Mendrecki v Doan & Pham & Ors - [2006] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MENDRECKI v DOAN & PHAM & ORS
Judgment of His Honour Judge Rice
22 December 2006
NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
Plaintiff an independent contractor installing air-conditioning units in a house extension - a ceiling joist that had been used as a guide joist was not properly fixed - plaintiff fell to a concrete floor when the joist gave way under his weight - significant injury to right foot.
Issues dealt with - occupiers' liability; whether non-delegable duties; duty and standard of care; whether s 72 Development Act applies to personal injury; application of s 45A and s 45B of Evidence Act when the manager of a defendant company dies during the trial but before giving any evidence.
Judgment for the plaintiff in the sum of $791,973.96.
Development Act 1993 ss 4, 72 and 73; Wrongs Act 1936 Part 1B ss 17B, 17C, 25(1)(c) and 26 ; Occupational Health, Safety and Welfare Act 1986 ss 4(2), 19(1) and 23; Evidence Act 1929 ss 45A and 45B, referred to.
AMF International v Magnet Bowling [1968] 1 WLR 1028; Ferguson v Welsh [1987] 1 WLR 1553; Jones v Bartlett [2000] 205 CLR 166; Wheat v E Lacon & Co Ltd [1966] AC 552; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Neindorf v Junkovic (2005) 222 ALR 631, 80 ALJR 341; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd and Henry [2001] SASC 199; Kondis v State Transport Authority (1984) 154 CLR 672; Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 557; Donoghue v Stevenson [1932] AC 562; Junkovic v Neindorf (2004) 89 SASR 572; Council of Shire of Wyong v Shirt (1979-80) 146 CLR 40; Vairy v Wyong Shire Council (2005) 223 CLR 422; Stephens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Others (2004) 219 CLR 165; Glenmont Investments v O'Loughlin (No 2) (2000) 79 SASR 185; Glavonjic v Foster [1979] VR 536; Bremert v Clark (1966) 8 SASR 294; Todorovic v Waller (1981) 150 CLR 402; Husher v Husher (1999) 197 CLR 138; Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301; Czatyrko v Edith Cowan University (2005) 79 ALJR 839, considered.

MENDRECKI v DOAN & PHAM & ORS
[2006] SADC 140
Introduction

On 16 July, 1998, the plaintiff was installing an air-conditioning unit in the ceiling of a partly built house extension when a ceiling joist upon which he put his weight gave way and he fell to a concrete floor. He sustained significant damage to his right foot and ankle and claims damages, interest and costs. Liability and quantum are very much in dispute.
There are a large number of defendants and it is necessary to say something of their roles, at least by way of overview at this stage.
The first and second defendants, Dr Doan and Dr Pham, are the owners of a home on Woodland Way, Teringie. In 1998 they undertook extensive renovations to their home. The builder doing most of the building work was the third defendant, Mr Deieso.
However, Dr Doan did not use the builder to obtain quotes for, and arrange for the installation of, the air-conditioning. In that regard Dr Doan dealt directly with the fourth defendant, AFA Air-Conditioning Pty Ltd, through the manager/secretary of the company with whom he had previous dealings, Mr Kurda.
The fourth defendant sub-contracted with the plaintiff for the installation of the air-conditioning.
The fifth defendant, Mr Lucio Belletti, was the carpenter who was sub‑contracted by the builder to do the carpentry work on the extension, importantly in this case, the roof and ceiling timbers or supports. The plaintiff fell when he put his weight on a ceiling joist that had not been properly secured.
The position is complicated by the fact that the fourth defendant was, for all intents and purposes, run by Mr Kurda, but unfortunately he died in January, 2006 just before he was due to give evidence. Various statements and documents relating to what he had said about the matter were tendered in evidence pursuant to the provisions of the Evidence Act 1929. Although instructions provided by Mr Kurda were the basis for cross-examination of the plaintiff and other defendants, his account was never given by way of examination-in-chief or the subject of cross-examination. This aspect of the matter is dealt with below.
The position as between the defendants is also the subject of contribution proceedings between them. That is also dealt with below. All disputes between all parties were dealt with at the one trial.
Plaintiff’s case against the defendants
Before considering the facts in detail, I say a little about the plaintiff’s case against each of the defendants. This overview is not designed to be complete or involve the making of findings.
Plaintiff’s case against the first and second defendants (the owners)
The plaintiff’s claim against the first and second defendants is that they were occupiers of the extension for the purposes of the Wrongs Act 1936 (as it then was) and the Occupational, Health, Safety and Welfare Act 1986. Further, it is said they were managers of the works being undertaken at the site, having overall direction and control. The construction work was to be undertaken by the third defendant and the air-conditioning to be supplied and installed by the fourth defendant at the request of the first and second defendants. As mentioned, the fifth defendant was engaged by the third defendant to do the relevant carpentry work.
It is alleged that “...the first and second defendants owed the plaintiff a duty of care to prescribe and provide a safe system of work, including the giving of appropriate directions and the co-ordination of the various work activities” (see Outline of Submissions of the Plaintiff, para 76).
In essence, one of the significant matters relied upon by the plaintiff is that there was defective or inadequate co-ordination of the work activities on site that should have been in place to avoid foreseeable loss or injury. It is said that that lack of proper co‑ordination was a substantial cause of the injury to the plaintiff.
Plaintiff’s case against the third defendant (the builder)
It is alleged against the third defendant that he also was an occupier of the extension and had a duty to provide a safe system of work and to co-ordinate the various work activities. More specifically, the third defendant was under a duty to co-ordinate with the first and second defendants as to who came on to the extension site and was, himself, under a duty to check the work of his sub‑contractor, the fifth defendant (the carpenter), before other people were allowed on site. It is said he failed to co-ordinate and failed to check on the work of the fifth defendant prior to the fourth defendant and the plaintiff coming on site.
I mention at this stage a separate issue between the first and second defendants on the one hand and the third defendant on the other. The third defendant claims, in separate contribution proceedings, that he had an agreement with the first and second defendants whereby the first and second defendants would arrange public liability insurance on behalf of the third defendant. The first and second defendants deny there was any agreement to obtain public liability insurance on behalf of the third defendant and say that obligation rested with the third defendant. There are also secondary arguments depending upon factual findings. The first and second defendants had representation in their insured capacity (Mr Stratford) separate from their uninsured capacity in the contribution proceedings (Mr Dart). Subject to what is said below, there is no need to consider the issues arising on the third defendant’s contribution proceedings if the third defendant is found not to be liable to the plaintiff.
Plaintiff’s case against the fourth defendant (the air-conditioning company)
The plaintiff says that the fourth defendant, through its manager, Mr Kurda, should have liaised with the first and second defendants, and the third defendant, in relation to the safety of its sub-contractor, the plaintiff. It is said that the fourth defendant failed to liaise and therefore failed to realise that the site was not ready for the safe installation of the air-conditioning.
Further, it is said that he failed to conduct his own checks which would have revealed that a ceiling joist was not fixed in a safe manner. Still further, it is said that the fifth defendant warned Mr Kurda that the ceiling was incomplete and that he failed to heed that warning.
Plaintiff’s case against the fifth defendant (the carpenter, Mr Lucio Belletti)
There are a number of aspects to the plaintiff’s case against the fifth defendant but, essentially, it is that the fifth defendant’s work gave rise to a “hidden trap” and that the plaintiff was injured when he relied upon the ceiling joist to take his weight. It is said that the fifth defendant left this particular joist in a dangerous condition knowing that he was not returning for some time (days, maybe weeks) and knowing that the plaintiff, or others, could have been working in the ceiling in the meantime. Further, it is said he should have properly secured the joist or given a clear warning to all defendants that it was unsafe to enter the void, neither of which he did.
The fifth defendant says that a warning was at least given to Mr Kurda that the work was incomplete, but the terms of what was said, and the consequences that follow, depend upon my factual findings.
Various issues
The facts of the case give rise to a number of complex issues on liability, some of which are these:
1.Are the first and second defendants “occupiers” of the extension area for the purposes of the Wrongs Act and the Occupational Health, Safety and Welfare Act?
2.Was the third defendant, the builder, an occupier of the same area for the purposes of those Acts?
3.Assuming some or all of the first and second defendants and the third defendant were occupiers, was a duty of care owed to the plaintiff and what was the extent of any such duty and, further, was that duty discharged?
4.Did the relationship between the fourth defendant and the plaintiff give rise to a duty of care and the extent of any such duty?
5.Did the fifth defendant warn the fourth defendant on the Sunday before the fall that it was not safe for the installation of the air‑conditioning units to proceed?
6.Was the fifth defendant negligent in not properly fixing the ceiling joist upon which the plaintiff put his weight, before the fall?
7.Assuming there is defective building work where the defect or defects arise from the wrongful acts or defaults of two or more persons, does s 72 of the Development Act 1993 apply so as to invoke proportionate liability for personal injury?
8.Has the plaintiff been guilty of any contributory negligence?
Facts in detail concerning liability
The plaintiff was born on 4 November, 1962 and is therefore now aged 44 years. The fall giving rise to the injury took place on 16 July, 1998 when the plaintiff placed his weight on a ceiling joist that gave way and he fell to a cement floor. The plaintiff’s occupation at the time was that of a self-employed air‑conditioning installer. He carried on that business in his own name. He has loss of income insurance that has provided him with a weekly income since that time.
The first and second defendants, Drs Doan and Pham, are the owners of a house property situated at 100 Woodland Way, Teringie, in the foothills and east of the top end of Magill Road, Adelaide. They lived there with their children and Dr Pham’s father.
In about 1996, the first and second defendants commenced to plan extensive additions to their existing house and grounds. The addition to their house was a large undertaking, consisting of many bedrooms, family areas, a kitchen, music room and a very large room known as the ballroom. Speaking generally for the moment, this extension was built by the third defendant.
Other work on the property consisted of a tennis court, swimming pool and landscaping. Those works were undertaken separately from the third defendant, although there seems to have been an overlap of the two projects in the sense that parts of each were occurring at the same time. The first and second defendants contracted out those other works
Concerning the building work to be performed by the third defendant, the vast majority of the dealings were between the first defendant and the third defendant as to planning, price and work to be included and excluded from their contract. Although the second defendant signed the contract to which I will refer later, her involvement with the third defendant, or any of the defendants for that matter, was quite minor. For all intents and purposes, the first defendant conducted all the negotiations with the third defendant on behalf of himself and his wife (the second defendant).
Occupiers’ liability
One of the issues to be resolved as between the plaintiff and the first and second defendants is whether those defendants were occupiers of the premises. There is no doubt on the evidence that the first and second defendants were occupiers of the original family home on to which, or next to which, the large extension was to be built.
Whether a person is an occupier is governed by Part 1B of the Wrongs Act 1936 (SA), particularly s 17B. “Occupier” is defined as:
“occupier” of premises means a person in occupation or control of premises, and includes a landlord.
“Premises” is relevantly defined as:
(a)land; or
(b)a building or structure (including a moveable building or structure); or
(c)(irrelevant)
The question here is whether the first and second defendants were in occupation or control of the extension where the plaintiff fell. The case for the plaintiff is that the first and second defendants were in occupation and/or had the necessary control either exclusively or in conjunction with the third defendant, such that there was shared or a joint occupation.
On the other hand, the case for the first and second defendants is that they had given over occupation, possession and control to the third defendant and that there was no occupation by them, including no joint occupation or possession. The first and second defendants place particular reliance upon clauses 9(a) and (b) and clauses 14(a)(i) and (ii) of their contract with the third defendant (exhibit D(3)43). Those clauses are as follows:
9.(a) The Owner shall give the Builder possession of the site (in a vacant condition) and with suitable all-weather access from a public road to all places on the site where the works are to be carried out from the date of commencement until the time when the Owner becomes entitled to possession under paragraph 14.
(b)During such time the Builder shall have uninterrupted possession of and access to the site PROVIDED THAT the Owner and/or his duly appointed representative and, if applicable, the Lending Institution’s inspectors shall have access to the site providing they do not interfere with or prevent the Builder from carrying out the works.
14.(a) When the Builder considers that the works are practically completed he shall advise the Owner accordingly (and this act is deemed and herein called ‘practical completion’) and give the Owner a written claim or account for the unpaid balance of the contract price and all other monies to be paid under this contract and then the Owner shall within seven (7) days:-
(i)inspect the works and sign and deliver to the Builder a certificate of practical completion certifying the Owner’s satisfaction with the works except for the items detailed in the certificate; and
(ii)pay to the Builder the unpaid balance of the contract price and all other monies to be paid under this contract;
and thereupon the Owner shall be entitled to possession of the works.
Although those clauses give the third defendant the possession he needs to do the works, the question is whether the clauses, on their proper construction and on the actual facts of the case, give him possession and control to the exclusion of the first and second defendants. The first and second defendants argue that they had no entitlement to possession until after the payment contemplated by clause 14 following practical completion.
The authorities to which I will refer do emphasise however that, quite apart from the terms of the contract, whether a person is an occupier is a question of fact, that is, was the person in fact in possession or in fact in control to the exclusion of others or was the person in fact in joint possession.
On its face, clause 9 gives the third defendant the possession of the site where the extension was to be built, from the date of commencement until the first and second defendants become entitled to possession pursuant to clause 14. However, as the evidence to which I will refer shows, as a matter of fact the first and second defendants were in active possession as the works progressed, and, importantly in this case, they specifically excluded the supply and installation of the air-conditioning from the contract with the third defendant. The first defendant specifically engaged the fourth defendant for that purpose and I find that he specifically authorised the fourth defendant to enter the premises for that purpose. Even if nothing else, the first and second defendants were the occupiers of the extension premises for that same purpose.
This is one of those instances recognised by the law where possession, control and occupation are jointly held by a number of persons. It was a shared occupation between a building contractor and site owner: (see AMF International v Magnet Bowling [1968] 1 WLR 1028 at 1052; Ferguson v Welsh [1987] 1 WLR 1553). Although Jones v Bartlett [2000] 205 CLR 166 is distinguishable on its facts, the Chief Justice referred to the “...trite law that different persons may occupy the same premises at the same time” (per Gleeson CJ at para 50).
Justices Gummow and Hayne, in a joint judgment, referred with approval to the approach of the House of Lords in Wheat v E Lacon & Co Ltd. Their Honours said this (para 150):
The decisions upon the UK Act, in particular that of the House of Lords in Wheat v E Lacon & Co Ltd [1966] AC 552, indicate that the identification of a person as an occupier within the meaning of the statute depends on the particular facts, the nature and the extent of the occupation and the control exercised by that person over the premises in question. The definition uses the phrase ‘person occupying or having control’. In Wheat [1966] AC 552 at 589, Lord Pearson observed of the references in the UK Act to occupation and control that: ‘[t]he foundation of occupier’s liability is occupational control, ie, control associated with and arising from presence in and use of or activity in the premises.’
Wheat v E Lacon & Co Ltd [1966] AC 552 is itself authority for the proposition that the same premises may have more than one occupier at any one time and that each of those occupiers owes a duty of care to entrants. As stated, in my view, such was the position here. The evidence shows that, at about the time of the plaintiff’s fall and before it, the third defendant and Mr Kurda gained access to the premises by use of a key held by the first defendant and with his specific permission (TP1562-3). I am satisfied that, by this stage, the extension was at lock-up and that the first defendant held keys to it.

