Melvan v Signet ENGINEEERING Pty Ltd - [2002] WADC 205

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MELVAN & ANOR -v- SIGNET ENGINEEERING PTY LTD [2002] WADC 205

CORAM: COMMISSIONER REYNOLDS

HEARD: 18-22 MARCH 2002

DELIVERED : 27 SEPTEMBER 2002

FILE NO/S: CIV 4179 of 1998

BETWEEN: IVAN MELVAN
First Plaintiff
ABESQUE PTY LTD
Second Plaintiff
AND
SIGNET ENGINEEERING PTY LTD
Defendant

Catchwords:

Damages - Safe system of work - Liability of contractor for employee of subcontractor - Negligence - Work accident on mine site - Boilermaker/welder - Shoulder injury - Rotator cuff tendon tear

Legislation:

Occupiers' Liability Act 1985

Workers' Compensation and Rehabilitation Act 1981

Result:

Judgment for the plaintiff - second plaintiff entitled to indemnity
Damages assessed in the sum of $154,838 excluding workers' compensation

Representation:

Counsel:

First Plaintiff                :     Mr T H Offer
Second Plaintiff            :     Mr D R Clyne & Mr G T Smith
Defendant:     Mr D M Bruns & Mr J M Willers

Solicitors:

First Plaintiff                :     Trewin Norman & Co
Second Plaintiff            :     Crisp Citivella Smith
Defendant:     Willers & Co

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Climaze Holdings Pty Ltd v Dyson & Anor (1995) 13 WAR 487
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Fennell v Supervision and Engineering Services Holdings Ltd and Santos Ltd (1988) 47 SASR 6
Forsayth Mining Services Pty Ltd v Jack & Anor, unreported; FCt SCt of WA; Library No 950300; 10 May 1995
Kondis v State Transport Authority (1984) 154 CLR 672
McLean v Tedman & Anor (1984) 155 CLR 306
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Case(s) also cited:

James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Jones v Dunkel (1959) 101 CLR 298
Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1946] 2 All ER 345
Oceanic Crest Shipping Co v Pilbara Harbour Services (1986) 160 CLR 626
Thomas v O'Shea (1989) A Tort Rep 80-251

COMMISSIONER REYNOLDS:

Introduction

The first plaintiff ("the plaintiff") was born on 15 May 1942 and is 60 years of age. At all material times he was a boilermaker/welder. He alleges that on 14 August 1994 he suffered an injury to his right shoulder when he was attempting to weld a piece of steel plate to the interior of a chute during the refurbishment of a mining plant ("the accident").
At the time of the accident the plaintiff was employed by the second plaintiff as a boilermaker/welder. The defendant was engaged by Gold Mines of Australia Limited ("GMA") to supervise the refurbishment of the mining plant ("the refurbishment") at its Youanmi Minesite ("the site") in Western Australia. Before the accident the second plaintiff agreed to hire the plaintiff to the defendant which acted as agent for GMA. It is alleged that it was a term of the agreement between the second plaintiff and the defendant that the plaintiff would work on the refurbishment at the site as directed by the defendant. At the time of the accident the plaintiff was attempting to weld the piece of steel plate at the request of the defendant's site supervisor, Daniel McManus ("Mr McManus").
The plaintiff alleges that the accident was caused by the negligence of the defendant and/or alternatively as a result of a breach by the defendant of its duty pursuant to the Occupiers' Liability Act 1985 ("the Act"). He claims that he was injured as a result of the accident and seeks damages against the defendant. The defendant denies the plaintiff's claim and alleges that if the plaintiff has suffered injury, loss and damage as alleged then it was caused either wholly or in part by the plaintiff's own negligence.
The second plaintiff also alleges that the plaintiff was injured and has suffered loss and damage as a result of the negligence and/or breach by the defendant of its statutory duty of care pursuant to the Act. The second plaintiff claims against the defendant an indemnity in respect of all payments made by it to the plaintiff pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981 as amended ("the WC Act"), consequent upon the injury suffered by the plaintiff in the accident. The defendant denies that it is in any way liable to the second plaintiff. While liability remains an issue as between the second plaintiff and the defendant they agree that the quantum of the payments made by the second plaintiff to the plaintiff is $132,385.94 made up by $103,708.04 for weekly payments and $28,677.90 for statutory allowances. The defendant has raised an issue as to the reasonableness of the second plaintiff making weekly payments in the amount it did.
Therefore key issues to be determined include both liability and quantum as between the plaintiff and the defendant and also as between the second plaintiff and the defendant.

