Leite v Tarabay

[2007] NSWDC 188

CITATION:	Leite v Tarabay [2007] NSWDC 188
HEARING DATE(S):	13 August 2007 - 15 August 2007
JUDGMENT DATE:	24 September 2007
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Verdict for the plaintiff in the sum of $228 128.90.
CATCHWORDS:	Torts - negligence - concurrent duty of care - res ipsa loquitur - contributory negligence - Workers Compensation Act s151Z - concurrent tortfeasors
LEGISLATION CITED:	Workers Compensation Act 1987 ss 151Z, 151G, 151H, 151IA
CASES CITED:	Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 Maricic v Dalma Formwork (Australia) Pty Limited & Anor [2006] NSWCA 174 Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82 Forstaff Blacktown Pty Limited v Brimac Pty Limited and Anor [2005] NSWCA 423 Clout Industrial Pty Ltd (In Liquidation) v Biaida Poultry Pty Ltd [2004] NSWCA 89, 61 NSWLR 111 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
PARTIES:	Antonio Leite (Plaintiff) Maurice & Lydia Tarabay t/as M & L Tarabay (Defendant)
FILE NUMBER(S):	4230 of 2005
COUNSEL:	Mr K.W. Andrews (Plaintiff) Mr P. Khandhar (Defendant)
SOLICITORS:	Wyatt Attorneys (Plaintiff) Wotton & Kearney (Defendant)

JUDGMENT

1 HIS HONOUR:There are a number of issues in this case.

a. are the defendants liable to the plaintiff?
b. if the defendants are liable, is their liability reduced because of the operation of the workers compensation legislation, s 151Z?
c. if the defendants are liable, was the plaintiff guilty of contributory negligence?
d. if the defendants are liable, to what damages is the plaintiff entitled?

Credit of witnesses

2 Many of the findings I must make in this case depend on the credit of the witnesses. Counsel for the plaintiff, in the course of his submissions, suggested that only one witness could be regarded as totally honest and, in large measure, reliable. After considering the evidence, I tend to agree. That witness was Mr George Georges, a surveyor who had been working on the site where the plaintiff suffered his injury. I find that there are serious questions as to both the honesty and the accuracy, hence reliability, of all the other witnesses.

3 The plaintiff was the only witness called in his case. There are serious questions about his credit. Mr Maurice Tarabay, one of the defendants, gave evidence, and the defendants also called the estranged wife of the plaintiff, Ms Elvira Leite, his stepdaughter, Suzy, and Suzy’s partner, Mr Andrew Cain.

4 The reasons I make these findings are as follows. The plaintiff clearly has some impairment of his mental capacity. In evidence is the unchallenged report from a psychiatrist, which indicates that the plaintiff suffers from a degree of mental incapacity, primarily of a depressive kind. When the matter first came on for hearing in May this year, both counsel for the plaintiff and I considered there was a serious issue about the plaintiff’s ability to give proper instructions. This arose from the plaintiff’s apparent incapacity to understand and respond to questions put to him in cross-examination. Before the hearing resumed, he saw a medical practitioner, and also a solicitor (not the solicitor who represents him in these proceedings), and I was advised that that his counsel was now of the view that he could get proper instructions. When the plaintiff resumed his cross-examination, I formed the view that counsel’s opinion was correct. He appeared able to understand and respond to questions.

5 The plaintiff’s honesty is a different issue. It emerged from the evidence that he was injured at work and was medically retired in 1992. Before that time he had had both his knees replaced. He said, and his wife also gave evidence, that between 1992 and 2004 he had worked continually as a formwork carpenter for at least four years, a period during which he received regular workers compensation payments. This is at least dishonest and may even be criminal. It does not reflect well on his general honesty. Although his English is not good, he appears familiar with the operation of the workers compensation legislation. He appeared to be aware that an insurer might pay the cost of employing domestic help, and his evidence generally appeared to be tailored to maximise his entitlement to compensation.

