling the scaffolding on level 10 on the date of the accident;
(ii) Mr Husic said the men handling the scaffolding components were wearing orange t-shirts (Black 65.N; and accepted by the primary judge at Red 71.C);
(iii) Mr Damiani said, referring to the clothing worn by Eastside employees, “no florescence comes to mind so I’m assuming they’re darker colours”;
(iv) Three men were involved in dismantling the scaffolding on level 10 at the time of the accident;
(v) The R & K Donnelly crew was a small one, only a two or three man crew, whereas the Eastside scaffolding crew was anything up to a dozen men. (Black 171.R)

37 In Eastside’s submission, it flowed from (ii) and (iii) that the negligent scaffolder was not an Eastside employee because he was not wearing clothing worn by Eastside employees. Consideration of (iv) and (v) was said to point to the likelihood of the negligent scaffolder being part of the R & K Donnelly crew.

38 As noted, the primary judge found the evidence concerning the number of men and the colour of their clothing to be equivocal. So it was. I have set out Mr Husic’s evidence on both topics. On the question of the number of men involved in the dismantling of the scaffolding, Mr Husic described one of the men as being inside the building and “a few of them on the outside”. (Black 64.W) Huska Kazic recalled “two people working, handling the scaffolding”. (Black 112.X) Since some of the persons involved in dismantling the scaffolding were outside the building, the evidence of the observations of persons inside the building was not determinative of the number of people involved in the dismantling crew.

39 The evidence did not establish that the crew involved in dismantling the scaffolding on level 10 was a small crew. If it was, that fact would not undermine the primary judge’s finding. Eastside had six men working on the site on the day of the accident. There is no reason to conclude that all of them were working in the same area at the same time.

40 Mr Husic was the source of the evidence that the men involved in dismantling the scaffolding inside the building were wearing orange t-shirts. I have set out his evidence at [30] above. When Mr Husic was first asked whether the people handling the scaffolding were wearing any form of distinctive uniform his response included that, “clothing didn’t mean much anyway”. The high point of Mr Husic’s evidence for Eastside’s case was his answer:

“Could be two distinctive orange t-shirts that they were wearing but it didn’t mean much to me because you’re just kind of used to it.”

41 There was no evidence concerning whether employees of R & K Donnelly wore orange t-shirts. There was no evidence concerning whether employees of Eastside wore a uniform of any description. The high point for Eastside’s case on this issue was Mr Damiani’s response to the question whether Eastside personnel wore “a metallic grey as opposed to fluorescent orange garb”, which was: “no fluorescence comes to mind so I’m assuming they’re darker colours”. This answer did not establish that Eastside employees wore a metallic grey uniform, or, indeed, any uniform. It did not establish that Eastside employees did not wear orange t-shirts.

42 Eastside relied on Mr Damiani’s agreement that the jetmesh and scaffolding crews would cooperate in trying to get the dismantling job done (Black 171.O). It was submitted that, accepting evidence that Eastside was responsible for dismantling the scaffolding, it was still open to consider that the negligent scaffolder was an R & K Donnelly employee who was assisting with dismantling scaffolding on level 10. Eastside pointed to a letter from John Holland to Waco Kwikform dated 14 December 2001 complaining of Waco Kwikform’s failure to “maintain agreed programmed completion dates” (Blue 661). This, it was said, made it more likely that the crews would be assisting one another to get the job completed in a timely manner. The submission overlooked Mr Damiani’s evidence to the effect that the Jetmesh crew, being small, had problems keeping up with the scaffolders. In Mr Damiani’s opinion, in the main it would not be correct to say that the Jetmesh crew assisted the scaffolders. (Black 171.T-U)

43 There was a more than adequate foundation for the primary judge’s finding that the negligent scaffolder was an employee of Eastside. It may be summarised as follows:

(i) Eastside subcontracted with Waco Kwikform for the provision of labour services in relation to erection and dismantling of scaffolding on the site;
(ii) Eastside agreed to perform contractual obligations in accordance with the program as stipulated by Waco Kwikform from time to time (subcontract cl 2(b));
(iii) The contract supervisor was Mr Damiani;
(iv) Mr Damiani said Eastside was responsible for erecting and dismantling the scaffold (apart from the jetmesh);
(v) Mr Damiani recalled giving instructions concerning the work to David Tai of Eastside;
(vi) David Tai wrote to Mr Damiani enclosing an invoice for work on levels 5 to 11;
(vii) On 23 February 2002 six Eastside employees worked on the site;
(viii) The minutes of the meeting held three days after the accident identified Eastside as responsible for action with respect to scaffolding on level 10;
(ix) Mr Damiani said that R & K Donnelly was responsible for the jetmesh; and
(x) A comparison of the contracts supports the accuracy of Mr Damiani’s evidence – the contract price for Eastside was substantially greater than the contract price for R & K Donnelly. The quotation supplied by R & K Donnelly was for the supply of jetmesh. The quotation (absent GST) was in the sum of $80,000, which corresponds with the contract price.

44 Eastside’s challenge to his Honour’s factual finding was hopeless. It did not come to grips with his Honour’s acceptance of Mr Damiani, who gave direct evidence that Eastside was carrying out the dismantling of the scaffolding on the site.