The plaintiff's work history and the accident

The plaintiff was born in Croatia. He left school when he was 12 or 13 years of age and worked on a farm to help support his family. In 1959 he commenced training as a shipwright welder. Thereafter he worked as a boilermaker/welder/fitter. He left Croatia and went to New Zealand in 1967. He came to Australia in 1980 and since then has worked with a number of different employers in the north west of Western Australia and at various mine sites as a boilermaker/welder. He mainly did fabrication work. The plaintiff's work in this State as a boilermaker/welder was punctuated by a period of about 18 months when he owned and operated a delicatessen in Dalkeith. It is not clear on the evidence when he operated the delicatessen but it seems that it must have been many years ago when his children were young. He changed the nature of his work because he wanted to live at home with his family rather than live and work on minesites in the country.
The plaintiff commenced working for the second plaintiff before Christmas in 1993. The second plaintiff had a workshop in Welshpool but most of the time the plaintiff worked in the country on minesites. Before going to the site he worked at Leonora and Coolgardie. As already mentioned, at the time of the accident the plaintiff was working on the refurbishment of a mining plant at the site. The plant had not been used for some years and GMA wanted to recommission it to treat gold bearing ore. The refurbishment required various parts of the plant to be altered or replaced.
At the time of the accident Mr McManus was employed by the defendant and was on site supervising the refurbishment. Henk van Duyn ("Mr van Duyn") was employed by the defendant as a construction manager and was on site managing the refurbishment. The second plaintiff did not have anyone on site in a supervisory or management role in relation to the refurbishment. The second plaintiff supplied a number of tradesmen including the plaintiff to the defendant as agent for GMA for the refurbishment. I accept the plaintiff's evidence that Mr McManus told him what jobs he had to do. I also accept the evidence of Mr McManus that he supervised the refurbishment and the day‑to‑day activities on site in relation to it.
Mr McManus gave evidence that there were no plans which showed the work that he wanted done on the chute. The chute could be otherwise described as a large metal bin. It was an integral part of the plant and was positioned about three metres or so above the ground. When the plant was operational ore would drop into the chute from above. The top part of the chute was open, rectangular, perhaps square, and the volume of the chute decreased from top to bottom. Towards the bottom of the chute there was an opening on one side. Ore which had been dropped into the chute eventually exited the chute through this opening and was then carried away on a conveyor to another part of the plant. Mr McManus gave evidence that he showed the chute to the plaintiff and told the plaintiff that he wanted the opening closed off. Mr McManus said that he discussed the job with the plaintiff and the reasons for it.
Mr McManus gave evidence that it was decided to use 10 or 12 millimetre thick plate to block off the opening. He said that sheets of plate had been delivered to the site by the second plaintiff on the request of the defendant for GMA. He could not recall whether or not he was with the plaintiff when the particular piece of plate was selected for the work in question. I accept the plaintiff's evidence that he and Mr McManus looked around for about half an hour before they found a suitable piece of plate and that when they found it Mr McManus told him to cut it to size. I also accept the plaintiff's evidence that he then went to the chute, measured the opening and then cut a piece of steel plate to the required size from the piece they had found. The size of the smaller piece that was to be used to close the opening was approximately 500 millimetres wide and 650 millimetres on one side and 700 millimetres on the other.
The plaintiff estimated the weight of the piece of steel plate he cut to size to be about 30 to 40 kilograms. Based on a visual inspection of the chute about two weeks before trial Mr McManus estimated the weight of the piece of plate to be between about 25 to 40 kilograms. In a written statement made by Mr McManus on 15 December 1995 he estimated the dimensions of the piece of plate to be 13 inches x 23 inches x 12 millimetres thick and its weight to be 45 to 50 kilograms. Douglas Wright, ("Mr Wright"), a retired mechanical design engineer gave evidence that a piece of steel plate 700 millimetres to 650 millimetres long, 500 millimetres wide and 12 millimetres thick would weigh about 32 kilograms. His estimate took into account the density of steel plate and the dimensions of the particular piece in question. The evidence of the plaintiff and Mr McManus on the weight of the piece of steel plate used to close the opening was subjective. I find that the estimate of Mr Wright is more reliably based. I therefore find that the weight of the piece of steel plate cut to the required size by the plaintiff was about 32 kilograms. I should add that in my view the outcome of this case does not turn on whether the weight of the piece of steel plate was closer to 30 kilograms or 40 kilograms.
The plaintiff was left alone to decide how he would go about welding the plate to the chute. The plaintiff got into the chute to do the welding. No-one has suggested that it should or could have been done from outside the chute. The chute was only large enough for one person to be inside to prepare for and do the welding.
Before entering the chute the plaintiff (1) welded a lug or handle about 3 inches square and about 5 inches long onto the piece of plate at right angles to the surface of the plate and at about the mid‑point of one of the longer sides to make it easier to hold, (2) balanced the piece of steel plate flat on the perimeter of the top of the chute, and (3) lowered his electrical grinder, hammer and oxy-set into the chute. He then lowered himself into the chute and put his right foot onto the top of a bar which was an inverted "V" shape and which ran from the back to the front of the chute near the bottom of the chute. The opening was at the front and towards the bottom of the chute. He then put his left foot up against the back wall of the inside of the chute. He lowered the piece of plate into the chute and made himself as comfortable as he could in a squatting position. Someone may have assisted him to lower the piece of plate. Nothing turns on that. He then manoeuvred the piece of plate into place. Mr McManus stated in his statutory declaration that the area in the chute in which the plaintiff attempted to and eventually did do the welding was "confined" and "about 1.5 m x 1 m".
Because the volume of the chute decreased from top to bottom the plaintiff had to hold the plate so that its top end was leaning outwards ie, away from him as he was squatting in the chute. While using his right hand to hold the lug that he had welded onto the plate to keep the plate in position he used his left land to reach behind him to get his welding hand-piece. It was at this point that he felt a sharp pain in his right shoulder which caused him to drop the plate. He then got out of the chute. His right shoulder felt very painful and so he decided to attend the first aid section on the site.
At first aid the plaintiff's shoulder was treated with an ice pack. He gave evidence that after this initial treatment on the day of the accident he went back to the chute and finished the job. He said that it was difficult because of the pain in his shoulder. Thereafter he continued to work on the site for about seven to 10 days while still experiencing pain in his shoulder. Subsequent investigations showed that the plaintiff's rotator cuff tendon of the right shoulder was torn.
By par 10 of the plaintiff's amended statement of claim the particulars of the defendant's alleged negligence and/or alternatively its breach of s 5 of the Act are set out as follows:
"(a)failing to take any or any adequate precautions for the safety of the First Plaintiff while he was working for the Defendant;
(b)exposing the First Plaintiff to a risk of damage or injury of which it knew or ought to have known;
(c)failing to provide a safe place of work for the Defendant;
(d)failing to provide adequate assistance to the First Plaintiff in fitting the steel plate in the chute;
(e)failing to warn the First Plaintiff not to fit the steel plate to the chute without adequate assistance;
(f)allowing or permitting the First Plaintiff to fit the steel plate to the chute without adequate assistance."
Mr McManus stated in his statutory declaration that there was no other way of carrying out the work. At trial he gave evidence that a tractor crane was on site which could have been used by the plaintiff. The crane could have lowered and then suspended the piece of steel plate in position to enable it to be welded to the chute. He also gave evidence that a block and tackle could have been used to hold the plate in the chute. He said that something could have been welded on the top of the chute or a pipe placed across the top of the chute to position a block and tackle. Mr McManus also gave evidence that shoulders could have been welded inside the chute on the bottom edge of the opening to support the weight of the plate when it was in place. He also gave evidence that if the plaintiff had sought the assistance of someone else to carry out the work then it would have been provided.
Mr Wright was called as a witness by the defendant. He has had experience as a design engineer in supervising boilermakers and making sure that materials were properly placed in position for them to ensure their safety. A minute of the substance of his expert evidence was tendered into evidence by the defendant and given Exhibit No 34. It provides inter alia:
"3.Subject to the practicability and necessity (given the weight of the steel plate), safe methods for the First Plaintiff to seal the side of the chute with steel plate would include the following:
3.1Tack-weld a lug under the chute opening, lower the steel plate into chute using the crane and swing the steel plate to rest on lug, loosen rope while tilting plate on lug to rest against chute side.
3.2Tack‑weld a lug to the rear of the steel plate then proceed as in paragraph 3.1 except that weight of steel plate is taken by lug resting on lowest edge of chute hole.
3.3If access inside chute is restricted then proceed as above except that steel plate is suspended from crane outside the chute before being manoeuvred through hole.
3.4Rather than attach plate to inside of chute attach it to the outside whilst positioned by forklift or crane.
3.5In addition to the temporary floor that was constructed inside the chute, provide a temporary inclined metal or wooden slideway on which the steel plate is transferred across chute interior to vicinity of hole.
3.6Subdivide the steel plate or use multiple thinner steel plates."
The reference to the first plaintiff is a reference to the plaintiff. In relation to the point made in par 3.6 by Mr Wright, I accept the plaintiff's evidence to the effect that it is far preferable to weld one piece of plate into position than two or more pieces.

