Hossain v Unity Grammar College Ltd

[2019] NSWSC 1313

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hossain v Unity Grammar College Ltd and Ors [2019] NSWSC 1313

Hearing dates:

23; 24; 25; 26; 27 July 2018; 1; 3 August 2018

Date of orders:

01 October 2019

Decision date:

01 October 2019

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See [256]

Catchwords:

NEGLIGENCE – Severe personal injury – gas explosion at place of work – second stage gas regulator negligently installed – gasfitting at school – Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed)

 

CIVIL LIABILITY – Common Law duty – whether duty of principal contractor can give rise to a non-delegable duty – whether duty will always be discharged by appointment of independent contractor – requirement of certain factors – held circumstances can exist between principal contractor and plaintiff giving rise to non-delegable duty.

 

CIVIL LIABILITY – Statutory duty – whether breach gives rise to private right of action – whether contrary to legislative purpose of Regulation – whether clause is penal in nature – whether plaintiff included in class of individuals to whom a duty is owed – statutory breach made out.

 

DAMAGES – Joint liability – law of negligence – proceedings for recovery of damages for personal injury – multiple parties – action may be brought against each tortfeasor – subject to statutory modifications – not to recover more than full

        satisfaction for loss against one or more of the tortfeasors – whether any of the active parties legally responsible for Mr Hossain’s injuries.

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B(1)(f), 5A, 5D, 16
Corporations Act 2001 (CTH), s 601AG
Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed)
Dangerous Goods Regulation 1978 (NSW) (Repealed)
Environmental Planning & Assessment Act 1979 NSW, ss 190H,(5), 109M
Evidence Act 1995 (NSW), ss (3)(b), 69(2)
Gas Supply Act 1996 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Avropiling Pty Ltd v Boveski [2018] NSWCA 146
Bennett v Minister of Community Welfare (1992) 176 CLR 409; [1992] HCA 27
Bevillesta Pty Ltd and Liberty International Insurance (2009) NSWCA 16 Burrows v March Gas & Coke Co. (1872) LR7 Ex 96
Blatch v Archer (1774) 1 COWP 63; 98 ER 969
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Burrows v March Gas & Coke Co. (1872) LR7 Ex 96
Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24
Caltex Refiners (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Croston v Vaughan [1938] 1 KB 540
CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 466; [2013] NSWCA 49;
Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Davie v New Merton Board Mills [1959] AC 604;
Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357
Fangrove Pty Ltd v Todd Group Holdings Pty Ltd [1998] QCA 404; [1999] 2 Qd R 239
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Grant v Sun Shipping Co. Ltd [1948] AC549
HIH Casualty & General Insurance Limited v Pluim Constructions Pty Ltd [2000] NSWCA 281
Huddart Parker Ltd v Cotter (1942) 66 CLR 624; [1942] HCA 34
I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486;
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218; [1981] HCA 52
Ku-ring-gai Council v Chan [2017] NSWCA 226; 224 LGERA 330
Laresu Pty Ltd v Clark [2010] NSWCA 180
Laundess v Laundess (1994) 20 MVR 156; Aust Torts Reports 81-316
Leichardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
McDonald (T/as B.E. McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 294; (2004) Aust Torts Reports 81-768
Najdovski v Krnojlovic [2008] NSWCA
O’Connor v SP Bray Ltd (1936) 56 CLR 467; [1937] HCA 18
Public Transport Commission of New South Wales v J
MacLenan v Segar [1917] 2KB 325
Public Transport Commission of New South Wales v J Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336
McDonald (T/as B.E. McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust. Torts Rep. 81 – 768
Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28
South West Helicopters Pty Ltd v StePHenson [2017] NSWCA 312; (2017) 327 FLR 110
Rylands v Fletcher (1868), LR 3HL 330
State Rail Authority of New South Wales v Brown [2006] NSWCA 220
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
TNT v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47
Voli v Inglewood Shire Council (1963) 110 CLR; [1963] HCA 15

Texts Cited:

Glass McHugh Douglas, The Liability of Employer’s, second edition (1979)
Hart & Honoré, Causation in the Law, second edition (1985)

Category:

Principal judgment

Parties:

Delwar Hossain (Plaintiff)
Unity Grammar College Ltd (First Defendant)
Binah Projecs Pty Ltd (Second Defendant)
Five Star (Sixth Defendant)
Elgas Limited (Seventh Defendant)
Cohen and Associates Pty Ltd (Third Cross Defendant on first cross-claim)

Representation:

Counsel:
A Black SC with E E Welsh (Plaintiff)
D A Lloyd (First Defendant)
M Fordham SC with N Condylis (Third Defendant)
R Cavanagh SC with J Tat (Sixth Defendant)
P Morris SC (Seventh Defendant)
R N O’Neill (Third Cross Defendant on first cross-claim)

  Solicitors:
Young & Muggleton (Plaintiff)
HWL Ebsworths (First Defendant)
Holman Webb (Third Defendant)
McCabe Curwoods (Sixth Defendant)
Meridan Lawyers (Seventh Defendant)
McDonnell Schroder (Third Cross-Defendant to the First Cross-Claim)

File Number(s):

2013/401848

Judgment

1. The plaintiff, Mr Hossain, suffered very serious injuries in a gas explosion on 10 February 2010 at Unity Grammar College (“the College”), where he worked. The College is the first defendant. Mr Hossain had commenced employment on 4 May 2009 as caretaker and night watchman for the College. The other active parties are: the third defendant, Insurance Australia Limited; the sixth defendant, Five Star Universal Plumbing Pty Ltd; the seventh defendant Elgas Ltd; and the third cross-defendant Bernie Cohen and Associates Pty Ltd. These active parties will be referred to as “IAL”, “Five Star”, “Elgas” and “Cohen” respectively. Their role in the proceedings, for introductory purposes, may be described in these broad terms:

1. IAL insured a now deregistered company, Binah Projects Pty Ltd (“Binah”). Binah was the principal contractor for the construction of the College. Binah is named as the second defendant but proceedings are stayed by dint of Corporations Act 2001(CTH). IAL is sued under s 601AG Corporations Act;

2. Five Star is a plumbing and gasfitting contractor which performed work on the second stage of the building works at the College. Its work included gasfitting work from the one LPG gas tank on site but it did not perform the defective work which was the direct and proximate cause of the explosion;

3. Elgas supplied and installed the LPG gas tank and supplied the LPG gas used at the College;

4. Cohen was the private building certifier for the construction of the College.

Agreed facts

2. Certain important facts were agreed by all active parties (Exhibit B). I will summarise them in my own terms.

3. In 2007 and 2008 Binah was the principal contractor for the construction of the College. By agreement dated 21 June 2007 Binah engaged Enma Plumbing Pty Ltd (“Enma”), now also deregistered, uninsured and not a party to the proceedings, to carry out work including the installation of the LPG system (“the gas installation”) at the College. When carrying out this work Enma installed what is referred to in the expert evidence as a second stage regulator, connected to and forming part of the gas installation, in the ceiling of Building “D”. The placement of the regulator in that location was contrary to the instructions of the manufacturer of the regulator, the provisions of Australian Standard 5601-2004 and the provisions of the Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed) (“DGR”). I add that the DGR was repealed by Gas Supply Amendment Regulation 2010 (NSW), made under the Gas Supply Act 1996 (NSW), with effect from 3 September 2010.

4. In November 2007, under a contract with the College, Elgas delivered a 2.4 KL LPG storage tank to the College. On or about 11 February 2008, Elgas supplied 2138 litres of LPG gas to the gas tank. Between February 2008 and February 2010, the gas appliances at the College were connected to the LPG installation installed by Enma and supplied with gas from the storage tank.

5. In 2009 Five Star was engaged to, and carried out, work on the second stage of the building works at the College which included the installation of a new gas line connected to the existing gas line installed by Enma at its tank end. I interpolate that other evidence establishes that Five Star quoted for this work on 6 July 2009 and had probably completed the quoted work by 20 November 2009 when the College made the third of three payments in 2009 to Five Star. I also add, it was intended that additional gasfitting work including the connection of appliances would be carried out on second stage of the building works at the College when construction advanced sufficiently. Five Star capped its line it at its output end.

6. By 10 February 2010, LPG gas, which had vented from the regulator, settled in the ceiling space of building “D” and into the floor below, and on that day, exploded. As a result of that explosion the plaintiff suffered severe personal injury.

Context

7. That “hard cases make bad law” is an aphorism well known to lawyers, the meaning and validity of which is often controversial. It comes to mind in the present case because, as I have indicated, none of the active parties responding to Mr Hossain’s claim directly performed work which, by the act or omission of any of them, was the proximate cause and origin of the explosion and subsequent fire in which Mr Hossain received his severe injuries. Had Enma been a good common law defendant either in its own right or through adequate insurance none of the present responding parties might have been an essential party to the proceedings. I should add that I borrowed the expression “direct and proximate cause” from insurance law deliberately to emphasise the importance of Enma’s negligence as a cause of the explosion and Mr Hossain’s injury. Apart from the case against the College, the test for causation in negligence cases is found in s 5D Civil Liability Act 2002 (NSW). As against the College the common law subsists: s 3B(1)(f) Civil Liability Act.

8. However the concept of joint or several liabilities is one very familiar to lawyers, particularly in the law of negligence. In proceedings for the recovery of damages for personal injury, which are unaffected by the provisions of Part 4 Civil Liability Act, a plaintiff may bring an action against each tortfeasor liable in respect of the same damage and obtain judgment against each for the whole of her or his loss (subject to statutory modifications to the quantum of damages recoverable in a given category of case). She or he may not recover more than full satisfaction for his loss from one or more of the tortfeasors. The loss may be spread among the various tortfeasors liable in respect of the plaintiff’s damage by orders for statutory contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (“LRMPA”). This principle was expressed in the Scottish case of Grant v Sun Shipping Co. Ltd [1948] AC 549 at p 563 by Lord Du Parcq in the following way:

…I regard it as a well settled principle that when separate and independent acts of negligence on the part of two or more persons have directly contributed to cause injury and damage to another, the person injured may recover damages from any one of the wrongdoers, or from all of them … If the negligence or breach of duty of one person is the cause of injury to another, the wrongdoer cannot in all circumstances escape liability by proving that, though he was to blame, yet but for the negligence of a third person, the injured man would not have suffered the damage of which he complains. There is abundant authority for the proposition that the mere fact that a subsequent act of negligence has been the immediate cause of disaster does not exonerate the original offender.

His Lordship referred to Burrows v March Gas & Coke Co. (1872) LR7 Ex 96 where the defendant who supplied a defective pipe was not exonerated because “the immediate cause of an explosion which caused damage to the plaintiff was the negligence of a third party, a gasfitter who having been called in to look for the source of an escape of gas, searched for it with a lighted candle” (Grant at 563).

9. It follows that there is nothing “hard”, unusual or contrived about a negligence case for the recovery of personal injury damages where a principal player is absent from the cast. The mere fact that the negligence of one, absent tortfeasor’s negligence may be styled the direct and proximate cause of an injury does not exonerate other negligent parties. The question for determination in the case is whether any of the active parties are legally responsible for Mr Hossain’s injuries.

Circumstances of the plaintiff’s injury

10. In his evidentiary statement of 10 July 2014 (Exhibit D), Mr Hossain described the circumstances of his injury of 10 February 2010 in the following terms (at p 4[20]):

I had been undertaking traffic control duties at the school that morning because some new roadways had been installed over the holidays and the school was still settling in to a routine with students being dropped off in the morning. When I finished the traffic control work I had to return the signs and other equipment, which I had with me to the storeroom. The storeroom was located in D Building. My last memory is of entering the storeroom and switching on the lights. The next think I remember is that my body was on fire and after that I must have fallen unconscious.

