Lucas v Tubrule Pty Ltd [No 1]

[2010] NSWDC 27

CITATION:	Lucas v Tubrule Pty Ltd [No 1] [2010] NSWDC 27
HEARING DATE(S):	27 April 2009-1 May 2009
JUDGMENT DATE:	5 March 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	The proceedings are adjourned to a date to be fixed to deal with: 1) Adjustments to be made to bring up to date the figures allowed for past and future income and superannuation losses. 2) Adjustments to be made to the Fox v Wood component. 3) The calculation of past out of pocket expenses in the light of the findings on causation. 4) Apportionment of the judgment sum between the defendants, having regard to the percentages of responsibility allocated in these reasons and the application of s 151Z of the Workers Compensation Act 1987. 5) Arguments in respect of costs and interest. 6) The making of final orders.
CATCHWORDS:	FALL FROM SCAFFOLDING - Cause of failure of scaffold - Failure of site safety procedures - Standards to be applied - Whether duty of care owed or breached by site manager - Responsibility of subcontractor erecting scaffold designed by another - Non-delegable liability of plaintiff's employers - Apportionment - Whether plaintiff's condition like result of accident - Assessment
LEGISLATION CITED:	Civil Liability Act 2002 Occupational Health & Safety Regulation 2001 Workers Compensation Act 1987
CASES CITED:	Fox v Wood (1981) 148 CLR 438 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35 Mambare Pty Ltd trading as Valley Homes v Rebecca Irene Bell in her capacity as Administratrix of the Estate of the Late Simon James Bell & Anor [2006] NSWCA 332 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
TEXTS CITED:	AS/NZS 1576.1:1995 AS/NZS 1576.3:1995 AS/NZS 1657:1992
PARTIES:	Emanuel Lucas (Plaintiff) Tubrule Pty Limited (First Defendant) Baulderstone Hornibrook Pty Limited (Second Defendant)
FILE NUMBER(S):	5635 of 2005
COUNSEL:	D Campbell SC and A Foel (For the Plaintiff) R Sheldon (For the First Defendant) J Guihot (For the Second Defendant)
SOLICITORS:	Keddies Litigation Lawyers (For the Plaintiff) Kennedys (For the First Defendant) Moray & Agnew Solicitors (For the Second Defendant)

JUDGMENT

1 Emmanuel Lucas fell from a scaffold on 14 January 2003 while working as a cement renderer on the building site for the Quadrant apartments in Broadway, Sydney. The site manager was the second defendant, Baulderstone Hornibrook Pty Limited. The first defendant, Tubrule Pty Limited, erected the scaffolding on which the plaintiff was working at the time of his fall.

2 The plaintiff claimed that he suffered injury when a plank of the scaffolding on which he was working rotated and dislodged leaving a gap through which he fell. He alleged that the defendants were negligent and in breach of statutory duties so that they created the danger that resulted in his injury.

3 Each of the defendants denied liability. Tubrule alleged contributory negligence on the part of the plaintiff. Both defendants raised the issue of the non-delegable duty of the plaintiff’s employer, J F Plastering Pty Limited, and relied on the provisions of s151Z of the Workers Compensation Act 1987. They challenged the plaintiff’s claims concerning the extent of his injury and ongoing disability.

4 Tubrule cross claimed against Baulderstone Hornibrook. A cross claim brought by Baulderstone Hornibrook against Tubrule was discontinued prior to the hearing.

5 The issues involved:

1 The circumstances of the accident.

2 The cause of the accident.

3 The means by which the accident might have been prevented.

4 The negligence, if any, of the defendants.

5 The apportionment of responsibility, if any, between Tubrule, Baulderstone Hornibrook and the plaintiff’s employer J F Plastering & Construction.

6 The contributory negligence, if any, of the plaintiff.

7 The nature and extent of the plaintiff’s injuries and the extent to which he was entitled to compensation.

The building site hierarchy

6 At the time of his accident the plaintiff was working in the trade of cement rendering on the Quadrant building site in Sydney. The project involved the construction of three substantial buildings referred to as Broadway, Mountain Street and Blackwattle. The plaintiff worked on the Blackwattle building.

7 The plaintiff was employed by J F Plastering & Construction. The principal of that business was Mr John Gamas Snr. His son, Mr John Gamas Jnr, was also involved in the work of J F Plastering. The plaintiff worked on the site for about six weeks prior to his accident. Mr Gamas Snr attended the site to supervise about twice a week. Mr Gamas, Jnr worked on the site about three days a week. The plaintiff was the senior of the tradespersons and the leading hand employed by the J F Plastering. He took his instructions from Mr Gamas Snr and Mr Gamas Jnr.

8 Baulderstone Hornibrook was responsible for management of the project and for the engagement, co-ordination and control of contractors to perform the construction work on the project. Baulderstone Hornibrook entered into a contract with Hillsley Hire, a trading name for Supaframe Australia Pty Ltd, for the provision of scaffolding necessary for the project. Hillsley Hire, with the approval of Baulderstone Hornibrook, subcontracted with Tubrule for the erection of the scaffolding and for its movement from time to time in accordance with the requirements of the tradespersons working on the site.

9 Baulderstone Hornibrook’s site manager was Mr Sugar. Mr Bongiorno was its foreman responsible for that part of the site on which the Blackwattle building was constructed. Mr Robson, another Baulderstone Hornibrook employee, was the union delegate, chairman of the site safety committee and first aid officer.

10 Mr William Sampson was the sales manager of Hillsley Hire. He was responsible for the sale to Baulderstone Hornibrook of a package for the design and erection of scaffolding for the Quadrant site and for the ongoing management of the scaffolding. The design work was carried out by reference to drawings provided by Baulderstone Hornibrook and a scope of works developed by Hillsley Hire.

11 Having secured a contract with Baulderstone Hornibrook, Hillsley Hire appointed Tubrule its labour subcontractor for the Quadrant site. The arrangement with Tubrule was not the subject of any written contract. Tubrule had been engaged on prior occasions and was regarded as experienced and specialised in the erection and maintenance of scaffolding systems.

12 Mr Matthews was a former director of Tubrule. Mr Knight was Tubrule’s foreman for the whole of the Quadrant site.

13 It was Tubrule’s practice to provide quotations for its part of the scaffolding work based on the scope of works provided by Hillsley Hire. The scope of works detailed matters such as the nature and quantity of the scaffolding equipment required, as well as the extent of the movements of scaffolding required during the course of the building work. The contract was priced accordingly.

ISSUE 1 – THE CIRCUMSTANCES OF THE ACCIDENT

14 The plaintiff and five other J F Plastering employees started work on the Quadrant development in early December 2002. On their first day on site they attended an induction course conducted by employees of Baulderstone Hornibrook.

15 The Blackwattle building was surrounded by scaffolding that was fixed to its walls. The scaffolding was supplemented by movable structures referred to as hop up platforms that provided working surfaces located between the platforms of the fixed scaffold. Tradespersons were more readily able to access sections of the buildings on which they worked from these hop up platforms.

16 At the time the plaintiff commenced work on the site there were many trades engaged in the work of completing the development.

17 The plaintiff said his trade of plastering and rendering was the second last in sequence to work on the walls of the building. He and his colleagues started rendering the walls at the ground level and worked their way up the building. When they worked above ground, they required the use of the scaffolding, including the hop up platforms.

18 On 14 January 2003, the plaintiff and his colleagues were engaged in rendering the walls of balconies on levels 3 and 4 or 4 and 5 of the building. The plaintiff said he noticed nothing different or unusual about the hop up on which he was working. He had lunch as usual between 10.30 and 11.30 am and returned to work. He continued to work until about 1.20 pm. He described what happened as follows:

Well, while I did the – put the cement on the wall and finished the face of the wall, I needed to sort of squat down really low, because the platform I was working on was almost flush with the bottom of the edge of the balcony, so I had to finish the angle. So when I was squat down, I put pressure on my back and right leg. The wall was there, I put pressure on my right leg. That’s when the plank flipped over and down I went. ⁱ

19 He worked on the platform for about 2 hours prior to his accident, working his way back and forth as he applied cement. He moved with him the 15 – 20 litre bucket of cement. At the time of his fall he was on the last stage of work, sponging the surface. He needed another 10 to 15 minutes to finish.

20 Immediately prior to his fall and for about 10 minutes, the plaintiff was kneeling with his left leg on the plank that was closest to the wall and the right leg on the plank furthest from the wall. This was the plank that he said lifted under his foot as he put pressure on it. He said it twisted and rolled back, coming off the tie bars on which it rested. The opposite end fell through the gap that was then created and he fell down with it. The twisting motion was in a clockwise direction.

21 At the time of the plaintiff’s fall he had tools in each of his hands. On the hop up with him were a bucket of water and a half full or close to empty bucket of cement. He estimated that these materials weighed about 10 kgs. It was not suggested that the hop up platform was overloaded.

22 The plaintiff said he fell about 4 to 4½ metres. In the course of his fall he struck the edge of the bay below, fell onto another hop up and finally onto another scaffolding bay.

23 He noticed that there was no bar in the scaffold behind the plank that twisted. He understood this bar to be known as a ledger bar. He marked on a photographⁱⁱ the position where he thought the ledger bar should have been installed.

24 Mr Mark Rizzo was also employed by J F Plastering as a cement renderer on the Quadrant site. He witnessed the plaintiff’s fall. He said he heard a noise and saw him falling. The plaintiff fell about four metres to the level where Mr Rizzo was working.

25 He also saw a scaffolding plank after it came to rest. The plank struck and damaged a balcony wall as it fell. He described the plank as bent or buckled after the accident although he agreed he did not inspect the plank closely.

26 The plaintiff was questioned about an apparent inconsistency in the documents completed on his behalf after his fall.

27 He was questioned about a workers compensation claim form that he signed after providing information to Mr Gamas, Snr. The documentⁱⁱⁱ was dated 21 January 2003 and it described the injury as having occurred when he Slipped on hop-up board and fell. The plaintiff denied that this was an accurate description of his accident or that this was what he told Mr Gamas. He said he assumed that Mr Gamas recorded the correct information on the form because he did not know how to fill out the form. The remainder of the information on the form was correct.

28 In response the plaintiff tendered a statement^iv dated 6 February 2003 that recorded the following:

I was just about finishing off the wall, working off a scaffold/hop-up, and I bent down to finish a bottom edge of a wall, and the second plank on the hop-up flipped over and I fell down, hitting the edge of the scaffold bay below, then falling to a hop-up below, then falling down to a below bay.

29 He also relied on the information recorded in the document titled: Update Safety Injury^v completed after the plaintiff attended the first aid post on the building site after his fall.

