George v Lifese Steel Erections Pty Ltd - [2003] NSWSC 1146

No judgment structure available for this case.

CITATION: George v Lifese Steel Erections Pty Ltd & Anor [2003] NSWSC 1146

HEARING DATE(S): 25, 26, 27, 29 August, 9, 10 October 2003

JUDGMENT DATE:
8 December 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) I find the first defendant to have been negligent; (2) I find the second defendant to have been negligent; (3) I do not find the plaintiff to have been guilty of contributory negligence; (4) I apportion twenty-five percent of the liability for the damage suffered by the plaintiff to the first defendant and seventy-five percent of the liability for the damage suffered to the second defendant; (5) I assess total damages as against the first defendant in the sum of $367,373.48; (6) I assess total damages as against the second defendant in the sum of $336,960.98; (7) The cross claim by the second defendant against Transfield fails, and Transfield is to have judgment on that cross claim entered in its favour; (8) The matter is to be listed on 19 December 2003 to enable the parties in the interim to prepare short minutes of appropriate judgments and ancillary orders; (9) Failing agreement, on that date the matter will be listed for further argument on a date then to be appointed.

CATCHWORDS: Industrial accident - actions against employer and entity to whom plaintiff's services made available - apportionment of fault. Damages - assessments under Workers' Compensation Act and Civil Liability Act.

LEGISLATION CITED: Civil Liability Act, ss 12, 13, 15A, 16, 18
Supreme Court Rules, Pt 8 r 11, Pt 20 r 4
Workers' Compensation Act

CASES CITED: Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231
Darlington Futures Limited v Delco Australia Pty Limited (1986) 161 CLR 500
Drake Personnel Limited v Workcover Authority of New South Wales (1999) 90 IR 432
Kondis v State Transport Authority (1984) 154 CLR 672
Leighton Contractors Pty Limited v Smith & Anor [2000] NSWCA 55
Lepore v State of New South Wales (2001) 52 NSWLR 420
TNT Australia Limited v Christie & Ors [2003] NSWCA 47

PARTIES :
Rabih George (Plaintiff)
Lifese Steel Erections Pty Limited (1st Defendant)
Lifese Pty Limited t/as Lifese Engineering (2nd Defendant)
Transfield Constructions Pty Limited (2nd Cross Defendant)
M. & C. Maxwell Pty Limited (in liquidation) (3rd Cross Defendant)

FILE NUMBER(S): SC 20430/99

COUNSEL: Plaintiff: D. Nock SC/S. Torrington
1st Defendant: J. McIntyre SC
2nd Defendant: L. Ellison (25-27 August), M. Windsor (9-10 October)
2nd Cross Defendant: E. Kennedy

SOLICITORS: Plaintiff: Barry F. Cosier & Associates
1st Defendant: Nevill & Edwards
2nd Defendant: Holman Webb (25-27 August), McCabe Terrill (9-10 October)
2nd Cross Defendant: Moray & Agnew

- 47 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Monday 8 December 2003

20430/99 RABIH GEORGE v LIFESE STEEL ERECTIONS PTY LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: In this cause Rabih George seeks damages from Lifese Steel Erections Pty Limited and from Lifese Pty Limited. Each of those defendants denies liability to the plaintiff and each of those defendants has cross claimed against the other. In addition, Transfield Constructions Pty Limited and M. & C. Maxwell Pty Limited have been joined in the proceedings as cross defendants. The last mentioned cross defendant does not appear and has, indeed, played no part in this litigation. The Court is not asked to consider making any orders in relation to the proceedings that were commenced by way of cross claim against that cross defendant.

2 The plaintiff alleges that he was injured when he fell in the course of his employment on 2 October 1996. Their names indicate some relationship between the defendants, and uncertainty in the plaintiff as to which of the two defendants was his employer was a factor prompting the joinder of both defendants. On the morning of the second day of the hearing, Mr McIntyre formally admitted that the plaintiff was employed by the first defendant. That defendant had entered into a contract with the second defendant to provide the latter with personnel for projects undertaken by the second defendant (see Exhibit 11).

3 Mr Windsor, on behalf of the second defendant, submitted that I should find, notwithstanding Mr McIntyre’s admission, that the plaintiff was employed by the second defendant. I shall consider that submission by Mr Windsor later.

4 The plaintiff gave evidence as to the circumstances in which he was injured. There is a real issue as to the precise instructions he had been given but not as to where he was when he fell and sustained the injuries that prompted this claim.

5 The worksite where the plaintiff was employed was at the premises of BHP at Port Waratah where a reline was being undertaken at the No. 4 blast furnace. The plaintiff commenced work at that site on 25 September 1996, so that the accident happened in the course of the second week during which the plaintiff was working at Port Waratah. He was working there as a tradesman’s assistant and his duties involved carrying and fetching tools for tradesmen and cleaning up scrap which accumulated as the welders on site performed their duties.

6 The plaintiff said that on the morning on which his accident happened, he was instructed by his superior to work at a location some distance from the ground. The superior was identified in evidence as Abraham Elomar, a director of the second defendant. The plaintiff said he was told to pick up scraps of steel in a steel bucket provided for the purpose and to bring that scrap down to ground level. The plaintiff was required to use a metal walkway which surrounded the furnace on which the work was being carried out. Before considering the plaintiff’s account as to how he came to be injured, it is necessary to provide some further description of the worksite.

7 The plaintiff’s accident was investigated by Workcover and a report following that investigation was admitted into evidence with the consent of all parties. It is disclosed in that report that in the course of the removal and replacement of the cooling system pipework for the No. 4 blast furnace work was done around the perimeter of that furnace. Evidence given by Mr Dalzotto, the project manager of Transfield on the site, satisfies me that there was a mantle approximately 900 mm wide welded to the furnace structure and that there was a void or gap 450 mm wide between the mantle and the walkway surrounding the furnace. That gap had to be covered for work on the furnace to be carried out because the work of the tradesmen required them to traverse the area where the gap was. I shall refer to what was put in the gap as “the cover”. The cover was made up of plywood sheets and some metal plates. The metal plates were required to cover areas where pipes ran between the mantle and the handrail along the inner aspect of the steel walkway. Fire blankets were placed across the cover to stop sparks from falling to lower levels.

8 I turn now to the plaintiff’s evidence in which he gave the following account as to how the accident occurred:

“Q. Did you receive some instruction from Mr El-Omar?
A. After the toolbox meeting I met him on the first level and he told me, he gave me this job which I fell in.

Q. What was the job?
A. He told me to go up and pick up scraps of steel.

Q. What were you given, anything, to pick these scraps of steel in?
A. A bucket.

Q. What sort of bucket?
A. A steel bucket.

Q. Now, you said you had to go up and pick up?
A. Yes, I remember I had to climb on scaffold. After that I had to walk on a walk way, and I was picking up all these pieces of scrap and bring back somewhere and tipping it.

Q. You had to climb down off the scaffold again, empty the bucket out and climb up?
A. Yes.

Q. Before that morning had you worked on that scaffolding before?
A. Not as far as I remember.

Q. When you were up on the scaffolding what did the walkway look like?
A. Was all covered by fire blanket. You are walking on it, it is only fire blanket under your feet.

Q. Tell us what happened?
A. As I was walking I past one or two welders or boilermakers working on pipe. It was very narrow. I passed them, I picked up all the scraps. Suddenly I felt I was trapped, then I realised I was falling and I kept falling until I smashed the ground.

9 A sketch, Exhibit 12, shows the area where the plaintiff claims to have fallen in the cover area.

10 The plaintiff made a statement, tendered in evidence, on the day following the accident:

“I was picking scrap around the mantle beam and had just walked past the boilermaker, Robert Peihopa, when I stepped on some fireproof matting which I thought had some decking underneath. All I can remember is hitting the lower level.”

11 The Workcover investigator took statements from a number of tradesmen working on the cover, and the statements of those tradesmen were admitted into evidence. Robert Peihopa said that he started work at 7.00 am on 2 October 1996. His work took him to the cover and he said he noticed the penetration was uncovered in the area where he was working. He did not attempt to cover it but, being aware of it, said that he positioned himself in such a way that he would not step back into it and so that others would have to stop before going around him. Kaijin Kenisciehad was a pipe fitter/welder and he said that he also was working on the cover area on 2 October 1996. He said that Robert Peihopa pointed out the gap beside him which had only the fire blanket over it.

12 The plaintiff when interviewed by the Workcover inspector said:

“I started working on the level above stoves 3 and 4 picking up scrap pipes and then went down to the stoves 3 and 4 level and continued to pick up scrap pipe. While picking up the scrap I walked around the mantle from the western side to the northern side with a bucket in my right hand and stepped behind a boilermaker who was working on the northern face. As I stepped past him I fell through the fire blanket leaving my bucket behind on the mantle. I fell approximately seven metres from the mantle and landed in front of the number 1 tap hole…”

13 I am satisfied on the evidence that the plaintiff fell through the gap in the cover which was referred to by the witnesses Robert Peihopa and Kaijin Kenisciehad. Unfortunately, the plaintiff was not alerted to the presence of that gap.

