Hitchen v Strategic Formwork Pty; Hitchen v RTS Holdings Pty Ltd

[2017] NSWSC 75

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hitchen v Strategic Formwork Pty; Hitchen v RTS Holdings Pty Ltd [2017] NSWSC 75

Hearing dates:

29 August 2016 – 1 September 2016

Date of orders:

24 February 2017

Decision date:

17 February 2017

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

Judgment

 

That the defendants are to pay the plaintiff the sum of $1,672,626.19.

 

The Court orders that:

 

(1) Costs are reserved.

 

The Court notes that:

 (2) The work injury damage amount is in the sum of $740,493.

Catchwords:

NEGLIGENCE – breach of duty – damages – occupational health and safety - Workers Compensation Act 1987 (NSW) s 151Z (2)

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5,13,15,16,17, Pt 2
Civil Liability (Non-economic Loss) Order 2010 (NSW) s 3
Evidence Act 2005 (NSW) s 63
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Workers Compensation Act 1987 (NSW) s 151Z ss 1d, 2

Cases Cited:

Caltex Refineries (Queensland) Pty Ltd v Stavar [2009] 75 NSWLR 649
CSR Limited v Wren (1997) 44 NSWLR 463
Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528
Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169
Fox v Wood (1981) 148 CLR 438
Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81 -178; (1992) 27 NSWLR 665
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Husher v Husher [1999] HCA 47; 197 CLR 138
Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1
Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037
New South Wales v Doherty [2011] NSWCA 225
Pamment v Pawelski [1949] HCA 4; (1949) 79 CLR 406
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529; (1985) ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34
Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99
Roads & Traffic Authority v Dederer (2007) 234 CLR 330
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 562
State of New South Wales v Moss (2000) 54 NSWLR 536
Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427
Sutherland Shire Council v Major [2015] NSWCA 243
Taylor v Walker [2016] NSWCA 100
Wyong Shire Council v Shirt [1980] HCA 12

Texts Cited:

H Luntz, Assessment of Damages for Personal Injury and Death (4th ed 2006, Lexis Nexis)

Category:

Principal judgment

Parties:

2014/129961
Daniel Hitchen (Plaintiff)
Strategic Formwork Pty Ltd (Defendant)

  2015/267220
Daniel Hitchen (Plaintiff)
RTS Holdings Pty Ltd (Defendant)

Representation:

Counsel:
2014/129961
K Andrews (Plaintiff)
R Cavanagh SC with J Callaway (Defendant)

 

2015/267220
K Andrews (Plaintiff)
G Parker SC (Defendant)

 

Solicitors:
2014/129961
Law Advice Compensation Lawyers (Plaintiff)
Biggers & Paisley (Defendant)

 

2015/267220
Law Advice Compensation Lawyers (Plaintiff)
Moray & Agnew (Defendant)

 

Solicitors:
2014/129961
Law Advice Compensation Lawyers (Plaintiff)
Biggers & Paisley (Defendant)

  2015/267220
Law Advice Compensation Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2014/129961; 2015/267220

Publication restriction:

Nil

table of contents

Witnesses

Background

Events leading up to the accident

The relevant telephone call – 27 April 2011

Wayne Gales

Control and supervision

Occupational Health and Safety (OH&S)

Anna Claire Van Der Merwe

OH&S

Mr Graham Van Der Merwe

Establishment of two entities – RTS Holdings and Strategic Formwork

Signs and shirts

The salient features of the relationship between RTS Holdings and Strategic Formwork

After the accident – Ben Knox

Liability of RTS Holdings

Liability of Strategic Formwork

The plaintiff’s pleaded case against Strategic Formwork

Strategic Formwork’s submissions

The Civil Liability Act

Section 5B

Did Strategic Formwork owe the plaintiff a duty of care?

The risk of harm – Was it foreseeable and not insignificant?

Causation - s 5D of the Act

Apportionment between RTS Holdings and Strategic Formwork

After the accident - damages

Roxy and the plaintiff’s parents

Trip back to Australia

Return to work

Damages

Damages - Injuries and medical evidence

Statistical information

(1) Non economic loss

The plaintiff’s life pre and post accident

After the accident

(2) Past out of pocket expenses

Economic loss

Past economic loss

Calculation of past economic loss

Consideration

Superannuation

Past superannuation

Fox v Wood

Future economic loss

Buffer?

Future superannuation

Past domestic care

Future domestic assistance

Housing adjustments

Travel

Automatic vehicle

(3) Future out of pocket expenses

Costs

Judgment

Judgment

1. HER HONOUR: The plaintiff seeks damages for personal injuries sustained in an accident that occurred on 2 May 2011, when during the course of his employment, he sustained injuries resulting in incomplete paraplegia.

2. There are two proceedings involving the plaintiff. In proceedings No 2014/129961 the defendant is Strategic Formwork Pty Ltd (“Strategic Formwork”). In proceedings No 2015/267220 the defendant is RTS Holdings Pty Ltd (“RTS Holdings”). Both matters were heard together and evidence in one is evidence in the other.

3. RTS Holdings as the plaintiff’s employer has admitted liability. The plaintiff’s claim against RTS Holdings is an assessment of damages only. Strategic Formwork is alleged to have had the care, control and management of the premises at XXXX Street, Corrimal (“the yard”) and denies liability. There are no allegations of contributory negligence made by either defendant.

4. The main issue in dispute is apportionment. Both RTS Holdings and Strategic Formwork have filed cross claims against each other seeking contribution pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act1946 (NSW). In its cross claim RTS Holdings, in addition to contribution, seeks indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW).

Witnesses

5. The plaintiff made a statement dated 14 June 2011 to WorkCover (Ex A) and an evidentiary statement filed 9 February 2016 (Ex B). Benjamin Knox a director of Compliance OH&S provided a statement to WorkCover dated 13 July 2011 (Ex F) and made a handwritten statement dated 3 May 2011 (Ex G), Michael Keogh the manager of Cronulla Beach Youth Hostel (“the hostel”) provided a statement dated 12 July 2011 (Ex H) and Graham Van Der Merwe a director of Strategic Formwork made two statements to WorkCover dated 11 July 2011 (D1/3) and 14 July 2011 (Ex D1/4) and an evidentiary statement dated 4 April 2016 (Ex D1/2). Rosanne Appleton (Roxy) provided an evidentiary stated filed 21 June 2016. (Ex C). She is the plaintiff’s partner and since the accident she has supported him both in Australia and England. She is a vibrant and responsible young woman. Her credit was not in issue. She was a truthful witness. I unhesitatingly accept her evidence. All witnesses gave evidence and were cross examined.

6. The plaintiff’s mother and father Jean Hitchen and Jeff Hitchen filed evidentiary statements on 21 June 2016 (Exs N and O respectively). They reside in the United Kingdom. Christian Palmer made an evidentiary statement dated 5 April 2016 (Ex M). He currently resides in New Zealand working as a chef. Due to a video link failure these witnesses were not able to be cross examined. Their evidence is uncontentious.

7. Mrs Anna Claire Van Der Merwe provided a statement to WorkCover dated 14 July 2011 (Ex L). She was not required for cross examination.

8. Mr Gales the yard manager was ill and tendered a medical certificate. At the hearing I was satisfied that he was physically unable to give evidence. It is my view that it was not reasonably practicable for him to overcome that inability so his statement to WorkCover dated 1 June 2011 (Ex D2/4) and his affidavit dated 24 September 2015 (Ex D1/6) were admitted pursuant to s 63 of the Evidence Act 2005 (NSW). Hence he too was unable to be cross examined.

Background

9. The plaintiff’s credibility was not in issue. The plaintiff is a determined young man who has persevered to improve his disabilities and has made a remarkable recovery. The plaintiff was an impressive witness who gave straightforward and truthful evidence and I have no hesitation in accepting his evidence. He did not exaggerate his injuries and if anything, he understated them. Senior counsel for Strategic Formwork tendered copies of the plaintiff’s Facebook entries. (Ex D1/1). There is nothing in them that shows anything that is inconsistent with the plaintiff’s presentation of his case. There is little dispute as to the facts and circumstances as to how the accident occurred.

10. The plaintiff was born in the United Kingdom in March 1986 and is currently 30 years of age. He presently resides in Deansgate, Manchester. He is currently employed as a neuro rehabilitation assistant for the National Health Service. He lives with his partner Roxy who met him shortly before the accident when they were both backpacking around Australia.

11. When he was 16 years old, the plaintiff completed high school. He captained schoolboy level football for his college and Lancashire.

12. In 2003, the plaintiff suffered a fracture of the left distal tibia and was treated at the Royal Liverpool hospital. He was not left with any disabilities.

13. From 2002 until 2010, while attending university, the plaintiff worked part time as a duty manager and personal trainer with FX Leisure, providing sale promotions and training to gym members. When he was not at university he worked full time at three to four gyms.

14. In June 2003, the plaintiff completed a course in economics at Winstanley College, Wigan.

15. In 2004, he completed college and commenced working as a land surveyor. He also coached football part time and was a gym instructor for two years.

16. From 2005 until 2006, the plaintiff worked as a full time land surveyor for RJP Surveys.

17. From 2005 until 2008, the plaintiff worked part time as head coach and regional co-ordinator for Proscore Academy providing soccer coaching to school children.

18. On 7 July 2009, the plaintiff obtained Bachelor of Sport and Exercise Science with second class honours (Division 1) from the University of Lancaster.

19. During 2008 and 2009, the plaintiff played football for Ashton and Atherton Colliery Football Clubs. He had been playing with Ashton since 2002. He played his last game with Atherton Colliery Football Club on 10 April 2010.

20. In August 2010, the plaintiff travelled with friends throughout Southeast Asia and then on to Australia. In November 2010, he arrived in Australia on a working visa. While in Australia, the plaintiff performed a variety of work in the construction industry. He also worked farming sweet potatoes in Bundaberg, Queensland and worked for Dyson at the Easter Show for two weeks. During these times he earned roughly $20 to $25 per hour. (T11). About three weeks before the accident, he met Roxy.

21. After backpacking and upon his return to the United Kingdom the plaintiff had intended to become a PE teacher. (T14).

Events leading up to the accident

22. Mr Keogh gave evidence and was cross examined. Mr Keogh was a truthful witness and his contemporaneous diary entries supported his evidence. Mr Keogh gave evidence that over the last five years he often received telephone calls from Mr Van Der Merwe asking if Mr Keogh had any backpackers that might be interested in some casual labour. (T113.35-50). It is only necessary to refer to the last two telephone calls prior to the accident.

23. On the afternoon of 8 April 2011, Mr Van Der Merwe from Strategic Formwork rang Mr Keogh. Mr Van Der Merwe said that they needed two guys to work for two to three weeks. The guys needed to have a car or transport to get to the yard. Mr Keogh does not recall if Mr Van Der Merwe mentioned at that time whether the site was in Corrimal or Helensburgh but thinks that this was the first time he had heard about the Corrimal yard. Mr Van Der Merwe told Mr Keogh that if anyone was interested in doing the work they could contact a man called Wayne to get details about the job. Mr Van Der Merwe gave Mr Keogh Wayne’s mobile phone number and Mr Keogh wrote the information in his diary at the time. (Ex J). Mr Keogh was unable to find anyone who was staying at the hostel who wanted to do the work because no one had transport.