Issue 1 - Findings

30 Aside from the document completed by the plaintiff’s employer, the plaintiff’s reporting of the circumstances of his accident has been consistent with his evidence to the court.

31 Mr Rizzo, the eye witness, was not challenged as to the accuracy of his observations of the accident.

32 I therefore had no reason to reject the plaintiff’s evidence that the accident occurred in the way he described.

33 I find that the plaintiff fell through the gap in the scaffolding created when, having applied pressure to the outermost of the two planks on the hop up platform, that plank moved, rotated and lifted off the tie bars on which it rested.

ISSUE 2 – THE CAUSE OF THE ACCIDENT

34 The rotation of the plank in the manner described by the plaintiff was a circumstance that all of the witnesses, expert and non-expert, agreed was unusual. The absence of any adequate contemporaneous investigation put the court at a disadvantage in determining the cause of the accident.

35 In the opinion of Mr Crawford, the expert relied upon by Tubrule, the most likely cause of the accident was that the metal plank was not fully seated on the tie bars that provided the supporting surface of the hop up platform. He stated that this mis-placement of the plank could have occurred at the time the scaffold was originally erected or subsequently as a result of deliberate or inadvertent movement of the plank by tradespersons working on the scaffolding.

36 The plaintiff put forward a number of potential explanations for the movement of the plank.

Interference with the Scaffold

37 The evidence established that there were two ways in which the plank on the hop up could have been dislodged. One was through deliberate interference by persons working on the site. The second was through inadvertence when site workers climbed onto the hop up.

38 The defendants acknowledged that not all tradespersons complied with the direction that under no circumstances were they to interfere with the scaffolding.

39 The plaintiff denied that he ever interfered with any part of the scaffolding. He said clear instructions against such conduct were given at the induction meeting on his first day on the site. He also acknowledged that from general experience he was aware that he should not interfere with scaffolding and that if he had a problem with scaffolding it should be reported.

40 The plaintiff denied that a member of the site safety committee warned him prior to 14 January 2003 against moving the planks on hop ups.

41 The plaintiff denied that it was necessary to remove a plank on the hop-up in order to pass materials up to him or that it was easier to have materials passed to him in this fashion. The cement render that he used was prepared on the ground floor and brought to the various levels of the building in a wheelbarrow by labourers who then placed it into buckets that they passed over the balcony to the renderers. The plaintiff said the top of the balcony wall was at the height of his chest.

42 Mr Rizzo also stated that he was well aware that he was not to interfere with the scaffolding.

43 Further, aside from Mr Rizzo’s evidence that the planks were loose, both he and the plaintiff stated that they noticed nothing unusual concerning the planks on the hop up platform on that day.

44 Mr Sugar agreed that if he had the slightest understanding that the plaintiff in some way interfered with the scaffolding he would have spoken to him personally about it. He did not ever do so. He subsequently stated that he would not have spoken directly to the plaintiff but would have taken the matter up with the subcontractor concerned. There was no evidence to indicate that he spoke with J F Plastering about any interference by the plaintiff or other employees of that company with the scaffolding.

Debris

45 On the Quadrant site the cement renderers commenced work at ground level and worked their way up the building. This was regarded by Mr Knight as unusual because, in his experience, renderers worked from the top of the building down to the ground. The plaintiff also said it was rare for the renderers to start at ground level and that on most other sites on which he worked the bricklayers finished before the renderers started.

46 This arrangement allowed the work of rendering the building to commence before the bricklayers completed their work of constructing its walls. The expert qualified for the plaintiff, Mr Donohue, considered this an acceptable practice and it was apparent that it allowed the period for construction of the building to be accelerated.

47 Mr Rizzo said that other trades did not normally work directly with or above the renderers but there were persons working on parts of the building so that debris in the nature of pieces of rock, brick or cement fell on to them. Debris also fell when persons walked on the scaffolding above the hop ups, moving the planks from side to side. He said that no measures were taken to prevent this from occurring.

48 The plaintiff said that when he started using the hop up platforms he noticed an accumulation of dried concrete and pieces of brick on them. Every morning on attending at the site he noticed debris on the platforms. It caused the renderers to twist their ankles or slip so the platforms were cleaned before work started by sweeping off the surface. The plaintiff said he cleaned the whole length of the planks with his trowel, removing pieces of brick and other debris, a task that he undertook before starting work on the day of his injury. At the end of each day labourers employed by J F Plastering cleaned away any cement render left on the scaffold platforms.

49 He complained about the debris to Mr Gamas Jnr on his first day on the site and to one of Baulderstone Hornibrook’s foremen and after some discussion the bricklayers were instructed to place plywood between the wall and the scaffold to provide protection to those working below. The plaintiff said this step resulted in some improvement provided the plywood was used but most of the time the bricklayers had to be reminded to use them and debris continued to be dropped onto the hop up platforms.

50 The plaintiff agreed that he made no complaint directly to Tubrule about the problem of falling debris but said he complained about falling debris at a tool box meeting that took place about two or three weeks after he started on the site. He attended two such meetings in place of Mr Gamas Snr, both after mid-December 2002. He saw no minutes from these meetings. Representatives of all trades, including Tubrule and a Baulderstone Hornibrook foreman attended these meetings.

51 He did not remember if any tool box meetings were held in January 2003 prior to the accident. He did not remember if he made any complaints at meetings in January 2003.

52 The plaintiff said that he last observed debris falling about two days prior to 14 January 2003.

53 Mr Rizzo agreed that on the day of the plaintiff’s accident, no bricklayers or other trades were working in the scaffolding bays in which the plasterers were working. He agreed that there were no bricklayers working on the section of the building on which they worked on 14 January 2003. The plaintiff was unsure if any other trade was working above them on that date.

54 Mr Rizzo worked on a different level to that on which the plaintiff was working on 14 January 2003. He accepted that the planks on his level did not appear to be uneven when he cleaned them but said that he did not check the planks thoroughly before he started work. He said he just cleaned bits of debris from it with his trowel.

55 As to the consequences of allowing trades such as bricklayers to work above the cement renders, Mr Donohue suggested that water bearing concrete was allowed to flow down the building and on to scaffolding, some of which came to rest on the tie bars beneath the ends of the planks of the hop up, dried out, hardened and created a second surface on which the plank rested. The result was a separation of the plank from the fixed bracket provided by the tie bar, creating the highly likely^vi risk that the plank would twist and lift.

56 Mr Matthews had extensive practical experience in scaffolding. He considered it unlikely that debris lodged beneath the boards would compromise their stability. He agreed that Tubrule took no step to implement a regime of cleaning the hop ups. He rejected the suggestion that an accumulation of debris under the boards could compromise their stability such that a cleaning regime should have been in place.

57 He agreed that there was always a danger that accumulated debris could be dislodged so that it fell onto persons working below, or caused a slip or trip hazard but continued to reject the proposition that it could destabilise the boards themselves.

Equipment inadequacies

58 The plaintiff pointed to a number of features of the scaffolding that he argued caused or contributed to the movement of the hop up plank.

59 A buckled plank: After receiving first aid the plaintiff returned to the hop up platform. He told the persons there that the plank flipped over and he fell. There were three scaffolders there. They replaced the plank and said: No wonder why he fell, the plank was buckled^vii. He did not see them replace the fallen plank

60 The plaintiff agreed that he had never seen a buckled plank near the hop up before his accident. He did not notice whether the plank was buckled before his accident.

61 Mr Knight denied that the plank involved was buckled in any way.

62 Ledger bars: By reference to photographs^viii and a DVD recording^ix, the plaintiff described the scaffold and the hop up platforms. He particularly noted the absence of a ledger bar in the position shown on the photographs. This was a bar that was positioned behind the outer of the two planks forming the platform.

63 The plaintiff said that on his return to the site in late February 2003 he noticed that there were ledger bars in this position on the hop ups.

64 He rejected the proposition that none of the hop ups at the Quadrant site had ledger bars. He said he saw them. He disagreed that ledger bars were not used on most building sites. He denied that he only learned about ledger bars from the re-enactment portrayed on the DVD, stating that he learned of it after the accident from a cousin who formerly worked as a scaffolder. He said he first became aware that there was no ledger bar at the time of his fall because of the gap that existed when the plank fell. Further, when the plank flipped and fell. he had nothing to hold on to that would have prevented his fall.

65 He agreed that the planks on the hop up extended about 1½ centimetres beyond the vertical members of the scaffold with the result that the planks could not move outwards beyond those vertical members. He did not know if the purpose of ledger bars was to prevent the planks from moving.

66 The plaintiff agreed that he made no complaint to either of the defendants about the absence of a ledger bar on the hop up. He did not recall if he noticed that the bar was missing when he cleaned the planks before he started work. He said he assumed that the scaffold was correctly installed and safe to work on.

67 Mr Matthews said that in his experience a ledger bar was rarely placed at the back of a hop up. In normal circumstances it was neither practical nor necessary to provide a ledger bar and doing so would increase the price of the job. Mr Sampson stated that it was not usual to provide ledger bars at the back of the hop up, this not being a WorkCover requirement.

68 Mr Donohue considered that the installation of a ledger bar behind the rear plank would minimise the opportunity for lateral movement so that the plank would be unable to rotate and lift.

69 He also proposed that the introduction of the ledger bars would provide an additional safeguard by allowing a person whose support had been removed by a falling plank to hold onto to it and avoid a fall.

70 Mr Donohue accepted that he did not expect the party responsible for erection of the scaffold to depart from the design prepared by a scaffolding engineer. He expected a party certified to erect scaffolding to identify missing components, in this case the absence of provision for a ledger bar. He accepted that it was common not to place a ledger bar in the position of the hop up platform from which the plaintiff was working at the time of his fall. He accepted that there was no Australian standard that specifically required the provision of a ledger bar as he proposed.

71 Questions were asked of Mr Donohue and Mr Sampson concerning the increased cost that the installation of ledger bars could impose on contractors when this was not an industry practice or required by any Standard. No evidence was provided that established that the increased cost involved in providing ledger bars would be prohibitive.

72 Loose Planks: Mr Rizzo said he noticed on the day of the plaintiff’s fall that the hop up planks were loose and that they moved laterally. He thought nothing of it because in his experience the hop up planks were commonly looser than the four planks on the main part of the scaffold. He said he had not taken note of this feature before this day because there had been no previous injury and it was not his function to go around checking scaffolds. He agreed that he made no complaint to any person on the Quadrant site about the condition of the hop up platforms.

73 Mr Rizzo said that after the plaintiff’s fall another worker on the site told them that the planks in the hop up were loose all the way along. He was told that this was how they were meant to be.