Negligence in relation to the accident

In my view the system of work by which the plaintiff prepared to weld the piece of steel plate into position to close the opening in the chute and which led to his injury was both unsafe and difficult. It exposed him to a reasonably foreseeable risk of injury of the sort he actually suffered.
While the inverted "V" shaped bar took some of the weight of the plate when the plaintiff held the lug on the plate with his right hand and reached for his welding handpiece with his left hand, I accept his evidence that in this position the plate was heavy. He was holding the plate while he was in a very confined space and in a very awkward position. The centre of gravity of the plate was away from his body and further away from the welding handpiece that he was reaching for.
Further to all of this the evidence to which I have referred clearly shows that there were several alternative methods of performing the work in a safe or at least in a safer manner namely, the use of a crane, the use of a block and tackle and the use of shoulders welded to the inside of the chute.
All of this leads me to consider whether or not there was an obligation on another party to supervise the work of the plaintiff so as to ensure that it was performed in a manner which did not give rise to a reasonably foreseeable risk of injury being suffered by him. In this case the only parties who may relevantly fall to be considered in respect of that duty are the second plaintiff and the defendant.
An employer has a non‑delegable duty of care in regard to its employees whilst they are working in the course of the employer's employment. See Kondis v State Transport Authority (1984) 154 CLR 672 and Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. However the law has recognised that there may well be situations where the employment of one of its employees is delegated to another party or where de facto control of the employee has passed to another party. In Fennell v Supervision and Engineering Services Holdings Ltd and Santos Ltd (1988) 47 SASR 6 the first respondent employed the appellant as a storeman and hired his services to the second respondent. The appellant injured his back whilst attempting to manually handle a steel flange which weighed more than 300 lbs. The appellant had sued both respondents for damages for personal injury and at trial he was awarded 70 per cent of his damages from the second respondent, there being a finding of 30 per cent contributory negligence. Both the appellant's claim in negligence against the first respondent and the second respondent's claim for contribution against the first respondent were dismissed.
At p 7 King CJ stated as follows:
"As to the contribution proceedings, I think that it may well have been proper to hold the appellant's employer, the first defendant, liable to the appellant for breach of a non‑delegable duty to provide a safe system of work. It is unnecessary, however, to decide this point. De facto control of the appellant had passed to Santos Ltd and the fault which caused the appellant's injury was that of Santos Ltd. Whatever may have been the position between the appellant and his employer, as between the employer and Santos Ltd the responsibility for the safety of the appellant lay with Santos Ltd. If, therefore, the employer were held liable to the appellant, it would have been entitled to recover contribution to the extent of full indemnity from Santos Ltd. It would therefore be proper to exempt the first defendant from liability for contribution. The claim for contribution was rightly dismissed."

