Juric v Transformex Pty Limited

[2007] NSWDC 229

Reported Decision: 6 DCLR (NSW) 224

District Court

CITATION:	Juric v Transformex Pty Limited [2007] NSWDC 229
HEARING DATE(S):	9 - 12 October
JUDGMENT DATE:	13 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	The total damages are $762,102. As the defendant has not agreed to waive any jurisdictional limits on damages, there will accordingly be a verdict for the plaintiff in the sum of $750,000.
CATCHWORDS:	Torts - negligence - occupier - duty to independent contractor working on premises - Interpreter - credit of witness whose first language is not English - Evidence - circumstantial evidence to support finding of negligence - Causation - Civil Liability Act 2002 principles - Damages - domestic assistance future where assistance provided gratuitously in past
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Metcash Trading Limited v Scripcariu [2006] NSWCA 78 Maricic v Dalma Formwork (Australia) Pty Ltd and Anor [2006] NSWCA 174 Czatyrko v Edith Cowan University [2005] 79 ALJR 839 Luxton v Vines (1952) 85 CLR 352 Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166 Van Gervan v Fenton (1992) 175 CLR 327 Nguyen v Nguyen (1990) 169 CLR 245 Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249 Matchan v Lyons (2004) 40 MVR 466
PARTIES:	Branimir Juric (Plaintiff) Transformex Pty Limited
FILE NUMBER(S):	4822 of 2005
COUNSEL:	Mr C. Heazlewood (Plaintiff) Mr N. Polin (Defendant)
SOLICITORS:	Beilby Poulden Costello (Plaintiff) Gadens Lawyers (Defendant)

JUDGMENT

Issue

1 This is a claim by the plaintiff for damages to compensate him for injuries he suffered as a result of a fall of about two metres from a pergola, injuring his ankle. This occurred on 19 February 2002. He claims that the defendant, as occupier of the premises, breached a duty of care to ensure that those premises were reasonably safe.

2 The main issue in the case of is whether, on the facts I find, the defendant is liable to compensate the plaintiff. That can be so only if I find that the defendant breached some duty of care which it owed to the plaintiff, and that the breach of duty caused damage.

Plywood

3 The plaintiff claims that at the point where he fell, both his feet were resting on plywood. The defendant says that the only plywood on the site was plywood it had used to construct access walkways, and this was firmly fixed to the rafters. It could not fall. If I find that a loose piece of plywood had been placed at the point where the plaintiff fell, the plaintiff’s case becomes much stronger, given that the defendant’s witnesses’ evidence that the project manager, at least, had been on the site that morning, and had not seen a piece of plywood where it should not have been.

Alternative formulation

4 The plaintiff put forward an alternative basis upon which the defendant could be held liable. That was that he did step directly on to a rafter, which collapsed. This version is not in accordance with the evidence given by the plaintiff or the witness who was working with him on the site, Mr Pham. If it had been possible for the defendant to prevent the plaintiff putting his foot on the rafter, there is a possible basis of liability. However, given the lack of evidence, I will not deal in detail with this contention.

Damages

5 The plaintiff claims that, since the date of his accident, his injuries have certainly prevented him from doing the work which he did before the accident, but in practice have also prevented him from doing any other work.

6 There is a dispute as to what the plaintiff’s earnings were at the time of the accident, and the proper basis of calculating any loss of wages.

7 The defendant says that I should not allow the plaintiff’s claim for future domestic assistance.

Contributory negligence

8 The defendant says that, if I find that it was in breach of any duty it owed to the plaintiff, then the plaintiff failed to take reasonable care for his own safety.

The Parties

The plaintiff

9 The plaintiff, Branimir (Branko) Juric, gave evidence that he was an independent contractor retained by the defendant to carry out the final tiling work on the balcony at a site in Woolloomooloo.

10 He was born in Croatia. He did not complete his formal education. He had various jobs in that country and then became a merchant seaman. After he arrived in Australia he took up painting and other jobs in the construction industry. He married Verica, an Australian woman whose father had a painting business. The plaintiff worked in this business for some time and subsequently set up his own business, Prugovo Painting, named after his village in Croatia. This business did contract painting and other work, particularly in building maintenance and restoration. Before he was injured, the plaintiff's business was reasonably successful. He was able to buy a family house where he lived with his wife and two children. In 2001 he carried out extensive renovations and extensions to this house, including the construction of a new kitchen and a new garage.

11 For some years before his accident, the plaintiff's business was engaged by the defendant to do painting and other work. Immediately before the Woolloomooloo job, in the course of which the plaintiff was injured, he had been working for the defendant at a site in Ridge Street North Sydney. He did not work exclusively for the defendant, but he had worked for it regularly over a number of years. Mr Malchewski, the sole director of the defendant, confirmed this. It was clear that both he and his project manager, Mr Black, regarded the plaintiff as a solid, competent, honest and reliable worker.

12 The defendant arranged to engage Mr Pham on a similar basis to assist with the work.

The defendant

13 The defendant has only one director, Mr Alek Malchewski. It has offices at Artarmon but carries on work, particularly in the maintenance and restoration of residential and commercial properties, all over Sydney. Apart from the sole director, a production manager and an assistant production manager, there was no evidence that it employed any tradespeople. In fact, the evidence was that most of its work was done by independent contractors such as the plaintiff's firm and Mr Pham. This practice would have significant benefits in terms of lower workers compensation insurance premiums, but, no matter what its director and employees may think, it does not absolve the defendant from the responsibility of providing a safe working environment for its contractors in places where it controls the premises where they work.