6 It became apparent that, not only had the plaintiff moved out of the matrimonial home in May, 2006, but also that he had done so in circumstances where there was considerable animosity between himself and his wife. In the course of his evidence he made allegations and accusations about his wife of the most serious nature.

7 This animosity was reciprocated by the wife, and to some extent by the stepdaughter and her partner. The mother admitted that she had discussed with her daughter the evidence she proposed to give in this case. The stepdaughter at first denied this, but later indicated that she had discussed evidence with her mother. Though there may not have been conscious fabrication of evidence, I find that the evidence of these two witnesses was at least, contaminated to the extent that it could not be regarded as totally reliable. This may be important in so far as it relates to the date at which certain events may have happened. Mr Cain’s evidence was not crucial, but the possibility, indeed, probability, remains that it was contaminated by discussions with his partner, Suzy, which detracts from its reliability.

8 The evidence showed that after the plaintiff suffered his injuries, Workcover investigators visited the site, and both they and the police interviewed Mr Tarabay. Mr Tarabay faced at least the possibility of criminal charges under occupational health and safety legislation, and may have had a strong motive to lie or conceal part all of the truth. His evidence also cannot be regarded as totally reliable. I accept his version of the way in which he came to discover the plaintiff after he was injured, which was corroborated by a statement made to police shortly afterwards, but I have very severe reservations about the evidence he gave regarding the safety of the site, and the way in which the plaintiff came to be employed there.

The accident

9 On 21 October 2004, the plaintiff was taken by ambulance from a work site at 409 Liverpool Road, Ashfield, to the Royal Prince Alfred Hospital. There he was treated for dislocations of both shoulders (requiring closed reduction), a fracture to the left femur (requiring open reduction with plate and screws), damage to his cervical spine, and abrasions to his head and face. As a consequence of the damage to his shoulders, he later required replacement of both shoulders. He was in hospital initially for about 3 weeks.

10 The building site was one on which a block of 42 home units was being constructed. The defendants were the head contractors for the building work. They had the control and management of the site. At the time when the plaintiff was injured, work was under way on the construction of an underground car park. This structure, at the time, had 5 levels, joined by sloping concrete ramps. Photographs in evidence show that there were openings at least in the uppermost concrete slab. Mr Tarabay gave evidence that he had employed a formwork contractor, SS Formworking Pty Ltd, whose principal was a Mr Salim, or Sam, Saliba. Counsel for the defendant indicated that he had been in contact with Mr Saliba at the time of the hearing in May, but attempts to contact and serve him with a subpoena to attend and give evidence at the August hearings were unsuccessful. Although the defendant seemed to assume that they were sued as occupiers of the land, the plaintiff made it clear that it sought to attach liability to the defendants as head contractors.

11 The circumstances in which the plaintiff received his injuries are unclear. In evidence there are ambulance and hospital records and medical opinions from a number of doctors, which are not challenged in any way, except to the extent that they reflect on the plaintiff’s current capacity. The plaintiff did give evidence of how he was injured, but this evidence was not entirely consistent with what is contained in the ambulance and hospital records. To some extent, it is possible that this may be due to difficulties in translation, but I find also that the version of events presented by the plaintiff in his evidence may have been to some extent exaggerated.

The plaintiff’s version

12 The plaintiff says that 2 days before the accident he had come to the site and asked Mr Tarabay if any work was available. He says that Mr Tarabay enquired as to the type of work he was looking for, and he replied that he was a carpenter. He says that Mr Tarabay then made a telephone call, as a result of which he met Mr Sam Saliba. He says that he was offered work, not by Mr Saliba, but by Mr Tarabay. He was told that he would be given a trial and that he could start the following day. His evidence was that Mr Saliba took him to the work site on the following day and told him to clear up plywood and other rubbish left after the formwork had been completed. The plaintiff says that he worked that day, and was told to come back the following day.

