Maher Assaf v Charisma Developments Pty Ltd and Or - [2008] NSWSC 401

CITATION: Maher ASSAF v CHARISMA DEVELOPMENTS PTY LTD & OR [2008] NSWSC 401

HEARING DATE(S): 16-19 July 2007

JUDGMENT DATE :
2 May 2008

JUDGMENT OF: Hulme J at 1

DECISION: I direct the Plaintiff to bring in draft orders reflecting these Reasons.

PARTIES: Maher Hamzak Rizk ASSAF
Charisma Developments Pty Ltd
Oz Formwork Pty Ltd

FILE NUMBER(S): SC 20026/2006

COUNSEL: D Wheelahan QC with R Taylor
R Cavanagh
P Menary

SOLICITORS: Keddies
Henry Davis York
Sparke Helmore

- 45 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

200026/2006
HULME J

Friday, 2 May 2008

ASSAF v CHARISMA DEVELOPMENTS PTY LTD & ANOR

JUDGMENT

1 HIS HONOUR: On 28 January 2003 the Plaintiff in these proceedings was injured when he fell through a void left in a plywood “floor” being laid as the surface on which a concrete slab was to be poured. The First Defendant in the proceedings is the builder who was undertaking the construction of a block of units on the site. Its site supervisor was a Mr John Stojanovski who was also a director of the First Defendant. The Second Defendant is a formwork sub-contractor who was engaged in that activity and who employed the Plaintiff at the relevant time. Its operations on the site were controlled by a Mr El Jendi.

2 The plywood was at ground level and the Plaintiff fell a distance of about 3 metres to the basement level. The void - something of the order of 4 metres by 2.4 or 2.5 metres wide - had been left deliberately, it being located in the area that was destined to be a stairwell. Concrete-filled blockwork forming the walls of the stairwell had previously been erected from the foundations of the building up to the ground floor and, to the extent to which the plywood floor had been completed, it was level with the top of these walls.

3 At one side of the site was a driveway. The plywood floor adjacent to the stair void on the side of the building furtherest from the driveway was well advanced. There was also some plywood flooring between the stair void and the driveway, although that area was far less complete. In order to facilitate access to the driveway, apparently to enable employees of the First Defendant to transport wheelbarrows filled with gravel to deposit that gravel there, Mr Stojanovski had requested the Second Defendant to erect a bridge across the width of the stair void. This had been done some few days prior to the Plaintiff’s accident. The base of the bridge was formed by three pieces of timber often referred to in the evidence as “planks” to the top of which was affixed plywood.

4 Mr Stojanovski, whose evidence in this respect I accept, gave evidence that when in use as part of the bridge, the planks were on edge and the plywood consisted of sheets 1.2m wide which in totality extended for the length of the bridge.

5 Although referred to in the evidence as “planks” the 3 pieces of timber were in fact the sort of timber used as bearers in the construction of the principal formwork. When so employed they were placed on top of metal scaffolding and metal jacks and in turn smaller timber joists and then plywood was affixed above the bearers. The cross sectional dimensions of the planks were approximately 150mm x 60mm. The length of the planks was, according to the Plaintiff, 4.3 to 4.5 metres, according to Mr Stojanovski 3.6 metres and according to Mr El Jendi 4 to 4.2 metres. The Plaintiff said that the planks weighed more than 30 kilos. Mr El Jendi said that planks weighed 30 to 40 kilograms and agreed that if he wanted them lifted up he would have asked 2 persons to carry out that task because of the weight. Having regard to where the onus of proof lies, I find the weight of the planks to be something over 30 kg but I am not satisfied that that weight was nearer 40 than 30. Having regard to the fact that the Plaintiff and Mr El Jendi were working with the planks and Mr Stojanovski was not, I find their length to be of the order of 4.2 metres.

6 Prior to his employment with the Second Defendant the Plaintiff had worked for another formwork contractor Zahara and Tawil. While employed by the Second Defendant, the Plaintiff had also worked on 3 other sites and had worked on the subject site for some 10 days prior to his accident. This work had involved bringing the timber onto site, providing labour, cutting timber, putting timber in its place and securing it. He agreed that on such sites there were many pieces of timber like the planks and that he had, sometimes on his own and sometimes with another person, lifted such pieces. I would infer that it was a common incident of his work to handle such pieces. From what the Plaintiff told Professor Jones, he had some 6 or 7 months experience prior to his accident.

7 At the time of, and immediately before, the Plaintiff’s fall, he had been engaged in removing the 3 planks from across the stairwell void. The Plaintiff said that initially the planks were lying close together or adjacent to one another. If by this the Plaintiff meant they were virtually touching each other, I am not satisfied this is so but I do not think this matters. The Plaintiff removed one of the planks successfully and, according to him, lifting normally and without any problem. He pulled it until he had it “to” – I infer fully or almost fully on or above – the fixed plywood and then carried it over his shoulder some little distance away to where similar sized planks were being used in the construction of further formwork. The Plaintiff then commenced to remove a second plank which he said was slightly longer than the first. The evidence he gave as to his actions does not make clear all that occurred. He said that he pulled the plank until its far end was resting on the edge of the opposite side of the stair void (be it plywood or wall). He also agreed that he had picked the plank up from what was the near end and kept pulling until “it hit the wall”, which I understand to mean until the plank’s far end reached the wall on the other side of the void. Then he lifted it up. He said he did so by placing one hand under the plank and demonstrated having the plank under his armpit. What was not clear was how close to the edge of the void, or alternately, how close to the near end of the plank the Plaintiff was when he sought to take, or took, its weight.

8 The Plaintiff denied that the timber had hit him, saying also that he was pulling the timber, it tipped, he couldn’t control it and he fell. The Plaintiff was unable to explain how it came about that he picked up one plank successfully but not the second.

9 During his evidence other methods of moving the timber were suggested to the Plaintiff but he said that there was no other suitable way. Certainly I agree with him that one method suggested was not suitable. This was that it would have been easy for 2 persons to lift the planks from the stair void. If the proposition is confined to simply lifting without moving the planks away, I might not disagree but the evidence indicated so little plywood on the driveway side of the void that I am not persuaded that it would not have been difficult, and probably involving some danger, for anyone on that side to be engaged in any useful movement of the planks to an area where they could have been then used.

10 There was no evidence that any other witness saw the Plaintiff fall or what the Plaintiff was doing immediately beforehand. Certainly no-one other than the Plaintiff gave evidence of the circumstances of his fall.

11 The Plaintiff gave evidence that there were no timber railings on either side of the bridge and, consistently with that, no evidence of knowledge of their removal. He did agree that there had been some plywood on the planks to, as he said, keep the planks together but said that such plywood was only small and that a co-employee Hassan Arja had removed the plywood. The Plaintiff’s evidence as to the size of the plywood I reject, because it is inconsistent with evidence of Mr Stojanovski which I prefer. In reaching that conclusion, I am influenced by what I see as the unlikelihood of the width of the bridge being only 450 mm or so when the purpose of the bridge was to enable the passage of, presumably heavy, wheelbarrows. I do not feel able to make a finding as to the removal of the plywood beyond that the Plaintiff did not remove it and very probably some employee of the Second Defendant did.

12 There were other matters of controversy or doubt. One was the topic of fencing. The Plaintiff gave evidence that there were no barricades around the stair void and, as I have said, denied that there were any timber railings on either side of the bridge.

13 Mr Stojanovski asserted the contrary. His evidence was that there was a post and rail fence along the sides of the bridge and around the stair void except at the 2 ends of the bridge. He said that when he went to where the Plaintiff had fallen, the railing was still around the stair well but there was none on the one plank that was still spanning the void.

14 Mr El Jendi was asked but one question concerning fencing. It, and his answer were:-

15 The circumstances in which the Plaintiff came to be removing the planks, and the knowledge of the Defendants as to the situation were also the subject of dispute.

16 The Plaintiff said that shortly prior to his injury, he had been told by Hassan Arja that Mr El Jendi wanted him. He went to Mr El Jendi who said words to the effect that Hassan was unable to get the 3 bridge timbers and asked the Plaintiff to get them. Mr El Jendi asked the Plaintiff to bring the planks and bring them to where Mr El Jendi and another person were extending the formwork and floor.

17 Mr Arja gave evidence. He denied approaching the Plaintiff and saying words to the effect, “The boss wants to see you. He wants you to get some timber from the bridge area.” He denied also that he had removed plywood from the bridge, saying that he was not qualified to do so at that stage although, given the fairly basic nature of the task, it is not clear why that was so. Mr Arja also denied that the Plaintiff could have been involved in the dismantling of the bridge.

18 Mr El Jendi said that he had never received any advice that the bridge was no longer required, had received no instruction to demolish the bridge, had given the Plaintiff no instruction to do so or to remove any timber from the bridge, had given no instructions to a Mr Arja to tell the Plaintiff to take timber from the bridge, and had given no instructions to Mr Arja to remove the timbers or plywood from the bridge and had not told the Plaintiff to bring any of the bridge timbers to him.