11. There is a suggestion arising out of the evidence of Inspector Erika Groll, the lead investigator from the WorkCover Authority for the investigation of the explosion, that the explosion may have been caused by Mr Hossain lighting a cigarette. This suggestion arises out of the record she made at page 4 of her notebook (Exhibit F) that “cigarettes and lighter” had been found within the blast site. Her factual report (Exhibit C, p156) recorded that police and fire fighters were of the view “that the incident involved an LPG leak from the regulator and that the ignition source was unknown.” The regulator was located above a toilet cubicle within or near the storeroom. Some of the pleadings on behalf of the defendants raise as a particular of contributory negligence that the plaintiff was lighting a cigarette (contrary to school rules) when the explosion occurred and that this was the source of ignition. The plaintiff was barely cross-examined about this and no defendant argued that I should make such a finding. Had lighting a cigarette been the ignition source, contributory negligence would not necessarily follow. Mr Hossain did not know and could not have known of the failure of Enma to vent the regulator to the atmosphere, or of the accumulation of released gas. He had noticed a “funny smell” in the storeroom the previous day, but this is nothing, in my view, to alert him to the great danger he faced.

12. Mr Hossain’s evidence is that the cigarettes and lighter were in his pocket. I accept his evidence that the conflagration was immediately preceded by him turning on the light switch. Ignition by spark either in the light switch or in the fluorescent light fittings in the storeroom, according to the expert evidence, is a possible source of ignition (see for example Mr Ross Brown’s report of 9 July 2014, p 10 [41]). In his report of 21 September 2015, Mr Peter Wenning (p 6 [19]) stated:

It is likely that either a cigarette lighter or light switch ignited the gas/air mixture and caused the explosion.

In my view, the more likely explanation is that the explosion was initiated by a spark when Mr Hossain turned on the light.

Additional primary facts relevant to liability

13. It is convenient to deal with some other matters of primary fact relevant to the decision on liability. There have been some difficulties with fact finding. The explosion occurred nine years ago. The contemporaneous documents are not complete or comprehensive and not all witnesses who might have been able to give direct evidence of relevant facts have been called. The omissions have been mainly from the defendant’s side, it must be said. IAL did not call any witness from Binah. Mr Khalil Hafza, as I have said, is both the guiding mind of Binah and the chairman of the Board of the College. For what it is worth he is also a shareholder and director of the company which owned the land, Crescent Investments Australia Pty Ltd. As I state below, Elgas called only Mr Lewis Nottidge, its NSW Regional Manager and Manager of its Blacktown plant at the time of the explosion, now its National Technical Manager and a chemical engineer by profession.

14. Mr Nottidge had no direct involvement in the supply of the tank and the gas to the College. Nor was he in the direct chain of command of those who were. His evidence is very much in the abstract. He was copied into an email about the explosion from Ram Ramjas, Elgas’s NSW Project/ Safety Manager (Exhibit F, p21A) on 11 February 2010. Mr Ramjas had attended the blast site on that day to meet with the WorkCover inspectors (Exhibit C, p 127; Exhibit F, p21-22). But Mr Ramjas was not called to give evidence. Mr Nottidge conceded that he had no direct knowledge as to the circumstances of the delivery of gas to the College. His “knowledge” was acquired by reading the email from Mr Ramjas (258.10 -35T). From paragraph 12 of his statement (Exhibit 7D1), it is also obvious he had read Mr Ramjas’s email to WorkCover of 12 February 2010 as he picked up language directly from it. On Mr Nottidge’s evidence, Mr Ramjas himself had no direct knowledge of whether the delivery of the gas on 2008 was for the purpose of testing and commissioning hot water heaters rather than for general use in the gas installation (258.30-35T).

15. The persons who had direct involvement with Elgas’s contract with the College included Michael Marmara, the New Business Sales Manager, Marie Henriott, Customer Service Operator and Mr John Everingham, the tanker driver who delivered the gas. All of these people were still employed by Elgas as at the date of the hearing. None of them was called to give evidence. Neither Mr Hafza nor anyone else was called on behalf of the College (or Binah for that matter). And the certifier responsible for the construction work at the College employed by Cohen, Mr Trenton Jones, was not called. Of the persons on the defendants’ side of the record who may be supposed to have had direct knowledge of any relevant fact matter or circumstance, only Mr Khaldoun Afiouni, a principal of Five Star was called to give evidence.

16. In weighing the evidence in relation to disputed questions of fact, I will bear the circumstance of absent witnesses in mind in accordance with the principles discussed in Blatch v Archer (1774) 1 COWP 63; 98 ER 969, and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, where applicable.

Expert witnesses

17. Four experts gave evidence in the proceedings: Mr Bill Armstrong, an experienced plumber and gasfitter; Mr Ross Brown (mentioned above), a hydraulic engineer; Mr Hamish McGill, a hydraulic consultant and Mr Peter Wenning (also mentioned above), a consultant in hydraulic services. In accordance with the Court’s usual practice, the experts conferred and produced two joint reports, the first dated 8 May 2018, Exhibit H.1, and the second dated 30 July 2018, Exhibit H.1A. They also gave oral evidence concurrently (397 – 488T). There was almost complete unanimity amongst them. In Exhibit H.1 they explained that the second stage regulator installed in the ceiling of Building D was not in compliance with DGR and applicable Australian standards because it, and more importantly its “breather vent”, was located internally within the enclosed roof space of the building. The experts agreed that the breather vent needed to be extended to the atmosphere. When answering question 6 in Exhibit H.1, the experts stated:

The experts agree it is necessary to place the regulator in a position where it is either situated outside or vented to the external atmosphere for service requirements and safety reasons.

The design of the regulator is such that there is potential for escape of gas, where there is a natural function of the regulator or there is rupture of the internal components of the regulator, it is pre-disposed to failure and/or discharge of gas from the relief port (sic).

18. From this and like answers to other questions in the joint reports, I draw the inference that best practice requires the regulator to be installed outside the building (see also the answer to 3(a) Exhibit H.1). But venting to the atmosphere by other means would have been satisfactory for safety reasons, even if not so satisfactory for meeting service requirements. It should be recorded that after the explosion, as part of the re-instatement works Five Star reinstalled a second stage regulator by affixing it to the external wall of Building D.

19. When asked at question 4 of Exhibit H.1 whether they agreed that venting the regulator to the atmosphere would have prevented the build-up of LPGas in the building and thereby the explosion, the experts’ answer is recorded as follows:

The experts agree almost certainly, yes if the regulator had been vented to the atmosphere, it is likely to have pre. (sic)

It is obvious that the answer is incomplete. It is equally obvious that the question was being answered in the affirmative and, as a matter of interpretation, I understand the answer to be in the affirmative. I find that external venting would have prevented a build-up of gas and thereby avoided the explosion. These opinions were not challenged. The main point of the external positioning or venting of the regulator is to avoid a dangerous concentration of gas in a confined space. Ease of access for service purposes is probably of secondary concern. As venting to the exterior is satisfactory, in the opinion of the experts, I infer that a gasfitter can service a regulator in the roof space but access is not ideal.

20. In expressing their opinions in writing and in oral testimony, the experts referred to DGR and certain Australian standards. Naturally the experts are not entitled to give opinions of law, or authoritative interpretations of other documents such as the standards. On the other hand, DGR and applicable Australian standards are not intended solely, or even primarily, for the courtroom, barristers’ chambers or solicitors’ offices. They regulate the performance, inter alia, of gas installation work. Practitioners in the field need to be familiar with them and have an understanding of what they require in the practical performance of the work. For the experts to adequately articulate their opinions and provide reasons for them, to demonstrate that they are wholly or substantially based upon their specialised knowledge, it is necessary for them to express themselves by reference to DGR and applicable standards. Any dispute about the legal meaning of DGR and the applicable standards is a matter for me. To the extent to which it may be shown that any opinion expressed by an expert proceeds on the basis of a misunderstanding of the meaning of DGR and any applicable standard, that is a factor to be taken into account in assessing the weight to be afforded the opinions expressed.

Was a compliance plate attached when the gas was supplied?

21. An important issue of fact arose in relation to the legal liability of Elgas in the context of the requirements of cl 16 DGR. To provide context it is perhaps useful to set that provision out in full. It is in the following terms:

16   Supply of gas for use in gas installations

(1)  A person must not supply gas to a gas container that is connected to a gas installation unless a compliance plate is attached to the installation.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.

(2)  A person must not supply gas to a gas container that is connected to a gas installation if a defect notice is attached to the installation.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.

(3)  This clause does not apply to:

(a)  anything that is done in the course of the carrying out of gasfitting work, or

(b)  anything that is done in the course of the testing of a gas installation by a person by whom gasfitting work is being carried out or by the holder of an appropriate supervisor certificate, or

(c)  the supply of gas to a gas container that is connected to a gas installation that is installed in a vehicle, vessel or machine registered or licensed under the laws of any State, Territory or country outside New South Wales.

22. The question arises in this way. As is apparent, cl 16 prohibits a supplier like Elgas from supplying gas to a gas container or tank that is connected to a gas installation unless a compliance plate is attached to the installation. cl17 must also be borne in mind for it prohibits connecting a gas container to a gas installation unless a compliance plate is attached to the installation. And cl 15 prohibits a person from using a gas installation, in my view including by operating an appliance connected to it, unless a compliance plate is attached to the installation. Clauses 15 and 17 are subject to an exception in the same terms as cl 16(3). These exceptions should read with cl 11. That provision requires a gasfitter working on an installation to detach any compliance plate before the work is carried out and attach, inferentially, a new compliance plate after the work is completed; in the latter case, unless the certificate of inspection required under cl 10 DGR, which follows the completion of the work, indicates the installation is patently defective. By cl 11(2)(d) the required compliance plate must be attached in a conspicuous position at or near the point of connection between the tank and the installation.

23. Elgas’s position is that Mr Hossain has failed to clear three hurdles of primary fact essential to making a case against it. It does not concede that if those facts had been proved it would, in any event, be legally liable. I will deal with these latter mixed questions of fact and law below. The matters of primary fact in contention are that: Mr Hossain has failed to prove the absence of a compliance plate when it supplied the College with gas on 11 February 2008; alternatively, he has failed to prove the tank was connected to the gas installation at that time; and further in the alternative he has failed to prove the supply was not for anything done in the course of carrying out the gas fitting work or in the course of testing the gas installation in accordance with cl 16(3) DGR: witness statement of Lewis Nottidge Exhibit 7D1 paragraphs 12, 13 and 14.

24. There is no real issue, in my mind, that when Elgas supplied the 2138 litres of LPG on 11 February 2008, the gas installation installed by Enma had no compliance plate attached. I make this finding because when Elgas arranged for the gas tank to be inspected by Victorian Inspection and Consulting Pty Ltd (Exhibit 7D6) they left blank the section of their report that required the recording of the “NSW Compliance No”. That inspection occurred on 23 January 2008. Moreover it is convenient to record my finding now that, then, the gas tank was not connected to Enma’s gas installation. I infer this from a comparison of the photograph forming part of Exhibit 7D6 with the photograph (Annexure B) attached to the witness statement of Mr Khaldoun Afiouni dated 24 July 2018, (Exhibit 6D1). The copper piping running from the gas tank which piping forms part of the installation is clearly visible in the latter photograph and its absence seems clear in the former. Both photographs are taken from a broadly simIALr perspective. Mr Afiouni’s photograph also shows the new line he installed, which is connected to the old line installed by Enma (Exhibit 6D1, [16]). When shown photograph Exhibit 7D6, the experts were intially somewhat unclear about what it showed, if anything about whether the tank was connected to the installation (416.40-418.30T). However in the end Mr McGill and Mr Brown agreed in substance that further work was necessary when Exhibit 7D6 was taken to connect the tank to the installation. And this work must have been carried out later.