74 Mr Knight denied any memory of workers stating that the planks in the hop up were loose and that they moved laterally. He agreed that, installed and maintained properly, it was not possible for the planks to move sideways.

75 Mr Donohue said that noticeable movement in the planks indicated there was some form of defect that he was unable to explain although movement suggested that some of the standards were insufficiently rigid.

76 Other inadequacies: Mr Donohue considered that there were number of other shortcomings in the design of the scaffolding.

77 Mr Donohue also noted information that suggested that a tie bar might have been missing or dislodged. There was no evidence to support this contention.

78 He referred to a directive^x issued by Hillsley Hire concerning the size of spigots to be used in the erection of the scaffolding but there was no evidence that this directive was not complied with or that the size of the spigots was in any way connected to the lifting of the plank that resulted in the plaintiff’s accident.

Site Management and Safety

79 There were a number of aspects of the evidence that suggested that management of the safety aspects of the Quadrant site was seriously inadequate.

80 Much attention was directed during the hearing at the inadequacy of the steps taken to investigate the circumstances of the accident. This evidence confirmed my impression that safety management was far from a priority on the Quadrant site but it was of little assistance in determining why the plank shifted and fell.

Safety Management

81 Essential to the defendants’ credibility was their claim that weekly inspections of the Quadrant building site were undertaken by the site safety committee. The committee comprised Mr Robson, the chairman, Mr Sugar, representing Baulderstone Hornibrook, and representatives of the trades working on the site. Mr Sugar said that Mr Knight was Tubrule’s representative on the committee, although it appeared that this role was at times delegated to Mr McSharry of Tubrule.

82 Mr Sugar said the committee conducted site safety walks weekly, that minutes of matters discussed at meetings were always recorded, typed up and distributed to persons working on the site. The minutes numbered the meetings sequentially.

83 Mr Robson also claimed that the safety inspections took place weekly. He said the Quadrant site was large and the inspections took most of one day. Mr Knight gave evidence of weekly safety inspections and said that he undertook with Mr Sugar a separate monthly inspection of the scaffolding. Mr Sugar said nothing of this additional inspection.

84 Minutes of the safety committee meetings indicated that, contrary to this evidence, safety committee meetings and inspections were held with far less frequency than weekly both before and after the plaintiff’s accident. The minutes^xi shown to Mr Sugar indicated that meetings took place as follows:

Inspection No 7 8 November 2002

Inspection No 8 21 November 2002

Inspection No 9 16 January 2003

Inspection No 10 6 February 2003

Inspection No 11 6 March 2003

85 Mr Sugar initially attempted to explain the absence of record of inspections between November 2002 and January 2003 on the basis that he was on leave during that period. However, he acknowledged that he was present on site during the week commencing 8 January 2003 and he could not explain the longer than one week periods between inspections after his return.

86 The minutes of the site safety committee inspection No 9, dated 16 January 2003 made reference to a walk this week, indicating that there was a walk in the week preceding 16 January, or in the week of 8 January 2003. However, the notes relating to meeting No. 8 were dated 21 November 2002. Mr Sugar agreed that he was on site in the week commencing 8 January 2003 and that it appeared that there was no safety walk during that week or, if there was, it was not minuted.

87 As to what occurred on these inspections, Mr Sugar said the representative of Tubrule was certainly^xii present on these walks. The project required a significant amount of scaffolding and, because of its impact on the work, attention was directed at making sure that the scaffold was in safe working condition and of a good standard. The safety walk involved walking on the scaffolding erected around the perimeter of each level of the building.

88 Mr Sugar said he had no qualifications in scaffolding and he therefore relied on the expertise of the Tubrule representatives for feedback in the course of these inspections.

89 Mr Sugar said the purpose of inspection on the safety walk was to ensure that the componentry was complete and the system built in accordance with the specifications. He would not necessarily have a copy of the plan of the scaffold at the time of inspection and it was therefore unclear how he confirmed that the scaffolding complied with the specifications.

90 Mr Robson also said he had no scaffolding qualifications but as the walk progressed he pointed out to the scaffolder anything that appeared to be out of order.

Movement of Scaffolds and Handover certificates

91 It was Baulderstone Hornibrook’s position that Mr Bongiorno was responsible for ensuring that changes in the scaffolding were completed when required. A regime was set up under which subcontractors informed Mr Bongiorno ahead of time of their scheduling requirements. He then informed Tubrule and, when the scaffold was moved, a handover certificate was provided. Mr Bongiorno accompanied Mr Knight on the inspection that lead to the issue of the handover certificate. Mr Bongiorno did not give evidence on this aspect. His statement^xiii was admitted for a very limited purpose and in any event did not deal with the procedure for movement and handover of scaffolding.

92 The plaintiff and Mr Knight had a different recollection of the procedure for the movement of scaffolding. The plaintiff, with whom Mr Knight agreed, said his practice was to inform Tubrule’s foreman, Mr Knight, of his requirements for movement of hop ups and to go with Mr Knight to the part of the site to which the hop up was to be moved.

93 Mr Sugar’s means of knowing if the scaffold complied with the design was to rely on the handover certificate provided by Mr Knight that stated that the scaffold was built in accordance with any design or Australian standard. He also exercised independent judgement to determine whether the scaffold continued to comply.

94 The hop ups were moved as a single group on each level. Each time the hop ups were moved a handover certificate was completed in a booklet containing three copies of the document. One was provided to Baulderstone Hornibrook, another to Tubrule and the third remained in the booklet. Mr Knight said that, when he was satisfied that the hop up move was completed, he took the certificate to Mr Sugar for signature.

95 The plaintiff denied that the hop up platform from which he fell was moved six weeks before the accident to the position where he worked on 14 January 2003. He was certain that he asked for the hop up to be moved a few days prior to the accident. Mr Knight was equally sure that the hop up platform on which the plaintiff was injured was moved up to 10 weeks prior to his injury.

96 A number of copies of handover certificates were shown to Mr Knight^xiv but a certificate that would have established when the movement of the hop up to the point where the plaintiff fell was not amongst them.

Inspection of Scaffolding

97 Mr Knight agreed that he was aware that Tubrule was obliged to inspect the scaffolding to check that was in a safe working condition at the time of initial erection and that in remained safe once erected. He said it was his practice to walk the scaffolding monthly to inspect it.

98 He did not recall when the hop up from which the plaintiff fell was last inspected and could state only that it was sometime prior to the Christmas holiday break that commenced on 22 December 2002 and at the time it was moved from the bricklayer’s use to that of the renderers. He agreed that this could have been up to 10 weeks prior to the plaintiff’s accident.

99 Mr Matthews accepted that the dislodging of a plank suggested that it was loose and that it was not correctly installed, that it had loosened over time or that it had been interfered with by other trades. For this reason it was advisable to inspect the scaffolding regularly. He agreed that it was not uncommon for components to loosen or for them to be interfered with.

100 He also accepted that a plank that could lift through rotation or by going straight up was potentially extremely dangerous to someone working at height. He accepted that for this reason it was necessary that there be a vigilant system of inspection to detect circumstances that might lead to uplift.

101 While stating that components could be altered within five minutes after an inspection, Mr Matthews conceded that he had no personal knowledge of any inspection by Tubrule employees of the scaffolding for defects during December 2002 or January 2003.

102 Mr Matthews appeared not to have a clear recollection of the provisions of the OHS&R Management Plan under which Tubrule operated on the site. He had no personal knowledge of the nature or frequency of safety committee meetings and he was not supplied with full copies of the minutes of those meetings. He recalled sighting only those parts that required action on behalf of Tubrule.

103 He understood that defects in the scaffolding were dealt with through the handover procedure and weekly inspections by the safety committee. Through this system Tubrule was given notice of matters to be resolved. Other matters might come up outside these regular inspections that the leading hands were responsible for resolving. Asked to comment on the written materials that indicated that site safety inspections were held irregularly and at intervals longer than weekly, he said he was lead to believe that they were held weekly.

104 Mr Sampson’s expectation was that his company’s subcontractors would work safely. He confirmed that it was important that they check work stations, work platforms and hop ups regularly to ensure they were safe and to rectify defects.

105 The plaintiff denied having seen persons observing the scaffolding. He saw personnel of Tubrule working on the scaffold at times. He saw no one inspecting the scaffold.

Standards

106 There was a major dispute between the experts concerning the Australian Standards that applied to scaffolding. It was agreed that AS/NZS 1576.1:1995 and AS/NZS 1576.3:1995 governing Scaffolding applied. Mr Crawford accepted that the Standards to which these documents made reference also applied.

107 Mr Donohue also applied AS/NZS 1657:1992 governing Fixed platforms, walkways, stairways and ladders – Design, construction and installation.

108 The essence of the dispute concerned the meaning of the term scaffold. Mr Donohue contended that it referred only to the supporting structure on which the working platforms were placed while Mr Crawford considered that it extended to the whole of the structure, including the working platforms.

109 AS/NZS 1576.1:1995 contained the following definitions:

Scaffold – a temporary structure, specifically erected to support access platforms or working platforms.

Platform – an elevated surface.

Working platform – a platform on a scaffold, to support persons and materials or equipment for use by them.

110 Mr Crawford argued that a working platform for the purpose of AS/NZS 1576 was a temporary platform as distinguished from the fixed and more permanent platforms covered by AS/NZS 1657. I was not provided with the definitions contained in this Standard but I noted that clause 1.1 dealing with its scope provided:

This Standard sets out requirements for the design, construction, and installation of fixed platforms, walkways, stairways, and ladders which are intended to provide means of safe access to and safe working at places normally used by operating, inspection, maintenance and servicing personnel.

111 I accepted Mr Crawford’s approach for the following reasons:

1 Clause 1.1 of AS/NZS 1657 is suggestive of facilities provided for personnel of a more permanent or regular nature than those required for construction purposes.

2 While titled Scaffolding the provisions of AS/NZS 1576 are not limited only to the supporting structure provided for various platforms. Its provisions detail requirements for those platforms.

3 AS/NZS 1657 is not referred to in the Occupational Health and Safety Regulation 2001 but specific reference is made to AS/NZS 1576.1:1995 and AS/NZS 1576.3:1995.

4 Evidence indicated that WorkCover did not require compliance with the requirements of AS/NZS 1657.

5 Evidence indicated that it was not general practice to take account of the requirements of AS/NZS 1657 in the design and erection of scaffolding for construction purposes.