13 He says that he came back on the following day, which was Thursday 21 October. That day was wet. He went to the second level of the basement car park and began to work, carrying plywood and other rubbish to a point, which he said had been designated. He said that at some point he fell through a hole in the concrete deck to a level below. He lay there for some time, screaming, until Mr Tarabay and some other workers, who he said were surveyors, arrived. They tried to move him by holding his arms and legs, but this was too painful. They then placed him on a sheet of plywood and carried him to a point at the bottom of the sloping ramp leading to the upper level of the car park. At that point the ambulance arrived. He was taken to hospital. He and his wife agree that she arrived at the scene before he was taken to hospital.

Tarabay‘s version

14 Mr Tarabay gave a quite different version of events. He says that he had never seen the plaintiff before the day he was injured. He says that the plaintiff presented at the site office, situated on the lowest level of the basement car park, at about 10 a.m. After some type of introduction, he asked for Sam. Mr Tarabay had arrived at the site some time previously, where he had spoken to the foreman and had been told that all the workers had left the site because of the wet weather. He said that the plaintiff appeared to know what was required, and that he left the site office and went into the basement area.

15 Mr Tarabay said that the whole of the basement area was well lit. The plaintiff said that the area was badly lit. The conditions of lighting were not the subject of any particulars in the pleading, and in the course of the hearing I ruled that the plaintiff could not rely on bad lighting. In his submissions, counsel for the plaintiff said that he did not rely on the state of the lighting to establish any breach of duty on the part of the defendant, but did rely on the absence of lighting to negative contributory negligence on the part of the plaintiff.

16 Mr Tarabay’s evidence was that, apart from himself and the foreman, he was not aware of any other workers on the site at the time.

17 He gave evidence that when his attention was drawn to the incident, he found the plaintiff injured at the lower end of the ramp leading to what was then the upper completed level of the car park, which was the same position indicated by Mr Georges. I accept that this is where he found the plaintiff.

Georges’ version

18 Mr Georges was a surveyor working on the site on that day. He was totally independent and I accept his evidence without reservation. He said that he was working on the top level of the car park with his assistant, whose name he has now forgotten. The assistant was a casual employee and no longer works for Mr Georges’ employer. Mr Georges said he heard the sound of an ambulance siren on the site and went towards the sound. He saw 2 female ambulance officers carrying equipment at street level. He then saw the plaintiff lying at the bottom of the ramp leading to the car park. He and his assistant helped the ambulance officers with their equipment, as they needed to climb down a ladder to reach the plaintiff. When they arrived at the plaintiff he saw a number of other people there. He was not certain of the number, but it could have been up to 5 or 6 people. At that stage, because he had left his expensive equipment at the higher level, he left the scene, with his assistant, went back to the equipment, completed the job and left the site.

The corroborative evidence

19 What the plaintiff told the ambulance officers is important. It is the closest thing in this case to corroboration of any of the evidence. It reads:

(limb [fractures] post fall) o/a 658 on the scene 68 y.o. [male] pt [patient] who fell after a slip approx 2-2 ½ mtrs prone onto sloping cement surface that construction site. Pt denies any l o c [loss of consciousness] and states crawled /c assistance of work mates to sheltered area where found by AOs. Pt States landed /c outstretched arms + meetings. Pt [illegible] [fracture] of(l) knee + ® ankle operation in 1080 from work site accident, pt last meal at nine a.m. - small amount of fruit.

20 This suggests that the plaintiff, or at least an eyewitness, reported to the ambulance officers what had happened. It does not agree with the evidence that the plaintiff gave in court.

21 The hospital records of the RPAH record a similar narrative of how the plaintiff sustained injuries:

SLIPPED & FELL 2-2.5M OFF PLATFORM. NIL LOC. LANDED FACE FORWARDS. GCS 15, PERL, NIL SENSORY CHANGES ALL LIMBS. LUMP TO FOREHEAD, BILATERAL # HUMERUS, SWELLING LEFT IN KNEE ABRASIONS LEFT SCAPULA. SYS 180 HR 90 ON SCENE. GIVEN 15MG MORPHINE 10 MG MAXALON. PHX LEFT KNEE 1980.