45 Mr Damiani’s evidence that Eastside carried out the dismantling of scaffolding at the site and that R & K Donnelly were responsible for the Jetmesh was the subject of objection at trial. It is the subject of Ground 10:

“His Honour erred in admitting the oral evidence of Robert Damiani which characterised the meaning and effect of the R & K Donnelly Pty Ltd contract inconsistently with the terms of the written contract itself, in breach of the parole (sic) evidence rule.”

46 In written submissions, senior counsel for Eastside contended that, “his Honour allowed the plain written terms of the contract to be substituted by Mr Damiani’s evidence that R & K Donnelly was retained to install and remove jetmesh”. The written contract between Waco and R & K Donnelly constituted the entire agreement between the parties and therefore conclusively stated what the terms of the contract were: Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348.” The primary judge, it was said, should have not looked beyond the written contract to discover what R & K Donnelly agreed to do and should not have allowed “the oral characterisations of the meaning and effect of its terms”. (Orange 25.J-P)

47 The parol evidence rule excludes extrinsic evidence (except as to surrounding circumstances), including direct statements of intention (except in cases of latent ambiguity) and evidence of antecedent negotiations, to subtract from, add to, vary or contradict the language of a written instrument: Codelfa Construction Propriety Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 per Mason J at 347. In Gordon v MacGregor (1909) 8 CLR 316 at 323 Isaacs J cited the speech of Lord Blackburn in Inglis v John Buttery & Co (1878) 3 App Cas 522 at 577 (in turn, citing the observations of Lord Giffard with approval) as perhaps the most authoritative statement of the principle:

“… The very purpose of a formal contract is to put an end to the disputes which would inevitably arise if the matter were left upon verbal negotiations or upon mixed communings, partly consisting of letters and partly of conversations. The written contract is that which is to be appealed to by both parties , however different it may be from their previous demands or stipulations, whether contained in letters or in verbal conversations.” (Emphasis added)

48 Counsel for John Holland and Waco Kwikform submitted that the reported cases suggest, by omission, that the rule has only ever operated in the context of an issue requiring identification of the terms of an agreement between parties who are the parties in dispute. Counsel referred to The King v The Inhabitants of Cheadle 110 ER 306, in which Lord Tenterden CJ said:

“… the parties to the deed might be estopped by it from saying that this was not a purchase for a money consideration; but the parish officers, who are strangers to it, are not.” (At 308)

In the same case Parke J said:

“It is quite clear, that although the parties to this deed were estopped by it, strangers were not, and consequently the parish officers might shew the real nature of the transaction.” (At 308)

49 On the hearing of the appeal, senior counsel for Eastside, while maintaining ground 10, said this:

“May I say as to that having read the submissions of the third and fourth respondents … and it does seem that there is very little authority on the point because obviously most cases that arise concerning the parol evidence rule … there is a small amount of authority, an old English case that my learned friend Mr Sheldon has referred to and it appears a South African case that’s referred to in the footnote which does seem to suggest that the parol evidence rule does not apply in the circumstances in which we’ve asserted.” (T’cpt 1.48-2.07)

50 These proceedings were not between R & K Donnelly and Waco Kwikform. The parol evidence rule did not operate to preclude Mr Kazic in his action in negligence against Eastside and others from leading evidence to establish that R & K Donnelley were engaged in installation and dismantling of jetmesh at the site (and that Eastside were engaged in dismantling the scaffolding at the site).

51 In any event, it is to be observed that the evidence of Mr Damiani did not qualify the terms of the written contract between Waco Kwikform and R & K Donnelly. Mr Damiani was the contract supervisor of the contracts with Eastside and with R & K Donnelly. In each case the contract provided for the subcontractor to perform the works in accordance with the program “as stipulated by Waco Kwikform from time to time” (cl 2(b)). There was no inconsistency between Mr Damiani’s evidence of the work done by R & K Donnelly under its contract and the terms of the contract.

52 The recourse to the parol evidence rule was misconceived. The evidence was correctly admitted.

53 Ground 11 contends that the primary judge erred in drawing a Jones v Dunkel inference against Eastside “in circumstances where there was no evidence that required [it]…to make an answer”. This complaint arises from the concluding portion of paragraph [19] of the primary judge’s reasons that are set out at [17] above.

54 In the written submissions filed on Eastside’s behalf in support of ground 11, it was contended that:

“[28] In holding that that was the only inference which could be drawn involved an impermissible choice between competing probabilities: Luxton v Vines (1952) 85 CLR 352. In Holloway v McFeeters (1956) 94 CLR 470 Dixon CJ said (at 477), ‘(An) inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them.” The evidence established that a number of organisations could have been responsible, or, in other words, it was equally probable that another organisation was responsible, one of which being R & K Donnelly.” (Orange 23.D-J)

55 This submission should be rejected. It overlooks the fact that there was direct evidence that the persons dismantling the scaffolding components on the site were the employees of Eastside.

56 There was a substantial body of circumstantial evidence pointing to Eastside as the employer of the negligent scaffolder, in addition to the direct evidence. There was no error in his Honour reasoning that it had been open to Eastside to call evidence to contradict the inference that it was the employer and that its failure to do so was a circumstance which favoured drawing the inference: Jones v Dunkel (1959) 101 CLR 298 per Menzies J at 312. His Honour did not use Eastside’s failure to give evidence to make up any deficiency in Mr Kazic’s case. Ground 11 should be rejected.

