McKrill v Lincoln Constructions (WA) Pty Ltd
[2003] WADC 84
•11 APRIL 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: McKRILL -v- LINCOLN CONSTRUCTIONS (WA) PTY LTD & ORS [2003] WADC 84
CORAM: YEATS DCJ
HEARD: 9-13 SEPTEMBER & 19-22 NOVEMBER 2002
DELIVERED : 11 APRIL 2003
FILE NO/S: CIV 3898 of 1997
BETWEEN: MARK GREGORY McKRILL
Plaintiff
AND
LINCOLN CONSTRUCTIONS (WA) PTY LTD
First DefendantCAROL ANN DI VINCENZO
Second DefendantPCH HIRE & SALES PTY LTD t/as PERTH CONSTRUCTION HIRE
Third Defendant
Catchwords:
Negligence - Damages - Low back injury - Whether duty of care arises under Occupiers' Liability Act 1985 or the common law - Standard of care - Breach of duty of care - Whether duty of care is non-delegable - Contributory negligence - Whether loss or damage suffered by plaintiff resulted from pre-existing injuries - Economic loss - Future medical treatment - Expert evidence - Total award of damages of $97,076
Legislation:
Occupiers' Liability Act 1985
Result:
Judgment for the plaintiff in the amount of $97,076
Representation:
Counsel:
Plaintiff: Mr A C Stavrianou
First Defendant : No appearance
Second Defendant : Ms A M I Schoombee
Third Defendant : Mr P V Lansell
Solicitors:
Plaintiff: Simon Walters
First Defendant : No appearance
Second Defendant : McAuliffe Williams & Partners
Third Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Baker v Shire of Albany (1994) 14 WAR 46
Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204
Cant v Fleay, unreported; FCt SCt of WA; Library No 960381; 18 July 1996
Caparo Industries v Dickman (1990) 2 AC 29
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Commissioner for Railways v Ruprecht (1979) 142 CLR 563
Creed v McGeoch & Son's Ltd [1955] 1 WLR 1005
Donoghue v Stevenson [1932] AC 562
Frost v Warner (2002) 186 ALR 1
Graham Barclay Oysters Pty Ltd v Ryan: Ryan v Great Lakes Council: State of New South Wales v Ryan [2002] HCA 54
Graham v Baker (1961) 106 CLR 340
Haseldine v Daw [1941] 2 KB 343
Jones v Bartlett (2000) 205 CLR 166
Kondis v State Transport Authority (1984) 154 CLR 672
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Amzil (2000) 176 ALR 411
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Prast v Town of Cottesloe (2000) 22 WAR 474
State of New South Wales v Lepore: Samin v State of Queensland [2003] HCA 4
Sullivan v Moody (2001) 75 ALJR 1570
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tame v New South Wales: Annetts v Australian Stations Pty Ltd [2002] HCA 35
Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994
Westralian Caterers Pty Ltd v Eastmet Ltd (1992) 8 WAR 139
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
British Railways Board v Herrington [1972] AC 877
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Burrum Corporation v Richardson & Gehrmann (1939) 62 CLR 214
Coffs Harbour City Council v Backman (2001) A Tort Rep 81-614
Complete Scaffold v Adelaide Brighton Cement & Anor [2001] SASC 199
Demczuk v Polish Soc Dom Mikolaja Inc (1987) 46 SASR 223
Farrell v Wells & Ors; unreported; DCt of WA; Library No 5024; 12 August 1996
Hackshaw v Shaw (1984) 155 CLR 614
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Jones v Bartlett (2000) 176 ALR 137
Kocis v S E Dickens Pty Ltd (1996) A Tort Rep 81-382
Prast v Town of Cottesloe (2000) A Tort Rep 81-579
Purkess v Crittenden (1965) 114 CLR 164
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Rose v Abbey Orchard Property Investments (1987) A Tort Rep 80-121
Schmitz v Pilpel (1998) A Tort Rep 80-178
Scott v Davis (2000) 204 CLR 333
Short v Barrett, unreported; FCt SCt of NSW; BC9003193; 5 October 1990
Simpson v Blanch (1998) A Tort Rep 81-458
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Thomson v Cremin [1956] 1 WLR 103
Titchener v British Railways Board [1983] 3 All ER 770
Torette House Pty Ltd v Berkman (1940) 62 CLR 637
Voli v Inglewood Shire Council (1963) 110 CLR 74
Watts v Rake (1960) 180 CLR 158
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483
Woodward v Mayor of Hastings [1945] KB 174
YEATS DCJ:
Introduction
The plaintiff claims damages in negligence for injuries he suffered on 24 July 1996 when he stepped onto scaffolding which was not properly braced and fell 1.5 metres. The plaintiff claims damages against the first defendant, Lincoln Constructions (WA) Pty Ltd ("Lincoln"), a builder, against the second defendant Carol Ann Di Vincenzo, the owner-builder and against the third defendant, PCH Hire & Sales Pty Ltd t/as Perth Construction Hire ("PCH") which provided the scaffolding.
Lincoln is in liquidation. The plaintiff obtained leave from the Supreme Court to proceed against Lincoln but Lincoln was not represented at trial. The evidence established that Mr Nino Ferendi, the principal of Lincoln, could not be located despite efforts by the second defendant to subpoena him to attend court and to give evidence as part of the second defendant's case. Lincoln did file a defence in which it denied it was negligent. Lincoln alleged that the second defendant was the builder and occupier and had control over the premises. But Lincoln did not call any evidence to support its case.
Both liability and damages are in issue. The principal issues are:
1.Whether Lincoln and/or the second defendant owed a duty of care to the plaintiff under the Occupiers' Liability Act 1985 ("the Act").
2.Whether the duty of care arose under the Act or at common law.
3.Whether the duty of care of the second defendant as the owner/builder was a non‑delegable duty.
4.Whether the second defendant exercised reasonable care in the selection and supervision of Lincoln.
5.Whether PCH owed a duty of care to the plaintiff.
6.Whether the plaintiff's injuries were caused by his own contributory negligence.
7.Whether the plaintiff's back condition, loss and damage were caused by a 1993 motor vehicle accident and/or significant long standing pre‑existing developmental problems in his spine.
8.Whether any loss or damage suffered by the plaintiff was caused or contributed to by pre‑existing developmental injuries in both knees.
Notices of contribution were filed by Lincoln against PCH, by the second defendant against Lincoln and against PCH, and by PCH against Lincoln.
History
The plaintiff is 41 years old. He was born on 16 January 1962. He left school at the age of 15 and started an apprenticeship as a butcher for Woolworths. After six months he left that work because he did not like the job and went to work for his father as an apprentice roof tiler. The plaintiff's brother Fred also is a roof tiler. The plaintiff worked for about six years with his father until he was 22 years of age and then he went to the United States and stayed for three months. While he was there he did some roof tiling. When he returned to Perth he continued roof tiling. He was sub‑contracting to Monier at that time. He was paid on a square metre basis and he simply worked as a partnership under contract to companies who covered insurance and workers' compensation.
The plaintiff said that the taxation laws changed and all of the sub‑contractors had to become proprietary limited companies in order to meet the criteria of the Taxation Department so he formed a company Condessa Holdings Pty Ltd ("Condessa") with himself and his former wife as directors. Condessa employed others to help with the tiling ‑ usually juniors or improver roof tilers. Condessa paid them the award rate as roof tilers. The plaintiff himself was paid as an employee of the company. The plaintiff said that the company made a profit and the wages were put back into the company. As a working director the plaintiff also received a company car and of course the company owned the machinery.