Quite apart from those matters, it must be doubted whether the first and second defendants gave vacant possession as required by the contract. It appears this standard form contract was not adapted for the purposes of this project.
In my view, the first and second defendants and the third defendant were all in occupation of the premises. I should add that such a conclusion accords with the approach of the third defendant.
That being my conclusion, s 17C of the Wrongs Act 1936 (as it then was) requires me to have regard to certain criteria for the purpose of determining the standard of care to be exercised by an occupier of premises. Further, s 17C(1) says this:
(1)Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
The criteria in s 17C(2) are effectively the same as at common law: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Neindorf v Junkovic (2005) 222 ALR 631, 80 ALJR 341.
Is this a case of a non-delegable duty of care?
The case for the first and second defendants is that, if a duty is owed by them, it has been discharged by engaging competent and qualified independent contractors, namely, the third and fourth defendants. The general principles in this area were the subject of discussion by Doyle CJ in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd and Henry [2001] SASC 199. It is sufficient for my purposes to quote paras 40 and 41:
40.In some cases courts have treated a duty of care as personal or non‑delegable, meaning that the duty of care is not discharged by employing a qualified and competent independent contractor to perform the task as a result of which, or in the course of which, the duty of care arises. In such a case the breach of the duty of care by the act or omission of the independent contractor will be a breach of the duty owed by the person who retained the independent contractor. The matter is most simply expressed by saying that in such cases the relevant duty is a duty to ensure that reasonable care is taken.
41.Such a duty has been imposed on employers in relation to the duty to provide a safe system of work, a safe place of work and adequate plant and equipment: see Kondis v State Transport Authority (1984) 154 CLR 672 at 680 Mason J. Such a duty has also been imposed on occasions on an occupier of premises: see Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 and Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313.
The Chief Justice proceeded to discuss the criterion or criteria by which a non‑delegable duty will be imposed. His Honour then said this (para 42.5):
A consideration of the judgments of the various members of the High Court in Burnie and Northern Sand Blasting indicates that a circumstance favouring the imposition of a non‑delegable duty of care is that the employer of a contractor (the issue will mainly arise when the act of negligence is the act of an independent contractor) requires the performance of a task or undertaking, or performance of a task in a manner, that carries with it an inherent and high risk of harm to others. Another significant factor will be an undertaking of a particular responsibility for the safety of another person, or a special vulnerability on the part of that person. But, beyond these broad guidelines, the effect of recent High Court decisions is that one must consider all relevant factors. In my opinion one can at least say that putting aside relationships in which courts have recognised a non‑delegable duty of care usually arises, the performance of a task that does not carry an inherent risk of damage to person or property may be discharged by engaging a competent independent contractor: see Northern Sand Blasting at 333 Brennan CJ.
Applying these principles, the view to which I have come is that this was a case of a non‑delegable duty. The contractor was engaged to perform a task or perform a task in a manner “...that carries with it an inherent and high risk of harm to others.”
Having regard to the facts of this case, the task involved lifting or hoisting the air-conditioning unit into the roof void above the ceiling joists. Great reliance was placed upon the fixing of the ceiling joists in a safe and proper manner. It would have been clear to the first and second defendants that the installation would necessarily have involved the installer relying, at some stages, upon the ability of the joists to take that person’s weight. In my view, there was an inherent and high risk of harm to such a person. The duty to that person is not able to be the subject of a delegation on the facts of this case. This is not a case where the first and second defendants have relied upon an independent contractor “...in a field in which the occupier has not expert knowledge”, to pick up on the words of Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 688. The high risk was there for all to see. It did not need any special knowledge. It would have been apparent to any occupier that each step of the installer on a joist was fraught with the danger of an unexpected fall onto the cement slab. In my view, this was a non-delegable duty imposed on the first and second defendants.
However, in any event, as is discussed below, the first and second defendants were intimately involved in the co-ordination, or lack of co‑ordination, of the other defendants and trades coming on site.
Occupational Health, Safety and Welfare Act 1986
The plaintiff also relies upon s 23 of the Occupational Health, Safety and Welfare Act 1986 (“OHSW Act”) which provides:
Duties of occupiers
23.     The occupier of a workplace shall ensure so far as is reasonable practicable―
(a)     that the workplace is maintained in a safe condition; and
(b)     that the means of access to and egress from the workplace are safe.
Maximum penalty:        For a first offence―division 2 fine.
For a subsequent offence―division 1 fine.
Section 23 itself gives rise to a cause of action against an occupier. I have already concluded that the first and second defendants were occupiers for these purposes. The duties imposed are at least as onerous as those imposed at common law. On its face, s 23 gives rise to a non-delegable duty of care, that is, a duty to ensure that, so far as is reasonably practicable, reasonable care is taken for the safety of the plaintiff.
By virtue of s 4(2) of the OHSW Act, the plaintiff is deemed to be an employee of the fourth defendant, being the company to which he was sub‑contracted. The duty imposed by s 19(1) of the OHSW Act, which flows from the relationship deemed pursuant to s 4(2), is a higher duty than is imposed at common law (see Complete Scaffold (supra) at para 56).
I therefore conclude that there is a non-delegable duty also imposed on the fourth defendant (see also Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 557 at para 93). The fourth defendant was a joint occupier with the first and second defendants of the extension area for the purpose of the installation of the air-conditioning.
Principles relating to the existence and content of duty of care in negligence; breach of duty
As has been observed a number of times in the authorities and texts, there is no single test to identify the existence of a duty of care. The plaintiff here is content to rely upon the neighbourhood test propounded by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. It is sufficient for my purposes to refer to the judgment of Doyle CJ in Junkovic v Neindorf (2004) 89 SASR 572 (at paras 4-6):
I begin with some general propositions.
The first is that there is no single test or principle in Australian law for determining whether the relationship between two persons is such as to give rise to a duty of care, a breach of which is actionable in negligence: Sullivan v Moody (2001) 207 CLR 562 at [48]-[53]; Brodie (at [315]-[319]). The fact that it is foreseeable that a careless act or omission on the part of one person may cause physical harm to another does not necessarily mean that the former person is subject to a legal liability to compensate the latter if there is such carelessness, and harm results: Sullivan (at [42]). It will usually be necessary to consider the circumstances more closely before deciding whether a duty of care arises.
Those general propositions are relevant because the liability of an occupier of premises for injury to a person who comes on those premises, the injury being attributable to the state or condition of the premises, is to be determined in accordance with the principles of the law of negligence: see s 20 of the Civil Liability Act and Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488.
And later (para 22):
A purpose of the tort of negligence is to promote the taking of reasonable precautions to prevent injury to others, not to provide protection in all circumstances: Hayne J in Brodie (at [315]). A duty of care should express what amounts to the taking of reasonable care in all the circumstances for one’s neighbour. The content of a duty of care must reflect, to some extent, community standards in terms of what is reasonably expected from those on whom the duty of care is imposed, and by those in whose favour it exists. To say this is not to suggest that a duty of care is imposed whenever that would be fair or reasonable: cf Sullivan (at [53]). And, as I said earlier, foreseeability of the risk of injury is not always enough to lead to the conclusion that a duty of care is owed.
That case involved a claim against a householder who was holding a garage sale and a potential customer tripped on an uneven section of the driveway. Although His Honour was in dissent in the Full Court, the substance of his analysis was approved by the majority of the High Court in Neindorf v Junkovic (supra). Doyle CJ found that the householder owed the potential customer a duty of care in respect of the safety of the premises. The issue was the scope of that duty (para 26).
Upon analysis, His Honour concluded that the householder did not owe a duty of care to the potential customer in respect of the hazard on the day in question. There was no requirement to take precautions to prevent the unevenness in the paving that caused the injury (paras 40-42). His Honour then went on to discuss the case in terms of breach of duty (para 43):
If the case is to be analysed in terms of breach of duty, I would reach the same conclusion. The approach taken by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 requires one to consider the response of a reasonable person to the risk in question. That requires consideration of the magnitude of the risk, the degree of the probability of its occurrence and the difficulty of taking alleviating action. I consider that the magnitude of the risk was low, and the degree of probability of its occurrence was low, although I recognise that temporary alleviating action could have been taken without any great difficulty. But Mason J concluded by saying that the ultimate question was the standard of response to be ascribed to the reasonable person in the defendant’s position. At that level the court is entitled to, and should, bring into play the everyday nature of the hazard. For those reasons I would reach the same conclusion if the matter were analysed in terms of breach of duty.
One additional point to be mentioned at this stage was that emphasised by Mr Brohier, counsel for the fifth defendant (the carpenter), namely, that, in the context of whether the standard of care had been breached, it was necessary to look forward from a time before the accident to give “consideration [to] the magnitude of the risk and the degree of probability of its occurrence” (see Council of Shire of Wyong v Shirt (1979-80) 146 CLR 40 per Mason J: see also Vairy v Wyong Shire Council (2005) 223 CLR 422 (at paras 126-127)).
As to the third defendant, I mention again that the plaintiff submits that the third defendant was an occupier of the extension and was under a duty to co‑ordinate with the first and second defendants as to who came onto the extension site. Further, it is said he was under a duty to check the work of his sub-contractor (the fifth defendant, the carpenter) before other people were allowed on site.
As to the duty of care owed by the fourth defendant, the plaintiff submits that the fourth defendant has an obligation to prescribe a safe system of work even though the plaintiff was not its employee. The plaintiff relies upon two passages to that general effect from Stephens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at pp 30-31.
Occupier’s Liability – Wrongs Act
As mentioned, it is necessary for me to take into account the factors referred to in s 17C(2) of the Wrongs Act when determining the standard of care. This I do.
The nature and extent of the premises is that it was a building site. The nature and extent of the danger arising from the state or condition of the premises was that of a “hidden trap”. As for (c), the plaintiff came on site to perform a hazardous and dangerous task. As for age (d), the plaintiff was then aged 35 years and experienced in his work. I find he had no ability to appreciate the danger. As for (e), the occupiers (all of them) ought to have been aware of the danger because the premises were not then ready for the installation of the air‑conditioning, but they knew the installation was proceeding. As for (f), no measures were taken. As for (g), the measures were quite simple, properly co‑ordinate and check that the site was ready and safe for the installation.
Some factual findings on the question of liability
In 1996, the first and second defendants were planning an extension to their house at Teringie. It is clear that, even as early as August, 1996, they were hoping that the fourth defendant would be supplying and installing the air‑conditioning for the extension (exhibit D(1)58). The first defendant had used the fourth defendant for some air-conditioning work at an earlier time at his medical practice rooms.
The initial quotation by the fourth defendant was the subject of discussion and variation (see exhibits D(1)57, D(1)58, D(1)59, D(1)59A, D(1)60 and D(1)61). The first and second defendants accepted the quotation and sent a deposit (exhibit D(1)62).
At the same time as the first and second defendants were negotiating with the fourth defendant, they were also negotiating a price for building the extension with the third defendant. Consistently with their approach to the air-conditioning as referred to above, the third defendant was not being asked to provide a quotation that included the supply and installation of the air‑conditioning (see exhibits D(3)41 and D(3)42). Although the third defendant wanted a builder’s supervision fee of ten per cent above his costs, he accepted a fee calculated at a rate of eight per cent.
The third defendant’s first quotation (exhibit D(3)41) included painting (labour and materials), shower screen and ceramic tiles (plus labour). After some discussions, these were deleted from the second quotation (exhibit D(3)42). The first defendant specifically noted for himself that neither quotation included, or was intended by him to include, the air-conditioning or flooring (see exhibit D(3)41 at bottom).
I do not accept the evidence of the first defendant that the third defendant agreed to supervise the installation of the air-conditioning as a favour to the first defendant (TP1520). The third defendant did not agree to supervise that installation. It was no small job and the third defendant had already agreed to accept a reduced fee. What is more, the first defendant already had an established working relationship with the fourth defendant and there was little need for the third defendant’s involvement.
An additional point is well made on behalf of the third defendant. It is clear from the various plans for the installation of the air-conditioning and where the units were eventually installed, that significant modifications were made as the project evolved. There is no suggestion by the first and second defendants that there was any consultation with, or advice sought from, the third defendant. The first and second defendants knew what they wanted and the fourth defendant, through its contractors, was going to install it. The third defendant had no function to perform.
All of this is not to say, however, that the third defendant did not need to know when the installation was occurring and how long it would take. Indeed, the third defendant would have needed to indicate to the first and second defendants when the stage was reached that the air-conditioning could be installed. It was part of the third defendant’s function to co‑ordinate the trades that he was bringing on site and those trades had to be co‑ordinated with those the first defendant was bringing on site. Bearing in mind that installation of the air‑conditioning involved the installers working in the roof void above the ceiling joists, a most important consideration was their safety and whether it was safe for them to go there.
The extent of the obligations of the third defendant and whether those obligations were met is dealt with below.
These matters reinforce my view that the site of the extension was jointly occupied by the first and second defendants and the fourth defendant for the purpose of the installation of the air‑conditioning. Further, not only were the first and second defendants bringing the fourth defendant on site, there were other installers/trades that they were bringing on site. Certainly, control was not in the hands of the third defendant alone. The third defendant’s possession was for the purpose of discharging his contractual obligations to the first and second defendants.
Consideration of the relationship between the first and second defendants, the third defendant and the fourth defendant
I start with a consideration of any relationship between the third defendant and the fourth defendant. There is certainly no contractual relationship between them. The third defendant obviously knew he was not supplying or installing the air‑conditioning and, on my findings, had not agreed to supervise the installation. However, as mentioned, he knew it had to be accommodated at some stage, that is, co‑ordinated with his activities. The air‑conditioning units could not be installed in the ceiling space until the roof timbers and ceiling joists were in place because the platforms upon which they sat were fixed to those timbers and joists. Further, you would expect the roof to be on at that stage otherwise the units would be exposed to the risk of damage by rain, it being mid-winter. The evidence is that the roof was on at the time of the installation of the units.
Although there did not need to be any direct communication between the third and fourth defendants, you would expect there to be liaison and co‑ordination between the first and second defendants and the third defendant on the one hand, and the first and second defendants with the fourth defendant on the other. The first and second defendants had an obligation to ensure that that part of the site where the fourth defendant and its contractors would be working was safe for the purpose of the installation.
I accept that Mr Kurda (for the fourth defendant) attended the site at some stage before the installation was due to take place. I cannot say how long before but the plaintiff said he made the note in his diary to attend on this job on 16 July, 1998, about a week beforehand (TP108). Mr Kurda would have needed to attend in advance of the installation to liaise with the first defendant, with whom he had previously dealt, and to ensure that the construction had reached the stage when the air-conditioning units could be safely installed.