At 13 and 14 Jacobs J expressed the same view. The Full Court of the Supreme Court of South Australia found that it was not necessary to determine the question of whether the law would not impute to the first respondent a non‑delegable duty of care because in the circumstances it was neither "just nor equitable" to attribute to the first respondent any responsibility for the damage suffered by the appellant and exempted the first respondent from liability to make a contribution. Section 26 of the Wrongs Act 1936 as amended which applied in this particular case relevantly provided that:
" … the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity."
The law also recognises that there may well be situations where a principal owes a duty of care to an independent contractor. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31 Mason J as he then was stated:
"Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co‑ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."
In Climaze Holdings Pty Ltd v Dyson & Anor (1995) 13 WAR 487 at 490 Roland J set out the above passage from the judgment of Mason J in Stevens' case and then stated as follows:
"In the same case (at 45), in a joint judgment, Wilson and Dawson JJ said of the relationship between principal and independent contractor that concepts of proximity and foreseeability may apply, but warned 'to equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees'.
The modern law of negligence tends to look beyond predetermined or consensual relationships. It looks to see whether between one person and another there is a relationship of proximity which will enliven 'a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another' — per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ discussing the absorption of the rule in Rylands v Fletcher (1868) LR 3 HC 330 by the 'principles of ordinary negligence' in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 556 – 557."
In Climaze the first respondent was a partner in a roof plumbing firm known as Dyson & Sons. Dyson & Sons had been engaged by the appellant to fix metal wall cladding to an industrial structure. The second respondent was the appellant's public liability insurer and was not obliged to indemnify the appellant for the first respondent's injuries if the first respondent had been employed as an independent contractor. The trial Judge found that the first respondent was an employee of the appellant and dismissed the claim against the second respondent. On appeal the Full Court of the Supreme Court of Western Australia found that the relationship between Dyson & Sons and the appellant was that of principal and independent contractor. However, it also held that the general principles of negligence were still applicable to establish the existence of a common law duty of care. A principal may still be under a duty of care to those engaged where the work involves a degree of risk. The provision of scaffolding was the responsibility of the appellant. There was evidence that representatives of the appellant had seen the first respondent on previous occasions working in a similar manner, so that it was foreseeable that the first respondent could have suffered an injury. It was held that the appellant owed the first respondent a duty to provide a safe system of work.
The principle in Stevens' case to which I have referred was also recognised by the Full Court of the Supreme Court of Western Australia in Forsayth Mining Services Pty Ltd v Jack & Anor, unreported; FCt SCt of WA; Library No 950300; 10 May 1995. In that case the first respondent was a painter. After referring to various authorities at 25 – 26 of his judgment Malcolm CJ stated as follows:
"In the present case, of course, the first respondent was not employed by Forsayth. He was employed by United Corrosions. His labour, however, was made available to Forsayth pursuant to a contract with United Corrosions to provide labour to carry out industrial painting on site. It was to be implied from the circumstances that the painting was to be carried out when and where directed by KC Dodd as the party engaged by Forsayth to supervise and manage the work. The relevant contract had been entered into by KC Dodd as Forsayth's agent. Forsayth was the party who supplied the cherry picker to the site for the use of independent contractors on site, including United Corrosions and its employees. While on site the cherry picker was under the management and control of KC Dodd. The use of the cherry picker was part of the system of work established on the site for the industrial painting. Clearly, as counsel for Forsayth rightly conceded, there was a relationship of proximity between Forsayth and the first respondent who was on site as an employee of United Corrosions.
In these circumstances it is but a short step to hold that Forsayth was under a duty of care, which was non‑delegable and which was owed to the employees of other independent contractors whose employees were required to operate under the system of work established by KC Dodd. In the circumstances, the first respondent became, in effect, a borrowed employee. He was subject to direction by KC Dodd, who was representing Forsayth in the co‑ordination and supervision of construction, concerning when and where he was to carry out industrial painting work. In my opinion, Forsayth could reasonably have foreseen that, unless the cherry picker was in a safe condition when supplied and was properly maintained and used on the site in a safe manner, there was a risk of injury to those who were required to use it. Likewise, it was reasonably foreseeable that, unless properly supervised and instructed, the employees on site, including those working for independent contractors, such as the first respondent and Murray, could be exposed to injury.
In my opinion, there was in this case an element in the relationship between the parties which generated a special responsibility or duty on the part of Forsayth to see that reasonable care was taken in the establishment of a safe system of work. The learned Judge found there was a breach of this duty. In my opinion, this had the effect that Forsayth was liable, not vicariously but because KC Dodd's failure to adopt a safe system of work was a breach of Forsayth's non‑delegable duty of care to ensure that reasonable care was taken."
Thus Malcolm CJ imposed liability on a head contractor (Forsayth) in respect of the employee of an independent contractor where the head contractor had in effect borrowed an employee.
On or about 22 February 1994 the defendant and GMA entered into an agreement for engineering, procurement, construction, management and commissioning management services for the proposed sulphide ore treatment facilities to extract gold from gold bearing ore at the Youanmi Minesite. The works included (1) the re‑arrangement of the grinding section to permit milling of sulphide ores and regrinding of the flotation concentrate, (2) construction of a new froth flotation plant to prepare a sulphide concentrate together with the thickening of tailings and the thickening of the concentrate, (3) revisions to the existing tankage to accommodate CIL treatment of bacterial oxidation residues and flotation tailings and upgrade of the gold room, and (4) installation of grinding, slaking and storage facilities for calcrete and quicklime. Clause 2.8 of the written agreement between the defendant and GMA provided inter alia that the defendant directly supervise the progress and quality of contractors' work, monitor contractors' safety procedures and contractors' adherence to the procedures and advise contractors and ensure corrective measures are taken in relation to safety hazards.
A multiple number of contractors were engaged to carry out different aspects of the works The second plaintiff was engaged by GMA to construct new stainless steel tanks used in the bacterial oxidation process ("the Biox plant") on the recommendation of the defendant.
At some stage GMA acquired an old treatment plant that had been "mothballed" for sometime. It believed that the plant was in excellent condition and wanted to incorporate it into the treatment facility at the site. The defendant appreciated the need to properly inspect the old plant to determine what repairs and maintenance had to be carried out before it could be re‑commissioned. On 16 March 1994 Mr van Duyn, employed by the defendant, sent a fax to the second plaintiff which stated inter alia:
"Signet has been engaged by Gold Mines of Australia Ltd (G.M.A.) to establish the C.I.L. and grinding circuits of the Youanmi Process Plant at the Youanmi mine some 600 km from Perth on the Paynes Find – Sandstone road.
This plant has been in "mothball" status for approx. 28 months and the equipment will need servicing and repair prior to preoperational testing and re‑commissioning.
The full extent of such repair and service works is not known at this stage and it is considered that the best option is that work be carried out under the immediate supervision and responsibility of Signet's construction manager Henk van Duyn.
Please provide us with your best possible rates for labour and equipment to carry out work as required and directed by Signet by Friday 18 March 1994 – 12 noon.
The tradesmen are to be provided with the standard tools, suitable to their trade.
An early start is expected to be made on Wednesday 23 March 1993. Please advise notice required to mobilise to site both men and equipment.