19 Mr El Jendi said that he and two other men were engaged in constructing formwork in the basement, moving the formwork for a concrete beam from one place to another and that they had enough timbers without needing the Plaintiff to provide more. Mr El Jendi gave evidence that other employees of the Second Defendant – it may be he intended to include the Plaintiff - were engaged that day in removing nails from timber although he also said that formwork was being constructed on the ground floor, i.e. the floor from which the Plaintiff fell.

20 Mr El Jendi also said that on the morning of the accident he had walked a number of times around the area where formwork was laid and within metres of the bridge but had not noticed the bridge. Despite this evidence he agreed that the bridge was in the same condition as it had been on the previous day.

21 Mr Stojanovski carried out a site inspection soon after his arrival on site that morning. At one stage he said that at that time there were still some timbers over the void but what was there was no longer a bridge: At another he said that he could not recall whether the dismantling had occurred at the start of that day, later that morning or some time on the day before but whenever it was he was aware prior to the Plaintiff’s accident that some demolition of the bridge had occurred. Although Mr Stojanovski asserted that he had no recollection whether any of the planks had been removed, that demolition probably consisted of one or both of the removal of the plywood and bridge railings. Either of these events seems to me to have required, in the interests of safety, that the gap in the railing be closed. Mr Stojanovski took no steps to do anything in response to his knowledge in these respects.

22 Somewhat inconsistently, Mr Stojanovski also said that during the hour or so before the Plaintiff’s accident he was in his site office and was not aware that the bridge was about to be demolished. He said that he had never instructed the Second Defendant to demolish the bridge and the Second Defendant had never asked for permission to demolish the bridge although perhaps 2 days prior to the Plaintiff’s accident had asked if the bridge had been finished with.

23 Mr Stojanovski acknowledged that the removal of the bridge created 1.2 metre gaps in the railing around the stair void albeit, as long as the planks were there, they were something to fall onto. He said also that after the accident when he saw one of the plank(s) which was at an angle in the stairwell there was no plywood attached to it.

24 What conclusions should be drawn from the above? Firstly, I should say that I did not regard any of the witnesses with the possible exception of Mr Stojanovski as entirely satisfactory. There was nothing in the demeanour of any of them to inspire doubt or disbelief but the content of a deal of the evidence does so. I will say more about the Plaintiff’s reliability and credibility below but and it is sufficient for the moment to say that it is poor and I have no doubt that at least on some of the issues relating to damages he lied. On the other hand it appears to me inherently unlikely that the Plaintiff would have set about demolishing or continuing the demolition of the bridge without instructions from Mr El Jendi whose evidence on that topic and as to knowledge of what was occurring in relation to the bridge seems to me unlikely in the extreme. Mr Arja’s evidence that the Plaintiff could not have been involved in the demolition of the bridge damages his reliability. There is no doubt that, immediately prior to the Plaintiff moving the plank that led to his fall, the bridge was, with the exception of 2 planks, demolished and that this exercise had occurred over a period encompassing inspection of the area by Mr El Jendi. The Plaintiff’s fall into the stairwell at the same time as did one of the planks, seen shortly afterwards by Mr Stojanovski, provided a deal of confirmation he was then engaged in the task of demolition.

25 I said “with the possible exception of Mr Stojanovski”. I do not see all of his evidence as to his state of knowledge concerning the bridge as reconcilable but, subject to that, I regard his evidence as generally reliable.

26 I am satisfied that the stairwell void and bridge were fenced as Mr Stojanovski asserted, subject however to the presence of 2 gaps once the railings or plywood on the bridge had been removed. In this connection I regard the evidence of Mr El Jendi that I have quoted, though cryptic, as providing some support for the conclusion that the void was fenced although I would have come to that conclusion even in the absence of Mr El Jendi’s evidence.

27 There is nothing to suggest that the Plaintiff bought the fence down with him and in the circumstances I think it probable that the Plaintiff fell through the gap at what had been the end of the bridge where he was working in removing the 3 bridge planks. Thus this gap was causally related to his accident.

28 I am also satisfied on the probabilities that the removal of the bridge and its component parts was a task undertaken by employees of the Second Defendant and probably ordered by Mr El Jendi and that the removal of the planks in which the Plaintiff was engaged at the time of his fall was pursuant to orders given by Mr El Jendi to the Plaintiff. And even if that conclusion is wrong, Mr El Jendi’s inspections make it very likely he knew what was occurring. I am not disposed to accept Mr El Jendi’s evidence to the effect that he would have always asked two persons to lift a plank.

29 I should add that, in reaching the conclusion that the task of dismantling the bridge was ordered by Mr El Jendi, I have not ignored evidence to the effect that the bridge timbers were not needed by Mr El Jendi for the task of relocating the formwork for a beam in which he said that he was engaged. I see no reason to disbelieve this evidence but the probabilities still favour the conclusion at which I have arrived.

30 During the hearing attention was also given to the issues of training. The Plaintiff said that he had never received any formal instruction as to how to go about his job as a formwork labourer or any occupational health and safety instruction, either from the Second Defendant or the Plaintiff’s previous formwork employer. He said he was given no instructions as to how to go about the task of removing the planks or warned of any danger associated with doing so.

31 Mr Stojanovski said that while he had never inquired of the Plaintiff whether the latter had undergone occupational health and safety induction training there was a specific occupational health and safety management plan for the site. The relevant document became Exhibit 8 and other site induction documents became Exhibits 7 and J. The signatures on latter also post-date the Plaintiff’s accident, suggesting that the topic of site safety received less attention that it might have prior to the accident. Furthermore, while something like Exhibit 8 might be necessary to comply with legislative requirements, it is so long and contains so many “motherhood” like statements that I doubt if any reading of it by employees or other workers would have had any practical effect.

32 There was no challenge to the Plaintiff’s evidence that he received no training (other than by watching what others did). However, I am not persuaded that the absence of training was causally connected to the accident.

33 Relevant in this regard is evidence of Mr Stojanovski to the effect that when formwork is being set up for a floor, and after a reasonable area is set up from below, the procedure followed is for timbers to be placed from below and then, working from above, for the plywood to be placed on the timbers. The working edge – and there may be more than one - is always unprotected.

34 From this and other sites on which he had worked it is to be concluded that the Plaintiff was accustomed to handling timber of the nature of the planks. Furthermore, it is appropriate to remember that some, and sufficient for present purposes, of the elementary rules of physics are learnt from a young age. Children learn the impact of weight on a see-saw. They learn also that to balance a ruler on a finger, the finger must be in the middle of the ruler. They learn also something of the practical workings of leverage and gravity. The Plaintiff employed some of this knowledge in limiting his movement of the second plank so that its far end remained for a time on the far edge of the stairwell and other of that knowledge, it may be inferred, when he successfully removed the first plank. It also requires no instruction to a grown man for him to know that if one falls 3 metres one may be hurt and that, any activity not accompanied by care while on or near the edge of a platform may lead to falling or stumbling off it. Indeed the same might fairly be said of most, if not all children over 5. It is a reasonable inference from the fact that the Plaintiff had been engaged in formwork for some months that he would have been aware and conscious of these matters at least at some time every day. Thus I am not persuaded that any training would have made the slightest difference or that his accident was due in any respect to an absence of training.

35 Relevant to the liability of one or both of the Defendants is their awareness of the situation of the premises. It is clear from the evidence of Mr Stojanovski to which I have referred that prior to the Plaintiff’s accident he must have been aware that there were gaps in the railing surrounding the stair void and was or should have been aware that during the demolition of the bridge, those gaps created a risk or at least an opportunity for someone to fall through.

36 I would draw the same conclusion in the case of Mr El Jendi. An incident of the bridge were the gaps in the railing around the stairwell void. So long as the bridge, and its own railings, remained those gaps may have been of no consequence so far as safety was concerned but a necessary incident of the removal of the bridge or its railings was the obvious risk presented by the gaps and the void between them. A fortiori is this so if work was to be done involving items such as the planks within or vertically above the void.

37 Eliminating the risk by extending the post and rail fencing otherwise surrounding the void so as to cover the gaps would have been a simple task and, given the gaps between floor and rail and post such a fence necessarily involves, and the access from below, such an extension would not have precluded the ready removal of the planks or, if it matters, the bridge railing.

38 As advanced, the case for the Plaintiff was not restricted to the topics of absence of reasonable care, fencing and training. As against the First Defendant it was also alleged that there had been failures to comply with the provisions of the Occupational Health and Safety Act and regulations in that, as the controller of premises:-

(i) Used as a place of work in the course of its trade, business or other undertaking, it failed to ensure that the premises were safe… - Section 10.

(ii) It failed to identify a foreseeable hazard arising from the premises that had the potential to harm the health or safety of any person…using… the premises… - Regulation 34.

(iii) It failed to assess the risk of harm to the health or safety of the Plaintiff arising from a hazard identified… - Regulation 35.

(iv) It failed to eliminate a risk, arising from the premises, to the health or safety of any person… using… the premises … – Regulation 36.