57 The final challenge to the primary judge’s finding on liability is advanced in ground 12, which asserts that his Honour failed to give adequate reasons. Eastside complains that his Honour failed to explain why the evidence of the clothing worn by the scaffolders and the number of men involved in the operation was “equivocal”. It also complains that his Honour failed to refer to submissions made on its behalf concerning the number of subcontractors on the site and the mixing of trades.

58 The requirements of an adequate statement of reasons are as stated by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442-444. In my opinion, his Honour’s reasons fulfil each of the elements that Meagher JA identified in that case. The judgment is a logical and concise statement of the issues that the parties presented for determination, the evidence that was led, the findings made upon that evidence and the application of the relevant principles of law to those findings.

59 His Honour summarised the submissions made by Eastside, noting (Red 72.G-N) that there were workers from other companies who were mixing trades on the site (referring to Eastside’s written submissions at para 9). (Red 72.N) His Honour explained his acceptance of the evidence of Robert Damiani and referred to the documentary evidence that Eastside employees were working on the site on the day of the accident. (Red 72.N-S) His Honour said that the evidence of the clothing worn by the scaffolders and the number of men involved was equivocal. For the reasons that I have set out above, this characterisation was apt. It was not necessary for his Honour to explain in greater detail his reasons for finding that Eastside was the employer of the negligent scaffolder. There is no substance to the challenge to the sufficiency of the primary judge’s reasons.

The apportionment

60 Eastside complains that his Honour erred in apportioning 75 per cent of liability for Mr Kazic’s injury to it. Alternatively, it asserts that the primary judge’s reasons are inadequate to explain the determination.

61 The primary judge found that Waco Kwikform had retained a supervisory role with respect to the dismantling and removing of scaffolding. His Honour found that it had failed to take appropriate steps to prevent or minimise the foreseeable risk of injury, and was in breach of its duty of care to workers on the site, thereby contributing to the injuries sustained by Mr Kazic. (Red 73.H-K) John Holland, as the head contractor and occupier of the site, was responsible for the coordination of the interdependent activities carried out on the site, and was ultimately accountable for ensuring that the systems and the manner of their exercise were reasonably safe and not carried out in a way that created a risk of foreseeable injury. His Honour considered that John Holland was either aware, or should have been aware, of the unsafe means employed to stack the scaffold components and that it was in breach of its duty of care to workers on the site, thus contributing to the injuries sustained by Mr Kazic. (Red 73.O-T) His Honour held that the practice of stacking scaffolding components against the wall had gone on unchecked for some time and, accordingly, that Mr Kazic’s employer, Capital Constructions, must take some responsibility for the accident. (Red 73.Y)

62 Against these findings, his Honour considered how liability should be apportioned. He said this:

“[32] Various submissions were made as to the apportionment of responsibility as between the various defendants. These reflected, naturally, the duty of counsel making them to minimise their client’s exposure, and in the case of Mr Kazic, to minimise the adverse impact wrought on plaintiffs by s 151Z of the Workers Compensation Act 1987 (NSW).
[33] I approach the task of apportioning responsibility between the defendants liable to Mr Kazic having regard to the following principles. It is not necessary to show that the precise event that resulted in the injury was foreseeable: Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12]. It is only necessary to consider whether it was reasonable to foresee in a general way the kind of thing that occurred: Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630. And the absence of past mishaps does not entitle a defendant to ignore safeguards against dangers: Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 at [128].

[34] Apportionment is to be approached not as a question of principle, or of positive findings of fact or law, but as a matter of proportion, of weighing considerations, of balance and relative emphasis. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds: Liftronic Pty Limited v Unver [2001] HCA 24 at [2].
[35] It is clear, in this case, that the major part of responsibility for the accident is to be visited upon the scaffolders who were directly responsible for Mr Kazic’s injuries, and therefore upon their employer, Eastside Scaffolding. In my view, that company should bear 75% of the responsibility.
[36] More problematic is the division of the remaining 25% of responsibility amongst the other defendants.
[37] In my view, having regard to matters of proportion, balance and relative emphasis, the employer and the head contractor should be required to bear minimal responsibility. Wako Kwikform, on the other hand, was more directly involved, having regard to its overall responsibility for the dismantling of the scaffolding, and the role required of Mr Damiani to ensure the work was done safely. I therefore apportion 15% responsibility to Wako Kwikform and 5% to each of John Holland and the Capitol Construction Group.
[38] For these reasons I find that it is just and equitable that the contribution of the respective defendants should be as follows:
GIO Workers Compensation (NSW) Ltd (First defendant) 5%
John Holland Pty Ltd (Second defendant) 5%
Waco Kwikform Pty Ltd (Third defendant) 15%
Eastside Scaffolding & Rigging Pty Ltd (In Liq) (Fourth defendant) 75%
100%”
(Red 74-75)

63 Eastside acknowledged that apportionment between defendants is a discretionary determination about which reasonable minds may differ. Its position was that the apportionment of 75 per cent of the liability to it and only five per cent to the employer bespoke error of the type described in House v The King (1936) 55 CLR 499 in the joint reasons at 505:

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

64 Eastside made the following submissions in support of the contention that a proper exercise of the discretion should have led to a substantially reduced apportionment of liability against it.