14 Plainly, the cover area constituted an unsafe work place at the time of the plaintiff’s accident by reason of the gap in the cover.

15 Mr Windsor submitted that the plaintiff had no business in leaving the steel walkway and ought not to have been on the cover through which he fell. Hence the issue of contributory negligence has been raised, and it is convenient to deal with this question now.

16 Reliance is placed upon the evidence of Mr Elomar to support the single head of contributory negligence that was pressed, namely:

“Failing to comply with verbal directions given by Mr Abraham Elomar to the effect that the plaintiff was to perform his work from the steel platform and that the plaintiff was not to stand on the platform between the furnace and the permanent steel platform.”

17 Mr Elomar, as a director of the second defendant, worked on the site throughout the time that the plaintiff was working there and, indeed, he described himself as the site manager organising the labour. The second defendant had nothing to do with the construction of the steel walkway of course, but it was concerned with the work area between that walkway and the furnace itself for the reason that this was the area where the tradesmen whose services the second defendant engaged were required to work in the removal and placement of the cooling system pipework for the furnace. There is an issue as to who put the cover in position, and I will address this later.

18 Mr Elomar gave evidence that he instructed the plaintiff to collect scrap in a bucket, but he said that he told the plaintiff he was to stay on the steel walkway and not to pass through the rail separating the inner edge of that walkway from the cover area. Whether the plaintiff was instructed to stay on the steel walkway was in issue because the plaintiff denied that he was given any such instruction.

19 I have considered the evidence in point closely. I shall not here refer to all of it but in the course of his evidence Mr Elomar had this to say:(T 69):

“I remember I told the three guys not to go there [referring to the three tradesmen’s assistants he said were working in the area].

20 Earlier, when he had made a statement to an investigator on 3 November 2000, Mr Elomar said:

“I emphasise that I specifically instructed Rabih George only minutes before his accident that he was not to enter the timber platform.”

21 Mr Elomar was cross examined in this Court about that statement made in November 2000 and was asked the following questions and gave the following answers (T 102):

Q. But you would agree with me your evidence here you only gave a general instruction?
A. To me, it a person to you, it is general, two different ideas.

22 On this question of whether the plaintiff was told not to go into the cover area, I did not find Mr Elomar’s evidence persuasive and no support is found for him on the issue of his instructions to the plaintiff in evidence of other witnesses. Mr Nock submitted that it would be unlikely that the tradesmen would have been expected to stop what they were doing to take off-cuts across to the walkway. It seems to me that there is some force in that submission. Moreover, I note in the statement of John Hibbert, a boilermaker working in the cover area, that he said he was cutting pipework off the corner of the furnace. He said he called for the plaintiff to come over and get the off-cut, but there was no response, and I draw the inference this is because by that time the plaintiff had fallen. However, what John Hibbert had to say about calling for the assistant to come and collect the pipe off-cut from him was inconsistent with a practice, if such there was, that it was for the tradesmen to cross the cover area to hand off-cuts to the assistant standing on the steel walkway.

23 It is for the defendants, of course, to prove contributory negligence, and proof of this involves my being satisfied on the balance of probabilities that Mr Elomar gave the plaintiff the instructions as to where he was to stand and which instructions the plaintiff has denied that he was given. The burden of proof on the issue of contributory negligence has not been discharged, and this defence fails. I am simply not satisfied that the plaintiff was given the instructions which Mr Elomar claims to have given him.

24 I turn to the issue of the liability of the defendants. Firstly, I consider the position of the second defendant.

25 Mr Windsor submitted that I ought to find no negligence by the second defendant. It was the responsibility of Transfield to construct the cover and it had been put in place. Somebody had removed the steel plate covering the gap through which the plaintiff fell and there was no negligence by the second defendant in being unaware that this had happened at the time of the plaintiff’s accident. The plaintiff was, after all, injured at the beginning of a shift. Mr Elomar gave evidence that he had made an inspection in the area and that the gap was covered by the fire blankets. It was unreasonable to contend that he ought to have been aware of the gap so concealed.

26 I do not accept those submissions. Mr Elomar said that he carried out an inspection in accordance with the system of work on the morning of the accident before the day shift work began (see Mr Elomar’s statement to the Workcover investigator, part of Exhibit B). He said he stepped up on the deck and walked all over it and to him it looked very safe. That evidence is not consistent with the evidence to be found in the statements of the other witnesses interviewed by the Workcover inspector. For instance, John Hibbert, the boilermaker working at the cover area, said that he noticed a difference at the start of the shift from the position when he had finished work the day before. He said there was dirt heaped up on the mantle and there were steel plates lying on the walkway. Robert Peihopa, to whose statement I have already referred, was aware of the gap in the cover and he drew the fact of its existence to his workmate Kaijin Kenisciehad. It seems to me, assessing all the evidence collected by the Workcover investigator that was placed before this Court, that had Mr Elomar made a proper inspection of the cover area he would have become aware of the gap in the cover through which the plaintiff fell. I find that there was a failure by him to carry out a reasonable inspection of the cover area, and this failure constituted a breach of duty owed to the plaintiff who was required to work in the area where the gap existed. Mr Elomar should have known of the gap and should have warned those sent to work in the area of its existence. Further, measures should have been taken to cover that gap before work began on the day shift. I am satisfied moreover that there is a causative connection between the negligence of Mr Elomar and the accident which the plaintiff suffered.

27 Nor do I accept the submission that it was the responsibility of Transfield to position and maintain the cover. The relationship between the second defendant and Transfield was governed by a contract. For reasons which I shall state when considering the second defendant’s cross claim against Transfield, it seems to me that the contractual obligation to construct and maintain the cover was an obligation which the contract placed upon the second defendant. In any event, the evidence establishes on the balance of probabilities that the second defendant did put the cover in place. I refer again to the statement of Robert Peihopa. He said on the day before the accident he was working at a position two levels above the mantle but when work finished at that level, he said:

“We…started bringing down the plywood covers, fire blankets and screens and steel plates. We set up the plywood covers over the penetration between the mantle and the bustle main walkway handrail. Then following that the screens and fire blankets were placed over the plywood to prevent sparks from falling to lower levels…”

28 Robert Peihopa was part of the workforce engaged by the second defendant. He was one of the tradesmen directly employed by Maxwell Engineering, a subcontractor to the second defendant, but his services had been provided to the second defendant along with those other Maxwell Engineering employees on site. Mr Maxwell, whose statement was Exhibit 7, said that he provided the second defendant with boilermakers, including himself. The workmen from the first defendant and from Maxwell Engineering provided the second defendant with its workforce on the site, and they all worked under Mr Elomar’s directions.

29 Robert Peihopa’s description of his involvement in the positioning of the cover accords with part of what Mr Elomar told the Workcover investigator in the interview, the record of which forms part of Exhibit B. In the course of that interview Mr Elomar said:

“This is always the case. We provide the scaffold deck with the fire blankets. Transfield did contribute as well because there was so much of it… We have to build a deck around the furnace and you can’t have curved timbers so we had to lay timbers around the furnace to close the gap… We had about ten men working around the back… Sometimes we have to nail the timbers together. Sometimes we have to lash them up and sometimes we use scaffold shields…”

30 John Hibbert in his statement (Exhibit 9) said he had been working at the furnace on 1 October 1996. He described himself as an employee of the second defendant. He had been involved on that day in transferring the plywood covers and fire blankets from the upper levels and he said the plywood covers covered by steel plates were in position when that transfer operation was carried out. He said in his statement that “all gaps between the plywood covers were covered with steel plates and a fire blanket laid over that.”

31 In the course of his cross examination in this Court , Mr Elomar said this about the construction of the cover:

“Q. Is it the case that as far as your recollection is concerned the construction of the timber platform was undertaken, in part, by employees of Lifese Engineering?
A. Yeah, well, mainly I want to clear something, on construction site if you stand here and fellow working here, you pass the planks to him but it doesn't mean you take responsibility because those guys passing the planks, they're not licensed scaffolders. At the end of the day Transfield build the scaffold and Transfield signed for it.

Q. Are you calling this piece of timber between the furnace and the metal walkway scaffold?
A. It is.

32 Mr Dalzotto was the project manager for Transfield on site and he gave evidence (T 67-68) as follows:

“Q. Just answer the question. Was it the case that the labourers, riggers and scaffolders employed by Transfield had the impart[?], responsibility or function, to affix a structure between the mantle and the walkway over the gap?
A. No.

Q. Was it the situation that the gap was an area over which Transfield organised people to affix structures?

OBJECTION (KENNEDY) (MISLEADING).

HIS HONOUR: Q. Do you understand you are being asked to focus on this area where the plaintiff fell, you are familiar with that area?
A. Yes, I am.