The plaintiff also formed another company McKrill's Tiling Pty Ltd ("McKrill's") on about 12 October 1992. He and his former wife were also directors of that company. McKrill's was formed for work on commercial sites. McKrill's did the commercial site work and Condessa did the roof tiling for housing. The plaintiff mainly did work for Bristile tiles. Bristile was involved in both housing and commercial tiling operations.
The plaintiff explained in detail the work of a roof tiler. He said that the tiles were delivered to site by truck or tractor. Then a hoist or crane was used to lift the tiles onto the roof. Once the tile hoist had them up there they were moved around the roof to where they were needed. The tiles were in bundles of seven or four tiles. Each tile weighed about 1‑1/2 to 2 kilograms depending on whether they were cement or clay. Battens are also used and they are stacked around the roof in a certain pattern and the tiler lays the tiles in a pattern on the battens moving over the roof. The work involves bending down. Roof tilers stand on the roof and bend down to do the tiling.
The plaintiff and his wife were divorced in 1994 and he transferred the directorships in his companies to his father. He continued through the companies to work for Bristile doing sub‑contracting. On 10 April 1996 the plaintiff received a letter from Bristile indicating that due to a downturn in the building industry the sub‑contract agreement between Condessa and Bristile would be terminated on 10 July 1996. The plaintiff said he decided to wind his business up and have a break until there was a change in the building industry. The plaintiff said he worked right up until the end of the financial year 1996 and was still finishing off bits and pieces until the end of July. During that time he was still drawing his wage from the company.
The accident
On 24 July 1996 the plaintiff visited his brother Frederick who was a roof tiler working on a property in Inverness Crescent where the second defendant as owner/builder was building a house. It was a two‑storey residence just getting the roof put on at that stage. The plaintiff visited about 3.00 in the afternoon. He met his brother and some other men who worked with him. The only one whose name he remembered was a Maurice Scott. The plaintiff said he just walked around with his brother and had a look to see how his brother was going to do the roof tiling job. They entered the house through the carport and climbed up a stairway and went inside. They then walked back out onto the balcony which was off the front of the house. At that time it was a concrete slab with no handrails. There was scaffolding protruding around the balcony at the same level as the balcony. The plaintiff said it looked like normal scaffolding with planking and metal framed deck. He said he was unable to see under the scaffolding.
The accident happened when they noticed a piece of tile batten that needed to be put in the rubbish. That batten was at the end of the scaffolding so the plaintiff walked over toward it to pick it up and that's when the scaffolding collapsed. The plaintiff said the batten was a 38 x 25 millimetre piece of timber some two metres long. When the plaintiff stepped onto the scaffolding he said the metal planks just gave way and he went backwards down onto the ground. He said he fell about a metre and a half. He landed on his back and another scaffolding plank was also laying on the ground. The plaintiff said he felt a lot of pain across his lower back when he landed. The plaintiff said at that time his back had not been giving him any pain and he had not been giving much thought to it. The plaintiff said he had been working full‑time up until then.
Under cross‑examination the plaintiff admitted that he visited the building site at his brother's invitation. He said his brother was one of a crew of six or seven roof tilers working on the site roofing the house. At the time the plaintiff said he was on holiday. He was not involved in any work on the site and went there to pay his brother a social visit. The plaintiff admitted it was not really his business to go and have a look at someone else's house that was being built.
The plaintiff said he stepped onto the scaffolding to pick up a piece of timber laying on the end of the scaffolding. He admitted he knew nothing of the scaffolding – did not know who put it up, did not know if it was being dismantled, did not know whether it was complete or whether it was safe to step on it. The plaintiff admitted that if he had been looking for it he probably could have seen the supporting structure of the scaffolding before he stepped on to it. The plaintiff admitted that he knew that tradesmen leave scaffolding on building sites in a state of disrepair. He also admitted that he did not know what the short section of the scaffolding, the section that gave way, was used for other than to support the long wooden planks extending from another bit of scaffolding to the short section.
The plaintiff admitted that if he had been looking he would have known the scaffolding was placed on the sand and he would have known there was no diagonal cross brace on one side. The plaintiff admitted stepping on the scaffolding not knowing if it could carry his weight.
After the accident the plaintiff and his brother examined the scaffolding that had collapsed. The plaintiff said he is very familiar with scaffolding and uses it often in his work. The plaintiff explained that the structure supporting the plank at the top of the scaffold generally had two diagonal braces. But the scaffolding that collapsed when he stepped on it was missing its brace on one side. Without that brace nothing prevented the sides of the scaffold from separating and allowing the planks making up the platform to simply fall to the ground. It was the plaintiff's case that this was a hidden danger, a trap. Stepping onto the scaffolding from the balcony meant that the planks of the scaffolding prevented the plaintiff seeing that the brace was not in place and the scaffolding simply separated and allowed him to fall.
The plaintiff also noticed that the scaffolding legs were planted in the sand with no feet on them. The usual practice he said was to have a piece of timber under the feet to keep them from sinking in. After the accident the plaintiff contacted Worksafe and an inspector attended at nine o'clock the following morning.
The plaintiff took a number of photographs of the defective scaffolding. Two of those photographs have been tendered as Exhibit 12. The plaintiff gave evidence he took the photographs at the same time and it was a time shortly after the accident. The only anomaly in the photographs is that the red batten in the top photograph of Exhibit 12 appears to be lying in the sand at the base of the scaffolding whereas in the bottom photograph the red batten can be seen resting on top of the metal planks of the scaffolding. The plaintiff was unable to explain that anomaly.
Peter John Green, a registered builder with a diploma in building, and an associate diploma in occupational health safety and welfare, who is also a registered licensed scaffolder, is employed for Worksafe Western Australia as a senior inspector carrying out inspections on construction sites. On 25 July 1996 he inspected the site of the accident and issued four improvement notices (Exhibit 39). The first improvement notice related to the defective scaffold. He noted that "a single bay frame scaffold fitted with planks not fitted with double braces causing planks to dislodge injuring a person working on the platform". Mr Green also issued an improvement notice related to the removal of rubbish, the fitting of guardrails and the need for a substantial bracing on the portico before roof tilers continue with their roof tiling in that area.
Mr Green said that he issued the improvement notices to the first defendant Lincoln Constructions. He said there was a bit of confusion over who the builder was and he was led to believe it was Lincoln Constructions. There was no sign at the site as required by the Builders' Registration Board. The signature of Mr Lapandotta, a director of Lincoln Constructions, appears on the notices. Mr Green said he contacted Lincoln Constructions by telephone to ask them whether they were the builder responsible and whoever answered the phone indicated they were the responsible person to receive the notice. Mr Green said the person responsible under the Worksafe regulations for matters of safety is the person in control of the workplace.
Mr Green gave evidence that under the safety regulations any person can erect scaffolding up to four metres in height but a competent and certificated scaffolder is needed for scaffolding higher than four metres. Mr Green tendered into evidence Part 10 of the Occupational Health Safety and Welfare Regulations 1988 as well as one page of the National Standards for Scaffolding, Exhibit 40.