The relevant telephone call – 27 April 2011

24. On 27 April 2011, Mr Keogh received a telephone call from Mr Gales about work at Strategic Formwork. He does not recall whether it was in the morning or afternoon. Mr Gales told Mr Keogh that he had casual jobs in the yard for up to four guys for three weeks with a pick up available from Gymea train station at 6.00 am. Mr Gales informed Mr Keogh that if anyone was interested in the work they could contact a person called Leigh to make arrangements for pick up. Mr Gales provided Mr Keogh with Leigh’s mobile phone number. Mr Keogh wrote details of this phone call in his diary. (Ex K).

25. The plaintiff, Christian Palmer, George Imlach and Michael Stockwell were staying at the hostel.

26. On the same day (27 April 2011), Mr Keogh informed Christian that there was a labouring job available, requiring four workers for three weeks on a full time basis. Mr Keogh gave Christian a number to call. Christian rang the number and spoke to a person called Wayne, whose surname he did not know. (Ex M [12] and [13]).

27. Christian Palmer, George Imlach and Michael Stockwell all took up the opportunity to start work on Thursday, 28 April 2011. The plaintiff did not start work on that Thursday as he had worked 14 days straight with Dyson and was too tired. On arrival Christian, George and Michael were greeted by Mr Gales. Christian says that the name Wayne Gales sounded familiar, but he could not be 100 per cent sure of the surname. He described Mr Gates as being a large guy, about six foot in height, in his mid to late forties, with black curly hair. (Ex M [14]). It appeared to Christian that Mr Gales was the site manager and oversaw all the activities of workers at the yard. None of them were informed of the company hierarchy or staffing structure. (Ex M [25]). The yard was a mess with formwork and timber lying around in disorganised piles. There was a warehouse at the front of the site with signage of Strategic Framework and a makeshift office that was made from unused shipping containers.

28. Christian Palmer’s evidence is not controversial and corroborates the plaintiff’s version of events. He was working with the plaintiff both on the Friday prior to the accident and on the day of the accident.

29. Prior to commencing work at the yard, Christian had some prior experience with labouring and landscaping. He did not hold any qualifications in any trade, nor did he have his “White Card” or any industry related OH&S training. He assumed that the plaintiff was in a similar position. (Ex M [19] and [20]).

30. Prior to the plaintiff starting work with RTS Holdings, he had not spoken to anyone from RTS Holdings. From the other lads the plaintiff knew that his working hours would be from about 7.00 am to 7.00 pm. He also knew where they were getting picked up from and that they would be paid $20 per hour.

31. RTS Holdings was in the process of moving from the Helensburgh yard to the Corrimal yard. There were large shipping containers that had been moved to the Corrimal yard by an independent truck company. (Gale Aff [33]).

32. On Friday, 29 April 2011, the plaintiff, Christian and George caught the train to Gymea (Michael was ill, in hospital, so did not attend work). They were picked up at Gymea station and given a lift by Leigh who worked at the Corrimal yard. When the plaintiff first started work, he spoke to Mr Gales. The plaintiff thought he was the foreman of the yard.

33. Mr Gales told the plaintiff and Christian to go up to the shipping container at the top of the yard. It was already opened and loaded full of beams. The shipping container had been in that location for approximately a month. Mr Gales had arranged for it to be installed there. The container was about 40 foot long, about 3 metres high and about 2 metres wide. About a week before the plaintiff’s accident, Mr Gales noticed that the shipping container was not level on the ground (D2/4 Q&A264 and 265) but he did not take any action to level it because “we were busy.” (D2/4 Q&A 267). Mr Gales came to the area and walked them through what had to be done, giving verbal instructions and demonstrating by gestures. Mr Gales showed the plaintiff and Christian the timbers beams (laminated veneer lumber or LVL beams) (“beams” also variously referred to as timbers and wood in evidence) that are used to make shutters. The shutters are used as formwork on constructions sites. The beams are 3.6 metres in length, 130 millimetres in width and a thickness of about 50 millimetres. (D2/4 Q&A 275). Each beam weighs about 17 kilograms.

34. Mr Gales provided verbal instructions that they were to unload the beams from the shipping container, and stack them neatly into piles of 125 lengths high and eight beams wide in an area just outside the shipping container. Mr Gales placed two blocks in the area outside the shipping container and explained that he wanted the beams bundled that way because that was how wide the prongs on the forklift were. The plaintiff says that this was the extent of the instructions. Christian’s evidence is that the beams did not appear to be unstable, but as they were not lashed Christian could not describe them as being stable either. The plaintiff gave evidence that there were some stacks with gluts on the right hand side of the shipping container but they started work on the left hand side. (T44.4-15).

35. After Mr Gales had given them the brief verbal instructions he left them to it. At no time did Mr Gales identify any dangers or hazards to them, nor did he provide them with any technique or system by which to move the beams from the container into the required piles. Christian says that they took it upon themselves to work out a system.

36. The plaintiff and Christian worked out a system whereby the plaintiff would walk past the stacked beams to the end of the shipping container. The plaintiff would then reach up (above head height) and grasp a single beam at its end and at the same time Christian would grab the beam at its front. They would then place that beam on their shoulders (Christian’s left) and walk it out of the container, where it would then be placed onto the pile. They continued this exact process 125 times until a stack was completed.

37. Once they had completed a pile of 125 they called for one of the other employees who drove the forklift. A Manitou forklift would then come and move the pile where it would be taken to a nearby area to be wrapped with plastic lashing and prepared for transportation.

38. The plaintiff and Christian commenced unloading the timber from the container and continued this task for the entire day, stopping only for smoko and lunch break. The day went by without issue, with them unloading most of a large pile on the left (looking into the container) of the shipping container but the container was still not close to being unloaded. (EX M [34] to [43]). They finished early at 2.45 pm as it was raining heavily.

39. The plaintiff was provided with gloves in case he got splinters. He was not asked about his previous work experience; safety matters were not discussed nor was it demonstrated how Mr Gales wanted him to carry out the work. The plaintiff was not given an induction into the company nor shown the facilities at the yard. He was not provided with any specific instructions or training about the work he would be doing nor the company’s policies and procedures. The plaintiff was not given any documents that related to workplace safety or safety procedures to read through and he did not sign any documents during the time he was working for RTS Holdings. He only provided his bank statement and tax file details.

40. As previously stated the plaintiff’s evidence as to the circumstances giving rise to and of the accident itself, are not in dispute and are corroborated by Christian, whom he was working with on the day of the accident.

24. The plaintiff and Christian returned to work at about 7.00 am on Monday 2 May 2011. When the plaintiff arrived at the yard he, Leigh, George and Christian put their bags in the smoko shed. Mr Gales told Christian and the plaintiff that they were to do exactly the same thing that they had been doing on the previous Friday. They went up to the same shipping container at the top left hand corner of the yard and began stacking the beams from the left hand side of the shipping container into piles of 125. They continued to carry out that process until the smoko break. After smoko they carried on with the same thing. The accident happened at about 10.30 am that morning. After the plaintiff had finished moving the beams from the left hand side of the shipping container, he began moving the beams from the right side. The plaintiff says that he was going to the rear of the shipping container to get the bottom end of the beam. Christian was getting the end closest to the front of the shipping container. The plaintiff had lifted off one of the beams from the pile that was at the bottom right. He had worked the beam off, because the stack was quite high, and lifted it onto his left shoulder using both of his hands. Christian was doing the same but on the front end. As soon as the beam was on their shoulders they started to walk it out. The plaintiff had barely walked a couple of paces when he heard the beams start to fall.

25. The plaintiff looked around and realised that a pile of beams had already started to fall down on top of him. He tried to curl up in a ball but he could not move forward because the pile was falling down and it pressed him against the side of the shipping container. The first thing the plaintiff remembers is being pressed sideways against the shipping container and the beams starting to fall onto his head. He had his hands up over his head in an attempt to stop them hitting his head.

26. The plaintiff remembers shouting at Christian, just screaming “help” and trying to move, but he was unable to move anything. He realised that his legs were really dead. He could not feel anything and had shooting pains up and down his back. The plaintiff says he tried to keep still but the pain got worse and worse. He knew that Christian was there and that Christian was removing the beams from on top of his head as he could see more light. More people arrived to help. While all of this was happening the plaintiff says the pain was just getting worse by the second. After some of the beams were removed, the plaintiff says he was looking at everyone saying “help please” and they were just looking at him. The plaintiff says that this was the worst bit. There was someone on the phone to the ambulance services who came in and said “don’t move him”. The plaintiff had to stay there and wait. He had people around him holding certain beams off him. He did not know who they were. He thinks he slipped in and out of shock a few times. Photographs (in particular photographs 18 and 19 (Ex U 257 and 258) show the fallen beams in the shipping container.

Ex U, 258

44. The plaintiff remembers the ambulance officer coming in and recalls the officer asking him several questions. The plaintiff just kept saying to him “please get me out” but the ambulance officer kept asking him questions like “do you know where you are?” The plaintiff says that he was in so much pain that eventually the officer gave up and he was given the green whistle to help him breathe. He thinks that he might have been given some morphine injections in his leg. The plaintiff thinks that fire brigade officers also helped to get him out. When the plaintiff was removed he was in the same position that he was in when the pile of beams fell onto him, that is the sitting position. When he was lifted out he says that the pain was nearly as bad as when the beams fell onto him. He thinks that he may have blacked out because he does not remember getting into the ambulance.

45. The next thing he remembers is that he was in Wollongong hospital speaking to a nurse, who asked him questions like, “can you feel this, can you move this?” He just wanted to know what had happened and why he could not feel or move his legs. He recalls his friends turning up at the hospital. He remembers seeing his mate Jonathon Halliwell and Roxy. After he spoke to them he remembers being told that he was going to be moved by helicopter to the Prince of Wales hospital, Sydney.

Wayne Gales

46. On 1 June 2011, Mr Gales provided a statement to WorkCover. (Ex D2/4). On 24 September 2015, he swore an affidavit. (Ex D1/6). As previously mentioned, he was not available to be cross examined. Since 2007, he had been employed by RTS Holdings as a yard supervisor. Up to 2009, Mr Van Der Merwe trained Mr Gales to manage the yard and provided Mr Gales with on the job training and site specific tasks in the yard so that he could then train the boys. He was paid by RTS Holdings. On 1 March 2011, Mr Gales received a salary adjustment. (Ex D1/11). He is a qualified panel beater and had bobcat, loader and excavator tickets. However, he did not hold any qualifications for the supervisory position he held at RTS Holdings as at the day of the accident.