Q. And we are talking about the gap between the mantle and the walkway in that particular area?
A. Yes.

Q. Do you say it was the Transfield riggers or scaffolders that covered that gap?
A. That gap would have been covered by the subcontractor working in this area being Lifese Engineering. Transfield employers between scaffolding - our safe systems of work have platforms, but in areas of that sort of protection they did not do that. It was obvious that somebody was working in that area. It was their responsibility to ensure it was safe, but it was Lifese's work to cover in that area.

WINDSOR: Q. Do you have any file note and/or job sheet which you have refreshed your memory from in which it is recorded that that work that his Honour has just described was undertaken by Lifese Engineering people?
A. I have nothing with me, no.

Q. Is it not the truth of the matter you did not see that work being undertaken?
A. That's correct.

33 Mr Dalzotto’s evidence is not inconsistent with the evidence given by those tradesmen whose services were engaged by the second defendant as to the second defendant’s involvement in the placement of the cover. I refer in particular to Robert Peihopa and John Hibbert, and since the evidence of those two tradesmen has not really been challenged, I accept it. I am satisfied on balance that the second defendant undertook the placement of the cover over the gap prior to the plaintiff’s fall.

34 Who moved the steel plate thus creating the gap?

35 Once again, this issue was considered in the course of investigations by the Workcover investigator. John Hibbert, whose evidence I considered earlier, described the cover as in place on 1 October. He was asked whether he noticed anything different when he returned to the same spot on the following day and in response told the investigator what I have referred to earlier, namely that there was dirt heaped on the mantle and that some steel plates were lying on the walkway.

36 I also referred earlier to the statement obtained from Robert Peihopa, Exhibit 8. That witness referred to his participation on 1 October 1996 in the placement of the cover components, including the plywood covers and steel plates. It was on the following morning at the commencement of the shift that Mr Peihopa observed the gap in the cover.

37 I find on the balance of probabilities, having considered the Workcover investigator’s report and the statements which that investigator took from tradesmen working on the furnace that the plate covering the gap through which the plaintiff fell was moved during the nightshift commencing on 1 October and concluding on 2 October 1996. Mr Dalzotto said that it was his recollection that there was no subcontractor other than the second defendant working in the area where the plaintiff fell (T 69).

38 Mr Elomar in a statement tendered as Exhibit J expressed it as being his belief that it was nightshift workers who had created the hole. He said it was impossible for him to say who those nightshift workers were but he said:

“They could have been employees of either Lifese Engineering [the second defendant] or Lifese Steel [the first defendant]. It is even possible they were employees of Transfield or BHP.”

39 However, accepting as I do what Mr Dalzotto said, the evidence establishes on the probabilities that the only tradesmen who were carrying out work in the vicinity where this accident happened were the tradesmen engaged by the second defendant, and I think it probable that it was one of those tradesmen who created the hazard by disturbing the cover. Plainly the cover should not have been left in a disturbed fashion. That this was done affords further evidence of negligence for which the second defendant was vicariously liable.

40 In summary then, for the reasons stated, I find that the second defendant was negligent in the following respects:

(1) in the failure of Mr Elomar to carry out an appropriate inspection of the cover area before the commencement of the day shift on 2 October;

(2) in assigning the plaintiff to the task he was given absent such an inspection;

41 Moreover, I am satisfied that the negligence of the second defendant was causative of the harm suffered by the plaintiff.

42 Turning to the position of the first defendant, I find that defendant to have been the plaintiff’s employer, as Mr McIntyre conceded was the case. It is firmly established that an employer who operates a labour hire business, as I here find the first defendant to have done, does not avoid its non-delegable duty simply because its employees are sent out to work for somebody else: see Drake Personnel Limited v Workcover Authority of New South Wales (1999) 90 IR 432, Kondis v State Transport Authority (1984) 154 CLR 672, Lepore v State of New South Wales (2001) 52 NSWLR 420 and TNT Australia Limited v Christie & Ors [2003] NSWCA 47, in particular the judgment of Mason P at paras 63-70. The first defendant’s duty extended to the requirement that it exercise reasonable care in respect of the system of work provided and the safety of the workplace. The first defendant appears to have left it entirely to Mr Elomar to carry out any necessary inspections of the workplace and to determine the system of work under which the plaintiff served.

43 Mr Windsor submitted that I should find that the second defendant was the plaintiff’s employer, but I do not accept that this was the case. Nevertheless, I do find that in the circumstances in which the plaintiff worked at BHP the second defendant owed to him duties analogous to those arising under the employer/employee relationship. The second defendant, through Mr Elomar, exercised day to day control over the plaintiff in determining what work he should do and where he should do it. These are the circumstances in which I have found the second defendant to have been negligent in the various ways I have expressed.

44 How is fault to be apportioned between the two defendants for the purposes of the cross claims?

45 Mr Windsor submitted in the event that I should find both defendants to be liable, an element to be considered in assessing the fault of the first defendant is that the plaintiff was a relatively inexperienced employee, and it was put that this demanded more of the first defendant in the discharge of its duty of care than if it had sent to the workplace an experienced labourer. On the other hand, Mr McIntyre submitted that having regard to the circumstances in which this accident occurred, the plaintiff’s inexperience had nothing to do with the harm that he suffered. Moreover, Mr McIntyre submitted that finding as I have that the danger created by the gap was a danger created only during the course of the shift before the plaintiff was injured, it would have been difficult for the first defendant in the exercise of reasonable care to have taken effective measures to avoid the risk of the harm that befell the plaintiff. The first defendant is not an insurer of workplace safety, and there are many authorities to that effect: see the judgment of Mason P in Christie (supra) at para 49.

46 Mr McIntyre also drew attention to what he claimed to be breaches of statutory duty by the second defendant in the circumstances in which the plaintiff was injured. As to this, I am satisfied that the second defendant was in breach of statutory duty under reg 73(3) of the regulations under the former Construction Safety Act. I am satisfied for the purposes of that provision that the second defendant was carrying out construction work enlivening its obligation to comply with reg 73(3), and that it failed to provide means for securing the safety of the plaintiff working at a place from which he was liable to fall, and from which he did fall, a distance of more than 1.8 metres, specifically, some seven metres.

47 Whilst I consider the greater proportion of fault is attributable to the second defendant, due recognition has to be given to the non delegable nature of the first defendant’s duty of care. I have concluded in all the circumstances of this case having regard to the relative fault of each of the defendants for the harm suffered by the plaintiff, that it is appropriate to apportion twenty-five percent of the liability for the damage suffered by the plaintiff to the first defendant, and seventy-five percent of such liability to the second defendant.

48 This brings me to the cross claim which the second defendant pursued against the cross defendant, Transfield.

49 The first defendant did not pursue a cross claim against Transfield, and Mr McIntyre submitted that I would not find that Transfield was negligent in the circumstances in which the plaintiff was injured. However, Mr Windsor submitted that there was negligence by Transfield, since it was the head contractor with overall responsibility for the safety of the site and the operations being conducted. That responsibility was to be discharged by Mr Dalzotto, as the project manager, and by those subordinate managers whose duties Mr Dalzotto defined in cross examination, and also by Transfield’s safety coordinator on the site.

50 Transfield has pleaded in response to the claim for contribution or indemnity that there was a written contract between the second defendant and Transfield containing an indemnity provision in Transfield’s favour.

51 I find that there was a written contract between Transfield and the second defendant in the form of the document comprising Exhibit 14. The exhibit is a photocopy of a document and it bears no signatures, but I am satisfied by Mr Dalzotto’s evidence that he forwarded the contract document to the second defendant for execution under cover of a letter signed by him and comprising Exhibit 13. Mr Dalzotto said he signed the contract document, but not before the subcontractor had done so and not before the subcontractor had returned that document to him duly signed. Mr Dalzotto explained that he always required the subcontractor to execute the contract before he did because (T 58):

“If I sign it first they could get hold of the subcontract agreement, make some amendments without my realising it and they could use that.”

52 I accept Mr Dalzotto’s evidence and am satisfied by it that Exhibit 14 is an unsigned photocopy of the document executed by the parties to the cross claim.

53 Exhibit 14 describes the subcontractor as “Lifese Engineering Pty Ltd ACN 003 075 410”, whilst the second defendant is “Lifese Pty Limited”, trading as “Lifese Engineering”, Mr Windsor did not admit that Exhibit 14 was a contract entered into by the second defendant, but I am satisfied that it was. I note that the Corporation Search, Exhibit 20, identifies “Lifese Pty Ltd” as having the same corporation registration number as that set out in Exhibit 14, and that the search shows the business name of “Lifese Pty Limited” to be “Lifese Engineering”. I am satisfied that Exhibit 14 is the contract entered into between the second defendant and Transfield and that its terms govern their relevant relationship.

54 The contract document contains an indemnity provision in these terms:

“The subcontractor [ie, the second defendant] shall indemnify and keep indemnified the contractor [ie, Transfield], the client and their respective officers, employees and agents against all claims, demands, proceedings, liabilities, costs, charges and expenses arising as a result of any act, neglect or default of the subcontractor, its employees or agents related to its execution of the Works.”