Mr Green was shown the two photographs Exhibit 12 and he recalled that on the day of his inspection there were two bays of scaffolding. Each bay involved two frames and on top of those frames were steel planks. Mr Green remembered seeing steel planks on the ground as in the photo at the top of Exhibit 12. Mr Green said that the double brace is visible in the second photo on Exhibit 12 and it is clear that further forward in that photograph there is no brace on the front legs of the frame. Without that double brace Mr Green said that the metal planks are at risk of sliding off. Without the brace the two frames can move apart and the planks simply fall through. Mr Green said these particular planks have a lip of about 40 millimetres protruding like a little "L" shape at the end of the plank. If the frame moves, the lip loses support, and the plank is able to drop through. Mr Green said that by failing to brace one end of the bay the scaffolding was a disaster waiting to happen. As soon as anyone stepped on it the two ends of the frame would simply move and the planks would fall through. Mr Green said that anyone could have erected or dismantled this scaffolding as it was less than four metres in height. Mr Green also said that to ensure the safety of the scaffolding the feet should have been mounted on sole plates. Mr Green indicated the legs should be standing on planks so that they would not subside in the soft sand. Mr Green was unable to tell whether there were sole plates from the photos in Exhibit 12. If so they were buried in the sand.
The plaintiff's brother Frederick McKrill was present at the time of the accident. Mr Frederick McKrill is also a roof tiler. On the day of the accident he was working at the site with a crew of six or seven other workers putting the roof on the house. The house was not yet at lock‑up stage. Mr Frederick McKrill said that his brother the plaintiff telephoned him, they had a social conversation and, subsequently, the plaintiff came by the house to visit his brother. Mr Frederick McKrill was on the roof when he saw the plaintiff arrive and went down to greet him and proceeded to show him through the house. They went in through one of the doors onto the first level and walked out onto the balcony. Mr Frederick McKrill said it was a concrete balcony and extended from the concrete floor of the main room of the house on the same level. Mr Frederick McKrill said that the only scaffolding in the area that day was the scaffolding leading onto the balcony which contained steel and wood planks. Frederick McKrill was walking behind his brother when he saw the scaffolding give way and saw the plaintiff fall. He looked down and saw a jumbled mess of scaffold and that the plaintiff was lying on the ground amongst three of the scaffolding planks. He thought his brother fell about 1.5 metres. To assist his brother Mr Frederick McKrill went downstairs through the house and out around to the side. He also noticed that the scaffolding beside the balcony had a cross brace missing. Mr Frederick McKrill said he had been on the site for the two days and on neither day did he see anyone dismantling or assembling the scaffolding. Nor did he see any other workers on-site or anyone working using the scaffolding as a platform.
Under cross‑examination Mr Frederick McKrill admitted that he had been about a metre behind his brother when the scaffolding gave way. He described the scaffolding as sinking and spreading apart so that literally the planks collapsed to the ground with his brother on them. Mr McKrill remembered three planks falling but he confirmed that in the photographs only two planks are visible.
Second defendant's case
The second defendant gave evidence rather reluctantly. She said she is a 42‑year‑old full-time housewife with three children aged 12, 14 and 16 years. She claimed to suffer from attention deficit disorder ("ADD"). Her husband confirmed her evidence about that but there was no medical evidence called in support. The second defendant said her ADD affected her daily life because she forgot things, was disorganised and had difficulty understanding things such as questions. She said it also affected her memory.
The second defendant is and was at the time of the accident a director of her husband's accounting practice company and a director of her husband's service trust company. She and her husband are the only directors of those companies. The accounting practice has 17 or 18 employees at present. According to the second defendant's husband the second defendant was able to discharge her obligations as a director of those companies.
The second defendant said she was the owner of the property at 29 Inverness Crescent. She and her husband purchased the property intending to knock down the existing house and build on the lot. On the first attempt to lead the second defendant's evidence her counsel asked her to recall discussions she had had with her husband during 1995 and 1996. The questions were completely improper for examination‑in‑chief. During a lengthy adjournment of the case, counsel for the second defendant changed her approach and the second defendant managed to give appropriate, factual evidence. There was nothing in her evidence that caused any concern that she was under any disadvantage because of any ADD.
The second defendant made an application to demolish the house on 10 October 1995 (Exhibit 43). Her husband prepared the letters and documentation. She read them and signed the application as she was the owner of the property. She and her husband chose an architect's plan for a two‑storey house which would require a retaining wall right round the property. They had not chosen a builder so she applied for an owner‑builder licence at the City of Stirling. Her husband again prepared the paperwork. The second defendant said their plan was to arrange the preliminary site work themselves and then to engage a builder to build the house.
The second defendant admitted reading and signing the required statutory declaration (Exhibit 32) in order to obtain an owner‑builder licence, but she denied ever seeing or being shown the pamphlet "Thinking of Building Your Own Home: Your Obligations as an Owner‑Builder" (Exhibit 32). The second defendant's application was submitted on 6 December 1995 and her owner‑builder licence was approved on 12 January 1996. The second defendant did not discover or produce her owner‑builder licence.
The second defendant said she just left it up to her husband to pick a builder. They received a quote from one builder and then her husband spoke to Nino Ferendi at Lincoln who had been a friend of theirs for 24 years and Lincoln was chosen as the builder. She said her husband had told her that Lincoln had built some units and had done a good job. The second defendant said she saw those units and they were of good quality. Her husband told her Lincoln had done good work. The second defendant admitted she never really thought about Lincoln's ability to supervise sub‑contractors on site.
Her only intention so far as personal involvement was concerned was with the interior of the house once built. She intended to choose all the colours, tiles, light fittings and curtains. She did not intend to attend the site or to supervise people on site. She thought Lincoln would do that. She thought Lincoln would organise materials and tradespeople, direct them as to what needed doing, look after the quality of the work, look after safety issues, and select and supervise sub‑contractors. The only sub‑contractors she would meet on site would be painters, electricians and tilers finishing the interior.
The second defendant said it took 15 months to build the house and at the beginning she hardly ever visited the site. Only towards the end of construction while interior work was being done did she visit the site and meet sub‑contractors. The second defendant denied knowing anything about the scaffolding. She had no knowledge of who supplied it, when it was supplied or who erected it. She did learn of some problems with a cracked footpath and she learned of a neighbour's roof cracking from her husband, but he fixed all that up. She did not learn about the plaintiff's injury until about two years prior to trial.
Under cross‑examination the second defendant admitted there was no written documentation of the arrangement with Lincoln. She never signed a building contract. She admitted she did not make any independent enquiries in relation to choosing Lincoln. She never investigated Lincoln's finances. She left everything to her husband. She claimed Lincoln was chosen within two to three months after the issue of the owner‑builder licence. The plaintiff admitted she took out contractor's work insurance on the property (Exhibit 45). She never saw a sign at the front of the property saying who the builder was. She admitted the building site was quite high up and it would have been dangerous if scaffolding was not secured but she knew nothing of the scaffolding.
The second defendant's husband Sergio Guido Di Vincenzo gave evidence that he is a practising accountant. He said it is common for professional people such as himself to hold assets in their spouse's name to protect them from liability. Mr Di Vincenzo said he prepared the paperwork for his wife to apply for an owner‑builder licence. She was the owner and the only one eligible to hold that licence. He said the intention was to do a small part of the construction themselves and then contract with a builder to do the balance.
Mr Di Vincenzo said that without a builder they demolished the existing house and then constructed the side retaining walls. There were problems with the back wall and they brought Lincoln in to complete it. Mr Di Vincenzo said he had a quote from a builder Macri for $440,000. But he had no documentation for that. He said all the documents in his possession were destroyed after two or three years. That is the only way he managed all the documents in his practice.
Mr Di Vincenzo gave evidence that Nino Ferendi had been a friend for over 20 years. Mr Di Vincenzo had been a director of Lincoln from 1991 until 1993. After 1993 Mr Di Vincenzo's accounting business prepared end of year financial statements for Lincoln and his accounting business was the registered office for Lincoln. He last prepared such accounts at the end of FY 1996. Mr Di Vincenzo was shown Exhibit 37, the Notice of Filing of Application for a Winding‑Up Order in relation to Lincoln dated 3 April 1996 but he claimed he had no previous knowledge of Lincoln's financial problems.