47. Mr Gales deposed that he was the only one with authority to provide instructions to the plaintiff as to his method of work. Mr Gales became aware that the shipping container was not on even ground and was unbalanced about a week prior to the plaintiff’s accident. Mr Gales was also aware that the beams within the shipping container did not have gluts separating the individual beams. A glut is put on the ground so when the timbers are stacked, the forklift driver can position the forklift underneath. The gluts stabilise the beams. He says that at no point did he notify anyone at Strategic Formwork or anyone else of these facts. (Ex D1/6 [35] and [36]).

Control and supervision

48. Mr Gales’ evidence in relation to control and supervision is similar to that of Mr Van Der Merwe. Mr Gales says that he discussed safety issues with Mr Van Der Merwe once every two months when Mr Van Der Merwe visited the yard. During the time that Mr Gales was employed with RTS Holdings he was responsible for the employees. He told the employees firstly, what work they were doing for that day; secondly, how to do the work; and finally, the achievement expected by the end of the day. Luke Day was Mr Gales’ direct supervisor and instructed him in relation to the duties he carried out for RTS Holdings.

49. Mr Gales says that Mrs Van Der Merwe did not have any role in the day to day operations of RTS Holdings. However, in his role as yard supervisor for RTS Holdings, Mr Gales says that he was answerable and required to comply with instructions or directions given by Mr Van Der Merwe. If Mr Day was on holidays Mr Van Der Merwe would step in. Mr Van Der Merwe would occasionally ring Mr Gales and talk about things and see how everything was going. The information about the progress of loads or getting equipment ready was given verbally and by email, usually from Mr Day. Mr Gales would telephone Mr Day and tell him the progress of a particular job.

Occupational Health and Safety (OH&S)

50. Prior to the plaintiff’s accident, Mr Gales was responsible for managing OH&S for RTS Holdings at the yard. Mr Gales had not been provided with any specific OH&S training nor did he have any previous experience in undertaking OH&S responsibilities. He is not aware as to why RTS Holdings did not have an OH&S management system from the time it commenced operations at the yard nor why there was no OH&S documentation at the yard. He says that RTS Holdings had a verbal method of managing their OH&S at the yard whereby Mr Van Der Merwe would tell Mr Gales what work had to be done and how he expected it to be done in a safe way. When giving instructions Mr Van Der Merwe would identify the particular work tasks and explain the associated risks or hazards that might be present while performing those tasks. Mr Van Der Merwe provided directions or information on how to remove or manage those hazards or risks. Mr Gales verbally conveyed this information to the employees performing the work.

51. There were no safety audits of the yard undertaken either internally or externally. No employees or other persons were provided with a site induction at the yard prior to them commencing work. Mr Gales knew from his previous work experience that employers were required to complete site inductions, but that this did not occur at RTS Holdings.

52. Since the accident RTS Holdings has taken steps to improve its OH&S practice and procedures. It has documented procedure developed for the unstacking of the beams from containers and has changed how the work is done. The beams are now pulled out one by one so there is no one standing next to them and it is impossible for the beams to fall on anyone. I shall refer to the steps taken to make the workplace safer in more detail later in the judgment when I summarise the evidence of Ben Knox.

Anna Claire Van Der Merwe

53. Mrs Anna Claire Van Der Merwe provided a statement to the WorkCover Authority dated 14 July 2011 (Ex L). She was not required for cross examination. As at the date of the accident, she was the director of RTS Holdings. While she had been a director of RTS Holdings since 2007, she became a working director in 2009, with her husband Graham Van Der Merwe. She holds shares in RTS Holdings and is paid by RTS Holdings annually. She has not redeemed any dividends.

54. RTS Holdings had 10 employees at the time of the accident. Its annual turnover in 2011 was $1,200,000. She played little or no relevant part in the OH&S issues of the yard. Mrs Van Der Merwe says that she has no level of influence with Strategic Formwork, nor did she have any involvement with the day to day operations of Strategic Formwork. She says that Strategic Formwork does not provide any financial support to RTS Holdings. Overall she played little or no part in the activities and management of RTS Holdings, other than as an accountant. She did not play any role in relation to OH&S (or its lack thereof) at the yard.

55. After 2011 Mr Van Der Merwe was no longer an employee of RTS Holdings but remained the point of contact for Mr Gales. Mrs Van Der Merwe describes it as like a transition so Mr Gales was comfortable knowing that if he needed Mr Van Der Merwe he could call him.

56. It is common ground that Mr Gales was allowed to order any stock or any items that he required to almost any value from authorised suppliers that they had a credit application with. There was also a $500 limit for out of pocket expenses so that Mr Gales could buy brushes or paint or the like. (T164.39-42). Mr Gales was also authorised to order and make payments from suppliers if there was an established account in place. He was not authorised to sign cheques. The range of the credit limits were anywhere from $5,000 to $20,000. If he wanted to spend a sum of say $50,000 he would have to get approval.

57. Mrs Van Der Merwe attended the yard about two to three times a year. The purpose of her visits was to show her face, to see the yard and assess it. She says that her safety concerns were usually in the nature of housekeeping and the untidy yard. However, I find that it was Mr Van Der Merwe who identified the untidy yard. Mrs Van Der Merwe did not specify any other safety concerns. In response to those concerns, if any, she says that she would discuss them with Mr Van Der Merwe, review them and check that action had been taken.

OH&S

58. At the time of the plaintiff’s accident, Mrs Van Der Merwe says that she had the overall responsibility for OH&S but in fact there was no OH&S management plan or documentation in place. She acknowledges that there was no systematic reporting system at the yard but says that Mr Gales had the responsibility to implement the company’s OH&S obligations at the yard. However, she also says that Mr Gales would report to Mr Van Der Merwe if any safety issues arose. Mrs Van Der Merwe says that it was Mr Gales who acted in the capacity of OH&S representative at the yard. She understood at the time of the plaintiff’s accident that Mr Gales had no formal qualifications in OH&S but had a lot of experience. She believed that Mr Gales had received training from Mr Van Der Merwe but she did not actively do anything in relation to OH&S training, implementing proper procedures such as reporting or record keeping.

Mr Graham Van Der Merwe

59. Mr Van Der Merwe provided three statements dated 11 July 2011 (Ex D1/3), 14 July 2011 (Ex D1/4) and 4 April 2016 (Ex D1/2). He gave evidence and was cross examined.

60. Since the mid 80’s, Mr Van Der Merwe has been employed in the construction industry. He is a qualified civil engineer. His experience in the construction industry predominantly involves the supervision of formwork systems, including site engineer. His formal education, through his civil engineering degree, made him knowledgeable about stability, safe working load, load patterns and stress and safe storage of materials. Throughout his career he has been responsible for supervising construction personnel undertaking tasks on and off site, both in Australia and overseas. (Ex D1/5 [5] to [7]). Since 1992 he has been involved in the construction industry throughout the world. He has been involved in site safety induction courses and is trained in relation to power tools, loading and unloading, rigging and working at heights. He has also been involved in various safety issues at various sites in occupational health and safety at sites throughout the world. (T134.5-18).

Establishment of two entities – RTS Holdings and Strategic Formwork

61. Mr Van Der Merwe explained how the two entities came into fruition.

62. In 2006, Strategic Formwork’s largest client went into liquidation. There was non payment of Strategic Formwork’s invoices which put it at risk of also going into liquidation. After that Strategic Formwork sought advice as to how it could protect its assets should something like that happen to it in the future. The advice given was to split the company into two parts. RTS Holdings was incorporated in 2007. (T125.5-21).

63. Strategic Formwork designed its own branded jumpform system called the Coremaker jumpform. A jumpform is a reusable formwork mould used to construct high rise lift shafts. The Coremaker jumpform is self-climbing, meaning it does not require the use of a crane. It is made from timber and steel.

64. After RTS Holdings commenced operation in 2009, it became responsible for the storage, servicing and maintaining of the Coremaker jumpform. Strategic Formwork remained responsible for the design and site supervision of the Coremaker jumpform and developed a crane lifted “Wallmaker” jumpform system. RTS Holdings supply jumpform equipment to formwork companies for the construction industry. RTS Holdings currently have two clients including Strategic Formwork.

65. Strategic Formwork and RTS Holdings were established by Mr Van Der Merwe. Mr Van Der Merwe was the general manager of RTS Holdings from May 2009 until January 2011 and again from 1 July 2011 (Ex D1/4 Q&A 14-20). From May 2009, Mr Van Der Merwe was a director and employee of Strategic Formwork and Mr Day was the general manager of Strategic Formwork.

Signs and shirts

66. The plaintiff understood that he was working for Strategic Formwork as he had seen the name Strategic Formwork on the employees’ jerseys (Ex A Q&A 12 and T72.19-22) and had seen a sign on the yard, although he was never told who his employer was. (T72.5-17).

67. Christian does not remember Mr Gales identifying himself as being from Strategic Formwork. However, Christian says that he was of the belief that Mr Gales was the site manager for Strategic Formwork. (Ex M [12] and [13]). He also saw the name Strategic Formwork visible on some of the worker’s t-shirts (Ex M [16]). Mr Gales says, and I accept, that at no stage did he advise the plaintiff that he was employed by or worked for Strategic Formwork. (Ex D1/6 [29]).

68. In cross examination Mr Van Der Merwe explained the presence of signs of Strategic Formwork signage on the shirts and the bins in the RTS Holdings yard. His explanation is that when RTS Holdings delivered equipment to Strategic Formwork’s job sites, they would label the delivery bins with Strategic Formwork.  If the equipment was delivered under RTS Holdings, the multiplexes or their clients would not recognise who belonged to that gear, so they would load the equipment into delivery boxes with Strategic Formwork written on it. Some of the delivery boxes were in the yard. (T129.14-24). He further explained that it is very common in the construction industry for companies to share high visibility work shirts. Strategic Formwork gave them out a lot to their clients, so you would see people working for Wideform or BKH wearing Strategic Formwork’s personalised protective equipment. Mr Van Der Merwe says that it a common practice throughout the industry. (T128.48-50; T129.1-6). I accept that there were Strategic Formwork work shirts worn by employees and bins at the yard had Strategic Formwork written on them.

The salient features of the relationship between RTS Holdings and Strategic Formwork

69. Strategic Formwork and RTS Holdings have the same registered principal place of business, Mr and Mrs Van Der Merwe’s home. Strategic Formwork and RTS Holdings share a number of administrative functions. Strategic Formwork is a client of RTS Holdings and hires formwork equipment from RTS Holdings. (Ex D1/2 [9]).

70. The commercial lease of the yard is between Albert Street (NSW) Pty Ltd as landlord and RTS Holdings as tenant that commenced on 1 November 2009 for a period of two years with rent payable of $5,000 per calendar month. Mr Van Der Merwe guaranteed the lease of the yard. (Ex D1/9).

71. There is a standard hire agreement between RTS Holdings and Strategic Formwork dated 19 June 2010. (Ex D1/13). It relevantly states:

“By signing this Hire Agreement you are entering into a legal contract with us and confirming that you accept the following:

A   Hire will commence upon despatch of equipment to the pre-assembly yard and shall cease when all the components have been stripped, thoroughly cleaned and returned to our yard.