25. As I develop further below, Mr Afiouni said that he did not remove any compliance plate from the gas tank before commencing his 2009 work. There was no compliance plate attached. Perhaps somewhat contradictory, he also said he was unaware of the requirement to detach a compliance plate before carrying out work (139.05-45T). And later, because he regarded his work as new work he did not look for the old compliance plate (153.40T). The compliance plate depicted in the photograph which is Annexure C to his statement was the one he attached in 17 June 2010 after he had completed all of his work at the College, and WorkCover required him to go over the whole school “and make sure everything was compliant” (142.35T).

26. I infer that quite clearly there was no compliance plate affixed to the installation when Five Star commenced its gasfitting work. His evidence was that he would not have been concerned by its absence because in his experience, a supplier would not supply gas to a tank which was connected to an installation unless a compliance plate was attached. As there was gas in the tank he assumed the compliance plate must have been attached at the time of supply but had subsequently gone missing as, he said, sometimes occurs (139.40-140.05T). Evidence that compliance plates sometimes go missing was also given by Mr Nottidge.

27. This I must say is contrary to the evidence of the experts who gave concurrent evidence before me. It may be that they would accept that a compliance plate may sometimes go missing. Common sense suggests as much. However, in my words, the absence of a compliance plate from an installation connected to the gas container should be a “red flag” to a supplier and a gasfitter coming to the site to do work. Specifically the experts were of the view that a supplier should not supply gas in the absence of a compliance plate: “no compliance, no supply”: 431.25-436.15T; 437-443.5T.

28. Subject to Elgas’s contention about a supply “for testing and commissioning” purposes, This aphorism is borne out by Elgas’s conduct after the explosion when it turned the gas off and refused to re-instate the service until it received evidence of compliance: Exhibit C, pp128-132.

29. My finding that no compliance plate was ever fitted by Enma is reinforced by WorkCover Inspector Groll’s evidence about her contact with Mr Khalil Hafza during her investigation. Mr Hafza, as I have said, was the chairman of the school’s board and he was also the guiding mind of Binah. Mr Hafza told the inspector that “he did not have a certificate for gas installation” (Exhibit F, pp 65-68; 139.33T).

30. Moreover the Final Occupation Certificate for the College issued by Cohen (Exhibit 1D1, pp 7A ff) on or about 25 January 2008 confirms that a certifier undertook the final inspection at the College on 24 January 2008. The occupation certificate sets out other certificates and documentation taken into account by Mr Jones in certifying the College fit for occupation, including various compliance certificates. Among those certificates are a fire hydrant final safety certificate dated 14 January 2008 and a compliance certificate for plumbing and drainage work dated 17 December 2007 both issued on behalf of Enma by its principal, Mr Toufic Arab. There is, however, no mention of the certificate of inspection required under cl 10 DRG, which must be furnished by the gasfitter upon completion of the gasfitting work and following inspection to either the owner of the gas installation or a person having control or management of it. In my view Binah would meet the latter description. Had it received the certificate of inspection from Enma the probabilities are that it would have passed it on to the certifier.

31. When one considers no certificate on 23 January 2008, the absence of the provision of a certificate of Inspection to the certifier, the statement of MR Hafza to Inspector Groll and the absence of the compliance plate when Mr Afiouni first attended the site to carry out work in July 2009, the strong inference is that no compliance plate had ever been attached to the gas installation as required by cl 11 DGR. This finding is further reinforced by the consideration that the main thrust of Elgas’s evidence, such as it may be, is that cl 16 DGR did not apply because the “initial” supply was for the purpose of testing and commissioning the installation which seems to involve a tacit acceptance that probably no compliance plate was attached. I draw the inference more readily given the failure of Elgas to call its truck driver to give evidence.

Was the tank connected to the gas installation as at 11 February 2008

32. I turn then to the question whether the plaintiff has proved on the balance of probabilities that when the gas was supplied on 11 February 2008, Enma’s gas installation was connected to Elgas’s tank. There is no direct evidence either way proving or disproving this fact. What is known is that on 20 September 2007, Enma issued progress payment claim no. 2 to Binah (Exhibit C; p 111 – 112), a description of part of the work included in the claim was “gas service in ground complete”. The progress claim was approved or certified by Binah (Exhibit C p 116). It is also clear from what I have said above (at [20]) that the “gas service in ground complete” had not been connected to the tank as at 23 January 2008 (Exhibit 7D6, Annexure B to Exhibit 6D1). The experts agreed that to perform the additional work connecting the in ground gas service to the tank, including the attachment of the Stage 1 regulator and the flexible pigtail pipe between it and the tank valve would take somewhere between “4 hours and a day” (421.25 - .45T). I bear in mind that some of the pipe work shown in Annexure B to Exhibit 6D1 is work performed by Mr Afiouni. Installing a single line for the connection to Enma’s installation probably then would have been closer to the 4 hours than the day.

33. Elgas put to the experts during concurrent evidence that testing the installation and commissioning the appliances were one and the same thing. But what was made clear to me is that although the hard copper piping may be attached to the first stage regulator before attachment of a compliance plate, the actual connection of the first stage regulator to the tank by way of the flexible “pigtail” connection should not be undertaken until the compliance plate is attached. The connection of the first stage regulator to the tank “takes about 15 to 30 seconds to complete” (Mr McGill 422.45 – 423.10T). The experts described the process in their second joint report of 30 July 2018 (Exhibit H.1A). They agreed at page 2.2:

We provide clarification on our understanding on the meaning of commissioning and testing. We understand testing to include (1) pressure testing of the installation for which LP gas is not required; and (2) visual inspection of the installation for defects. Commissioning is purging the gas line of air, filling the piping with LPGas and then establishing correct operation of the appliances. The sequence would be (1) testing and inspection, (2) certification, (3) supply of gas, (4) commissioning.

From this it is clear that the experts view is that testing is something different from and anterior to commissioning. The experts rejected the idea that certification, that is to say, the attachment of the compliance plate only occurred after commissioning (423.30 – 424.5T). It was accepted that gas was needed for purging the line of air and for commissioning the appliances (424.20T).

34. Mr McGill said (at 425.20T):

I'd be saying that it would be great if you could complete it all in one day, what you were asking, but you are not necessarily going to be able to do that, because you need to fit the compliance plate before you're going to get the LPG.  So you need to have tested the system and checked the system for defects, and then at that point you're going to certify the system … and then you're going to provide your compliance plate, and then once the compliance plate's there, you're the plumber, so you're not even the guy that has the authority to get the gas to come to site, you're going to have to contact the builder, or whoever, who's got the agreement with the gas utility that's providing the gas, and that's then going to get delivered to the property.  And then, once the gas is there, then you're going to be able to commission the appliances.  So it's very unlikely you're going to be able to get it done in one day.

Mr Wenning agreed.

35. Elgas suggested to the experts that as cl 16 DGR mainly prohibited supplying gas to a tank that is connected to a gas installation, there was no prohibition in supply to an unconnected tank. Mr Wenning drew attention to what he referred to as the “LPG Gas Code, AS 1596, Distribution Code, Installation Code”(see cl 8 DGR). He read from cl 11.2.4:

Before the initial delivery of LPGas to a new installation the relevant statutory approvals and certificates and the installer's test certificates shall be obtained and the installation shall be visually examined to ensure that as far as reasonably practical it complies with the requirements of this standard. (429.5T)

All the other witnesses agreed with Mr McGill and with his emphasis (429.15 - 30T). Although their expertise was in the field of gas fitting, as I have pointed out already, the experience of all of the experts was that in the absence of a compliance plate “there is no gas supply” (431.25 - .40T).

36. A series of propositions were put to the experts (433 – 434T) on behalf of Elgas underpinned by an assumption that gas was delivered before the connection of the tank to the installation so that the gasfitter could move through each of the four sequences described by the experts in relation to testing and inspection, certification, supply and purging and commissioning on the same day. Mr Brown was quite clear (435.5 – 437), the gas fitter cannot have any gas supplied until the compliance plate is attached.

37. Despite repeated and repetitious attempts to secure the agreement of the experts that supply of gas before certification and connection may be a reasonable approach if a gasfitter wished to complete the final stage of the job one tranche of about 4 hours work, the experts were steadfast in stating their opinion that there should be no supply until certification.

38. I should also record that there was no direct evidence that Enma returned and completed the work of installing, testing, inspecting, certifying, connecting to the tank, purging and commissioning the appliances in a single shift. In truth the assumptions the experts were asked to make for the purpose of Elgas’s case had no foundation whatsoever in the evidence before me, whatever the legal meaning of the clauses of the regulations.

39. The College acknowledges that there is no direct evidence of the date on which Enma completed its gasfitting works for Binah. It suggests that the issue of the final occupation certificate under s 109H Environmental Planning & Assessment Act 1979 (NSW) (“EPA”) is “the most powerful evidence” of the date by which Enma had completed the works, which I take to mean installing the final length of the pipe between the in-ground pipe and the tank, testing, inspecting, certifying and connecting the installation to the tank. I interpolate, I am not satisfied, as I have already said, that Enma took the necessary steps in relation to certification of issuing the cl 10 certificate of inspection and attaching the cl 11 compliance plate. Although the final occupation certificate appears to have been faxed to the College on Tuesday 29 January 2008 (Exhibit 1D1, p 7) the body of the document indicates that the certifier’s determination was made on 25 January 2008 (Exhibit 1D1, p 7D) and a preliminary final inspection occurred on 16 January 2008 with the final “OC” inspection carried out by Mr Jones occurring on 24 January 2008. Under the heading “Final Report” (Exhibit 1D1, p 7C) is the following:

The Accredited Certifier certifies that the subject stages of construction were inspected and found to be satisfactory and the development is completed in accordance with the approved plans and specifications and Council’s development consent conditions if applicable.

Under s 109H(5) EPA the Final Occupation Certificate may not issue unless, inter alia, the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia. Under s 109M EPA, it is an offence to commence occupation or use of the whole or any part of a new building unless an occupation certificate has been issued in relation to the building or part. The principal certifying authority appointed for the erection of the building is authorised to issue the occupation certificate authorising the commencement of occupation or use of a new building.

40. These statutory provisions make it unlikely to my mind that Cohen would have issued a Final Occupation Certificate had the work on the gas installation remained unfinished as depicted on Exhibit 7D6 on 23 January 2008. And of course absent a Final Occupation Certificate, the College could not have commenced to operate as a school at the beginning of the first school term of 2008 as it did. Although the window of opportunity is narrow, this makes it likely that Enma performed the work of laying the hard pipes that connected the in-ground installation to the first stage regulator, carried out (or not) such testing and inspecting of its installation as it considered necessary and connected the installation to the tank some time on 23 or 24 January 2008.

41. With the benefit of hindsight, it is apparent that Enma were ignorant of the requirements of DGR and applicable Australian Standards for the location of stage 2 regulators. It was probably ignorant of the requirements of DGR as to certificates of inspection and compliance plates. However, given the College was about to begin operation as a school, Binah, as principal contractor, would have been under pressure to complete the project and obtain the Final Occupation Certificate to enable the College to commence operations at the start of the school term. This seems especially so given Mr Hafza’s “two hats” as Chairman of the College board and principal of Binah. It just seems improbable, as I have said, that a Final Occupation Certificate could issue if the gas tank had been unconnected to the gas installation on the occasion of Mr Jones’ Final Occupation Certificate inspection.