Mr Di Vincenzo gave evidence that he had used Lincoln several times as a builder on projects that involved his clients. Lincoln also renovated his parents' house and Lincoln had built units for himself and the second defendant. He chose Lincoln to build their house at 29 Inverness Crescent and the second defendant had no objection to the choice. Mr Di Vincenzo said at all times he acted for the second defendant assisting her to get the building done. Mr Di Vincenzo said his arrangement with Lincoln was payment of a fee of $10,000 plus a $3,000 accounting fee that was outstanding. He said Lincoln was to carry out the building of the house. When invoices were rendered from trades and suppliers Lincoln would refer them to Mr Di Vincenzo who would pay when the accounts fell due. Mr Di Vincenzo said that the all up cost of the work on the house which took 15 months was $620,000.
Mr Di Vincenzo admitted that supervision of sub‑contractors was never discussed with Lincoln. Lincoln was engaged as the builder and he expected that was part of the builder's job. Nino Ferendi was to be on site and give the sub‑contractors their instructions. Mr Di Vincenzo said he drove past the site mornings and evenings. He is permanently in a wheelchair and it was physically impossible for him to go onto the site. But he would park and speak with Nino Ferendi on occasion. He expected Nino would have to be on site on a daily basis.
In his evidence‑in‑chief Mr Di Vincenzo claimed that Lincoln engaged 95 per cent of the contractors but he engaged a few people he knew himself including the second lot of roof carpenters, the grano workers, the swimming pool people, the stonemasons, the painters, the ceramic tilers, and perhaps a brick paver. Mr Di Vincenzo extended that list under cross‑examination to include the quotes in Exhibit 48 (brickwork), the painters and the bundle of quotes in Exhibit 50 including airconditioning, ceiling and plaster, timber and enclosing fence. But Mr Di Vincenzo said once he selected the trades Lincoln supervised them on site. Some were paid by Lincoln and some by him directly. So far as scaffolding was concerned Mr Di Vincenzo only knew from the invoices that PCH supplied the scaffolding. He thought PCH erected it as well.
Mr Di Vincenzo said he knew of no complaints about Lincoln from Worksafe until Lincoln let him know of Mr Green's notices several days after Lincoln received those notices. Mr Di Vincenzo said he gave no‑one other than Lincoln and trades permission to go on the site. He thought there was a sign on the site saying Lincoln was the builder.
Under cross‑examination Mr Di Vincenzo said they only continued as owner‑builder up to the stage they handed over to Lincoln. But he admitted there was no written contract and no new builder's licence. The only builder's licence for 29 Inverness Crescent was the second defendant's owner‑builder licence. Mr Di Vincenzo admitted there were financial benefits to being an owner‑builder. He also admitted he had owner‑builder insurance for the site from the start.
Under cross‑examination, Mr Di Vincenzo claimed he expected Lincoln to look after safety issues with contractors on site but he admitted his evidence was inconsistent with a statutory declaration (Exhibit 51) sworn on 7 February 2000. In par 16 of that declaration he stated:
"Given that sub‑contract labour was used, the expectation was that the sub‑contractor involved would be responsible for the safety of themselves and their employees."
Under cross‑examination Mr Di Vincenzo admitted he and the second defendant had no organised system of inspecting the site and may have visited it only five times in 15 months. He also admitted that neither he nor his wife had made any inquiries as to their obligations and responsibilities as owner‑builder.
Mr John Gillot, the principal building surveyor for the City of Stirling gave evidence on behalf of the plaintiff. Mr Gillot said that if a registered builder is appointed then the Building Regulations 1989 require that the builder submit and secure the issue of a building licence from the council. Mr Gillot went on to say that it is not normal practice for the council to issue a building licence to an owner‑builder where there is a registered builder engaged. That would be contrary to the provisions of the Builders' Registration Act. The owner‑builder licence would commence but once the registered builder was engaged that builder would apply for a licence in his own name. That did not happen in this case.
The plaintiff also called Colin Stretton, the technical services manager for the Builders' Registration Board to give evidence. Mr Stretton is himself a registered builder. Mr Stretton said that a licence could be taken out by an owner‑builder but if the Board found that a registered builder actually did the work the registered builder would be the one who received the notice. Mr Stretton went on to say that the mere fact that you take out an owner‑builder licence does not automatically make you responsible for the building. If there is a defect and a registered builder were merely supervising the work it would not involve his registration but if he is building the building then he is using his registration.
The third defendant's case
The third defendant called Mr Vincenzo Gullotti. Mr Gullotti had been manager of operations for the third defendant in 1996. He said that in that year PCH had a contract with Lincoln. They were to supply the scaffolding for building the house and would organise independent contractors D & L Scaffolding to erect and dismantle scaffolds. Mr Gullotti said that D & L Scaffolding supplied its own tools, supplied its own transport, supplied their own clothing and worked to the hours they chose. D & L Scaffolding had its own workers' compensation and public liability insurance. PCH did not control the manner of work nor did it pay for annual leave or superannuation. D & L Scaffolding was able to refuse work offered by PCH. PCH had no on site supervisors.
Mr Gullotti said that a licensed scaffolder was required to erect scaffolding which was higher than six metres. However a brickie's kit was supplied to the house on Inverness Crescent on 9 February 1996. The scaffolding was intended to be erected by the brickies and moved around as the walls of the house went up. The brickie's kit did not contain joint pins and could not be stacked on each other so as to breach the height requirement.
Mr Gullotti said that PCH began picking up scaffolding material from the site commencing on 18 June 1996. The last time that anyone from the third defendant attended the site prior to the accident was on 9 July 1996 when they picked up the bulk of the scaffolding. Not long after that on 24 July 1996 Lincoln requested that the remaining scaffolding on site go off‑hire. Mr Gullotti explained that meant that the remaining scaffolding would be left on site but that there would be no further charge for its hire.
Mr Gullotti agreed that the scaffolding as pictured in Exhibit 12 was supplied and owned by PCH and that it could have been delivered as early as 9 February. The first time PCH organised for any scaffolding to be erected was on 18 April 1996 and there was no indication in any of the documents that PCH arranged for the erection of the scaffolding in Exhibit 12.
Mr Gullotti said that once scaffolding was delivered any tradesperson on the site could have erected the scaffolding unless it was over six metres in height. He agreed that both bracing and footing was needed for safe erection. He said that the brickies' kit contained timber boards and not the steel boards such as are seen in Exhibit 12. Mr Gullotti also said it was not unusual for frames to be removed on site by the trades people. He said there had only been one request to fix up scaffolding and that may have been as a result of the defective scaffolding in Exhibit 12.
Mr Gullotti went on to say that this particular job was very disorganised and that every time PCH would go and do something they would find the people there wanted him back and wanted other work finished. They found themselves going backwards and forwards and that was not the way a good job is done.
The third defendant also called Damien Mark Keating, a licensed scaffolder and a director of D & L Scaffolding Pty Ltd. Mr Keating said that his business did not work exclusively for PCH but PCH provided most of D & L Scaffolding's work during 1996. Mr Keating said that to erect scaffold above three metres required that a licensed scaffolder be used. He admitted he had his own workers' compensation and public liability insurance for his employees. They erected, altered and dismantled scaffolding using their own tools and were not told when to start their work. Mr Keating said that the scaffolders never erect scaffolding up to the first floor; that is done by the brickies themselves. Mr Keating said that D & L Scaffolding did not erect the scaffolding in Exhibit 12. He could see that there was only one brace and he could also see that there were no proper footings. Mr Keating said that nobody he employed would erect scaffolding like that. Mr Keating's evidence was that trades people tamper with scaffolding and he has no control of that. After examining Exhibit 12 Mr Keating said he did not think those scaffolds were ever more than one lift high because there were two joint pins. However he agreed that D & L would have erected scaffolding in this position.