55 Mr Windsor has submitted that the indemnity provision does not protect Transfield in relation to its own negligence and that the second defendant has no obligation under the contract to indemnify Transfield for the acts, neglect or default of the latter.

56 It is now well settled that contractual clauses are to be construed by giving them their natural and ordinary meaning: see Darlington Futures Limited v Delco Australia Pty Limited (1986) 161 CLR 500, and Leighton Contractors Pty Limited v Smith & Anor [2000] NSWCA 55. It seems to me, influenced in particular as I am by the decision of the Court of Appeal in the Leighton Contractors case, that the indemnity provision ought not to be construed so as to exclude a situation where Transfield was in part to blame for the relevant loss or damage. Such a narrow construction would involve reading into the clause after the word “arising”, the word “solely”. In Leighton Contractors that narrow construction was rejected: see the joint judgment of Mason P and Fitzgerald JA at paras 10-12, and the judgment of Meagher JA at para 28.

57 Once it is found, as indeed I have found here, that the claim brought by the plaintiff arises as a result of the negligence of the second defendant, the indemnity provision is enlivened for the benefit of Transfield.

58 In Leighton Contractors the Court of Appeal rejected a submission such as Mr Windsor has made in this case. In Leighton Contractors there had been a finding by the jury that the party seeking to rely upon the indemnity provision was sixty-five percent to blame and the contractor was only thirty-five percent to blame. Nevertheless, notwithstanding the extent of its own negligence, Leighton Contractors was held to be entitled to enjoy the benefit of the indemnity provision.

59 Mr Windsor next submitted that the indemnity provision did not apply because the plaintiff’s injuries did not come about by reason of the second defendant’s execution of the “works” as defined by the contract. It was argued that those “works” are defined in Schedule 2 of the contract, and did not include the activity which the plaintiff was performing at the place where his accident occurred.

60 I do not accept that submission. The task which the plaintiff was carrying out was a necessary activity associated with the discharge of the second defendant’s contractual obligations. The claim which the plaintiff brings, and the proceedings in which the claim arises, arise as a result of the negligence of the second defendant related to its execution of the works defined in the contract. The second defendant was required to remove and replace pipework, and the plaintiff was injured when he was carrying out a task directly associated with the removal of pipework. Hence I find that the plaintiff’s claim, and these proceedings, attract the right to indemnity contemplated by the provision set out in para 54 above.

61 Hence I am satisfied that Transfield is entitled to the benefit of the indemnity provision, and this being so the second defendant’s cross claim against it must fail.

62 I add, however, that I would not have been minded to find that there was negligence by Transfield had it become necessary to consider this question. The contract document, Exhibit 14, does not deal in specific terms with the obligation to provide and maintain the cover, but clause 11 imposed upon the second defendant the obligation to “supply everything necessary for the execution and completion of the subcontractor’s obligations under the subcontract.” Plainly, the second defendant could not carry out the work at the furnace unless the cover was first positioned and then maintained in place. It seems to me that there is much to be said for the submission advanced by Ms Kennedy that when one looks at the contract itself, the parties had in mind that the cover was the second defendant’s responsibility.

63 In any event, I have found that the second defendant did put the cover in place the day before the accident, and in the shift before the accident the person for whose acts the second defendant was vicariously liable removed that plate. It was the second defendant that sent the plaintiff to work then in an area that was unsafe. Whilst recognising the overall role of Transfield on this site, the evidence does not persuade me that the plaintiff’s accident was the result of any negligence by Transfield.

64 Under the contract, the second defendant agreed to provide and maintain current various categories of insurance, including public liability insurance. Clause 4.1 of the terms and conditions reads (so far as is relevant):

“The Subcontractor shall provide and maintain current during the execution of the Works the following insurances. The insurances specified under a) and b) shall be taken out in the joint names of the Subcontractor, the Contractor and the Client…

(b) Public Liability insurance to the value of five million dollars ($5,000,000), for any single occurrence, to cover the Contractor, Client, Subcontractor and their employees and agents for their respective rights, interests and liabilities to third parties for loss or damage to any property and injury (including death) to any person arising from or in connection with the execution of the Works by the Subcontractor. Such insurance shall also cover the use of motor vehicles and plant and equipment used by the Subcontractor on the Site.

(c) Workers Compensation insurance to cover the maximum extent of the Subcontractor’s liability under the Workers Compensation legislation of the State or Territory in which the Works are being undertaken.

The insurance policy shall be extended to indemnify the Contractor for the Contractor’s liability to persons employed by the Subcontractor.

The insurance shall be maintained until all work under the Subcontract, including without limitation remedial work, is completed.”

65 Transfield submitted that the second defendant failed to provide and maintain current a policy protecting it in categories (b) and (c). However, there was no evidence upon which I could make such a finding, and in the exercise of my discretion I did not consider I should grant the application made by Ms Kennedy to re-open her case in an effort to introduce evidence of breach. That application was made in the course of addresses after the absence of necessary evidence was drawn by the Court to Ms Kennedy’s attention.

66 For the reasons stated above, the cross claim by the second defendant against Transfield fails, and Transfield is entitled to have judgment on that cross claim entered in its favour.

67 I now proceed to the assessment of damages.

Damages

68 The plaintiff was born in Lebanon on 21 January 1978. He came to Australia for the first time as a child, after his father sought work here, but the family returned to Lebanon and the plaintiff completed his schooling there to year 11. He then undertook a course in Beirut, obtaining a certificate in air conditioning and he became fluent in English, French and Arabic. Then in 1996 he returned to Australia, where he unsuccessfully sought a position as an apprentice electrician. He worked in a chicken shop for a short time and then he worked as a tradesman’s assistant with Caltex for a short period. Thereafter he obtained the position which took him to the premises of BHP.

69 The plaintiff said that when he fell he injured his lower back at the top of the left buttock. He also injured his left arm and his right knee. He said that his left arm became swollen and he experienced much pain. He was taken to hospital, first to the John Hunter Hospital and then to Royal Newcastle Hospital. He said that he was detained in hospital for one day and one night. He was discharged with his left arm in plaster. On 10 October 1996 the plaintiff attended the Orthopaedic Clinic at Royal Newcastle Hospital where the plaster was removed for x-rays. These revealed a comminuted fracture of the left radial head with small pieces of bone displaced anteriorly . A fracture of the lunate bone in the left wrist was detected. A short arm plaster of Paris was reapplied to the left forearm. The plaintiff was not seen again at the hospital after 15 October 1996, at which time it was noted that the left arm was comfortable.

70 The plaintiff gave evidence that pain persisted in the buttock, in the right knee and in the left upper limb. He also described bruising to the left side of his chest and to the left thigh after his fall. His evidence was that he was seen by Dr Youssef, by Dr Siddiqui, by Dr Meakin and by Dr Guirgis. In 1997 the plaintiff said that he underwent physiotherapy treatment and in the years since then he says that he has experienced persisting pain in the left upper limb and in the back. He said that sometimes the back pain radiates to the left leg.

71 According to the plaintiff, he has continued to take medication in the form of pain killers and anti-inflammatory medication and this has been prescribed by a local doctor who, as I understand the plaintiff’s evidence, the plaintiff has been seeing regularly over the years. That general practitioner is Dr Jaam. No report has been forthcoming from Dr Jaam.

72 The plaintiff gave evidence that he has been depressed, but he said that in this regard he has improved in recent months.

73 The plaintiff is a married man with two young children.

74 The plaintiff has done little by way of work since his fall in October 1996. He said that within a short time after the accident he returned to work on light duties, doing supervisory work at the front of the site. However, this did not last long and he was sent home. He said:

“My boss told me ‘You cannot stay here. It is illegal for you to stay with the plaster.’”

75 The plaintiff said that a few months later he approached the first defendant for light work but the application was unsuccessful, and eventually he received a letter from the first defendant, dated 25 November 1997, advising of the termination of his services.

76 The plaintiff said that he undertook a computer course in September and October 1997 and he then underwent a period of rehabilitation, during which there was some attempt to find work as a console operator at a petrol station. That attempt was unsuccessful. The plaintiff said that he has also sought work as a shop assistant, but I must say that the plaintiff’s evidence left me with the impression that his efforts to find work over the past seven years have not been intensive. For instance, he acknowledged in cross examination that he did not try to obtain work in the year 2000 and he said that that was due to “my shortcoming”. Dr Jaam said he was unfit throughout 2001, so the plaintiff was not seeking work then. According to the plaintiff he has not tried himself directly to obtain work as a console operator.

77 The plaintiff kept a record of his applications for positions, (Exhibit H), and as I understand his evidence he was required to do so by the workers’ compensation insurer. The plaintiff said he was looking for work with restricted hours and it was in 2002 that he first thought of seeking work of the type which he is now undertaking. From the beginning of August 2003 the plaintiff has had paid employment of a clerical nature in an accountant’s office at Lakemba. He works three hours per day and is paid $169 per week gross. What the future holds in that employment is uncertain. The plaintiff said that three hours per day is as much as he can cope with because of pain in the left upper limb, and he also said that his back hurts if he sits for too long.