22 It is not in dispute that the plaintiff was seriously injured. What is in contention is whether those injuries were the result of a breach of duty of the part of the defendants. My finding on that issue depends on the inferences I draw from the evidence before me as to how the plaintiff’s injuries occurred.

Inferences and conclusions

23 The inference I draw from the nature of the injuries to the plaintiff, the admission by Mr Tarabay that he gave no instruction to the plaintiff as to the safety of the site, and the account recorded by the ambulance officers and the hospital, as well as the plaintiff’s version, despite some doubts about its reliability, is that, on the balance of probabilities, the plaintiff did fall through an opening in the concrete slab while he was carrying a sheet of plywood on the site, and that he fell forward, landing in a prone position. He was then moved, with the assistance of other workers, to the place where he was seen by Mr Georges and other witnesses. Mr Georges’ evidence leads to an inference that there were other workers on the site, and I accept that part of the evidence of the plaintiff that he was carried or assisted to the place where Mr Georges observed him. I accept that Mr Tarabay was not one of those who carried or assisted him.

24 I make no finding as to whether the plaintiff was carried on a sheet of plywood or not.

25 I infer from the photographic evidence and the accounts given by both Mr Tarabay and the plaintiff that the site was one where extreme caution was required before anyone could move around it in safety. Mr Tarabay admits that he provided no safety instruction or induction, and in the absence of any evidence from Mr Saliba or his company, I must accept the plaintiff’s evidence that he did not receive any induction, or proper instruction as to safety requirements of the site.

Did the defendant have a duty of care?

Existence

26 On the evidence in this case it is clear that both the defendants and the plaintiff's employer owed him a duty of care. This is clear from Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234. That case was considered and applied by the Court of Appeal in Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174, where the facts were remarkably similar to those in the case before me. However, in Maricic the Court of Appeal had the benefit of detailed evidence about the circumstances in which the plaintiff was injured. In this case the factual basis from which I am asked to find a circumstantial case of negligence against the defendant is significantly less. The decision is, however, useful authority for a number of purposes. It directs the court to consider the relative positions of the construction contractor and the employer. In that case there was considerable evidence about the degree to which the head contractor had delegated control of the site to the formwork contractor. I do not have the assistance of any such evidence.

27 It is not clear to me that the formwork contractor, the plaintiff's employer, had any particular responsibility for the site as such, although undoubtedly it had a non-delegable duty to provide a safe place and system of work. Even if it did have a such a duty, I could not find on the evidence before me that the defendants had discharged any duty which they might have owed to persons lawfully on the site by any contractual arrangements with the formwork contractor, because there is no evidence at all of the contractual arrangements between them.

28 On the evidence before me there was a clear breach of the defendants’ duty.

29 It is not unusual to find that 2 persons may have the concurrent duties of care towards the same plaintiff. I find that to be the case here. The plaintiff was clearly a person whom the head contractor ought reasonably to have foreseen, and in fact knew, would be working on the site and exposed to whatever hazards the site presented. The head contractor's duty was to take reasonable care to ensure that workers on the site -- including employees of other contractors -- were not exposed to unreasonable hazards, even though that duty may have coincided with a similar duty on the employer.

30 The circumstances that I have inferred of the plaintiff’s fall excite the maxim, res ipsa loquitur, for such events do not happen without negligence. The person responsible for the site had a responsibility to fence or otherwise warn people on the site of the presence of unusual hazards, such as openings in concrete slabs for ducts, lifts etc.

31 I find that in the circumstances of this case there was also a breach of this duty.

Causation?

32 On the findings I have made, the plaintiff’s injuries would not have occurred if he had not fallen through the hole. His fall was a result of the breach of the concurrent, as opposed to joint , duties owed to him by both the employer and the defendants.

Workers Compensation Act, Section 151Z

Effect of s 151Z

33 At the time of the incident the relevant portions of this section that are initially relevant read as follows:

(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect: . . .