The third defendant also called Ian David Laycock the co‑owner of PIC Bricklayers. Mr Laycock said that his firm did the red brickwork on the house, work which was done between April and June. He and his workers were on site for three months. Mr Laycock said that they charged Lincoln Construction for the work that they did and they used a brickie's kit to erect their own scaffolding. Mr Laycock said on 2 May 1996 they spent two hours erecting scaffolding and on 29 May they also erected scaffolding.
Mr Laycock looked at the scaffolding as pictured in Exhibit 12 and he said it was not constructed the way that he would have constructed it. He agreed it was not safe. He also indicated he would not step on that scaffolding because it might fall and he would hurt himself.
Mr Laycock said he saw the owner in a wheelchair but the owner never came on site. On weekends however he often saw wheelchair marks in the sand.
Credibilty
The plaintiff presented his case well. I had no problems accepting his evidence concerning the accident. But his evidence about his history of back problems was not reliable. From his evidence‑in‑chief one would have expected his first problems with back pain to have been associated with the 1993 motor vehicle accident. But on the whole of the evidence I am satisfied that he had suffered back pain from the age of 18 and had a workers' compensation claim for work related back pain in 1993 prior to that motor vehicle accident. I am prepared to rely on the plaintiff's evidence so far as the accident was concerned. I also accept and rely on the evidence of the plaintiff's brother Frederick McKrill and that of Mr Green, the Worksafe inspector. Both impressed me as careful and reliable witnesses. I will not rely on the plaintiff's evidence about his previous back conditions and other prior physical problems unless his evidence is supported by that of another witness. In that area I rely primarily on the evidence of medical experts.
I did not find the second defendant or her husband to be satisfactory witnesses. The second defendant's attempt to avoid giving evidence before her husband was called and her initial hearsay evidence formed a bad impression on me. I am not satisfied she suffers from any form of ADD. That was never verified in evidence. Her evidence did not display any sign of ADD. In the end she remembered as much as one would expect any person to remember of the details of events occurring seven years earlier.
The second defendant's husband's evidence was equally unpersuasive. The focus of his evidence and that of the second defendant was to shift all responsibility for site safety to Lincoln without providing any documentation to support their case. The only building licence for the site was the second defendant's owner‑builder licence. There were no contract documents tendered to show what Lincoln undertook to do. I cannot accept the evidence of the second defendant's husband that Lincoln was on site daily looking after safety issues during the 15 month construction period for a total payment of $10,000 plus an outstanding $3,000 fee. The second defendant's husband admitted his evidence about safety issues on site differed from his statutory declaration about that issue. Neither the second defendant nor her husband were satisfactory witnesses.
All the witnesses called by the third defendant gave satisfactory evidence and supported their oral evidence by tendering appropriate documents. I accept and rely on the evidence of Mr Gullotti, Mr Keating and Mr Laycock.
Finding of facts
I make the following findings of fact:
1.The second defendant owned the property at 29 Inverness Crescent and held an owner‑builder licence for the construction of the residence on the property.
2.The second defendant entered into some sort of arrangement with Lincoln about the construction of the residence.
3.Mr Nino Ferendi, the principal of Lincoln, never secured a building licence as was required by the Building Regulations 1989 if he were the builder. Nor did Mr Ferendi place a sign on the site identifying Lincoln as the builder.
4.The construction of the residence cost $620,000 and took 15 months to complete. The fee of $10,000 plus $3,000 owed in accountancy fees paid to Lincoln by the second defendant was not sufficient payment for a builder to build a house of this size.
5.Therefore I am not satisfied that Lincoln ever took over responsibility as the builder of the residence.
6.The second defendant with her husband undertook the building of the residence as an owner‑builder with only some assistance from Lincoln commensurate with the fee paid to Lincoln. The second defendant and her husband obtained a financial advantage by proceeding as an owner‑builder and by not engaging a builder for the project.
7.Lincoln arranged with PCH for the supply of scaffolding on site. The scaffolding pictured in Exhibit 12 is the property of PCH.
8.The frames, braces and wooden planks pictured in Exhibit 12 were parts from a brickie's kit delivered on site by PCH on 9 February 1996.
9.The scaffolding pictured in Exhibit 12 was not erected by PCH or its scaffolder D & L Scaffolding.
10.There is no evidence of who erected the scaffolding in Exhibit 12. Nor is there any evidence as to why that scaffolding was erected in that position. Nor is there any evidence of when that scaffolding was erected.
11.The scaffolding pictured in Exhibit 12 was not properly erected. It had no cross‑brace on one side. If anyone stepped on to it the frames would separate leaving the metal lip of the planks unsupported so that the planks would fall.
12.The scaffolding pictured in Exhibit 12 was placed in sand without any footings to prevent the frame from subsiding. That defect contributed to the accident.
13.Those defects in the construction of the scaffolding referred to (in 11 and 12 above) constituted a hidden danger – a trap for anyone stepping from the balcony onto the scaffolding.
14.The plaintiff was an experienced roof tiler and was familiar with scaffolding. If he had looked before he stepped he would have noticed the missing cross‑brace and realised the scaffolding was unsafe.
15.It would not be reasonable to expect a person stepping onto the scaffold from the balcony to look to check that the scaffold was safe. From the balcony it appeared to be safe.
16.The plaintiff was invited onto the site by his brother. His brother was lawfully on the site engaged in roof tiling. The plaintiff was not a trespasser. He was not unlawfully on the site.
17.The second defendant and her husband made no arrangements with Lincoln about safety issues on site. Safety issues on site were left to individual contractors.
18.Some contractors on site were engaged by Lincoln. Some contractors on site were engaged by the second defendant's husband.
Duty of care and the Occupiers' Liability Act
The second defendant contends that an occupier's duty of care arises entirely at common law and that the provisions of the Occupiers' Liability Act ("the Act") apply only to the standard of care an occupier must reach. That submission relies on the terms of the Act and on a number of authorities in the Full Court of Western Australia and, most recently, the High Court's decision in Jones v Bartlett (2000) 205 CLR 166. The plaintiff on the other hand contends that the Act has application both when considering whether a defendant owes a duty of care to a plaintiff and whether that duty has been breached. The plaintiff submits that, in any event, common law principles apply.
The Act is described in its long title as "an Act prescribing the standard of care owed by occupiers and landlords of premises to persons and property on premises". In s 2 the Act defines an "occupier of premises" to mean "person occupying or having control of land or other premises".
Section 4 of the Act is in these terms:
"4. Application of sections 5 to 7
(1)Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers —
(a)to that person; or
(b)to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.
(2)Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent."
Section 5 in its terms provides for the duty of care of an occupier.
"5.Duty of care of occupier
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2)The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
(3)A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to —
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
The Act goes on in s 6 to exclude an occupier's liability in cases involving the negligence of an independent contractor.
In Westralian Caterers Pty Ltd v Eastmet Ltd (1992) 8 WAR 139 Malcolm CJ (Franklyn and Murray JJ concurring) said at 145 – 146:
"The common law, as it was then understood to be, had developed special rules regarding the duty of care owed by an occupier to persons entering his premises depending on whether the entrant was a contractual visitor, invitee, licensee or a trespasser. In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 the High Court of Australia held that the relevant duty of care should be based on the principles stated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. In doing so, it abandoned the artificial distinctions and special risks regarding the duty of care which had been developed in the line of cases from Indemaur v Dames (1866) LR 1 CP 274 at 288 … .