78 In assessing the significance of the injuries which the plaintiff suffered and any persisting disabilities, it is necessary, of course, to heed the medical evidence in this case. All such evidence has been presented in report form only, even though there are a number of doctors who have reported that they consider the plaintiff has been exaggerating.

79 The plaintiff has relied principally upon Dr Deveridge who saw the plaintiff in June 1999, in October 2002 and in May 2003. According to Dr Deveridge there has been little change in the plaintiff’s position over the past four years. In June 1999 Dr Deveridge summarised the plaintiff’s injuries as follows:

“1. Comminuted intraarticular fractures of the left elbow and left wrist joints – ongoing joint pain, stiffness, weakness, loss of function and dexterity.

2. Soft tissue injury to the left sacroiliac joint and lumbar spine – ongoing low back and proximal left leg pain and stiffness.

Impact type injury to right knee joint which may have damaged the medial meniscus – ongoing knee joint pain and stiffness.”

80 On 22 May 2003 Dr Deveridge reported:

“There has been no material change in your client’s condition since I last examined him. He continues to suffer from post fracture aches, pains, stiffness in the left elbow and left wrist joint, with consequent loss of strength and dexterity.

His low back pain is due to a chronic strain injury involving the left sacroiliac joint and to a lesser extent his lower lumbar spine.

He has sustained soft tissue injury to both knee joints, more on the right side where he may have a mild derangement.”

81 I observe that the plaintiff has been complaining about neck problems which Dr Deveridge opined to be related to the fall but that claim is not pressed by the plaintiff, and in any event I am not persuaded, looking at all the medical evidence, that the neck pain which came on a significant period after the fall was in any way related to it.

82 So far as capacity for work is concerned, as long ago as 3 June 1999 Dr Deveridge expressed the opinion that the plaintiff was unfit for all work for a period not exceeding six months and that thereafter he had a restricted capacity for work. Dr Deveridge said this in June 1999:

“He should avoid forceful, sustained and repetitive stress on the left hand, wrist and forearm. This will include heavy lifting, pushing, dragging and twisting actions. The back disability will restrict him from frequent bending, lifting, twisting and prolonged periods of fixed spinal posture. The knee joint injuries will result in minor restrictions, such as jumping, climbing, very frequent kneeling and crouching. However in light of his overall disability and restrictions, he is going to find difficulty returning to the work place. He requires further rehabilitation and retraining in order to find a light manual or sedentary type job.”

83 Reviewing the plaintiff’s position in October 2002, Dr Deveridge regarded the plaintiff then as having “reached a point of maximal medical improvement” and in May 2003 he wrote:

“He remains fit for limited and light physical work. The left elbow and wrist joints reasonably restrict him from heavy lifting, pushing, dragging and twisting actions with this limb. The neck, back and knee injuries have minor restrictions on repetitive bending, heavy lifting, awkward leg positions and prolonged periods of fixed spinal posture. He is in need of further rehabilitation and retraining, following which there would be reasonable prospects for him to return to the workforce.”

84 Dr Guirgis saw the plaintiff on 21 August 1997 and again in February 1998. In the view of Dr Guirgis on 23 September 1997 the position was as follows:

“The above accident resulted in the following injuries:

1. Post-traumatic symptoms in the left elbow following the healing of fractures of the head of the radius and coronoid process of the ulna that were treated conservatively. There was isotope scan evidence of early post-traumatic osteoarthritic changes within the elbow joint.

2. Post-traumatic symptoms in the left wrist following the healing of fractures of the left lunate and of the distal end of the left radius that were treated conservatively. Again there was isotope scan evidence of early post-traumatic osteoarthritic changes within the left radio-carpal articulation.

3. An injury to the left sacro-iliac joint and to the lumbar area of the spine in the form of musculo-ligamentous sprain\strain. In view of that MRI scans were arranged for further evaluation of the current situation. Such studies are safe to perform, have a high index of accuracy and in my opinion the most cost-effective investigatory tool available to help plan further management and predict a prognosis. This injury was treated conservatively. Surgical treatment is not indicated.

The patient remains unfit for activities that would require applying stresses to the spine or left arm.”

85 Dr Meakin assessed the plaintiff in February 1997 when he noted that the plaintiff’s main discomfort was associated with his left elbow joint where he lacked ten degrees of extension. Dr Meakin noted also that the plaintiff’s lumbar back pain was decreasing at that time and that the plaintiff was looking for selected working duties “which I am sure he will cope with.”

86 The plaintiff tendered reports from a general practitioner, Dr Siddiqui, from a physiotherapist, Mr Sawan, and from a psychological consultant, Onsy Mattar. I do not propose to record any of the content of those reports.

87 Dr Preston is a specialist physician who saw the plaintiff for the first defendant in February 2001. I quote from the doctor’s report:

OPINION:

I think he has referrable symptoms to the left leg from the lumbar spine. I did not find any significant demonstrable pathology within the left or right knees on examination. Though he does have some neck pain, I think this is unrelated to his fall and note that there was an 8-9 month interval between his fall and onset of his neck symptoms.

ATTITUDE

FITNESS

He should avoid any heavy lifting or repetitive bending.”

88 Dr Preston considered that the complaints referable to the left wrist, the left elbow and the low back were linked to the fall at work and that it was likely that the plaintiff would continue to experience discomfort in the left elbow and in the left wrist where he may develop arthritic changes. Dr Preston found it difficult to determine the likely cause of the low back pain.

89 Dr Scarf made an assessment of the plaintiff in 2001. He observed in relation to the left upper limb that joints were involved in the various fractures and that there was some restricted movement in the left elbow and tenderness in the left wrist. Apart from those sites. Dr Scarf found that there was little on examination by way of clinical evidence of continuing pathology, and Dr Scarf thought that the plaintiff was fit to resume work, stating

“He would be fit to work at a bench, in light stores or spare parts area. He should avoid any strain on his left wrist or elbow. Fortunately he is right handed and therefore any inability to fully supinate his left hand is not likely to get into trouble.”

90 Dr Scarf considered the prognosis for the left elbow and wrist to be uncertain in that the plaintiff “may develop some post traumatic degenerative changes at an accelerated rate”.

91 Dr Chen, a consultant in occupational medicine, assessed the plaintiff in September and October 2002. Dr Chen found that the fracture of the left elbow had healed with ten percent restriction in supination and that the left wrist fracture had united leaving residual tenderness around the site of the fracture. Dr Chen observed that there was no evidence to indicate significant pathology in the lumbar spine, and it was her opinion that the plaintiff was fit at the time of assessment for full time work, avoiding repetitive heavy forceful gripping with the left hand. In Dr Chen’s view, work of the nature carried out at BHP was unsuitable, but suitable alternative work

“would include work as a store person and in retail as a sales assistant. In a factory environment, he could work as a process worker, machine operator and factory hand. He could also work as a cleaner. In terms of previous work for which he has experience, he would be fit to work as a general hand in a chicken shop, cooking and selling chicken.”

92 I referred earlier to medical opinions that the plaintiff was exaggerating. Dr Muratore made an assessment in September 2002 stating that the plaintiff has

“global chronic pain which I believe is tinged with exaggeration and embellishment.

It is possible he has minor osteoarthritic change at the left elbow and left wrist joints. This should not prevent him from gainful employment.

In my opinion, he is fit for his pre-injury duties if he were willing to undertake these but it is unlikely we will convince this gentleman to return to any form of employment in the foreseeable future.”

93 Earlier, Dr Lee, consultant psychiatrist, made an assessment of the plaintiff in August 2000 and concluded that there was “a significant chance he is exaggerating his symptoms”. Dr Lee did not consider the plaintiff had any psychiatric disorder.

94 Dr White assessed the plaintiff in November 2002, recording that the plaintiff has “continued to complain of a litany of physically unexplained pain.” He said that the plaintiff’s presentation during his interview with him

“verged on the absurd. He stood up, sat down, moved the chair, sat cross legged on the floor, slouched on the chair, sat cross legged against the wall, and generally put his entire body through a wide range of movements with no plausible pain behaviour.”

95 In Dr White’s view the plaintiff had no psychiatric disorder and any disability was a matter for orthopaedic assessment.

96 Medical evidence was tendered by the second defendant as Exhibit 5. I propose only to refer to the report of Dr Silva and the report of Dr Bornstein. Each of these two reports follow very recent medical assessments.

97 Dr Silva is an orthopaedic surgeon and he examined the plaintiff on 22 July 2003. Dr Silva found that the plaintiff lacked the last five degrees of flexion and the last five degrees of extension in the left elbow and supination of the left forearm was limited to three-quarters of the normal range. There was limitation of flexion in the left wrist and also some limitation of extension. Examination of the back was relatively unremarkable. Dr Silva concluded that the plaintiff had some symptoms in the left elbow and in the left wrist and over the left buttock, although he noted that the plaintiff freely admitted that the low back was better. The plaintiff also had some symptoms in the neck, but as to this no claim is made that these are referable to the fall at work.