…”

72. Interestingly, on 1 May 2001, RTS Holdings hired to Strategic Formwork, 68 jackets for the supply of Coremaker Equipment to “Supreme Law Courts” (Invoice RTSH3425, Ex D1/15).

73. Mr Gales was the yard supervisor of RTS Holdings at the time of the accident (Ex D2/4 Q&A 26 and 27) having been promoted to yard manager when Mr Van Der Merwe left RTS Holdings in 2009.

74. Mr Van Der Merwe designed the system of work implemented which was the operative system of work at the time of the plaintiff’s accident (D1/4 Q&A 122).

75. When Mr Van Der Merwe was interviewed by Inspector Michael Duncan, he said:

“The main thing that would have prevented the incident from occurring is if the timbers had been stored with gluts, second to that the container should have been levelled, thirdly a more senior person would be assigned to work with a less experienced person, regular uploads of how the yard looked like should be forwarded to upper management.” (D1/4 Q&A 138).

76. Mr Van Der Merwe agreed that RTS Holdings did not have an overriding safety document because:

“I had a strong belief in the other areas of safe working, which had been influenced by my time on construction sites. Very much a believer in communication with lads using pictures and diagrams and satisfying myself that they knew the scope of works and risks that go with that. The idea is that there is a fulltime supervisor, there is constant communication and there is on the job training monitoring and also leading by example for example getting the first aid box on site, providing facilities, educating that if a tool is broken you just buy a new one you don’t try to repair it.” (Ex D1/4 Q&A 102)

77. Mr Van Der Merwe visited the yard on at least two occasions between January 2011 and May 2011 and noticed that the yard was untidy

77. Mr Van Der Merwe explained that the work being done was not difficult and he did not believe in weighing down the employees with paperwork relating to OH&S procedures. Further, as a result of enquiries he made after the plaintiff’s accident, as far as he was aware, beams were put in that position without the use of gluts approximately four weeks prior to the accident by a longer term employee. He confirmed that Mr Gales, the yard manager was aware of that but took no immediate action to correct it. However, Mr Van Der Merwe was unable to say categorically whether he was aware of this issue or not, although it is his belief that he was not aware as it would have been in his nature to take corrective action immediately. Mr Van Der Merwe had previously spoken with Mr Gales about the need to stack beams with gluts and provided him with a photograph of what he expected.” (Ex D1/5 [29]).

78. The premises at Corrimal were described by Strategic Formwork as the “Strategic Yard”. On 16 March 2011, Mr Van Der Merwe sent an email from his Strategic Formwork email address to “SF Luke Day” at Strategic Formwork and also the yard at Strategic Formwork. The photograph is attached to this email. (Ex K).

79. Mr Van Der Merwe said that after he ceased to be the general manager of RTS Holdings for the period of January 2011 to 3 May 2011 he “carried out several yard inspections” and after he left RTS Holdings he had regular discussions with Mr Gales. (Ex D1/4 Q&A 97). He observed that the yard needed housekeeping. “I asked Wayne (Mr Gales) to get some extra labourers in to attend to this issue. Daniel, George and Christian were specifically employed to come in and deal with the housekeeping issues.” (Ex D1/5 [31]).

80. After Mr Van Der Merwe left RTS Holdings and before the plaintiff’s accident, Mr Gales reported directly to Mr Van Der Merwe on OH&S matters. (Ex D1/3 Q&A 67). Mr Van Der Merwe deposed that on his last inspection of the yard evidence he did not observe any incorrectly stacked beams. (Ex D1/5 [31]). This is surprising because Mr Van Der Merwe knew that the beams had to be stacked with the gluts in position to ensure the stability of the beams. He also knew before the plaintiff’s accident that beams were emanating from the yard without stabilising gluts. This is because he recalled talking to Mr Gales about gluts that were missing on the truck of beams when it arrived in Canberra. (T190.2-3).

81. Mr Van Der Merwe had been was using shipping containers in the yard (and the prior yard at Helensburgh) to store beams for approximately seven years. The shipping containers were to be level. Mr Van Der Merwe acknowledged that Mr Gales had never participated in the actual levelling of them. (Ex D1/5 [34]).

82. It is my view that Mr Van Der Merwe was aware:

(a)   that if the stack of beams was not stabilised by the use of gluts it was likely to collapse and injure an employee engaged in the task of unloading it;

(b)   that if the shipping container was not on a level base, it was more likely that the beams would collapse; and

(c)   that those employed in the yard were likely to be inexperienced, unfamiliar and untrained in the work they were required to perform.

84. On the day of the accident, Mr Van Der Merwe received a call from Mr Gales who explained that there had been an accident at the yard. WorkCover was there and had stopped work in the yard. This was of major concern to Mr Van Der Merwe as RTS Holdings would not be supplying the equipment that they already had in the pipeline. Hence, it was important to get RTS Holdings running and moving. His wife contracted an OH&S specialist Ben Knox. He assisted to explain to RTS Holdings and Mr Van Der Merwe what needed to be done to lift the notices. (T130).

85. Of critical importance in the relationship between Strategic Formwork and RTS Holdings is that Strategic Formwork is reliant upon RTS Holdings to supply products to Strategic Formwork on time. As Mr Van Der Merwe explained in evidence, he would go to the yard to ensure that the products Strategic Formwork required from RTS Holdings were on schedule because if Strategic Formwork did not get the products as scheduled,, the supply to clients became a problem. It was of critical importance that RTS Holdings were delivering stock promptly and getting it right. (T128). To my mind the supply of products was of commercial imperative to Strategic Formwork and central to the relationship between RTS Holdings and Strategic Formwork. In my view Strategic Formwork exercised control over the day to day running of RTS Holdings.

After the accident – Ben Knox

86. On 3 May 2011, Ben Knox made a handwritten document. (Ex G). On 13 July 2011 Ben Knox, was interviewed by Stephen Cooper on behalf of WorkCover. (Ex F). Mr Knox is the director of Compliance OH&S. He has Bachelor of Applied Science in Occupational Therapy and a diploma in Occupational Health and Safety. He is a certified occupational health and safety auditor. He holds a white card which is a construction induction certificate. Mr Gales was obliged to report to Mr Day, the general manager of Strategic Formwork every day as to the progress of a particular job. In the absence of Mr Day, Mr Gales would report to Mr Van Der Merwe.

87. On 3 May 2011, Mr Day contacted Mr Knox by telephone and told him that he was employed by Strategic Formwork but was assisting RTS Holdings with compliance of improvement and prohibition notices it had received. Mr Knox arranged to meet with Mr Day the next day at the office of Strategic Formwork.

88. On 4 May 2011, a meeting was held at the office of Strategic Formwork at Sutherland. Mr Knox, Mr Day, Mr Van Der Merwe and Mrs Van Der Merwe were in attendance. At the meeting, Mr Knox took handwritten notes and it was explained to him that there had been an incident at RTS Holdings where a worker had been injured. He discussed the final costs of his services with Mr Van Der Merwe who Mr Knox believed was the director of Strategic Formwork. Mr Knox says that he only had one discussion with Mrs Van Der Merwe who he understood was the sole director of RTS Holdings. All other instructions were provided verbally by Mr Van Der Merwe. There was no written authorisation in relation to the services Mr Knox was to provide although he thought there could have been emails. (Ex F Q&A 82).

89. On 4 May 2011, Mr Knox attended the yard with Mr Van Der Merwe, Mr Day and Mr Gales so he could review the needs of RTS Holdings in relation to OH&S. He had, like Mr Gales and Mr Van Der Merwe, observed that the yard was untidy. He became aware that there were limited policies and procedures in place and amongst other safety concerns, some materials were stacked in an unsafe manner.

90. Mr Knox’s evidence is that there were some management systems in place. The extent of the management system was that there were verbal instructions and staff were supervised until deemed they were competent to perform their work tasks. There were also some photographs that showed the appropriate procedure for stacking beams. Apart from the verbal instructions and photographs Mr Knox says that there were no documented policies or procedures in place at the yard.

91. After consultation with Mr Gales and Mr Day, Mr Knox reviewed RTS Holdings’ operations including the yard. Detailed OH&S policies and procedures were developed based on this review and a training programme was completed with all employees on the new policies and procedures. The training has now been documented. Mr Gales and Mr Day were responsible for providing the training. The unloading of trucks and the stacking of beams is now covered in the documented procedures.

92. About one week after the plaintiff’s accident, in compliance with the notices issued by WorkCover, the yard was completely tidied up, all equipment restacked, waste removed, pedestrian access provided, tools tagged, pot holes filled, containers re-levelled, signage erected, chemicals stored correctly, waste areas defined, amenities cleaned, material re-strapped and policies and procedures developed. Mr Knox now attends the yard on a regular basis to review OH&S procedures and ensure that they are being followed.

Liability of RTS Holdings

93. So far as RTS Holdings is concerned, it has admitted breach of duty of care so the plaintiff’s claim against it is for assessment of damages only. RTS Holdings is liable for damages pursuant to the Workers Compensation Act. The plaintiff’s damages claim is limited to economic loss, comprising of loss of income, superannuation and Fox v Wood (1981) 148 CLR 438; (1981) 35 ALR 607; (1981) 55 ALJR 562; (1981) 1 ANZ Ins Cas 60-445; [1981] HCA 41 components.

Liability of Strategic Formwork

94. The main issue in these proceedings is whether Strategic Formwork was also negligent and has a liability to pay damages to the plaintiff and if so then what should be the apportionment between Strategic Formwork and RTS Holdings.

95. So far as liability is concerned, Strategic Formwork submitted that firstly, it did not owe a duty of care to the plaintiff; secondly, it was not in breach of any duty of care owed (in the sense that it was not negligent within the meaning of s 5B of the Civil Liability Act 2002 (NSW)); and finally, any breach of duty of care by it did not cause the plaintiff’s accident.

The plaintiff’s pleaded case against Strategic Formwork

96. The plaintiff pleads that on 2 May 2011 Strategic Formwork:

• Strategic Formwork had the care, control and management of the yard. It carried out a business and/or occupation at the yard which required it to engage in the process of supplying, moving and/or preparing laminated veneer lumber planks (beams) which were supplied to the plaintiff’s employer RTS Holdings. (ASC [2] and [3]).

• By its servants and/or agents was aware and/or ought to have been aware that the shipping container was not level and that it had the beams stacked on one side of it which were likely to fall due to the way in which the shipping container was seated on the yard; and that Strategic Formwork ought to have been aware that in the absence of taking appropriate precautions there was a risk that the plaintiff would sustain serious and life threatening injuries and that appropriate steps were available which would have prevented such injuries being sustained by the plaintiff. (ASC [8] and [9]).

• Was under a duty to ensure that appropriate steps were taken to ensure that persons entering the shipping container were not likely to be injured by the beams falling as a result of the container not being level and/or as a result of the manner in which the container had been stacked with the beams. (ASC [10]). Strategic Formwork denies these allegations. (D [7]).