· Capitol Constructions should have ensured that its employees were not required to carry out their duties in the same area as workers engaged in the dismantling of scaffolding;

· John Holland, as the head contractor, had the authority to direct where and when trades could work. Its supervisors were present on the morning of the accident. It had complained to Waco Kwikform about delays in meeting the timetable. The primary judge found the work was being done “somewhat hurriedly” (Red 71.F). The haste may be thought to have been caused by the pressure that it had applied. John Holland was under a duty to take reasonable care for the safety of each person on the site, and apportionment of five per cent of responsibility wholly failed to reflect its role, knowledge and capacity as head contractor to direct the separation of the trades.

· Waco Kwikform was in the position of a head contractor, with the responsibility of arranging the safe movement of persons on that part of the site over which it had possession. It had taken no steps to segregate the contractors working for it or otherwise to give directions with respect to safety measures.

65 The primary judge stated concise reasons for his conclusion that each of the defendants was negligent. In holding that Eastside bore the major part of the responsibility for Mr Kazic’s accident, his Honour was took into account Eastside’s responsibility for the unsafe system for moving and stacking the components inside the building and its liability for the negligent act of the scaffolder.

66 The evidence of Mr Husic was that as the components of scaffolding were brought inside the building they were placed on the floor. It was when the scaffolders reached the corner where Mr Kazic was working that the scaffolding was lent up against the wall. (Black 68.S-69.C) Mr Husic’s evidence continued:

“A. Whilst I was talking to him the other guy was starting to stack them vertically against the wall and then he was hit when I looked at him I saw several scaffolding parts were lying on the floor and some of them are leaning against the wall.
Q. So am I right in understanding your last answer to mean this, as you were talking to Mr Kazic somebody started to lean scaffolding pieces up against the wall?
A. Yes, the worker was taking this scaffolding parts from the outside.
Q. How long was it from the time that you saw that worker put the first piece of scaffolding up against the wall until you realised that Mr Kazic had been injured?
A. I didn’t measure the time I could have talked to Mr Kazic for a minute or so.” (Black 70.D-J)

67 Mr Krasnic said:

“Q. Having been passed to the inside of the building the scaffolding was being put on racks. Is that right?
A. Well that’s how it was done. Like, the one guy working on the outside and pass it to the guy who was inside.
Q. Isn’t the situation that it was not until the men passing the scaffolding into the building reached the corner where Mr Kazic was working that they leant any of that scaffolding up against the wall?
A. I know that long before Mr Kazic was insured (sic. injured) that guy was stacking, leaning parts of scaffolding against that wall, long before he was injured.
Q. When you say long before what do you mean?
A. 10/15 minutes before it happened.” (Black 90.R-Y)

68 I accept the submissions made by John Holland and Waco Kwikform that it was open to the primary judge to consider the scaffolder’s casual act of negligence to have been significant in the assessment of Eastside’s responsibility for Mr Kazic’s injury.

69 His Honour understood that the task involved, “a matter of proportion, of weighing considerations, of balance and relative emphasis”. (Red 74.V) This Court is only authorised to intervene in a case in which no error in the exercise of discretion is identified if it is satisfied that the determination was unreasonable or plainly unjust. I am not persuaded that his Honour’s determination can be characterised in that way.

Damages

70 Mr Kazic was 34 years of age at the time of the accident. He was 40 at the date of trial. In addition to the injury to his head, a cut to the left forehead, Mr Kazic alleged that he sustained injury to his neck, back, right shoulder and left leg as the result of being struck by the scaffolding. He also claimed that he had developed a psychological condition as the result of his injuries. Mr Kazic went back to work following the accident after a period of 7 – 10 days. He was placed on restricted duties. He complained of continuing headaches and persisting pain through his upper body and, subsequently, in his lower back. He said that the pain and discomfort became increasingly severe until he was no longer able to cope. On 30 October 2002, eight months after the accident, Mr Kazic stopped working. He had not worked again, save for a short period in March 2004, when he unsuccessfully attempted to work at Lowes. Throughout the period from 1 November 2002 to the date of the trial he was in receipt of weekly workers’ compensation payments on the basis of total incapacity. Mr Kazic’s case at trial was that he would never be able to work again.

71 The primary judge’s findings relevant to the assessment of damages are summarised below:

i. Mr Kazic suffered minor and temporary injuries to the head. The consequences of the concussion had resolved within weeks of the accident, with no continuing problems or symptoms attributable to any neurological aetiology relating to the head; (Red 76.G-I)

ii. Mr Kasic suffered some serious soft tissue injuries in his accident, and these more probably than not persisted for some considerable time, possibly as long as several years. The effects of these injuries had resolved by the time expert specialists began to examine Mr Kazic in relation to the claim in 2005;

iii. Any symptoms or problems in the left leg could only be attributed to pre-existing problems, more probably than not due to underlying degenerative problems; (Red 78.S-T)

iv. So far as the neck, shoulders and low back were concerned, any symptoms from 2005 on were attributable either to pre-existing or underlying conditions; (Red 78.U-V)

v. Mr Kazic developed a depressive condition which overlay his physical problems. The psychological condition was an adjustment disorder, which was secondary to Mr Kasic’s pain, inability to work and to provide financial support for his family, with consequential distress, worry and anxiety, associated with feelings of hopelessness and worthlessness; (Red 80.O-Q)

vi. There were strong indications for improvement in the psychological condition, particularly once the litigation was at an end;

vii. As a result of the accident, Mr Kazic suffered from disabling symptoms and was incapacitated for work from the time he left work in October 2002 until the end of 2005. He may have experienced continuing problems beyond that date, but these were not as the result of the accident. There was no disability or incapacity since 2005 of orthopaedic or neurological origin that was attributable to the accident; (Red 78.W-Y)

viii. Notwithstanding that the physical effects of the accident had ceased by 2005, the psychological consequences of it persisted beyond that time, incapacitating Mr Kazic for work from that time until the date of trial. The effects of the accident were not such as to render Mr Kazic totally and permanently incapacitated for work. Mr Kazic retained a substantial residual capacity to earn. Mr Kazic had ongoing physical problems, which were unrelated to the accident. From a psychological viewpoint, the ongoing stressor was no longer due to the accident. (Red 80.V-X)