14 Mr Malchewski gave evidence which I shall discuss later. It was obvious that he was proud of the fact that his business had no previous workplace accidents. He admitted that he was concerned at the outcome of a Workcover investigation, and he was fully aware that there would be such an investigation after the plaintiff's accident.

The Site and Means of Access

15 The defendant had contracted to undertake waterproofing and re-tiling of certain balconies, and some other work, on a block of strata title units, erected on a block running between Brougham and McElhone Streets in Woolloomooloo. The site slopes steeply from east to west. The units were stepped back from the western side towards the east. On the eastern side of each of the units in question was a balcony. Each balcony had a wooden pergola erected on it.

16 The only access to a balcony was from the outside or through the units. It appears that the proprietors of the strata plan made the agreement with the defendant on the basis that the workmen would access the balconies from outside and would only access those balconies where restoration work was being done.

17 This meant that the defendant had to devise a means of access from the lower street level to the balconies on the upper levels. Mr Black, the project manager, gave evidence that he designed a system which involved the construction of a bucket hoist to carry materials and equipment, and a system of extension ladders. These are shown in a photograph, which is in evidence. The personnel would climb on the ladders from the street and lower levels to the level where they were working.

18 Mr Black also designed and constructed a system of walkways, which gave access to the balconies where work was to be done. These walkways consisted of plywood sheets, each 1.2 x 2.4 metres, laid across the rafters of the pergolas parallel to the balustrades, and about one metre to the west of the balustrades. Between the plywood and the balustrades, sheets of fibro-cement lattice were laid on top of the pergolas to shade the units from the sun. In front of each unit where the defendant was required to work on the balcony, another plywood sheet was laid at right angles from the walkway to the balustrades. These sheets were also1.2 m. wide.

19 The walkways were supported, on one side, by the posts that supported the rafters of the pergolas, and on the other side by Acrow props, which are adjustable metal posts attached to the ground and reaching upwards. Some of these are shown in the photographs in evidence. The plywood was fixed to the rafters at regular intervals by Phillips head screws, so that it would not move.

20 The walkways were not fitted with handrails at all.

21 Mr Black's evidence was that when he first inspected the site, he noticed that some of the timber forming the pergolas was rotted or unstable, and so his plan was to provide additional support by using the Acrow props.

22 It was the defendant's policy and practice to instruct all personnel, first, that when accessing the units and balconies, they should walk only on the plywood walkways, and secondly that they should not access any balcony except the balconies upon which the defendant or its agents were working.

The plaintiff’s accident

23 The evidence was that by February 2002, most of the waterproofing work on the site had been completed, but some difficulties had arisen with the previous tilers. Mr Black arranged for the plaintiff to undertake the remaining tiling work. At the time the plaintiff was working for the defendant on another job at Ridge Street, North Sydney. Mr Pham was also contacted. The plaintiff’s evidence was that he, the plaintiff, was not a skilled tiler, but Mr Pham was. The plaintiff and Mr Pham met Mr Black, and possibly Mr Farrugia, at the Woolloomooloo site, and they were shown the means of access to the site, where they could park and leave their material, and then they were taken to the ladders and walkways. It is not in dispute that they were instructed to access the balconies by means of the plywood walkways, and that they were told not to go onto the balconies where the defendant was not working. Other employees or contractors of the defendant had been working on the site from a date either just before or just after Christmas 2001. The evidence was that other workmen (either employees or contractors of the defendant) had been working on the site on the day the plaintiff fell, but that at the time of the fall they had gone home.

24 The plaintiff and Mr Pham agreed that they were only working on a limited number of balconies.

25 The plaintiff said that on 19 February 2002, he had been working on the job for about five days. They had just about finished the tiling work on a particular balcony. It emerged from the evidence that this balcony was probably the balcony in front of unit 14. This unit is on level 5 of the block. On that day, late in the afternoon, the plaintiff was cleaning the tiles which had recently been grouted. Mr Pham was nearby. He was doing this with a rag and a bucket of water. Each balcony had a tap and a drain. The plaintiff said that he went to empty the bucket and refill it, using the drain and tap in the next unit. As he was doing this, he says that he fell through the plywood to the balcony of the unit below.

26 It is not in dispute that the fascia board and rafter which formed part of a pergola on the unit below were rotted, and collapsed under the pressure of the plaintiff’s weight, causing him to fall to the floor of the balcony below and injure his ankle.

27 What is in dispute is whether or not, when the plaintiff fell, his feet were on a piece of plywood, or whether he was standing directly on the rafter. It is clear from the evidence that latticework had been placed across the rafter is at the point where the plaintiff fell and that this broke. It has not been suggested that the plaintiff trod on the lattice.

28 The plaintiff insisted that both his feet were on plywood when he fell. Mr Pham also said there was plywood at the point where the plaintiff fell. Mr Pham was not working in the immediate area at the time and did not see the plaintiff fall. He heard the plaintiff call for help and arrived at the place where the plaintiff landed about one to two minutes afterwards. He said that he saw pieces of plywood in the area. He also said that there was plywood above the pergola rafters, and that he had used it to gain access to the drain and tap.

29 It is significant, in my view, that the plaintiff and Mr Pham were the only witnesses who had worked closely in the area. Mr Black and Mr Farrugia, who had been involved the construction of the access walkways, were undoubtedly familiar with the site, in general terms, but they were not working on the site continuously, as were the plaintiff and Mr Pham. For that reason I place a greater weight on the detailed observations of, particularly, the plaintiff, but also, to an extent, Mr Pham as to the precise description of the site at the time of the plaintiff's fall.