The third defendant must have known that the air-conditioning contractors were going to be on site otherwise he may have arranged for other sub‑contractors to be there and they would get in each other’s way and pose dangers to each other. If different sub-contractors were going to be on site at the same time, there needed to be consultation and co-ordination. I find that the third defendant was aware that the air‑conditioning contractors were coming on site. Clearly, he also had a duty to those contractors to ensure that the condition of the site was such that the units could be safely installed. He had a duty to check progress with the fifth defendant.
The first and second defendants were in the same position. They had a duty of care to the plaintiff to prescribe and provide a safe system of work. Further, the first and second defendants had an obligation to co‑ordinate the activities of the contractors who came onto the site at their request. I discuss the facts further below.
Consideration of the relationship between the third defendant and the fifth defendant
The third defendant sub-contracted the roof and ceiling carpentry work to the fifth defendant who was a very experienced carpenter. There was a long‑standing relationship between the two.
There is no doubt that the fifth defendant (either personally or by his brother who was helping him) failed to properly secure the ceiling joist upon which the plaintiff placed his weight, it gave way and the plaintiff fell to the cement floor. That joist had been used as a guide to fix other joists and had not been properly and permanently fixed. It was fixed in a temporary manner and remained that way until the plaintiff placed his weight upon it. The plaintiff refers to this joist as a “hidden trap” or, put another way, a joist waiting for an injury to happen.
The fifth defendant maintains that he warned Mr Kurda that the work was incomplete and that no air-conditioning should be installed at that time. That aspect is dealt with below.
The third defendant submits that he has delegated his duty concerning the carpentry work to a skilled and experienced tradesman. Further, he submits that the carpentry work is not inherently dangerous and, properly performed, carried no significant risk of harm. Again, reliance was placed upon Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd and Henry (supra) to the effect that any duty to the parties was discharged by the use of a competent contractor.
I agree that one aspect of his duty was thereby discharged. However, in my view, his duty was not limited to the use of a competent contractor. His duty extended to ensuring that other contractors, who he knew were coming on site and would be working in the roof space, could do so safely. This necessarily involved liaising and co‑ordinating with the first and second defendants as to when such contractors were coming on site, and with the fifth defendant that that was a safe course at that time.
Position of the plaintiff and the fourth defendant and the fifth defendant
As mentioned, the plaintiff was a sub‑contractor of the fourth defendant. The plaintiff booked this job about a week previously and therefore attended on the day of the fall at the request of the fourth defendant. The fourth defendant, through Mr Kurda, had a duty to ensure that the site was safe for the work to be undertaken by its sub-contractor, the plaintiff. Mr Kurda should have checked with the first and second defendants and the third defendant and the fifth defendant that the site was safe.
The fifth defendant says he warned Mr Kurda that the ceiling work was not complete and that no-one should be sent to install air-conditioning. This aspect of the case is also dealt with below.
In any event, the plaintiff argues that the fifth defendant is still in breach of his duty even if a warning was given. The plaintiff argues that, because the fifth defendant was not going to return to the site for some time, and he knew the fourth defendant was keen to install the air-conditioning, an extra five minutes should have been devoted to making the joist safe. In other words, it was allowed to remain in that dangerous state in the knowledge that contractors, such as those who were to install the air‑conditioning, may well be in the roof space before the uncertain date of return of the fifth defendant.
Reception and use of documents relating to Mr Kurda of the fourth defendant
As noted previously, Mr Kurda died on 24 January, 2006. He was a director of AFA Air Conditioning Pty Ltd. He was proposed to be called as a witness for the company.
I heard argument relating to the admissibility of his statement pursuant to the provisions of the Evidence Act 1929. His statement was one prepared at a much earlier time when the circumstances of the plaintiff’s claim was the subject of investigation on behalf of the insurers of the fourth defendant by North East Loss Adjusters Pty Ltd. For reasons I expressed on 16 February, 2006, I admitted the statement pursuant to either s 45A or s 45B of the Evidence Act. There are various copies of that statement or parts of it (see D(4)89, D(4)90 and D(4)91A).
I left open at that stage the separate question of the weight or use to be made of that statement. I indicated at the time and confirm that I will ignore hearsay, and hearsay-upon-hearsay, from that statement. I also ignore assertions of opinion from that statement.
I should say something more about the manner of preparation of the original statement and the actual exhibit because they are relevant to its evidentiary weight.
As mentioned, Mr Kurda spoke with someone from North East Loss Adjusters, the conversation being recorded in the form of questions and answers. It was then reduced to a narrative and sent to Mr Kurda. Mr Kurda then took it to Mr Carabelas, a solicitor he had used many times, for assistance in its correction and proper presentation. Mr Kurda made extensive amendments on the first three pages of that statement (see exhibit D(4)90) such that it was re-typed. The remaining pages have hand-written amendments to the original pages. When the first three pages were re-typed, Mr Kurda read and signed all thirteen pages in Mr Carabelas’ presence. I am satisfied significant safeguards were undertaken to ensure the accuracy of the signed statement.
That statement is evidence of facts stated therein or facts that are implicit or to be inferred. However, the obvious shortcoming is that the contents have not been the subject of confirmation by Mr Kurda or cross-examination by counsel for the other of the defendants.
Further, I also gave all counsel the opportunity to place before me any additional documentary material that may bear upon the weight and reliability of the admitted statement of Mr Kurda or any other of his statements (either in the form of a statement or notes of conferences between Mr Kurda and Mr Bell) (see TP2761-2772). Eventually, a composite group of documents was tendered as exhibit D(4)97. The documents went in by consent following my ruling on the signed statement and intimation that I should receive all documents that bore upon Mr Kurda’s credibility and reliability. I would then temper my reliance upon them in view of any inconsistencies, factual gaps and lack of examination and cross‑examination. This I have done. I note that other defendants have been cross‑examined on the substance of Mr Kurda’s account. To that extent the case for the fourth defendant has been put.
Further findings relating to events leading to the fall
There is no doubt that the plans and specifications for the installation of the air‑conditioning changed as the project progressed. So much is plain from the exhibits and the first defendant’s evidence that a few weeks to a month before the fall, at lock-up stage, he asked that Mr Kurda attend to discuss some problems (TP1562, 1563 and 1569). There were earlier attendances also to provide the quotation. It is equally plain that Mr Kurda needed to know when the stage had been reached that the air‑conditioning could be installed. As mentioned earlier, the third defendant needed to indicate to the first and second defendants when the project had reached the stage for the installation of the air‑conditioning.
I accept the evidence of the first defendant that, prior to the fall, Mr Kurda rang the first defendant to find out if the project was ready for the installation of the air‑conditioning. I cannot make any finding as to the precise words used. However, I find that the first defendant indicated to Mr Kurda that that stage had been reached.
In a general sense that accords with Mr Kurda’s statement. According to that, Mr Kurda asked the first defendant “...if it was alright for us to go ahead and install the air‑conditioning units.” The first defendant said, “Yes” (exhibit D(4)91A at p 7).
Notwithstanding anything said by the third defendant to the contrary, I find that the third defendant did indicate to the first defendant that the project was ready for the installation of the air‑conditioning. The third defendant was in regular attendance at the site to check on the work of his sub‑contractors. Necessarily, he was in contact with the first defendant from time to time to discuss the progress of the work. The third defendant knew he was not supplying, installing or supervising the installation of the air‑conditioning and, from his experience, would have known the convenient time for that work to be undertaken.
However, I also find that the third defendant personally had not checked adequately on site or with the fifth defendant to ascertain whether everything was ready. In short, he did not check that the site was safe for the fourth defendant’s contractors. The third defendant was jointly in occupation of the site and did not adequately co‑ordinate the work of his trades with the incoming contractors of the first and second defendants. I note again that the plaintiff was aware of this job about a week beforehand (TP109, 352).
I accept that Mr Kurda was on site a number of times prior to the fall. Initially, that was for the purpose of providing a quotation and, later, a revised quotation. I also accept that he met the first defendant on site on at least one occasion, possibly more, to discuss the siting of air‑conditioning units and ducting.
I also have no trouble in accepting that, at some stage, Mr Kurda climbed into the roof space to check measurements. I find that must have been at a time when much of the internal ceiling structures were in place, including some at least of the ceiling joists. That would seem to be an appropriate time to check or double-check measurements. I cannot say precisely when that was but it must have been close to the time of the fall.
Evidence of the fifth defendant relating to events prior to the fall
I need to deal specifically and in some detail with the evidence of the fifth defendant concerning the carpentry work undertaken by him and his suggested conversation with Mr Kurda on the Sunday immediately prior to the fall.
In a nutshell, the case for the fifth defendant is that, on the Sunday before the fall, the construction of the ceiling timbers was incomplete and that Mr Kurda was effectively told that at that time. What was said is by no means certain.
There is no doubt that the work undertaken by the fifth defendant was extensive. It relevantly comprised the roofing timber work and the ceiling work in the family room and part of the ballroom. I accept the fifth defendant’s evidence that first the roofing work was finished, comprising the trusses, rafters and gables. He then went to another job and came back about two to three weeks later to do the ceilings in preparation for gyprock work. I accept that the fifth defendant returned to do this work on the Saturday before the fall (which occurred on Wednesday, 16 July, 1998).
The ceiling work to be undertaken in the ballroom (where the fall occurred) was of two types. There was an upper or vaulted flat section that then sloped down to the walls at an angle of 22.5 degrees. I accept that, on the Saturday, the fifth defendant, with his brother John Belletti, fixed the horizontal joists in the upper section of the ballroom up to the point of a hanging beam. On the Sunday, they commenced the sloped or raked section. Initially, some time was taken to ensure the correct slope and length of timber using a piece of timber as a guide. This was cut at the end that is closest to the wall with a bevel cut. As I understand it, the bevel cut is such that the line of the cut is vertical when the timber slopes at 22.5 degrees. This piece of timber was then tacked into the wall‑plate using nails. The fifth defendant prepared a model of what he did which became exhibit D(5)35. In evidence, and consistently with his evidence, that joist was fixed with two nails at that end.
In evidence, the fifth defendant acknowledged this joist was not finally fixed and that he “...would have had to come back and fix it properly” (TP2112). I find that this is the joist that gave way under the plaintiff’s weight.
The wall-plate is a piece of timber attached to the top of the bricks, on the horizontal surface, onto which the sloping joists rest and are normally attached by using nails, one from each side of the joists. It is important to note that normally a joist would also be notched at the end attaching to the wall-plate such that the notched end sits into and on the wall-plate before the nails are fixed: (see photograph 5 of exhibit D(5)28 and model D(5)75).
The guide joist that here gave way was not notched. It was not contested in this case that, if the ceiling joist had been notched in the normal way and one nail applied to each side of the joist, through the joist into the wall-plate, then it would have been safe for the plaintiff to stand on (TP2148). After all, many of the other joists were fixed in precisely that manner. The use of a Triple-L-Grip was but one method that could have been used. I find that notching and nailing was quite a safe, alternative method.
Returning to the guide joist, two other features need to be noted. The first is that there is a slight gap between the bevel edge and the wall‑plate and that, from above, that joist may, on close inspection in good light, have appeared different from those near it. Secondly, this joist was adjacent to a nib in the brickwork of the wall such that any difference in its appearance from others near it would not have been readily apparent from above or below.
After tacking this guide joist, they did the same thing at the other end of the ceiling. It should also be noted that on this side of the room it was not possible for the joists to go past the beam referred to as the hanging beam. On the other side of the hanging beam there were roof rafters sloping down to the wall but the under-section of these rafters was in a different plane than the joists being fixed on this Sunday. It was necessary, after the date of the plaintiff’s fall, for the fifth defendant to “pack” these rafters, meaning that timber was fixed to them to bring the lower section to the same plane as the joists being fixed by him. This is mentioned because it should have been obvious to Mr Kurda and the plaintiff that further work needed to be done past the hanging beam before the gyprock could be put up in that area. That is not to say, however, that anyone should have been alerted to the possibility of a joist not having been fixed in a proper manner.
As I understand it, having fixed guide joists at either end, string lines were placed over the upper and lower edges of these guide joists to ensure that the joists in between were fixed in the same plane. Then the joists in between the two guides were cut and nailed into position. A couple of methods were used but I do not consider it necessary to canvass that in detail (TP2200). However, not all were notched and, therefore, the guide joist was not the only joist which was not notched. Others, quite safely fixed, gave something of the same appearance. Further, the fixing of the joists commenced next to the joist that eventually gave way, and worked towards the other guide joist. When the fifth defendant got to the other guide joist, it was fixed into its final position (TP2115).
As has been mentioned a number of times, the guide joist that gave way was not notched and nailed such that it would have been safe to take the plaintiff’s weight. That was not intended to be its final method of being fixed. It could easily have been permanently fixed, which would have taken about five to ten minutes, by notching and nailing or some other safe method as was used after the fall.
In my opinion, there is no doubt that, as the plaintiff alleges, when they left on that Sunday at about 1.00 p.m., that joist amounted to a hidden or concealed trap for those persons who did not know of the incomplete nature of the work. However, that is not determinative of the matter.
What is crucial is when they were proposing to return and the knowledge or belief that the fifth defendant had about who may be in that area in the interim. Building sites regularly have hidden traps when being left for short periods or overnight when the work is incomplete. If, for example, the fifth defendant was going to return at first light the following morning and was told that no-one was going to be in the area in the meantime, it would seem unreasonable to say he had left a hidden trap. If, on the other hand, he was not planning to return for some days or longer, and knew someone may be up in that area in that time, then clearly it amounted to a hidden or concealed trap. It is therefore necessary to make findings about those matters, remembering it would have taken about five to ten minutes to safely secure it. This necessarily includes a consideration of the conversation the fifth defendant says he had with Mr Kurda on the Sunday before the fall while those joists were being fixed.
When was the fifth defendant planning to return?
What is certainly clear is that the fifth defendant was not planning to return on the Monday morning. When he was going to return was uncertain. The fifth defendant said that he told Mr Kurda that “...we won’t be coming back till later on in the week...” (TP2118). Later in his evidence he said that he told Mr Kurda “...we might be back later on in the week” to finish the ceiling (TP2193, 2222, 2256 and 2277). In fact, on the Monday, the fifth defendant worked at Smart Road, Modbury (TP2126). He went back to finish the job a couple of weeks after the fall, although he was not sure (TP2134 and 2260). Still later in his evidence he said it may have been one week, two weeks before they returned to finish the job. I do accept the fifth defendant’s evidence that there was six to seven days work to finish the ceiling timber and ballroom area (TP2117).
It is clear from this evidence that the fifth defendant was not planning to return from Sunday at about 1.00 p.m. until later that week. In other words, he knew he would not be returning for many working days. I also find that he was aware that he may well be away much longer.
I do not accept that the fifth defendant deliberately left this particular joist in an unsafe condition with a plan to fix it properly upon his return to complete the work. I find that properly securing it slipped his mind, he simply forgot. I do not accept the fifth defendant’s evidence (at TP2201) on this topic. In the end, he left at about 1.00 p.m. on the Sunday having failed to secure the joist and thereby leaving it in a dangerous condition.
What was Mr Kurda told by the fifth defendant?
I have already indicated that I accept that Mr Kurda would have attended the site for the purpose of giving a quotation and further quotation, but I also accept he attended one or two further times to monitor the progress of the work. Notwithstanding what was put to the fifth defendant by Mr Bell, counsel for the fourth defendant, (TP2298), I accept that Mr Kurda attended at the site on the Sunday immediately before the fall. The fifth defendant was working there with his brother. It was sometime before 1.00 p.m. As you would expect, Mr Kurda wanted to know when he could attend to install the air-conditioning.