112 I was not satisfied that hop up on which the plaintiff was working at the time of his accident complied with the requirements of AS/NZS 1576.1, in particular with the following:

3.1.1 General A working platform other than a Boatswain’s chair shall -

…

(b) be closely decked;

(c) not be capable of uplift under working conditions;

113 The only definition of the term uplift to which I was referred was located in an associated standard, AS 1577 – 1993 Scaffold Planks, as follows:

1.5.10 Uplift – the lifting of one end of a plank when a downward force is applied to the other end of the plank.

114 Mr Crawford resisted the proposition that the plank in question uplifted. His resistance appeared to be based on the fact that this plank rotated and lifted in a manner that he considered was not covered by the definition. He interpreted the definition on the basis that it was intended to deal with two situations of uplift:

1 That which occurred when the weight of a person stepping on one end of the plank was greater than the weight of the plank, causing it to uplift. He considered that this risk was dealt with in the design of scaffolding by providing for only a very short section of the plank to extend beyond the tie bars on which it rested. Thus, he said, under normal working conditions, if seated properly, the working section of a plank was of sufficient weight as to be incapable of uplift.

2 That which occurred where scaffolding platforms were erected in central business districts around high rise buildings where they were subjected to high wind uplift.

115 Mr Crawford disagreed with the proposition that the lifting of the plank that caused the plaintiff to fall indicated that the platform on which he was working was in a condition that allowed the plank to rotate and lift and thereby compromised the stability of the platform. It ultimately transpired that his difficulty in dealing with this proposition was that, in his view, a scaffolding plank, if properly installed, was not capable of uplift.

116 This was the basis for his opinion that the cause of the accident was incorrect installation or interference with the planking following installation.

117 Mr Sampson claimed not to understand the requirement of the Standard that the working platform should be incapable of uplift under working conditions. He agreed that under normal working conditions the boards of the scaffold should not twist, lift or fall out. He remained sceptical that this was how the accident occurred.

118 Mr Donohue did not share Mr Crawford’s view that the term uplift should be limited in the manner he proposed. He reported:

The foot resting at or near the edge of one long side of the length of a plank can readily twist the opposite long side of the same plank. This will cause it to lift upwards. This is rather obvious. It is a form of uplift. ^xv

119 I agreed with Mr Donohue. The plank that shifted and caused the plaintiff’s fall did lift and was therefore clearly capable of uplift.

120 The second area of alleged non-compliance related to the configuration of the planks themselves.

121 Mr Rizzo’s evidence, not challenged, was that the planks were loose and this suggested that they were not closely decked. To that extent there was a breach of Clause 3.1.1(b).

122 There was a further failure to comply with the minimum width requirement of the Standard. The hop up comprised a platform containing two planks so that its width was 450 mm. In respect of minimum widths, AS/NZS 1576.1 relevantly defined platforms as follows:

1.3.1 Access platform – a platform that is only used or intended to be used to provide access for persons, or for persons and materials to or from places of work.

123 Clause 3.2 dealt with the operational requirements for an access platform. In respect of widths it provided:

The clear width of an access platform measured between guardrailings shall be -

(a) not less than 675 mm for persons and materials; and

(b) not less than 450 mm for persons and hand tools only.

124 Mr Donohue relied on this provision to argue that the hop up platform should have provided for three planks. He suggested that the narrow width of the platform on which the plaintiff was working at the time of his accident increased the risk of constraint on his gait and body posture and limited the area for placement of his feet. An errant foot movement on a narrow platform, he said, could increase the likelihood that a twisting movement would occur and increase the risk that the plank would fall.

125 Mr Crawford took no issue with the suggestion that three planks were required. He stated^xvi that, if the plaintiff had materials on the hop up, the resulting contravention of the Standard was the responsibility of Baulderstone Hornibrook and not Tubrule.

Issue 2 - Findings

126 I have already noted that, in the absence of adequate investigation of the accident, it was not possible to identify with precision the reason why the plank lifted and fell.

127 I accepted Mr Crawford’s opinion that the only explanation for the plank’s falling as described was that it was not properly seated on the tie bar designed to support it.

128 I thus find that plank lifted and fell because it was not properly seated on the tie bar.

129 It was the reason why the plank was not properly positioned that could not be identified. I find that the following were potential reasons:

1 Defective installation of the plank at the time of erection of the hop up either because the plank was placed in a position where it was not properly seated or because the planks were loose.

2 Deliberate interference with the plank by unauthorised persons.

3 Inadvertent interference with the plank by tradespersons.

3 The absence of a regime for cleaning debris known to be falling and accumulating on the plank or its supporting structures to the point where the plank was not properly seated.

4 Failure to comply with established procedures for safety and other regular inspection of the scaffolding and for handover of the scaffolding to confirm that the scaffolding was properly erected and that it remained in proper order thereafter.

5 Failure to comply with the requirements of AS/NZS 1576.1:1995.

130 In respect of safety inspections and handover procedures my findings are:

1 It was not disputed by the defendants or the experts that it was necessary in the interests of safety to implement systems to control the movement of scaffolding and to inspect scaffolding at regular intervals.

2 The records of safety committee meetings established that the evidence of Mr Sugar, Mr Robson and Mr Knight that safety committee meetings were held weekly was false.

3 Having regard to this false evidence, I did not accept Mr Sugar, Mr Robson and Mr Knight as credible witnesses.

4 In the absence of supporting evidence, I was unable to place any reliance on Mr Knight’s evidence that he inspected the scaffolding monthly or that he implemented any system of inspection. In any event, he conceded that he last inspected the hop up in question prior to Christmas 2002, possibly as much as 10 weeks prior to the plaintiff’s accident. I accepted the plaintiff’s evidence that he observed no inspections of the scaffolding in his six weeks on the site.

5 Baulderstone Hornibrook’s procedure for movements of or changes to scaffolding was not implemented.

6 The procedure requiring Mr Bongiorno to be notified of hop up movements was ignored. I accepted the plaintiff’s evidence that he was instructed to arrange movements of hop up platforms with Mr Knight. This made it possible for movements to take place without the knowledge of Baulderstone Hornibrook and explained the absence of a handover certificate.

7 Handover certificates were not provided each time the hop ups were moved. There was no certificate that established that the handover procedure was implemented in respect of the movement of the hop up to the point where the plaintiff was injured.

8 In the light of my finding that Mr Knight was not a witness of credit, I preferred the plaintiff’s evidence that the hop up was moved a few days prior to the accident. Mr Knight’s concession that he had not inspected the hop up for up to 10 weeks prior to the accident allowed me to conclude that the hop up was not inspected through the handover procedure before the plaintiff was permitted to work on it.

131 In respect of compliance with Standards my findings are:

1 The Standards governing the scaffold on which the plaintiff was working at the time of the accident were AS/NZS 1576.1:1995 and AS/NZS 1576.3:1995

2 AS/NZS 1576.1:1995 was not complied with in the following respects:

Clause 3.1(b): the evidence of loose planks indicated that the platform was not closely decked.

Clause 3.1(c): the plank uplifted and therefore was clearly capable of uplift.

Clause 3.2: a platform comprising two rather than three planks was of inadequate width.

ISSUE 3 - PREVENTION

132 In order to apply the general principles set out in s 5B of the Civil Liability Act 2002, it is necessary to consider the precautions that might reasonably have been taken to guard against the risk of harm suffered by the plaintiff and then to consider whether it would have been reasonable for either or both of the defendants to take any or all of those precautions.

133 The material before the court identified a number of areas where preventative action was available to the parties.

134 Ledger Bars: If placed in the position suggested by Mr Donohue ledger bars might have protected the plaintiff in two ways. They would have minimised the potential for lateral movement of the planks and they would have provided a part of the scaffolding structure that the plaintiff could take hold of to prevent his fall.

135 Inspection, Site Safety and Management: Weekly site safety committee inspections, the provision of handover certificates, the inspection of scaffolding before persons were permitted to work on them, intermediate inspection to check that the scaffolding remained in good order were all measures that the defendants claimed were put in place. The obvious purpose of these sensible precautionary measures was to identify and remedy occupational health and safety risks. The evidence indicated that they were either not implemented at all or if they were, not in the manner or with the frequency intended.

136 Implementation of an appropriate system of inspection would have addressed known risks, such as:

1 The propensity for various trades to interfere with scaffolding in an unauthorised manner was recognised by both defendants and their witnesses. Mr Crawford, accepting that interference with scaffolds by subcontractors and tradespersons was known to occur, stated that the remedy to this problem was to take steps to inspect it to check that it remained in good condition before persons were permitted to work on it.

2 Detection of the presence of the loose planks noted by Mr Rizzo.

3 Detection of debris on the planks and tie bars that could cause the planks to lift out of position.

4 Enforcement of the requirement that bricklayers place covers over hop ups in order to minimise the risk resulting from accumulations of debris.

137 Guarding against the accumulation of debris: Mr Donohue suggested three ways in which to guard against this risk:

1 Regular cleaning of the underside of the planks and tie bars on which they are rested.

2 Covering the hop up to prevent the build up of debris.

3 Appropriate scheduling of the work of trades.

138 Fixing the planks: Mr Donohue suggested that the plaintiff’s fall might have been prevented if the planks on the hop up were fixed by the use of tie wires or G-clamps so that they were unable to move. The defendants’ response to this suggestion appeared to arise out of their attitude to the matter of uplift. They took the view that providing planks that extended beyond the standards was sufficient to prevent lateral movement and that this measure coupled with the force of gravity was sufficient to render the planks incapable of uplift. This explained Mr Matthews’ statement that he had never seen the planks on a hop up tied down or G-clamped together. Although some questions were put to Mr Donohue about the practicability of the use of tie wires and the potential that they might create a trip hazard, there was no other evidence to suggest that this preventative measure would be unduly burdensome. It was not suggested that the use of tie wires or G-clamps would involve prohibitively increased costs.

139 Fixing the planks would also deal with the other identified potential causes of the movement of scaffolding planks, namely, interference by other trades, accumulated debris, missing ledger bars, loose planks and the failure to comply with obligations of inspection.

140 Implementation of the Project OHS&R Management Plan^xvii: Mr Donohue pointed out that clause 7.4.1 of the Project OHS&R Management Plan for the site provided for the identification of hazards such as the loose planks reported by Mr Rizzo. He said that the movement in the planks should have been detected and remedied if the requirements of this clause had been implemented. There was no evidence that any Job Safety Analysis required by this clause was undertaken by Baulderstone Hornibrook, Tubrule or J F Plastering in respect of the work that was being performed by the plaintiff at the time of his accident.

141 Compliance with Standards: Compliance with the Standard with respect to both platform width and uplift was a matter of providing an additional plank and fixing the planks in the manner already described, that is, the use of tie wires or G-clamps.

Issue 3 - Findings

142 I was satisfied that the defendants acting reasonably would have taken the precautions identified with the exception of the installation of ledger bars.