(v) It failed to provide the Plaintiff’s employer with information about a foreseeable hazard arising from the premises that had the potential to harm the health or safety of the Plaintiff … - Regulation 38.

(vi) It failed to ensure the Plaintiff had safe access to all parts at the place of work … - Regulation 39.

(vii) It failed to ensure that risks associated with falls from a height were controlled by the provision and maintenance of a stable and securely fenced work platform or secure perimeter fencing, handrails or other forms of physical barriers … - Regulation 56.

(viii) It failed to ensure that the Plaintiff had undergone occupational health and safety induction training… and to identify a change in the construction site … - Regulation 213.

(ix) As principal contractor for the construction site, it failed to prepare a site specific occupational health and safety management plan … - Regulation 226.

39 It follows from what I have already said that the obligations imposed by Section 10, and at least regulations 34 or 35, 36, 38, and 56 were breached.

40 As against the Second Defendant it was alleged that:

(i) It breached a term of the contract of employment with the Plaintiff to take reasonable precautions for the safety of the Plaintiff and to not expose the Plaintiff to a risk of damage or injury… by providing a safe place of work etc.

(ii) It failed to ensure that the premises controlled by the Second Defendant and where the Plaintiff had to work were safe … - Section 8.

(iii) It failed to take reasonable care to identify a foreseeable hazard that arose from the conduct of the employer’s undertaking and that had the potential to harm the health and safety of the Plaintiff and failed to take reasonable care to identify hazards … - Regulation 9.

(iv) It failed to assess the risk of harm to the health or safety of the Plaintiff arising from a hazard identified … - Regulation 10.

(v) It failed to eliminate a foreseeable risk to the health or safety of the Plaintiff … - Regulation 11.

(vi) It failed to provide instruction, training and information … - Regulation 13.

(vii) It failed to ensure that the Plaintiff was provided with reasonable supervision … - Regulation 14.

(viii) It failed to supply the Plaintiff with… personal protective equipment … - Regulation 15.

(ix) It failed to ensure that the Plaintiff was provided with safe access … - Regulation 39.

(x) It failed to ensure that risks associated with falls from a height were controlled by the use of a stable and securely fenced work platform such as scaffolding, secure perimeter screens, fencing … - Regulation 56.

(xi) It failed to eliminate a risk from manual handling – Regulation 80.

41 It is clear that the Second Defendant breached at least Section 8, regulations 9 or 10, 11, and 56. I am satisfied also that there was a term of the Plaintiff’s contract of employment to the effect of that envisaged in sub-paragraph (i) of the immediately preceding paragraph of these reasons and that the Second Defendant breached it also.

42 (In the foregoing consideration of the regulations, and because of findings made above, I have not found it necessary to consider the issues of instruction, training and the like. Nor, in light of the breaches I have found, do I regard it as necessary to consider whether other regulations relied on were breached. I take this view because, in light of the findings I have made, I do not regard breach of any of the other regulations pleaded as adding to any material extent to the respective responsibilities of the defendants for what occurred.)

43 I should also refer to an argument advanced to the effect that there should have been erected within the stairwell void a platform some short distance lower than the formwork floor so as to severely curtail the distance the Plaintiff could have fallen. Given that a small addition to the fencing could have in practical terms achieved the same protection to persons working near where the Plaintiff was (and, I would infer, at smaller cost), I am persuaded that there was nothing unreasonable in the omission to erect or install such a platform.

44 The actions or inaction on the part of Mr Stojanovski and Mr El Jendi both contributed to the Plaintiff’s injury. Given in the case of the first, his control of the site, his knowledge and the statutory and regulatory duties the First Defendant was under, I regard the First Defendant’s conduct as demonstrating a lack of reasonable care for the Plaintiff and therefore negligent. Given, in the case of Mr El Jendi, his organisation’s obligations as the Plaintiff’s employer, its statutory and regulatory duties and that the occasion for the closing of the gap in the fencing was the result of actions of the Second Defendant in removing or partially removing the bridge, he and his employer were also guilty of a lack of reasonable care and negligent. These matters also lead to the conclusion that, as between themselves, an appropriate apportionment of their responsibilities for the Plaintiff’s injury is 25% to the First Defendant and 75% to the Second Defendant.

45 I am also satisfied that the Plaintiff’s fall was contributed to by his own actions. On the basis of my conclusion that the planks were probably of the order of 4.2 metres long, if the void was 2.6 metres wide and a plank simply pulled to the stage where it was resting on the edge of the far side as the Plaintiff said, say to the extent of 100-150mm, there would have been about 1450-1500 mm resting on the main plywood floor on the side from which the Plaintiff was working. That 1450-1500 mm would have involved over a third of the weight of the plank and, if the plank was left in a more or less horizontal state while being pulled further, there should have been no difficulty in a grown man, exerting enough additional downward force on that 1450-1500 mm to overcome the fact that the centre of gravity was, and would be until the plank was pulled something approximately 600 mm further, over the void. The Plaintiff was not a small man and even if his size now is appreciably more than it was at the time he was injured, his weight would have been very much greater than the two-thirds or so of the plank over the void. Common sense would indicate his weight could and should have been applied near the end that was more than a metre from the void and thus I see no significant danger if the plank had been pulled onto the main floor before being lifted.

46 Obviously the figures in the immediately preceding paragraph change if the plank was not 4.2 metres long but, given its overall weight, not enough to make the method referred to impractical. The figures and concepts in that paragraph also lead me to the view that the task on which the Plaintiff was engaged did not require 2 men and that there was no negligence in the Second Defendant merely by reason of 2 men not being employed in the task of removal of the planks.

47 At one stage the Plaintiff did say that there was not room to draw the plank in this way but when regard is had to the evidence as to the areas covered by plywood, I reject this part of the Plaintiff’s evidence.

48 The method of lifting the plank the Plaintiff described - placing one part of the plank under his arm-pit, so that the arm-pit operated as a fulcrum and then lifting with is hands is also an appropriate way of lifting the far end of a plank or length of timber but only providing the forces operating (or the net of them) are not too great. Relevant factors in this connection include the plank’s or timber’s total weight, the proportions of the length either side of the fulcrum and the force the Plaintiff could exert through his hands. I do not regard the plank’s weight as itself demonstrating error in the method the Plaintiff adopted, particularly as he would seem to have (somehow) successfully removed one plank, but it is elementary physics that a change in the position of the fulcrum along the plank’s length may have made a significant change to the forces operating once the far end of the plank was removed from its support. Furthermore, given a specified length of plank one end of which was resting on or very near the far edge of the void, the further the Plaintiff stood back, or more precisely the distance his armpit was, from the edge of the void, the greater the force he would have needed to exert with his hands. Conversely, the closer the Plaintiff stood to the void, the less that force would be, albeit at the cost of increasing the risk that any overbalancing would cause him to fall into the void.

49 Once the Plaintiff was engaged in the method of lifting he described, it would have been sensible and not difficult for him to test the weight or force of the plank, before moving its far end from the wall initially supporting it and, if that weight or force was too great to be safely managed, to make changes before that support was lost. I have no doubt that the fact of the Plaintiff’s fall demonstrates that he did not exercise the care he might, and given the obvious risk of dropping the plank or himself falling, in his own interests should have done.

50 Was that want of care sufficient to constitute contributory negligence? Balancing and supporting planks or other pieces of timber was an integral part of the Plaintiff’s job. Given the variation in distances (and one may infer the length and size of planks and other timber) that occur in building sites, it is impossible to believe that all lifting jobs required the use of 2 men and thus decisions when to lift on one’s own and when to seek assistance must also have been an elementary part of the Plaintiff’s work. It must have been obvious that something of the order of two-thirds of the length and thus weight of the plank would be above the void during the course of it being moved and that that weight – or more precisely, although I would not expect the Plaintiff to have thought in these terms, the position of the force being exerted by that weight - was some distance away from the Plaintiff. The gap in the fencing was obvious and must also have been obvious to the Plaintiff that, if he fell through that gap, he was liable to be injured.

51 The evidence is clear that there were co-employees of the Plaintiff nearby, engaged in other formwork activities. The nature of the work being done by the Plaintiff and these co-employees provides no basis for concluding that assistance was not available to the Plaintiff if he had sought it, even if that meant waiting some time and doing other work meanwhile. In these circumstances I regard the Plaintiff’s actions as demonstrating or constituting contributory negligence.

52 That said, I regard the absence of fencing in the gap through which the Plaintiff fell as by far the matter of greatest significance. The purpose of fencing is to guard against, or at least avoid the potentially awful consequences that can flow from lapses of care that are recognised as not infrequently occurring during the carrying out of manual work such as that in which the Plaintiff was engaged. Closing up the gap would have been simple and in this case, there is simply nothing to indicate any reason why, from at least the time the railings on the bridge were dismantled, fencing of the gaps that had led onto the bridge was not done. It is clear that the presence of such fencing would not have significantly impeded the planks being pulled underneath such a fence and it is likely that the presence of such a fence, properly constructed, would have prevented the Plaintiff’s fall. In these circumstances, I regard an appropriate apportionment of the responsibility for the injury that the Plaintiff suffered as 10% to the Plaintiff and 90% to the Defendants. I have already indicated what, as between the Defendants, are their respective responsibilities.