The purpose of the Occupiers' Liability Act was to achieve by statute what was achieved by the development of the common law by the decisions of the High Court. The statutory provisions did not create a new cause of action for breach of statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson.
In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence. Thus, s 5(4) sets out a number of considerations relevant to 'determining whether an occupier of premises has discharged his duty of care'. That duty of care is the duty, the content of which has been defined by the statute, but only for the purposes of simplifying the law governing the cause of action in negligence against occupiers. There is nothing in the statute which would have the effect that the cause of action in negligence at common law against occupiers has been converted into a cause of action for breach of statutory duty."
In Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204 at 62,005 Murray J referred to s 4(2) of the Act and said:
"That provision makes it clear that regard is to be had to the rules of the common law to determine when a duty of care is owed by an occupier to an entrant upon his or her premises. The statute is to displace those rules as to the duty of care only in the sense that it is the statutory rules which are to set out the standard of care necessary to discharge the duty imposed by law."
At 62,006 Murray J referred to the long title of the Act and said:
"It is clear that it was treated as supplying the standard of care, rather than the circumstances in which a duty of care would arise."
Murray J then went on to say:
"So not only is the Act concerned to leave to the common law the definition of the circumstances in which a duty of care will be held to exist, but it does not seek to displace in any special way the need to resolve the question of fact of causation which the common law would impose to link the finding of the duty of care owed by the occupier in respect of his or her premises to the plaintiff with the harm suffered by the plaintiff. If that finding of fact can be made, then the Occupiers' Liability Act will supply the answer to the question whether in respect of the harm so caused, the plaintiff may recover from the defendant upon the basis that there is established to have been a falling short or breach of the requisite standard of care imposed by the statute having regard to s 5(1) and (4). In my opinion, what I have written above is consistent also with the view of the place of the Act in its operation taken by the Full Court in Wallis v Town of Albany (1989) Aust Torts Reports 80-283."
In Bryant v Fawdon Pty Ltd neither Wallwork J (dissenting) nor White J specifically concurred with Murray J's interpretation of the Act.
In 1994 in Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994, Anderson J (Malcolm CJ and Ipp J concurring) said at 13:
"In my opinion, the Occupiers' Liability Act leaves no room for the operation of the doctrines of the common law as regards the duty of care that is owed by an occupier to an entrant. It is no longer the common law that imposes the duty but the statute and the nature and extent of the duty is defined by the statute … The duty upon the respondent was the duty imposed by the statute. It is a question of fact in any particular case whether the occupier has observed the standard required by the statutory duty."
There was also some limited discussion of this issue by Kennedy J in Baker v Shire of Albany (1994) 14 WAR 46 at 49 where he said:
"Insofar as the indorsement relates to a breach of statutory duty, it may well be that it extends beyond a claim in tort. We were informed, however, that it was intended only as a reference to the Occupiers' Liability Act 1985 (WA). That Act merely modified the common law rules as to the standard of care owed by occupiers. Any action relying upon that Act remains an action in tort. It is unnecessary, for the present purposes, to consider the consequences which could ensue in this case from joining an action in tort with a non‑tortious action."
In Baker's case Malcolm CJ and Pidgeon J each concurred entirely with the judgment of Kennedy J.
The High Court considered the Occupiers' Liability Act in the recent case of Jones v Bartlett (supra). A major issue discussed by the court was whether it was possible for a landlord to be an "occupier" under s 5 of the Act. The Act of course requires that the test be determined according to common law rules (s 4(2)) and the High Court endorsed the common law rule applicable in that case that normally the tenant and not the landlord was the occupier of premises (Gleeson CJ at [45], Gaudron J at [79], Gummow and Hayne JJ at [153]). While the precise issue I am considering was not the issue in Jones v Bartlett three members of the court referred to the occupier's duty of care arising under the Act. Gummow and Hayne JJ at [148] said:
"Section 5 of the statute places a duty upon 'an occupier of premises' to take reasonable care for the safety of persons entering them. …"
Referring to s 9(1) Callinan J at [275] said:
"True, it would be, that, if the respondents were responsible as landlords for the maintenance of the premises, they would then come to owe, pursuant to s 9(1) of the Occupiers' Liability Act, a duty of care towards entrants, of the same kind as might be owed by occupiers of premises to entrants."
Dr Peter Handford, in an article in the 2001 30 UWA Law Rev 75 "Though a Glass Door Darkly: Jones v Bartlett in the High Court" discussed the relationship between the Act and the law of negligence. Dr Handford cited Anderson J's judgment in Tonich v Macaw with approval. He said at 91:
"It may well be that the long title of the Act was not happily phrased; it is inconsistent with other references in the Act (including the side notes to sections 5 and 9) which refer to duties of care. Though the intentions of the drafters are not controlling, the Act was not intended to dovetail with the common law in the way suggested by Murray J in Bryant v Fawden."
Dr Handford concluded his discussion by making this comment:
"It is perhaps arguable that once the old categories of occupiers' liability were submerged by general negligence law as a result of the High Court's decision in Australian Safeway Stores Pty Ltd v Zaluzna, the legislation of Victoria, Western Australia and South Australia became redundant and could be quietly discarded. Whether or not this is right, counsel, courts and judges in South Australia, at least, seem to be taking only limited notice of it."
Dr Handford's reference to South Australia referred to the recent High Court decision in Modbury Triangle Shopping Centre Pty Ltd v Amzil (2000) 176 ALR 411 in which the High Court dealt with a case based on occupiers' liability without reference to the South Australian occupiers' liability legislation. The High Court judgment relied entirely on common law principles.
For the purposes of resolving the issues in this trial it does not seem to me be necessary or desirable to approach the duty of care as the second defendant suggests I should do entirely based on common law. Clearly, under the Act, the legislature has defined an "occupier of premises". If a defendant falls within that definition then I need to consider whether that defendant owed a duty of care to the plaintiff in the circumstances of this case. The existence of a duty of care cannot be determined without reference to the common law of negligence.
It is surprising that among the judges of the High Court there is not an agreed conceptual framework for determining the existence of a duty of care. In Sullivan v Moody (2001) 75 ALJR 1570 five members of the High Court were unanimous in rejecting the three stage test for a duty of care now followed in English courts as propounded in Caparo Industries v Dickman (1990) 2 AC 29. Recently, in a case dealing with the question of the duty of care in cases involving psychiatric injuries suffered by plaintiffs (Tame v New South Wales: Annetts v Australian Stations Pty Ltd [2002] HCA 35), all seven members of the High Court discussed general principles of negligence. There was a general concurrence in returning to a touchstone of reasonableness as the guiding principle in determining the existence of a duty of care in negligence. That touchstone is found in Donoghue v Stevenson [1932] AC 562. (Tame v New South Wales per Gleeson CJ at [9] and [19], Gaudron J at [46], McHugh J at [101], Kirby and Gummow JJ at [185], Hayne J at [249] and [250], Callinan J at [331]).
In the more recent High Court decision in Graham Barclay Oysters Pty Ltd v Ryan: Ryan v Great Lakes Council: State of New South Wales v Ryan [2002] HCA 54 ("Ryan's case") Kirby J set what he considered to be a proper test for determining the existence of a duty of care based on the touchstone of reasonableness:
"That liability should therefore be imposed where it was judged that a reasonable person in the defendant's position could have avoided damage by exercising reasonable care and was in such a relationship to the plaintiff that he or she ought to have acted to do so. Despite its overt circulatory, this formulation might at least offer a return to the substance of Lord Atkin's speech in Donoghue v Stevenson. It might afford a broad formula that poses a factual or jury question and avoids chaos into which other attempted formulae have lately led the law."