The fifth defendant gave evidence of his conversation with Mr Kurda but the words he used are not certain. The fifth defendant gave many variations of it, particularly as to the suggested warning to Mr Kurda. I commence by referring to what was said by the fifth defendant in examination‑in‑chief (TP2118):
A.It was just he virtually come up, said hello. I was on top of the scaffold there and we stopped for a while. I said – I knew he was from the airconditioning thing and he said ‘When do you think it will be ready for us to come in?’ I said ‘We’ve almost sort of finished the flat area in the family room, but, you know, where we are working now, it’s not even close to finishing’. He says – I can’t exactly recall what he said, something about sending his boys down or something. I said we won’t be coming back till later on in the week and that was about it.
That evidence was the subject of extensive cross‑examination. I found the fifth defendant’s evidence on this topic very confusing and eventually unreliable. He seemed to adopt propositions that were inconsistent. His evidence was at odds with some of the pleadings and correspondence prepared on his behalf and presumably upon his instructions. Although there is scope for misunderstanding in obtaining instructions, there was such a divergence between his initial evidence and the pleadings and correspondence that I considered that not a great deal of reliance could be placed upon what he said (see detailed cross‑examination on this topic at TP2154, 2184-2222).
I also note that the fifth defendant acknowledged that the “packing” of the rafters (to bring them down to the same plane as the ceiling joists) was not necessary before the air-conditioning was installed (TP2294-5). I quote from the cross‑examination of the fifth defendant (TP2305.18-28):
Q.Again, I take a chance, I suppose, of summarising the enormous amount of evidence that you have already given, but I think it’s fair to say that at no stage did you tell Mr Kurda before the accident that no workmen should be sent into any particular area of the roof.
A.I didn’t say those exact words, but I did tell him that the job wasn’t finished.
Q.Yes, and my suggestion is that you told him you’d be finished in about a week.
A.No, I said to him I probably will be back towards the end of the week.
I find that what the fifth defendant said was that, in effect, he had not completed the timber work in the area where he was working. So much would have been obvious anyway. However, I expressly find that there was no warning that no-one was to go into the roof void until he had finished. There was no warning that the ceiling area was not secure or unsafe. I find, on balance, that the fifth defendant did not believe that air‑conditioning units were going where he was then working and the fact that he had not completed all of the work in the ceiling did not prevent those units being installed (TP2223, 2314-2317).
Further, it was not essential for all the ceiling work to be completed before the gyprock work could be started. There was an extensive area that needed gyprock and that could have been started while the ceiling work was being completed. However, realistically, the air-conditioning units needed to go in before much of the gyprock work could be done.
I find that the fifth defendant, when he left on that Sunday at about 1.00 p.m., knew that air‑conditioning contractors were planning to work in the roof void in the next few days and, in all probability, before he returned to complete the ceiling work (TP2370-2374). He failed to tell Mr Kurda to stay away until he had completed his work. The fifth defendant knew the joist had not been properly secured when he left on that Sunday and simply failed to turn his mind to it before leaving (TP2327).
Whilst dealing with conversations between the fifth defendant and Mr Kurda, I do accept the fifth defendant’s evidence that Mr Kurda, the day following the fall, said that he should have checked (TP2132). I find that Mr Kurda failed to check the ceiling joists, or failed to adequately check them, to ensure a safe system of work for the plaintiff. A proper inspection of the ceiling joists would have revealed the inadequately secured joist. There were a number of failures that were contributing causes to this injury, in this context the failure of the fifth defendant to properly secure the joist before leaving, the failure to clearly and expressly warn Mr Kurda to not go into that part of the ceiling, a failure by the fifth defendant to warn the third defendant and the first defendant and a failure by Mr Kurda to personally check the ceiling timber work before the plaintiff started. This matter is further dealt with below as to an apportionment of liability as between these and other defendants.
Events on the day of the fall relating to liability
Arrangements were made in advance by the first defendant and Mr Kurda that the air-conditioning would be installed, or at least commenced, on Thursday, 16 July, 1998. I found earlier that the first defendant had indicated to Mr Kurda that the project was ready for the installation of the units. The plaintiff attended on that day at Mr Kurda’s request.
There seems little doubt that it was Mr Kurda’s responsibility to make sure that the carpentry work was complete and safe before the plaintiff was sent to do the job or, at the very least, it was safe for the air-conditioning to be installed. Mr Nowak was there to assist the plaintiff. Mr Kurda did not check, or check adequately, the safety of the joists. Mr Kurda had an overriding responsibility for the safety of the plaintiff.
I have no doubt there was a meeting there that morning between the first defendant, Mr Kurda and the plaintiff and that the first defendant remained there for a significant period of time. I accept the plaintiff’s evidence that a layout of the air-conditioning was produced. This was a layout not previously seen by him. I find there was a discussion, involving input from the plaintiff, relating to the position of the fan coils in the ballroom.
I reject any suggestion from the first defendant that he was not present or that it was not an arranged meeting (TP1709). It should be remembered that the first defendant and Mr Kurda had ongoing contact in the quotation phase and about the positioning of the units. There is no doubt in my mind that there was further discussion, on the morning of the fall, by way of confirmation, or perhaps alteration, of the sites of the units and the control panels.
Plaintiff’s responsibility for his own safety
I say a little at this stage about the plaintiff’s position concerning his responsibility for his own safety.
I have already found that Mr Kurda failed to provide a safe system of work for the plaintiff by personally checking the timber and joist work. It was not adequate to rely upon someone else for that purpose or to make a cursory inspection. Having said that, I accept that Mr Kurda believed that it was safe for the plaintiff and others to work in the roof. If he had thought or believed otherwise, he would not have allowed anyone to go into the roof. That belief, in the absence of a proper inspection, was inadequate.
The plaintiff believed that the ceiling rafters and ceiling joists were all completed, as you would expect, before the gyprock goes on. He said “[t]o me everything was complete,” “everything was there, I could walk on it” (TP677). There was certainly no warning by anyone that one or more of the rafters/joists was not properly affixed.
The plaintiff was entitled to rely upon Mr Kurda to provide a safe system of work. At the same time, the plaintiff had some responsibility to look after his own safety. Although he was not obliged to check each timber, he needed to work with care and caution. This he did. It was not practicable for him to work with a form of overhead support or boards spanning a number of joists, thereby spreading his weight across them. The way the plaintiff worked was in accord with the usual practice for that type of work.
It must also be said in fairness to Mr Kurda and the plaintiff that the difference with this joist would not have been readily apparent to the untrained eye, certainly from ground or floor level. The fact that it was not notched was not unusual because about half of them were in that condition because they were sitting over a steel beam. Secondly, the joist that gave way was immediately next to a brick nib which would have obscured it, from one side at least. Thirdly, it was, nonetheless, fixed with two nails (I make a finding to this effect) and may have given the appearance of being secure.
However, Mr Kurda was very experienced in the work of installing these units and he should have noticed, or at least raised a question about, this particular joist. Can the same be said about the plaintiff? The plaintiff, above everyone else, knew how much he relied upon the security of timbers and joists. His primary focus would be securing his footing on those timbers and joists. To him it was complete.
I have had regard to Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 and Czatyrko v Edith Cowan University (2005) 79 ALJR 839. In my view it was not unreasonable for the plaintiff to undertake the work in the manner in which he did. It was reasonable for him to assume that Mr Kurda had undertaken a proper inspection. In any event it falls into the category of thoughtlessness, inadvertence and/or carelessness. I am not prepared to find the plaintiff guilty of any contributory negligence. I find that all the defendants were negligent.
After the fall
Neither the first defendant nor Mr Kurda were present at the time of the fall. At the time of the fall, the plaintiff was working with Mr Nowak installing a fan coil on a platform that they had constructed (see the fan coil shown in exhibit P5, photographs 1, 4 and 8 – the ducting was not present at the time of the fall). The first defendant was notified of the fall by Mr Kurda.
When the first defendant attended later in the day, he saw a beam hanging down with a nail through one end. The first defendant tried, unsuccessfully, to put the joist back in position by aligning the nail with a hole in the wall. Somewhat strangely he said it had a piece cut out from one end (TP1592).
I accept that the fifth defendant later said to Mr Nowak, when discussing the plaintiff’s fall, that “Oh, I’m in the shit,” or words to that effect (TP1022, 1102).
I also accept that the fifth defendant disposed of the piece of timber in an endeavour to avoid responsibility for the fall. It would have been apparent upon inspecting it that it had not been properly secured.
The other aspect of the case with which I wish to deal at this stage relates to dealings between the first defendant and the third defendant and the fifth defendant subsequent to the fall.
As the first defendant remembers, there was a meeting on the Saturday afternoon following the fall, at the first defendant’s home, with the third defendant and the fifth defendant. The first defendant says he asked both the third defendant and the fifth defendant whether Mr Kurda had made contact with them prior to the fall. The third defendant replied in the negative. The fifth defendant acknowledged that he had spoken with Mr Kurda and says he told Mr Kurda that the roof structure is unsafe and you have to ask the builder (whether it is ready for the air-conditioning) (TP1582-3, 1598). If the fifth defendant said those things, it did not, on my findings, represent the truth. The first defendant was seeking an assurance that none of them had done anything wrong (TP1598). He received that assurance, although I do note that, on the morning of the fall, he did not ask Mr Kurda whether he had got the “green light” from the third defendant and the fifth defendant (TP1695-6). I also note from the first defendant’s letter, exhibit D(3)47, that there is no assertion by the first defendant in that letter that the third defendant was to supervise the installation of the air-conditioning. I found his answers on this topic unsatisfactory (TP1683-4).
Causation
There is little need to dwell on this aspect of the case. In my view, the negligence of each defendant was a substantial cause of the injury to the plaintiff.
Public Liability Insurance for the building works – who was to arrange and for whom?
As mentioned earlier in these reasons, there is no need for me to deal with this topic unless I find the third defendant to have been negligent and liable to the plaintiff. I have so found and there is now a need to deal with the content of the contractual arrangements between the first and second defendants on the one hand and the third defendant on the other. For these purposes, Mr Dart appeared on behalf of the first and second defendants.
The essence of the dispute is this. The first and second defendants contend that the contractual arrangements with the third defendant were that the first and second defendants would arrange public liability for themselves and that the third defendant was to arrange public liability for himself. The third defendant contends that the first and second defendants agreed to extend their public liability insurance to cover the third defendant.
It should be noted that the third defendant does not seek damages for breach of contract. The third defendant claims that there was a contractual obligation upon the first and second defendants to obtain public liability insurance for the works. If that claim is correct, then the third defendant should be seeking damages for breach of contract. The first and second defendants have treated this part of the proceedings as a claim for damages for breach of contract.
It is necessary to say something about what occurred prior to the signing of the contract, to which reference has already been made in another context (exhibit D(3)43).
According to both the first defendant and the third defendant, there were a number of preliminary meetings at which the general concept of the extension was discussed and, at the second meeting, plans were given to the third defendant (TP1515). I have already found that I do not accept that the third defendant agreed to supervise the installation of the air-conditioning (and parquetry flooring) (exhibit D1 – TP1520). The third defendant provided a quote that was the subject of further discussion and negotiation, particularly the third defendant’s margin of ten per cent (which was eventually agreed at eight per cent). The first defendant asked the third defendant to prepare the contract (TP1525). The first defendant picked up the contract from the third defendant and it was signed a day or two later. The first defendant discussed it with the second defendant in the interim.
The contract, exhibit D(3)43, is dated 23 July, 1997 and is signed by the first and second defendants and the third defendant. It was signed at the third defendant’s home and the handwriting in the body of the document was there at the time of signing. The first and second defendants did not sign in the presence of any witness, although the contract suggests they did.
The first defendant agreed that, at the time he signed the contract, he did not have any discussion with the third defendant about the type of, and terms of, the contract (TP1613). At some stage, an application was signed by the third defendant for Home Owner’s Warranty Insurance and a Certificate of Insurance, dated 2 October, 1997, was issued (see exhibits D(1&2)66, D(3)44).
The first defendant also gave evidence that, on the occasion of the signing of the contract, just before the first defendant left the third defendant’s home, the third defendant said “Make sure that you have got insurance cover”. On the first defendant’s account, there was no discussion about what type of insurance. Indeed, there was never any discussion about public liability insurance (TP1618). The first defendant said he knew he needed to get public liability insurance for himself. He obtained such insurance for himself and his wife (the second defendant) through Brecknock Insurance Brokers Pty Limited (exhibit D(1&2)67, D(1&2)68).
I have already touched on a meeting between the first defendant, the third defendant and the fifth defendant on the Saturday immediately after the fall, at the first defendant’s house. The topic of insurance to cover the injury to the plaintiff was raised. According to the first defendant, the third defendant asked whether there was insurance to cover the plaintiff. The first defendant responded by saying that there was only insurance for himself and his wife. The third defendant asked why the insurance did not also cover him, in his name also. The effect of the first defendant’s response was that he understood that was all he had to do (TP1624-5). This account suggests some understanding about insurance held by the first defendant that was different from the third defendant’s understanding.
This evidence is consistent with what the third defendant put in the first paragraph of exhibit D(3)46. The first defendant’s position seems consistent with the last paragraph of exhibit D(3)47, although the word “instructed” is not entirely apposite (TP1326, 1646-7).
Going back to earlier events, the third defendant agrees there were discussions with the first defendant whereby the first defendant wanted to give him part of the work on the extension (TP1189-90). The first defendant left the plans with the third defendant so that a quote could be prepared. Then there were some negotiations about the work to be undertaken by the first defendant and the work to be undertaken by the third defendant, and the price. A price was agreed upon.
At what was said by the third defendant to be their second meeting, the third defendant produced a work contract, which was a standard form contract that he had used for many years. There were blank spaces to fill in for the particular job to be undertaken. The third defendant took the document to an architect who he knew, Scettinio De Gregorio, to fill in the blanks. Once that was done, the third defendant notified the first and second defendants and they attended at the third defendant’s house to sign it.
Once the contract was signed, there were discussions about the various reports (engineering and soil), approvals and a starting date. There were then discussions about HIA Insurance. According to the third defendant, he said he (the third defendant) would organise the documents for the HIA Insurance “...and then we would organise some public liability insurance for me” (TP1199-1202). In cross-examination by Mr Dart, the third defendant confirmed (and I so find) that the contract was signed and then there was discussion about insurance, namely, public liability insurance “...for himself and for me” (TP1320).
Later in his evidence, the third defendant explained that he did not obtain public liability insurance because “[i] tell him to take” (TP1212). Further, the third defendant said when he attended at the site with the man who was going to do the foundations (Charly Guglielmo, also known as Charly Foundation), he (the third defendant) gave the first defendant an envelope concerning the HIA Insurance and reminded the first defendant to obtain the public liability insurance for “us” (TP1221).
Mr Guglielmo was also called as part of the case for the third defendant. He supported the third defendant to the extent that there was mention of insurance: “...Olinto say he should get insurance for us” (TP1452) and the first defendant said “Yes”. That is obviously ambiguous and eventually Mr Guglielmo said it was insurance to cover the third defendant, although that does not appear to have been explicit (TP1462).
After the fall, the third defendant said he attended at the first defendant’s home and the first defendant said there was no need to worry because “...he had insurance that covered” (TP1244).