72 His Honour assessed Mr Kasic’s past economic loss in the amount of $281,570: weekly loss of wages ($900 net) from 1 November 2002 to the date of trial (254 weeks), including $20,860 in lost superannuation contributions, and $30,110 for Fox v Wood.

73 For the purposes of s 13 of the Civil Liability Act 2002 (NSW) his Honour found that Mr Kazic would have worked in the same or similar employment, at similar levels of seniority and at similar levels of earnings for a further 10 years. However, as he aged the effects of his previous injuries and pre-existing constitutional conditions would have had serious adverse effects on his ability to work and his ability to earn. His earning capacity in the future would be impaired by reason of the effects of the accident to a moderate degree for a short period only and thereafter would be largely unaffected. Damages for future economic loss were assessed in the sum of $75,000 (which amount included a component for lost superannuation). This was discounted by 15 per cent for vicissitudes, leaving the sum of $63,750.

74 An amount of $85,075 was allowed for past out of pocket expenses, made up of the payment of workers’ compensation in the sum of $81,808.90, plus other unpaid expenses for pharmaceuticals and medical consultations, and an HIC charge.

75 Mr Kazic’s non-economic loss was assessed as being 27 percent of a most extreme case.

76 Eastside challenges the assessment of damages on the following grounds:

“16. His Honour erred in finding that the first respondent’s physical and psychological injuries (apart from a laceration to his head) were caused by the accident.
17. His Honour erred in assessing the first respondent’s entitlement to non-economic loss as 27% of a most extreme case.

18. His Honour erred in assessing the first respondent’s entitlement to past economic loss at $281,570.
19. His Honour erred in assessing the first respondent’s entitlement to future economic loss at $63,750.
20. His Honour erred in assessing the first respondent’s entitlement to past out-of-pocket expenses at $85,075.
21. Having made adverse findings as to the first respondent’s credit with respect to failing to disclose accurately his previously medical history, his Honour erred in giving weight to reports admitted in the first respondent’s case which proceeded on the erroneous factual basis that the first respondent had no relevant prior medical history.”

77 Each of the grounds challenging the assessment is repeated in the cross-appeal brought by John Holland and Waco Kwikform.

78 It is convenient to deal with the last ground first, since it is prominent to the way Eastside and the cross-appellants challenge the individual heads of the award.

79 At trial a strong attack was made on Mr Kazic’s credit. He had been a patient of the Barbra Street Medical Centre in the years 1996 to October 2001, and on four occasions in this period he had reported back or neck pain. Following the accident Mr Kazic sought treatment from Dr Pope, a doctor whom he had not previously consulted, and he did not disclose to Dr Pope, or to any of the medical practitioners who examined him in connection with his claim, that he had any “previous injury” to his neck or back. It was submitted that Mr Kazic had engaged in “doctor shopping”, deliberately concealing details of his medical history. In evidence in chief Mr Kazic said that, apart from a knee injury which he had sustained several years earlier, he had “no problem at all”. (Black 4.34)

80 Mr Kazic was referred by the Barbra Street Medical Centre to Dr Rozario on 25 March 1996 for complaints that included “low back pain” and “pain left knee”. The report prepared by Dr Rozario following the consultation is concerned with Mr Kazic’s left knee complaint, which is described as having been sustained seven years earlier in the course of a game of soccer. Subsequent attendances on medical practitioners in 1996 relate to the knee condition. (Blue 2 – 9) Mr Kasic told some of the medical practitioners who examined him in connection with this litigation of his history of knee injury. The evidence does not disclose that the four attendances for back and neck pain over the six years prior to the accident led to any investigation or treatment, save that on one occasion it appears that Mr Kazic was prescribed Voltaren. The omission to disclose a history of back or neck injury in these circumstances may not, of itself, deomonstrate deliberate concealment. However, Mr Kazic was cross-examined about these matters and the primary judge was critical of his credit.

81 His Honour said this:

“Before turning to examine the medical evidence it is important to observe that Mr Kazic had experienced considerable orthopaedic problems prior to the accident, some dating back to the war in Bosnia as a young man, others relating to soccer injuries. It is clear that he had various previous injuries and serious pre-existing constitutional problems involving various parts of his body, but in particular his neck and back. He was, however, less than candid about these matters in his evidence in chief, which reflected poorly on his credit. He also went to considerable lengths to conceal his true medical history from the doctors. This is starkly illustrated by the detailed Table in the written submissions of Eastside Scaffolding (para 11). This colours the various medical opinions, particularly those that were heavily reliant on subjective complaints.” (Red 76.R-V)

82 In light of the asserted concealment and his Honour’s findings, it was submitted that his Honour should have placed no weight on the reports of the orthopaedic specialists or the psychiatrists and psychologists. It flowed from this submission that it was an error to have found that Mr Kazic suffered any physical or psychological injury in the accident (save the cut to his forehead).