The issue at common law in this case is whether it is reasonable to require Lincoln, the second defendant and/or PCH to have had in contemplation the risk of injury suffered by this plaintiff (Tame's case per Gleeson CJ at [12]). Or, put in Kirby J's terms in Ryan's case: Could a reasonable person in the position of Lincoln, the second defendant and/or PCH have avoided damage to this plaintiff by exercising reasonable care and were Lincoln, the second defendant and/or PCH in such a relationship to the plaintiff that it, she and/or it ought to have acted to do so?
Those tests follow naturally from what was said in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. Thus in cases of occupiers' liability the existence of a duty of care, the standard of care and breach are determined by applying the ordinary principles of negligence. Those principles I believe apply to actions under the Occupiers' Liability Act. While the duty of care is imposed by statute (Jones v Bartlett: Tonich v Macaw) its content is properly determined by applying the normal principles of negligence.
Over the years such concepts as "proximity" enunciated by Deane J in the Australian Safeway Stores case have fallen into desuetude. The touchstone of reasonableness however continues and is the same common law concept whether applied by s 5(1) of the Act or under common law principles. I am satisfied that this remains an action in tort despite arising under the Act.
Mr Batalin went on to say that a back would be expected to be symptomatic in situations of stress, injuries or even normal activities and, on the basis of his single clinical and comparative assessment, he could not detect any new injury attributable to the incident on 24 July 1996. He suspected that most of the pathology pre-dated the motor vehicle accident. Mr Batalin advised that the plaintiff should not engage in occupations such as roof tiler or any other labouring occupation and he gave the plaintiff a subscription for a lumbosacral corset.
Mr Batalin gave evidence that he was particularly well qualified in this area. He is an orthopaedic and spinal surgeon and has been a consultant to a spinal unit for many years and is now an Emeritus Consultant. Mr Batalin said that spondylolysis and spondylolisthesis are rare phenomena and probably he would have seen more of these problems than most other people. Mr Batalin said this is not a province of most neurosurgeons but is a specialty of spinal orthopaedic surgeons who specialise in spinal surgery and fusions.
Mr Batalin was asked to review the plaintiff again on 19 December 2000. At that time he examined an MRI dated 25 September 2000 and again noted longstanding multi‑level degenerative disc disease. Mr Batalin saw the plaintiff again on 12 August 2002. Based on a comparative assessment he concluded that day that there had been improvement in the plaintiff's condition which had stabilised. However, his prognosis remained guarded because of the defects and the degenerative changes. He expected the degenerative changes to progress with advancing years and he expects patients with these symptoms to develop spontaneous onset of back pain and symptoms of sciatica in late middle age irrespective of their occupation.
On 5 September 2002 Mr Batalin reported again based on information he received concerning the plaintiff's problems with his knees. Mr Batalin noted that the document showed that as far back as 16 July 1992 Mr Collibee documented that the plaintiff seven years earlier had had surgery to his right patella. Later that month Mr Collibee arthroscoped the plaintiff's left knee and found severe chondromalacia of the patella. Mr Batalin also noted a letter from Mr Collibee in 1994 that put beyond any doubt that the plaintiff had pre‑existing L3 spondylolysis, pre‑existing L5‑S1 spondylolisthesis and pre‑existing multi‑level lower lumbar degenerative changes long before the accident in 1996. Mr Batalin said that even taking his knee problem alone it would be highly unlikely that the plaintiff would be able to continue as a roof tiler irrespective of whether or not he suffered the fall on 24 July 1996.
Mr Batalin was particularly helpful in showing a model and demonstrating what was involved in the plaintiff's symptoms. He explained that spondylolysis simply means a crack or defect in the vertebrae where spondylolisthesis means a shift as well. From studies and research done Mr Batalin said that this occurs during formative childhood years. The plaintiff's degenerative disc disease is a different thing. It is a degenerative problem.
Mr Batalin was asked to consider the evidence that had emerged in the trial of problems the plaintiff had with back pain as an 18‑year‑old when he saw a physiotherapist and had such bad pain that he had to crawl home, evidence that three years later in 1983 he had a back injury for which he had time off work and made a workers' compensation claim, and a 1992 incident where he developed back pain stacking roof tiles resulting in another workers' compensation claim. It was noted that all of these incidents were prior to the motor vehicle accident where the plaintiff did injure his back. Mr Batalin commented that this is exactly the history he would have expected given the plaintiff's three separate pathologies. His opinion is with all three of those symptoms together the plaintiff was simply going to have problems with his back.
Mr Batalin said he was not able to provide an opinion as to how much aggravation or how much disability could be ascribed to the accident in July 1996. But he was willing to make an intelligent guess that the plaintiff had about 20 per cent overall disability in his back to which Mr Batalin thought 15 per cent was due to pre‑existing conditions and, being generous, 5 per cent due to the possible effect of the injury.
Mr Batalin saw the video and he was concerned that to engage in such vigorous activities the plaintiff was simply asking for trouble. The activities he saw were the kind that make a patient with these symptoms symptomatic. They can contribute to further degenerative changes in the knees and further degenerative changes in the spine and be an ongoing cause of his current symptoms.
Under cross‑examination Mr Batalin conceded that a medical practitioner who saw the plaintiff before and after the incident in 1996 would be in a better position to compare the effects than Mr Batalin who only saw him after the incident.
Under cross‑examination Mr Batalin conceded that any one of the plaintiff's pre‑existing developmental and degenerative problems could be asymptomatic. Mr Batalin expressed his admiration for the plaintiff. What he saw the plaintiff doing in the video showed that he picked himself up and got on with it, that he is the sort of person Mr Batalin would like to operate on because he is positive and it is a very important part of rehabilitation.
Findings: Previous medical problems and accidents
The plaintiff has both congenital long‑standing problems with his back and seems to have been extremely unlucky in the number of motor vehicle accidents that he has been involved in over the years. The medical evidence showed that the plaintiff suffers from spondylolisthesis at L5/S1 with a pars defect or slip of five millimetres as well as spondylolisthesis at L3 with no pars defect. Medical witnesses all concur that he suffers secondary multi‑level degenerative disc disease affecting three discs, that is L3/4, L4/5, and L5/S1.
The first evidence of back injury was when the plaintiff was 18 years old and had to take a month off work. The evidence showed that at the time he had physiotherapy which aggravated his condition and he could not even stand up; he crawled to his car.
There was evidence that on three occasions, that is in March 1984, on 10 February 1993 and again on 26 April 1996 the plaintiff was involved in motor vehicle accidents where someone drove into the back of his car. The most serious was the motor vehicle accident in 1993. The plaintiff gave evidence that in 1993 he had a serious motor vehicle accident in which he injured his lower back and his neck. He was off work for a couple of months after that. After that accident the plaintiff returned to work but changed the way he did things. He said it took a long time to get used to doing things with a sore back. It was like trial and error. It took a couple of years to stabilise with physio and changing the way he did things. But he was able to change the way he did things. He was able to avoid any heavy lifting or lugging the tiles around or cutting tiles. However he continued to supervise the men. He employed five to seven people including himself and he did a share of the workload. He laid some tiles, organised the work every day and organised the jobs. Then he organised his workers and made sure everything was there for them to do their jobs. He eventually returned to working very long days from 5.00 am until 6.00 or 7.00 in the evening for five full days as well as Saturday morning.