30 Mr Pham called an ambulance and at least two ambulances came to the scene. Ambulance officers attended the plaintiff. Because the only access to the balcony where Mr Juric landed was through the unit, apparently the police rescue team was called and by the time Mr Malchewski arrived at the site, there were a number of police officers present as well. In fact, the ambulance officers gained access to the unit and removed the plaintiff through the unit. He was taken to St Vincent’s Hospital and admitted.

The liability evidence

The defendant’s witnesses

Black

31 Is not in dispute that the defendant knew that much of the woodwork forming the pergolas was rotted. Mr Black clearly admitted that.

32 If this was the state of the defendant’s knowledge, and it permitted or suffered workers to put their weight on the unsupported rafters, or on anything resting on the unsupported rafters, they were clearly in breach of the duty that I have set out above. Three supervisory personnel employed by the defendant gave evidence -- Mr Malchewski, Mr Black, and Mr Farrugia. Only Mr Black had been on the site on the day the plaintiff fell, before the fall, and he says that when he was on level 5 at about 10 that morning, he did not see any plywood at any point in front of unit 26.

33 Mr Malchewski came to the site some time after the plaintiff had fallen and had telephoned Mr Black. Mr Black telephoned him and he came directly from his office in Artarmon as soon as he could. However, he was not regularly on site and could not make observations of the condition of the site before the fall.

34 Mr Black in particular, and Mr Farrugia, were involved in the construction of the walkways and were both on site from time to time. Mr Farrugia said that he had not seen any plywood in front of unit 26.

35 I find that Mr Black, at least, was aware that the drain on this balcony had been used for emptying wastewater. His evidence was that he had seen a stain on the floor of the balcony. He said that he had spoken to the plaintiff about it, though the plaintiff did not recall this.

[83] A. I don't distinctly recall examining it, but as I walked along the walkway I walked past that area and I would have noticed if there was ply there and I'm saying there was no ply there.

36 It is clear that the incident report which Mr Black prepared was not a result of his direct observations, but rather as a result of what he had been told by other people. Although he was on the site on the morning of 19 February, he did not return until the next day. He said, in evidence:

[90]Q. By that time I gather everything had been cleared up?
A. Yeah, it'd - it had been cleared up,

37 I accept that Mr Black did not at any relevant time see a piece of plywood in the position where I find it must have been. His attention was not focused on this detail. As project manager it is almost certain that his attention would have been directed to other aspects of the work being done on the site.

Malchewski

38 Mr Malchewski was an important witness in the defendant's case. He was the only servant or agent of the defendant to attend the site in the hour or two after the plaintiff fell.

39 The plaintiff's evidence was that after he fell he called out for help, but he also made calls on his mobile phone to his wife and to Mr Black. Mr Black's evidence was that he was at Gosford, and that he called Mr Malchewski. Mr Malchewski said that when he received Mr Black's call, he left the office at Artarmon and went to the Woolloomooloo site. The plaintiff was still there, but he cannot recall Mr Pham or any other employee of the defendant being on site. He did recall some police and ambulance officers being there, but he could not recall how many.

40 Mr Malchewski was equally unclear about a conversation he had with the plaintiff either that afternoon, or the next day in the hospital. He was unclear as to the time and as to the exact language used, both when he was asked about this in his evidence in chief, and more particularly, when he was cross-examined in detail by Mr Heazelwood. He was clearly aware of the importance of the incident report, but even so could not recall whether the plaintiff had said that he stepped on the lattice, on the rafter, or on the pergola.

41 It was apparent from the photographs taken the next day -- and Mr Malchewski cannot recall whether he took these photographs or someone else did -- that when the plaintiff fell, the rafter and fascia board broke away, and there was broken lattice. It was also clear that some electrical wiring had come away as a result of the plaintiff's fall. He also noticed that the floor on the lower balcony was wet.

42 Mr Malchewski did not make any notes of his observations or of the conversations he had with the plaintiff. His recollection is unclear. In any event I formed the view that his answers to some questions put to him in cross examination were deliberately evasive. It was obvious that he was conscious that the presence or absence of a loose piece or pieces of plywood was a crucial issue in the case. He said that he first became aware of this issue some time in the 2006, in the course of a conference with his legal advisers. A statement was produced, but this was clearly prepared with the dominant purpose of preparing the defendant's case in these proceedings and I ruled that that document was privileged and that the privilege had not been waived.

43 In his submissions, counsel for the defendant pointed out that, in cross-examination, it had not been suggested to Mr Malchewski that he had removed plywood from the site. Therefore I should not make any inference about this issue. In my view, unless counsel for the plaintiff had some proper basis for suggesting to the witness that he had removed plywood, it would have been grossly improper for him to make such a suggestion. It is not necessary for me to do so, but it is certainly possible that, on the balance of probabilities, I could find that Mr Malchewski or someone acting at his direction did remove pieces of plywood from the site after the plaintiff fell, and before Mr Farrugia was directed to clean it up.

44 I am not satisfied that Mr Malchewski’s evidence was totally honest about what he observed on the afternoon when he visited the accident site. In any event he does not have a clear recollection of what was or was not said on that occasion and, even if his evidence could be accepted as totally honest, it could not be accepted as being reliable in any real sense.

Farrugia

45 Mr Farrugia gave evidence which was not particularly helpful to either party. As assistant project manager he assisted Mr Black in the design and construction of the access walkways. However, he was not on the site on the day when the plaintiff fell. He did not return to the site until some days later -- he was not certain of the exact date -- when he came to clear away the rubble which resulted from the plaintiff's fall. By that time he found rubble, pieces of lattice and broken timber on the balcony where the plaintiff fell. He also found broken electrical wiring and fittings. He was quite definite that there were no pieces of plywood on that balcony when he cleaned up.