53 I should add that in arriving at the above conclusion I have not ignored the decision in Urvalek v Burning Log Fireplace Specialists Pty Limited (Unreported, NSCCA, 14 May 1987) to which I was referred. In that case the Court of Appeal set aside a finding of contributory negligence against a Plaintiff who injured his back while lifting an object weighing some 30 to 40 kilograms. There were 2 bases for that finding, only one of which is relevant here, viz that the Plaintiff should have appreciated the danger in seeking to lift the object on his own. The Court of Appeal said:-

“Turning to the two reasons given by the trial judge for his finding of contributory negligence, the first, although not logically excluded by the basis on which his Honour found the respondent negligent, nevertheless has an element of inconsistency with it. The finding was that the respondent should have warned the appellant about the danger involved in seeking to lift the extension arm by himself. It is unconvincing to find that the appellant was himself negligent in doing what the respondent had negligently failed to warn him not to do. The fact that he tried to lift the extension arm by himself is some evidence that he thought he was able to do so; there was evidence that another worker, apparently a bigger man than the appellant, was well able to lift the extension arm unaided .

There was no evidence that the appellant was in fact aware of the danger. Clearly he was attempting to perform his employment duties as he understood them when injured. The trial judge apparently inferred and this court was asked also to infer from its own general knowledge that the appellant ought to have been aware of the danger himself. The onus in this respect was on the respondent. The facts of the matter were no more complex than the simple ones we have narrated. On those facts, bearing in mind the unchallenged finding of negligence against the respondent in not warning the appellant of the danger or instructing him against it, we think that the respondent did not discharge the onus of proof upon it in respect of the first ingredient of his Honour’s reasons.

Similarly we do not think that, on the material before his Honour, it was shown that the appellant should have appreciated that the way in which he picked up the extension arm exposed him to greater risk than if he picked it up with his knees bent and his back straight.”

54 Given their source, these observations are entitled to respect. However, apart from reference to the onus, they are not propositions of law which bind me. As a tribunal of fact and entitled to apply my own experience of the world and common sense, I find them completely unpersuasive. Negligence of the employer in failing to warn the Plaintiff in that case seems to me of no, or at most of marginal, relevance in deciding whether the Plaintiff was himself negligent. Nor is it apparent what the significance was that the Court saw in the fact that the Plaintiff thought he was able to effect the lift. And although the Court seemed to find significant that there was no evidence that the Plaintiff in that case was aware of the danger, my experience from numerous sources - parents, friends, school, life outside the courtroom and in cases such as this - is such that, while persons may momentarily forget, everyone knows that there is the potential for injury to the lifter’s back if items weighing 30 to 40 kilograms are lifted, a potential much increased if the lift is not done with knees bent and back straight. The remarks quoted seem to me to invite the deprecation expressed by Viscount Simonds in Smith v Austin Lifts [1959] 1 WLR 100 at 105.

55 Lest it be thought the matter has been forgotten, I should also add that in arriving at the conclusions I have as to the parties respective responsibilities for the Plaintiff’s injuries, I have taken into account the relevant provisions of the Civil Liability Act.

Damages

56 I turn to the question of damages. The Plaintiff gave evidence, that prior to the accident, the subject of these proceedings, he had suffered no serious illness, no back injury and was not aware of any problems with his back, right leg or ankle, stomach, or throat. There was no contrary evidence and I accept what the Plaintiff said in these respects.

57 There is no doubt that in his fall the Plaintiff suffered a very severe injury to and adjacent to his ankle which required open reduction, internal fixation and bone grafting. Healing after operative treatment was prolonged and in February 2004 he underwent an arthroscopy and debridement. He has been left with arthritis and substantial reduction in mobility in the joint and is likely to need further surgery.

58 There is a deal of medical evidence I accept that the Plaintiff will require arthrodesis of the ankle joint. That is likely in due course to result in failure of at least some other joints in the foot or leg. These events can be postponed, although not avoided, by arthroplasty or a further arthroscopy and debridement. The Plaintiff has given evidence that he will have further surgery if it is recommended and the advantages of one or other of these further procedures, even though of only temporary assistance, seem to me to make it probable that at least one of them will occur.

59 In a report of November 2004 Dr Mahoney estimated the cost of an arthrodesis at $10,850.00. In a report of October 2004 Dr Ellis estimated the cost at approximately $10,000.00. It seems to me appropriate to allow the average of these figures increased by a 4% allowance for inflation over the 3½ years since these estimates. Rounding, the allowance on account of the arthrodesis should be $12,000.00.

60 A report from Dr Kahil of November 2006 indicated that the fees of a surgeon and assistant would, for an arthroscopy, be less than those for an arthrodesis but for an arthroplasty, would be more. Dr Kahil was unable to express an opinion as to other costs associated with either of these operations but when regard is had to the various items of charge or fees of which Dr Kahil speaks I draw the inference that an arthroplasty is likely to be more expensive than an arthrodesis and an arthroscopy and debridement less expensive.

61 It is not possible for me to predict which of these further types of operations is more likely and I am not persuaded that the Plaintiff should have, by way of evidence, been able to do so at the time of hearing. There is a chance of either. In these circumstances and having regard to what I said in the immediately preceding paragraph about costs, I think it fair to allow a further sum of $12,000.00 on account of an arthroplasty or arthroscopy and debridement.

62 The Plaintiff also suffered injury to his back in the fall. The injury would seem to have been principally, though not exclusively, musculo-ligamentus in nature aggravating degenerative changes in the Plaintiff’s lumbar spine which I accept were unsymptomatic prior to his fall. The radiological evidence and summaries of it in the medical reports tendered are not all consistent. In this connection, the following are examples: In a report from MayneHealth of 12 May 2003 it is said:-

“At L4/L5 there is evidence to suggest a left lateral disc bulge with compression of the emerging nerve root, best defined in image 37.

At L5/S1 there is a partially calcified disc bulge with moderate bilateral nerve root compression.”

63 In a report from the Isra Medical Centre of 23 May 2004 it is said:-

“At the L4/5 level, there is a broad based posterior central disc bulge which is not causing any canal stenosis or foraminal narrowing. No degenerative changes noted in the facet joints.

At the L5/S1 level, there is broad based posterior central disc bulge, slightly more prominent on the left side. A hypodense lesion is seen within the left side of the bulge, consistent with calcified disc. This appears to be impinging upon the left S1 nerve root and also the left lateral recess. There is mild narrowing of the neuro exist foramania bilaterally but no impingement on the L5 nerve roots is seen.”

64 In a further report from the Isra Medical Centre dated 10 October 2005 it is said:-

Lumbo Sacral Spine

CT Lumbar Spine

There is a chronic central and left posterolateral herniation at L5/S1 with the herniated disc having a calcific component indicating its chronic nature. The disc compresses the thecal sac as well as the adjacent left nerve roots.

There is a mild annular bulge of the L4/L5 disc without herniation. The L3/L4 disc appears normal.

…

Opinion

65 Dr Korber in a report of 21 June 2005 having reviewed a number of the radiological imaging opined:-

“In relation to the lumbar spine, the patient has several abnormalities. The L3/4 level is essentially normal. At the L4/5 level in the initial CT there is left sided postero lateral disc herniation which on the MRI is shown to be associated with a circumferential annular tear. By the time the second CT is performed, this disc herniation is indeed smaller. This would be in keeping with the left L4/5 disc herniation being recent at the time of the first CT (disc material can become smaller with loss of water or desiccation). According to the medical file, the patient has left sided leg pain, in keeping with the left sided disc herniation.

At the L5/S1 level there is calcified disc protrusion with the calcification predominantly on the left side. This has not altered from the 12.05.03 examination. It is likely that this lesion is old and preceded the injury. The retrolisthesis at the L5/S1 level is a common accompaniment of established disc degeneration.”

66 Reflecting on the evidence as to damage to the spine, it does seem clear that whether or not the Plaintiff suffered permanent damage at the L5/S1 level in his fall – and I am not satisfied he did - he did at that time suffer an injury at the L4/L5 level.

67 There was also disagreement as to the consequences of any back injury. The Plaintiff gave evidence of pain in the lower back and that this originally travelled down his left leg but which has now moved to the right leg. According to him it is always there. Doctors Ellis and Kahil and Professor Jones concluded that there was radiculopathy in consequence of the back injury whereas doctors Stephenson, Hope, Talley and Wilding (report of 24 August 2005, p 8) thought there was either none or none of significance. Dr Schutz said that there were none verifiable and any symptoms were intermittent. The evidence in this regard is extensively summarised in a document handed up by Mr Wheelahan QC, counsel for the Plaintiff, and I do not regard it as necessary that I set the evidence out or repeat that summary. Despite my reservations concerning the Plaintiff, and partly influenced by the nature of the back injury and that some of his complaints to the doctors are sufficiently accurate descriptions of symptoms in this regard, I think the probabilities are that he has suffered some radiculopathy in consequence of the back injury. However, the variability apparent in the medical reports, no doubt reflecting the histories given and results on examination, does suggest that the symptoms in the Plaintiff’s back and the consequential symptoms in his legs are, at most, intermittent.