As for the right heel and ankle, the plaintiff says he is in constant pain which, if it is too much, he takes Panadeine Forte. Mr Dracopoulos offered a fusion of the right heel “if the pain still continues or if you’ve got problems...” (TP201).
The plaintiff gave evidence that he agreed to have the operation but has not yet made a final decision – “I don’t want to be a statistic” (TP205).
The plaintiff obviously has some difficulty walking even with a stick, but it is clear from his cross-examination in particular that he is able to walk significant distances with rest periods, but which may result in swelling of the right ankle. I have no trouble in accepting that the plaintiff is unable to perform his pre-injury work, especially because it involved climbing a ladder and working in uneven and precarious places. I also have no trouble in accepting that, apart from swimming and walking, the plaintiff is not able to engage in any sport or exercise of the type he did previously.
The plaintiff sought treatment from his general practitioner, Dr Przybylko for depression and sleeping problems. The plaintiff continued to see Dr Przybylko until about December, 2001 when the plaintiff says the doctor made what seemed to be unprofessional suggestions (TP434-5). The plaintiff did perceive that the doctor thought he was whingeing too much. The plaintiff then consulted another general practitioner, Dr H. Goldsworthy.
I say a little more about Dr Przybylko’s dealings with the plaintiff, who saw him between 13 August, 1998 and 5 December, 2001. The plaintiff’s main complaint upon each consultation was the pain (TP378). Although there were signs early on of depression, poor impulse control and unresolved anger, by the time of the last consultation the plaintiff did not present as depressed and Dr Przybylko was somewhat optimistic. Dr Przybylko is of the view that, once the case is resolved, the plaintiff will move on and make the most of his options (TP392).
Dr Przybylko referred the plaintiff to Dr Czechowicz, a psychiatric specialist, in November, 1999 to cope with depression and suicidal thinking. Dr Czechowicz said this about him in his report of 3 November, 2000 (exhibit P1, p 29):
When he presented to see me in November he showed significant symptoms of depression with occasional suicidal thinking. He also presented symptoms of social phobia with panic attacks from time to time as well a clear cluster of symptoms consistent with post traumatic stress disorder with flashbacks, nightmares reliving the experience, with significant avoidance of similar situations and avoiding contact with people, especially strangers, avoiding crowds etc. He also complained of significant symptoms consistent with increased arousal.
And later (p 30):
The accident caused the injury to the foot, the foot impairment produced secondary depression. He also suffered post traumatic stress disorder due to the trauma of the fall and secondary to that he also developed symptoms of social phobia and depression which is both due to the physical impairment and to the post traumatic stress disorder.
There has been significant progress in the treatment of both PTSD and depression with medication and support, however until the pain and loss of function of the right foot is largely resolved it is likely that his psychological symptoms of depression and post traumatic stress disorder will continue.
Dr Czechowicz re-assessed him in April, 2003. In his report of 4 April, 2003, Dr Czechowicz thought that, to a large extent, the depression had resolved but that the post traumatic stress disorder “...is still significant in its capacity to generate impairment. He also has the physical condition of pain and loss of function of his right leg.” Dr Czechowicz considered that, if the plaintiff had the fusion operation offered by Mr Dracopoulos, his psychiatric impairment would improve. In 2002, Dr Czechowicz assessed his mental impairment at the level of 40 per cent impairment (the plaintiff not having had the operation). Assuming the operation took place in six months from that time, there would be about 30 per cent total body impairment within a further six months, that is, by April, 2004. Dr Czechowicz also suggested some ongoing psychiatric support of three to four times a year (for five years) at a cost of about $150 per hour.
The plaintiff was further reviewed on 26 August, 2004 and Dr Czechowicz reported on 15 November, 2004. In August, 2004 he had marginal symptoms of depression. (The plaintiff has yet to have an operation.) Dr Czechowicz considered that with a physical impairment of 20-30 per cent “...combined with the psychological assessment his impairment of total body function as of the order of 40 per cent.” Dr Czechowicz went on to say (also 35) – “His residual symptoms of pain, loss of function, anxiety and depression...” and his “...PTSD makes him fearful about undergoing further surgery, which could possibly improve his physical disability.”
In evidence, Dr Czechowicz reiterated that his psychological and psychiatric state were likely to improve with time given a good outcome of the physical intervention (that is, fusion of the ankle) (TP625). He accepted that a successful fusion would reduce physical and psychological impairment by a factor of around 50 per cent, that is, improvement in the pain and the function is likely to have a significant effect psychologically (TP641). Dr Czechowicz also reiterated that the plaintiff refused the operation because he was fearful of the possibility of things going wrong (TP660).
At this stage, I should consider what Mr Dracopoulos says about the fusion operation and the plaintiff’s response. Mr Dracopoulos explained that his initial operation entailed placing plates and screws to treat the fracture of the right calcaneum. The possible sub-talar fusion operation was described by him in this fashion (TP220-1):
A.If the gentleman requires a subtalar fusion or to proceed with a fusion, it’s often necessary to take those plates and screws out to achieve the new desired result which is a fusion of that joint.
Q.Can you just tell us about what a subtalar fusion entails.
A.Often, after a fracture which involves the cartilage and the joint, in the ensuing months to years arthritis develops, and the cartilage disintegrates and one ends up with a painful situation for the patient; also usually associated with stiffness. In general terms, when someone has a painful stiff joint, one option is to take that joint and fuse it, which means taking away the joint and aiming to achieve bone growth across what was previously a moving part. In simple terms, you are taking a very stiff but painful joint and hopefully turning it into a completely stiff but much more comfortable joint. You are sacrificing a few degrees of movement to give you pain relief.
Q.Can you just tell us, how is the fusion of the subtalar joint done.
A.Obviously another surgical procedure is required. The unhealthy cartilage is removed until one gets back to fresh healthy bone.
Q.The unhealthy cartilage is situated where.
A.In the subtalar joint.
Q.That’s in the area that you have marked on the –
A.Marked on the figure. The unhealthy cartilage is removed and fresh bone surfaces are apposed, and sometimes some bone supplementation – in other words, graft – is required from the pelvis but often times not. Simply putting a screw or two screws across from the calcaneum into the talus will appose those two bone surfaces and that for a period of immobilisation – usually 12 weeks in a plaster – the bone will grow into one bone and will stiffen that joint, fuse it in other words, and then most times relieve a lot of pain.
He estimated, when giving evidence in December, 2004, that the total cost of such an operation was between $8,000 to $8,500.
Mr Dracopoulos considered the only slightly unusual feature of the plaintiff’s presentation was his reluctance to go ahead with the fusion operation which has been suggested (TP222-3). At Mr Dracopoulos’ consultation with him on 9 March, 2000, “it was suggested to him that his only options were to either live with his current symptoms or else to undergo a fusion of the right sub-talar joint” (TP226). Mr Dracopoulos considered that, because the plaintiff “...was having a great deal of pain...I thought that fusion would be a good option for him...” (TP228). He explained that the fusion operation could be done at any time in the future and, if the pain is not bad enough, the plaintiff will not push to have it done. Mr Dracopoulos explained the risks (TP229-230):
A....I always counsel patients as to the general risks of infection, nerve damage, blood clots, the risk of having another anaesthetic, because this sort of surgery requires either a full general anaesthetic or a spinal anaesthetic and then more specifically relating to the problem, 5 to 10% of patients do not get a successful fusion occurring, so there’s always a chance that going ahead with this fusion may not result in the bone growing in one to the other, and then the pain continues despite all of the trouble he’s gone through with another operation and some times also the bone knits, but they still have some residual symptoms because part of the pain was due to bruising of ligaments and padding around the ankle generally. I always tell people that there’s probably a 90% chance that they’ll be better, not perfect but better than they were and a 10% chance they won’t.
Q.And that 10% that you’ve just mentioned includes that group of risks that you’ve just outlined to His Honour.
A.Yes, it does.
Q.Just leaving the general situation aside for a moment and dealing specifically with Mr Mendrecki, would you expect that if he proceeded to a fusion back in March of 2000 there was a 90% chance of it being successful.
A.Yes, that’s follows.
Q.We know that he didn’t accept the offer of a fusion at that time, don’t we.
A.That is correct.