…
Day work rates for labour based on 10 hours per day from 23 March – 31 March. (During this period the complete extent of work will become known and the duration will then be extended beyond Easter.
… "
Mr van Duyn set out in the fax that the tradesmen required consisted of a boilermaker, a mechanical fitter, an electrician, a rigger and a diesel welder. In response to this fax the second plaintiff provided the defendant with a set of rates setting out its hourly charge for the various tradesmen and also the rate to mobilise and de‑mobilise the tradesmen to and from the site. On 18 March 1994 Mr van Duyn on behalf of the defendant sent a further fax to the second plaintiff advising the second plaintiff that it had been awarded the contract for the hire of labour and equipment to re‑establish the plant. He also requested that the second plaintiff make the necessary arrangements to mobilise the tradesmen to the site.
The initial inspection of the old plant showed that it needed much more repair and maintenance work than first thought. The initial purchase order issued on 21 March 1994 for the refurbishment of the old plant was for $20,000 and by October 1994 the cost had grown to well over $400,000.
I accept the evidence of Wallace King ("Mr King") the Managing Director of the second plaintiff that the contract for the second plaintiff to construct the Biox plant and the contract for it to provide labour and equipment for the refurbishment of the old plant were separate and distinct despite both projects being carried out in close proximity to each other on the site.
The defendant's defence to the second plaintiff's amended statement of claim provides that the defendant and the second plaintiff entered into a written agreement effective as from 21 March 1994 in relation to the refurbishment of the old plant which agreement was constituted in part by a formal contract document headed "Contract No 1200". An unsigned document fitting this description forms part of the evidence as an exhibit. However, I accept the evidence of Mr King that no such document was ever executed by the second plaintiff. I also accept his evidence that the second plaintiff never agreed to the substance of any such document because it did not know what refurbishment work needed to be done, it was not asked to supply any supervisors for such work and it had no control of the site. Stephen Poulter ("Mr Poulter") the procurement manager employed by the defendant did not know whether such written contract had been executed by the second plaintiff and/or GMA. There was no evidence led by the defence or at all that any such contract was executed.
I accept the evidence of Mr King that one of the second plaintiff's employees Hans de Blanken ("Mr de Blanken") was sent to the site to work on the Biox plant contract. The evidence shows that Mr de Blanken was inclined to adopt a supervisory role on site even if he was not employed to do so. I accept the evidence of Mr King that he was not employed to do so. I accept the evidence of Mr King that one day Mr van Duyn rang him and told him to get rid of Mr de Blanken because he ie, Mr van Duyn, was the supervisor. Based on this evidence in combination with the evidence of timesheets and that of the plaintiff and other employees of the second plaintiff who worked on the refurbishment namely Murray Phillis and Eric Robinson that Mr McManus and Mr van Duyn directed them on what work had to be done I find that on balance Mr de Blanken was not on site after May 1994. I do not accept the evidence of Mr McManus that Mr de Blanken was still on site at the time of the accident. Further, and in any event, I find that in the months leading up to the accident and at the time of the accident Mr McManus was supervising the refurbishment work on the old plant together on occasions with Mr Van Duyn who was also the on site manager. At no time did the second plaintiff employ a person on site to supervise the refurbishment work and nor had it agreed at any time to do so. The clear understanding as between the second plaintiff and the defendant was that the second plaintiff would provide labour and equipment and that the defendant would provide the necessary supervision.
Kevin Dardos ("Mr Dardos"), an engineer and director of the defendant, gave evidence that he sold the idea of the mining project at Youanmi to GMA. He was not able to give any evidence on the day‑to‑day management of the project. He said that the defendant had a services contract with GMA and that GMA engaged sub‑contractors recommended by the defendant to do the work. He also said that the defendant allocated tasks to the various tradesmen but did not tell them how to actually carry out the task. Mr Poulter also gave evidence that while Mr McManus and Mr van Duyn were the bosses on site they did not supervise tradesmen in the sense of telling them how to actually do the job. Clearly both Mr Dardos and Mr Poulter are of the view that the defendant as the project engineer was not required to perform the kind of supervision that the plaintiff and the second plaintiff claim it should have.
The plaintiff worked on site for sometime until late June/early July 1994. He then went to work for the second plaintiff at another minesite called Plutonic. He worked at Plutonic for about three works and then left and went home after he had a dispute with the supervisor. Mr King said that the plaintiff told him that he had stopped work because he had had enough. After the plaintiff had returned home he received a telephone call from Mr van Duyn who asked him to return to the site to give them a hand for one to two weeks. It seems clear on the evidence that both Mr van Duyn and Mr McManus regarded the plaintiff as a very capable tradesman.
The plaintiff gave evidence that he asked Mr van Duyn if the defendant would pay him direct. He said that Mr van Duyn told him that the defendant did not employ people. The plaintiff returned to the site and his wages were paid by the second plaintiff. Mr King gave evidence that he was not aware that the plaintiff had returned to the site until he received a timesheet with the plaintiff's name on it sent from the site to the second plaintiff's head office in Perth for payment. The relevant time sheet was received and/or noted by Mr King on or about 10 August 1994. Also on or about 10 August 1994 Mr van Duyn sent a fax to Mr King stating as follows:
"I have contacted Ivan Melvan last weekend directly to secure his services.
Obtaining someone from the construction show is not possible.
Please add him to the crew."
On learning that the plaintiff was back on site Mr King telephoned Mr van Duyn and told him that he did not want the plaintiff at the site. In the end the plaintiff stayed on site and the second plaintiff added him to its payroll.
Mr King gave evidence that the second plaintiff had nothing to do with supervision in relation to the refurbishment of the old plant. I accept Mr King's evidence that Mr van Duyn was adamant that he, ie, Mr van Duyn was representing GMA and supervising all the men.
I find that on the day of the accident Mr McManus, who was employed by the defendant, was supervising the refurbishment of the old plant. Mr McManus directed the plaintiff to close off the opening in the chute. I also find that Mr McManus was with the plaintiff when the plaintiff chose the piece of steel plate to do the work. Before the accident Mr McManus knew or should have known that the piece of steel plate required to close off the opening would be heavy. He also knew or should have known that welding the plate inside the chute would be a difficult physical task that required a heavy piece of steel plate to be manoeuvred and held in a confined space. He did not organise any labour, machinery such as a crane which was available on site or block and tackle to assist the plaintiff in carrying out the work. He also did not turn his mind to any other system of work which would have made the plaintiff's task safe such as welding shoulders to the inside of the chute to hold the weight of the plate.
I find that as a matter of law the defendant owed a duty of care to the plaintiff to identify and implement a safe system of work for the plaintiff to close the opening in the chute as part of the refurbishment of the old plant on the site and that it breached such duty. The plaintiff sustained his shoulder injury as a consequence of trying to support the weight of the plate preparatory to and immediately prior to welding it in place. Further, in my view the facts of this case lead to the same result as that in Fennel's case namely that even if the second plaintiff had a non‑delegable duty to the plaintiff to provide a safe system of work and breached it, in light of the facts de facto control of the plaintiff had passed to the defendant and it would be proper to exempt the second plaintiff from liability for contribution. The second plaintiff provided labour and equipment only to the defendant. The defendant had made it clear to the second plaintiff that it would supervise the refurbishment. The defendant was supervising the refurbishment. The supervisor employed by the defendant directed the plaintiff to carry out the work in question. While the defendant did not direct the plaintiff on how to actually weld it had complete control on what tasks were allocated to the plaintiff during the refurbishment of the old plant.