68 The clear consensus in the reports is that no operation in consequence of injury to the Plaintiff’s back is called for. Before I leave this topic I should refer to Dr Ellis’ reports and his conclusion that the Plaintiff’s back will deteriorate further. When Dr Ellis’ reports are compared against those of other doctors, I cannot avoid the impression that he is so favourably disposed towards the Plaintiff’s claim as to cast doubt on the reliability of his opinions. I am not disposed to accept his evidence that the Plaintiff needs to wear a lumbo-sacral supporting belt, that the back injury is disabling, that the Plaintiff will require continuing medical and physiotherapy treatment or, to any degree significant so far as damages are concerned, that the Plaintiff’s back will deteriorate further. As to these matters, I will draw my conclusions based on the other evidence.

69 There is also some evidence that the Plaintiff hurt his neck in the fall. Dr Mahoney records that the Plaintiff “gave a history of sustaining an injury to his neck and appears to have made a good recovery.” Dr Alsayed recorded that the Plaintiff had “developed symptoms referable to cervical strain with little neck pain.” However, Dr Ellis in his report of 21 November 2003 records that the Plaintiff’s “neck, shoulders and arms are not affected” and the hospital notes of 28 January 2003 indicate in their statement that the Plaintiff’s lumbar spine and sacrum were x-rayed that the Plaintiff must have made no significant complaint then concerning his neck.

70 When giving evidence the Plaintiff said he injured his ankle and the lowest part of his back but did not feel pain in any other place. Accordingly the conclusion at which I have arrived is that I am not satisfied the Plaintiff suffered any injury to his neck in the accident and certainly none of any significance in the present context. I do not ignore the fact that among the doctors’ reports are more recent references to tightness or discomfort in the Plaintiff’s neck. There seems to be no conclusion as to the likely cause of this and, given the limited evidence about these matters, I am not satisfied that the matters complained of exist or, if they do, that they are causally related to the Plaintiff’s accident.

71 The Plaintiff’s other major complaint of “injury” related to his stomach. During 2003 he developed discomfort in his stomach, chest and throat and in an endoscopy performed on 15 September 2003 there were found two fundal ulcers with signs of recent hemophage one duodenal ulcer and ulcerative oesophagitis with some gastritis. Both parties tendered Dr Gillies report of 21 July 2006 and I accept her conclusions that the persistence of ulcerative oesophagitis and gastritis from which the Plaintiff suffered was in part due to the Plaintiff’s continued use of medication such as Voltaren, the taking of which was in consequence of the accident in January 2003. In light of what she and other doctors say as to the Plaintiff’s gastrointestinal complaints, I am not satisfied that any of the other complaints are attributable to the Plaintiff’s accident.

72 I accept also Dr Gillies’ opinion that the symptoms have and should continue to abate if the Plaintiff does not gain any more weight and that in part the symptoms are due to a significant increase in the Plaintiff’s weight that has occurred to date. In light of the medical advice available to him, any further increase in weight by the Plaintiff would be unreasonable and its consequences should not be laid at the Defendants’ doors. Indeed, for reasons that will become apparent, I am not persuaded that the same should not be said in relation to most of the Plaintiff’s weight gain since the accident.

73 There was also evidence indicating that the Plaintiff had experienced some psychiatric or psychological problems since the accident. These included irritability, particularly with his children, anxiety, depression, insomnia and lack of libido. He was referred for psychological assessment in about June 2003. A report of 24 May 2004 of Dr Younan assessed the Plaintiff as suffering from adjustment disorder with mixed anxiety and depressed mood. Dr Younan assessed the causes as including physical pain, physical incapacity, worry about his future work prospects and realisation of the loss of his former earning capacity. Then and subsequently Dr Younan prescribed a number of types of medication.

74 The Plaintiff was seen by another psychiatrist Dr Lewin in July 2006. The Plaintiff informed him that his symptoms had settled particularly in the preceding 12 months and Dr Lewin opined that at the time of his examination in July 2006, the Plaintiff was not suffering from any diagnosed psychological or psychiatric condition. Dr Lewin advised that the Plaintiff should continue to take anti-depressant medication for a further six months after which, under supervision of the Plaintiff’s general practitioner, the medication could probably gradually be withdrawn. Dr Lewin was of the view that the Plaintiff had no psychiatric condition impairing his capacity for work or ability to participate in social and domestic activities. Dr Lewin thought it unlikely that any further psychological or psychiatric condition resulting from the January accident would arise.

75 There was no significant challenge to or disagreement with the psychiatric and psychological evidence that I have summarised above and, subject to remarks hereafter concerning the Plaintiff’s sexual inclinations and activities, I accept it.

Consequences

76 I turn to the impact on him of the injuries the Plaintiff suffered.

77 That the ankle was for at least some time productive of a deal of pain is supported by, inter alia, hospital notes, the nature of the damage done to it and many observations in the medical reports, observations not simply recording the Plaintiff’s accounts of his symptoms. The nature of the ankle injury is such that it is certain that it will be productive of substantial pain in the future. The nature of the back injury is also such as to be calculated to be productive of pain and other undesirable physical symptoms.

78 However, otherwise the extent of these sensations and their impact on the Plaintiff’s capacities in many respects is very much a matter in issue. In evidence the Plaintiff said that when discharged from hospital he was on crutches. “It was all sickness. I felt tired. I felt sick, a lot of pain.” He said he could not look after himself and his wife helped him with showering, getting dressed and everything else: His wife’s help continues although the help is now less.

79 The Plaintiff said that prior to the accident he would vacuum or clean the house almost every day for 20 or 30 minutes, he cooked once a week and when his wife cooked he cleaned the kitchen and did the washing up at least 4 days a week. Cooking took an hour and vacuuming and cleaning up took half an hour each. At the time of his accident the family lived in a unit. Since then they have moved to a house and, while he would have mown the grass and maintained the garden if he had not been injured he has not been able to do so. In consequence he employs someone at a cost of $50 every 3 or 4 months to mow the lawn, do the edges and remove the rubbish. Before the accident he washed his car once a week but cannot do that now. It is done by his sons and wife. But for the accident he would also have been able to paint the house and clean out the gutters and other handyman jobs.

80 According to the Plaintiff, since the accident he has not cooked, prepared meals, cleaned the kitchen, washed the dishes, done any vacuuming or tidying up, “because I’m sick. I’m tired.”. He said, “I wouldn’t be able to clean or do anything”. He denied being able to stand at the sink and wash or wipe a few plates, saying the pain prevented him. He also said that it was the bending involved that stops him vacuuming.

81 The Plaintiff said that the condition of his right leg and ankle had not improved since the accident, indeed it has got worse; it did not improve after the arthroscopy; he feels tired when he walks on the ankle, used a Canadian crutch originally when walking but now a stick some of the time. His leg is painful all the time and numb from the top to the bottom.

82 The Plaintiff said that at the time of discharge from hospital pain in his back travelled down his left leg but now travels down his right. This occurs when he stands and indeed is all the time. He still has problems with his back and it stops him from doing things. Asked what, he said, “Any type of movement I can’t move, I have to rest all the time. Even the socks, the wife has to help me put them on (because) I can’t lift my leg up.”. This happens every time he needs socks. Later, when he was being challenged he restricted this problem to the last 2 months and when he had pain or numbness. However, in October 2004 he seems to have told Dr Ellis that his low back pain is “aggravated by bending, lifting, prolonged standing, sitting and walking”.

83 He maintains that, whether due to his back or his ankle, the pain in his leg is so severe at night that he can’t sleep. As soon as he lies down he feels the pain in his foot and this increases and increases. Most of his day is spent sleeping because he doesn’t sleep at night. He no longer plays with his children. He goes shopping with his wife once a week, taking a number of tablets, “Neurontin” beforehand to enable him to do so and when out he tells his wife to do the shopping while he sits on a seat until the time comes to pay.

84 Although at one stage saying that the pain comes mostly at night, the Plaintiff said that the pain is so bad that he will not be able to do any work. Pain is always there and he could not work in a restaurant because that needs movement and he can’t (move). He said that he is unable to do anything or lift anything.

85 In cross-examination, he agreed with the proposition that he was fit for a wide variety of full time work that was not heavy or arduous but this evidence is so contrary to the tenor of the balance that I am not persuaded that I should rely on it.

86 Other consequences of the accident that may be mentioned are that, according to the Plaintiff, for the first few months the Plaintiff did not go anywhere because he was on crutches. He used a walking stick on first entering the witness box - he said because he wanted the Court to know he sometimes used it. After sitting in the witness box for most of the first day of the trial, the Plaintiff stood up only shortly before 4pm. When he walked down steps on leaving the witness box he adopted the procedure of leading with his right leg for each step and placing both feet on each step.