97. The plaintiff adopted RTS Holdings’ submission that Strategic Formwork firstly, failed to provide supervision of all employees including the plaintiff working at the yard; secondly, failed to ensure that the shipping container was placed upon a level surface; thirdly, failed to inspect the shipping container before allowing the plaintiff to enter the shipping container to determine that it was safe for him to do so; fourthly, failed to ensure that the plaintiff and/or other personnel working at the yard had been appropriately instructed and/or trained in the performance of their duties; fifthly failed to carry out occupational health and safety management audits; sixthly, failed to provide assistance and/or ensure that assistance was provided to the plaintiff in the performance of his duties; seventhly, failed to provide to the plaintiff and/or ensure that appropriate equipment was provided to him to perform the duties at the yard; eighthly failed to inspect the inside of the shipping container to ensure that it was safe for persons to enter and remove timber without the risk of injury; and finally, failed to ensure that a safe system of work was in place at the yard. (ASC [11A]).

98. Finally, in the alternative the plaintiff pleads and RTS Holdings adopts the allegation that Strategic Formwork by its directors, servants and/or agents had the power to control, direct, instruct and/or train all personnel that were employed by Strategic Formwork and/or RTS Holdings at the yard. (ASC [11B]).

Strategic Formwork’s submissions

99. Firstly, Strategic Formwork submitted there is no evidence that it conducted a business at the yard. The fact that any of its employees, such as Mr Day and Mr Van Der Merwe, may have attended the yard from time to time while they were employed by Strategic Formwork (that is, during the period between January 2011 and the date of the accident on 2 May 2011), does not mean that Strategic Formwork was conducting a business at the yard.

100. Secondly, Strategic Formwork submitted that if it conducted a business at the yard then the next question that arises is whether it was the occupier of the yard and Strategic Formwork says that there is no evidence that it was. There is a commercial lease between RTS Holdings and the owner of the yard. Strategic Formwork says that there is no evidence that it was in control of the yard and the evidence of Mrs Van Der Merwe does not suggest or lead to any inference that RTS Holdings shared occupation with Strategic Formwork. (Ex L). I place little weight on this submission as quite frankly Mrs Van Der Merwe had little understanding of what her responsibilities as director of RTS Holdings entailed.

101. Assuming I accept what Strategic Formwork understands to be the focus of the cross examination of Mr Van Der Merwe, Strategic Formwork submitted that all that has been established is that Mr Van Der Merwe had some authority in respect of financing matters and of occupational health and safety and that Mr Van Der Merwe would have expected Mr Gales, who used to work for him, to follow any instructions he might give. I agree that situation would not be surprising but overall it is my view that Mr Van Der Merwe and Mr Day exercised de facto control of the day to day running of RTS Holdings.

102. Thirdly, Strategic Formwork submitted that there is no suggestion that the arrangements between Strategic Formwork and RTS Holdings are a sham. The Court has always upheld the sanctity of the corporate structure but that does not determine whether or not the corporate structure owes a duty of care to the plaintiff.

103. Finally, Strategic Formwork says that so far as paragraph 11(B) of the ASC is concerned the plaintiff’s alternate argument is a novel one and is based on simply ignoring the different corporate structures and focusing on Mr Van Der Merwe’s status as the husband of Mrs Van Der Merwe and the founder of the business. In 2011, Mr Van Der Merwe was no longer employed by RTS Holdings. Strategic Formwork submitted that despite this fact, the plaintiff alleges that Mr Van Der Merwe must still have had some power and authority. Therefore Strategic Formwork owed a duty of care to the plaintiff merely because Mr Van Der Merwe could still go to the yard and Mr Gales would do what Mr Van Der Merwe asked him to do.

104. Strategic Formwork further submitted that even if it proved that Mr Van Der Merwe had some power and authority it does not impose a duty on Strategic Formwork. Strategic Formwork says that even if the Court accepts that Mr Van Der Merwe may have had authority in respect of certain financing matters, may have done things that one might have expected Mrs Van Der Merwe to do and that Mr Van Der Merwe may have inspected the yard on perhaps two occasions between January and May 2011, it does not give rise to some duty of care in favour of the plaintiff. According to Strategic Formwork words such as authority, reporting, responsibility and power were used during cross examination of Mr Van Der Merwe but the fact remains that RTS Holdings who was in occupation of the yard and employed the plaintiff does not suggest through its own director that Strategic Formwork as a separate legal entity had any such role or responsibility.

105. Senior counsel for Strategic Formwork pointed out that it was never put to Mr Van Der Merwe, and there is no evidence to this effect, that he ever directed or instructed any labourer, backpacker or employee on the site during the period from January 2011 to 3 May 2011. According to Strategic Formwork is not surprising because Mr Gales must have known that Mr Van Der Merwe was the original founder of the business as Mr Gales used to work for Mr Van Der Merwe and a close examination of all of the emails in the name of Strategic Yard (which Mr Van Der Merwe explained) does not suggest Mr Van Der Merwe was directing and controlling Mr Gales.

106. Strategic Formwork further submitted that as Mr Van Der Merwe’s stated that Mrs Van Der Merwe played a role. She says that as a director of RTS Holdings, Mr Van Der Merwe did not perform the functions suggested to him in cross examination. Mr Gales says the same thing (Ex D1/6). There were dealings between Mr Gales and Mr Van Der Merwe during that few months period from January 2011 to 3 May 2011 and in cross examination there was no attempt to distinguish between the period when Mr Van Der Merwe was employed by RTS Holdings up to January 2011 and when he stepped in after the accident to again work for RTS Holdings. Strategic Formwork submitted the fact that Mr Van Der Merwe attended the yard on a couple of occasions and noticed some housekeeping issues and spoke to Mr Gales about them, does not mean that Strategic Formwork owed a duty of care to the plaintiff. According to Strategic Formwork there was no relationship between the plaintiff and Strategic Formwork and whether or not Strategic Formwork had a power to instruct Mr Gales to do something does not give rise to a duty of care on the part of Strategic Formwork in favour of the plaintiff. I disagree for reasons explained later in this judgment.

The Civil Liability Act

107. Sections 5B and 5D of the Civil Liability Act 2002 (NSW) (“the Act”) are relevant here, I will deal with each of them in turn.

Section 5B

108. Section 5B of the Act reads:

“5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

109. The plaintiff referred to Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 (“Endeavour Energy”), where Basten JA (with whom Macfarlan JA and Sackville AJA agreed) in relation to the breach of duty of care found that given the long-standing practice of conducting aerial inspections of power lines in rural areas, combined with the public campaigns advertising such inspections, Telstra, the second defendant, ought reasonably to have foreseen the possibility that a helicopter may operate in the vicinity of its wire and thus come in contact with a not readily detectable wire. The risk which arose was not insignificant. Hence Telstra owed a duty of care to the owner of the helicopter and its occupants.

110. In Endeavour Energy Basten JA stated at [29]:

“The first two elements in s 5B(1), foreseeability and significance of risk, will usually constitute matters to be considered in determining whether a duty is owed in particular circumstances to a class of persons including the plaintiff. That does not mean that duty is to be addressed by application of s 5B and 5C; as explained by Beazley P in Grills v Leighton Contractors Pty Ltd, such an approach would be erroneous. The existence of a duty of care depends, in part, upon a prospective determination that physical injury to a class of persons which would include the plaintiff was reasonably foreseeable in circumstances where the defendant did not take reasonable care in conducting its affairs. As Gageler J stated in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288:

‘A duty of care at common law is a duty of a specified person, or a person within a specified class, to exercise reasonable care within a specified area of responsibility to avoid specified loss to another specific person, or to a person within another specified class.’”

111. The next question to be determined is whether the risk was not insignificant. In Endeavour Energy, Basten JA noted at [32]:

“The significance of a risk involves two main variables, namely the seriousness of the consequence should the risk materialise and, secondly, the likelihood of the risk materialising.”

112. The plaintiff submitted that as set out in Endeavour Energy the likelihood of the risk materialising may have been very low, though not insignificant and the consequences, if they did materialise, were likely to be catastrophic. This scenario existed where the likelihood of the beams falling onto somebody within the shipping container (such as the plaintiff) was likely to result in significant injury.

113. In Endeavour Energy, Basten JA at [33] explained the third question raised by s 5B of the Civil Liability Act as follows:

“The third question raised by s 5B asks what “precautions” a reasonable person would have taken in those circumstances. The reference to “precautions” is a reference to conduct which might minimise or remove the risk of harm which has been identified as not insignificant. The factors referred to in s 5B(2) recognise that both the chance of the risk materialising and the likely seriousness of the harm should be addressed. The section also identifies the burden of taking precautions and the social utility of the activity creating the risk. The last two factors cannot operate against a finding of negligence in the present case…”

114. Senior counsel for RTS Holdings referred to Caltex Refineries (Queensland) Pty Ltd v Stavar [2009] 75 NSWLR 649 (“Stavar”) which dealt with what was termed a “novel circumstance” and identified the salient features that were relevant to the determination of the existence of a duty of care in such circumstances. At [103] Allsop P set out the salient features which include:

(a)   the foreseeability of harm;

(b)   the nature of the harm alleged;

(c)   the degree and nature of control able to be exercised by the defendant to avoid harm;

(d)   the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect himself or herself;

(e)   the assumption of responsibility by the defendant;

(f)   the nature of the activity undertaken by the defendant; and

(g)   the nature or the degree of the hazard or danger likely to be caused by the defendant’s conduct.

115. In Stavar the Court of Appeal continued at [104] to [106]:

“[104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.

[105] The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody (at 579 [49]). The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment.

[106] I have described “foreseeability” as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as “proximity” or “fairness” do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility.”

116. Senior counsel for Strategic Formwork submitted that for the purposes of any negligence action, it is necessary for the plaintiff to plead and identify the basis upon which Strategic Formwork owed a duty of care to him. As has been said in cases such as Roads & Traffic Authority v Dederer (2007) 234 CLR 330 (“Dederer”), a duty of care is not owed in a vacuum. It is dependent upon a defined class of relationships. Normal relationships include occupier and entrant, employer and employee, head contractor and principal. There was no such relationship between the plaintiff and Strategic Formwork. The existence of a duty of care is not determined or dependant on the belief or mind of a person in terms of foreseeability.

117. RTS Holdings referred to CSR Limited v Wren (1997) 44 NSWLR 463 (“Wren”), where the Court of Appeal considered the argument that CSR did not fall within any recognised category in which a duty of care is owed. The Court of Appeal stated (at 483):

“This of course is no barrier to the existence of a duty of care. The leading cases of the last fifty years have been concerned with novel and emerging circumstances where a duty of care has been held to exist. The mere fact that something is not beyond argument does not deny the existence of a duty of care. The question in all cases is to determine, whether, in a particular set of circumstances, a duty of care arises.”