I now turn to determine whether or not there was any contributory negligence by the plaintiff. In doing so it is necessary to consider all of the circumstances. Misjudgement, temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection or care is not incompatible with the conduct of a prudent and ordinary person. See Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, Commissioner of Railways v Ruprecht (1979) 142 CLR 563, McLean v Tedman & Anor (1984) 155 CLR 306, and Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.
In Bankstown Foundry Pty Ltd v Braistina (supra) at 310 Mason, Wilson and Dawson JJ said:
"A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the work amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage …"
In Commissioner for Railways v Halley (1978) 20 ALR 409 at 415 Jacobs J said:
"… a finding that the respondent knew or ought to have known that what he was doing was dangerous does not necessarily establish that he was guilty of a lack of reasonable care for his own safety in the circumstances of his employment. It would also need to be established by the appellant that the respondent knew or ought to have known that what he did, even though it was highly dangerous, was not required of him in the performance of his duties. An employee may be required in any part of his employment to do work which could be described as highly dangerous. If he is so required then the obligation on the employer is to take reasonable care to ensure that the employee is aware of the dangerous nature of his work and is aware of the best way of avoiding injury to himself as a result of the dangerous nature of that work. Further, if an employee is required by the nature of his employment to expose himself to some dangers but not to others, the employee is not shown to be guilty of contributory negligence simply by exposing himself to a situation which he knew or ought to have known was dangerous, or even highly dangerous. It must also be shown that he knew or ought to have known that it was not expected of him that he would expose himself to that danger."
It is important to note that the onus of proof lies with the defendant to establish contributory negligence against the plaintiff. I am not satisfied that in the circumstances and under the conditions in which the plaintiff was required to work his conduct amounted to contributory negligence. At worst it amounted to misjudgement.
As at the time of the accident the plaintiff was a very capable and experienced boilermaker/welder who enjoyed working alone and did not expect anyone to tell him how to weld. However, as the plaintiff said, it was not his role to supervise or organise work on site.
The plaintiff knew that the piece of steel plate that he and Mr McManus chose to do the work was heavy. He also knew that the smaller piece of steel plate he cut to close the opening was heavy. He had physically placed the smaller piece of steel plate on top of the chute and later when he was in the chute he lowered it alone or with assistance by hand into the chute. The plaintiff clearly directed his mind to the heavy weight of the plate posing a problem. He welded the lug or handle onto the plate to help him carry and hold it. He used the inverted "V" bar in the bottom of the chute to balance the plate on and thus take some of the weight of the plate. He then put the bottom edge of the plate on the bottom edge of the opening in the chute which would have taken some of the weight of the plate. The bottom edge of the opening in the chute was narrow and so he had to be careful that the piece of plate did not slip off it. The side of the chute in which the opening was located was not vertical. It angled out and away from the plaintiff's position in the bottom of the chute. Therefore the plaintiff had to be careful that the plate did not fall away from him. He also had to be careful that is did not fall towards him.
Clearly the plaintiff thought that he could do the job without any assistance notwithstanding the heavy weight of the plate and the confined space in the chute in which he had to work. Although the plaintiff was not asked and so gave no express evidence on the point I consider it likely that he thought that he could manage with the heavy weight of the plate partly at least because of the assistance of the lug he had welded on the plate and by initially positioning the plate on the inverted "V" bar and later on the bottom edge of the opening in the chute. He misjudged the situation.
Although the plaintiff knew that the piece of steel plate was heavy there is no evidence that he was aware that he risked an injury to his shoulder if he attempted to do the work by himself and/or without any mechanical assistance other than the lug that he had welded onto the plate.
I am satisfied that the plaintiff wanted to efficiently perform work allocated to him by Mr McManus at the site. Included in this was his desire to perform his work without delay. He gave evidence that he did not cut the piece of plate into smaller and more manageable pieces because it was preferable to weld one piece. He also said that cutting and welding a number of pieces of plate would take longer. He also said that welding pieces near the top of the chute to support a block and tackle would take extra time. While there is no suggestion that Mr McManus told the plaintiff to do the work as a matter of urgency there is also no evidence that Mr McManus told the plaintiff to take as much time as he needed and to call for whatever help he thought necessary to ensure that the work was done safely.
I find that the plaintiff was the sort of person who enjoyed working alone and who would get on with whatever work needed to be done and that Mr McManus must have known this to be the case. I accept the plaintiff's evidence that after Mr McManus had told him what work he wanted done he then told him to "go for it". This would have further encouraged the plaintiff to get on with the work when he was already that way inclined.
I accept the plaintiff's evidence that a total of about six or seven tradesmen were working at different parts of the old plant. The plaintiff was the only boilermaker/welder working on the refurbishment of the old plant. Mr McManus gave evidence in general terms that if someone on site asked for help then they would receive it. However, there is no evidence as to where the other tradesmen were, what they were doing and whether they were actually available to assist the plaintiff before and at the time of the accident.
The plaintiff gave evidence that the tractor crane (forklift) on site could not have reached the height of the top of the chute. The evidence of Mr McManus is to the effect that it could have comfortably done so. I find that the plaintiff is honestly mistaken and that the tractor crane could have been used to at least suspend the plate in the chute. I am unable to conclude where each of the tractor crane and the larger crane were at the time of the accident. I accept the plaintiff's evidence that at the time of the accident the block and tackle on site was being used to assist the work on the Biox plant.
I am not satisfied that the plaintiff was contributorily negligent. I am not satisfied that the plaintiff did anything other than misjudge how he went about the work. Further, I am of the view that the plaintiff's misjudgement should be weighed against a background made up of Mr McManus telling the plaintiff to "go for it" and other tradesmen being elsewhere on site doing their own work.