143 The evidence in relation to ledger bars indicated that, although they might well have assisted in preventing the plaintiff’s accident, their installation was not required by any applicable standard or regulation and they were not, as a matter of practice, installed in the position proposed by Mr Donohue. In those circumstances I was not persuaded that the defendants acted unreasonably in not providing or requiring the provision of ledger bars as proposed.

144 It was also claimed that fixing of the planks was not a measure that was implemented as a matter of practice. This measure, however, was required to comply with AS/NZS 1576.1:1995 and thus with the Occupational Health & Safety Regulation 2001. There was no evidence to suggest that compliance with these requirements would have been unduly burdensome when considered in conjunction with Mr Crawford’s statement that the unfixed plank in question could, with relative ease, be moved out of its position on the tie bar.

145 Aside from references, without quantification, to the additional cost involved in providing ledger bars, the defendants did not argue that it would have been unreasonable to require them to implement these precautionary measures.

146 I find that precautionary measures were available to the defendants that, if implemented, would have protected the plaintiff against the foreseeable risk of harm resulting from the lifting of the plank on the hop up platform from which he fell.

147 I find that a person in the position of the defendants, acting reasonably, would have taken the precautions identified.

ISSUE 4 – NEGLIGENCE AND APPORTIONMENT

Baulderstone Hornibrook

148 Baulderstone Hornibrook resisted a finding of negligence against it on the following bases:

1 There was no relevant document to establish that the hop up was not erected in compliance with the applicable Standard; that it was altered after it was erected and that there was no handover certificate. Thus, it was argued that there was no evidence that the hop up plank was not properly seated at the time of the plaintiff’s fall.

2 It was not pleaded that no handover certificate was provided following the movement of the hop up in question.

3 Baulderstone Hornibrook engaged a competent subcontractor in Hillsley Hire and approved a competent subcontractor in Tubrule.

4 Baulderstone Hornibrook was not required to undertake supervision of the work of the cement renderers, having engaged a competent contractor, J F Plastering, to carry out this work.

149 Baulderstone Hornibrook argued therefore that both in legal principle and on the facts it owed no duty of care to the plaintiff or it had breached no duty of care.

150 There was clearly a significant amount of documentation that was not made available to the court. Mr Sugar, when asked about missing documentation, stated that the records relating to the Quadrant building site were archived when the project was completed. No explanation was provided, either by Baulderstone Hornibrook or Tubrule, for the non-production of documents that were highly relevant in response to subpoenae issued by the plaintiff. Mr Crawford in his reports remarked on a number of occasions that Hillsley Hire’s design plans and specifications were not available, a circumstance that he regarded as unusual, particularly in the light of the plaintiff’s accident. Handover certificates, according to Mr Knight were completed in triplicate in a book of certificates. One was provided to Baulderstone Hornibrook, one to Tubrule, and the other remained in the book.

151 I concluded that the documents in question would not have assisted the defendants in responding to the plaintiff’s claim.

152 The absence of evidence that the hop up was altered after it was erected arose directly from the failures identified in the evidence to conduct appropriate inspections of the scaffolding and to the absence of appropriate contemporaneous investigation of the circumstances of the plaintiff’s accident.

153 I did not accept that the absence of documentation that was within Baulderstone Hornibrook’s control was an answer to the plaintiff’s claim. The evidence established, without resort to documentation, that the hop up platform did not comply with the relevant Standard and that the explanation for the lifting of the plank in the manner described by the plaintiff was that it was not properly seated on the tie bar on which it was supposed to rest.

154 The pleadings did not make specific reference to the failure to issue a handover certificate in respect of the movement of the hop up. It was also pointed out that it was not put to Mr Knight or to Mr Sugar that no handover certificate was issued. Baulderstone Hornibrook claimed that these failures in the pleadings denied it the opportunity to call further evidence on this issue.

155 Again, I rejected this proposition as an answer to the claim.

156 The pleadings included particulars alleging failure to supervise, inspect or ensure that the hop up platform was properly erected and maintained and failure to take precautions to protect the plaintiff. The evidence concerning the handover procedure was lead by Tubrule from Mr Knight. It was not made clear how the plaintiff could have pleaded this aspect of his claim with the precision sought by Baulderstone Hornibrook before this evidence was made known to him.

157 As to the opportunity to meet that part of the claim dealing with the handover certificate, Baulderstone Hornibrook’s counsel argued against the admission of any of the copies of the very few handover certificates that were produced. It had the opportunity to question Mr Knight on the issue but elected not to cross examine him at all. Mr Knight conceded that there was no handover certificate for the relevant hop up amongst those that were produced.

158 Mr Sugar gave evidence after Mr Knight, allowing Baulderstone Hornibrook an opportunity to check its archives for the handover certificate in question. He was not asked about the missing handover certificate. His evidence concerning handover certificates was limited to his claim that he accepted them as a statement that the scaffolding was built to Hillsley Hire’s design and to the relevant Standards. He said it was Mr Bongiorno’s role to inspect the scaffold prior to the issue of the handover certificate. Mr Bongiorno was not called to give evidence.

159 The legal authority governing the obligations of a contractor in the situation of Baulderstone Hornibrook for the neglect of subcontractors was that of Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox^xviii. In that decision, the High Court rejected the proposition that a head contractor owed a duty of care in respect of an accident occurring while the plaintiff was engaged in an activity of a subcontractor that was self contained and did not require co-ordination with other activities on the construction site. The principles established in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 were confirmed to the effect that an entrepreneur or, as in this case, a site manager, owes a duty to prescribe a safe system of work when there is a need for direction and co-ordination of the various activities being undertaken.

160 The High Court quoted the following extract from the reasons of Justice Brennan in Brodribb:

An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility ^xix .

161 The decision in Leighton Contractors v Fox was consistent with that of the Court of Appeal in Mambare Pty Ltd v Bell^xx where Handley JA, noting that there was no evidence of a breach of the duty to coordinate the work of the trades, stated that a head contractor does not have a duty of constant supervision of the work or of checking that trades have on site the equipment and materials necessary to carry out their work. Further, a subcontractor is not subject to the directions of the head contractor as to the manner in which the subcontract work is to be done.

162 I accepted that on the basis of this authority Baulderstone Hornibrook, having engaged competent subcontractors, was not obliged to undertake direct supervision of their subcontract work.

163 There were, however, a number of features of this case that distinguished it from the authorities to which I was referred:

1 The accident was not related to the system of work that J F Plastering was contracted to perform. It was related to the performance of the work of another subcontractor, Tubrule.

2 Baulderstone Hornibrook’s role was clearly that of site management and co-ordination.

3 Baulderstone Hornibrook expressly accepted responsibility for the occupational health and safety of persons working on the site through its Project Occupational Health Safety and Rehabilitation Management Plan . Clause 10.25 of the contract ^xxi with Hillsley Hire required the subcontractor to ascertain and comply with the requirements of the Plan. The Plan itself was incorporated into the contract as a subcontract document .

4 Significant provisions of the Plan were:

Clause 2: in which Baulderstone Hornibrook fully accepted responsibility for the effective management of occupational health safety and rehabilitation.

Clause 5.1: providing that the health and safety of all personnel involved with the project was more than a priority for Baulderstone Hornibrook and that it was a core value that underpinned the company’s management style and culture.

Clause 7.4: setting out in detail the matters to be addressed through hazard identification, risk assessment and control and in the preparation of job safety analyses. Of relevance were the requirements directed at addressing the risks of scaffold collapse, fall from height, falling object/s.

Clause 7.9: dealing with the establishment, composition and operations of a site safety committee.

5 There was no evidence that a process of hazard identification or risk assessment was undertaken in respect of the scaffolding. Nor was there evidence that a job safety analysis was provided to address risks associated with the scaffolding, in particular, uplift, interference with scaffolding by trades other than the scaffold erector or the inadvertent movement of planks that were not fixed in position. These were all known risks.

6 This was not a case where an employee of a subcontractor directly at fault complained of failure by Baulderstone Hornibrook to supervise the activity of that subcontractor. Rather it was a case of failure to take reasonable care to check the implementation of measures that Baulderstone Hornibrook itself introduced that were designed to protect all persons on the site, not only the employees of the subcontractor at fault.

7 The safety committee inspections were undertaken, not weekly as claimed by the defendants’ witnesses, but at very irregular intervals.

8 There was no evidence to indicate that a handover certificate was provided following the movement of the hop up platform on which the plaintiff was working at the time of his fall. If a handover certificate was provided, its terms imposed on Baulderstone Hornibrook responsibility to guard against tampering with the scaffold and to undertake weekly inspection to identify safety concerns. These responsibilities were disregarded.

9 Baulderstone Hornibrook implemented a system of scheduling work so that cement renderers commenced their work before the work of bricklayers was completed. The plaintiff and Mr Knight regarded this scheduling as unusual. Mr Donohue regarded the practice as acceptable provided the risks involved with it were guarded against. In this case, the method adopted of providing covers was not enforced. Mr Sugar agreed that it was Baulderstone Hornibrook’s obligation to direct the trades that generated the debris to clean it up. He said that this obligation was fulfilled in the course of site safety inspections. Those inspections were held at very irregular intervals.

10 Baulderstone Hornibrook’s response that there were no bricklayers working above the plaintiff on the day of the accident, did not deal with the proposition put forward by Mr Donohue that the risk arose because debris was allowed to build up on the tie bars over a period of time.

Tubrule

164 Tubrule argued that the way in which it erected the hop up was not unreasonable because any deficiency in the scaffold was a matter of specification, design and equipment all of which was provided by Hillsley Hire.

165 Its response to the breaches of AS/NZS 1576.1:1995 was that they were also a matter of design and not of site management or scaffold erection. I have already noted that the plans prepared by Hillsley Hire were not in evidence. It could be inferred that they would not assist Tubrule on the question of whether the hop up platform was in fact erected in accordance with the design prepared by Hillsley Hire.

166 As to the suggestion that that the fixing of the planks as proposed by Mr Donohue was not a WorkCover requirement, Mr Crawford pointed out that Clause 58(d) of the Occupational Health & Safety Regulation 2001 required that the erection and dismantling of scaffolding be carried out in accordance with the provisions of AS/NZS 1576.1:1995.

167 While I accepted that, if joined as a party and with appropriate evidence, Hillsley Hire might share responsibility for the plaintiff’s injury, Tubrule was presented as a competent subcontractor of long term experience in the erection of scaffolding. Those working on scaffolding are required to train and hold certificates of qualification. I would therefore expect them to have a level of knowledge concerning safety standards and an appreciation of the need to take precautions against known risks.