46 Of the defendant’s witnesses, I find that only Mr Farrugia was totally reliable. I have already pointed out what I regard as deficiencies in Mr Malchewski’s evidence. In general I regarded Mr Black as doing his best to recall what had happened. However, he was clearly a person who took a great deal of pride in his work, and found it difficult to accept that he might be wrong either in his observations or in his recollection of those observations.

The plaintiff’s liability witnesses

47 Both the plaintiff and Mr Pham maintained at all times that, adjacent to the walkway giving access to the balcony where they were working, there was a piece of plywood resting on the pergola adjacent to the point on the next balcony where the tap and drain were. I accept that both the plaintiff and Mr Pham believed that this had been placed there with the authority of the defendant, so that they could step on it in order to empty and fill buckets without actually getting onto the adjoining balcony.

48 Both the plaintiff and Mr Pham said that after the plaintiff fell they saw pieces of timber on the balcony below. The evidence was that several ambulance officers and police from the police rescue squad were also at the scene. None of these witnesses were called, although was open to the defendant to call them. I infer that no evidence from them would have assisted either party in any way.

49 As I have said already the plaintiff and Mr Pham were the only witnesses who were working regularly and continuously at this part of the site and, if only for that reason, I would find that their evidence on this point was more reliable than that of the defendant’s witnesses.

50 There are problems with some parts of Mr Pham's evidence. He insisted that the tap and drain were outside the balustrade on the balcony of the adjacent unit. He also said that the drain consisted of a concrete bowl attached to a downpipe. He said that the concrete bowl also fell when the plaintiff fell, and that he saw pieces of concrete at the site when he saw the plaintiff after his fall. Mr Pham also ascribed a size to one piece of plywood that he said was on the balcony with the plaintiff after the fall. He said that this piece of plywood was 1.2-1.5 x 1m.

51 Mr Pham was obviously confused by the nature of the proceedings, even though he had the benefit of a competent interpreter. In Metcash Trading Limed v Scripcariu [2006] NSWCA 78, at [31], Mason P said, of a witness who had, apparently, some problems in English expression and comprehension, ”[D]ue allowance must be made for the fact that the {witness] did not have English as his first language. It is dangerous to focus on a single answer.”

52 I could not accept Mr Pham’s evidence as being reliable on every point. There are a number of aspects of his evidence, which I do not accept. However, I do accept his evidence, first, that adjacent to the balcony where he and the plaintiff were working, there was a piece of plywood giving access to the tap and drain on the next balcony. I also accept his evidence that he saw a piece of plywood on the balcony below when he went to the plaintiff's assistance after the plaintiff fell.

53 Therefore, despite some reservations about the accuracy of Mr Pham’s evidence, I regard him as being honest. I regard the plaintiff as being totally honest and reliable, given that when he fell, he was in extreme pain and, as he admitted, his recollections were not entirely clear.

Duty of Occupier

54 The duty of care owed by an occupier of premises, that is a person who had practical control of the site, was as expressed by Basten JA in Maricic v Dalma Formwork (Australia) Pty Ltd and Anor [2006] NSWCA 174:

[53] In the present circumstances, there is no doubt that Bovis retained a level of control over the site and owed a duty of care to ensure that subcontractors and those working for them on the site were not exposed to unreasonable risks to their safety. [My emphasis]

His Honour said also:

[79] It is clear that the duty of care imposed on an employer or occupier may extend to the taking of reasonable steps to avoid injury caused by inadvertent conduct on the part of a worker. Inadvertence may, but need not involve a failure to take reasonable care for one’s own safety: see Thompson v Woolworths (Q’land) Pty Ltd , [(2005) 221 CLR 234].

55 Similar remarks were made by Mason P in Metcash Trading Limed v Scripcariu [2006] NSWCA 78, esp at [40], applying what the High Court said in Czatyrko v Edith Cowan University [2005] 79 ALJR 839 at [12]. Mason P emphasised that the High Court said that the occupier’s duty of care must take account of “thoughtlessness, inadvertance or carelessness”. In that case his Honour referred also to the inadequacy of the system of instruction. That may be relevant here, but in this case I would find that the system of instruction on use of the walkways was reasonable and effective. The defendant’s breach of duty lay in other failures, which I describe.

56 I make the following findings with respect to the defendant’s duty. It was undoubtedly the occupier of the premises with control of the site for the purposes of this rule. The defendant, at least through Mr Black, was aware that the timbers which formed the pergolas were in some cases rotted and unsafe. This was the reason why Mr Black chose to support the access walkways with Acrow props. The system of access was, in itself, reasonably safe, subject to the remarks I make later concerning the installation of hand rails. I accept that the defendant, through Mr Black and other agents, directed the independent contractors that they should access only those balconies upon which the defendant had contracted to perform work, and that they should do so only by means of the walkways. I am satisfied that both the plaintiff and Mr Pham understood these instructions.

57 Mr Black was also aware, and admitted in cross-examination, that tradesmen and others working on the site did not always follow detailed instructions. He was aware that workers would be likely to take shortcuts.

58 It follows that, in my view, it was part of the defendant's duty not only to construct means of access to the site which were safe, but also to ensure that there were no other walkways on the site which might appear to have been put in place by the defendant. It was put to Mr Black that the defendant might have been prudent to place fences or hand rails at the site of the walkways. In cross-examination he said:

Q. Did you consider that you ought perhaps put some sort of barrier down the side of it, to stop them from straying off it?
A. Yes I did.