(2) If, in respect of an injury to a worker to which compensation is payable under this Act:
(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer; and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

(c ) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced ….[the emphasis is mine].

34 The defendant contends that this section applies, so that damages are to be reduced in accordance with the section. The plaintiff contends that it does not apply, for a number of reasons. Both parties accept that the conditions set out in subsection (1) are complied with here, but the difference arises over the construction of paragraph (2) (b).

35 Applicable parts of other relevant provisions of the legislation are as follows. I have emphasised particularly significant words:

(1) The only damages that may be awarded are:

(a) damages for past economic loss due to loss of earnings , and
(b) damages for future economic loss due to the deprivation or impairment of earning capacity.

(1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.

Note . Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.

(2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%):

(a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and

(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and

(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.

Note . This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.

(3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.

(4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(5) In this section:

psychological injury includes psychiatric injury.

secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.

151IA Retirement age

In awarding damages for future economic loss due to deprivation or impairment of earning capacity or (in the case of an award of damages under the Compensation to Relatives Act 1897) loss of expectation of financial support, the court is to disregard any earning capacity of the injured worker after age 65.

Could the employer have been sued?

36 The effect of the provisions I have set out above is that, given the findings I make on the facts in this case, the plaintiff would not be entitled to any damages against his employer:

i. As he is aged over 65, and was 68 at the time of the injury, he cannot recover damages for loss of future earning capacity.

ii. He is unable to prove loss of past earnings (see below).

iii. No assessment has been made as required by s 151H(2) to determine the extent of his injuries so that an award of damages might be awarded in any case.

37 The plaintiff says that because damages cannot be awarded, s151Z has no application at all. The defendant argues, on the basis of Grljak v Trivan Pty Limited (1994) 35 NSWLR 82, per Mahoney JA (with whom Kirby P and Priestley JA agreed) at 88, that it does apply to reduce any damages recoverable by the plaintiff. Mahoney JA said that an entitlement to take proceedings is not congruent with a right to recover damages: a person may be entitled to take proceedings, for the purposes of s 151Z, even if those proceedings will not result in an award of damages. That is the case here. The plaintiff is entitled to sue the employer, even though he has no right to recover damages from the employer. Damages must be assessed in accordance with the section.

38 Although it is clear that the employer had a non-delegable duty of care to the plaintiff to provide a safe place of work, and that there was a breach of the duty, the defendants, however, as head contractors with the overall management of the site, also owed a duty of care to the plaintiff, and breached that duty in a way that caused the plaintiff’s injury. The defendants’ duty of care extended to the responsibility to ensure that sub-contractors and their employees did not fall into openings in the concrete slabs. In that sense, the defendants and the employer are concurrent, rather than joint, tortfeasors. The relevant provisions of the workers compensation legislation, set out below, refer to liability “as a joint tortfeasor or otherwise”.

39 I hold that, because the employer and the defendant were concurrent, rather than joint, tortfeasors, there is no question of contribution. Each was independently liable. There is no evidence before me from which I could find or infer any obligation, contractual or tortious, between the defendants and the employer. The plaintiff, subject to the workers compensation legislation, would have been entitled to seek to recover damages from either. He chose to sue only the defendants.

40 The remainder of s 151Z(2) reads;

(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,

(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:

(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and

(ii) if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.

41 This subsection, unlike subsection (1), speaks of, and is conditional upon, an entitlement to recover damages from the employer. It is clear that on the facts of this case, the plaintiff is not entitled to recover any damages from the employer, because of the wording of subsection (2) and other provisions of the Act. It follows that the damages, which the plaintiff would be entitled to recover from the employer, being zero, would not exceed the amount the plaintiff is entitled to recover from any other person. Therefore, though it appears to be contrary to the scheme envisaged by the Act, the result is that the plaintiff is entitled to recover the whole of his common law damages from the defendants without any reduction.