Conclusions on liability

For all these reasons I find that:
1.The defendant owed the plaintiff a duty of care to provide a safe system of work and was negligent.
2.The second plaintiff should not be required to make any contribution.
3.The plaintiff was not contributory negligent.

The medical evidence and the plaintiff's injuries

I have already mentioned that the treatment the plaintiff received on site consisted of putting ice packs on his shoulder. Sometime after the accident he told Mr McManus and Mr van Duyn that he could not continue any longer because of the pain. Also, as already mentioned, he returned home about seven to 10 days after the accident.
When the plaintiff returned to Perth he went to see Dr Tye, his general medical practitioner, on 25 August 1994. However Dr Tye was away and so the plaintiff did not get to see him until 1 September 1994. Dr Tye initially treated the plaintiff with analgesics and physiotherapy which produced some but not a satisfactory relief of symptoms. Dr Tye then referred the plaintiff to Mr Soo Tee Lim, ("Mr Lim") an orthopaedic surgeon, to arrange for an arthrogram and perform an arthroscopy.
The plaintiff first saw Mr Lim on 22 November 1994. The arthrogram showed a tear of the rotator cuff tendon of the right shoulder. In view of persistent symptoms and the confirmation of a full thickness tear the plaintiff was admitted to hospital on 6 February 1995 and an arthroscopy was carried out. During surgery it was noted that the tear of the rotator cuff mainly involved the supraspinatus tendon. Mr Lim carried out open decompression, acromioplasty and repair of the torn rotator cuff. Thereafter the plaintiff was treated with physiotherapy. When the plaintiff was reviewed by Mr Lim on 28 March 1995 he complained of persistent pain in his right shoulder and that the surgery had not resulted in any significant improvement. On 7 April 1995 Mr Lim referred the plaintiff to Mr Robinson, orthopaedic surgeon, for further assessment.
The plaintiff saw Mr Robinson on or about 3 May 1995. Mr Robinson thought that the plaintiff had some residual supraspinatus tendonitis and he injected the subacromial space with local anaesthetic to increase the plaintiff's range of movement. A technetium bone scan taken in May 1995 showed significant uptake in the shoulder on the AC joint on the right side. In light of this Mr Robinson decided to carry out an open excision of the acromioclavicular joint to inspect the rotator cuff repair through the superior approach and also inspect the acromion. On or about 29 May 1995 the plaintiff underwent an open decompression and incision of the outer 1 centimetre of the clavicle. The wound from the surgery became infected and for most of June 1995 the plaintiff needed to take antiobiotics and have the wound continually dressed.
When the plaintiff saw Mr Robinson on or about 7 August 1995 he complained of significant pain in his shoulder which limited his ability to elevate the limb beyond 90 degrees. Mr Robinson organised some hydrotherapy and injected the joint with some cortisone. An ultrasound showed a possible partial tear of the rotator cuff. However Mr Robinson dismissed this possibility because the rotator cuff had been inspected on two occasions at operation and there was no significant microscopic tear present. In a report dated 21 August 1995 Mr Robinson stated that the plaintiff was making satisfactory but slow progress with regard to the range of movement of the right shoulder. He stated that he did not think that the plaintiff would be fit enough to return to his duties as a boilermaker in the long term. He recommended vocational assessment and redeployment.
Mr Robinson continued to see the plaintiff in September and October 1995. During this period the plaintiff continued to complain about his right shoulder. His ability to elevate the shoulder reduced from about 90 degrees to about 45 degrees. He was admitted to Glengarry Hospital for three days for intensive physiotherapy treatment using slings and springs. After such treatment he still experienced pain but was able to elevate his arm to 120 degrees. He complained to Mr Robinson that shoulder pain woke him up at night. In November 1995 the plaintiff was discharged from Mr Robinson's care and advised to continue with his own exercises and continue to see Dr Tye.
On 14 May 1996 Dr Tye referred the plaintiff to see Mr Hales. Mr Hales arranged for a MRI scan to be taken. On 22 July 1996 he reported that the scan showed that the supraspinatus tendon was intact with good clearance although there was some anterior focal residual spurring. Mr Hales arranged for the plaintiff to have further physiotherapy to increase the range of movement and strengthen the rotator cuff.
On or about 9 July 1997 the plaintiff applied for a disability pension. The application was approved. In a report dated 24 June 2000 Dr Tye stated that the plaintiff's condition had stabilised. He did not think that the plaintiff would require surgery in the foreseeable future and stated that treatment would consist of analgesics and anti‑inflammatories such as Voltaren Emu Gel.
In a report dated 23 March 2001 Dr Tye stated that on physical examination pain commenced and increased from 45 degrees and it was very painful beyond 90 degrees. A stress test for supraspinatus tendonitis was positive. Dr Tye noted wasting of the supraspinatus and infraspinatus on the right shoulder and that the right biceps belly was wasted to a certain extent. Dr Tye expressed the view that things had not changed for the better. The plaintiff complained of gastric upsets as a result of using Panadeine Forte and Voltaren. He changed his medication to Celebrex which has not produced gastric symptoms.
On 24 June 1998 the plaintiff attended on Dr Home, an occupational physician, for examination and a medico‑legal report. The plaintiff complained to Dr Home of constant pain in the right shoulder. His self‑assessment of his pain was 6 or 7 out of 10. In a report dated 24 June 1998 Dr Home stated that there was no indication for further surgical treatment. He diagnosed ongoing rotator cuff tendonitis. He stated that movements of the right shoulder appeared to be limited by pain rather than any mechanical obstruction. While this clinical finding was subjective it was consistent with the predicted pathology. He thought that the plaintiff's tendonitis problem may be a chronic one with symptoms continuing indefinitely because the plaintiff had been symptomatic for over a period of three years. He assessed the plaintiff as having a permanent disability of 20 per cent of the full efficient use of the right upper limb at or above the elbow.
The plaintiff saw Dr Ker, a consultant physician in rehabilitation medicine, on 13 September 1999. On examination he noted some tenderness and limitation of movement. He also noted wasting of the posterior deltoid muscle and the supraspinatus musculature on the right as compared to the left. In a report dated 11 October 1999 Dr Ker essentially stated that the plaintiff would not get any better or worse in the future. He recommended that treatment consist of occasional use of anti‑inflammatory medications, simple analgesia and daily exercise.
The plaintiff saw Dr Ker again on 6 February 2002. The plaintiff complained of a restricted range of movement of the right shoulder with pain at the extremes of movement. Dr Ker thought that there had been some improvement in his shoulder abduction but that the remainder of his range of movements were largely unchanged. He stated that the plaintiff's right shoulder was still vulnerable to the development of tendonopathic change in the future which he thought would be slow.
The plaintiff was examined by Dr Home on 22 August 2000 and again on 5 March 2002. When Dr Home examined the plaintiff on 22 August 2000 he detected mild wasting of the muscle in the supra‑scapular fossa, the supraspinatus and trapezius muscles. He also noted that the deltoid muscle was perhaps mildly wasted. However, when he examined the plaintiff on 5 March 2002 he noted that there was no evidence of deltoid or supraspinatus muscle wasting. He also noted that the right arm and forearm musculature was larger than the left side. He gave evidence that he would have expected significant wasting.
Dr Home stated in his report dated 6 March 2002 that the level of subjective disability was not consistent with the objective clinical findings. The plaintiff complained to Dr Home that he could not hold a fishing rod in his right hand, he described an inability to use his right hand to undertake any reaching away from his side and to lift an object that weighed more than 1 kilogram. He also reported to Dr Home that he preferred to use his left hand for any lifting or significant manual activity such as vacuuming and cleaning. Dr Home expressed the view that retention of right arm and forearm muscle development was inconsistent with the level of profound disuse as reported by the plaintiff.
Dr Home stated in his report dated 6 March 2002 that relying on the plaintiff's subjective presentation of disability he was unfit to work as a boilermaker. He stated that the plaintiff retained a capacity for full time work of a light manual nature. He expressed the view that the plaintiff would continue to experience mild pain symptoms at the right shoulder due to residual inflammation in that region. He confirmed his previous assessment that the plaintiff had a level of permanent disability of 20 per cent of the right arm at or above the elbow.
Dr Suthers, an occupational physician, first examined the plaintiff in November 1996. He examined the plaintiff on 6 March 2002 to prepare a medico‑legal report. In his report dated 6 March 2002 Dr Suthers stated inter alia:
"PROGNOSIS
His prognosis is guarded in as much as I expect this osteoarthritic process to continue. With regard to the right shoulder however his ongoing pain and impairment probably relates more to his postoperative state. There is some very mild tendonitis around the rotator cuff however this in my opinion does not account for his pain levels of impairment that he demonstrates on physical examination.
PERMANENT DISABILITY
Mr Melvan has a 15% permanent loss of the full efficient use of his right arm according to Item 13 of Schedule 2 of the Worker's Compensation and Rehabilitation Act."
Mr Bell, an orthopaedic surgeon, first saw the plaintiff in about December 1995. At that time he thought that the plaintiff would likely have long term stiffness of the right shoulder joint. He also thought that only conservative treatment would be required. Dr Bell noted pre‑existing degenerative change in the plaintiff's right shoulder. However, in a later report dated 8 January 1996 he stated that these changes would not necessarily have brought the plaintiff's shoulder problems to their current state.
Mr Bell saw the plaintiff again on 28 August 2000 and 28 February 2002. He stated in reports of the same dates and in evidence that on examination the plaintiff had a good general physique and in particular the muscle tone around the shoulder, the arm and the forearm was reasonably well developed with no wasting evident. Mr Bell gave evidence that often patients with shoulder problems can lift considerable weight but not above shoulder height or when doing movements in certain directions. In a report dated 28 February 2002 Mr Bell stated that the plaintiff had a degree of permanent disability in the right shoulder which he assessed at 25 per cent loss of function of the right arm above the elbow pursuant to Item 13 in Schedule 2 of the Workers' Compensation and Rehabilitation Act 1981 as amended.