118. And finally, in relation to breach of duty of care, the Court of Appeal in Wren (at 487) referred to the well known passage from Wyong Shire Council v Shirt [1980] HCA 12 (at 47-48) where Mason J stated:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

Did Strategic Formwork owe the plaintiff a duty of care?

119. The alleged duty of care owed by Strategic Formwork to the plaintiff derives from the relationship between Strategic Formwork, RTS Holdings and employees of RTS Holdings. While Strategic Formwork argued that the Court has always upheld the sanctity of the corporate structure, this of itself does not absolve it from owing a duty of care to the plaintiff.

120. I shall briefly summarise the set of circumstances to ascertain whether a duty of care arises.

121. Mr Gales said he reported to Mr Van Der Merwe and Mr Day. Mr Van Der Merwe personally trained Mr Gales. (Ex D1/4 Q&A 93-94).

122. Mr Van Der Merwe was the managing director of RTS Holdings. He is currently the director of Strategic Formwork. Mrs Van Der Merwe is the director of RTS Holdings. Mr Van Der Merwe explained the way in which the businesses were established, why they were established and the separate functions of the businesses.

123. Mr Gales said of the management structure of RTS Holdings “Graham or Luke would be in charge and they would let me know what was needed and what was needed at different times.” Mr Gales also explained that he was answerable to Mr Day, who was his direct supervisor. (Ex D2/4 Q&A 39, Q&A 48-53). Mr Gales was obliged to report to Mr Day, the general manager of Strategic Formwork, every day as to the progress of either a particular job or particular jobs. In the absence of Mr Day, Mr Gales would report to Mr Van Der Merwe.

124. As I explained earlier in this judgment, the relationship between Strategic Formwork and RTS Holdings was a commercial one. Strategic Formwork was reliant upon RTS Holdings to supply products to it. As Mr Van Der Merwe explained, he would go to the yard of RTS Holdings so as to ensure that the products Strategic Formwork required from RTS Holdings were on schedule because if Strategic Formwork did not get the products on time, the supply to clients became a problem. It was of critical importance that RTS Holdings were delivering stock to Strategic Formwork on time and getting it right. (T128). To my mind this was a commercial imperative and central to the relationship between RTS Holdings and Strategic Formwork. In fact Mr Van Der Merwe exercised a lot of control over the day to day running of RTS Holdings.

125. Casual employees, often backpackers, were obtained from the hostel. It was Mr Van Der Merwe’s practice to ring the hostel to secure casual labour. He hired staff directly and directed Mr Gales to employ staff. (Ex D1/5 [31]). On 8 April 2011 Mr Van der Merwe requested two men who were to be employed by RTS Holdings, who needed to have a car. On 27 April 2011, Mr Gales rang Mr Keogh, the manager of the hostel, to request employees for “Strategic”. (Ex J).

126. As to dealings with Mr Van Der Merwe, Mr Keogh said:

“Yes over the past 5 years or so Graham has rung up personally and spoke to me on occasions seeking labourers for work in their yard to sort and stack timber and formwork stuff… about a year ago when I found out it was at a new yard in Corrimal.

Q ….who did you understand was the company that was seeking these causal workers?

A Strategic Formwork.” (Ex H Q&A 21-22)

127. Mr Keogh believed the proposed employer of the backpackers to be Strategic Formwork. (Ex H Q&A20). Also, the workers who attended the yard were dressed in T-shirts bearing the name “Strategic” and there were bins at the yard with “Strategic” written on them.

128. In my view the salient features in the relationship between RTS Holdings and Strategic Formwork are:

1. It was foreseeable that an untrained casual employee would be injured by collapse of the beams.

2. There was a foreseeable risk of harm to the plaintiff inherent in the task of unloading the beams from the shipping container.

3. The harm alleged is physical harm.

4. Strategic Formwork had day to day control of the system of work, at the yard and of Mr Gales who was controlling the actual workflow on the day of the plaintiff’s accident.

5. The plaintiff was “vulnerable”. He was untrained and unskilled in labouring. He was likely to suffer injury if Strategic Formwork failed to take reasonable care to provide, or cause RTS Holdings to provide, a safe system of work.

6. The plaintiff, as a casual employee, relied on both Strategic Formwork and RTS Holdings.

7. Strategic Formwork, through Mr Van Der Merwe and Mr Day, assumed responsibility for the system of work, the premises at which the work was performed and the supervision through Mr Gales of the plaintiff’s employment.

8. There was proximity between the physical injury to the plaintiff and the actions of Strategic Formwork.

9. The operation of Strategic Formwork required it to have a yard where materials were present that were essential for its business. Strategic Formwork through Mr Van Der Merwe adopted the practice of using shipping containers and employing casual “backpacker” employees.

10. The plaintiff was an employee of a business essential to Strategic Formwork’s entrepreneurial activity.

11. There was a high degree of hazard and danger in the task being undertaken.

12. Mr Van Der Merwe knew or ought to have known that:

1. if the stack of beams was not stabilised by the use of gluts it was likely to collapse and injure an employee engaged in the task of unpacking it;

2. if the shipping container was not on a level base it was more likely that the beams would collapse;

3. those engaged in the work were likely to be inexperienced, unfamiliar and untrained in the work being performed; and

4. beams had emanated from the yard without stabilising gluts being used because Mr Van Der Merwe recalled talking to Mr Gales about gluts that were missing on the beams when the truck arrived in Canberra.

13. There is no issue of indeterminacy of liability.

14. There are no countervailing factors such as individual freedom, conflicting duties arising from statute or the need for coherence in the structure and fabric of the common law inconsistent with a duty of care owed to the plaintiff being imposed on Strategic Formwork.

129. Similarly, RTS Holdings submitted that the reasons Strategic Formwork owes a duty of care to the plaintiff is because:

(i)   of the conduct of Strategic Formwork through Mr Van Der Merwe and Mr Day; and

(ii)   it brought itself into a relationship with the employees of RTS Holdings. It placed its staff in the role of the management of RTS Holdings.

130. In these circumstances RTS Holdings submitted that a duty of care arises in Strategic Formwork in favour of the employees of RTS Holdings including the plaintiff. According to RTS Holdings, the plaintiff was a person so closely affected by Strategic Formwork’s acts and omissions it ought to have reasonably had him and co-workers in contemplation as being affected by those acts and omissions outlined earlier in this judgment. I also agree with these submissions.

131. My conclusion is that all of these factors above establish the existence of a duty of care owed by Strategic Formwork to the plaintiff.

The risk of harm – Was it foreseeable and not insignificant?

132. Counsel for the plaintiff submitted that the risk of harm which was known or ought to have been known to Strategic Formwork was that the plaintiff would sustain not insignificant injury in the event that the beams collapsed during the course of unloading them from the shipping container.

133. As previously stated, Strategic Formwork through Mr Van Der Merwe knew or ought to have known that the lack of gluts stabilising the beams in the shipping container, the lack of assistance of experienced personnel and the fact that the shipping container was not level were all causative of the fall of the beams which caused the plaintiff’s injury.

134. In my view the risk of harm as defined in s 5B of the Civil Liability Act was foreseeable to Strategic Formwork, or ought to have been foreseen by Strategic Formwork, because Mr Van Der Merwe and therefore Strategic Formwork knew that:

• The beams in the shipping container were liable to collapse unless the stack was stabilised by the position of gluts.

• The shipping containers were being used to store the beams.

• The beams that were being delivered to RTS Holdings and on-delivered to Strategic Formwork job sites were on occasions delivered without gluts. Mr Van Der Merwe directed Mr Day and the yard at Strategic Formwork that “gluts must be used period”.

• The delivery of beams without gluts represented “safety to everybody. The delivery of beams like that onto the site flagged up a change in material handling on site to resolve that issue.” (D1/4).

135. The plaintiff submitted that:

• Each of these facts were known to Strategic Formwork and had been known for a prolonged period of time.

• Strategic Formwork had the capacity to control the accident site, to direct the system of work which should have been engaged and to have implemented by way of directions to Mr Gales a means of carrying out the duties without the risk of injury.

• Strategic Formwork was in a position to monitor, direct and enforce the system of work which was adopted at RTS Holdings’ premises. (T263.5-9).

136. The evidence establishes that Mr Van Der Merwe, on behalf of Strategic Formwork:

• Visited the Corrimal site and inspected it on at least two occasions from January 2011 to 3 May 2011, issued instructions and gave directions to Mr Gales as to what should happen.

• Had prior to January 2011 provided Mr Gales with hands on instructions and training as to how he wanted the yard managed and tasks done; this included stacking the beams. (D1/5 [39]).

• For the month prior to the plaintiff’s accident (when the shipping container was delivered) Mr Van Der Merwe knew of the risk associated with the shipping container not being on a level surface.

137. It is my view that Strategic Formwork, through Mr Van Der Merwe, knew or ought to have known that the risk of harm was foreseeable and not insignificant. Further, the risk of harm is not insignificant and therefore s 5B(2) of the Act is satisfied. It is my view that s 5B(1)(a) of the Act is satisfied on the above facts.

138. So far as the reasonable precautions are concerned, on Mr Van Der Merwe’s evidence, the beams collapsed because:

1. the gluts were not in position;

2. the shipping container was not level; and

3. the plaintiff was an inexperienced employee.

139. The injury to the plaintiff would have been avoided if Strategic Formwork had provided proper direction to Mr Gales by means of a documented safe work method statement. Also injury to the plaintiff would have been avoided if Mr Van Der Merwe and Mr Day took reasonable care to provide an adequate system of supervision and inspection of the yard.

140. Strategic Formwork was required to take reasonable care to prohibit the plaintiff from working in the shipping container in circumstances where no inspection had been undertaken to ensure that the load was stabilised by the presence of gluts and the shipping container was on a level surface. It is my view that s 5B(1)(c) of the Act is satisfied in that Strategic Formwork failed to take the precautions a reasonable person would have taken against the risk of harm.

141. In terms of the analysis required by s 5B(2) of the Act, the plaintiff submitted that:

1. There was a high probability that the beams would collapse and harm be sustained if the precautions outlined in the particulars identified above were not taken;

2. The consequence of the collapse on a worker in the position of the plaintiff was likely to result in serious harm. Indeed it is likely to result in catastrophic harm;

3. There was no great burden in taking the precautions suggested above. There is no reason why the shipping container could not have been placed on a level surface, the gluts in position as required and an experienced employee available to provide instruction, guidance and assistance to the less experienced plaintiff prior to the commencement of the work; and

4. There is nothing in the activities of Strategic Formwork that justifies the creation of the risk of harm.

142. It is my view that a reasonable person, in the circumstances outlined above would have taken precautions. They were firstly, to ensure that the beams were on a level base; secondly, gluts had to be used to stabilise the beams; and finally, a proper inspection should have been carried out by an experienced person (not the inexperienced Mr Palmer and/or the plaintiff) to ensure these precautions had been complied with. Putting a worker in the position of the plaintiff where he was unloading unstable beams in an enclosed shipping container where those precautions were not taken posed a significant risk that was likely to result in serious harm. There was no additional burden placed on Strategic Formwork because, as Mr Van Der Merwe acknowledged, these steps were always meant to have taken place. I should add that there is no social utility in the activity of unloading beams from a shipping container that creates the risk of harm. In my view s 5B(2) of the Act is satisfied. Strategic Formwork owed the plaintiff a duty of care and that duty of care was breached. Section 5B of the Act is satisfied.