42 This appears to be the effect of the case law. In Forstaff Blacktown Pty Limited v Brimac Pty Limited and Anor [2005] NSWCA 423, Hodgson JA said:

2 In my opinion, the requirement in para.(d) of s.151Z(2) of the Workers’ Compensation Act that the amount of the contribution that a person other than the worker’s employer is entitled to recover from the employer “is to be determined as if the whole of the damages were assessed in accordance with the provisions of Division 3 as to the award of damages” must be read in conjunction with pars.(a) and (c) of s.151Z(2), which refer to proceedings that the worker takes or is entitled to take against that person; and par.(d) must thus be understood as referring to a hypothetical assessment of damages in those proceedings . Where, as in this case, those proceedings against that person were taken by the worker after 27 November 2001, par.(d) must be taken as referring to a hypothetical assessment of damages in proceedings taken after 27 November 2001. That view is consistent with Clout Industrial Pty. Ltd. (In Liquidation) v. Biaida Poultry Pty. Ltd. [2004] NSWCA 89, 61 NSWLR 111.

3 This means that contribution recoverable under par.(d) will be nil if the injury did not result in a degree of permanent impairment of the injured worker that is at least 15%; and if the contribution recoverable under par.(d) is nil, then par.(c) requires that the damages that the worker may recover from the person other than the employer are to be reduced by the whole of the amount of the contribution the person would have been able to recover from the employer but for the effect of par.(d). This gives rise to questions as to who bears the onus of proof.

4 In a case such as the present, where the contribution proceedings against the employer are heard together with the proceedings brought by the worker against the person other than the employer, it is clear in my opinion that, if it is not proved by someone in the proceedings that the injury resulted in a degree of permanent impairment of 15% or more, the contribution claim will fail under par.(d); and if the person making the contribution claim proves that the employer would otherwise have been liable to contribute a certain percentage, the worker’s damages under par.(c) will (for consistency) have to be reduced by that percentage. Thus, there will as a practical matter be an onus on the worker to prove that the 15% threshold is passed. If the worker does not prove this, the person making the contribution claim may achieve a reduction in damages recoverable by the worker without having to prove that the 15% threshold is not passed, albeit at the expense of liability for the employer’s costs of the contribution proceedings.

5 However, in my opinion the position concerning onus of proof may be different if the proceedings brought by the worker against the person other than the employer are heard on their own, in the absence of or prior to the hearing of contribution proceedings brought by that person against the employer. It seems to me that that person, as defendant in the proceedings brought by the worker, must have the onus of proving the elements set out in par.(c) in order to obtain any reduction of damages: that is, there will be no reduction of damages as discussed in par.[3] above unless the defendant proves that it would, but for Part 5 of the Workers’ Compensation Act, be entitled to recover an amount from the employer and that the contribution actually recoverable is nil. In those circumstances, it seems to me that the defendant would have to prove that the injury did not result in a degree of permanent impairment of 15%; although I accept that it may be possible to do this by way of inference from the general evidence in the case, where the worker has not sought and failed to obtain the certificate required to establish this degree of impairment. In that respect, I think the position may be different from that supported by McColl JA; although it is not necessary finally to determine that matter in these proceedings. [My emphasis]

43 The question was reconsidered in Maricic v Dalma Formwork (Australia) Pty Limited & Anor [2006] NSWCA 174, where Basten JA (with whom the other members of the Court, including Ipp JA, who had been a member of the Court in Forstaff, agreed) took the same approach as Hodgson JA:

71 Thus, in respect of the statutory reduction on account of possible liability of the employer, pursuant to s 151Z(2)(c), the preferable approach is that adopted by Hodgson JA in Forstaff at [5], where his Honour concluded that different questions may arise depending on whether there is or has been a proceeding against the employer.

44 The plaintiff tendered medical reports, which indicated a significant degree of impairment. There has been no assessment in accordance with the provisions of the workers compensation legislation, so it cannot be said that he has crossed the statutory threshold. However, it is clear from the cases cited that this is a matter upon which the defendants clearly bear the onus of proof, and they have not produced any evidence at all to that effect. If it were necessary for me to do so, I would, as Hodgson JA suggested was possible, find that he crossed the threshold “by way of inference from the general evidence in the case, where the worker has not sought and failed to obtain the certificate required to establish this degree of impairment.”