I assess the plaintiff's future economic loss in the sum of $67,535.

Past travel expenses

The parties have agreed past travel expenses in the sum of $550 and I award that amount.

Future medical expenses

All of Dr Home, Mr Bell and Dr Suthers are of the opinion that the plaintiff does not require active treatment including surgery in the foreseeable future. Mr Lim did not recommend any surgery. Mr Robinson set out in a report dated 14 December 2001 that the plaintiff would not need surgery unless a later MRI showed a tear. The later MRI did not show any tear. Dr Ker has raised the possibility of further decompression and repair surgery. I am not satisfied that surgery is a real possibility in the plaintiff's case.
In my opinion future treatment will be limited to occasional use of analgesic and anti‑inflammatory medications. The plaintiff may need to visit Dr Tye or some other general medical practitioner from time to time.
I assess damages for future medical expenses in the global sum of $500.

General damages

I repeat all of my findings and comments on the plaintiff's injuries and economic loss for the purpose of assessing general damages.
The plaintiff clearly suffered a serious shoulder injury. He has had to undergo surgery on two occasions. On one occasion the wound became infected and this prolonged his hospitalisation and no doubt caused extra inconvenience and frustration. The plaintiff's shoulder injury has no doubt caused a great deal of pain particularly in the early stages. The plaintiff is not having any treatment at present.
I accept that the plaintiff has a permanent injury and has suffered and will continue to suffer pain in his shoulder. However I also think that he has been prone to exaggerate the extent of it. This litigation may well be the reason for that. His muscle tone and hands show that he has been using his right arm to a greater extent than he has been prepared to tell. These comments go to the extent rather than the actual existence of the plaintiff's pain and its interference with his desired lifestyle.
The plaintiff enjoys boating. The video surveillance shows that he can enjoy this recreational activity without any injury related distress. I do not accept as true his statement to Dr Home that he cannot hold a fishing rod in his right hand.
I accept that the plaintiff's injury resulted in his sleep being interrupted. I accept that this was a persistent problem for several years after the accident. While I accept that it is still a problem I think that it is nowhere near as serious as it used to be.
I accept that the plaintiff cannot engage in heavy activity in and about the house which requires movement of his right arm about and above shoulder height. I do not accept that he cannot do the usual domestic work required in and about the house and weeding. The plaintiff is free to pick and choose when and for how long he does this sort of activity.
The plaintiff gave evidence that he has been and is very miserable because of his shoulder injury. Having a pain free and full range of movement of an upper limb is very important. I accept that the range of movement of his right arm and shoulder has been reduced. I think that the plaintiff is prone to be intense and annoyed about things. I accept that he is miserable at times because of the limitations imposed by his shoulder injury. However I do not think that he is constantly or frequently miserable because of his shoulder injury.
I award the plaintiff general damages in the sum of $25,000.

Conclusions

I assess and award the plaintiff damages as follows:
Past economic loss  $49,739.00
Interest on past economic loss  $11,564.00
Future economic loss  $67,535.00
Past travel$500.00
Future medical expenses  $500.00
General damages  $25,000.00
Total$154,838.00
Given the provisions of s 92(c) of the WC Act I add to this figure workers' compensation payments of $132,385.94. This sum is made up by $103,708.04 for weekly payments and $28,677.90 for statutory allowances.
Pursuant to s 93(1)(b) of the Act I find that the second plaintiff is entitled to a full indemnity against the defendant, negligence having established against the defendant, in the sum of $132,385.94 made up as just mentioned.
The provisions of s 93(1)(b) apply irrespective of whatever damages are awarded to the plaintiff worker. Clearly the defendant in this case is not required to pay the sum of $132,385.94 twice.
I will give the parties liberty to apply on the structure and wording of the judgments and costs.