87 This was consistent with his evidence in chief. Asked how he coped with steps and stairs he said, “There is three steps in front of the house and there is a handrail; I hold on to the rail and walk up.” In answer to further questions he agreed that his manner of going up involved putting his right foot on a step and putting his other foot on the (same) step. Asked again about the topic in cross-examination he agreed that he had said that he led with his right leg and that he had said that he moved the second foot to the same step the first foot was on. In responding to this second topic he however added “Depending on how much pain there is in the leg”. On the following day he gave similar evidence. He also then said that when going down steps he put both feet on the same step and that in this exercise he can’t do things the way most healthy people do.

88 The Plaintiff also said that the accident caused sexual relations with his wife to change from good to very bad. Now he has to take medication to get an erection. He currently visits friends sometimes 4 to 5 times a week, sometimes with his wife and takes his children to visit their friends and on occasional picnics. He attends a mosque, kneeling 4 times in prayer.

89 The Plaintiff’s wife corroborated a deal of the Plaintiff’s evidence as to the extent of his activities. She said that before the accident the Plaintiff was active in household chores although since arriving in Australia she has always done most of the housework. After returning home from hospital he spent something over 6 months lying down and during this period she helped him with his showering, shaving, cutting his toe nails, bringing him food, do (by which I understand, make) the bed and giving him his water and medication. These activities occupied her for 3½ to 4 hours a day. Thereafter the Plaintiff commenced to do things for himself but he still doesn’t do the bed, pick up his clothes or help her with anything. If his pain is too bad she heats his meal. She indicated he had difficulties with the sexual side of their marriage.

90 She said that his level of pain increases with the cold and at night, that he doesn’t sleep at night and since the accident does not play with his children: He becomes very stressed and snaps at the children if he fails to take tablets: He does not drive much. Under cross-examination, she however, said that the family bought a second car after the Plaintiff improved and after, in 2005, she became able to drive.

91 The Defendant sought to meet a deal of this evidence by showing some video recording of the Plaintiff. The recordings were only short but showed the Plaintiff on 1 and 2 June 2006 walking down the front steps of his house. On neither occasion did the Plaintiff use a handrail or stick or show any difficulty or hesitation. On one occasion he walked down in a perfectly normal fashion. On the other he almost bounced down the stairs. The Plaintiff was also recorded stepping down into a gutter using his right leg first and without apparent difficulty.

92 The video recordings showed the Plaintiff walking for some minutes. Although for most of the time he did seem to have a slight limp, at times there was no indication of a limp, and at one stage the limp seemed to be very marginal. For some of the time he was shown sitting down and during these times bent from the waist putting on or otherwise attending to one or other of his shoes. He was also shown on a few occasions leaning into a car, either frontwards or partly sideways. On at least one of these occasions the Plaintiff seemed to be leaning in for an extended period. On none of these occasions when the Plaintiff was bending was there any indication of restriction of movement. Indeed, the apparent freedom exhibited struck me as surprising if he had any concern for his back.

93 (It may be convenient to mention here that Professor Jones noted that the Plaintiff lent to the floor at the conclusion of the interview to retrieve a bag that would have weighed about 5 kg. Dr Silver noted that sitting on a couch the Plaintiff had no difficulty in replacing his shoes and socks.)

94 In the recording the Plaintiff was also shown getting into and out of a car. On one of these occasions there seemed to be significant restriction and some obvious limp afterwards. Although the recording was not continuous, the Plaintiff was shown standing talking for the best part of 20 minutes interrupted by minor periods of movement or walking or interaction with a vehicle. During no part of the video recordings was the Plaintiff using or even carrying a walking stick.

95 The onus of showing the extent of his incapacity lies on the Plaintiff. What is depicted in the video recording shows an entirely different picture from that depicted by the Plaintiff’s evidence in the witness box, a deal of which cannot have been other than deliberate lies. Before so concluding I have reflected on the possibility that some of the inconsistency might be due to the Plaintiff having taken tablets prior to the events recorded but if they enabled the freedom of movement I saw, then they would equally enable the Plaintiff to do far more at home than he asserts he can do. And there would still remain unexplained a number of the inconsistencies between what was depicted and his evidence. I have also reflected on the possibility that some of the inconsistency might be due to the fact that the Plaintiff’s command of English is not perfect. I am satisfied that that fact also is not an explanation. It is clear that the Plaintiff’s evidence manifested deliberate exaggeration of his disabilities. In consequence, I am greatly hampered in making any reliable assessment of his pain, disability and capacities in a number of respects including his capacity to work.

96 These reservations about the accuracy of the Plaintiff’s complaints have a substantial impact also on the extent to which I am disposed to accept the reports of symptoms and, in consequence, some of the expert opinions expressed in the medical reports, at least most of which proceed on an assumption as to the accuracy of the Plaintiff’s account of symptoms, an assumption that I am satisfied is unjustified.

97 The clear demonstration provided by the video recording means that I do not need to carry out a detailed analysis of the accounts the Plaintiff gave to the authors of the medical reports. However, it is also clear that there are considerable discrepancies within those reports of the Plaintiff’s accounts of his symptom and also of the Plaintiff’s actions observed by the doctors. What is depicted on the video recording is also inconsistent with a deal that doctors have recorded as to what the Plaintiff told them.

98 My conclusions as to the Plaintiff’s injuries and disabilities are as follows: As I have said, his ankle injury was very severe and he has been left with arthritis and substantial reduction in mobility in the joint and is likely to need further surgery. That injury is productive of pain that at times has been and is likely to be severe. He suffered an injury to his back at the L4/L5 level and in consequence suffers from pain in the lower back and some radiculopathy including pain in his legs. However, those consequences are intermittent and I am not persuaded that the pain or discomfort is, has been, or is likely to be severe on more than isolated occasions.

99 These injuries mean that the Plaintiff is unsuited for the work of a form-worker or for other hard manual work or work involving frequent or heavy lifting, bending or twisting or where the Plaintiff cannot ease pressure on his back and leg by periodic sitting (or standing). I am not persuaded that they preclude the Plaintiff engaging in other full time employment, ordinary personal chores or household chores except the heaviest of them, for example possibly the carriage of some ladders, cleaning out gutters where twisting is required, and pulling out garden trees or substantial shrubs.

100 There is no suggestion that the Plaintiff’s gastric problems have or have had any impact on his capacity for work. While dealing again with this topic it is convenient to observe that, in light of the video recording and my assessment of the Plaintiff’s credibility in consequence, I am not persuaded that the Plaintiff has not had some capacity to exercise since the accident and to limit his weight gain, an event that is, on the medical evidence, a significant contributor to his gastric symptoms.

101 I indicated that I would return to the topic of the Plaintiff’s sexual inclinations and activities since the accident. I have no difficulty in accepting that a consequence of the depression, pain and other necessarily unsettling impact of the accident the Plaintiff suffered a loss of libido. His resort to Viagra suggests that there were problems with erections. However, his youngest child was born in February 2004 and, although as late as July 2006 the Plaintiff complained to Dr Lewin of continuing problems in this area, my views as to his credibility again mean that I simply do not know how bad his difficulties have been. I can do no more than make some allowance.

102 Of course, there would have been a time immediately following the accident when the Plaintiff’s symptoms were substantially worse than they are now or likely to be in the future (except possibly following operations). How long that time was and the rate at which improvement occurred were not the subject of credible evidence but there can be no doubt that recognition of these matters must be made. The Plaintiff’s arthroscopy occurred in February 2004 and the last evidence of treatment or attention to his ankle or back for other than medico-legal purposes seems to be in Dr Lunz’s report of July 2004 (although the doctor does suggest another consultation 6 months later after the Plaintiff has had an X- ray), Dr Mahoney’s report to Dr Alsayed of 20 August 2004 and Dr Alsayed’s referral of the Plaintiff for pain management in July 2007. Given that I am not persuaded that the Plaintiff’s pain has been as bad as he claims, I place no weight on the latter but there is much to be said for the view that at least so far as his ankle and back are concerned, the Plaintiff was effectively disabled until the second anniversary of his accident, (approximately) the end of January 2005, but except to the limited extent I have indicated, not thereafter.

103 The reports of Dr Stephenson of 7 February 2005, and Dr Talley of 22 March 2005 argue against any significant, certainly incapacitating, problem with the Plaintiff’s back at the time of those reports, as do Dr Wilding’s remarks on page 8 of his report of 24 August 2005 that, “There are no significant clinical findings and there is no muscle guarding and there is no neurological impairment”. There is no evidence to suggest that the – as I think partially – incapacitating consequences of the Plaintiff’s ankle injury have reduced since early or mid-2005. Apart from those doctors who regard the Plaintiff as permanently unfit for work – a view I reject - there is no persuasive evidence that his gastrointestinal problems prevented him working after mid-2005 and Dr Talley’s report is that such problems did not.

104 Dr Lewin’s report of 13 July 2006 records that the Plaintiff was still receiving treatment from Dr Younan until six months previously although the extent of the Plaintiff’s disability at that time is not apparent. As has been said, Dr Lewin was of the view that at the time of his report, the Plaintiff had no psychiatric condition impairing his capacity for work or ability to participate in social and domestic activities.