98 In Dr Silva’s opinion at the time he saw no significant difficulty for the plaintiff in doing the duties of a tradesman’s assistant or his duties as a clerk or a messenger boy on a full time basis. Dr Silva considered the plaintiff’s prognosis to be reasonably good, although the plaintiff might require the occasional analgesic for his residual symptoms. The plaintiff will not require any physiotherapy or orthopaedic operations.

99 Dr Bornstein is another orthopaedic specialist who made an assessment of the plaintiff on 23 July 2003. He examined the plaintiff’s back and found the examination to be “entirely normal”. When he examined the plaintiff’s knees there was no evidence of crepitus, no wasting in the thighs or calves and no effusion in either joint. There was no evidence of internal derangement within the knees. Dr Bornstein found slight loss of dorsiflexion in the left wrist but other ranges of movement were “reasonably full”. Dr Bornstein found the ranges at the elbow to be full.

100 Dr Bornstein’s conclusions in relation to the left upper limb were that the complaints of pain in the left elbow and of crepitus and of occasional locking in the elbow were consistent with the injuries he had suffered. Dr Bornstein did not find the plaintiff to have any abnormality in his lower back. In Dr Bornstein’s opinion the plaintiff may require removal of loose bodies in the left elbow, but there was no further treatment he could be offered for his left wrist. In Dr Bornstein’s opinion, the plaintiff, who is right handed, is fit for clerical type work and other office work.

101 Assessment of the extent of the plaintiff’s disabilities has to be undertaken without my having had the benefit of hearing any of the medical specialists. I approach my assessment of the plaintiff with some caution, particularly since I do not consider the plaintiff has used his best endeavours in the past to find work within his capacity. I am satisfied however that the plaintiff suffered significant injuries to his left wrist and to his left elbow. I am also satisfied that he injured his low back, but that the injury did not involve disc damage. Symptoms and restrictions referable to the back injury have gradually settled down. Having regard in particular to the most recent orthopaedic assessments undertaken by Dr Silva and by Dr Bornstein, I am not satisfied that the plaintiff has any ongoing disability in the back such as would prevent him from engaging in his pre injury work. Nevertheless, the plaintiff has a problem of some significance in the left upper limb that would prevent him from doing the heaviest forms of activity. Fortunately the plaintiff is right handed. I shall return to consider the plaintiff’s work capacity past, present and future shortly.

102 Because the assessment of damages as against the first defendant is governed by the Workers’ Compensation Act and the assessment of damages as against the second defendant is not so governed, it will be necessary for me to make two assessments.

103 I first assess damages as against the first defendant.

104 The first element in this assessment is an award pursuant to s 151G of the statute. Mr Nock submitted, particularly having regard to the injuries to the left upper limb, that the injuries sustained by the plaintiff should be categorised as extremely serious. Both Mr McIntyre and Mr Windsor joined issue with that submission. For the purposes of s 151G Mr Nock submitted that it would be appropriate to assess this case as calling for a proportion of thirty-five to forty percent of the maximum amount that may be awarded for non economic loss. On the other hand, both Mr McIntyre and Mr Windsor submitted that an appropriate proportion was of the order of twenty percent. Whilst I do not accept that the plaintiff’s injuries should be categorised as extremely serious, I must bear in mind that the plaintiff was a very young man when he was injured and he still has the prospect of a long life before him. The injury to the left upper limb was a very significant one and it seems to me that it is appropriate to award this plaintiff twenty-five percent of the maximum amount under s 151G. I therefore assess damages for non economic loss in the sum of $55,412.50.

105 The statute precludes an allowance of interest on any part of that sum.

106 It has been submitted on behalf of the plaintiff that a substantial allowance is warranted for past economic loss. The plaintiff was working twelve hour shifts and on the basis of such shifts six days per week was earning $804.62 per week. It was submitted that he ought to be treated as having been totally incapacitated until June 1999, and that his loss for this period is $108,784 at his pre-accident rate. Thereafter, it was submitted, he should be regarded as having an ability to earn but $200 per week-odd, and his loss on this basis from June 1999 to date has been calculated at $134,160. This approach to the claim for past economic loss would call for an assessment under this heading of $242,944. I do not accept that such an approach would be appropriate.

107 Contrary to the claim advanced by the plaintiff in respect of the past, Mr McIntyre, for the first defendant, submitted that the plaintiff has been fit for a wide range of work since early 1997 since which time his lost capacity has been measurable at a figure between $100 and $200 per week. Mr Windsor submitted that that more modest approach overstated the measure of the lost capacity. Recording these competing submissions emphasises the very real and difficult issue which loss of earning capacity presents in this case.

108 I accept that the plaintiff’s injuries were totally incapacitating for at least six months and that thereafter the plaintiff required rehabilitation and retraining to equip him to return to work. Unfortunately, as previously recorded, the first defendant offered him no work after he was sent away from the workplace with his limb in plaster. The plaintiff had some physiotherapy in July 1997 and he began, but did not complete, a computer course in September 1997. He said that it was at the end of 1997 that he started rehabilitation, and as to this he gave the following evidence (T13-14):

“Q. At this stage you had started some rehabilitation, is that right?
A. Yeah, in the end of 1997 I started rehabilitation.

Q. You completed the computer course? It was a fairly basic course?
A. Yes, but I couldn't complete all of it.

Q. You have had considerable rehabilitation. Do you remember what that was?
A. Yes, they did some key function test, I think they called it, to see what's my capacity. And they sent me off to some exercise, some gym to strengthen my muscles. And they were just - like, it's all like interviews, like seeing what should I do, what can I do, what can I not do. They want to look for proper job for me.

Q. During the course of the rehabilitation did you get offered any jobs? Were you given any jobs?
A. Yes. In the end of the course of rehabilitation they found me one park attendant job in Goulburn Street in city. And I went there for approximately maybe three days. But it wasn't suitable. I had to walk a lot downstairs and upstairs. It was five stories. They ask me to patrol it for 2 hours every day.

Q. What caused you trouble about that?
A. It was my - it gave me pain in my left back and it gave me pain in my knee.

Q. But which knee?
A. In my right knee. And later on it start in my left knee, cause of my back.

Q. Apart from that job were you given any other jobs while you were on rehabilitation?
A. No, no.

Q. I think you saw Dr Guirgis again in February of 1998?
A. Yes.

Q. And then you did not see another doctor, insofar as treatment is concerned, for your back or your arm till you saw Dr Deveridge in June of 1999, is that right?
A. I've seen Dr Maniam, once.

109 The parties are agreed that a not inconsiderable sum of $15,355.58 was expended on the plaintiff’s rehabilitation. Although the evidence as to the nature of rehabilitation undertaken and the duration of that rehabilitation is imprecise, it seems to me that by the beginning of 1999 the plaintiff should have been able to resume work.

110 Mr Nock submitted that the plaintiff should not be regarded as being ready to return to work until June 1999 but my assessment of the medical evidence does not persuade me that this was the case. It is not clear to me whether there was any regime of rehabilitation in place in 1999 which would have prevented the plaintiff from working from the beginning of that year. I note from Exhibit H, the plaintiff’s job search record, that he was presenting himself as a prospective employee from July 1997. There is no record of intensive application to that task, and, indeed, Exhibit H does not disclose any record of efforts undertaken between August 1997 and July 1998.

111 Be that as it may, I accept that the plaintiff would have found it difficult to re-enter the workforce, particularly having regard to his limited pre-injury work experience. The plaintiff had limited skills and he would not have found it easy to find a suitable position presenting as a person with a genuine disability in the left upper limb. I also accept that the plaintiff was continuing to experience pain in the low back throughout 1998.

112 For practical purposes I therefore propose to treat the plaintiff as being unable to work until 31 December 1998.

113 Whilst the plaintiff was earning at the time of his accident over $804 per week, his employment was only casual. The evidence of Mr Elomar was that the particular contract had some nine weeks to run. The plaintiff may thereafter have found other work promptly through the first defendant but there was no guarantee of this, nor was there any guarantee if he had found work in the industry that he would have had the opportunity to work those long hours that he worked with the first defendant, that is twelve hours per day six days per week.

114 It seems to me, bringing into account the casual nature of the plaintiff’s employment, likely interruptions to employment and the unlikelihood of the plaintiff being afforded the opportunity of working twelve hours per day six days per week throughout the period up to the end of December 1998, a measure of the compensable loss in this period can be determined by allowing him a weekly sum of two-thirds of his pre-injury rate. Hence I take a weekly figure of $536 (rounding the calculation off), and I assess the compensable loss between 2 October 1996 and 31 December 1998 at $62,712.