83 His Honour made a careful assessment of the medical evidence and rejected much of it on the basis that the doctors had not been given an accurate history. His critical finding was that Mr Kazic suffered soft tissue injury to the neck, shoulders and back, which probably lasted for several years but which had resolved by 2005. This finding was based on the opinion of Dr Bodel, an orthopaedic surgeon, who was qualified by GIO Workers Compensation.

84 Dr Bodel examined Mr Kazic on 2 May 2005 and on 13 February 2007. In his first report Dr Bodel recorded a history including that Mr Kazic had not suffered injury involving the head or neck prior to the accident and that he had been “quite well”. (Blue 550.G-H) He considered that Mr Kazic suffered an injury to his neck and back and right shoulder in the incident, and that he had improved over time, but that he had not completely recovered. (Blue 551-E) His Honour considered that Dr Bodel had been influenced in coming to his opinion by the inaccurate history. He observed that Dr Bodel had shifted ground quite considerably in his second report in light of other reports with which he had been briefed.

85 In his second report Dr Bodel said this:

“COMMENT ON RELEVANT DOCUMENTATION
I have carefully perused the documentation provided. This includes a medical report from Dr Martin Jones, a sports physician and this is dated 20 December 2002. He concludes that this gentleman has ‘ abnormal illness behaviour ’ and I would agree that this gentleman’s clinical presentation today does demonstrate probable signs of medical inconsistency between the objective findings of physical abnormality and his clinical presentation.
A letter from Dr Darveniza dated 30 January 2003 is noted. He felt that there was genuine ongoing pathology in the neck and in the back and in the left leg and right arm. I can find no objective sign of ongoing rateable pathology on clinical testing today.
An assessment by Dr Evans dated 08 January 2003 is noted. He found some rateable pathology at the time of that assessment.
In June 2004 he has given a DRE Cervical Category II rating and a DRE Thoracic Category II rating as well as a DRE Lumbar Category II rating. He has assessed the left shoulder also as having a positive rating. On clinical testing today I am unable to confirm those continuing levels of impairment.
As assessment by Dr Lewin dated 06 May 2005 is noted and that is a psychiatric assessment which is outside my level of expertise.
An assessment by Dr Fearnside dated 20 May 2005 is noted and he confirms the history of ongoing complaints in the neck and the shoulders and the back. He observes that there is some degenerative change and he has assessed a DRE Cervical Category II rating.
DIAGNOSIS
This gentlemen suffered a soft tissue injury to the head and neck and shoulder girdle region as well as the back in the incident that occurred at work on 23 February 2002.
PROGNOSIS
This gentleman’s overall prognosis is reasonable. He does have some underlying degenerative change and that will cause intermittent spinal discomfort.
OPINION
Mr Kazic suffered a soft tissue injury to the neck and shoulders and the back in the incident that occurred at work on 23 February 2002. On clinical testing today there is significant medical inconsistency between his level of complaint and any objective findings of abnormality that I can detect. He has some mechanical symptoms in the neck and back associated with minor degenerative change but I see no clinical indication that the accident on 23 February 2002 caused major structural damage in the neck or the back.
The soft tissue injury caused by the accident on 23 February 2002 has now resolved in my view and ongoing complaints relate to constitutional factors. He should be capable of a return to moderate manual tasks although he would have difficulty with work as a gyprocker. His ability to find work on the open labour market has not been compromised by this injury but he does have underlying degenerative changes which will make it difficult for him to work in his pre-accident activities. He is capable of full time permanently modified duties and will need the assistance of a rehabilitation facility in order to find more appropriate work.” (Blue 555.I – 556G)

86 The opinion expressed in Dr Bodel’s second report was made in the light of material which alerted him to Mr Kazic’s “abnormal illness behaviour”. Dr Bodel’s own assessment in February 2007 was that Mr Kazic’s clinical presentation pointed to medical inconsistency between objective signs and clinical presentation. Dr Bodel nonetheless considered that Mr Kazic had suffered a soft tissue injury to the head, neck, shoulder girdle region and back in the incident.

87 The primary judge was not bound to reject Dr Bodel’s opinion because Mr Kazic had failed to give an accurate history to him: Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 at 87-88.

88 It is to be observed that at the point in the trial at which Dr Bodel’s reports were tendered, Mr Kazic had been cross-examined concerning his complaints of neck and back pain in the years 1996 to 2001. Dr Bodel was not asked to consider this further material. Nor was he required by any party for cross-examination.

89 I turn now to the challenge to his Honour’s acceptance that Mr Kazic’s psychological condition was caused by the accident.

90 Shortly after Mr Kazic stopped working in late 2002 he was referred by his general practitioner to a clinical psychologist, Wendy Bailey. She recorded his complaints of ongoing and persistent pain, chronic headaches, sleep disturbance, low energy, lethargy and reduced appetite. He expressed feelings of hopelessness and worthlessness. He described memory and concentration difficulties, breathing problems, irritability and mood swings, loss of libido, negative thinking patterns and excessive worry. Ms Bailey diagnosed an adjustment disorder with mixed anxiety and depressed mood. Mr Kazic’s symptoms persisted over the course of a number of counselling sessions.