105 Despite these matters and so far as I am aware no evidence that there was any relevant change in the Plaintiff’s capacity for work between early or mid-2005 and mid-2006, counsel for both Defendants conceded that the Plaintiff might be assessed as having a total incapacity to earn up to mid-2006 but only partial incapacity thereafter – see T247, 256. Naturally counsel for the Plaintiff, whose submission was that I should regard the Plaintiff as permanently and totally incapacitated, saw no occasion to argue against, or even support, the concession.

106 In these circumstances, and notwithstanding my view that the concession was unduly favourable to the Plaintiff and that, once the opinions as to permanent total incapacity are rejected, the evidence does not justify a conclusion that he was totally incapacitated for work after the end of January 2005, I believe I should act on the basis of the concessions. Accordingly, in the assessment of damages the Plaintiff should be regarded as totally incapacitated up until the end of June 2006.

107 It would be appropriate to also allow for some period of future disablement for the further operations I regard as likely – say 2 periods of 6 months each and for some occasional, but individually short, periods of incapacity due to flare-up of pain. One can do no more than guess as to what is appropriate in this regard and I would allow a further 6 months. It would be appropriate to assume one of these 3 periods occurs in mid-2008 and the other 2 at 5 yearly intervals thereafter.

Plaintiff’s Pre-accident History and Earning Capacity

108 The Plaintiff said he was born on 5 December 1965. He attended primary and secondary school in Iraq until 1983 and qualified there as an electrician. However, he never worked in that capacity, working instead with his father and brother in a shop and then for a number of years in his own business importing fake jewellery from Thailand and selling it. Then he established a restaurant and was involved in that occupation for about 10 years. He told Professor Jones that both businesses were successful. Due, he said, to some conflict with the regime in Iraq the Plaintiff left, arriving in Australia in December 2000.

109 Once he was allowed by the immigration authorities to do so, he commenced work on a farm and then picking fruit in Western Australia. After six months or so he came to Sydney where, within four or five days he secured employment as a cleaner. After some three months in that occupation, he worked as a kitchen hand for about a week and then obtained a formwork job with “Zahara and Towal”. Following cessation of employment with that organisation he worked as a painter for about a week and then commenced working with the Second Defendant in around November 2002. This history of employment indicates that, at least up until the time of his injury, the Plaintiff was a person willing and disposed to employ his earning capacity either to the full or at least close to that extent.

110 There were a number of pieces of evidence relevant to the determination of that earning capacity. The Plaintiff gave evidence that while employed by the Second Defendant he earned $127 a day clear, sometimes being paid in cash and sometimes by cheque. Earlier he had said that he was working 6 days a week and being paid $750 clear.

111 There was an issue as to whether the Plaintiff was having, or at risk of, some difficulty with the Government concerning his pay. He denied this and I think the preponderance of the evidence is that he was not. However I do accept evidence from Mr El Jendi that the Plaintiff used to take one day a fortnight off. Mr El Jendi also said that the Plaintiff otherwise worked 6 days a week at a rate of “a hundred 25, 27” a day. Later he agreed with a leading question that it was $125 a day. He denied that the rate had increased between 2003 and 2007, a denial that was not challenged. Nor was any explanation for the absence of any increase sought.

112 Evidence from a co-worker (who agreed that the Plaintiff was a good worker but that he was better) was that the national standard for form-workers – my impression is those who were qualified - was $23.80 an hour plus site, tool and travelling allowances. Exhibit K indicates the earnings of sub-contract form-workers are higher.

113 No group certificates or other taxation records were tendered. Nevertheless, in totality, I am satisfied by this evidence that the Plaintiff’s earning capacity at the time of the accident and, but for his accident, subsequently, should be assessed at $125 net after tax per day. I find that, but for the accident the Plaintiff would have employed this earning capacity 11 days per fortnight or, on average, 5½ days a week. However, it seems to me probable that, as the Plaintiff aged and financial demands were likely to become less, this would have reduced to 5 days a week at some stage in the future.

Post Accident Earning capacity

114 The Plaintiff did, as I have said, carry on a business in Iraq of importing goods from Thailand. There was no evidence as to the practicability of trying to do the same in Australia although it is proper to take judicial notice of the fact that conditions here are significantly different from those that prevailed in the Plaintiff’s birthplace when he was engaged in importing there. It is also to be remembered that he gave up that business in favour of a restaurant. Clearly many goods here are imported from China but what prospects there would be of the Plaintiff successfully engaging in that task is a matter about which there is no evidence.

115 Taxi driving and running a convenience store were possibilities that the Plaintiff raised with Professor Jones. Professor Jones expressed the view that taxi driving was a possible occupation the Plaintiff could pursue, a view echoed in a Vocational Capacity Centre Report of 16 October 2006. Particularly given my lack of persuasion that the Plaintiff is substantially disabled except by his damaged ankle, and that the evidence just referred to is not contradicted, it is hard to avoid the conclusion that taxi driving is a viable possibility. Nevertheless, I do have some reservations about the impact of full time driving on the Plaintiff’s ankle.

116 Professor Jones saw a need to stand for long periods as arguing against the Plaintiff operating a convenience store but common experience to which I refer below makes me disinclined to regard this as a valid objection. Another concern about this possibility was raised in a report of the Vocational Capacity Centre dated 9 October 2006, viz. a view that the Plaintiff was then exhibiting a passive attitude to the achievement of his goals. This appears to have been based on a conclusion that the Plaintiff had failed to involve himself to an effective degree in past psychological intervention. He was assessed as showing “apparently excessive concern with disability” and while “willing to see a need for change of direction, he appears to be pessimistic about his chances of achieving it”. It was suggested that if the Plaintiff were to pursue the goal of operating a convenience store, he should work first as an employee and undertake a course in small business management.

117 A difficulty with these last mentioned factors arise because of my assessment of the Plaintiff. He has clearly sought to bolster the damages he receives in this case by dishonest means. When he had to support himself and his family prior to his accident he did so with a degree of apparent enthusiasm. I am not persuaded that when this case is over, he will not do so again.

118 Nor is there any evidence as to the practicability of the Plaintiff setting up or running a restaurant, coffee shop or convenience store. I would accept that his disabilities would impose some limitations so far as the running of such businesses is concerned, particularly where more rather than less activity is required and at least in the case of convenience store, in the carrying of heavy boxes, and that he would probably need to pay for more staff than if he had suffered no injuries. In this connection, although the Plaintiff appears from Dr Schutz’ report to be capable of lifting 15 to 20 kg, a view supported by other medical evidence, e.g. Dr Hope, I am disposed to think that constant repetition of this activity might not be desirable. On the other hand one cannot but be conscious that some proprietors of such establishments spend a substantial amount of time not doing more than very light physical work and can sit from time to time. There was no evidence as to the costs of setting up such an establishment or of their profitability but the proliferation of them certainly suggests that many must be profitable. Nor was there evidence whether it was possible to run such a store without being the owner or having to incur the costs of setting it up.

119 In this connection it is also appropriate to mention that I formed the view during the Plaintiff’s evidence that he understood something over 85-90% of the English language used. He was well spoken without much accent. He gave evidence that he spoke English reasonably well and believed he was able to converse in English in shops, in restaurants and in everyday life. He was attending English classes and at one stage said that he believed his English was improving. Later he said that it was getting worse and later again denied that he had said this. It is sufficient for me to say that I find in accordance with the view that I have expressed that the Plaintiff would be well able to converse adequately in the sort of businesses to which I have referred.

120 To the author of the Vocational Capacity Centre reports, the Plaintiff indicated an interest in acquiring a small mixed business (although, as I have said, the author expressed some reservations about the Plaintiff’s motivation). In the second of the reports from that person it was said that appropriate vocational choices for the Plaintiff included those of sales assistant, taxi and fork-lift driving, and, with training, retail or shop or customer service manager. In my view the Plaintiff’s ankle condition makes him unsuitable for a role as sales assistant unless he has more opportunity to sit down than is usually afforded. I am not persuaded that most fork-lift drivers do not have to do a deal of manual moving of items also. Clearly if the Plaintiff were to run his own business he would need to acquire knowledge of where to order products from but, given his employment experience in Iraq, I am not persuaded that he would need any other training to operate a retail outlet. His history of injury and the fact he does suffer from some difficulty with English does, in my view, limit his attractiveness as a manager of someone else’s business, although probably less so in the case of a business in the suburbs where there are large numbers of persons from the middle east.

121 I do not regard it as necessary to record what all the medical reports say in this connection but it is appropriate to mention that Dr Schutz’ specification of the employment for which the Plaintiff is no longer suitable was limited to manual labouring although in identifying the Plaintiff’s pre-injury work for which he thought the Plaintiff still capable Dr Schutz limited his response by saying that the Plaintiff might be able to do a light cleaning job wearing a firm ankle supporting boot and there was a possibility he could do light factory work of a semi-sedentary nature. (my emphasis). Dr Stephenson’s assessment of the Plaintiff’s capacity was not dissimilar. Mr Kahil’s only positive suggestion in this area was, with retraining, office work with a back support.