42. I appreciate in arriving at these conclusions I have relied upon what I regard as the apparent logic of events and the significance of such contemporaneous documents as I have available to me. But I have also applied Lord Mansfield’s “maxim” from Blanch v Archer given the complete absence of witnesses from the defendant’s side of the record who doubtless could have cast light on this factual issue. I have in the light of that maxim considered what might otherwise be fairly slight proofs to be sufficient. In drawing the inference that the tank was connected to the installation, I have borne in mind the permissible reasoning process arising out of Jones v Dunkel.

43. There is in evidence as part of Exhibit 1D1, a lease between Crescent Investments Australia Pty Ltd, and the College for a term of 25 years commencing on 1 January 2010 and 31 December 2034. However, nothing turns on the commencement date. It is clear that the school commenced operations in 2008. The significance of the lease is that it demonstrates the involvement of Mr Hafza who was involved with all three of the College, Binah and the owner. He would obviously have been in a position to cast light on at least some of the uncertainties in the evidence.

Did Elgas supply the LPGas for testing and commissioning

44. On the findings I have made so far that is to say, that no certificate of inspection was issued to Binah (or the College) as required by cl 10 DGR, no compliance plate was attached to the installation in a conspicuous position near its connection with the gas tank in compliance with cl 11 DGR and the installation had been connected to the tank before 11 February 2008, it is strictly unnecessary to consider the third question of fact raised by Elgas which is whether the supply on 11 February 2008 was covered by the exception to cl 16(1) DGR found in cl 16(3) DGR. That is to say, that the supply of gas on 11 February 2008 was for something done in the course of carrying out of gasfitting work or in the course of testing the gas installation by Enma.

45. There may be a question about whether Mr Hossain or Elgas carried the onus in relation to engaging the exception in cl 16(3) DGR. At the very least Elgas would carry an evidential onus in regard to that matter which it has sought to discharge by its cross-examination of the experts and by the evidence of Mr Nottidge, to which I have already referred above. I have already said that there is simply no evidential foundation for the theory of the case that Enma had not completed the gas installation and connection of the tank to it before 11 February 2008. With respect, there is no evidential foundation, as I have said, for the hypotheses which the experts were asked to accept in relation to that matter and in my assessment of their evidence, which I have already detailed, I am satisfied that they were steadfast in their opinions that, from the gasfitter’s point of view, no occasion would arise for requesting a delivery of gas before certification.

46. The evidence of Mr Nottidge pointing the other way is to say the least, exceedingly thin. I repeat that Mr Nottidge at the relevant time was the Regional Operations Manager for central New South Wales and the manager of the Elgas plant at Blacktown. However, he had no direct involvement in the contract with the College, the supply of the tank and the subsequent supply of the gas. The whole of his knowledge is derived from his review of documents. He had read Mr Ramjas’s email to WorkCover of 12 February 2010. That is the document referred to in the first sentence the portion of his statement which I quote below ( Exhibit 7D1, [12] – [13]):

I note from the email dated 12 February 2010 that the tank was initially filled to 2138L of LPG. I also note the statement by Mr Ramjas that the gas was to be used to test and commission instantaneous hot water heaters. I know of no regulation which limits the amount of gas which can be delivered for the purpose of testing and commissioning.

The connection of the regulator and of the tank to the installation need not be made before the tank is filled with LPG as the fitting of the regulator and the connection to the installation can be carried out safely despite the tank having been filled with gas. Gas is sealed within the tank by valves which remain closed after the delivery of the LPG and until they are opened by the gasfitter.

I take the reference to the regulator in this passage to be a reference to the first stage regulator at the “tank-end” of the installation, and not the second stage regulator involved in the gas blast. It should be observed straightaway that Mr Nottidge speaks of a need to test and commission instantaneous hot water heaters.

47. A hot water heater is a gas appliance as defined in the dictionary to DGR. The DGR dictionary and operative provisions make a distinction between a gas appliance, a gas container and a gas installation. In particular a gas installation means a system of pipes and associated fittings that is designed to convey gas from the control valve or other connection point of a gas container to the control valve or other connection point of a gas appliance or of another gas container. It includes any fitting associated with the installation but does not include a gas container. I take a regulator to be a fitting associated with a gas installation. Regulator does not seem to be a defined term. Gasfitting work is defined in exhaustive terms which include the following:

c)  the connection of a gas container, gas regulator or gas appliance to, or the disconnection of a gas container, gas regulator or gas appliance from, a gas installation (otherwise than where it is designed to be readily detachable from the installation).

The definition says nothing about testing or commissioning gas appliances, like hot water heaters.

48. Clause 17 provides important context. It prohibits a gasfitter from connecting a tank to an installation unless a compliance plate is attached to the latter. This is subject to an exception similar to cl 16(3) for gasfitting work and testing of a gas installation. Clause 17 is in the following terms:

Connection of gas containers to gas installations

(1)  A person must not connect a gas container to a gas installation unless a compliance plate is attached to the installation.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.

(2)  A person must not connect a gas container to a gas installation if a defect notice is attached to the installation or container.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.

(3)  A person must not connect a gas container, gas regulator or gas appliance to a gas installation unless the container, regulator or appliance:

(a)  is suitable and safe for use with the gas with which it is designed to be used, and

(b)  is approved or is of an approved type.

Contravention of this subclause is an offence and is punishable in accordance with clause 33.

(4)  This clause does not apply to:

(a)  anything that is done in the course of the carrying out of gasfitting work, or

(b)  anything that is done in the course of the testing of a gas installation by a person by whom gasfitting work is being carried out or by the holder of an appropriate supervisor certificate, or

(c)  the connection of a gas container to a gas installation that is installed in a vehicle, vessel or machine registered or licensed under the laws of any State, Territory or country outside New South Wales.

As can be seen from its terms sub-clause 17(3) prohibits the connection of a gas container, gas regulator or gas appliance to a gas installation unless certain conditions, not here relevant, are met. The important point is the distinction between the various defined terms. Clause 17(4) does not in express terms apply to testing or commissioning a gas appliance. It does cover testing the installation.

49. If one returns to cl 16 DGR and the constraints on the supplier of gas, we see that the prohibition relates to the supply of gas to a gas container that is connected to a gas installation unless a compliance plate is attached to the installation. While connecting a hot water heater to the installation may be gasfitting work for the purpose of cl 16(3)(a), testing or commissioning a gas appliance is not. The only testing to which cl 16(3) applies is testing of the gas installation. This would extend to a gas regulator because it is a fitting associated with the installation, but it would not extend to testing a container or, for that matter, a gas appliance. On the face of it, Mr Nottidge’s description of the purpose of the supply of gas being “to test and commission instantaneous hot water heaters” is not covered by cl 16(3); that is to say it does not fall within the exception.

50. Mr Nottidge gave much evidence about it being Elgas’s practice not to deliver only second or subsequent supplies of LPG in the absence of a compliance plate. The practice permitted the first supply of gas for use in a new installation in the absence of a compliance plate. In my view, this practice is entirely contrary to the plain words of the regulation. Unless it was actually specified that a delivery, or supply, is required for a purpose covered by cl 16(3) to the actual knowledge of the person at Elgas organising the supply, the practice is obviously dangerous and inappropriate. It is also contrary, I accept, to the practice of gasfitters articulated in the expert evidence I have heard and accept. I find this evidence of Elgas’s “practice” implausible.

51. It was part of Elgas’s case that DGR did not prohibit the delivery of gas to a tank which had yet to be connected to a gas installation. And that this could be done at any time regardless of the reason for it. This was said to be legally permissible from a literal or grammatical reading of cl 16(1). It is unnecessary to consider this in detail as I have found the tank and installation were connected before 11 February 2008. Sometimes a literal reading of a statute imposing a penalty is the most appropriate approach. On the other hand, here where DGR closely regulated gas installations and imposed an inter-connected and inter-dependent network of obligations on gasfitters, users of gas installations and appliances and suppliers that approach may not be applicable. I am of the view that supply of gas to a container to be connected to a gas installation is prohibited unless a certificate of compliance is attached to the installation. Given that LPG is potentially dangerous, indeed explosive, the intent and purpose of cl 16 is to prohibit the supply of gas which is to be used in an installation until the installation has been certified as compliant. We can see this is how Elgas conducted itself even after the installation had been renewed by Mr Afiouni. It declined to restore the gas supply until it had received certificates of inspection under cl 10 DGR (Exhibit C, pp 128-132). At the same time Mr Afiouni attached a compliance plate in accordance with cl 10 DGR. I appreciate that while this was occurring the tank was approximately 70% full. Even so Elgas denied access to the gas until appropriate evidence of compliance with DGR was produced to it.

52. More importantly, as I have already pointed out the sole source of Mr Nottidge’s “knowledge” of the purpose of the delivery to the College on 11 February 2008 was information he garnered from reading Mr Ramjas’s email of 12 February 2008 (Exhibit C, p 128). Mr Ramjas, who I emphasise was available, but not called, in his internal email of 11 February 2010 to Elgas officers following his site visit (Exhibit C, p 127), to which Mr Nottidge was copied-in, had said “the first fill (for testing) was done on 11 February 2008 – 2138 [litres] delivered”. He went on to say, “Elgas policy is we do not CONTINUE to deliver to any customer’s installation until the “compliance plate details” are obtained”. Its notable in this email Mr Ramjas does not say what was supposed to be tested. In his email to WorkCover of 12 February 2010 at 11:32 a.m. (Exhibit C, p 128) which Mr Nottidge read for the purpose of preparing Exhibit 7D1, Mr Ramjas said:

The tank was filled initially with 2138 [litres] of LPG on February 11 2008. The gas was to be used to test and commission instantaneous hot water heaters. The contents gauge on the tank currently shows 70 percent (equivalent to 1960 litres) this would suggest that around 178 litres of LPG were used since installed.

One must suppose what Mr Ramjas had in mind when he used the phrase “for testing” in his email of 11 February 2010 was to test and commission instantaneous hot water heaters.

53. Quite apart from the consideration that Mr Ramjas was not called to give evidence, it is abundantly clear that these emails were written in circumstances where he knew that LPG supplied by Elgas had been involved in an explosion at a school and a worker there had been very seriously injured with extensive burns to his body. He also knew that WorkCover were carrying out an investigation because he had attended the site on 11 February 2010 and met with Inspector Groll and her associate Nissa Ditcher. He does not seem to have made any exculpatory statement at that time (Exhibit F, pp 21-22). He had also been told that police and fire brigade officers had previously been on the site and he later spoke to officers from each of those services by telephone. I would infer that he had been made aware of the absence of the compliance plate for he said the following in the email of 11 February 2010:

Site installation compliance details are missing from our records. It appears that the customer did not, to date, provide the details and an “LPGas certificate of inspection”.

54. It is also apparent from (Exhibit C, p 127) that the attention of Elgas was drawn to the incident by insurers. It is clear from the fragments of the email chain which appear at the foot of p 127 that Elgas was concerned to distance itself from any prospect of liability.

55. There is simply no record contemporaneous with the actual supply of gas produced confirming that the delivery for 11 February 2008 was requested merely for the purpose of testing anything. I also accept the evidence of the experts that gas is not used for testing an installation, compressed air is. Gas is used for purging air from the installation after connection to the container (which follows certification) and to commission the gas appliances. It is also not unimportant that Mr Armstrong gave evidence that the quantity of gas reasonably required for the purpose of commissioning “would be less than 50 litres” (454.35T). Mr Wenning agreed (455.25T). Mr Brown and Mr McGill were unable to say in the absence of the hydraulic plans which would enable a calculation to be made.

56. I am mindful that Mr Ramjas’s emails were tendered in Mr Hossain’s case, otherwise there may have been a question about their admissibility under s 69(2) or (3)(b) Evidence Act 1995 (NSW). The consideration that Mr Ramjas has been shown not to have direct knowledge of the represented facts reduces the weight that might have been afforded this evidence to virtually zero.