315. RTS Holdings submitted that the plaintiff’s qualifications, skills and experience are such that he should not encounter any difficulty in obtaining employment in the open labour market.

316. Strategic Formwork submitted that the plaintiff is fit for his current employment and at the present time and into the future the plaintiff’s disabilities are such that until he reaches the age of at least 50 any allowance for future economic loss should be modest.

317. Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99 concerns the award of a “buffer” or as it sometimes is known, “a cushion”. Basten JA (with whom McColl and Macfarlan JJA agreed) stated at [84]:

“[84]   As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] – [5]) per Giles JA; applied K’mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that ‘a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future’, but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.”

319. It is my view that this Court is capable of making assumptions concerning the future earning capacity on which the award is to be based that accord with the plaintiff’s most likely future circumstances but for the injury. Hence, in my view it is not appropriate to make an allowance for future economic loss in the form of a buffer.

320. The assumptions I make are that the plaintiff has completed tertiary education including a Master’s degree. He had been in paid employment before the accident and has been able to return to work after the accident, albeit a different type of employment to the teaching career he had planned. Due to the plaintiff’s education standards and his determination, reflected in both his rehabilitation and his past work history, I make the assumption that the plaintiff was but for the injuries likely to move into an area of above average income earning capacity and gain promotions in whatever career he pursued. While he is still able to work he is limited in the physical work he can do while he is still able to work on a full time basis until 50 years.

321. I make the assumptions that due to the injuries he suffered as a result of the accident he is restricted in what he can do. The neurologists agree that the plaintiff should not work with little children where he is required to squat, knee and sit on low chairs. He should not work with children with behavioural disorders nor should he undertake any active physical education such as demonstrating exercises. The neurologists agree that he would be able to work in sports psychology or administration and he would need to choose work which was consistent with his disability. The plaintiff should not participate in physically demanding activities which include running and it is agreed that he would need to be more selective in his job choice. However, he will not be able to work very long days and will need to probably stick to an average 40 hour week.

322. The joint report of the neurological experts estimate the plaintiff would need to retire from fulltime work between 5 and 15 years earlier than the normal retiring age of 65 (now 67). The neurologists say it may be possible for the plaintiff to work part time and this may advance his retiring age by a year or two but even working part time, it is likely on the balance of probabilities that premature retirement will be necessary and the plaintiff will likely find it necessary to decrease his hours of work from the age of 50 onward. Hence, the other assumptions I make is that in accordance with the rehabilitation and neurological conclave reports, the plaintiff will suffer a severe reduction in income and a shortening of his working life by between 5 and 15 years.

323. It is my view, based on these assumptions, that had the plaintiff not been injured he would have been employed on a fulltime basis until retirement age of 67 years. The best way I can assess the plaintiff’s loss of income is by taking the average wage in Australia of $1,000 net per week as what he would have earned but for his accident as a starting point. Within a few years the plaintiff would be earning at least $1,200 net per week. This also takes into account that in my view but for the accident he would have been physically fit and had more stamina. As I said, over time he would have been promoted in whatever career he pursued. In my view, he would have earned above the average wage with increases in salary within a few years of working but I cannot say exactly when he would have been promoted and exactly how much he would have earned when promoted. Taking this into account, it is my view as an average the plaintiff would have earned $1,200 net per week less what he would be earning at NHS on a full time basis, namely $692 net until the plaintiff reaches 50 years of age. The 5% multiplier for 19 years is 666.4. Future economic loss for 20 years is $508 x 646.2 x 85% (less 15% for vicissitudes) equating to $279,029.16.

After the plaintiff reaches 50

324. The plaintiff submitted that the reduction of income and shortening of his working life must be taken into account along with the risk of future degenerative changes within the spine at adjacent levels to the fusion and the wasting of his left leg, together with his ongoing need to engage in constant exercise and rehabilitation by way of neuro physiotherapy.

325. Strategic Formwork’s schedule provides for a staggered work capacity and retirement. Strategic Formwork submitted that until the age of 50, the plaintiff would be employed full time. The plaintiff will then work part time for 5 years from age 50 at 50% of the fulltime rate of $1,000. Strategic Formwork submitted that the plaintiff would then retire at 55 years and has provided an allowance for 10 years until the age of 65 at $1,000 per week and an allowance of $30,000 for periods of unemployment and additional sick days.

326. With respect to the plaintiff’s remaining working life, RTS Holdings also provided for a staggered work capacity from 50 years. RTS Holdings submitted that on the balance of probabilities the plaintiff’s working life will be reduced to working part time for the last 10 years of his normal working life, that is, between the ages of 55 and 65. RTS Holdings also make an allowance of 25 weeks at $300 per week x 743.6 x 85% which equals $192,169 plus 10 years at $600 per week x 412.9 x 85% which equals $210,579. $192,169 + $210,579 = $402,747. RTS Holdings submitted that the plaintiff’s total amount of future earning capacity between 55 and 65 is $402,747.

327. It is my view that Strategic Formworks’ submissions as to the plaintiff’s staggered working capability until 50 years is reasonable but I disagree with the quantum. I have based the plaintiff’s earning on $1,200 net per week and that he would have worked until the age of 67.

328. Between 50 and 55, the plaintiff will work part time at 50% of the full time rate of $1,200 net per week. It is more likely that the plaintiff will then retire at 55 years of age. An allowance from 55 to 67 should be made at $1,200 net per week. The neurologists agree that the plaintiff will require additional sick leave and annual leave above those that are normally required and his job choices are limited so as the plaintiff ages he may experience some period of unemployment. A future allowance of $50,000 should be made for periods of unemployment and additional sick leave. I allow the amount $212, 622.84. Hence the total allowance for future economic loss is $491,652.00.

Future superannuation

329. In relation to future loss of superannuation, Strategic Formwork submitted there is no evidence that the plaintiff would receive the benefit of employer contributions to superannuation in the United Kingdom so no allowance should be made.

330. The plaintiff and RTS Holdings have made an allowance for future superannuation at 13.5%.

331. I allow future economic loss at 13.5%.

Past domestic care

332. Section 15 of the Civil Liability Act reads:

“15   Damages for gratuitous attendant care services: general

(1)  In this section:

“attendant care services” means any of the following:

(a)  services of a domestic nature,

(b)  services relating to nursing,

(c)  services that aim to alleviate the consequences of an injury.

“gratuitous attendant care services” means attendant care services:

(a)  that have been or are to be provided by another person to a claimant, and

(b)  for which the claimant has not paid or is not liable to pay.

(2)  No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a)  there is (or was) a reasonable need for the services to be provided, and

(b)  the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c)  the services would not be (or would not have been) provided to the claimant but for the injury.

(3)  Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a)  for at least 6 hours per week, and

(b)  for a period of at least 6 consecutive months.

…”

333. Strategic Formwork submitted that there was undoubtedly an intense period of care provided, however given the plaintiff’s return to Australia eight months after the accident, it must have been relatively short in duration. Accordingly, Strategic Formwork has submitted that there should be an allowance of 6 hours per week for six months at a rate of $25.68 per hour which equates to the sum of $4,006.

334. The plaintiff submitted that he has required discrete periods of domestic assistance which has been provided on a gratuitous basis as follows:

1. From 4 May 2011 to 25 June 2011 (when he was discharged from Prince of Wales hospital), being 7.5 weeks at a minimum of 5 hours per day at the statutory rate of $27 per hour equals $7,087.50. The evidence of the plaintiff’s parents and Roxy is that they performed more domestic care while the plaintiff was in hospital, leaving aside the emotional support.

2. From 26 June 2011 for 2 weeks for 5 hours per day at the rate of $27 per hour equals $1,890. This period reflects when the plaintiff was an inpatient at Southport & Ormskirk hospital. Once again, the evidence of the plaintiff’s parents and Roxy is that more domestic assistance was performed by them, leaving aside the emotion support.

3. From 10 July 2011 to 9 September 2011 at 10 hours per week or 2 hours per day for 5 days a week at the rate of $27.00 per hour for 8.7 weeks equals $2,349. This was when the plaintiff was attending Northwestern Regional Spinal Injury Centre. His parents or Roxy were driving and staying with the plaintiff while he spent those days as an outpatient. I allow this amount of $2,349.

4. From 10 September 2011 to January 2012 at 7 hours per week for 16 weeks at the rate of $27.00 per hour equals $3,024.00.

Total: $14,350.50.

335. The plaintiff returned to Australia in January 2012 so I deduct 4 weeks of domestic care claimed by the plaintiff (ie $27 x 4 weeks = $324). In my view the amounts claimed by the plaintiff for past domestic care are reasonable. I allow the sum of $14,026.50 for past domestic care.

Future domestic assistance

336. The plaintiff submitted he should have an allowance for the following future domestic assistance on a commercial basis:

1. Handyman for 4 hours per month at £15 per hour ($26.02): $24,013.65.

2. Domestic assistance for 6 hours per month to age 60 at £12 ($20.81) per hour: $28,804.23.

3. From age 60 at 3 hours per week at $20.81 per hour for 26 years and deferred: $11,085.67.

Total: $63,903.55.

337. Strategic Formwork submitted that the plaintiff is not entitled to an allowance for future domestic assistance on the basis that the joint neurologists have provided for only 2.125 hours per week, which does not meet the threshold in s 15 of the Civil Liability Act.

338. At present the plaintiff is managing his domestic chores but requires assistance with the heavier chores which could aggravate his low back pain. The neurologists anticipate that his low back pain will continue and estimate that the plaintiff will need assistance ranging from four to six hours monthly. The neurologists also agree that the plaintiff will require assistance with maintenance for DIY activities around the home. Assuming that the plaintiff lives in a detached cottage they estimate that three to four hours per month would be appropriate.

339. Roxy gave evidence that she does the hoovering, washing and mopping because it requires the plaintiff to bend. The plaintiff will help out with the cleaning, such as cleaning the kitchen. They share the cooking. (T85). If the plaintiff gets down to do things low on the floor, Roxy has to pull him up. They currently do not do a huge amount of DIY in their flat.

340. For the next few years it is not likely that the plaintiff will require additional handyman or domestic assistance. However, as he ages, he will experience accelerated spinal ageing and his capacity for activities of daily living will be slower. Therefore, there is a possibility that he will require additional assistance, particular handyman assistance, but also possibly domestic assistance, which is likely to be required in his 60’s. It is estimated as he gets towards his 60’s these activities and his needs will increase. If the plaintiff had not suffered the injuries he did in the accident he would not have required any domestic assistance. It is my view that the plaintiff’s claim for future domestic care obtained on a commercial basis is reasonable. I allow the sum of $63,903.55 for future domestic assistance on a commercial basis.