122 Given the Plaintiff’s history and disability with language, I do not regard the latter as a realistic possibility. I also think that his back makes cleaning, which typically involves as deal of bending and back use with a vacuum cleaner not sensible. However, I am not persuaded that the Plaintiff could not work at least 25 hours per week driving a taxi. I am also not persuaded that the Plaintiff could not operate a convenience store with some assistance to carry out the heavier lifting tasks. A fair assessment of this assistance – and I am not persuaded more is needed – is the labour of one Food and Drink Products sales assistant for half a working week. Figures for the wages of both taxi drivers and such sales assistants are contained in the 16 October 2006 Vocational Capacity Centre report and can be adjusted for the limited periods I have in mind.

123 If I have to choose as to which of these occupations the Plaintiff is most likely to pursue, I would select the operation of a convenience store. It is most like what he has done in the past. However, a difficulty in calculating damages arises because there is no evidence what a proprietor of such a store is able to earn or how much of any such earnings are due to labour as distinct from the capital employed. No doubt there will also be significant differences from store to store and location is likely to be relevant.

124 I have previously found that the Plaintiff’s earning capacity at the time of the accident and, but for his accident, subsequently, should be assessed at $125 net after tax per day, that, but for the accident the Plaintiff would have employed this earning capacity 11 days per fortnight or, on average, 5½ days a week for some time but that this would have reduced to 5 days a week at some stage in the future. An appropriate date to choose for that reduction is the end of 2015, soon after the Plaintiff turns 50.

125 Calculation done on the basis of these findings indicates that the Plaintiff’s weekly loss at the moment, calculated on the basis that he has retained a capacity to earn as a taxi driver for 25 hours per week is $383.13.

126 Calculation done on the basis that the Plaintiff’s incapacity can be overcome by employing a half-time shop assistant and on the assumption that a convenience store operator’s income is the same as that of a form-worker, indicates a current weekly loss of half of $502, i.e. $251.

127 Given the degree of approximation there must be in this area, it seems to me that the Plaintiff’s lost earning capacity should be valued at the average of these figures until the end of 2015 and thereafter on a similar basis subject to the reduction of working hours from 5.5 days to 5 days. It is reasonable to proceed on the basis that the Plaintiff would have continued working to age 63.

128 I have so far approached the matter without regard to the terms of s13 of the Civil Liability Act. That section and one in the same terms, s126 of the Motor Accidents Compensation Act 1999, have been the subject of consideration by the Court of Appeal in a number of cases, most recently in Kallouf v Middis [2008] NSWCA 61 and Roads and Traffic Authority v Chandler [2008] NSWCA 64. Given the terms of s13 it is appropriate to record that I am satisfied that the Plaintiff’s earning capacity while employed as a formworker was as I have indicated. It is likely that he would have pursued such work so long as it was available in the absence of other work opportunities seen to be more remunerative. Of course the building industry does have its ups and downs as may individual employers. It is therefore likely that there would have been some gaps in his employment. On the other hand, the Plaintiff may also have advanced in experience or qualified to a role of formwork carpenter and earned more each week as a result.

129 Any undertaking as a convenience store operator also has its risks as had the Plaintiff even if the accident had not occurred. It seems to me appropriate to discount the Plaintiff’s loss of earning capacity calculated in accordance with the figures I have referred to above by 15%.

Non-Economic Loss

130 Counsel for the First Defendant submitted that the Plaintiff’s loss in this area should be assessed at 35% of a most extreme case. During the course of submissions, I indicated to counsel for the Plaintiff that I was tempted to the view that this concession was unduly generous to the Plaintiff. I am confirmed in this view by my conclusions as to the extent of the Plaintiff’s disability as established to my satisfaction. While I acknowledge that the comparison required by s16 of the Civil Liability Act is with “a” most extreme case, and not with the most horrendous case one can imagine, nevertheless the Plaintiff’s injuries and their non-economic consequences are so far removed from any of the cases I would regard as falling within the standard against which comparison is required that I would assess the severity of non-economic loss at the level of 30%.

131 In this connection, it seems to me not inappropriate to reflect on what the situation would be if, instead of the ankle injury he suffered, the Plaintiff’s leg had been amputated just above the ankle. It is likely that he would not have suffered the same degree of pain but on the other hand, he would not have the ankle and foot movement that he presently has. Of course, the ankle injury and disability was not the only one suffered by the Plaintiff but the comparison between an amputation (and the non-ankle injuries and consequences) and a most extreme case does strike me as instructive.

Other Economic Loss

132 The parties were agreed in respect of a number of items of damage. These were:-

133 It was agreed that the last mentioned figure averaged $58 per week but there was no evidence that could provide a reliable indication of what those expenses were likely to be in the future. I have no doubt that the Plaintiff will require some medication to cope with pain, some to cope with his gastric problems and Voltaren or the like. These are likely to be permanent expenditures. Likely at some times will be medication to deal with his emotional situation. On the other hand the Plaintiff’s need for medication in the future is likely to be substantially less than in the past. Counsel did not direct any submissions to an analysis of what should be allowed under this heading and in the circumstances, I would assess it at $25 per week.

134 Written submissions for the Plaintiff indicated a claim for the loss of past and future superannuation benefits. I think that there is no evidence that the Plaintiff was being paid any but there is also, I think, nothing to suggest he was not entitled to them. They should be assessed at the statutory rate.

135 One matter that was the subject of evidence and claim was the issue of care, both by the Plaintiff’s wife and by way of making up for his loss of capacity in the home and daily life. So far as gardening and home handyman tasks are concerned, I would assess an appropriate allowance is 2½ hours a week. That is something over 1 day a month and while I do not believe the Plaintiff needs so much on a monthly basis, there are likely to be occasions when more may be needed, e.g. moving house or painting a house. This need dates from the time of the Plaintiff’s accident.

136 So far as tasks personal to the Plaintiff or inside the home are concerned, I am not persuaded that the Plaintiff has any current or future need apart from during periods of 2 months on the occasion of each of the 2 operations that I think are likely in the future.

137 I accept that the Plaintiff did have the need for such assistance during part of the past. I have recounted his wife’s evidence in this regard and do not need to repeat it. Given the nature of the Plaintiff’s injuries and incapacities I am not disposed to accept her evidence as to the time she took each day in looking after him. Particularly do I not accept that the time required continued at the daily rate she said for 6 months. It seems to me that a reasonable assessment is 3 hours a day for the first 2 months, 2 hours a day for the next 2 months and 1 hour a day for the next 2 months. I would also allow 2 hours a day for 2 months following the Plaintiff’s operation in early 2004. I do not accept that apart from these periods, and those mentioned in the immediately preceding paragraph (in respect of which I would also allow 2 hours a day) the Plaintiff had any need for any significant attendant care, certainly care for more than 6 hours per week.

138 I should add that in respect of the assistance referred to in the 2 immediately preceding paragraphs, I am satisfied the requirements of s15(2) of the Civil Liability Act 2002 are made out.

Other Matters

139 It might be recorded that it is common ground that, if liable, the Second Defendant is liable for only economic loss. Furthermore, during counsel’s submissions it was suggested that I do not deal at this stage with all of the complications arising from the legislation in this area, in anticipation that the parties can work these out. I propose to follow that course. Otherwise I believe I have decided all of the matters that were in contention between the parties. Of course, if there were others, I may be reminded of them.

140 I should not leave these reasons without however adding the following: There were tendered in evidence what strikes me as a very large number of medical reports. I do not know the circumstances that led to each of them (and I suspect others that were not tendered) being obtained but I have difficulty in seeing that anything like the number tendered were reasonably required for the proper preparation or presentation of the case. If the Plaintiff is to pursue an application for costs in the case, his representatives should come prepared at that stage to demonstrate that the order should cover more than a smallish proportion of what I may refer to as the legal medical costs and solicitors’ costs in obtaining, perusing and dealing with the reports obtained.

141 Somewhat similar considerations apply to an expert report on the issue of liability that was tendered during the hearing and in respect of which I made comments at the time. I will need to be persuaded that any costs order should extend to the costs incidental to the preparation of that report and, if some of the report was justified, how much.

142 It is sufficient at this stage if I direct the Plaintiff to bring in draft orders reflecting these Reasons.

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CITATION:	Maher ASSAF v CHARISMA DEVELOPMENTS PTY LTD & OR [2008] NSWSC 401
HEARING DATE(S):	16-19 July 2007
JUDGMENT DATE :	2 May 2008
JUDGMENT OF:	Hulme J at 1
DECISION:	I direct the Plaintiff to bring in draft orders reflecting these Reasons.
PARTIES:	Maher Hamzak Rizk ASSAF Charisma Developments Pty Ltd Oz Formwork Pty Ltd
FILE NUMBER(S):	SC 20026/2006
COUNSEL:	D Wheelahan QC with R Taylor R Cavanagh P Menary
SOLICITORS:	Keddies Henry Davis York Sparke Helmore