57. Were it necessary to make a decision on this third question of fact, I would not be prepared to act on the evidence of Mr Nottidge, especially given that Mr Ramjas had no direct knowledge of, or involvement in, the delivery of 11 February 2008, and in the absence of the persons identified above who still work for Elgas and who might be supposed to have some direct evidence about the circumstances of the supply of gas on 11 February 2008 but who were not called to give evidence at the hearing.

Legal issues

58. In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 a unanimous High Court of Australia said, of negligence cases generally, (at [11]):

In considering each of the issues of duty, breach and causation, it is of the first importance to identify the proper starting point for the relevant inquiry. In this case there are two statutes which require particular consideration: the Civil Liability Act 2002 (NSW) and the Liquor Act (1982 (NSW)). If attention is not directed first to the Civil Liability Act, and then to the Liquor Act, there is serious risk that the inquiries about duty, breach and causation will miscarry.

In the case at hand there are also two statutes which require particular consideration: the Civil Liability Act and DGR. The legal liability of each of the defendants other than the College is likely to be informed by both statutes. The liability of the College is, of course, not covered by the Civil Liability Act (s 3B(1)(f)). Its legal liability is to be determined by reference to ordinary common law principles. But those principles in turn will be informed, as the High Court indicated in Adeels Palace by the provisions of DGR.

59. I have already said (at [51] above) that the intent and purpose of DGR is to closely regulate gas installations and their use by imposing an interconnected and interdependent network of obligations on gasfitters, users of gas installations and appliances and suppliers.

60. The provisions relevant to the present case are found within Part 2 DGR which is entitled “Fixed, mobile and portable gas installations”. Divisions 1 and 2 are applicable. To provide an overview, cl 7 requires gas fitters to be qualified. Clause 8 requires gas fitting work to comply with certain standards. We are concerned here with a fixed (LP Gas) installation which must comply with AS 1596: LP Gas storage and handling, as in force from time to time. Clause 9 requires a gasfitter, immediately after completion of gas fitting work on a gas installation, in respect of new work to inspect containers, regulators, and appliances connected to the installation and test the whole installation for patent defects. In the case of work comprising the alteration, extension or repair of an existing gas installation, the gasfitter must inspect containers, regulators and appliances connected to the part that has been altered, extended or repaired, and must test the whole installation for patent defects.

59. Clause 10 requires the gasfitter “immediately after testing a gas installation following the completing of gas fitting work” (as required by cl 9) to furnish a certificate of inspection for the installation to either the owner, or a person having the control or management of the installation. In the case of a fixed gas installation, which the College’s installation was, the gas fitter is required to send a copy of the certificate to the usual supplier if the certificate indicates that the installation is patently defective. I interpolate, this would hardly be a necessary requirement if there was no prohibition on filling an as yet unconnected tank intend for use with an adjacent installation.

60. Clause 11 deals with compliance plates which in my view have a central part to play in the overall scheme of the regulation. The person responsible for carrying out gasfitting work on a gas installation must detach the compliance plate from the installation before the work is carryied out and must attach a new compliance to the installation after the work is carried out, unless the certificate of inspection issued (under cl 10) indicates that the installation is patently defective. Clause 11 prescribes the physical attributes and the content of a compliance plate. As I have already pointed out by cl 11(2) a compliance plate must be attached to the installation in a conspicuous position adjacent to the control valve or other point by which the installation is designed to be connected to a gas container. If, after the work is carried out a gasfitter is satisfied that the gas installation, or any container, regulator or appliance connected to it is patently defective, the gasfitter must attach a defect notice to the installation, container, regulator or appliance as the case may be and if a patent defect cannot be isolated, remove any compliance plate from the installation (cl 12 DGR). One can see how cl 11 and 12 work together and the significance of a conspicuous compliance plate for the provisions of Div. 2 DGR to which I am about to turn.

61. For present purposes it is enough to overlook cl 13 and 14 as they are inapplicable. I have already referred to in some detail and set out in full cl 16 applying to a gas supplier and cl 17 applying to the gasfitter connecting a gas container to the gas installation. It is also necessary to refer to cl 15 which proscribes a person from using a gas installation unless a compliance plate is attached to the installation. A person must not use an installation, container, regulator or appliance to which a defect notice is attached. Clause 15(3) is a similar exception to that found in cl 16(3) and cl 17(4). By cl 18 it is an offence to attach an unauthorised compliance plate to a gas installation. By cl 19 an inspector is authorised to remove a compliance plate if satisfied the installation, or any container, regulator or appliance connected to it “is not in safe working order”. It is an offence to remove a defect notice “until the relevant defect has been rectified or is found not to exist”.

62. One can well appreciate the centrality of the compliance plate in the scheme of regulation, the absence of a compliance plate is itself a red flag prohibiting the use of, supply to, and connection of a gas container to a gas installation. It is an offence to attach a compliance plate other than as authorised by DGR. Using supplying or connecting a container to a gas installation in the presence of a defect notice is an entirely separate offence.

Breach of statutory duty

65. As will become apparent when I analyse the liability of each of the defendants and Cohen, in some cases Mr Hossain for his claim and the various defendants for their cross-claim rely upon an asserted breach of individual provisions of DGR as founding a liability for the tort of breach of statutory duty, as opposed to statutory negligence as referred to in s 5A Civil Liability Act. In a general way the arguments proceed on the basis that the specific obligations imposed by individual provisions of the Regulation do not depend upon negligence so as to engage s 5A Civil Liability Act. Rather they turn on their specific terms.

66. The question when a private right of action for a breach of a statutory provision arises was discussed by Dixon J (as the Chief Justice then was) in O’Connor v SP Bray Ltd (1936) 56 CLR 467 at 477. His Honour said:

It is a question of some difficulty whether a civil remedy is given to a person injured in consequence of the breach of [a clause and a regulation]. Such a person may, of course, maintain an action of negligence and rely on the failure to comply with the statutory regulations as evidence of negligence. But it is a different question whether the enactment itself confers a distinct cause of action. The received doctrine is that when a statute prescribes in the interests of safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions, or by reference to matters governing the policy of the provision, rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction.

…

In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law …. Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless in the nature of the provision or from the scope of the legislation of which it forms a part, a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.

67. In 1981 in John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Mason J (as the Chief Justice then was) felt able to state the principle in more general terms by reference O’Connor (at 231):

Ordinarily a duty imposed by statute to take measures for the safety of others involves a correlative private right, unless from the nature of the provision or from the scope of the legislation a contrary intention appears.

68. In Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24 at 424 Brennan CJ, Dawson, and Toohey JJ expressed the principle in the following terms:

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.

…

The question is one of the construction of the statute … One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right.

69. In McDonald (T/as B.E. McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 294; [2004] Aust. Torts Rep. 81 – 768, the Court of Appeal considered the question whether certain provisions of the Dangerous Goods Regulation 1978 (NSW) confer a civil cause of action for breach. The basal litigation concerned the consequences of a fire at a warehouse. The warehouse was so badly damaged by the fire that it had to be demolished to its concrete slab. The owners of the land sued one of two occupiers, claiming the fire had been caused by the spontaneous combustion of dangerous goods kept on the tenant’s part of the premises. Having referred to the authorities which I have mentioned, McColl JA (with whom Beazley JA (as the President then was) and Young CJ in Eq (as his Honour then was)) pointed at [174] that, “the question whether a statutory duty confers a correlative private right of action” also turns on whether “the statute imposes a duty to take a specific precautions” (O’Connor v S.P. Bray Ltd) or “measures for the safety of others” (John Pfeiffer Pty Ltd v Canny). Her Honour at [176] emphasised that the question of “whether a statute confers a private cause of action ultimately turns upon the terms of the legislation”. Legislation which merely “prescribes the end, but not the means” (at [177]) and “does not identify any specific precaution” or measure which the dfendant is to take for the safety of others is not the type of provision supporting the correlative private right of action for harm caused by its breach. Her Honour also said at [178]:

The conclusion that one out of several clauses in the enactment does not create a private right is not inconsistent with a conclusion that other clauses in the same enactment do create such a right: see O’Connor v S P Bray Ltd … at 479.

The liability of the College

70. The College is Mr Hossain’s employer and the occupier of the school. It is sufficient to focus upon the relationship of employer and employee between the College and Mr Hossain. Mr Hossain does not rely upon the tort of breach of statutory duty against his employer (5FASOC). He is apparently content to bring his action in negligence.

71. It is not in doubt that the College owes Mr Hossain a non-delegable duty to exercise reasonable care to avoid exposing him to unnecessary risks of injury: Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]. The duty extends to the provision of a safe place of work. In Cotter v Huddart Parker Ltd 42 SR (NSW) 33 at 37 Jordan CJ formulated the employer’s duty in respect of the safety of the place of work as a duty to make “the place of employment … as safe as the exercise of reasonable skill and care will permit.” Although reversed on appeal to the High Court in Huddart Parker Ltd v Cotter (1942) 66 CLR 624; [1942] HCA 34 on other grounds, the Chief Justices formulation of the duty was not called into question: Glass McHugh Douglas, The Liability of Employer’s, Second Edition (1979). His Honour clearly formulated this aspect of the employer’s duty as corresponding with the formulation of the duty owed to contractual entrants by McCardie J in MacLenan v Segar [1917] 2KB 325 at p 333.

72. This formulation dovetails with the explanation of the non-delegable nature of the employer’s duty of care given Mason P in TNT v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 at [47] and [48]:

[47]  The authorities cited … demonstrate that, in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care.

[48]  The second requirement, namely that the plaintiff's injury occur within the scope of the special relationship, is frequently passed over because the requirement is clearly satisfied in the particular case. But the issue cannot be ignored and it has significance in cases such as the present. (My emphasis.)

73. It is to be borne in mind that TNT v Christie was a case concerned with the employer’s duty to provide safe plant and equipment. The formulation of the content of the duty to exercise reasonable care to provide safe premises in the terms expressed by Jordan CJ emphasises the non-delegable or personal nature of the duty.

74. As Mason CJ emphasised (at [45]) by reference to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550 there are categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury will not be discharged by the employment of a qualified and ostensibly competent, independent contractor. This is because non-delegable duties are “of a special and “more stringent” kind”. Duties of this kind extend “to seeing that care is taken”.

75. By the application of these authorities, it is sufficient to say that the obvious negligence of Enma in failing to either locate the second stage regulator, or vent it to the, outside of Building D provides a sufficient basis for a finding of negligence on the part of the College. As Mason P explained liability for breach of an employer’s duty can be imposed on the employer “regardless of personal fault” provided the damage was caused by a lack of reasonable care on the part of someone within the scope of the employer’s duty of care. Those “conditions” are satisfied in this case.

76. I should also add that were this not correct, I would be inclined to hold that the College is in breach of cl 15 DGR in as much as it has used the gas installation when a compliance plate was not attached to the installation. I appreciate that the College is not a qualified gasfitter. However, as I have said the attachment and maintenance of compliance plates in a conspicuous place on a gas installation near the point of attachment of the installation to the gas container as a central requirement of DGR. This breach is pleaded as a particular of negligence at paragraph ([19] l) of the Fifth Further Amended Statement of Claim in these terms:

Failed to take any or adequate steps in response to the fact that there was no compliance plate fitted to the LPG gas fixtures.

DGR required it to be in a conspicuous place and on the evidence the gas tank within its enclosure was located near the entry to the school. The absence of the compliance plate should have raised questions about the compliance of the gas installation leading to testing and inspection of the whole installation. An inspection of the installation by any qualified person would have made obvious that the second stage regulator had been fitted in contravention of AS 1596 and that the intended operation of the regulator would be to release gas into the roof void which would accumulate in a dangerous manner.