Q. But you didn't?
A. No.

59 He agreed that this precaution might have been prudent but admitted that it had not been done. In view of the findings of fact that I make, this lack of prudence may be fatal to the defendant. If a handrail had been in place at this side of the plywood walkway leading from the walkway to the balustrade of the balcony where the plaintiff and Mr Pham had been working, it would have been obvious that the piece of plywood, which I find on the balance of probabilities to have been placed next to the access walkway, was not part of the authorised access system and should not have been used by the plaintiff to stand on when he was emptying or filling buckets.

60 I find that the defendant was in breach of its duty of care to the plaintiff and persons in his position. It was part of the defendant’s duty to check regularly for what might be called “unauthorised extensions” to the properly constructed walkways. I find on the balance of probabilities that if there was a failure on the part of the defendant to check regularly and remove any such unauthorised extensions, and that this was a failure to provide a reasonably safe workplace. Further, even if I am wrong on the first point, I find that the defendant’s failure to construct hand or guard rails along the walkways was, in the circumstances of this case, a failure to provide a reasonably safe means of access to the worksite.

61 It does not matter that in practice, over a period of 2-3 months, workers had access to the balcony without injury. Prudent workers would have done as the plaintiff and Mr Pham did, namely to keep to what they understood to be the properly constructed walkways. This meant that if a piece of plywood was on the site adjacent to the properly constructed walkways, even though not fixed by nails or screws to the rafters, and not being part of the walkways made by the defendant, workers on the site were entitled to assume that the plywood was part of the properly constructed walkway and place their weight on it. If a hand rail had been placed in position, it would have been clear that the piece of plywood resting on the rotted rafter at the point where the plaintiff fell was not part of the properly constructed walkway system.

Findings of fact

62 The case against the defendant is circumstantial. In order to find that the defendant broke any duty of care which it owed to the plaintiff, I have to make inferences from the direct evidence. It is always permissible for a court to do this, even where the burden of proof of breach of duty, as in this case, rests on the plaintiff. The classical statement of the position was made by the majority of the High Court (Dixon, Fullagar and Kitto JJ) in Luxton v Vines (1952) 85 CLR 352:

“8. The test to be applied in determining in cases like this whether circumstantial evidence suffices to support a finding that negligence for which the defendant is responsible vicariously or otherwise occasioned the injury complained of was restated recently by this Court in Bradshaw v. McEwans Pty. Ltd. (1951) Unreported, and for the purposes of this case it is enough to set out the following passage from the judgment: "Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson , Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (1911) AC, at p 678". (at p358)

63 In this case the facts I find justify my drawing inferences that support the plaintiff’s case.

64 I make the following findings of fact in relation to liability.

65 At the time the plaintiff fell, a piece of plywood sufficiently wide to reach between two rafters had been placed over the lattice immediately adjacent to the plywood walkway leading to unit number 14. It was not nailed or screwed to the rafters. I cannot determine who placed the plywood there. I cannot determine its exact size. It is not necessary for me to do so. I do not accept that it was necessarily of the size described by Mr Pham. This is significant, because if the plywood was smaller than described by Mr Pham, this renders the evidence of Dr Cooke of less weight and relevance in these proceedings.

66 As he had been doing during the course of the day, the plaintiff stepped on this piece of plywood with both feet. He was carrying a full bucket of water. His weight on the plywood caused the rafter and fascia board, on which the plywood was resting, to break. As a consequence, the plaintiff fell to the floor of the balcony below.

67 Although the defendant, particularly through its agent Mr Black, did visit the site regularly, Mr Black did not see the plywood in place on the morning of 19 February.

68 The defendant did not consider it necessary to place handrails on either or both sides of the access walkway.

69 I am not suggesting that either the plaintiff or the defendant placed the plywood in position. There are no facts to support any such inference. There was evidence that other persons had been and still were employed, either as employees or contractors, by the defendant, and had worked on the particular balcony and had access to it. There are many possibilities as to how the plywood came to be where it was, and I do not have to decide how it got there.

70 However, there was a failure on the part of the defendant to

(a) observe and remove the plywood;
(b) ensure that the plywood was nailed or screwed to the supporting timber; or
(c) install handrails.

71 Both the plaintiff and Mr Pham were unshaken in their evidence that there was such a piece of plywood. Both were experienced workers, a matter which the defendant readily conceded. They had been instructed that it was necessary for them to step only on the plywood walkways. They knew this, and they both said it was obvious that they should do so. They were aware that it was unsafe to walk on the lattice, and they were aware that some rafters were rotted. It is highly unlikely that either the plaintiff or Mr Pham, as competent, mature, and experienced workers, would have taken an unnecessary risk.

72 It was clearly in both their interests to have access to the tap and drain on the next balcony, particularly if the work they were doing was grouting. That meant they could not access the tap and drain on the balcony where they were working. It does not seem to be in dispute that that was the case. If they did not have this access, in order to empty the bucket and obtain fresh water, they would have had to either go down the ladder to the next level, or go along the walkway to the other unit on level 5 where they were working. If there had been a piece of plywood in place, and they were justified in assuming that it was safe to walk on the plywood, then they would have used it. This is what they did.

73 It is certainly possible that Mr Black, even though he had been on the site that day, would not have noticed a relatively small piece of plywood, particularly as it did not necessarily extend from the main walkway (that is the one parallel to the balustrades) to the balustrade itself.