45 The consequence is that the damages are assessed in the following way. The amount of damages which the plaintiff could recover from the employer, applying sections 151G and 151IA, would be nil. Therefore there is to be no reduction, because there is no excess.

46 If I am wrong in this finding, I would hold that the employer was 67% responsible for the plaintiff’s injuries, so that the defendants’ liability would have been 33% of any sum assessed pursuant to s151Z (2).

Contributory negligence

47 On his own version of events, the plaintiff was carrying a sheet of plywood at the time he fell, in such a way that it was in front of his face, so that his forward vision was at least partly obscured. The plaintiff had worked on building sites in Australia for about 40 years at the time, and was, or ought to have been, aware of the potential dangers of building sites. Even though the degree of contributory negligence necessary to make a worker in the course of his employment liable is to an extent less than that required of someone who cannot be assumed to be under instruction to work in a particular way, in this case it is clear that no reasonable workman, properly instructed, would have carried the plywood in the way that the plaintiff says he did: Stevens v BrodribbSawmilling Co Pty Ltd (1986) 160 CLR 16. The plaintiff did raise the lighting of the area in this context, but even though in this case I would accept the evidence of the plaintiff rather than that of Mr Tarabay, namely that at the time the area was poorly lit, the lighting would not have affected the plaintiff’s lack of responsibility for his own safety. He was not taking reasonable care for his own safety and I would assess his contributory negligence at 30%.

Damages

Non-economic loss

48 It is not in issue that the plaintiff suffered serious injuries as a result of his fall. There were fractures of both shoulders and to his femur. He was hospitalised and underwent major orthopaedic surgery on three occasions. Although he is able now to look after himself in a reasonable way, his capacity to move remains limited and he cannot do all things that he did previously. I take into account the fact that he had been severely injured well before this accident, and had had both his knees replaced. I also take into account his age. If it were not for those factors, I would assess him that considerably more than the figure I have reached which is 35% of a most severe case. In the circumstances his damages for non-economic loss will be $149.500.

Economic loss

49 In this case there is no claim for loss of future earning capacity. There is a claim for loss of past earnings. However, in my view, the plaintiff cannot maintain this claim. There is no proof of what he might have earnt if he had continued working, even on a casual basis, for this employer or any other. As he had previously been medically retired from work, and because he was 68 years old at the time, he would have only had a limited earning capacity. However, the authorities are clear that the plaintiff must establish his loss, on the balance of probabilities. In this case he has not done so. Accordingly there is no loss of past earnings or of superannuation.

50 The plaintiff is entitled to reimbursement of the medical expenses paid by the workers compensation insurer. These have been agreed mathematically at $133 616. 83. An amount is claimed in respect of payments for medication. It is clear that the plaintiff did not take all of this medication, as his wife provided it to the defendant and it was produced in court. The wife’s evidence is that the plaintiff ceased taking medication at some time after his operations. I will deduct $2000 for medication not taken. Past medical expenses to be reimbursed are $131 616.83.

Future out-of-pocket expenses

51 All the medical expert opinion is of the view that the plaintiff will require future medical attention and treatment. His evidence is that he sees his doctors regularly and that he also does exercises and sees a physiotherapist regularly. I am prepared to allow a lump sum to cover this type of attention, and I am prepared to make some allowance for future medication, though not to the extent claimed. The compensation is awarded as follows:

GP 6 times annually @ $56 ($6.46 per week); Multiplier 560: $3617.60

Orthopaedic specialist twice annually @ $68 ($2.62 per week); Multiplier 560: $1467.20

Physiotherapist 12 times annually @ $55 ($12.70 per week); Multiplier 560: $7112.00

Medication $5 weekly; Multiplier 560: $2800.00

Total $14 996.80

Domestic assistance

52 It appears, from the way in which this case was conducted, that a most contentious issue is the degree to which the plaintiff requires assistance in the ordinary aspects of living, and the extent to which he required such assistance in the past. He and his estranged wife agree that following his release from hospital immediately after his fall at the defendants’ site, and until the end of a period of about 4 months following his release from hospital after his second shoulder replacement operation in September 2005, the plaintiff required considerable assistance in such personal matters as showering, dressing, and even going to the toilet. He could not, at some times, cut up his food.