In his reports of 8 March, 2001, 7 March, 2002 and 24 May, 2004, Mr Dracopoulos repeated his view that the plaintiff would be better off with a fusion of the sub-talar joint. He also reiterated that he leaves the decision to the patient.
Importantly, Mr Dracopoulos expressed the view that, after a fusion operation, a patient could get back to manual work, but with some limitations and restrictions, and would be able to work on even surfaces (TP233). Even without the fusion operation, there is nothing, in Mr Dracopoulos’ opinion, to prevent the plaintiff performing sedentary work (TP237, 249-251).
Mr Dracopoulos expressed the opinion that at present the plaintiff has a 30 per cent loss of the right lower leg below that knee, but a successful sub-talar fusion may reduce that by half. Part of the component of 30 per cent was because the plaintiff was in so much pain and the consequential impairment of his lifestyle (TP235). A successful fusion would reduce the pain by more than half. Mr Dracopoulos considered that the plaintiff had not had the operation because the pain is not severe enough or there may be psychological issues that may be a barrier to making the decision (TP241, 247).
I turn now to the plaintiff’s evidence on this point.
The plaintiff confirmed that his right foot constantly causes him pain (TP200, 443). He said Mr Dracopoulos offered a fusion which would lock the foot, it would not be able to move sideways and it would be irreversible. The plaintiff said he was concerned about the potential complications, considered them and decided not to have the fusion. The plaintiff said there was no guarantee the pain would go away and there was only a “possibility” that mobility could improve (TP203).
When giving evidence in December, 2004, the plaintiff said he was on the waiting list for surgery that may be in July, 2005. When giving evidence, the plaintiff expressed his concerns in this manner (TP205):
Q.Are you still concerned about whether you should have the operation or not.
A.To some degree, yes.
Q.Is this the case, that you’ve been on the waiting list on the basis that you most likely will have the operation but haven’t made a final decision.
A.He’ll review me and see what it’s all about.
Q.Is this the position: that you have made a final decision that you will have the operation or you’ve made a final decision you won’t have the operation.
A.I have not made any final decisions as yet.
Q.So you’re waiting on what.
A.I’m not mentally prepared as yet to make the final decision. I don’t want to be a statistic.
The plaintiff acknowledges that Mr Dracopoulos, on more than one occasion, suggested the fusion, that he is thinking about it seriously but is scared to go ahead with it. He wanted, at the time of giving evidence, to speak with people who had had a successful operation and others who had had an unsuccessful operation (TP439-442).
The plaintiff acknowledged that, if he had less pain and his foot was not hurting, he could do more and sleep better (TP443-4). The plaintiff, in some very unsatisfactory evidence, eventually conceded that he “...would be able to more vigorously pursue a return to physical jobs apart from the job that you were doing at the time of the fall” (TP444-445). My very clear impression from that evidence, and some that followed, is that the plaintiff was deliberately trying to avoid answering the effect of the questioning. I find that he was deliberately downplaying the potential positive result of a fusion. I have no doubt that he is concerned about the success of such a fusion but his concern is not as great as emerged from his evidence (see also 674-5, 920-922).
Associate Professor Bauze, orthopaedic surgeon, examined the plaintiff and reported on 11 April, 2002. He noted Dr Dracopoulos’ advice about the subtaloid fusion two years previously. He also said this:
With a satisfactory subtaloid fusion, he should be able to manage most work except he would not have a flexible heel. This would give difficulties with walking on uneven ground or on roofs etc.
And later:
At this time his capacity for employment on the general labour market is virtually nil for any job that requires standing or walking or climbing. He should be able to work satisfactorily in a sedentary job.
(See exhibit D(4)87)
I turn now to the report of Dr Blakemore, psychiatrist, dated 30 July, 2003 (exhibit D(4)88). There are two pertinent issues with which Dr Blakemore deals. Dr Blakemore acknowledged that a psychiatric illness diagnosis relating to his depression and his post traumatic stress disorder would have been applicable at an earlier time, but not now. He thought it unlikely that any future psychiatric treatment will be necessary. Finally, Dr Blakemore said this:
Mr Mendrecki’s times of worry and mild depression now do not impact upon his capacity for employment in the general labour market, the extent of any incapacity thus really being a physical, surgical matter, relating to his foot injury. In fact, it would likely help Mr Mendrecki generally emotionally if he were able to find work within his physical capacities.
One of the significant questions is whether it has been reasonable for the plaintiff to undergo the fusion procedure to the right sub-talar joint before now. From my assessment of the evidence there has been ample opportunity for him to have had such an operation but he has not done so. Based upon the specialist medical evidence, I find that prospects of a successful fusion are high, the pain reduction would be of the order of half, he would sleep better and have a better lifestyle. Undoubtedly there are some risks, but I assess them to be minor.
A failure to undertake the fusion operation is a matter of mitigation and the onus of proving that such a failure or refusal is unreasonable rests upon the defendant(s). I was referred to a decision of Glavonjic v Foster [1979] VR 536 at 539-40, a decision by Gobbo J when he said (at 539):
I have come to the view that it is consistent with the views of the House of Lords that the test of reasonableness is one to be achieved by considering what a reasonable man would have done assuming he was faced by all the circumstances of the case as they presented themselves to the plaintiff. Though one might properly exclude the peculiar reservations of a neurotic person, it is appropriate to take into consideration a mental condition such as an anxiety state where that was itself related to the injuries and was caused or contributed to by the accident in question.
And further (at 540):
I am of the view that if the matter is to be judged entirely objectively without regard to the plaintiff’s knowledge, circumstances and mental condition, refusal of the operation was not a reasonable one. I am of the opinion however that upon analysis of the authorities I am not constrained to apply such a strict and technical test. It seems to me more appropriate to have regard to the circumstances of the plaintiff. That is not to say that one simply applies a subjective test and considers whether the plaintiff thought it was reasonable for him to refuse surgery. It is however appropriate to adopt a test that asks whether a reasonable man in the circumstances as they existed for the plaintiff and subject to the various factors such as difficulty of understanding and the plaintiff’s medical history and condition that affected the plaintiff, would have refused treatment.
It is necessary, therefore, for me to consider whether the plaintiff is suffering from any psychiatric or psychological conditions, which were caused or contributed to by the accident of falling from the roof space. If there is any such condition, is that a factor in the plaintiff’s refusal (as I see it) to undertake the fusion. Being an operation, it is invasive to some degree but not to any major extent. I also have regard to that aspect.
As has been touched on above, the plaintiff was diagnosed as suffering depression and a post traumatic stress disorder. However, I find on the evidence that that had resolved for all intents and purposes by the time he came to give evidence in December, 2004. Even if they continue to exist, I expressly find that not to be a factor in his refusal to undergo the fusion. I have already referred to his unsatisfactory answers on this topic. Further to my earlier findings, I also find that the plaintiff is consciously refusing to undertake the fusion because he believes that it will benefit his claim.
The plaintiff is quite right to factor into his attitude that there are risks, fears and no guarantees. However, at the same time, the potential benefits of the fusion are great and far outweigh the potential negative results. On the positive side, there is a 90 per cent chance that the fusion would be successful. The pain would be so reduced by about half. His sleeping, lifestyle and ability to obtain work would be greatly enhanced. His refusal to undergo the fusion is unreasonable as well as calculated and opportunistic, that is, he believes he will receive an increased award by deliberately adopting such a stance.
Further consideration is given to this topic below. The plaintiff needs to be compensated for the cost of the operation itself, the pain and suffering associated with it and his subsequent rehabilitation, and the risk that it may not be successful and that potentially he may be worse off.
Returning to the general question of pain and suffering in the past and in the future (on the assumption that there is a successful fusion operation but still factoring the risk it will not be so), it is clear that the plaintiff has suffered a significant injury. His physical rehabilitation took some years and there is ongoing pain and discomfort associated with everyday movement and involvement in household activities. Notwithstanding the findings I have made above, I do not downplay or minimise the ongoing nature of his pain and suffering. That will remain with him for the rest of his life and, if anything, become greater with advancing years. I also have regard to the psychiatric and psychological injuries he suffered.