74 Although Mr Pham says that this piece of plywood was of a particular size and was fixed, I do not accept his evidence on either point. That does not shake my confidence in his evidence that there was a piece of plywood, which gave access to the tap and drain, and that he had used it several times.

75 Even if commonsense did not indicate that if Mr Pham had been correct on either issue, it would have been highly unlikely, if not impossible, for a piece of plywood of the dimensions he gave to fall through the hole in the way that he said it did. Dr Cooke's evidence, which was in my view largely unnecessary, at least served to confirm this commonsense approach.

76 Having found a prima face case that such a piece of plywood was placed above the rafters, but not fixed to it, I can find no evidence which leads me to conclude on the balance of probabilities that the plywood was not there. In fact, on the balance of probabilities I find that such a piece of plywood was there. As I have said, there is no suggestion that the defendant put it there. The fact may be that Mr Black did not see it that morning or previously, but it does not follow that it was not there.

77 This is a point which must be decided on the balance of probabilities. That balance can, at times, be extremely fine. As judges often direct juries, if the balance is ever so slightly in one way, then that is the way the decision must go. In this case I find on the balance of probabilities that the plywood was present to allow access to the tap and drain. It was therefore reasonable for the plaintiff to assume that it was safe. It was also a breach of the defendant's duty of care not to ensure that it was removed.

78 I find therefore that when the plaintiff stepped on this piece of plywood, the pressure on it caused the rotted rafter and fascia board beneath to break, and both the plaintiff and the plywood fell to the level below.

Causation

79 The general test of causation is laid down in the Civil Liability Act 2002, s 5D, the relevant parts of which are as follows:

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation"), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability") . . .

(4) For the purpose of determining the scope of liability , the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

80 This statutory formulation requires that there be an affirmative answer to two questions. The first is whether the defendant’s breach of duty was a significant causal factor in the plaintiff’s injury. The second involves the court making a value judgment as to whether it is appropriate that responsibility for the failure should be placed on the defendant.

81 In my view both questions, in the circumstances of this case, must be answered affirmatively. I have found that the presence of a piece of plywood resting on a rotted rafter was the cause of the plaintiff’s fall. I have also found that it was a breach of the defendant’s duty of care that this piece of plywood should be where it was in the circumstances. Because the defendant chose to have its work done by independent contractors rather than by employees, it does not follow that the scope of its responsibility to provide a safe working environment is significantly less than it would have been had it chosen to employ its workers, rather than to engage them on independent contracts. In the old terminology, the plaintiff and other workers were “invitees”, that is, persons whom the defendant invited onto the premises for its own benefit. That benefit means that it is reasonable that the defendant should accept responsibility for the safety of such persons. It is therefore appropriate that the defendant should be responsible for the consequences of its negligence.

Contributory negligence

82 It follows from my findings on liability that there was no failure by the plaintiff to take reasonable care for his own safety. The onus of proof of contributory negligence lies, in this case, on the defendant. In order to discharge its burden of proof, the defendant must prove that the plaintiff knew that it was unsafe for him to put his feet on the piece of plywood which I have found to have been placed above the rafters immediately adjacent to the walkway providing access to the balcony where the plaintiff and Mr Pham were working. It was not necessary for me to find who placed the plywood there, and I specifically did not find that either the plaintiff or Mr Pham did so. In the circumstances, it was reasonable that the plaintiff should assume that the plywood had been placed there with the authority or the direction of the defendant, and was therefore safe. It could not be said in any way that there was a failure on his part to take reasonable care for his own safety when he put his weight on the plywood.

Damages

The extent of the plaintiff’s injuries

83 In St Vincent's Hospital, the plaintiff was treated by an orthopaedic surgeon, Dr Ian Woodgate. Previously he had been in good health. He reported that when he was very young, in Croatia, he had been involved in a motor cycle accident and had broken his right ankle. He reports that since his injuries in 2002, he had a recurrence of pain in his right ankle, but I am not satisfied that the medical evidence is sufficient to relate this injury to the fall.

84 The initial treatment was an open reduction and internal fixation of a fracture dislocation in the left ankle. This was performed on 23 February 2002. This fracture apparently resolved, leaving a minor surgical scar. On 26 February the plaintiff was discharged from hospital. On 14 May 2002, in the course of a review by Dr Woodgate, he reported, and Dr Woodgate found, that he had left knee discomfort including crepitus and a positive Clark's test. When Dr Woodgate saw him on 9 July 2003, he reported that the anterior pain in his left knee was now bothering the plaintiff more than his left ankle. Dr Woodgate injected his left knee with local anaesthetic and steroid and commenced him on a physiotherapy program. On 3 September, Dr Woodgate noted that the left knee pain had not resolved and gave a further injection of anaesthetic to the left knee. Dr Woodgate arranged an MRI scan of the left me. On 24 October 2003 Dr Woodgate reported that the MRI scan showed a chondral lesion at the posterior part of the medial femoral condyle weight bearing surface. There was also mild patellar tendonitis. Dr Woodgate recommended a left knee arthroscopy. On 13 November Dr Woodgate performed a chondroplasty of the medial femoral condyle, arthroscopically. On review about a week later Dr Woodgate recorded that he had explained the possibility that the plaintiff would require a cartilage graft if he had ongoing symptoms. He referred him for further physiotherapy. On 29 January 2004, Dr Woodgate performed a further left knee chondroplasty. The following month, after a discussion between the plaintiff, his wife and Dr Woodgate the plaintiff was placed on a waiting list for a more formal autologous chondrocyte implantation, rather than an osteochondral autographed transfer. He remained under review by his general practitioner, but the chondral graft was not performed.