115 What has been the position since that time?

116 I find that the plaintiff has been fit for employment since 1 January 1999 and I am not satisfied that he has earnestly sought work since that time. I will not repeat what I wrote earlier about this. I find that the injury to the left wrist and the left elbow continued to restrict him in his work capacity, and the low back problem also added to his work restrictions in 1999 and thereafter for several years. By the time Dr Chen made an assessment in October 2002 I accept that the back condition had settled down and this, of course, was the opinion shared by Dr Silva and by Dr Bornstein in the more recent examinations.

117 Ever since the accident the plaintiff has been incapable of doing work involving heavy use of the left upper limb. Dr Chen’s assessment earlier recorded in para 91 outlines the sort of work I find the plaintiff to have been capable of doing, at least by the date of her assessment and since. I would add that the plaintiff is capable, and has been capable, of doing clerical work and the sort of work in which he has been gainfully employed since August last. I do not accept that the plaintiff could only do his present work for three hours per day. I am satisfied he could do such work on a full time basis if it was offered to him.

118 In determining what allowance to make since the beginning of 1999, I must bear in mind that the plaintiff has been unfit to resume work as a builder’s labourer with whatever opportunities for overtime that would have attended that sort of employment. Because of the plaintiff’s limited work experience before the accident and because of his limited skills, and restrictions referable to his injuries, it would not have been easy for him to obtain gainful employment and allowance has to be made for these features and the plaintiff’s disadvantaged position on the open labour market.

119 A schedule of average weekly earnings of Australian males drawn from the Australian Bureau of Statistics provides earnings figures in the “construction industry”, “wholesale trade”, “retail trade”, and “accommodation, cafes”. These range of $661 in the “construction industry” down to $393 for “accommodation, cafes”. Of course, it is not clear what is embraced in those various categories. For instance, in the category construction industry, this may include a variety of callings. The same may be said of the less well paid categories. I note that there is a difference of $261 nett between the “construction industry” figures and the “retail trade” figures, and an even greater difference of $268 nett between the “construction industry” figures and the “accommodation, cafes” figures.

120 For the period that the plaintiff has been gainfully employed since August last, he has been paid on average $197 per week, and has earned a modest sum, a little in excess of $1600. I do not overlook those earnings when I quantify the measure of the compensable loss as I find it to have been since 1 January 1999 at $200 per week. For the 251 weeks since 1 January 1999, I allow $50,200. Altogether then, I award for past loss of earning capacity the sum of $112,912.

121 The plaintiff is still a young man with some forty years of working life ahead of him. In the past the plaintiff has been restricted not only by his left wrist and left elbow but also by his low back. I accept the medical opinion that the low back condition no longer presents a problem from the point of view of his work capacity. The plaintiff in the past has been depressed but he said, and I accept, that that condition has improved. Once the litigation is behind him, I consider it likely that the plaintiff will adopt a more positive approach to seeking employment. On the other hand, there is the possibility of arthritic changes in the injured joints of the left upper limb producing symptoms.

122 At the present time the plaintiff would only have been early $510 per week in his pre injury work. Curiously, there has been a steady drop in earnings in that type of employment over recent years. In the year ended 30 June 2001 it is agreed that the plaintiff would have earned $638 per week nett if employed full time in his pre-injury work; in the year ended 30 June 2002, doing the same work, the plaintiff would have earned $526 per week nett; then in the last financial year, and presently, he would have earned $510 per week nett.

123 All the abovementioned considerations I bear in mind in arriving at a figure of $150 per week as reflecting my assessment of the plaintiff’s lost capacity for the future. The lump sum presently required to compensate for such a loss on the five percent tables to age sixty-five with a fifteen percent discount for the vicissitudes, I calculate to be $117,000. That sum I include in the assessment.

124 The next claim is a claim for loss of superannuation benefits. It is agreed that for the past the plaintiff is entitled to be compensated at the rate of five percent of the gross past loss. Adopting this approach, I calculate the entitlement under this heading at $6660.

125 For the future, it is agreed that the loss is to be calculated at the rate of nine percent of the gross loss, and I allow the sum of $12,635 under this heading.

126 Mr McIntyre conceded that in this case the defendant had a reasonable opportunity to make an offer of settlement and no offer was made, so that the possibility of awarding interest on the allowance for past economic loss and on the award for loss of superannuation benefits has to be considered. It is relevant to note that it is agreed that the plaintiff received almost $140,000 by way of periodic workers’ compensation payments, and that figure exceeds the aggregate sum I have awarded for past economic loss and for past loss of superannuation benefits. Therefore I do not award interest.

127 The remaining items to be taken into account in this assessment are of a non contentious nature and the subject of agreement. Past medical expenses paid by the workers’ compensation insurer are agreed at $24,925.21. It is agreed that there is a further sum of $2540.70 in respect of unpaid medical expenses to be included in the assessment. There is a further $481.93 by way of pharmaceutical expenses to be included in the assessment. The sum expended for rehabilitation earlier mentioned is $15,355.58.

128 There is a Fox v Wood adjustment to be taken into account also, in the sum of $19,450.56.

129 I summarise the assessment then as follows:

Allowance for non economic loss	$55.412.50
Loss of earning capacity:
Past	112,912.00
Future	117,000.00
Allowance for loss of superannuation benefits:
Past	6,660.00
Future	12,635.00
Medical expenses	27,465.91
Rehabilitation expenses	15,355.58
Pharmaceutical expenses (unpaid)	481.93
Fox v Wood adjustment	19,450.56
$367,373.48

130 This brings me to the assessment of damages as against the second defendant.

131 Mr Nock submitted that these were to be assessed according to common law principles but Mr Windsor submitted that the Civil Liability Act 2002 governs the assessment. That Act commenced on 20 March 2002 and Sch 1 Pt 2 contains this provision:

“(2) However, Part 2 of this Act does not apply to or in respect of:

in proceedings commenced in a court before the commencement of this Act

(b) an award of damages, or settlement or consent order in respect of damages, made before the date of assent to this Act.”

(Emphasis added)

132 Having regard to the above, the critical question is when the proceedings against the second defendant were commenced. If they were commenced before 20 March 2002, the Civil Liability Act does not apply.

133 The statement of claim originally filed in these proceedings was filed on 24 September 1999. However in that pleading only the first defendant was named as a defendant. Subsequently the first defendant brought a cross claim against the second defendant and thereafter on 12 October 2001 the plaintiff filed a notice of motion seeking an extension of the limitation period to join the second defendant as a defendant and seeking also leave to file an amended statement of claim. On 30 August 2002 Master Malpass made the orders sought by the plaintiff extending the time for bringing proceedings against the second defendant and granting leave to the plaintiff to join the second defendant as a defendant in the proceedings. An amended statement of claim joining the second defendant as a second defendant was filed on 6 September 2002.

134 Part 8 r 11(3) of the Rules of Court provides:

“(3) Where in any proceedings a party is added otherwise than pursuant to an order under rule 10 or Part 20 rule 4 (3), the date of commencement of the proceedings so far as concerns him shall be:

(a) where he is added as a defendant—the date on which the amendment adding him as a defendant is made or the date of entry of his appearance or the date of filing his defence, whichever is earliest,

(b) otherwise—the date on which the amendment adding him as a party is made.”

135 If Pt 8 r 11(3) here applies, then the proceedings by the plaintiff against the second defendant commenced after the commencement of the Civil Liability Act of 2002.

136 Mr Nock submitted that the Act of 2002 did not apply because Pt 20 r 4(3) was applicable. Part 20 r 4 is in the following terms:

“(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired…

(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.

(4) Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity.

(5) Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.

(5A) An amendment made pursuant to an order made under this rule shall, unless the Court otherwise orders, relate back to the date of filing the statement of claim.”

(7) This rule does not limit the powers of the Court under rule 1.”

137 It was submitted that sub-r (3) was enlivened because at all relevant times what the plaintiff wanted to do was to sue his employer and there was some uncertainty as to the identity of the employer, and this prompted the application to add the second defendant. Mr Nock called in aid Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 and in particular the judgment of McHugh J at 260-261.

138 I do not accept that submission. The amended statement of claim makes clear the purpose of the joinder of the second defendant. In that amended pleading the plaintiff asserted employment by the first defendant and breach of duty. Then, as against the second defendant, a case was asserted of control and supervision by the second defendant and breach of duty. This was not a case in which the plaintiff sought to add the second defendant because he had made a mistake about the name of his employer; rather it was a case in which the plaintiff sought to sue both defendants, but asserting liability against each on a different basis.

139 Whilst Master Malpass did extend the limitation period for the cause of action pleaded against the second defendant, the effect of Pt 8 r 11(3) is only avoided by Pt 20 r 4(3) and not by the other sub-rules in Pt 20 r 4.

140 It has further been submitted that there were proceedings on foot against the second defendant from the time it was joined as a cross defendant, and this joinder took place as long ago as 24 September 1999. It was submitted that it would be an unjust consequence if the first defendant could enjoy the benefits of the common law in respect of its cross claim against the second defendant and yet the plaintiff could only recover against the second defendant under the limited regime imposed by the Civil Liability Act of 2002.