168 Similarly, Mr Donohue expected a company contracted to erect the scaffolding system to exercise its own skill and judgment in the installation, particularly if the firm held itself out as specialising in the erection of scaffolding systems. He thought that a contractor in that position would be required to undertake a risk assessment process, as provided for in the OHS&R Management Plan, not only for the protection of tradespersons but of its own employees involved in erection and movement of scaffold from time to time.

169 Mr Matthews accepted responsibility, as a principal of Tubrule, for breaches of Australian Standards in the erection of the scaffolding. He agreed that he was aware that the Standard required that uplifting of planks be prevented and that this required that the planks be appropriately installed, inspected and maintained to prevent uplift.

170 In addition, it was accepted by Mr Knight that, aside from erecting the scaffolding, Tubrule was responsible for ongoing maintenance and inspection of the scaffolding to ensure that it remained in good order. There was no credible evidence that Tubrule implemented any regular system of inspection. The evidence in fact suggested that scaffolding was not inspected after it was moved and before persons were permitted to work on it.

Issue 4 - Findings

171 The fact that the plaintiff’s fall occurred in a fashion not previously experienced by those associated with the defendants was, in my opinion, irrelevant to the question of liability. The evidence established that there were a number of ways in which planks on scaffolding could be shifted, deliberately or inadvertently, from their seating on the tie bars. This risk presented a foreseeable prospect that, if the planks were not fixed in position and reasonable care were not taken to check that on erection planks were properly seated and that they remained properly seated, the platform on which a construction worker was required to operate would become unstable, leading to a fall.

172 I find that Baulderstone Hornibrook:

1 Owed the plaintiff a duty of care as the contractor responsible for onsite management and co-ordination of subcontractors.

2 Owed the plaintiff a duty of care through its express acceptance of responsibility for the occupational health and safety of persons on the Quadrant site in accordance with the commitments stated in the Project Occupational Health Safety and Rehabilitation Management Plan.

173 I find that Baulderstone Hornibrook was in breach of its duty of care because:

1 It failed to implement the provisions of the Plan that were designed to identify and address known risks associated with scaffolding.

2 It failed to organise safety committee meetings and inspections weekly or at sufficiently regular intervals to fullfill the purpose of the committee, namely the protection of workers on the Quadrant site.

3 It lost control of movements of scaffolding by failing to enforce established procedures for:

(a) arranging the movement of scaffolding through requests made to Mr Biongiorno;

(b) the handover of scaffolding that were designed to confirm that scaffolding was inspected and in good order after it was moved and before persons were permitted to work on it.

4 It failed to manage the system of scheduling of work that required trades to work on the same areas of the walls of the Blackwattle building at different levels by enforcing the direction to bricklayers to use covers to prevent the accumulation of debris on the scaffolding.

174 I find that Tubrule owed a duty of care to the plaintiff as the scaffolding contractor responsible for the erection and maintenance of the scaffolding.

175 I rejected the argument that Tubrule, notwithstanding that it erected a scaffolding that failed to comply with AS/NZS 1576.1:1995 in compliance with a design, was not in breach of its duty of care because it erected the scaffold in accordance with a design prepared by Hillsley Hire.

176 I find that Tubrule was in breach of its duty of care to the plaintiff because:

1 It failed to erect the scaffold in compliance with Standards of which it ought to have been aware.

2 It failed to undertake regular inspections, whether through the safety committee or independently, for the purpose of confirming that the scaffolding remained in good order.

3 It failed to follow procedures for the movement of scaffolding through requests made to Mr Biongiorno.

4 If failed to follow procedures for the handover of scaffolding that were designed to confirm that scaffolding was inspected and in good order after it was moved and before persons were permitted to work on it.

ISSUE 5 - APPORTIONMENT

177 Determination of the proportions in which the defendants were to be held responsible for the damage caused to the plaintiff depended upon consideration of the responsibility of the plaintiff’s employer.

178 J F Plastering was not a party to the proceedings and no evidence was called by either defendant concerning the steps taken by it to address safety concerns affecting its employees. However, J F Plastering as the plaintiff’s employer owed him a non-delegable duty to take reasonable care for his safety. It was therefore obliged to accept a share of the responsibility for the breaches by Baulderstone Hornibrook and Tubrule of their duties of care to the plaintiff.

179 On that basis and in the absence of evidence of any direct negligence on the part of J F Plastering, I assessed its share of responsibility for the plaintiff’s accident at 20%.

180 I considered that Tubrule should bear a greater proportion of liability for the accident because it was the party with direct responsibility for the scaffolding and the failures of inspection and compliance with Standards and regulations were directly under its control. I assessed its share of responsibility for the plaintiff’s accident at 45%.

181 I considered that Baulderstone Hornibrook should bear a significant proportion of liability for the accident because it was the party that expressly accepted responsibility for occupational health and safety on the Quadrant site and the party with the level of control necessary to co-ordinate and enforce procedures relating to the erection, movement and inspection of scaffolding. I assessed its share of responsibility at 35%.

ISSUE 6 – CONTRIBUTORY NEGLIGENCE

182 The allegation of contributory negligence was based on the suggestion that the plaintiff ought to have noticed that the scaffolding plank was in some way defective.

183 The plaintiff had been working full time on building sites for 14 years at the time of the accident. He said he used scaffolding over that period and, on most sites, used hop ups. He knew that it was not permissible to move scaffolding. He had experienced situations where a plank was unsteady. He reported it to those responsible for the scaffolding. If something was obviously wrong on the Quadrant site he would raise it with the Baulderstone Hornibrook foreman. He expected the scaffolding to be in a good enough condition to work on.

184 Asked if he would be able to see if anything was wrong when he set up his tools and cement for the day, he responded that it was not always possible to notice those things. He rejected the proposition that it was possible to see if something was not right just by looking at the scaffold.

185 Mr Rizzo’s evidence was to similar effect. He said it was not always possible to identify defects in the scaffolding and that it was not general practice for a cement renderer to inspect scaffolding before commencing work. The practice was to rely on the scaffolding contractor to provide a structure that was in good order.

Issue 5 - Findings

186 I made no finding of contributory negligence against the plaintiff.

ISSUE 7 – THE PLAINTIFF’S INJURIES

187 At the time of the accident the plaintiff was 35 years old. He is now 42. He migrated to Australia from Portugal in 1987. After a short period apprenticed as a panel beater, the plaintiff worked in various unskilled positions before commencing work as a cement renderer in 1989. He worked in that capacity until the accident in January 2003.

188 He married but subsequently divorced. He has two children from his marriage.

189 The plaintiff claimed for non-economic loss, medical expenses and future care costs. He claimed loss of income earning capacity on the basis that he was unable to return to work in his trade or to any reasonable level of employment of an unskilled nature.

190 The only pre-accident medical history of relevance was a fracture to the plaintiff’s left leg in a car accident in 1993. He said was unable to work for five months but he fully recovered from this injury and returned to work on full duties.

191 There was no evidence to suggest that there was a relevant pre-existing medical history. The plaintiff denied any prior problems affecting his knees, left elbow, shoulders or neck. He stated that at the time of his injury he engaged with his children in recreational activities including cycling, football, fishing and walking.

192 After the accident the plaintiff noticed that his left elbow was bruised and he was unable to bend it. He had pain in his shoulder, scratches on his legs and a gash on his right thigh. He was treated at the first aid post on the building site, after which he returned to the hop up to collect his tools and he went home.

193 He suffered significant pain in his left elbow and left shoulder during the night and consulted his general practitioner the next day. An x-ray was taken of his left elbow and he was treated with cream, ice and heat packs. He continued with treatment from his general practitioner, who referred him for physiotherapy and an x-ray of his neck.

194 The plaintiff said that his relationship with his wife was faltering before the accident and that as a result of his accident he was not mentally well. He was under financial strain so that the relationship deteriorated to the point where they separated.

195 Physiotherapy continued for a number of months directed mainly directed at his left knee.

196 In May 2003 he was referred to Dr Rosenberg, orthopaedic surgeon, for advice in respect of his continuing left knee and left elbow symptoms. He consulted Dr Harper, a specialist shoulder and elbow orthopaedic surgeon, in September 2003.

197 He consulted Dr Waddell, a knee specialist, in October 2003. An MRI scan was undertaken and arthroscopy performed in November 2003. The plaintiff said this did not improve his condition and he continued to consult Dr Waddell.

198 In July 2004 Dr Waddell performed surgery on the left knee involving a bone graft and fixing with screws. The purpose was to re-align the patella. The plaintiff complained of an extended period of discomfort after this surgery. He was required to use crutches, take pain killing medication and undertake physiotherapy.

199 The plaintiff said that he noticed some problems with the right knee within six months to one year after the accident. Those problems were insufficient to warrant medical consultation until they became more serious in mid-2005 when he brought them to Dr Waddell’s attention.

200 In September 2005 the screws were removed from the left knee after which the plaintiff again spent time on crutches and required rehabilitation.

201 In November 2007 Dr Waddell referred him to physiotherapy for his right knee but this did not help and he was in constant pain. An arthroscopy was undertaken in April 2008.

202 The plaintiff’s complaints at the time of the hearing were:

1 Continued significant pain in his both knees. It has been suggested that further surgery may be required in the future. In the meantime the plaintiff relies on medication.

2 Scarring on his legs resulting from the knee surgery.

3 Neck pain intermittently since the accident, extending into both shoulders.

4 Discomfort and restriction in the range of movement of his left elbow together with weakness in his left arm.

203 There was no evidence of any psychological trauma or diagnosable psychiatric injury, although Dr Westmore in November 2007 reported some residual symptoms of anxiety and frustration arising from his inability to work as a cement renderer with consequent reduction in income.

204 The plaintiff expressed regrets at the constraints placed upon his capacity to continue his recreational activities, particularly those involving his children.

205 The plaintiff was mildly challenged about his complaints of disability. He agreed that at times he could run up the two steps to the door of his house, access his manual Toyota HiLux and drive his partner’s manual Hyundai car for short distances. He claimed that he did not like automatic vehicles, never having driven one.

206 Aside from these concessions by the plaintiff, there was no suggestion by the medical experts that the symptoms of which he complained were exaggerated or inconsistent with objective clinical findings. To the contrary, Dr Westmore and Dr Davis both described the plaintiff as stoic and inclined to understate his difficulties. A number of doctors reported that the plaintiff demonstrated to them that he was highly motivated to return to some form of employment.

Causation

The left knee

207 The defendants argued that much of the plaintiff’s post accident physical condition was unrelated to the accident. Their argument was based on the alleged absence of evidence of immediate complaint of injury to the plaintiff’s left knee and the opinions of Dr Donaldson and Dr Zeman.