77. The College argues that as it is not a qualified gasfitter, the knowledge of such an expert should not be imputed to it. But I think this is no answer to an employer’s obligation. The employer’s obligation is to maintain the safety of the premises not just to provide premises which are at the outset apparently safe. Although these premises were unsafe from the outset by reason of the patent defect in the gas installation constituted by the location of the second stage regulator.

78. It was also argued that if the College is a person who uses the gas installation within the meaning of cl 15, so too is every employee who uses any appliance connected to the installation: see cl 33(1)(c) DGR. The College says that would be absurd and cl 15 cannot be read to require that outcome. It seems to me that employees do not utilise the gas installation as such even if it may be said that they from time to time used the appliances connected to it. Only the College as between it and its employees uses the gas installation itself.

79. The College also argues that it is absolved from liability by the reasoning of the House of Lords in Davie v New Merton Board Mills [1959] AC 604, discussed by Mason P in TNT and Christie at [55] ff. Davie concerned an inherent latent defect in a tool called a drift used by being struck by a hammer. When struck a piece broke off because of its excessive hardness and entered the eye of the plaintiff who was using it. It was in the circumstances a dangerous tool. The latent defect arose from its negligent manufacture by reputable makers who had supplied it to a reputable firm of suppliers from whom the employer purchased it. The employer had a system of maintenance and inspection, but the defect was not susceptible to discovery by any reasonable inspection. The House of Lords held that the employer’s duty did not “extend to defects due to the want of skill or care on the part of anyone concerned in manufacture or sale in circumstances where the employer bought the plant from a reputable source” (TNT v Christie at [58]). Mason P held that the principle in Davie did not apply in TNT v Christie because the employer’s duty extended to negligence in the servicing and maintenance of the equipment. It is implicit that the defect was discoverable in the course of maintenance and delegation of the responsibility for maintenance to an independent contractor did not absolve the employer of legal responsibility “if it could be shown that the plaintiff employee’s injury was a result of negligence in regard to the maintenance and repair of the equipment” (TNT v Christie at [61]).

80. In my judgment this case is quite different from Davie and it is quite different from TNT v Christie. The duty here is concerned with the safety of the premises occupied by the employer. Moreover, the “defect” which made the workplace unsafe was discoverable upon reasonable inspection even if only by a qualified gasfitter. The absence of the compliance plate and the position of the second stage regulator would have been obvious to anyone on any inspection who was familiar with safe practice in relation to gas installations. I am of the view that Davie does not assist the College and that it is in breach of its duty to exercise reasonable care to provide a safe place of work for Mr Hossain.

81. The College had been in occupation for about two years before the explosion. There can be no doubt that on the one hand the negligence of Enma are imputed to it by its non-delegable duty, and on the other, its negligence in failing to maintain the premises were legal causes of Mr Hossain’s personal injury. It is unnecessary to analyse causation by reference to s 5D Civil Liability Act in a case of employer’s liability.

The legal liability of Binah and IAL

82. As I have said IAL is sued under s 601 AG Corporations Act 2001 (Cth). That provision is in the following terms:

A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if:

(a)   The company had a liability to the person; and

(b)   the insurance contract covered that liability immediately before deregistration.

The only issue for determination in this case is whether Binah had a liability to Mr Hossain. There is no issue that the insurance contract issued by IAL to Binah covered any liability it is adjudged to have had immediately before its deregistration. It is convenient therefore to speak in terms of Binah’s liability rather than the liability of IAL.

83. Mr Hossain argues that Binah owed him a duty of care in accordance with the principles enunciated in Caltex Refiners (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258. Mr Hossain identifies the risk of harm as a risk of injury from the gas explosion if the gas installation was not constructed in accordance with DGR and applicable standards. Given the potential dangers associated with LPG if precautions are not taken, Mr Hossain argues for the purpose of s 5B Civil Liability Act that the risk of an explosion from accumulating gas was reasonably foreseeable and not insignificant. It is submitted that a reasonable person in the position of Binah would have taken the precautions of: (a) engaging a competent sub-contractor to construct the gas installation; and (b) ensuring that the gas reticulation system (gas installation) was certified by a competent gasfitter as compliant with DGR.

Cross claim under 151Z(1)(d)

202. By paragraph 11 of the Amended Statement of First Cross Claim, the College has pleaded an entitlement to a statutory indemnity under the provisions of s 151Z(1)(d) WCA from each of the cross defendants in respect of payments of workers’ compensation it has made to, for or on behalf of Mr Hossain.

203. As I have found the College negligent, there is now a considerable body of authority which establishes that a negligent employer is not entitled to the benefit of the s 151Z(1)(d) indemnity: Public Transport Commission of New South Wales v J Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336; I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSW CCR 486; CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 466; [2013] NSWCA 49 at [43]; Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 at [43]; South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110 at [172].

204. For the reasons explained by Basten JA in Precision Helicopters the employer cannot call in aid s 151Z(2)(e) because the alternative conditions for the special operation of s 151Z(1)(d) expressed the opening words of paragraph (e) of s 151Z(2) have not been satisfied. The first alternative has not been satisfied because Mr Hossain did take proceedings against his employer, and the second alternative has not been satisfied because the occasion has not yet arisen for Mr Hossain to choose whether he will accept satisfaction of the judgment to be entered against the College as his employer, or not. Section 151Z(2)(e) gives s 151Z(1)(d) partial operation only where both the employer, and here, one or other of the other tortfeasors would be legally liable to pay Mr Hossain damages. In Precision Helicopters at [48] Basten JA said:

Unless the opening words to paragraph (e) are satisfied [the employer] has no entitlement to indemnity given that it is liable to the plaintiff in damages

Quantum   

205. I will repeat, that as against the College, the plaintiff’s damages are to be assessed in accordance with the provisions of Div. 3 of pt. 5 WCA. There is no doubt that the plaintiff’s whole person impairment resulting from his injuries exceeds the “at least 15 percent” threshold for the purpose of s 151H WCA. The damages payable by Binah (Through IAL), Five Star, Elgas and to which Cohen may have to contribute are required to be assessed under Part 2 Civil Liability Act. In respect of Cohen I appreciate that as I have said above, it is only here formally as the third cross defendant to the College’s first cross-claim. However, for the reasons I have explained, the question of the liability and relative responsibility of each of the responding parties has been fully litigated and I am empowered to order contribution amongst all of the tortfeasors in accordance with the provisions of s 5 LRMPA. Cohen’s liability to contribute is not limited to a liability to contribute to the work injury damages only. I should say, given I have found each of the tortfeasors equally liable were I wrong in my appreciation of Cohen’s exposure, as between Cohen and the College, as I have assessed their responsibility equally, Cohen would be liable to contribute 50 percent of the work injury damages I will assess.

206. There are few issues of fact amongst the parties as to the nature, extent and severity of Mr Hossain’s injuries and their consequences caused by the negligence of the tortfeasors.

207. To illustrate the severity of his injuries and disabilities for the purpose of WCA Mr Hossain was assessed at having a 71 percent whole person impairment for the disfigurement and physical limitations resulting from his burn injuries, especially involving his right and left arms, scarring of his body (40 percent) and to a degree to his face. Dr Brian Bourke has diagnosed him as suffering from Chronic Post-Traumatic Stress Disorder and a Major Depression. Utilising the WorkCover guidelines for permanent impairment for psychiatric injury, Dr Bourke concluded that Mr Hossain suffers from 26 percent whole person impairment in respect of those psychiatric injuries alone. Dr Sylvester Fernandez diagnosed acoustic trauma to both ears and resulting loss of hearing due to the blast of the gas explosion. He described the hearing loss as severe, involving tinnitus, and assessed his whole person impairment in respect of that injury at 10 percent. Now I appreciate that those figures exceed 100 percent and of course would need to be evaluated together on a combined table. However, those results illustrate the point that the Mr Hossain’s injury was near catastrophic.

The plaintiff’s background

208. Mr Hossain was born in Bangladesh on 1 November 1959. He was 50 years of age at the explosion, 58 at the date of trial and now 59. He was raised and educated in the capital, Dhaka. After leaving school he attended the University of Dhaka, graduating with a Bachelor of Commerce degree. He worked in the hospitality industry as a laundry supervisor in a large international hotel in Dhaka supervising 10 or 11 people. He was also politically active and rose to be the head of a major opposition party. He was not, however, a Member of Parliament. He operated more as a senior party apparatchik. He married in 1982 in Bangladesh and the family migrated to Australia in 1986. In Australia he initially worked in a factory at Marrickville making window blinds. From 1987 to 1989 he was employed as a machine operator at Universal Dyes in Botany and from 1990 he worked as a leather technician, having undertaken a course at TAFE. He was employed in a tannery until about 1997 when his employer relocated to Queensland. He obtained a taxi drivers licence, driving taxis from 1997. However, this ceased when he lost his driver’s licence in 2006. Around this time, he and his wife separated although they remain on amicable terms. They have two children.

209. In the years before the accident he was actively involved in the Bangladeshi expatriate community rising to occupy the position of president of the Bangladeshi Association of Australia for a period of about 5 years. For a period of time he was a union supervisor with the Building Workers’ Industrial Union.

210. After losing his taxi licence he was out of work for a period during which he obtained a licence as a security guard.

211. He commenced employment with the College on 4 May 2009 doing various jobs, but working mainly as a caretaker. He was provided with accommodation which included the payment of some services. He performed some security work at the school after hours.

212. He had a holiday in his homeland between 6 December 2009 and 7 January 2010, returning to his work at the school.

213. He was severely injured in the gas explosion at the College on 10 February 2010. His injuries were such that he was transferred by helicopter to Royal North Shore Hospital and treated in the Intensive Care Unit where he was intubated and ventilated.

214. On 12 February 2010 he underwent surgical debridement and skin grafts at both hands and forearms, debridement of his face, upper arms, bilateral thighs and his lower back. On 15 February 2010 he underwent a general anaesthetic for a change of the surgical dressings and again on 17 February 2010. On 19 February 2010 there was further debridement and skin grafting and the surgical change of dressing. This occurred again on 10 March 2010.

215. While in hospital he was diagnosed with mild inhalation injuries and was assessed as having severe burns to 30 percent of his body. He was transferred from the Intensive Care Unit on 4 March 2010 and was found to be confused, agitated and refusing to speak English. He required strong pain medication by way of Methadone and Valium which was eventually reduced. He required speech therapy and gradually his confusion and agitation settled. He was discharged from the Sydney Burns Unit on 24 March 2010 to the Royal Rehabilitation Centre at Ryde where he was fitted with pressure garments. His psychiatric injury was diagnosed on 5 April 2010 when he was found to have absconded from his ward at the Royal Rehabilitation Centre. He required scar management and contraction prevention treatment. He apparently discharged himself on the same day. Given his need for ongoing care he moved in to his former wife’s home at Mascot. She gave up her job in a nursing home at that time to care for Mr Hossain as he required assistance with all activities of daily life at that time.

216. By 8 September 2010 he no longer required pressure garments for his lower limbs, but his hand function remained significantly impaired. Since his discharge from hospital he has undergone further hand surgery on 17 August 2014 by a Dr Wheen and further surgery by the same surgeon in 2017. At surgery on 17 May 2017, Dr Wheen performed a tendon transfer in an attempt to improve the movement in his right little finger.

217. In his report for IAL solicitors of 22 November 2017, Dr John Giles expressed the following opinions (Exhibit 3D4 p 100):

Mr Hossain has not worked since his accident more than 7 years before this assessment. He is now approaching his 59th birthday and with the conditions of his hands, which means there is very little he can do with them, I believe he will not be able to return to the workforce.