141 Whilst I have sympathy for that submission, and I reach the conclusion which I have reached reluctantly, it seems to me that the language of Pt 8 r 11(3) is inescapable. The effect of this sub-rule is to make the date of the commencement of the proceedings as between the plaintiff and the second defendant the date upon which the second defendant was added as a defendant, and this was plainly after the Act of 2002 commenced. I am therefore compelled to reject the submissions of Mr Nock and the supporting submissions of Mr McIntyre, and to accept the contrary submissions of Mr Windsor.

142 Accordingly, I proceed to assess damages as against the second defendant under the regime imposed by the Civil Liability Act.

143 The first component to assess is a sum for damages for non economic loss. Section 16 provides:

“(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.

(2) The maximum amount of damages that may be awarded for non-economic loss is $384,500, but the maximum amount is to be awarded only in a most extreme case.

(3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table:

Table

Severity of the non economicloss (as a proportion of a most extreme case)	Damages for non economic loss (as a proportion of the maximum amount that may be loss)
15%	1%
16%	1.5%
17%	2%
18%	2.5%
19%	3%
20%	3.5%
21%	4%
22%	4.5%
23%	5%
24%	5.5%
25%	6.5%
26%	8%
27%	10%
28%	14%
29%	18%
30%	23%
31%	26%
32%	30%
33%	33%
34%-100%	34%-100% respectively

(4) An amount determined in accordance with subsection (3) is to be rounded to the nearest $500.”

144 I do not propose to repeat what I have written in approaching the assessment of damages as against the first defendant, but it seems to me it is appropriate to award this plaintiff twenty-five percent of the maximum amount payable under s 16(2). I therefore award for non economic loss the sum of $25,000.00 (rounding the calculation up to the nearest $500: s 16(4)).

145 Section 18(1) of the statute prevents me from making any allowance by way of interest on the assessment for non economic loss.

146 I pass to the claim for past economic loss. The restraints imposed by s 12(2) and (3) of the Act do not apply and, for the reasons earlier expressed, I award for past economic loss the sum of $112,912.

147 It is permissible to award interest on that sum, but as I observed earlier the amount allowed for past economic loss is less than the amount of the payments received by the plaintiff by way of periodic payments under the workers’ compensation legislation. Regardless of who paid that compensation, it does not seem to me that I should allow interest and I decline to do so.

148 The next element of the plaintiff’s claim is loss of superannuation benefits for the past. I allow, as stated in para 124, the sum of $6660. This allowance is not affected by s 15A of the Civil Liability Act.

149 This brings me to the claim for future economic loss. Sections 12 and 13 of the Civil Liability Act need to be addressed in respect of this head of the plaintiff’s claim.

150 I observe as to s 12 that the operation of this section is not enlivened having regard to the relevant figures already considered.

151 Section 13 provides as follows:

“(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

152 Mr Windsor has submitted that this section prevents any award being made for future economic loss in the present case. He argued that before any award can be made under s 13, the Court must be satisfied that the assumptions concerning future earning capacity on which the award is based accord with the plaintiff’s “most likely circumstances but for the injury”. It was submitted that the section imposes a standard more stringent than the balance of probabilities. This plaintiff did not have a working history which permits the Court to determine his most likely future circumstances but for the injury.

153 Whilst it is to be acknowledged that the Civil Liability Act had as an obvious purpose the object of capping damages and reducing what would otherwise be payable under the common law as affording fair, just and reasonable compensation for harm suffered, it does not seem to me that s 13(1) warrants the construction which Mr Windsor has suggested. Such a construction could prevent the awarding of damages for future economic loss in a wide range of deserving circumstances. Take, for instance, a claim by a child injured at a time when he was altogether too young to be able to determine his most likely future circumstances, giving those words the meaning Mr Windsor invites. In such a case, although the evidence might demonstrate that the plaintiff may never be able to work, he could be awarded nothing under the section.

154 I do not consider that the section ought to be regarded as doing more than seeking, albeit somewhat clumsily, to express the position at common law.

155 In assessing damages against the first defendant, I indicated my approach in paras 121-123. In the claim against the second defendant, I allow $117,000 for future economic loss. I stated the assumptions upon which that allowance is based in the paragraphs indicated and I summarise them briefly for the purposes of s 13(3):

(i) But for the injuries and resultant disability, the plaintiff would have earned in the future $150 per week more than he will now be able to earn.

156 For future lost superannuation benefits, I allow, as before, the sum of $12,635. This allowance is not affected by s 15A of the Act.

157 The other components, as before, are these:

Medical expenses	$27,465.91
Rehabilitation expenses	15,355.58
Pharmaceutical expenses (unpaid)	481.93
Fox v Wood adjustment	19,450.56

158 Accordingly I summarise the assessment as follows:

Allowance for non economic loss	$25,000.00
Loss of earning capacity:
Past	112,912.00
Future	117,000.00
Allowance for loss of superannuation benefits:
Past	6660.00
Future	12,635.00
Medical expenses	27,465.91
Rehabilitation expenses	15,355.58
Pharmaceutical expenses (unpaid)	481.93
Fox v Wood adjustment	19,450.56
$336,960.98

159 As indicated in submissions, I propose to publish my findings and to afford to the parties an opportunity to bring in short minutes of appropriate judgments and ancillary orders.

Formal findings

160 1. I find the first defendant to have been negligent.

2. I find the second defendant to have been negligent.

3. I do not find the plaintiff to have been guilty of contributory negligence.

4. I apportion twenty-five percent of the liability for the damage suffered by the plaintiff to the first defendant and seventy-five percent of the liability for the damage suffered to the second defendant.

5. I assess total damages as against the first defendant in the sum of $367,373.48.

6. I assess total damages as against the second defendant in the sum of $336,960.98.

7. The cross claim by the second defendant against Transfield fails, and Transfield is to have judgment on that cross claim entered in its favour.

8. The matter is to be listed on 19 December 2003 to enable the parties in the interim to prepare short minutes of appropriate judgments and ancillary orders.

**********

Last Modified: 12/09/2003

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Citations

George v Lifese Steel Erections Pty Ltd [2003] NSWSC 1146

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CITATION:	George v Lifese Steel Erections Pty Ltd & Anor [2003] NSWSC 1146
HEARING DATE(S):	25, 26, 27, 29 August, 9, 10 October 2003
JUDGMENT DATE:	8 December 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	(1) I find the first defendant to have been negligent; (2) I find the second defendant to have been negligent; (3) I do not find the plaintiff to have been guilty of contributory negligence; (4) I apportion twenty-five percent of the liability for the damage suffered by the plaintiff to the first defendant and seventy-five percent of the liability for the damage suffered to the second defendant; (5) I assess total damages as against the first defendant in the sum of $367,373.48; (6) I assess total damages as against the second defendant in the sum of $336,960.98; (7) The cross claim by the second defendant against Transfield fails, and Transfield is to have judgment on that cross claim entered in its favour; (8) The matter is to be listed on 19 December 2003 to enable the parties in the interim to prepare short minutes of appropriate judgments and ancillary orders; (9) Failing agreement, on that date the matter will be listed for further argument on a date then to be appointed.
CATCHWORDS:	Industrial accident - actions against employer and entity to whom plaintiff's services made available - apportionment of fault. Damages - assessments under Workers' Compensation Act and Civil Liability Act.
LEGISLATION CITED:	Civil Liability Act, ss 12, 13, 15A, 16, 18 Supreme Court Rules, Pt 8 r 11, Pt 20 r 4 Workers' Compensation Act
CASES CITED:	Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 Darlington Futures Limited v Delco Australia Pty Limited (1986) 161 CLR 500 Drake Personnel Limited v Workcover Authority of New South Wales (1999) 90 IR 432 Kondis v State Transport Authority (1984) 154 CLR 672 Leighton Contractors Pty Limited v Smith & Anor [2000] NSWCA 55 Lepore v State of New South Wales (2001) 52 NSWLR 420 TNT Australia Limited v Christie & Ors [2003] NSWCA 47
PARTIES :	Rabih George (Plaintiff) Lifese Steel Erections Pty Limited (1st Defendant) Lifese Pty Limited t/as Lifese Engineering (2nd Defendant) Transfield Constructions Pty Limited (2nd Cross Defendant) M. & C. Maxwell Pty Limited (in liquidation) (3rd Cross Defendant)
FILE NUMBER(S):	SC 20430/99
COUNSEL:	Plaintiff: D. Nock SC/S. Torrington 1st Defendant: J. McIntyre SC 2nd Defendant: L. Ellison (25-27 August), M. Windsor (9-10 October) 2nd Cross Defendant: E. Kennedy
SOLICITORS:	Plaintiff: Barry F. Cosier & Associates 1st Defendant: Nevill & Edwards 2nd Defendant: Holman Webb (25-27 August), McCabe Terrill (9-10 October) 2nd Cross Defendant: Moray & Agnew