91 Mr Kazic was seen by Dr Zepinic, a consultant in psychological medicine, who also undertook therapy sessions with him. Dr Zepinic diagnosed an adjustment disorder with mixed emotional features, secondary to Mr Kazic’s physical injuries and incapacity for work. It was not clear how many times Mr Kazic attended therapy sessions with Dr Zepinic, but he told Dr Sachdev in August 2004 that he had been seeing a psychiatrist fortnightly for 18 months.

92 On 18 August 2004, Dr Sachdev, Professor of Neuropsychiatry at the University of New South Wales, saw Mr Kazic at the request of his solicitors. Dr Sachdev commented that Mr Kazic did not report a loss of consciousness at the time of the accident, nor any period of amnesia after the injury, and that, by conventional criteria, Mr Kazic had sustained “very mild brain trauma which manifested in the form of a ‘dazed’ mental state”. (Blue 319.E) Dr Sachdev commented that there was no report that Mr Kazic sustained any direct injury to the neck or back, although he considered that the weight of the falling object was likely to have led to an acute flexion of the neck and possibly the back. (Blue 319.F-G)

93 Dr Sachdev reported that Mr Kazic gradually developed psychiatric symptoms, which had been more pervasive in the last year (2004). Mr Kazic attributed these symptoms to the persistence of his pain, his loss both of work and a role in life, financial pressures and his bleak assessment of the future. His biggest loss was of his job, which had resulted in a substantial reduction in income. He reported difficulty in managing and that he did not see a way out of his predicament. He said that he and his wife had put their house on sale because he could no longer afford the mortgage repayments. (Blue 321.J-O)

94 Dr Sachdev’s conclusions in his first report were as follows:

“The salient feature of his presentation is the chronicity of his pain syndrome, with little resolution and poor response to treatment. The pain appears to be out of proportion to the injury sustained or currently observable, and his presentation during the interview was suggestive of some dramatization of this pain syndrome. In such cases of chronic pain, it is not unusual for psychological factors to be quite important in the maintenance of the pain. These psychological factors, in his case, are likely to be the stress of migration, the disappointment of not achieving stable occupation, the threat of invalidity with the incident, and potential secondary gain from the disability. However, the fact that his income now is much below the level while he was working suggests that material gain is not understandable as a strong motivating factor.
His psychiatric symptoms are characterised by depression and anxiety which is best understood as a response to the chronic pain and the consequent disablement from an occupational and social viewpoint. These symptoms are however significant enough to cause disability in their own right. They are of moderate intensity. I agree with the diagnosis given previously of an Adjustment Disorder with depression and anxiety. In other worse (sic), this is a reaction to his pain and distress as well loss of occupational and social roles.
He did not have spontaneous complaints of cognitive problems, and the clinical assessment suggested mild deficits in attention and memory. These may well be due to the psychiatric problems and cannot necessarily be attributed to the incident.
His pain syndrome warrants an opinion of an orthopaedic surgeon or a pain specialist. However, it can be attributed to the work-related accident. He did not have pain before the accident and it has been consistently present since the accident. As I stated above, the backache is difficult to understand from the nature of the accident, but it is possible that he became and apprehensive after the accident and therefore was more prone to back injury from the work he did following the accident. Even though psychiatric factors appear to have been important for the persistence of the pain syndrome, the origin of the pain was with the accident. Mr Kazic, from his account, did not contribute to the accident by his negligence or lack of due diligence, and was in fact an innocent victim. The accident was therefore a substantial contributory factor to the injury.” (Blue 323.E – 324.D)

95 Dr Sachdev prepared a supplementary report, dated 31 July 2007, in which he said:

“My opinion in relation to the pain is unchanged from my last report. While pain is not my area of specialisation, my opinion is that his pain is out of proportion to the degree of injury he sustained. However, the onset of the pain is clearly related to the accident, and he attributes it to the accident as well. There are likely to be psychological factors in the persistence of the pain, but my understanding is that psychological intervention has not been successful. Chronic pain of this nature in the medicolegal setting often becomes chronic and poorly responsive to treatment. His level of pain is such that it would preclude him from gaining or maintaining employment in the open market. The usual experience is that such pain does not remit even after medicolegal issues have been satisfactorily resolved, although some better adaptation to the pain may occur. (Blue 328.T-329.C)
…
Mr Kazic has a mild depressive syndrome which is secondary to his pain syndrome and the stresses of unemployment, financial difficulties and poor relationship. (Blue 329.M-N)
…
Mr Kazic’s disability is chronic and likely to be persistent. It is possible that with intensive physical rehabilitation and psychiatric input, he will improve partially. The medicolegal settlement will assist in the process. However it is quite likely that some of his symptoms will be persistent even after this.” (Blue 330.P-R)

96 Mr Kazic was also assessed for medico-legal purposes by Dr Thomas Oldtree Clark. Dr Clark diagnosed a dysthymic disorder, persistent mild depression. Dr Clark disagreed with the opinions of those doctors who diagnosed an adjustment disorder. This was because an adjustment disorder may be cured when the stressor is removed but, in Dr Clark’s opinion, Mr Kazic’s condition was chronic.