85 On 19 November 2005 the plaintiff fell, suffering a fractured head of his right radius. He said that the fall was due to his left knee giving away. His GP, Dr Ravi, referred him to an orthopaedic surgeon, Dr Nicholas Smith and ordered a CT scan of the right elbow. On 24 November 2005, he saw Dr Woodgate who confirmed Dr Smith’s diagnosis. Dr Woodgate decided to delay the left knee chondral harvest until after the plaintiff had undergone surgery on his right elbow.

86 Dr Smith performed an open reduction and internal fixation of the right radial head and repair of the collateral ligaments in the right elbow.

87 On 2 February and 5 April 2006, Dr Woodgate performed the chondral graft in two stages.

88 He has had no further surgery since that date.

89 The plaintiff still reports pain in both legs and lower back pain. He says that he is restricted in bending, lifting and twisting, and in standing and sitting in the one position for extended periods. When he gave evidence in these proceedings, sitting for long periods clearly caused him discomfort.

90 On 30 September 2006, he saw Dr Peter Morse, a psychiatrist. Dr Morse diagnosed him as suffering from adjustment disorder with mild to moderate depression and anxiety. He attributed this to the plaintiff's experience of the accident, the pain and discomfort, and the overall effect on his life as a result of the accident. Dr Morse reported that the plaintiff had some treatment with antidepressant medication which appeared not to have been totally successful. He reported that the plaintiff's family was supportive, despite the plaintiff's temperamental attitude. Dr Morse described him as

"irritable, somewhat withdrawn and because of the combination of his physical and emotional state there is a lowered libido.... he is irritable with his children and from his wife said [sic] that they are upset with this although she tries to help them understand his state. He is endeavouring to change his attitude but this will be difficult and there will probably be continuing problems in the relationship with his family. He is withdrawn from friends and others and leads a somewhat isolated life."

91 The only medical opinion which casts any doubt on the plaintiff's ability to work is that of a medico-legal expert qualified by the defendant, Dr Schutz. This doctor's opinion is totally out of line with the reports of the treating doctor, Dr Woodgate, with the opinion of Dr Nigel Marsh, an occupational physician, and of Dr Philip Marnie, an orthopaedic surgeon, both of whom were medico-legal experts qualified by the plaintiff. Apart from Dr Schutz, the medical opinion is that the plaintiff is permanently disabled from performing work as a painter or handyman. Dr Schutz is a medico-legal expert from Melbourne, who has seen the plaintiff once, for a limited time. His opinion is in stark contrast to that of the treating doctors, especially Dr Woodgate and Dr Smith. Dr Marsh and Dr Marnie, to a large extent, agree with Dr Woodgate and I accept their evidence. I reject the opinion of Dr Schutz.

Earning capacity

92 In fact, the plaintiff has not performed any paid work since 19 February 2002. He has not made any serious efforts to find suitable work. He is aware of his limitations, and, as I have said, he suffers from depression, which leads him to doubt his own capacity for work. He has registered with Centrelink, within a few months before the hearing. His other efforts to find work, as I understand them, are confined to enquiries made to family and friends in the building industry.

93 In evidence are reports from occupational physicians and occupational therapists suggesting that he has some residual capacity for work. I am compelled on the evidence before me to find that he has not totally lost his capacity for work, but I do find that his residual capacity is extremely limited. It would not include any full-time occupation. It would exclude any work that required lifting, bending or prolonged periods of standing or sitting. It was suggested to him that he could employ a painter and do some painting work. In my view this is not a realistic (or even cost-effective) suggestion. Even if he were to manage a painting business, the reality of such work is that even the "boss" at times is required to do heavy work which involves lifting, carrying, working at arms length above shoulder level or below waist level. The medical evidence is that the plaintiff is not able to do any of these things.

94 At best, the plaintiff is capable of working part-time for no more than about twenty hours per week in a sedentary occupation. He may be able to get work as a sales assistant or some type of attendant, but it would not be reasonable to expect anything more of him. The sort of work of which he is capable is paid at a much lower rate than the skilled work which he was doing before his accident. I find he has a residual earning capacity of no more than $200 per week.

The income protection policy

95 The plaintiff admitted readily that before he was injured, he had taken out an income protection policy, and that since his injury he had received payments under this policy in part compensation for the income he was no longer learning. It was put to him many times in cross-examination that the reason he was not motivated to seek work was because he was receiving this income.

96 There is evidence that the income, which the plaintiff received under the income protection policy, was significantly less than his earnings as an independent contractor before his injury. He told Mr Williamson, the occupational therapist, that before his injury he had earned on average $1400 per week gross, but the income from the insurance policy was $692.31 per week. This is consistent with the evidence presented, though the evidence of pre-injury earnings is not entirely satisfactory. I must disregard the income from insurance in assessing his damages. The plaintiff’s claim is based on past net earnings of $696 per week.

97 I find as a fact that the income received under the income protection policy was not the main reason for his lack of motivation in seeking work. He did not seek work, I find on the balance of probabilities, because of the depressed mental condition he suffered as a result of his injuries. In my view it is likely that he would not have sought work, even if he was not in receipt of any income under the income protection policy. This is consistent with his evidence, and that of his wife, who spoke of lack of motivation.

98 In a working environment where independent contractors have largely replaced employees, and employers are able to reduce their liability to pay workers compensation premiums, it is reasonable, and indeed prudent, for any independent contractor to have first-party insurance cover against loss of income. Indeed, it might be regarded as a failure to take reasonable care to protect one's own interests if, as independent contractor, one does not have such cover.