208 The plaintiff agreed that he drove himself home in a manual vehicle after the accident. He denied that he returned to work the day after the accident. On that day he consulted his general practitioner complaining about his left shoulder, elbow, bruises to his knees and bruises on his right thigh and a gash on his right thigh. There was no evidence that suggested that the plaintiff worked on the day after his accident.

209 The plaintiff denied that he made no mention to his general practitioner of problems with his left knee until after his return to work in late February 2003. He said his main concern at that time was the injury to his left elbow and he thought the left knee pain would resolve. When it was drawn to his attention that his doctor’s certificates in January 2003 made no mention of injury to his left knee, the plaintiff said that the problem with his left knee became more significant after he returned to work in February 2003. He continued to believe that his left knee problems would resolve and he continued working on light duties until August 2003 in that expectation.

210 There appeared to be inconsistency between Dr Latif’s clinical notes^xxii and his report^xxiii of 17 January 2008. The notes were handwritten and difficult to read but they did not appear to make reference to the plaintiff’s left knee. The report described the symptoms on first presentation as:

… abrasions around the right thigh and left elbow and upper arm, pain affecting the neck and both shoulders posteriorly, left elbow pain and left knee pain.

211 The defendants also relied on the medical certificates issued by Dr Latif. The initial certificate, dated 14 January 2003, described injuries to the neck, both shoulders, both upper limbs, left elbow and right thigh. No reference was made to an injury to the left knee until 2 April 2003.

212 Dr Latif was not called to explain the apparent discrepancy. I regarded the purpose of the certificates to be to provide information concerning the injuries that prevented the plaintiff from working or that required that he work in some restricted fashion. In the light of the plaintiff’s evidence that he did not regard the knee pain as significant until he returned to work and in the absence of explanation from Dr Latif, I did not regard these apparent discrepancies as conclusive on the issue of whether an injury to the left knee was suffered in the accident.

213 Dr Gibbs examined the plaintiff on the day before he returned to work. The plaintiff said at that time he was having trouble with his knee. It was pinching and giving way at times. He did not agree that he failed to mention his knee to Dr Gibbs because it was not causing him problems. He said he thought Dr Gibbs was examining him in relation to his elbow which was his main concern at that time. It was apparent from reading Dr Gibbs’ report that he addressed only the symptoms of the plaintiff’s left elbow injury.

214 The plaintiff’s treating orthopaedic surgeon, Dr Waddell, diagnosed two aspects to the condition of the plaintiff’s left knee:

1 a tear of the posterior horn of the medial meniscus; and

2 pre-existing patellofemoral osteoarthritis.

215 Dr Waddell’s opinion was the accident was responsible for the meniscal tear and for aggravation of the pre-existing condition. In his report^xxiv of 19 December 2005, Dr Waddell said:

The current condition of his left knee is due to the aggravation of the pre-existing osteoarthritis of his patellofemoral joint. Once a knee joint is aggravated due to the constant use required of it, for general mobility, it is highly unlikely that the aggravation has a chance to settle down and it just continues on in an indefinite way. I therefore believe his current condition is due to the ongoing aggravation.

216 Only Dr Donaldson expressed the opinion that neither condition was caused by the accident. He accepted that the accident caused some aggravation of what he considered to be a pre-existing significant level of degenerative osteoarthritis resulting from the plaintiff’s many years involvement with heavy work requiring frequent squatting. His opinion was fortified by the report of similar findings in the right knee in 2007.

217 His conclusion therefore was that the accident caused a short term aggravation of the pre-existing condition of the plaintiff’s left knee but it was not the cause of the plaintiff’s ongoing left knee symptoms.

218 Dr Zeman initially reported his opinion that the accident caused no injury or aggravation of the pre-existing condition of the plaintiff’s left knee. On further examination of the plaintiff Dr Zeman changed his opinion to accept that the accident caused the meniscal tear. He regarded this as a minor injury that was not the cause of the plaintiff’s ongoing symptoms.

219 Dr Rosenberg examined the plaintiff in May 2003. Although he referred to the plaintiff’s symptoms as having developed more recently, he reported^xxv that the plaintiff had obvious patello-femoral joint problems undoubtedly significantly exacerbated by his fall.

220 I was persuaded to accept Dr Waddell’s opinion for the following reasons:

1 An x-ray report ^xxvi dated May 2003 referred to early degenerative arthrosis. An MRI report ^xxvii of November 2003 referred to moderate patellofemoral joint osteoarthritis. These findings did not suggest that the osteoarthritis in the left knee had by January 2003 reached an advanced stage.

2 The plaintiff was a relatively young man at the age of 35 at the time of the injury.

3 The plaintiff carried out the demanding physical work of cement rendering without restriction to the date of the accident.

4 Had the degenerative condition of the plaintiff’s knee reached the advance stage suggested by Dr Donaldson and Dr Zeman, I would have expected to see evidence of prior complaint and treatment.

The left elbow

221 It was accepted that the plaintiff suffered an injury to his left elbow in the accident.

222 Dr Gibbs reported^xxviii that the plaintiff told him in February 2003 that his elbow was 70% better. The plaintiff said he told Dr Gibbs that he had immediate severe pain in his left elbow and that it was black and blue with bruising the following day. He did not recall telling him that his elbow pain was 70% better and that he had neck pain for a day or two after the accident. He did not agree that by the time he returned to work his elbow pain was 70% better.

223 Dr Gibbs accepted that the plaintiff suffered a ligament sprain to the left elbow. He acknowledged the possibility of a joint chondral injury and suggested further investigation be undertaken if the plaintiff was not fully recovered within six months.

224 It was clear that there were continuing symptoms in the plaintiff’s left elbow when he was examined by Dr Rosenberg in May 2003. Dr Rosenberg suspected an osteochondral injury or avulsed fragment of the bone as a result of the ligamentous injury to the elbow. A CT scan undertaken on his recommendation reported^xxix small spurs consistent with degenerative arthrosis.

225 Dr Harper in September 2003 reported^xxx the plaintiff’s complaints of pain on flexion of the elbow beyond 130 degrees with sharp posterior pain on forced extension. Dr Harper reported:

Mr Emanuel Lucas has sustained an injury to his left elbow which has resulted in left elbow posterior capsular tightness. There is evidence of early degenerative disease which is also causing posterior joint impingement. At some stage he will require posterior arthroscopic capsular release and resection of his olecranon osteophyte when his condition warrants. The 10 to 15 year prognosis for this joint, if he continues in heavy manual labour, is poor.

226 Dr Donaldson thought that the plaintiff had regained full range of movement of the left elbow by May 2006. He accepted that the plaintiff’s complaints of weakness and pain if the left arm was overstrained were consistent with the injury. Again, Dr Donaldson referred to x-rays showing minor degeneration in the elbow that he considered was consistent with heavy use over years and that would slowly worsen with age. He considered that the arm was likely to become stiffer with age regardless of the accident. He did not agree with Dr Endrey-Walder that the plaintiff would require surgery to his left elbow.

227 Dr Zeman accepted that the plaintiff suffered soft tissue injuries to the left elbow but not that the accident was responsible for or exacerbated arthritis in the left elbow.

228 Again there was no material before me to suggest that I should reject the plaintiff’s claims on continued symptoms affecting his left elbow. Degenerative disease was again referred to by Dr Harper as early, although I accepted that, if the plaintiff continued to undertake the physical aspects of his work as a cement rendered, it was probable that he would develop problems in the elbow joint regardless of the injury suffered in the accident.

The right knee

229 The earliest recorded complaint made by the plaintiff concerning his right knee was to Dr Waddell in April 2005 who considered that it was caused by maltracking of the right patella that caused symptoms when it was placed under load. Dr Waddell reported^xxxi in March 2008 that the plaintiff complained of increased pain in the right knee in December 2007 when he pushed loads up a ramp. Dr Waddell diagnosed a torn right medial meniscus.

230 Dr Waddell was prepared to accept that there was a causal connection between the accident and the condition of the right knee having regard to the symptoms that were reported in 2005.

231 Dr Endrey-Walder thought the symptoms in the right knee were the result of the plaintiff’s greater reliance on his right leg following the injury and treatment provided in respect of the left knee.

232 Dr Donaldson and Dr Zeman rejected the proposition that the accident was the cause of any of the right knee problems. Dr Donaldson considered that the meniscal tear was the result of the incident on the ramp and that the plaintiff’s other symptoms in his right knee were caused by a pre-existing degenerative condition similar to that which was occurring in the left knee.

233 In this case I preferred the opinions of the defendant’s experts. The critical symptoms that lead to the arthroscopy on the right knee were most probably related to the injury suffered when the right knee was placed under load in 2007. The most that could be attributed to the accident was aggravation of a pre-existing degenerative condition resulting from the extra loading on the right leg following injury to the left knee.

Neck and shoulders

234 Dr Latif recorded immediate post accident complaints of neck and shoulder pain but there was no evidence to support other than soft tissue injuries in these areas of the plaintiff’s body.

235 Dr Donaldson reported that the plaintiff made no complaint of neck pain at the time he examined him. He considered that any pathology affecting the plaintiff’s neck was the result of heavy work he undertook over many years and not a consequence of any jarring at the time of the accident.

236 Dr Endry-Walder referred to complaints of tightness between the neck and left shoulder. Dr Davis diagnosed a C5/6 facet joint injury and noted complaints of restriction in the range of movement of the left shoulder and of pain in the right shoulder.

237 The plaintiff said little in his evidence to suggest that these injuries were causing him significant ongoing problems.

Causation - Findings

238 I accepted that as a consequence of the accident the plaintiff suffered injuries to his left knee and left elbow that aggravated pre-existing osteoarthritic disease in these joints and continued to cause pain and disability.

239 I did not accept that the meniscal tear in the right knee was caused in the accident. I accepted that the pre-existing degenerative condition of the right knee was aggravated because of increased reliance on the right leg as a consequence of the injury to the left knee.

240 I accepted that there was soft tissue injury affecting the neck and shoulders from which the plaintiff has substantially recovered.

241 I accepted that the plaintiff suffered minor scarring to his left leg as a result of the surgical procedures involving his left knee.

242 There was no evidence to support the claim of psychological injury.

243 Various assessments were put forward of the whole person impairment suffered by the plaintiff as a consequence of the accident.

244 I was not satisfied that the whole person impairment could be assessed at greater than 15% having regard to my finding of the relatively minor nature of his continuing disabilities resulting from the injuries to the plaintiff’s neck and shoulders, the minor scarring and the limited extent to which the right leg was affected as a consequence of the accident.

245 Having regard to the evidence of the plaintiff concerning the level of his pain and suffering both after the accident and on an ongoing basis and the consequences to his quality of life of his injuries and disabilities I assessed his non-economic loss at 30% of a most extreme case. I allowed $109,000 on this head of damage.