97 John Holland qualified Dr Phillips, a consultant psychiatrist, who saw Mr Kazic on 24 June 2005. Dr Phillips considered Mr Kazic was mildly depressed, but that his symptoms were not sufficient to warrant a diagnosis of a major depressive disorder, dysthymic disorder, generalised anxiety disorder or post-traumatic stress disorder. At worst, in Dr Phillips’ opinion, Mr Kazic had a very mild adjustment disorder with mixed features. Dr Phillips commented on Mr Kazic’s histrionic and exaggerated presentation. In his opinion, the “relatively mild injury in the work incident” was of insufficient intensity to explain Mr Kazic’s ongoing physical and psychological symptoms.

98 The primary judge considered that Dr Phillips’ opinion was not consistent with his finding with respect to the orthopaedic picture. (Red 80.L) For this reason he rejected it. His Honour noted that the exaggeration and histrionics described by Dr Phillips were consistent with other evidence, including the report of Dr Sachdev. His Honour rejected Dr Clark’s diagnosis, preferring the diagnosis of adjustment disorder, which was attributable to stressors: Mr Kazic’s pain and his inability to work and to provide financial support for his family, with consequential distress, worry and anxiety and associated feelings of hopelessness and worthlessness. (Red 80.O-Q)

99 His Honour was mindful that Mr Kazic lacked candour in his consultations with the various doctors who assessed him in connection with the litigation. That fact did not require that his case be rejected in its entirety. His Honour’s assessment of the whole of the orthopaedic evidence was thorough. It is to be borne in mind that Mr Kazic had been in employment up until the date of his accident. His return to work had been accompanied by complaints of pain, leading to him giving work up in October 2002. From that time on he had attended counselling sessions both with Ms Bailey and later with Dr Zepinic, in which he complained of symptoms consistent with an adjustment disorder. Dr Sachdev was conscious of the suggestion of “some dramatisation of his pain syndrome”. It will be recalled that Dr Sachdev, in reviewing the psychological factors in Mr Kazic’s case, took into account potential secondary gain from the disability, noting that the reduction in Mr Kazic’s income suggested that this was not likely to be a strong motivating factor. It was open to the primary judge to accept the considerable body of medical opinion that pointed to Mr Kazic having developed an adjustment disorder as the result of suffering soft tissue injury in the accident.

100 In the submissions filed for John Holland and Waco Kwikform it was noted that the primary judge had been sceptical about the persistence of a physical basis for Mr Kazic’s psychological symptoms beyond 2004. (Red 78.R) As I understand his Honour’s reasons, he accepted that the adjustment disorder was a response to pain, loss of employment and the associated financial stress. The physical symptoms had resolved by 2005, but the psychological symptoms continued. This is explained in Dr Sachdev’s report. The primary judge approached the matter on a basis that may be thought optimistic having regard to Dr Sachdev’s prognosis. His Honour considered that Mr Kazic’s problems were likely to resolve after a relatively short period, partly as the result of the litigation coming to an end.

101 Counsel for John Holland and Waco Kwikform submitted that Dr Sachdev, and the other medical professionals who had commented on Mr Kazic’s psychological condition, were unaware of “the true position concerning the plaintiff’s post-injury activity in Perth”. (Orange 78.M-N) It was said that Mr Kazic’s ability to supervise the construction of his new home in Perth evidenced a significant capacity for work and demonstrated that, whatever his chronic symptoms, they had not prevented him from engaging in work.

102 At the date of the trial, Mr Kazic’s wife was living in Perth and Mr Kazic was living half of the time at his brother’s home in Wetherill Park and half of the time with his family in Perth. The family live about 30 kilometres from the centre of Perth. Mr Kazic had acquired a block of land in this vicinity and his wife, who appears to have obtained an owner/builder licence, was arranging for the construction of a home on it. An architect had been retained in connection with the project. It was not clear from the evidence whether the architect was supervising the project or whether the architect had merely been retained to draw up the plans. Mr Kazic said that when he is in Perth he would give instructions to the tradesmen if things needed to be changed. He did not himself do work on the construction.

103 The primary judge was mindful of the evidence that Mr Kazic was able to participate in supervising the construction of the new home. (Red 80.R) The evidence of the plaintiff’s involvement in this activity was not of such materiality as to require the rejection of the medical and psychiatric evidence.

104 In my opinion, it was open to the primary judge to assess Mr Kazic’s economic loss in the amount that he did. The related challenge in the written submissions on behalf of John Holland and Waco Kwikform with respect to a reduction in the out of pocket expenses falls with their contention that past economic loss should have ceased at mid-2005.

105 The award for future economic loss was also challenged. His Honour’s allowance of a buffer weighted in the short term was open. Dr Sachdev’s prognosis was guarded. His Honour’s assessment was an evaluative determination, which, in my opinion, cannot be said to be unreasonable. I would reject the challenge to the assessment: Moran v McMahon (1985) 3 NSWLR 700.

106 The appellant’s challenge to the assessment of Mr Kazic’s non-economic loss was dependent on acceptance of its submissions on causation. (Orange 38.D-E) Counsel for John Holland and Waco Kwikform did not press the challenge to the assessment of non-economic loss. In light of his Honour’s findings as to the soft tissue injuries and the consequential psychological condition in my opinion the assessment of non-economic loss as 27 per cent of a most extreme case was within the range of discretion.

107 For these reasons I propose that the appeal and cross-appeals be dismissed with costs.

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