99 In my view it verges on the improper to put to a plaintiff that he or she has failed to mitigate damages because they have taken the appropriate and prudent course of obtaining insurance protection against loss of income.

Non-economic loss

100 In summary, the plaintiff has had severe problems with his left leg and pain in his lower back. The operation on his ankle was relatively straightforward. However he has required hospitalisation for treatment of his knee, a condition which I find is a result of his fall, on at least two occasions. He has also been hospitalised for his fractured arm, which I find also to be a consequence of his fall at work. The pain in his left leg, arm and lower back is constant and enduring. Even the surgery to his knee does not seem to have resolved his condition completely and it is likely that he will require further surgery.

101 His evidence was that he can no longer work around the house. He does not garden, he does not play soccer with his son, which he did before he was injured, and he is moody and irritable. His wife and the psychiatrist, Dr Morse, confirmed this. He has also been diagnosed as being clinically depressed for some time.

102 I assess his general damages at 35% of a most extreme case (maximum $442 000)

Loss of past earnings and earning capacity

103 The evidence relating to the plaintiff's income in the past is not entirely satisfactory. Only one original tax return is produced. This was for the tax year ended 30 June 2002. In that year, according to the plaintiff and his wife, who were not challenged on this point, the plaintiff was not receiving income for a significant part of the year, because he was engaged in renovating his house. Even so, his taxable income for that year would appear to be in the order of $600 per week net. Ms Bateman, whose report carries, in my view, little weight, does, however, annex that tax return and also the award rate for painters. I am prepared to infer from all the evidence to which I have referred, that the plaintiff's average net earnings before the accident were of the order stated in his claim, namely, about $700 per week. It is incumbent on the plaintiff to establish the amount of his loss. He has barely done so, but there is, in my view, sufficient evidence to make the finding I have. This is not a case where there is no evidence at all of the plaintiff's pre-injury earnings.

104 Until the surgery on his knee was completed, say at the end of June 2006, I find that the plaintiff was totally incapacitated for any work whatever. Since that time I find that he is capable of work, but, as I have explained above, this capacity is limited and his residual earning capacity is no more than $200 per week. He will receive compensation for loss of past earnings, and for loss of future earning capacity accordingly. Given that his claim is based on a loss of $696 per week, he will be compensated as follows:

19 February 2002 – 30 June 2006 (226 weeks) @ $696 per week $157 296

1 July 2006 – 13 November 2007 (70 weeks) @ $500 per week $35 000

13 November 2007 to age 65 @ $500 per week (multiplier 703.8) less 15% $299 115.

105 Because he was an independent contractor, there is no claim for loss of superannuation.

Out of pocket expenses

106 Out-of-pocket expenses to date have been agreed mathematically at $52 183.

107 The opinion of Dr Marnie is that he will require a left knee hemi-arthroplasty (cost $21,500) within 10 years, and a total replacement of the left knee (cost $24,560) within 20 years. Dr Marsh is more guarded, but seems to consider that, even given the treatment of the knee by Dr Woodgate, further treatment is likely. I propose to allow a lump sum of $20,000 to cover the cost of future surgery to his knee.

108 He requires strong analgesics (Neurofen and occasionally Panadeine Forte) and Mersyndol (antidepressant) at a cost of about $170 per year, and 4 visits to the general practitioner (@$40) annually to review his medication. At a multiplier of 931.6, this produces a figure of $5912 and I intend to allow this for the cost of future medication.

Domestic care

109 Although the plaintiff's wife has provided gratuitous domestic services since his fall, no claim is made in respect of them. This is because the plaintiff's legal advisers made a decision that these services probably did not cross the threshold established by the Civil Liability Act 2002, s 15.

110 The plaintiff does claim a sum for paid domestic assistance in the future. I find that he is entitled to some compensation to pay for the gardening and household work which he did previously, which he is no longer able to do. The fact that his wife does some of these tasks at present is irrelevant.

111 In Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166, Ipp JA at [49], pointed out that the proper test for the award of damages for domestic services is based on what the High Court said in Van Gervan v Fenton (1992) 175 CLR 327, and Nguyen v Nguyen (1990) 169 CLR 245 (at 261 to 262 per Dawson, Toohey and McHugh JJ). He said “ [58] Their Honours held that the true basis of a claim for damages with respect to gratuitous services is the need of a plaintiff for those services, and the plaintiff does not have to show that the need is, or may be, productive of financial loss.” Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249 and Matchan v Lyons (2004) 40 MVR 466 are no longer good authority. In my view the logic of of this proposition is irrefutable. I do not accept the defendant’s contention that to allow the plaintiff’s claim would be to defeat the purpose of the Civil Liability Act 2002, s 15. That section only addresses the situation where a claim is made for services provided gratuitously. It does not in any way affect the general principle that the criterion of liability to pay for necessary services is the need of the injured party. I am satisfied on the evidence of the occupational therapists, that for the remainder of his life, the plaintiff will not be able to do gardening work, lawnmowing, or household repeaters. He therefore has established a need to pay for such services, and it is irrelevant that, at the present time, his wife is able to provide them without payment. The compensation allowed by law must not assume that the person currently providing the services on a gratuitous basis will be able to do so in the future. I am prepared to allow compensation for 2 hours per week at a rate of $30 per hour for the remainder of the plaintiff’s life. That produces a figure (at a multiplier of 931.6) of $55,896.

112 The total damages are $762,102. As the defendant has not agreed to waive any jurisdictional limits on damages, there will accordingly be a verdict for the plaintiff in the sum of $750,000.

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