Housing adjustments

341. The plaintiff claims an allowance for non slip flooring and grab rails together with housing improvements at $10,000. Strategic Formwork submitted that there should be no allowance for housing adjustments as they are not reasonably necessary and the plaintiff has provided no evidence as to cost.

342. The neurologists agree that due to the weakness and wasting of the plaintiff’s left leg, he is vulnerable to slipping on a wet floor and non slip flooring and grab rails in the bathroom would lessen the chance of further injury.

343. I allow the sum of $10,000 for the provision of non slip flooring and grab rails, in accordance with the neurologists’ opinion. It is my view that the sum of $10,000 is a reasonable amount for these items.

Travel

344. The plaintiff and Strategic Formwork agree that an allowance should be made for travel. The plaintiff claims an allowance for premium economy for trips between two and six hours. The plaintiff claims business class for trips of six hours or more and assistance with baggage totalling $40,000. Strategic Formwork allows an amount of $5,000 once every five years, amounting to $20 per week until age 75. This totals $16,156.

345. The sum of $40,000 is reasonable and the method of travelling is in accordance with the opinions of the rehabilitation experts. I allow the sum of $40,000.

Automatic vehicle

346. The plaintiff claims the amount of $14,000, comprising of the cost of an automatic vehicle together with additional costs over his life. Strategic Formwork submitted that the overall evidence does not support a claim for a vehicle.

347. The plaintiff’s evidence is that an automatic car would be helpful. While he currently drives 15 minutes to visit a patient for work and 15 minutes back to the office, when he has tried to drive for a longer period he says that using the clutch is tiring because he has a lack of sensation, he sometimes gets a buckling feeling in his left leg. It is my view that due to the injuries he sustained, he requires an automatic car. This also takes into account for the latter years, when his condition will deteriorate. I allow the sum of $14,000.

(3)   Future out of pocket expenses

Taylor v Walker allowance

348. The plaintiff submitted that the imprecise nature of a number of the components of future out of pocket expenses are totally dependent upon the manner in which the plaintiff’s injuries progress. This is in regards to either the degenerative changes referred to in the rehabilitation and neurological conclave reports, together with the risks of future equipment as referred to in the report of Mr Soni dated 3 April 2013. As a result, it is appropriate to deal with the future treatment costs by way of a global sum: see Taylor v Walker [2016] NSWCA 100. Accordingly, the plaintiff says a future allowance ought be made for all of the components of $200,000 to $250,000.

349. Strategic Formwork disagreed and submitted that there should be no Taylor v Walker [2016] NSWCA 100 allowance because there is no imprecision since all matters have been addressed in the joint reports.

350. In Taylor v Walker, Ward JA (with whom Payne JA & Harrison J agreed) in relation to future out of pocket expenses stated at [21]:

“21   In my opinion no error is shown in the basis on which her Honour approached [future out of pocket expenses]. The fact that certain items were able, on the evidence, to be costed but others were not makes it appropriate for her Honour to have awarded a global sum to take into account the various matters raised in the evidence and to which her Honour referred. There was no inconsistency in so doing. The award of a global sum was a course open to her Honour (see Nominal Defendant v Lane [2004] NSWCA 405; Penrith City Council v Parks [2004] NSWCA 201). Ground 1 is not made out.”

351. It is my view that a Taylor v Walker allowance should not be made because future out of pocket expenses can be specifically ascertained. Hence, I disallow this claim.

Specific future out of pocket expenses

352. With regard to future out of pocket expenses, the plaintiff and Strategic Formwork agree on the following:

1. Attendance upon occupational therapist from age 60 that equates to $2,000; and attendance upon spinal physician twice per annum at $225 that equates to $8,648.27. I allow both these amounts.

353. The plaintiff and Strategic Formwork disagree on the following future out of pocket expenses:

Neurophysiotherapy and physiotherapy

354. The plaintiff relied upon the report of Mr Soni dated 3 April 2013. Mr Soni reported that physiotherapy would be vital, especially in the latter years of the plaintiff’s life, as he is likely to suffer with early wear and tear related pain, stiffness and restriction of movement of his upper limbs. He considered one physiotherapy session once per fortnight for the next five years and the same for the plaintiff’s latter years of life.

355. The plaintiff claims $47,026.07. This comprises of neurophysiotherapy consultations at £85 per consultation ($146.88) once per week for five years and thereafter six times per annum for 51 years deferred for five years equals $13,023.30 making a total of $47,026.07.

356. Strategic Formwork submitted this amount should be $16,886, as per Dr Buckley’s report dated 17 May 2013. Dr Buckley was of the view that due to the likelihood of exacerbations of pain the plaintiff will require six physiotherapy treatments annually; that is three treatments weekly for two weeks. Professor Jones does not believe that the plaintiff requires hands on therapy.

354. The plaintiff finds these sessions helpful. He has muscle atrophy in his quadriceps and weakness around his left hip, hip flexors and weakness in his trans-abs and paraspinal muscles. The plaintiff finds this therapy beneficial and still consults Ms Field once a week. The neurologists agree that the plaintiff should undertake exercise and light physical work such as that required by an exercise physiologist and that he should have available access to a physiotherapist who could advise him to avoid over exertion and maintain his stability due to the fact that he is more likely to sustain minor injuries from such as falls.

355. In my view, the views of the plaintiff, the neurologists and Mr Soni who has been treating the plaintiff should be preferred over the reports of Dr Buckley and Professor Jones. I allow the sum of $47,026.07 for neurophysiotherapy and physiotherapy

Profiling bed

359. The plaintiff says he should have a profiling bed ($8,801.07), replaced every 10 years plus maintenance, which equals $25,330.65. Strategic Formwork says there should be no allowance for this, as the overall evidence does not support the plaintiff’s claim. The plaintiff has not provided any evidence of the need for or cost of a profiling bed. Hence, I disallow this item.

Future medication

360. The plaintiff says he should have an allowance for medication at £16 ($27.78) per month to age 50 = $4,271.62 and thereafter at £20.00 ($34.73) for 26 years but deferred for 20 years, which equals $2,309.70. This amounts to $6,581.31. Strategic Formwork says the plaintiff should have an allowance for amitriptyline and codeine at £16 x 1.725, 6 weekly = $4,583. I allow the sum of $6,581.31 as this takes into account that additional medication may be required in the future.

Odstock device

361. The parties agree that the plaintiff should have an allowance for an Odstock Wireless Electrical Stimulating device at £2,795 ($4,847.45). Strategic Formwork has not made an allowance for annual costs of £750.00 ($1,295.96). The total amount the plaintiff seeks, including annuals costs, is the sum of $29,744.64. The total amount of allowance Strategic Formwork has provided is $4,700. It is not much good having this device but not maintaining it. Hence, I allow the sum of $29,744.64.

General practitioners and urological treatment

362. The plaintiff also claims allowances for attendance upon general practitioners four times per annum for 30 years and thereafter from age 60 for a further 26 years at 12 sessions per annum. The rehabilitation physicians agree the plaintiff should consult his general practitioner four times per annum. (Ex E, 942).

363. Strategic Formwork says that the allowance for attendance upon general practitioners should be $6,515, as per Dr Buckley’s report dated 3 July 2015, which recommends four times annually at $73 per visit. (Ex E, 813) Strategic Formwork submitted that the allowance for urological treatment/bladder care should be $4,000.

364. The rehabilitation physicians also agree that the plaintiff needs a renal ultrasound every two years. (Ex E, 942). Dr Buckley recommends regular review of the plaintiff’s bladder function and an annual renal ultrasound, with an IVP (Intravenous Pyelogram) every three years thereafter and an annual urological assessment by a specialist urologist. (Ex E, 796).

365. As the plaintiff ages, his condition will deteriorate so I make an allowance for this. I allow the sums claimed by the plaintiff for general practitioner consultations as being reasonable, $73 x 4 = $292 x 56 years equates to $196,352. I allow the sum of $365 for a renal ultrasound every two years, $365 x 28 years equates to $10,220. I allow the sum of $495 every three years for a IVP which equals $495 x 19 years = $9,405; and I allow the sum of $85 for an annual urological assessment by a specialist urologist which equals 85 x 56 years = $4,760. I allow the sum of $40,737 for general practitioners and urological specialists. (Ex E 813).

Costs

366. By consent, the parties have requested that the Court refrain from making any costs orders until they have had an opportunity to be heard on this issue. (see letter LawAdvice, 26/10/2016).

Judgment

That the defendants are to pay the plaintiff the sum of $1,672,626.19.

The Court orders that:

1. Costs are reserved.

The Court notes that:

1. The work injury damage amount is in the sum of $740,493.

ON 30 MAY 2017 BY CONSENT AMENDMENTS AND COSTS ORDERS WERE MADE AS FOLLOWS:

The Court notes in relation to paragraph 366:

(1)   Verdict and judgment for the plaintiff as against Strategic Formwork Pty Ltd in the sum of $1,299,773.

(2)   Verdict and judgment for the plaintiff as against RTS Holdings Pty Ltd in the sum of $724,989.

(3)   As between RTS Holdings Pty Ltd (cross claimant) and Strategic Formwork Pty Ltd (cross defendant) verdict for RTS Holdings Pty Ltd as against Strategic Formwork Pty Ltd in the sum of $200,472 with each party to pay its and/or their own costs.

(4)   In relation to Strategic Formwork Pty Ltd (cross claimant) and RTS Holdings Pty Ltd (cross defendant) the cross claim is dismissed and each party is to pay its and/or their own costs.

(5)   The work injury damage amount is in the sum of $724,989.

The Court orders that:

(6)   Strategic Formwork Pty Ltd is to pay the plaintiff’s costs on an ordinary basis.

(7)   The plaintiff and RTS Holdings Pty Ltd are to pay their/its own costs.

Schedule of Damages

Non economic loss – 70%	423,500.00
Past out of pocket expenses	231,965.63
Future out of pocket expenses • Taylor v Walker allowance • Physician and occupational therapist • Neurophysiotherapy and physiotherapy • Profiling Bed • Future medication • Odstock device • General Practitioner & Urological	Nil 10,648.27 47,026.07 Nil 6,581.31 29,744.64 40,737.00
Past economic loss • Football (past and future economic loss) • Past economic loss	15,000.00 120,223.62
Fox v Wood	34,000.00
Past superannuation	13,244.60
Future economic loss • Up until age 50 • After the plaintiff reaches 50	$279,029.16 $212,622.84	491,652.00
Future superannuation	66,373.00
Past domestic assistance	14,026.50
Future domestic assistance	63,903.55
Housing equipment	10,000.00
Travel expenses	40,000.00
Automatic vehicle	14,000.00
Total	$1,672,626.19

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Amendments

02 March 2017 - Removed extra semi colon from coversheet

02 March 2017 - Coversheet - amended counsel's name from to Calloway to Callaway

30 May 2017 - Paragraph 366 amended

Decision last updated: 30 May 2017