53 The matter is complicated by the acknowledged fact that Mrs Leite has been unwell for many years and still suffers from significant restrictions on her capacity to do physical work. It is not in dispute that up until the time of his injury in October 2004, the plaintiff did most of the housework, such as vacuuming, cleaning floors and bathrooms, laundry, and did a significant amount of the cooking and washing-up. He also worked extensively in the garden, growing fruit and vegetables, mowing the grass at the front of the house when necessary and cleaning his car and the car belonging to his stepdaughter.

54 After his accident, he was unable to do all these things, and the issue is for how long he was unable to do them.

55 Shortly after October 2005, the workers compensation insurer arranged for a cleaner to visit the house where the plaintiff and his wife lived on a regular basis and do most of the cleaning work. There was some dispute about why a particular male cleaner, named Andrew, left this work and was replaced by a female cleaner.

56 On the issues of domestic assistance, I accept the evidence of the plaintiff’s wife, and that of her daughter and her daughter’s fiancé, rather than that of the plaintiff.

57 The plaintiff left the former matrimonial home in May 2007, and has not lived there since. The cleaner continues – or at least, until the hearings in August, continued – to make regular visits to the former matrimonial home and clean it, at the expense of the workers compensation insurer. Mrs Leite did not notify the insurer of the plaintiff’s departure, she said because she considered it was her husband’s responsibility. He did not take any action because he had left the former matrimonial home.

58 The garden appears from the photographs to be reasonably well maintained. The plaintiff says that he has been unable to do much gardening work, but again, on this issue, I prefer the evidence of Mrs Leite rather then his evidence. I accept the evidence that he was able to do a good deal of gardening work, such as pulling up plants, picking grapes from an overhead trellis, and installing supports for a shade cloth which he put over the back garden at the beginning of this year, all without assistance from his wife or anyone else. He was also able to sweep up yard and garden rubbish, using a short handled dustpan and broom.

59 He admitted that, by January 2007, during a family outing to Nowra, he was able to walk steep gradients on rough surfaces for up to 30 minutes and bend over to pick clams from mud and shallow water, and to carry a bag of wet clams.

60 There was a dispute about when the kitchen and bathroom in the house had been painted. The plaintiff says this was before his accident, but all the other witnesses who gave evidence about the matter said that it was in June or July 2006. The plaintiff did the work using rollers and brushes, and ladders where necessary, but the work lasted for a longer period than might otherwise be expected. I find that the plaintiff did this work in June and July 2006, and that in fact, by about January or February 2006, he had made a good recovery both from the injuries received in the accident and from the shoulder replacement operations.

61 Since January 2006, if he requires or required paid domestic and personal assistance per week, it is for no more than 2 hours per week. I find that he does require some assistance only because both Dr Bodel and Dr Buckley, whose evidence was not challenged in any way, express an opinion to that effect.

62 However, I do find that from the date of his accident, or rather from the date of his discharge from hospital following the accident, until the end of January 2006, he was assisted by his wife, without payment, for two hours per day. He is entitled to compensation for the gratuitous domestic assistance, which she provided.

63 Compensation for domestic assistance is allowed on the following basis only:

Gratuitous assistance

12 November 2004 - 31 January 2006, 62 weeks, 2 hours per day at $20.90 per hour: $18 141.20.

Paid assistance

12 November 2004 - 31 January 2006, 62 weeks, 5 hours per week, @ $37.56 per hour: $11 643.60.

64 The total damages is $325 398.43. There will be a verdict for the plaintiff for 70% of this amount, which is $228 128.90.

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