Consistently with my views expressed earlier, the plaintiff should have had the operation some two years ago. There is a 90 per cent chance the operation would have been successful and that the pain and discomfort would have been reduced by about half. There is, therefore, some discount on the normal pain and suffering over that two year period. At the same time there will be the additional pain and suffering in the future after the operation and during his rehabilitation. He is now no longer able to enjoy the many sports and past-times he did previously. There has also been a significant loss of enjoyment of life.
Doing the best I can, I assess the plaintiff’s pain and suffering, both as to the past and future, at $60,000, $30,000 as to each. Interest is fixed at $4,800. I award $64,800 for past and future pain and suffering and loss of amenities.
Past loss of earning capacity
As touched on earlier, the plaintiff was a self-employed air-conditioning installer sub-contractor. I have summarised earlier my findings about his general and employment background.
I accept that the plaintiff had been hardworking and industrious prior to the fall and that, with additional responsibilities, he was prepared to work harder and that the work would have been available to him. The plaintiff married on 5 October, 2003 and now has a child.
From about mid-1994, he employed Mr Nowak on an hourly rate to assist in installations. A short time after the plaintiff’s fall, it seems that Mr Nowak took over the sub-contractor work previously performed by the plaintiff.
To calculate the plaintiff’s past loss of earning capacity, it is necessary to have some regard to his earnings prior to the fall and injury. His gross earnings for the previous years were as follows (see exhibit P3):
Year ending 30/6/95  $33,504
  Year ending 30/6/96  $37,052
  Year ending 30/6/97  $27,362
  Year ending 30/6/98  $17,166
I accept that, during the 1998 financial year, the plaintiff was overseas for about three and a half months. I also accept that, had he worked the entire year, that would have represented a gross income of about $24,234, or about $470 per week gross.
The plaintiff’s past loss of earnings needs to be calculated for the period from 16/7/98 until the day of judgment on 22/12/06, that is, a period of eight years, five months and one week.
Some assistance as to the plaintiff’s loss of earnings is able to be gleaned from the earnings of Mr Nowak who effectively took over the plaintiff’s business in October, 1998. Mr Nowak’s figures are only able to be used as a guide, partly because he was not paying wages in all years (whereas the plaintiff was paying wages to Mr Nowak in the years referred to above). However, that works both ways because paying wages enabled the plaintiff or Mr Nowak to take on more work. Further, Mr Nowak was working in a partnership with his wife. Yet further, Mr Nowak has, over the years, worked as a sub-contractor to other air-conditioning companies, not just the fourth defendant (AFA Air-Conditioning Pty Ltd). Mr Nowak also declared earnings as a professional soccer player in the year ending 30 June, 1999 and possibly later years. Mr Nowak’s income details are as follows:

Year ended 30/6 Gross income Net income Net per week Net per annum

1999
(9 months only) $38,432 $21,226 $452.75 $23,543
(12 months)

2000 $63,125 $46,236 $676.00 $35,152

2001 $51,311 $28,623 $444.00 $23,088

2002 $53,435 $38,005 $567.00 $29,484

2003 $70,754 $53,170 $759.50 $39,494

2004 $72,795 $59,670 $881.50 $45,838

When Mr Nowak gave evidence in April, 2005, he did not have any details for the 2005 financial year. There is no evidence for the 2006 financial year and half 2007.
In coming to a figure for past loss of earnings, it is also necessary to balance competing contingencies. He may have had reduced earnings because of sickness or an unrelated injury or, on the other hand, a large amount of lucrative work may have come his way. I would also expect the plaintiff’s income to fluctuate with the area of work becoming more competitive but, at the same time, more of it.
It should also be noted that the plaintiff’s loss of earnings did not really start until the beginning of October, before which time his contracts were being performed by Mr Nowak.
I find the net loss of earnings to be as follows:
1999  $15,000
2000  $28,000
2001  $20,000
2002  $22,000
2003  $30,000
2004  $36,000
2005  $40,000
2006  $44,000
  2007 (6 months only)         $23,000
$258,000
  ________
Interest on the past loss of earnings is fixed at $70,000. I have used a commercial rate of 6.5 per cent averaged over the period of 8.5 years. I award $328,000 for past loss of earning capacity, including interest.
Special Damages
Past
The plaintiff’s Special Damages have been agreed as per exhibit P11, namely, $9,649.96. The Notice of Charge in favour of the Health Insurance Commission in the amount of $3,041.20 expired on 11 March, 2005.
Future
In my view, the plaintiff should already have had the fusion operation. I infer that it is highly likely that the plaintiff will have such an operation. Based upon the evidence of Mr Dracopoulos, I allow the amount of $8,500.
Also in view of my findings, I am not prepared to make any allowance for psychiatric consultations. The plaintiff’s psychiatric condition, such as it was, has long resolved.
Loss of future earning capacity
I note that the plaintiff is to be compensated for loss of earning capacity, not for a loss of earnings. Further, the Court needs to consider not only the ability to work in some sort of occupation, but the availability of work in that occupation (Bremert v Clark (1966) 8 SASR 294, per Bray CJ at 296).
I am also guided by two High Court decisions on this topic. In Todorovic v Waller (1981) 150 CLR 402, Gibbs CJ and Wilson J said (at p 412-413):
Certain fundamental principles are so well established that it is unnecessary to cite authorities in support of them. In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries.
...
...it is obvious that it is impossible to assess damages for pain and suffering and loss of amenities of life by any process of arithmetical calculations. It may be less obvious, but is no less certain, that the assessment of damages for future pecuniary loss resulting from personal injuries can never be a mere matter of mathematics. It is true that as the assessment of damages has become more sophisticated, calculations are made in an attempt to achieve greater precision. Such calculations may sometimes give a false appearance of accuracy. Some of the figures on which they are based are the result of estimate or speculation. In the case of loss of earning capacity it is necessary to compare what the plaintiff might have earned if he had not suffered the injury with what he is likely to earn in his injured condition. In many cases this means that the court has to engage in ‘a double exercise in the art of prophesying’: Paul v Rendell (1981) 55 ALJR at 372; 34 ALR at 571. Of course in some cases of serious injury it will be possible to say that the plaintiff is probably capable of earning nothing in the future. However, in no case can there be any solid basis on which to determine what the plaintiff would have earned if he had not received the injuries in respect to which he sues. Actuarial tables will show the average number of years which will be lived after a certain age by those alive at that age, but will not show that it is probable that the plaintiff, even if in good health, would have conformed to the average. No evidence can possibly indicate whether the plaintiff, had he not been injured, would have remained in good health, and continued to be employed at any particular rate of earnings. For these reasons, damages for financial loss likely to result from personal injury ‘can only be an estimate, often a very rough estimate, of the present value of his prospective loss’: British Transport Commission v Gourley [1956] AC 185 at 212 per Lord Reid. Ultimately the process must always be one of judgment rather than calculation.
In Husher v Husher (1999) 197 CLR 138, the High Court (Gleeson CJ, Gummow, Kirby and Hayne JJ) said (at p 143):
Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff’s economic loss ‘by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff’s proved condition at the time of trial, to attempt some assessment of his future loss’. But damages for both past loss and future loss are allowed to an injured plaintiff ‘because the diminution of his earning capacity is or may be productive of financial loss’. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.
No doubt the past may provide important evidence about the plaintiff’s earning capacity and what economic consequences will probably flow from what has happened. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is an inquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff’s past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind. That student may have no history of paid work. Important as evidence of past events may be, that evidence is not determinative of an issue about loss of future earning capacity.
The defendants argue that there is little, if any, reduction in earning capacity and, in any event, the plaintiff has a substantial residual earning capacity
The plaintiff’s future earning capacity is to be assessed having regard to the opinions expressed by Mr Dracopoulos, Associate Professor Bauze and my view that the plaintiff should have had the fusion operation.
I accept the evidence of Mr Dracopoulos that, after a fusion operation, the plaintiff could get back to manual work, but with some limitations and restrictions, and would be able to work on even surfaces. He spoke of carpenters who had such a fusion who had to modify their duties and, although not able to work on a roof, could do ground level fixing (TP233).
I accept the evidence of both Mr Dracopoulos and Associate Professor Bauze that, even without a fusion, the plaintiff is capable of performing sedentary work. As Associate Professor Bauze put it, his “capacity for employment within the general labour market is virtually nil for any job that requires standing or walking or climbing”.
I have already found that his refusal to undergo the fusion operation is calculated and opportunistic, that is, he believes he will receive an increased award by deliberately adopting such a stance. Even with his reduced capacity at present, he should have mitigated his loss by trying to obtain alternative employment. He has made absolutely no effort over the ensuing years to find a suitable job or retrain for one. He has an aptitude for computers and is obviously an intelligent man, bearing in mind he passed the necessary exams for an Associate Diploma in Mechanical Engineering. The clear impression I have of the plaintiff’s evidence is that one of the reasons he said he was unable to work was that he continues to receive an income from the disability insurance policy. Whilst I am prepared to accept that originally there were some psychological factors affecting a return to some work, those factors are long resolved and the plaintiff’s present attitude is a conscious ploy to maximise his claim.
I also accept that the plaintiff’s ability to walk and move around is greater than he would have me believe. His capacity to walk significant distances with a walking stick or drive a car show that he is more than capable of performing a desk job. For example, the plaintiff would be well suited to work as an estimator for the supply and installation of air-conditioning, as an air-conditioning salesperson, accounts clerk, car rental officer, cashier or draftsman.
I also have the evidence of Mr Richard Oborn, registered psychologist, who used a number of assessment methods “...to obtain a comprehensive Vocational Assessment in relation to his (the plaintiff’s) working capacity” (exhibit P1 – p 37). Mr Oborn was not being asked for a clinical opinion (TP530). The assessment of the plaintiff took place in late 2003 and early 2004, Mr Oborn’s report being dated 18 February, 2004.
In his report (exhibit P1 – p 46, p 11 of the report itself), Mr Oborn gave a list of occupations that he considered the plaintiff had the ability to perform. Those occupations were accounts clerk, car rental officer, cashier, drafter, estimator, handyperson, locksmith, picture framer, property manager and quality assurance officer. He emphasised that he was referring to the psychological capacity, not the physical capacity, to perform those occupations. He said physical capacity to undertake specific occupations should be tested by a Functional Capacity Evaluation, which included an inspection of physical work sites (TP539; exhibit P1 – p 47, p 12 of the report). No such evaluation has taken place.
It should be noted that I have made my own assessment based upon the medical evidence referred to earlier. In saying that the plaintiff was well-suited to performing certain work, I have not included occupations that involve a great deal of walking around.
By way of summary, Mr Oborn said this (exhibit P1 – p 47, p 12 of the report):
Mr Mendrecki is an able person with considerable potential based on abilities for meeting the demands of occupational adjustment.
Despite this prima facie potential, illness behaviour, mental health, and entrenched habits and daily routines mean that, in my opinion, he would be currently unable to meet the usual demands of employment. Given the usual dynamics of a disputed rehabilitation outcome and Mr Mendrecki’s perception of his likelihood of achieving meaningful employment, I consider it very unlikely that significant adaptive change could be made before any settlement is ultimately reached. Further, given the apparently well‑entrenched nature of the features discussed in the body of this report, I would be surprised to see significant progress in occupational re-engagement, let alone achieving productive duties, even into the medium and longer term. Working for an employer would most likely be an unwelcome development for Mr Mendrecki, and hence amount to a further impediment.
He explained in evidence that by medium term he meant about twelve months and long term over the next three years (TP541). My earlier comments about the plaintiff’s failure to try to obtain alternative employment take into account the matters referred to by Mr Oborn.
Notwithstanding my views, there is a need to seek a balance between competing contingencies. There is some risk that the plaintiff will be unable to find suitable alternative employment (with or without re-training but after the fusion operation) or that such employment as he does find would not be as well paid as that of an installer of air-conditioning. He could become ill or injured unrelated to any tortious injury. There could be a downturn in his former area of work or contracts could dry up, although I doubt whether either would happen. On the other hand, he had the ability and capacity to build his own business once married and with the responsibilities of a family. The common experience is that there is an increased use of air-conditioning systems and consequently increased work for those that install them.
I intend to proceed upon the basis that the plaintiff would work until aged 65 years. His date of birth is 4 November, 1962, such that he is now 44 years of age. On that basis, I propose to calculate this component of loss for a period of 21 years. He has only been married for a few years with a young child. There may be another child or children. He has little by way of assets. Uninjured he would have needed to work until aged 65 years, but he would do less in the later years.
Again I am able to use Mr Nowak’s earnings as a general guide as to the plaintiff’s loss of earning capacity. Even after a successful fusion operation, his working capacity will be significantly reduced because of his reduced mobility.
Even on the plaintiff’s case there is a proven capacity for work. The necessary calculation is not capable of mathematical precision. Using a net weekly loss of $880, interest at 3 per cent per annum to age 65 for a male now aged 44 and a multiplier of 786, comes to $695,000. That is very much a starting point that I reduce for contingencies to $375,000. I award $375,000 for loss of future earning capacity.
Gratuitous assistance
As for past gratuitous assistance, I have already summarised the position. As mentioned, Ella Wrobel moved into the plaintiff’s place at Keswick. She continued to provide assistance to him until she moved out in January, 2001. Thereafter, assistance was given by Helen Kiezek, who subsequently became his wife, commencing in 2002, initially at her mother’s place and later at their present house at Northgate.
However, I do not read his evidence as him being unable to assist with normal household jobs that needed doing when they moved into the Northgate house in October, 2003. He did things slowly and there was pain associated with it.
I am prepared to make some allowance for gratuitous services from the time the plaintiff left hospital until he and his wife moved into the Northgate house, but not thereafter. The plaintiff needed intense support initially, but less as he learned to cope with the injury over the following years.
Exhibit P38 is from “Dial an Angel”, a national agency specialising in home and family care. I propose to use that as a guide on a referral basis, averaged across a period of four years, seven days per week. During 2001, he seems to have been without gratuitous assistance. Allowing $40 per day comes to $5,824. Interest on that amount is fixed at $200. I award $6,024 for gratuitous services including interest.
Summary of heads of damage
The following is a summary of the heads of damage:
Pain and suffering (including interest)  $64,800.00
Past economic loss (including interest)  $328,000.00
Loss of future earning capacity  $375,000.00
Past gratuitous assistance (including interest)                   $6,024.00
Special damages –
   Agreed   $9,649.96
   Operation      $8,500.00
$791,973.96
  __________
There will be judgment for the plaintiff in the amount of $791,973.96. I will hear the parties on the question of costs and orders on the contribution notices

Year ended 30/6	Gross income	Net income	Net per week	Net per annum
1999 (9 months only)	$38,432	$21,226	$452.75	$23,543 (12 months)
2000	$63,125	$46,236	$676.00	$35,152
2001	$51,311	$28,623	$444.00	$23,088
2002	$53,435	$38,005	$567.00	$29,484
2003	$70,754	$53,170	$759.50	$39,494
2004	$72,795	$59,670	$881.50	$45,838