Mr Hossain has serious problems in both of his hands and he may benefit from further surgery. However, as I have only seen him on one occasion, I believe it would be presumptuous of me to comment on any future surgery. Nevertheless, his scars will be aggravated by exposure to the sun and he should either keep them covered, or apply a 30+ ultra-violet block-out sunscreen to them, if he is going to be exposed to strong sunlight. In addition, the scars have loss on their normal lubricating mechanism and he will need to regularly apply a moisturising cream to keep them supple and prevent them from cracking.

Dr Giles agreed that Mr Hossain’s permanent impairment due to the injury from the point of view of his disfigurement and the disability resulting from his serious scarring was 71 percent.

218. Dr Eli Revai, psychiatrist agreed with the diagnosis of Post-Traumatic Stress Disorder. He expressed the opinion that Mr Hossain is totally unfit for his pre-injury employment. He said “it is possible that with an improvement of his physical complaints he could work again assisting in the Bangladeshi community in his capacity as an adviser.”

Earning capacity

219. The two significant issues in relation to the assessment of damages were as to residual earning capacity and the need for future care. So far as residual earning capacity was concerned the defendants tendered a vocational assessment report from Professor James Bright of 24 February 2016 (Exhibit 3D4.2, p 22). Professor Bright administered a battery of tests including the Kaufman Brief Intelligence Test to assist in assessing Mr Hossain’s vocational capacity. In his oral evidence, he made it quite clear that questions in relation to Mr Hossain’s physical capacity for work were beyond his expertise and required medical opinion for assessment (384.10 - .15T). Having regard to his expertise, Professor Bright was of the view that Mr Hossain may be suitable for employment as a community worker, a security alarm monitor, a gaming worker, a radio dispatcher, ticket seller, ticket collector or a bookkeeper. He also said that his results suggested a degree of “symptom magnification”.

220. Professor Bright agreed that there was a difference between suitability for work, and a chance of getting that kind of work. The prospect of securing a job might depend upon presentation at the job interview and it was statistically harder to secure work over the age of 50, becoming increasingly difficult as age increased. He also agreed, however, that there was a degree of flexibility in the workforce these days – he referred to the gig economy. And that casual or part-time work might be an option for Mr Hossain. (390.5 – 391.45T).

221. There was other evidence relevant to Mr Hossain’s residual earning capacity. In his second evidentiary statement, (Exhibit E p 215), the plaintiff said that he had invested the proceeds of his workers’ compensation permanent loss compensation in a garment business in Bangladesh. It emerged in cross-examination that whilst in Bangladesh he had met a younger woman of entrepreneurial bent who was involved in a clothing manufacturing company. Mr Hossain and his friend formed a romantic attachment and had had a son together.

222. Upon his return to Australia he return to Australia he established a company with a similar name to the Bangladeshi company – MSI EXIM Pty Ltd on 14 February 2013 with a view to importing the garments manufactured by his friends business in Bangladesh into Australia for re-supply or retail. He had hoped the venture would be profitable. However, the company was deregistered on 19 September 2015.

223. It seems not to be in doubt that his erstwhile business partner misused the plaintiff’s money (50.41T). He has commenced legal proceedings in Bangladesh in the attempt to recoup his losses.

224. I had the advantage of observing the plaintiff in the witness box and I have considered very carefully his injuries, his appearance, his age and his employment background since coming to Australia. I am of the view that residual earning capacity depends not only upon physical capacity, but also upon the ability to find work in the labour market. It is quite clear from the evidence I accept that from a physical and psychiatric point of view, the doctors on both sides of the record consider Mr Hossain totally unfit for work. It may be intellectually and from other aspects there is a theoretical ability to perform the type of work that Professor Bright has identified. However, I am persuaded on the balance of probabilities that Mr Hossain’s prospect of finding work of that type is nugatory.

225. Nor do I think his relatively brief involvement with the entrepreneur from Bangladesh evinces residual earning capacity in the sense of an ability to generate income in the labour market by his personal exertion. At best his role was that of an investor. He provided a not insignificant amount of capital from which, as it happens, he has never turned a profit because his business partner misapplied the funds. The clothing importation business never got off the ground. Even if it had, it is difficult to see Mr Hossain’s involvement as other than an investor trying to turn his capital to account.

226. I am persuaded on the balance of probabilities that Mr Hossain has no residual earning capacity.

227. I will deal with the question of his need for care below.

Damages for non-economic loss

228. I have set out above my findings in relation to the nature and extent of the plaintiff’s injuries and disabilities and their affect upon him. He has suffered pain and suffering, loss of amenity of life, loss of enjoyment of life and the most significant disfigurement over the 9 years and 7 months since the explosion.. He was 50 as at the date of injury and he is now 59. On the medium life expectancy tables he has a further 25 years of life expectancy. For the reasons I have sought to explain, as I regard his injuries as in a near catastrophic category. In making this assessment, I have borne in mind the requirements of s 16 Civil Liability Act. I have not been guided simply by what I have said about the degree of whole person impairment which is not directly relevant to the assessment of damages for non-economic loss. I refer to it merely as an indication or an illustration of the severity of Mr Hossain’s injuries and their physical and psychological consequences. Learned Senior Counsel for Mr Hossain suggested an assessment of 80 percent of a most extreme case. Learned Senior Counsel for IAL proposed 60 percent. In my judgment, Mr Hossain’s non-economic loss amounts to 80 percent of a most extreme case and I allow    $526,500.00 [1]

     1. Updated figure substituted by agreement

Past out of pocket expenses

229. Past out of pocket expenses excluding the amount paid by the workers’ compensation insurer for past domestic assistance have been agreed in the sum of    $445,414.00 [2]

     2. Updated figure substituted by agreement

Past economic loss

230. When he was injured the plaintiff was employed by the College as a caretaker. He had other responsibilities. He was earning $924 net per week. I have already found that he has had no residual earning capacity since the date of the accident. The plaintiff’s counsel propose that I should adopt the $924 per week as a base figure, allowing adjustments in accordance with the consumer price index movements, and adding an allowance for his keep. The defendants’ counsel argue that there should be no adjustment to the base. There is no evidence as to the terms of the contract of employment and no evidence of the earnings of a comparable worker to establish movements in the amount Mr Hossain would probably have earned but for the injury had he continued with the College, which I regard as his most likely future circumstances, but for the injury.

231. I think I am entitled to take judicial notice of the consideration that wages growth in the Australian workforce in recent years has been somewhat sluggish and may not have kept up with increases in the consumer price index. I think the proper approach to take is to adopt the figures propounded by the plaintiff’s counsel, but adopting a Malec v JC Hutton Pty Ltd approach, I will make a small discount for the prospect that the plaintiff’s increases in earnings would not have kept pace with the consumer price index.

232. There is also an issue about whether an allowance should be made for the consideration that the plaintiff’s keep at the school. Electricity and telephone accounts were paid. The plaintiff’s counsel submit that although there is no direct evidence, I should make an allowance of, say, $350 per week net for the value of the accommodation and other benefits. The defendant’s counsel submit that as there is no evidence as to the value of the benefits, no additional allowance should be made.

233. The evidence clearly establishes a loss. It is true the evidence does not permit me to precisely assess it. It undoubtedly has some value and I am of the view that the proper approach is to make some allowance for the loss, but exercising restraint because of the lack of evidence enabling accuracy.

234. The plaintiff’s counsel’s calculations start on 10 February 2010 at $924 per week and rise to $1,112 on 3 August 2018. The total at the time of hearing was $455,484. Running that same figure forward to the present may have added another 60 weeks at $1,112 or $66,720, which brings the sub-total to $522,204. The plaintiff’s counsel suggest a figure of $350 per week net since the accident for the value of accommodation and other services. I am prepared to allow $250 per week for this amount. The period since the date of accident is 502 weeks and the sub-total is $125,500. The total is $647,704 from which I will deduct 5 percent to allow for the possibility that wages growth would not have kept pace with changes in the consumer price index. The 5 percent is $32,385.20. For past economic loss I allow    $615,318.00

Past employer’s contribution to superannaution

235. I adopt the convention of 11 percent of the allowance for past economic loss. Allow:    $67,684.98

Future economic loss

236. The plaintiff’s counsel argue that I should calculate future economic loss on the basis of no residual earning capacity at the rate of $1,112, plus the allowance of $350 for accommodation and services. The defendants’ counsel suggest that I should allow the amount of $1,112 per week for the future, but reduce it by one-third to take account of the vicissitudes including the prospect that the plaintiff can find some paid work, having regard to his education, language skills and his cognitive ability.

237. I am of the view that the plaintiff is totally unfit for work. I accept that he is able to operate in the Bangladeshi community to offer a helping hand to others in that community less adept at operating in the general Australian community. However, this is an honorary role in essence and I find it difficult to see Mr Hossain turning it to a profit. Doubtless he does find it an honour to be able to help his fellow countrymen who have migrated to Australia like him. Charging for such assistance as he gives would doubtless lower his standing in the community and make his services less attractive. However, the usual allowance of 15 percent for the vicissitudes should be made. The plaintiff will attain the age of 60 on 1 November 2019 and it is appropriate to allow 7 years for the future to the pensionable age of 67 less 15 percent. The 5 percent multiplier for 7 years is 309.4. The calculation is $1112 x 309.4 = $344,052.00, multiplied by .85 =    $292,444.00.

Future loss of superannuation benefits

238. Allow 12.48 percent in accordance with Najdovski v Krnojlovic [2008] NSWCA 175 $36,497.00

Future out of pocket expenses

239. Counsel are agreed that the allowance for future out of pocket expenses excluding the cost of commercial care should be $160,000 with a deduction for the vicissitudes of 10 percent: Avropiling Pty Ltd v Boveski [2018] NSWCA 146. I allow $144,000.00

Past and future domestic assistance

240. There is no disagreement that at all material times in the past, Mr Hossain has had a need for assistance with personal care, domestic duties and with the activities of daily life. So far as the past is concerned, the dispute relates to whether there is a need for personal care since March 2011. The question is whether the plaintiff has a need for the application of creams and other therapy for scar management twice daily as has been provided to him in the past. There is no doubt he is entitled to general domestic assistance since his release from hospital, although there is a dispute about the necessary hours.

241. I should say since sometime after his release from hospital, Mr Hossain has had the benefit of paid care provided by the workers’ compensation insurer under WCA. The carer has been his ex-wife, Ms Nasirin Sultana who has nursing experience and is employed in a nursing home as an enrolled nurse. For a period of about 15 months after his release from hospital Mr Hossain lived with his ex-wife and their children in her family home. Ms Sultana gave evidence (83.40; 84.35T) that for a long period of time while Mr Hossain was living in her home she was providing 24 hour care. After Mr Hossain moved out in 2011, Ms Sultana continued to assist him with personal care such as showering and the like, given the condition of his hands. She washed his clothes, helped him shave and looked after the house. She helped feed him because of the difficulty he had with his right hand. She also offered companionship given his mental state. The workers’ compensation insurer has been paying for 25.5 hours of care every week. She also works 6 hours per day, 5 days a week in her work as an enrolled nurse.

242. One matter in dispute is the need for Ms Sultana to apply cream to Mr Hossain’s scars, twice daily for about 45 minutes on each occasion. On her calculations she provides greater care than the 25.5 hours per week allowed by the insurance company.