In his evidence the plaintiff said he had had no back pain before the 1993 accident but that is quite inconsistent with the evidence that emerged during trial. Not only was there the back injury when he was 18 years of age but on 31 January 1993 he suffered a serious back injury after stacking tiles onto a roof hoist. That resulted in a workers' compensation claim and he took time off work.
The plaintiff's knee problems are long standing and extremely serious. The evidence showed that in 1984 he tripped on the roof and had pain in his right knee and was referred to Dr Edibam who performed an arthroscopy on 26 July 1985. There was also evidence that a menisectomy involving the removal of cartilage from the knee was performed at that time. In 1986 the plaintiff had another arthroscopy and in 1988 he had a workers' compensation claim for a knee injury. In 1992 the plaintiff saw Dr Newnham and had further knee pain and was referred to Dr Collibee who performed an arthroscopy on his left knee. In 1997 the plaintiff had further knee problems and was referred to Mr Alexeeff and an arthroscopy was performed on both knees in May 2000.
Findings of fact on the medical evidence
1.I accept Mr Batalin's diagnosis of the plaintiff's back condition including long‑standing pre-existing developmental problems in his back and evidence of degenerative disk disease. Mr Vaughan and Professor Harper concurred with Mr Batalin's diagnosis.
2.Among the specialists I consider Mr Batalin to be the most qualified expert concerning the plaintiff's spondylolysis and spondylolisthesis. I accept Mr Batalin's opinion that most of the plaintiff's back problems pre‑dated the accident and were directly linked to the long-standing pre‑existing developmental problems in his back and his degenerative disc disease.
3.I accept Mr Batalin's rather reluctant opinion that only 5 per cent of the plaintiff's 20 per cent overall back disability was due to the possible effect of injury, the remainder being due to pre-existing conditions. Mr Batalin did concede, however, that a medical practitioner who had seen the plaintiff before and after the 1996 incident would be in a better position to make a comparison.
4.Mr Vaughan had treated the plaintiff after the 1993 motor vehicle accident and reviewed him after this accident. He made a somewhat different assessment from that of Mr Batalin. Mr Vaughan assessed a 5 to 10 per cent loss of back function following the 1993 motor vehicle accident and said that the 1996 accident increased that to 15, possibly 20 per cent. Mr Vaughan conceded his assessment was an educated guess.
5.Although he did not see the plaintiff before the 1996 accident, Dr Galton‑Fenzi made an assessment similar to that of Mr Vaughan. Dr Galton‑Fenzi assessed a 20 per cent disability of the lumbar spine and allocated 11 per cent of that disability to the 1996 accident and 9 per cent to the 1993 motor vehicle accident.
6.Unfortunately neither Mr Vaughan nor Dr Galton‑Fenzi made any assessment of the effect of pre‑existing conditions on the plaintiff's back function. I am satisfied that the plaintiff suffered from long‑standing pre‑existing developmental problems and degenerative disc disease. Mr Batalin took those into account. For these reasons I accept and rely on Mr Batalin's assessment.
7.I also accept Mr Batalin's opinion that, quite apart from his back, the plaintiff's knee problem alone made it highly unlikely he would be able to continue as a roof tiler irrespective of the 1996 accident.
8.I have viewed the video footage and I do not find that it is inconsistent with the plaintiff's evidence. It does show that the plaintiff gets on with his work despite his physical disabilities. As Mr Batalin said, one admires the plaintiff for picking himself up and getting on with it.
Past loss of earning capacity
On his own admission, within 18 months after the accident the plaintiff could have returned to his pre‑accident employment as the supervisor of his own roof tiling business. Dr Galton‑Fenzi agreed with that as well. The plaintiff did not do that. Instead he commenced doing some gardening and some handyman work through McKrill. He worked on his own. When in FY 1999 he commenced supervising his own roof tiling business once again he was able to bring that business back to a stage where he now has more employees and McKrill's earns even more than it did before the accident.
In Australia a plaintiff is compensated for loss of earning capacity and not for loss of earnings (Medlin v State Government Insurance Commission (1995) 182 CLR 1 At 4). Nonetheless no damages can be recovered for loss of earning capacity unless that loss is productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347).
I accept the plaintiff's calculations that his average earnings over the three years prior to the accident were $49,112 gross per year or $715.46 net per week. Despite his earning capacity having been regained within 18 months of the accident I think it is fair to award $34, 273.92 for FY 1997 and $22,651.92 for FY 1998. I do not make an award for FY 1999. By that time the plaintiff was quite able to have been earning his pre‑accident rate. By choosing not to make that award I am also taking account of the fact that his tiling business has virtually ceased operating at the time of the accident due to a downturn in the industry. Even had he not been injured market forces would have substantially reduced his earnings in FY 1997.
Therefore I award $56,925.84 for past loss of earning capacity. I award interest at 3 per cent for eight years = $13,662.20.
Loss of superannuation
I award 7 per cent of past economic loss = $3,984.80 for past loss of superannuation benefits. I also award interest at 3 per cent for eight years = $956.35.
Future loss of earning capacity
This is one of those rare cases where I am satisfied there should be no award for future loss of earning capacity. The plaintiff's congenital back problems, the back injury he suffered in the 1993 motor vehicle accident, his degenerative disc disease, and his serious, long term knee problems were ongoing at the time of this accident. I have watched the video and have seen what he is able to do. I am not satisfied that his 1996 fall left him any less able to supervise his roof tiling business then he was in 1996 prior to the accident. This is an area of the plaintiff's evidence which I did not find to be entirely satisfactory. He minimised his congenital back problems and was untruthful about previous back injuries. In these circumstances he has not satisfied me that he will have any future loss of earning capacity as a result of this injury.
Future medical treatment
The plaintiff claims for Paracetamol/Codeine tablets at $10 per week for two years and $20 per week per year thereafter. Because of my acceptance of Mr Batalin's evidence I do not find that his medication is needed entirely because of the accident. The plaintiff claims a total of $4,666.69. I would reduce that by 75 per cent to take account of his need for medication to treat his other back problems. I award $1,166.67 for future medication. On the same basis I award $33.75 for exercise training to strengthen his back and I award $345.16 for future consultations with his general practitioner. Therefore I award $1545.58 for total future medical treatment.
Pain, suffering and loss of amenity
The plaintiff's back was really sore when he drove home from the building site after accident. He saw Dr Eaton that afternoon. He tried to rest his back but he had trouble sleeping. He had physiotherapy but it seemed to aggravate his back. He tried swimming and walking as an exercise programme. During the next 18 months he suffered depression, a sore lower back and pain as if his foot was asleep. The plaintiff did not try to go back to work for some 12 months but even when he did try he was in a bad state. His lower back hurt too much to do any lifting or carrying. Even at the time of trial the plaintiff was very uncomfortable when he found it necessary to sit in the witness box in court for a full day.
The plaintiff used to do scuba diving but is unable to do that anymore. Even at the time of trial the plaintiff suffered pain down his left leg into his foot as if his foot was asleep. While I accept that many of the plaintiff's back problems were pre-existing, nonetheless he was managing prior to the accident. I am satisfied that the aggravation from the accident caused the plaintiff considerable pain and suffering and that lasted for a number of years. Some of his symptoms continue. It may be because of his congenital condition and degenerative disease that some of these symptoms would have developed in any event. But the accident was a serious accident and it certainly aggravated and made his back symptomatic.
For these reasons I assess damages for pain suffering and loss of amenity at $20,000.
Summary
Pain suffering loss of amenity $20,000.00
Past loss of earning capacity $56,926.00
Past loss of superannuation $3,985.00
Interest on past loss of earnings and past loss
of superannuation $14,619.00
Future medical treatment $1,546.00
Total award $97,076.00
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