Loss of income earning capacity

246 The plaintiff said that prior to the accident he worked six days a week between 7 am and 3 pm, with an hour for lunch. His position with J F Plastering was that of leading hand with responsibility for the oversight of four to five other renderers working on the Quadrant site.

247 The plaintiff said his intention was to start his own business as a cement renderer. He claimed to have established contacts with a number of builders in his years as an employee and to have been ready to start a business in the near future.

248 He explained that working as a cement renderer involved engaging in many repetitive actions and the use of both hands with the left holding a hok on which cement was placed and right holding a trowel with which to place and smooth the cement onto a wall. It also required a significant degree of bending, squatting and kneeling. He stated that he had no difficulty at all in undertaking these tasks prior to the accident.

249 The plaintiff returned to work on 28 February 2003. On commencing work he suffered discomfort in his left elbow, left shoulder and he noticed that his left knee began to cause him pain. He was given light duties which he continued to perform until he ceased work with J F Plastering in August 2003. His reasons for ceasing work were the pain that he continued to suffer in his left elbow, left shoulder and left knee.

250 In 2005 he attempted to return to work as a cement renderer, working for three days a week. He was unable to perform the work without significant swelling and discomfort in his left knee and continuing pain and stiffness in his left shoulder and elbow. This was also the point at which he started to suffer symptoms in his right knee. He ceased this work in July 2005 after four months. He denied that the right knee symptoms were the sole reason he gave up working as a cement renderer.

251 No medical expert suggested that the plaintiff could continue to work as a cement renderer. Dr Donaldson and Dr Zeman, because of their views about the cause of the plaintiff’s symptoms, did not accept that the restrictions on his income earning capacity were caused by his accident. I have already noted the reasons why I disagreed with those views.

252 I was satisfied that the injuries to the plaintiff’s left elbow and left knee, rendered him incapable of continuing to work as a cement renderer or in any occupation involving heavy manual labour. His capacity for employment was further undermined with the onset of right knee symptoms in 2005. Unfortunately, this was the only type of work for which he was equipped, having regard to his use of English as a second language, educational level and lack of formal qualifications.

253 With the assistance of a rehabilitation provider, the plaintiff considered employment as a truck driver in August 2005 but did not take up the position because the paperwork took too long to complete.

254 In March 2006 the plaintiff obtained work as a maintenance officer/handyman. He worked three days a week initially, progressing to five days a week. After some time the condition of his left knee deteriorated because of the amount of walking and ladder work involved so he reduced his working hours to four days a week. His weekly net income was $437.

255 The work involved painting, giving out paper goods, changing locks, putting in doors, changing light bulbs with the use of a ladder. He said he did not find the work easy but he was allowed to work at his own pace and could take rest breaks from time to time.

256 The plaintiff lost this position when took time off for treatment for his right knee in 2008. He has since searched for similar work without success. He said this was work he could cope with because it gave him the opportunity to work at his own pace and rest when necessary and he was prepared to take a similar position if he could find one.

257 He did not know if he could set up a business as a handyman. He rejected the propositions that he could work as a painter because he lacked the necessary experience or as a courier because it involved driving all day and getting in and out of a car. He said his driving limit was about one hour.

258 Dr Donaldson accepted that the plaintiff was unfit for work involving squatting or heavy lifting because of the condition of his knees. He said he was fit for the handyman type of work that he carried out between 2006 and 2008. Dr Zeman agreed that the plaintiff was not fit for heavy manual work that involved heavy lifting or excessive bending of the knees or elbows.

259 Vocational assessment pointed to a number of alternatives that might be available to the plaintiff. Dr Davis recognised the difficulties that would face the plaintiff in securing employment when faced with the limitations that I have already noted, his disabilities and his disinclination for indoor semi-sedentary work. Dr Davis considered that the handyman work that the plaintiff performed between 2006 and 2008 was beyond his physical capacity and suggested that indoor semi-sedentary work was in effect the only option available to the plaintiff. Retraining would be required to enable him to seek this type of work.

260 Dr Donaldson referred to the radiological evidence of osteoarthritis in the plaintiff’s knees and left elbow that he suggested was the consequence of the plaintiff’s work in heavy labouring involving repetitive action and squatting. His opinion was that the plaintiff’s condition would have progressed to the point where he would no longer be capable of working in cement rendering regardless of the injuries suffered in the accident. Dr Donaldson did not offer a time frame for when this would occur.

261 I accepted that the plaintiff was unlikely to have been able to continue in this type of heavy manual work as he advanced in age. However, at the time of the accident he was already a leading hand, an indication that he was capable of taking responsibility for supervision and organisation of the work of others. This lent an element of realism to his claimed intention to start his own business through which, with advancing years, he could have reduced the level of physical labour required while remaining at work within his trade. Vocational testing established that his intellectual ability was such that he had the capacity to operate his own business.

262 The plaintiff claimed a buffer to compensate him for the loss of capacity to earn a greater income through the operation of his own business. His past and future net loss on this part of his claim was calculated to exceed $1,000,000. The buffer claimed was $100,000.

Income loss – findings

263 By reference to the plaintiff’s tax returns, Mr Katehos, forensic accountant, estimated^xxxii his pre-accident net income to be $42,552 or $818 per week. Mr Katehos adjusted this figure in accordance with percentages in average weekly earnings to arrive at a current net figure. The defendants did not challenge these figures.

264 After deduction of income earned by the plaintiff during those years the amount claimed for past income loss to May 2009 was $236,238. This amount is awarded in respect of past income loss to that date.

265 Loss of past superannuation is allowed to that date in the sum of $25,986.

266 The plaintiff claimed future income loss on the basis that his current net income, but for the accident, would be $1,000 per week. The defendants did not challenge this figure.

267 The plaintiff, although demonstrating motivation to return to work will, in my view, have difficulty securing suitable employment. It was claimed that his income earning capacity was reduced by 50%. I considered that this was a realistic estimate of his future prospects. His future income loss as at the date of the hearing was calculated, with the standard 15% deduction for vicissitudes, at $306,510. The future superannuation loss was calculated to be $39,666.

268 It will be necessary for him to retrain in order to secure the type of work which he is now capable of performing. I allowed $2,000 for this purpose.

269 I was satisfied that he had prospects of establishing his own business. His injuries and ongoing disabilities resulting from the accident denied him the opportunity to establish his own business.

270 I considered the claim of $100,000 in respect of this loss to be reasonable and it was allowed.

271 A Fox v Wood claim was made in the sum of $40,726. The defendants did not challenge this figure.

Domestic Care

272 The plaintiff abandoned his claim for voluntary care. He claimed that he would require care on a commercial basis in the future.

273 Since the accident the plaintiff entered into a relationship and moved with his partner to a house in Campsie.

274 He claimed that domestically he had considerable assistance from his partner with cooking, cleaning, vacuum cleaning, lawn mowing, car washing and cleaning the yard and well as maintenance tasks such as changing light bulbs.

275 He described the house as old and in need of renovation. He said that were he not constrained by his injuries, he would undertake much of the renovation work himself but he was unable to do the work required of painting and landscaping.

276 He did not remember telling Dr Donaldson in 2006 that he managed his housework without assistance. Dr Donaldson did not consider that the plaintiff required any domestic assistance, aside from some assistance in the period immediately following the accident. Dr Zeman assessed the plaintiff’s need for domestic assistance at two hours per week but said that need arose out of the pathology in the plaintiff’s knees and was not a result of the accident.

Domestic care - findings

277 I considered it unlikely that the plaintiff would obtain commercially provided assistance with housework and cooking and he gave no evidence of an intention to do so.

278 I accepted that he required assistance with maintenance tasks, gardening and renovation of his house and I considered that this need would be met by the provision of two hours of commercial assistance per week. I applied a further 20% discount to take account of the probability that with advancing age the already established osteoarthritis in the plaintiff’s knees and elbow would progress to the point where this assistance was required regardless of the accident.

279 The amount allowed was $61,261.

Out of Pocket Expenses

280 The claim for past out of pocket expenses at $229,604 was not disputed mathematically. I propose to hear further submissions on this aspect of the claim having regard to my findings concerning the extent to which the plaintiff’s claimed injuries were the result of the accident.

281 I considered reasonable the plaintiff’s claim for future medical expenses on the basis that the accident generated the need for the treatment proposed and it is allowed as follows:

1 Quarterly visits to general practitioner - $3,829

2 Annual attendance upon on orthopaedic surgeon - $2,864

3 Pain relief medication - $4,973

282 I did not consider that the evidence established that the need for a total replacement of the left knee would inevitably be required or that, if it ultimately became necessary, the need was generated by the accident.

283 I did not consider that the evidence established that arthroscopy to the left elbow would inevitably be required as a consequence of the accident.

284 I accepted that the plaintiff might require physiotherapy from time to time but not at the frequency of 15 visits per annum. This has not been the history in the years since the accident. I accepted that a gymnasium program might be required in conjunction with physiotherapy. I allowed $10,000 to meet this expense.

ORDERS

285 The proceedings are adjourned to a date to be fixed to deal with:

1 Adjustments to be made to bring up to date the figures allowed for past and future income and superannuation losses.

2 Adjustments to be made to the Fox v Wood component.

3 The calculation of past out of pocket expenses in the light of the findings on causation.

4 Apportionment of the judgment sum between the defendants, having regard to the percentages of responsibility allocated in these reasons and the application of s 151Z of the Workers Compensation Act 1987.

5 Arguments in respect of costs and interest.

6 The making of final orders.

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i Transcript 27.4.09, p33.17

ii Exhibit C2

iii Exhibit 2D-4

iv Exhibit F

v Exhibit G

vi Transcript p177.31

vii Transcript p56.8

viii Exhibits C1, C2, C3

ix Exhibit D

x Exhibit 1D-2

xi Exhibit K

xii Transcript p328.2

xiii Exhibit 2D-8

xiv Exhibit 1D-5

xv Exhibit A, p49 [9]

xvi Exhibit 1D-1(c) [18]

xvii Exhibit H

xviii [2009] HCA 35

xix at 47 - 48

xx Mambare Pty Ltd trading as Valley Homes v Rebecca Irene Bell in her capacity as Administratrix of the Estate of the Late Simon James Bell & Anor [2006] NSWCA 332

xxi Exhibit 2D-9

xxii Exhibit 1D-6

xxiii Exhibit A1.174

xxiv Exhibit A1.98

xxv Exhibit A1.79

xxvi Exhibit A1.83

xxvii Exhibit A1.104

xxviii Exhibit A1.77

xxix Exhibit A1.84

xxx Exhibit A1.213

xxxi Exhibit A1.103

xxxii Exhibit A2.411

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