243. There were three professional occupational therapists qualified to give evidence in the case. Ms Kelly Walcok, Ms Susanne Borthwick and Ms Elaine Swaby. Ms Walcok and Ms Borthwick were qualified by the defendants and Ms Swaby by the plaintiff. They gave concurrent evidence, Ms Borthwick by AVL. The joint report of the occupational therapist was tendered as part of (Exhibit G, p 10). The contentious issues, as I have said, included whether it was necessary for Mr Hossain to continue to receive the application of cream and massage to his injured limbs. Ms Borthwick and Ms Walcok thought that it was unnecessary and contra-indicated by best medical practice. Ms Swaby at one time was advocating 24 hour care because of Mr Hossain’s psychiatric injuries. She regarded him as a suicide risk and considered he needed to be effectively on suicide watch. She altered this and suggested that he should be receiving companion care for his mood, 14 hours per day. I must say I have no difficulty rejecting both of these opinions. He receives very significant companion care from his ex-wife who attends to provide personal care and domestic assistance. Moreover, he does continue to have an involvement in the Bangladeshi community and has contact with his children. I would not regard either of these matters as necessary because of his injuries.

244. Much of the evidence consisted of discussion about how long it takes to clean a small apartment or what hours are involved in other activities which I must say, I found difficult to follow, and naturally it is difficult to make a decision about the nuts and bolts of those matters one way or another.

245. With respect to Ms Borthwick and Ms Walcok, Dr John Giles in his report of 22 November 2017, did express the view (I repeat) (Exhibit 3D4, p 100):

… the scars have lost some of their normal lubricating mechanism (and Mr Hossain) will need to regularly apply a moisturising cream to keep them supple and prevent them from cracking.

Given the significant restrictions in his hand and arm movement, I regard it as necessary for him to have the moisturising cream applied and I accept that this is being done by Ms Sultana and that this care is a necessary accident related care. She seems to be attending to this for about one and a half every day. I note that the workers’ compensation insurer continues to provide assistance for personal care and the activities of daily life for 25.5 hours per week. This amounts to no more than 3.5 hours per day and given the high level of disability and the level of assistance Ms Sultana is providing, this does not seem to me to be an excessive amount of care. Obviously more care was likely to be necessary for the first twelve months after the accident and a greater allowance should be made for that period.

246. In State Rail Authority of New South Wales v Brown [2006] NSWCA 220, in a passage not reported in 66 NSWLR 540, Basten JA (with whom Giles and Santow JJ agreed) said (at [84] – [85]):

There is an important distinction between a challenge to expenses actually incurred, based on lack of causation of the injury, and a challenge based on the reasonableness of the services, accepting causation of the relevant injury. Once causation is established, the only question is whether the rehabilitation was rendered reasonably necessary by the injury. Indeed, as her Honour further explained, “the rehabilitation could be also categorised as reasonable expense incurred by the plaintiff in mitigation of his damages”: at [99].

Questions of the reasonableness of a plaintiff’s conduct usually arise in circumstances where treatment recommended by an appropriate professional has been refused: see, eg, Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, applied in State of New South Wales v Fahy [2006] NSWCA 64 at [140]. Where services have been used, the cost of particular services has occasionally been disallowed as not reasonably incurred: see generally Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [4.2.1]. In some cases it may be necessary to assess the benefits obtained by a particular form of treatment, against the costs incurred: see Sharman v Evans (1977) 138 CLR 563 at 573 (Gibbs and Stephen JJ). However, the “touchstone of reasonableness” to which their Honours refer will readily be resolved in favour of the plaintiff in circumstances where the treatment has been undertaken at the behest of his employer and the employer’s insurer, and pursuant to a statutory scheme which requires such steps to be taken for the ostensible purpose, as noted above, of “the timely, safe and durable return” of workers to the workplace. This was not the choice of some speculative or unproven remedy by an idiosyncratic plaintiff: it was treatment undertaken in compliance with a scheme mandated by the Parliament.

247. In my judgment the same may be said in relation to the amounts paid for care and domestic assistance under the same statutory scheme. The amount provided for his treatment “is treatment undertaken in compliance with the scheme mandated by the Parliament”.

248. Considering the position of the parties as set out in the Schedule of Damages (MFI 17 – 17A), there is a significant difference between them reflecting the position of their respective occupational therapists.

249. In my view an allowance of 40 hours per week should be made during the first twelve months. This will pick up the small amount of additional assistance while in hospital that all of the occupational therapists agree that Mr Hossain is entitled to. The total value of that amount is $672 only. The amount claimed is $24 per hour and $960 per week [3] . The subtotal is $49,920. From February 2011 until 1 October 2019, I will allow 25.5 hours per week at the gross rate paid by the workers’ compensation insurer which is apparently $1,400 per week. I calculate a total of 447 weeks. The total is, on my calculation, $625,800.00. However, I am conscious that Mr Hossain has travelled overseas for some times extended periods. Given the relationship he formed in Bangladesh at one time, it seems a fair inference that he did not travel with his ex-wife on that occasion. To take account of such periods I propose to round the figure down to:    $629,920.00 [4]

     3. Corrected under the slip rule

     4. Corrected under the slip rule

Future care

250. I propose to proceed on the basis that in the future Mr Hossain will continue to receive commercially provided care for 25.5 hours per week. It may be that his wife, an enrolled nurse, will continue to provide the care. However, it is unlikely that she would do so voluntarily given the established commercial relationship. I propose to allow the same rate of $1,400 per week into the future. I have already said that at the age of 59 he has a life expectancy of 25 years on the medium life tables. There should be a deduction for the vicissitudes which I will allow at 10 percent. The multiplier on the 5 percent tables for 25 years is 753.6. The calculation is $1,400 by 3.6 = $1,055,040 multiplied by .9 = $949,536.   $949,536.00

Fox v Wood allowance

251. As agreed,    $35,031.00 [5]    

Total   $3,742,344.00 [6]

5. Updated figure substituted by agreement

6. Recalculated to take account of updates and corrections

Work injury damages

252. The damages payable under Div. 3 of Pt 5 of the Workers’ Compensation Act relate to the amounts I have calculated under Pt. 2 of the Civil Liability Act for past and future economic loss. The amount is:   $1,046,974.00 [7] .

     7. Recalculated by consent

Deduction under s 151Z(2) Workers’ Compensation Act 1987

253. In accordance with State of New South Wales v Kennelly (No 2) (2001) NSWCA. It is necessary to make a deduction from the civil liability damages for the irrecoverable portion of the contribution otherwise payable by the employer under s 5 Law Reform (Miscellaneous Provisions) Act 1946. Although there are 4 civil liability tortfeasors it is unnecessary to calculated the deduction individually. It is sufficient that they be treated globally and that the difference between the contribution otherwise recoverable and the contribution actually recoverable is deducted from the total civil liability damages.

254. But for the provisions of Div 3 of Part 5 WCA the employer’s contribution to the civil liability damages at the rate of 20 percent would have been $748,468.80 [8] . The amount payable under Div 3 of Part 5 at the rate of 20 percent of the work injury damages is $209,394.80 [9] . The difference is $539,074. This is the amount by which the civil liability damages must be reduced under 151Z(2)(d) WCA. I will ignore the 61 cents. The calculation is $3,742,344 minus $539,074 =    $3,203,270.00

     8. Corrected to take account of agreed changes

     9. Corrected to take account of agreed changes

Summary of damages

255. Summary of damages:

1. Civil liability damages    $3,203,270.00 [10]

2. Work injury damages    $1,046,974.00   

10. Recalculated by consent

Judgments and orders

256. In accordance with short minutes of order agreed by the parties on 25 October 2019, final orders are:

1. Judgment for the Plaintiff against the First Defendant in the sum of $1,046,974.

2. Judgment for the Plaintiff against the Third Defendant under s 601AG Corporations Act 2001 (Cth) in the sum of $3,203,270.

3. Judgment for the Plaintiff against the Sixth Defendant in the sum of $3,203,270.

4. Judgment for the Plaintiff against the Seventh Defendant in the sum of $3,203,270.

5. Declare under s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) that each of the First Defendant, Third Defendant, Sixth Defendant, and the Third Defendant to the First Cross-Claim, are amongst themselves equally legally responsible for the Plaintiff’s injuries.

6. Satisfaction of one judgment discharges the others pro tanto.

7. Grant leave for the Third, Sixth and Seventh Defendants to file Cross Claims against the Third Defendant to the First Cross Claim claiming contribution and indemnity pursuant to s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) by Friday 1 November 2019.

8. Judgment for the First Defendant in relation to its Cross Claim against the Third Defendant in the sum of $209,394.80.

9. Judgment for the First Defendant in relation to its Cross Claim against the Third Defendant to the First Cross-Claim in the sum of $209,394.80.

10. Judgment for the First Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $209,394.80.

11. Judgment for the First Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $209,394.80.

12. Judgment for the Third Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80.

13. Judgment for the Third Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $748,468.80.

14. Judgment for the Third Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $748,468.80.

15. Judgment for the Sixth Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80.

16. Judgment for the Sixth Defendant in relation to its Cross Claim against the Third Defendant in the sum of $748,468.80.

17. Judgment for the Sixth Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $748,468.80.

18. Judgment for the Seventh Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80.

19. Judgment for the Seventh Defendant in relation to its Cross Claim against the Third Defendant in the sum of $748,468.80.

20. Judgment for the Seventh Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $748,468.80.

21. The First Defendant (subject to the provisions of s.346 of the Workplace Injury Management and Workers Compensation Act 1988 and div.3 part 17 of the Workers Compensation Regulation 2016), Third Defendant, Sixth Defendant, Seventh Defendant, and the Third Defendant to the First Cross-Claim, are to pay the Plaintiff’s costs of the proceedings; save that the Third Defendant to the First Cross-Claim’s liability for costs is limited to 20% of the Plaintiff’s costs.

22. Each party is to bear their own costs of each of the cross claims.

23. On the condition that Notices of Appeal are filed by 22 November 2019, the orders, declarations made are stayed until the determination of those appeals.

24. Liberty to apply on 5 days’ notice for the purpose of permitting the first defendant, if it wishes, to seek leave to amend its cross claim to pursue an action pursuant to s151Z(2)(e) Workers Compensation Act 1987 in the event that such a cause of action becomes available. 

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Endnotes

Amendments

01 October 2019 - Hearing dates amended;

Catchwords: second paragraph; second line "independent contractor" amended to "principal contractor".

Paragraph 13: Line 4 the words "as I have said" removed.

02 October 2019 - Paragraph [42] - First sentence the word "avaIALble" amended to "available".

Paragraph [52] - Second sentence the word "avaIALble" amended to "available"

Paragraph [106] - First sentence - delete date.

Paragraph [116] - First sentence; last word - insert the word "Star" after the word "Five".

Paragraph [119] - First sentence; the word "not" inserted between the words "could" and "themselves".

Paragraph [122] - First sentence between the words "when" and "work" the word "his" amended to "Five Star's".

Paragraph [130] - Last sentence insert the word "it" between the words "I think" and "implicit".

[138] - Second sentence the words "installation and associating" replaced with the words "pipes and associated".

[144] - Last sentence the word "of" inserted between the words "safety" and "persons"

29 October 2019 - Paragraph 228 - last line updated figure substituted by agreement.

Paragraph 229 - last line updated figure substituted by agreement.

Paragraph 249 - Fourth sentence figure of $24 per hour corrected under the slip rule.

Paragraph 249 - last line figure corrected under the slip rule.

Paragraph 251 - Updated figure substituted by agreement.

Paragraph 251 - total figure - recalculated to take account of updates and corrections.

Paragraph 252 - last line figure recalculated by consent.

Paragraph 254 - First sentence - figure corrected to take account of agreed changes.

Paragraph 254 - Second sentence - figure corrected to take account of agreed changes.

Paragraph 255 - Civil liability Damages - recalculated by consent.

Paragraph 256 - Orders amended in accordance with short minutes of order agreed to by Counsel.

Decision last updated: 29 October 2019